:|i|| < ^illiilliili;' The Lawyers C0-0P£R*TIVEPuBII5H(N.. RoCHESTrR, N.Y THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON FRANCHISES ESPECIALLY THOSE OF PUBLIC SERVICE CORPORATIONS CONTAINING ALSO IN AN APPENDIX THE PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK THE PUBLIC UTILITY LAW OF WISCONSIN JOSEPH ASBURY .^YCE OF THE NEW YORK, CALIFORNIA, AND CONNECTICUT BARS; AUTHOR OF "JOYCE ON INSURANCE," " JOYCE ON DAMAGES" AND JOINT AUTHOR OF "JOYCE ON ELECTRIC LAW." THE BANKS LAW PUBLISHING COMPANY 23 PARK PLACE, NEW YORK 1909 T wo9 Copyright. 1909. by THE BANKS LAW PUBLISHING COMPANY DEDICATED TO THE MEMORY OF MY FRIEND AND SOMETIME LAW PARTNER THE LATE JUDGE NOBLE HAMILTON OF SAN FRANCISCO, CALIFORNIA WHO RENDERED TO THE BENCH AND BAR MANY YEARS OF UPRIGHT AND ABLE SERVICE 734C98 PREFACE In preparing this treatise on the very important subject of franchises, especially those of public service corporations, the author has endeavored to logically arrange and make clearly apparent the essential governing principles and the law which is applicable, and to present them as concisely as is consistent with clearness and an exhaustive treatment thereof. Great care has been exercised in stating not only these essential prin- ciples and the law applicable, but they have been illustrated by decisions or statements of facts in the text, and elucidated by notes embodying numerous quotations from the courts. Especial attention has also been given to the enunciation of the doctrines set forth in the decisions of the United States Supreme Court. While the above states the author's general purpose, his specific plan has been to define and consider in logical sequence the nature, character, source and underlying principles of all franchises, and the distinctions between them, for the better ascertainment of what franchises of corporations comprise; to define and show the nature, character and source of power of all corporations, to classify and distinguish them, and so make clear what constitute public service corporations and their peculiar characteristics, especially in regard to those franchises possessed by them which are not common to other corporations. Inasmuch as franchises are derived from and owe their existence to the sovereign power or State, and the right to their exercise is dependent upon the extent to which the State or subordinate bodies may grant, regulate or control and forfeit such franchises, and the validity of legislative enact- ments, the author has also considered in their proper and logical order, certain subjects, such as Federal and state constitutional and legislative powers; the delegation of powers by Congress, V PREFACE by the State, and to subordinate bodies or agencies ; the law of interpretation or construction of constitutions and statutes; the various constitutional provisions, including obligation of con- tracts, due process of law, and equal protection of .the laws; and as dependent thereon the relative rights of the State and of all corporations in relation to franchises and governmental control and regulation, including rate regulation, taxation, alienation and forfeiture of franchises. The author trusts that the plan of this treatise is such as to commend itself to the Bench and the Bar, and that the work will be of some aid not only in saving time and labor, but also in ascertaining, deter- mining and applying the principles and the law governing fran- chises. Joseph Asbury Joyce. New York City, New York, January, 1909. vi CONTENTS. CHAPTER I. DEFINITIONS. 1. Definition of Franchise by Finch, Blackstone, Chitty, Cruise and Kent. 2. Chief Justice Taney's Definition of a Franchise. 3. Other Definitions and Expres- sions Classified — Franchises. 4. "Franchise" as a Contract — As an Exclusive Right. 5. " Corporate Franchise " — Corpo- rate Franchises. § 6. General Franchise of Corpora- tion. 7. Special Franchise of Corpora- tion. 8. Primary Franchise, and Secon- dary Franchises of Corpora- tion. 9. "Franchise" Under Constitu- tions and Statutes. CHAPTER II. ENUMERATION OF FRANCHISES. 21 10. Enumeration of Franchises — § 17 Generally. 11. Corporations — Generally — Members' Rights — Member- ship — Corporate Name — Municipal Corporations — "Public Franchise." 12. Corporations Continue d — What Franchises Are Em- braced — Generally. 13. Corporations Continued — For- eign Corporations — Gener- ally. 14. Common Carriers — Railroads — Street Railroads. 15. Bridges — Roadways — Fer- ries — Canals. 16. Right to Supply Water, Gas or Electricity. Right to Tolls, Fares, Rates or Wharfage. IS. Banking — Insurance. 19. Eminent Domain. 20. Exemption or Immunity from Taxation, Jury Duty and Working on Public Roads. Political Rights, " Elective Suffrage," "Elective Fran- chise" or Freedom — Public Office — Attorney or Coun- sellor — Right to Preside — Appointment of Professors — Liquor License — " Com- modities " — Fishery — Public Market — Patent Right — Trade-mark — " News Con- tract." Vll Vlll TABLE OF CONTENTS CHAPTER III. NATURE OF FRANCHISE. § 22. Franchise as Monopoly or Ex- clusive in Its Nature. 23. Same Subject Continued. 24. Same Subject Continued. 25. Franchise as Property. 26. Same Subject Continued. 27. Same Subject Continued. § 28. Franchise of Members, Share- holders or Corporators m Property. 29. Corporate Franchises Are Legal Estates not Mere Naked Powers. CHAPTER IV. NATURE OF FRANCHISE CONTINUED — DISTINCTIONS. 30. Franchises Essential and not Essential to Corporate Ex- istence — " Essentially Cor- porate Franchises." 31. "Corporate Powers or Privi- leges " not Franchises Essen- tial to Corporate Existence. Franchises and Powers — To What Extent Distinguished. Franchise to Be, Separate and Distinct from Property or Franchise Which Corpora- tion May Acquire. Same Subject Continued. Same Subject — "Personal Franchise " Distinguished from Property Franchise. Franchise Differs from Grant of Land — Easement — Free- hold. General Creative Franchise and Special Franchise Dis- tinguished. Franchise Belonging to Cor- porators and Those Belong- ing to Corporation Distin- guished. 39. Franchise to Be and to Carry on Business Distinguished — " Corporate Franchise or Business." 32 33 34. 35. 36. 37. 38. 40. Franchise Distinguished from Means Employed in Exer- cising it. 41. Charter and Franchise — To What Extent Distinguished. 42. Charter and Franchise Con- tinued — How Extent of Powers Is Ascertained. 43. Charter and Franchise Con- tinued — Where Franchise Does not Take Effect Before Actual Formation of Corpo- ration. 44. Charter and Franchise Con- tinued — Charter Rights and Privileges Derived Through Organization — " Additional Franchise or Privilege" Ac- quired After Incorporation. 45. Charter and Franchise Con- tinued — Distinction Exists. 46. Charter and Franchise Con- tinued — "Charter" as Syn- onymous with "Franchise." 47. Whether Certain Grants Con- stitute a License, Privilege, Permission, Gratuity or Con- tract; and not a Franchise — Distinction. 48. Same Subject Continued. TABLE OF CONTENTS IX CHAPTER V. DEFINITIONS, CLASSIFICATION, NATURE OF CORPORATIONS AND DISTINCTIONS. 49. Change in Nature and Rela- tions of Corporations — Ef- fect upon Early Definitions. 50. Definitions of a Corporation. 51. Summary of Expressions Used in Defining a Corporation. 52. To What Extent Definition of Corporation Includes a Com- pany, Association and Joint- Stock Association or Com- pany — Partnership. 53. Same Subject Continued. 54. Same Subject — Conclusion. 55. General Cla.ssification of Cor- porations — Public and Pri- vate. 56. General Classification of Cor- porations Continued — Quasi- Public Corporations — Quasi- Municipal Corporations. 57. Other Divisions or Kinds of Corporations. 58. Classification as Affected by Constitutions and Statutes. 59. Classification as Affected by Public Service Commissions Law or Public Utihties Act. 61. 62. 6.3. § 60. Corporation Considered as Civil or Political Institution — Distinctions Between Incor- poration and Corporation — Distinction Between Public and Private Corporations. Public, Quasi-Public and Pri- vate Corporations Defined and Distinguished. Same Subject Continued. Duties, Obligations and Pow- ers as Affecting Classification or Nature of Corporations — Public Service Corporations. 64. To What Extent Corporations Are " Persons " — Generally. 65. To What Extent Corporations Are "Persons" Under Stat- utes. 66. Corporations as " Persons " Un- der Constitution of United States. Corporations as "Citizens" for Federal Jurisdictional Pur- poses — Not " Citizens " Un- der Constitution of United States. 67. CHAPTER VI. NATURE OF VARIOUS CORPORATIONS. 68. Agricultural Societies — State Board of Agriculture — Agri- cultural College. 69. Banks. 70. Bridge Companies. 71. Building and Loan Associa- tions. 72. Canal Companies. 73. Colleges — State University. § 74. Common Carriers. 75. Drainage Companies — Drain- age — Constitutional Law — Police Power. 76. Electric Light, Heat and Power C'ompanics. 77. Electric Light, Heat and Power Companies — When a "Man- ufacturing " Company. TABLE OF CONTENTS 78. Electric Light, Heat and Power Companies — When not a " Manufactiu-ing " Company. 79. Express Companies. 80. Ferries — Ferry Company. 81. Fire Engine Company. 82. Gas Companies — Public Serv- ice Corporation. 83. Gas — Natural Gas Companies. 84. Gas Company — Natural Gas Company — When " Manu- facturing" Company. 85. Heating Corporation. 86. Hospital Corporation. 87. Insurance Companies. 88. Irrigation Companies — Irriga- tion Districts. 89. Levee District s — Levee Boards. 90. Log Driving or Boom Corpora- tions. 91. Manufacturing Corporations. 92. Market Company. 93. Medical College. 94. Park Association. 95. Plank Roads. CHAPTER VII. NATURE OF VARIOUS CORPORATIONS CONTINUED. 96. Race Track Association. 97. Railroad Companies — Nature of as Affected by Their Re- lation and Duty to the Pub- lic. 98. Railroad Companies as Public Corporations or " Public Companies " — Statute. 99. Railroad Companies as Pri- vate Corporations. 100. Railroad Companies as Quasi- Public Corporations. 101. Railroad Companies as Form- ing Distinct Class by Them- selves — Distinct from Pub- lic, Private or Other Quasi- Public Corporations. 102. Railroad— Public Use. 103. Railroad — Machine for Un- loading Coal — Branch Rail- road Track — Public Use. 104. Raihoads as Public Utilities — Public Service Commis- sions Law — Public Utilities Act. 105. Railroad Companies as Com- mon Carriers. 106. Railroad Carrier's Business as Part of Trade or Commerce — Interstate Commerce. 107. Railroads as Highways. 108. Reclamation Districts. 109. Sleeping Car Companies — Palace Cars. 110. Stockyards Company. 111. Street Railways — Street Rail- way Companies. 112. Street Railroad — Street Rail- road Corporation — Public Service Commissions Law. 113. Storage and Elevator Com- panies. 114. Telegraph and Telephone Companies. 115. Trustees — Company Incor- porated as — Trustees of Poor. 116. Turnpike Companies — Toll Roads. 117. Turnpike Road as Highway. 118. Waterworks. 119. Wharf — " Public Wharf" — Wharfingers. TABLE OF CONTENTS XI CHAPTER VIII. SOURCE OF FRANCHISE — FEDERAL, CONSTITUTIONAL AND LEGIS- LATIVE POWERS. § 120. National and State Powers — Generally. 121. Distinction Between Limita- tions on Powers of Federal and of State Governments. 122. Grant of Franchises — Gov- ernmental or Legislative Power — G enerally . 123. Power of Congress to Estab- lish Corporations — Gener- ally. 124. Power of Congress to Grant Additional Franchises. 125. Power of Congress Over Fran- chises of State Corporation — Interstate Commerce — Generally. 126. Grants by Congress — Banks. 127. Power of Congress — Bridge Corporation — B ridge s — Commerce. § 128 Power of Congress to Declare Bridge a Lawful Structure After Its Being Adjudged a Nuisance; or After Injunc- tion Suit — Post Route. 129. Power of Congress to Grant Franchise to Railroads — Interstate Commerce — The Pacific Railroad Compan- ies. 130. Power of Congress Over Terri- tories — Telegraph and Tele- phone — Savings Institu- tion — Territorial Powers Generally — Irrigation Com- panies. 131. Extent of Authority Granted by Post Roads Act— Tele- graph Companies. CHAPTER IX. SOURCE OF FRANCHISE CONTINUED — STATE, CONSTITUTIONAL AND LEGISLATIVE POWERS. 132. Legislative Power — Source of Franchise or Charter — Leg- islative Grant Necessary. 133. Same Subject — Prescription. 134. Test of Legislative Power to Grant Franchises. 135. Distribution or Division of Powers of State. 136. What Matters Exclusively Within Legislative Discre- tion — Power of Courts. 137. Limitations on Powers of State Legislature. 138. Abdication or Surrender of Essential or Distinctive Legislative Powers — Bind- ing Future Legislatures — Waiver — Police Powers — Judicial Powers. 139. Legislative Powers of Terri- tory — Corporations Created by Territory Follow It Into Union. 140. Legislative Power to Grant Implies Power to Refuse Franchise — Refusal by Sub- ordinate Body. 141. Consent of Subordinate Body xu TABLE OF CONTENTS Unnecessary to Exercise of Power by Legislature. 142. Corporations Created by Rebel State. 143. Legislative Power — Grant of Additional Franchises — Amendments. 144. Legislative Grant Necessary — Roads, Highways, Bridges and Ferries, Eminent Do- main — Generally. 145. Bridge Corporation — Bridges — Commerce — Navigable Waters Wholly Within State — Power of State as to Toll Bridges — Railroad Toll Bridge. 146. Pier Erected Without Au- thority in Navigable Water — Unlawful Structure — Owner's Liability. CHAPTER X. DELEGATION OF POWER — GENERALLY. § 147. Delegation of Power — Dis- tinction Between Power to Make Laws and Discretion as to Their Execution or Administration — Power to Regulate. 148. Grant of Franchise May Be Made Through Lawful Del- egated Agency. § 149. Delegation of Power — Police Regulations — Generally. 150. Delegation of Power of Taxa- tion. CHAPTER XI. DELEGATION OF POWER BY CONGRESS. 151. Delegation to the President. 152. Delegation to Secretary of War — Bridges. 153. Delegation of Power to Inter- state Commerce Commis- sion. § 154 Delegation to American Rail- way Association. 155. Delegation of Power to Deter- mine Compensation Under Right of Eminent Domain Exercised by United States. CHAPTER XII. DELEGATION OF POWER BY STATE — ENUMERATION OF SUBORDI- NATE BODIES. § 156. Delegation to Board of Agri- § 158. Delegation to Commissioners culture. 157. Delegation to Commissioner of Banking and Insurance — Secretary of State. of Bridges. 159. Delegation to Drainage Com- missioners — Removal of Bridge by Railway Com- pany. TABLE OF CONTENTS xm 160. Delegation to Commission of Gas and Electricity. 161. Delegation to Grain and Warehouse Commission. 162. Delegation to Inspectors of Coal Mines. 163. Delegation to Bureau of In- surance or to Superintend- ent or Commissioner of In- surance — Standard Policy. 164. Delegation to Levee District. 165. Delegation to Board of Loan Commissioners — Territory. 166. Delegation to Public Service Commission of New York. 167. Delegation to Railroad Com- missioners. 168. Delegation to Railroad Com- mission — Public Utility Law of Wisconsin. 169. Delegation to Railroad and Warehouse Commission — Railroad — Carriers — In- crease of Capital. 170. Delegation to State Corpora- tion Commission. CHAPTER XIII. DELEGATION OF POWER TO AND BY COURTS. 171. Delegation to Courts — Gener- aUy. 172. Delegation to Coiu-ts of Eq- § uity — Railroad Bridges Crossing Highways. 173. Delegation to Supreme Judi- cial Court — Water Rates. 174. Delegation to Appellate Court — Reasonableness of Rates Fixed by Commission. 175. Delegation to Fiscal Court— Subdelegation to County Judge — Subscription to Stock of Railroad Com- pany. 176. Delegation to Circuit Courts — Designation of Telephone Route — Charter to Ob- struct Highway. 177. Delegation to Federal Circuit Courts — Power to Enforce Orders of Interstate Com- merce Commission — Juris- diction — Contract Rights of Railroad. 178. Delegation to County Com- missioners' Court — County Courts — Ferry Franchise — Grant of Use of Streets by Railroad or Gas Company. 179. Delegation to Probate Court —Use of Streets by Tele- phone Company. 180. Delegation to Court of Visita- tion. 181. Delegation of Power — Au- thority of Dental Board Over Colleges. 182. Delegation to Board of Equal- ization — Review of Action of — Federal Courts. 183. Delegation to Commissioners by Courts — Construction of Street Railroads — Appoint- ment by Circuit Judge of Commissioners of Equaliza- tion. 184. Delegation of Powers — Power of Courts in Relation to — Power of Over Municipali- ties, Common Council, Com- missioners of Waterworks, Railroad Commissioners, and Over Other Courts, etc. — Police Power. XIV TABLE OF CONTENTS CHAPTER XIV. DELEGATION OF POWER — MUNICIPAL, QUASI-MUNICIPAL AND SUBORDINATE AGENCIES. § 185. Delegation to Municipalities — Generally. 186. Delegation to Municipality — Ferries — Bridges — Rates for Gas, Water, Street Railroads, etc. 187. To What Extent Franchise Granted by State Is Sub- ject to Municipal Consent for Exercise — Power to " Prevent " Distinguished from Power to "Regu- late" — Consent to Use of Streets, etc. 188. Delegation to Municipal or City Council — Street Rail- ways — Extent of Power of City Council. 189. Right to Amend Municipal Charter, as to Grant of Franchise, not a Delega- tion of Legislative Power to People. 190. Delegation to Board of Rapid Transit Railroad Commis- sioners — Subways — City Ownership and Obligations — Change of Construction Plans. 191. Power of Electrical Commis- sion — Electrical Conduits — Board of Commissioners of Electrical Subways — Board of Electrical Control. 192. Delegation of Power — Grant of Franchises — Board of Estimate and Apportion- ment of New York — Trans- fer of Power from Another Board — Cumulative Vot- ing. § 193. Dock Department no Power to Grant Franchises — Street Railway. 194. Delegation to County Com- missioners — Ferries — Bridges — Use of Streets — Permits — Gas and Elec- tricity — Street Railroads — Repaving — Removal of Poles, etc. 195. Delegation to Towns, Vil- lages and Counties — Water Rates — Ferries — Heat, Light and Power Franchise and Contract, When Void — Waterworks — Hydrant Rentals. 196. Delegation to Town Council — Use of Streets. 197. Delegation to Selectmen, or to Board of Aldermen of City — Use of Streets — Location and Control of Electrical Appliances, etc. — Condi- tions as to Street Railway Fares. 198. Delegation to Trustees of Town — Drawbridge — Board of Gas Trustees — Gas Rates — Lighting Plant Ordinance Invalid. 199. Delegation to Board of Super- visors — Grant of Turnpike Franchise — Right to Col- lect Tolls. 200. Delegation to Highway or Toll Road Commissioners — Public Lighting Franchise — Bridges — When Order to Cease Taking Tolls Invalid — Delegation to City Offi- TABLE OF CONTENTS XV cials, Subway Construe- § 202. Delegation of Power by Mu- tion. nicipality. § 201. Delegation to Police Jiu-ies — 203. Delegation by Ordinance to Ferries, Bridges and Roads. Street Commissioner. CHAPTER XV. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF CONSTITUTIONS. 204. Interpretation or Construc- tion — Generally. 205. Construction — Intent — Ef- fect Given to Every Part — Ordinary Signification of Words — Gramjnatical Con- struction. 206. Context — Ordinary and Tech- nical Meaning of Words — Phrase or Word in Differ- ent Parts of Instrument. 207. Plain Language of Constitu- tion Cannot Be Ignored — Repugnant Provisions. Meaning of Constitution as Understood by Its Framers — Construction. Strict Construction. Implied Matters a Part of Constitution. Punctuation. Interpretation in View of Common Law. Constitutional Prohibitions — Proviso — Exception from General Words. Partially Invalid Provisions. Construction — Prospective — Retrospective. 216. Contemporaneous Construc- tion — Extrinsic Matters — 208. 209. 210. 211. 212. 213. 214 215 History — Debates and Pro- ceedings in Convention. 217. Contemporaneous Construc- tion Continued — Legisla- tive Construction. 218. Construction or Interpreta- tion Long Continued and Acquiesced in by Legisla- tive and Executive Depart- ments. 219. Long and Continued Usage. 220. Amendments to Constitution. 221. Title of Legislative Enact- ment Proposing Constitu- tional Amendment. 222. Revised Constitution — Re- enactment. 223. Constitution Adopted from Another State — Construc- tion. 224. Former Constitution Re- pealed by Implication. 225. Whether Constitutional Pro- visions Self-Executing. 226. When Constitutional Provi- sion Is Self-Executing — In- stances. 227. When Constitutional Provi- sion Is not Self-Executing — Instances. CHAPTER XVI. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF STATUTES. § 228. Constitutional Law — Inter- § 229. Judicial Authority and Duty pretation or Construction to Determine Constitu- of Statutes — Generally. tional Questions. XVI TABLE OF CONTENTS § 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240, 241. 242. 243. 244. 245. Validity of Statutes — Gener- ally. Presumption That Legislative Enactment Constitutional — Repugnancy Must Clearly Appear. Same Subject — Exception to or Qualification of Rule. Conflicting Provisions — Vali- dating Interpretation or Construction — Two Con- structions. Partial Invalidity. Same Subject — Instances. Intent — Effect to Be Given to Every Part. Plain and Manifest Intention. Natural and Reasonable Ef- fect and Construction — Or- dinary or Popular Meaning — Absurdity or Injustice. Literal Meaning — Intention and Letter of Statute. General and Specific Words or Clauses — General Legisla- tion. Construction of Special Words and Clauses in Grants of Franchises or Privileges to Street Railway, Railroad and Electric Light, etc.. Companies. Construction as to Conflict- ing Railroad Grants — Un- divided Moiety. Matters Incorporated by Ref- erence. Title of Statute. Same Subject Continued — Constitutional Require- ments. § 246. Title of Acts Which Amend, Revive or Repeal. 247. Title to Statutes — Instances — Incorporation — Expro- priation — Railroads — Street Railroads — Bonds in Aid of Railroads — Lien on and Sale of Railroad — Electrical Conductors — Fraudulent Elections in Corporations — Foreign Cor- porations. 248. Punctuation. 249. Order of Arrangement — Transposition — Alteration — Omissions — Rej ections . 250. Construction of Proviso or Exception. 251. Liberal Construction — Mean- ing Extended — Implica- tion. 252. Strict Construction. 253. Common Law — Statutes in Derogation of. 254. Public Grants of Franchises, Privileges, etc. — Construc- tion Against Grantee. 255. Same Subject Continued — Instances — Railroads — Street Railroads — Subma- rine Railway — Gas, Tele- phone, Canal, Water and Turnpike Companies — Ferry — Eminent Domain. 256. Same Subject — Instances Continued — Public Land Grants — Railroad Aid. CHAPTER XVII. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF STATUTES CONTINUED. § 257. Grant of Exclusive Fran- § 258. chises, Rights or Privileges — Strict Construction. 259. Separate Grants of Franchises — Rule of Construction. Settled Judicial Construction. TABLE OF CONTENTS XVU Construction by § 275. 260. Practical Parties. 261. Effect of Interpretation — Beneficial Reasons — Natu- ral Justice and Equity — 276. Inconvenience — Injury or Hardship. 262. Contemporaneous Construe- 277. tion — Extraneous Matters — History — Debates, etc. 263. Policy of Government, of 278. Legislative Body or of Law — Public Policy — General Principles of Law. Remedial Statutes. Statutes in Pari Materia. 279. 266. Statutes in Pari Materia Con- tinued. Statutes in Pari Materia Con- tinued — Exception to or 280. Qualification of Rule. Words or Provisions of Prior Statute Adopted in Later Act. 269. Derivative Statutes — Con- 281. struction of Statutes Adopted from Foreign State or Country. 282. 270. Re-enactment — Consolida- tion — Revised Statutes — 283. Codes. 284. 271. Construction by State of Its Statutes— How Far Re- 285. spected in Courts of Other States. 272. Construction of State Con- 286. stitutions and Statutes by State Courts — How Far Re- spected by Federal Courts. 287. 273. Same Subject Continued. 274. Same Subject Continued— 288. Exceptions to or Qualifica- tions of Rule. 264. 265. 267. 268. Same Subject Continued — Instances — Incorporation Acts — Eminent Domain — Corporate Powers. Same Subject — Instances — Common Carriers — Rail- roads. Same Subject — Instances Continued— Re v enue — Tax- ation. Same Subject — Instances Continued — Exemptions from Taxation — Impair- ment of Obligation of Con- tract as to Taxation. Same Subject — Instances Continued — Impairment of Obligation of Contract — Fourteenth Amendment. Same Subject — Instances Continued — Statutes Penal in Nature — Trustees of Cor- porations — Anti-trust Laws. Same Subject — Instances Continued — Foreign Cor- porations. Repeal or Amendment of Statutes. Same Subject Continued. Same Subject Continued — Instances. Same Subject — Instances Continued — Taxation and Assessment. Construction of Statutes, Charters and Ordinances — Miscellaneous Cases. Prospective and Retrospec- tive Operation. Validating Statutes — Waiver or Correction of Defects or Irregularity. XVlll TABLE OF CONTENTS CHAPTER XVIII. CONSTITUTIONAL LAW — FEDERAL CONSTITUTION. 289. 290. 291. 292. Constitution — Grant and Limitation on Powers of Governments — Ex press and Implied Powers — Con- struction. Same Subject Continued. Privileges and Immunities of Citizens in the Several States. Same Subject Continued — Discrimination — Tax Law — Deduction of Debts — Creditors in Different States. § 293. Same Subject — Actions — Statutes of Limitations. 294. The Fourteenth Amendment — Generally. Same Subject — Police Power. Privileges and Immunities of Citizens of the United States. Due Process of Law. Same Subject Continued. Same Subject Continued. Equal Protection of the Laws. 295 296 297 298 299 300 CHAPTER XIX. OBLIGATION OF CONTRACTS. § 301. Impairment of Obligation of Contract — Generally. 302. States — Civil Institutions of — Constitutional Restraints —Obligation of Contracts. 303. Obligation of Contract — Ex- istence of Legal Contract — Impairment — State Stat- utes. 304. Obligation of Contracts — Fed- eral Question — Status of Party Plaintiff. 305. Impairment of Obligation of Contracts — What Are " Laws " — Application. 306. Same Subject — Judicial Acts — Vested Rights. 307. Vested Rights — Amendment to Effect Purposes of Char- ter — Modifying or Enlarg- ing Powers. 308. Charter Powers not Contem- plated and Unexecuted — Treated as License and Revocable. 309. Obligation of Contracts — Change of Remedy. 310. Obhgation of Contracts — Mu- nicipal Corporations. 311. Charter or Franchise as a Con- tract — Impairment of Obli- gation of Contract. 312. Same Subject — The Dart- mouth College Case. 313. Obligation of Contract — Stat- utes — Ordinances — Dele- gated Authority — Ease- ments in Streets. 314. Same Subject. 315. What Is not a Contract — Ob- ligation of Contract — When Not Impaired — Instances. TABLE OF CONTENTS XIX 316. Same Subject — Instances § 319. Continued — Railroad Char- ter — Subscriptions in Aid of Railroad. 320. 317. Reservation of Power to Al- ter, Amend or Repeal Grant of Franchise or Charter. 318. Reservation of Power to Alter, etc.. Is Part of Char- ter or Contract. Reservation of Power to Alter, etc., and Limitations Thereon. Reservation of Power to Alter, etc. — Fourteenth Amendment — Equal Pro- tection of the Law — Dep- rivation of Property — Railroad Employees. CHAPTER XX. OBLIGATION OF CONTRACTS CONTINUED. § 321. Reserved Powers of Congress — Amendment of Charter of Subsidized Railroad — Railroad and Telegraph Company — Cemetery Com- pany. 322. Obligation of Contract — Vested Rights — Conditions as Affecting — Reserved Power of Congress — Rail- road Grants. 323. Implied Reservation in Favor of Sovereign Power. 324. Obligation of Contract — Gen- eral and Special Laws — Reservation of Power to Alter or Repeal — Quo War- ranto. 325. Reservation of Right to Re- peal — Exemption from Legislative Repeal — Im- pairment of Obligation of Contracts. 326. Exemption from Execution — Corporation Grantee of Municipal Waterworks — Obligation of Contract. 327. Exemption — Eminent Do- main — Future Legislation — Obligation of Contract. 328. Reservation of Power to Amend Charters — Supple- mentary Charter. 329. Obhgation of Contract — Mort- gaged Franchise or Prop- erty — Purchaser — Reor- ganization of Corporation. 330. Obligation of Contract — Fran- chises Expiring at Differ- ent Times — Extension of Franchise — Reservation of Power to Amend or Repeal. 331. Obligation of Contract not Impaired — Consolidation of Corporations — Reserva- tion of Power to Alter or Repeal. 332. Eminent Domain — Obligation of Contracts. 333. Same Subject — Instances. 334. Constitution Subsequently Adopted — Obligation of Contract. 335. Obligation of Contracts — Po- lice Powers — Regulations. 336. Obligation of Contracts — Conditions — Regulations — Reserved Power to Alter, etc. 337. Obligation of Contracts — Street Paving by Street Railways — Conditions and Regulations. 338. Same Subject — Exemption from Assessment for Street Paving — Consolidation XX TABLE OF CONTENTS 339. Impairment of Obligation of § 340. Impairment of Obligation of Contracts — Illustrative De- Contracts — Illustrative De- cisions — Insurance — Banks cisions Continued — Tunnel — Rate of Interest — Pull- — Ferries — Bridges — Canal, man Cars. CHAPTER XXI. CONDITIONS IMPOSED — GRANT OF FRANCHISE. § 341. Conditions Imposed by Con- gress. 342. Conditions Imposed by Legis- lature. 343. Municipal Powers — Generally. 344. Municipal Control Over Streets — Franchise Rights of Cor- porations. 345. Same Subject. 346. Implied Conditions — R a i 1 - road Company — City Streets — New Streets and Crossings — Police Power. 347. Conditions — Payment of Ex- penses or Percentage — Ar- bitration — Submission to Electors. 348. Conditions — Acceptance. 349. Same Subject. 350. Same Subject — Implied Ac- ceptance — Presumption— Evidence. 351. Foreign Corporation — Situs of — Interstate Comity. 352. Power of State to Impose Conditions Upon Foreign Corporations. 353. Same Subject — Instances — Certificate — Designation of Corporate Agent, etc. — Service of Process. 354. Same Subject — Instances Continued — Interstate Commerce — Insurance, Railroad and Other Corpo- rations. .■>o5. Power of State to Impose Condition Upon Foreign Corporations — Agreement not to Remove Suit to Federal Court — Waiver of Right. 356. Condition as to License, Privi- lege, Business or Occupa- tion Charge, Rental, Fee or Tax — Interstate Commerce — Equal Protection of Law. 357. Condition as to License, etc., Fee or Tax Continued — Constitutional Law — Insur- ance Companies — Deci- sions. 358. Conditions as to License, etc., Fee or Tax Continued- Interstate Commerce — Ex- press Companies — Deci- sions. 359. Condition as to License, etc., Fee or Tax Continued — Constitutional Law — Rail- roads — Consolidated Rail- roads — Street Railroads — Decisions. 360. Condition as to License, etc., Fee or Tax Continued — Telegraph Companies. 361. Condition as to License Fee or Tax Continued — Con- stitutional Law — Gas Fran- chises — Brewing Company — Packing Houses — Deci- sions. 362. Imposing New Conditions — — Police Power. 363. Conditions Subsequent — Con- struction of — Performance. TABLE OP^ CONTENTS XXI CHAPTER XXII. REGULATION AND CONTROL. 364. Regulation and Control — General Statement. 365. Regulation and Control — Generally. 366. Regulation and Control — Po- lice Power — Generally. 367. Foreign and Interstate Com- merce Defined — Power to Regulate. 368. Same Subject. 369. Regulation of Commerce — State Control of Business Within Jurisdiction. 370. Regulation of Commerce — Transportation of Persons or Property — Generally. 371. Regulation of Commerce — Transportation of Railroad Cars — Transportation Over River — Distinction as to Ferries — Police Power. 372. Regulation of Commerce — Transportation of Cattle — Inspection Law — Police Power. 373. Same Subject. 374. Regulation of Commerce — Transportation of Natural Gas. 375. Regulation of Commerce — Stopping Interstate Trains. 376. Regulation of Commerce — Telegraph Messages — Po- lice Power. 377. Regulation of Commerce — Examination and License of Locomotive Engineers — Color Blindness — Due Proc- ess of Law. 378. Regulation of Commerce — Tracing Lo.st Freight. 370. Regulation and Control — Re- quiring Governmental Con- sent. 380. Same Subject. 381. Regulation of Railroads — Delegation to Commission- ers — Constitutional Law — Discrimination — Generally. 382. Regulation of Railroads — Protection Against Injury to Persons and Property. 383. Regulation of Railroads — Providing Stations or Wait- ing Rooms — Police Power. 384. Regulation of Railroads — Sunday Trains — Interstate Commerce — Police Power. 385. Regulation of Railroads — Safety Appliances and De- vices — Heating Cars. 386. Regulation of Railroads — General Decisions — Extra Trains for Connections — Removal of Tracks — Keep- ing Open Ticket Offices — Limitation of Liability — Adjusting Damage Claims — Separate Cars. 387. Regulation of Street Railroad Companies — Police Power. xxn TABLE OF CONTENTS CHAPTER XXIII. REGULATION AND CONTROL CONTINUED — RATES AND CHARGES. 388. Regulation of Gas and Natu- ral Gas Companies— Police Power. 389. Regulation of National Banks. 390. Regulation of Rates — General Rules. 391. Regulation of Public Ware- houses and Their Charges — Munn V. Illinois. 392. Regulation of Gas Rates — Method of Valuation — Pen- alty — Equity — Inj unction. 393. Regulation of Water Rates — Obligation of Contracts — Due Process of Law — Equal Protection of Laws — Reservation of Power to Amend. 394. Regulation of Water Rates Continued — Obligation of Contracts — Defense That Franchise Has Expired. 395. Regulation of Water Rates Continued — Illustrative Decisions. 396. Regulation of Ferry Fares and Tolls. 397. Regulation of Rates or Tolls of Turnpike Companies — Due Process of Law — Power of Courts. 398. Regulation of Fares — Street Railways — Obligation of Contract. 399. Regulation of Fares — Street Railways Continued — Con- stitutional Law — Contract with Company — Altera- tion. 400. Regulation of Rates — Rail- roads. 401. Regulation of Rates — Rail- roads — Powers of Railroad and Like Commissioners. 402. Railroads — Regulation of Rates by Congress — Reser- vation of Right to Alter or Amend. 403. Object of Interstate Com- merce Act — Powers and Jurisdiction of Interstate Commission. 404. Regulation of Rates — Rail- roads — Interstate Com- merce — Taxation of Freight or Passengers. 405. Regulation of Rates — Rail- roads — Non-user of Legisla- tive Power — Lessee. 406. Regulation of Rates — Rail- roads — Reasonableness of Rates — Confiscatory Rates — Due Process of Law — Equal Protection of Laws. 407. Railroad s — Unreasonable Rate Regulation — Judicial Inquiry — Due Process of Law — Equal Protection of the Laws. 408. Railroad — Rates Fixed by Legislative Action Pre- sumed Reasonable — Rail- road Commission — Due Process of Law. 409. Railroads — Test of Reason- ableness of Rates Pre- scribed by States — Practice — Findings. 410. Regulation of Rates — Rail- road in Two or More States — Continuous Line — Con- solidation — Test of Reason- ableness of Rate — Penalties — Defense. 411. Railroad — Arbitrary Regula- TABLE OF CONTENTS XXUl tion of Rates — Mileage Tickets — Discrimination — Due Process of Law — Equal Protection of the Laws. § 412. Right of Carrier to Fix Rates —To What Extent Leg- islative Power Affected Thereby — Exemptions — Right to Create Railroad Commission — Power to Amend, etc., Successor Company — Obligation of Contracts. 413. Right of Carrier to Fix Rates — Basis Upon Which Fixed. 414. Right of Carrier to Fix Rates in Competition — Long and Short Hauls — Discrimina- tion. 415. Right of Carrier to Fix Rates in Competition Continued — Interstate Commerce — Presumption of Good Faith — Discrimination . 416. Railroad Rates — Excessive Penalties — Equal Protec- tion of Law. CHAPTER XXIV. TAXATION OF FRANCHISES. § 417. Taxation— Power of State— § 426. Limitations Thereon — Con- stitutional Law — General Principles. 418. Federal Franchises — Agencies 427. of the Federal Government — State Taxation of. 419. Power of States to Tax Cor- porations — Agencies of 428. Federal Government — In- terstate Commerce. 420. Same Subject — Application 429. of Principles — Illustrative Decisions. 421. Diversity, Uniformity and 430. Equality of Taxation. 422. Uniformity and Equality of Taxation — Constitutional 431. Law — Board of Equaliza- tion — Illegal Discrimina- tion — Jurisdiction in Eq- 432. uity. 423. To What Extent Franchises Taxable— Generally. 433. 424. Same Subject. 425. Franchise Tax— Capital Stock 434. — Meaning of Terms — Na- ture of Tax — Construction 435. of Statute. State Taxation — Franchise Assessment s — Capital Stock — Constitutional Law — Remedy. Franchise Tax — Capital Stock — Gross Receipts — Addi- tional Franchise — Inter- state Commerce. Franchise Tax — Capital Stock — Who Liable — Gen- erally. Franchise Tax — Capital Stock — Who not Liable — Generally. Taxation of Intangible Prop- erty of Interstate Bridge — Constitutional Law. Taxation of Ferry Franchise — Legal Situs of Property — Constitutional Law. Franchise Tax — Telegraph Companies — Constitutional Law. Franchise Tax — Tax on Gross Receipts — Street Railroads. Franchise Tax — Water Com- panies. Franchise Tax — Gross Re- ceipts — Dividends — Gas XXIV TABLE OF CONTENTS and Electric Light and Power Companies. 436. Franchise Tax — Insurance Companies. 437. Franchise Tax — Guaranty or Security Company — Trust Company. 438. Franchise Tax — Savings Banks. 439. Franchise Tax — National Banks. 440. Capital Stock — Tangible and Intangible Property — Franchises — Situs of, for Taxation. 441. Franchise Tax — What Is In- cluded as Capital Stock — Exempt Property. 442. Franchise Tax — What Is not Included as Capital Stock. 443. Exemption s — Tax Upon State Banks in Which Uni- ted States Securities are In- cluded. 444. Special Franchises — Taxa- tion. 445. Franchises — Exemption from Tax on Capital Stock. 446. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation. 447. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation Con- tinued. 448. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation — Continued. 449. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation — Deductions. § 450. Value of Special Franchise. 451. Deduction from Special Franchise Tax. 452. Exemption or Immunity from Taxation — Whether a Franchise or Privilege. 453. Power to Exempt from Tax- ation—State, Municipality and Board of Assessment — Local Taxation. 454. Duration and Extent of Ex- emption from Taxation. 455. Surrender of Power of Taxa- tion — Presumptions — Ex- emption from Taxation — Statutory Construction. 456. Constitutional Law — Validity of Exemption from Taxa- tion. 457. Obligation of Contracts — Ex- emption from Taxation — Preliminary Statement. 458. Obligation of Contract — Res- ervation of Power to Alter, Amend or Repeal — Ex- emption from Taxation. 459. Obligation of Contracts — What Is a Contract — Ex- emption from Taxation. 460. Obligation of Contracts — What Is not a Contract — Exemption from Taxation. 461. Obligation of Contracts — Reservation of Power to Alter, etc. — Exemption from Taxation — Res ad- judicata. CHAPTER XXV. ALIENATION AND FORFEITURE. § 462. Power to Alienate Franchises — Nature of Franchise as Affecting. § 463. Power to Alienate Franchises — General Rule. 464. Same Subject — Basis of Rule. TABLE OF CONTENTS XXV 465. Power to Alienate Franchises — Legislative Authoriza- tion. § 466. Power to Alienate Franchises — Legislative Authoriza- tion Continued. 467. Power to Alienate Franchises — ImpUecl Legislative Au- thorization — Presumptions — Construction of Statutes. 468. Power to Alienate Franchises — Railroad Companies. 469. Power to Alienate Franchises — Banks — Street Railway C o m p a n i e s — ^Telegraph Lines. 470. Power to Alienate Franchises — Water and Irrigation Companies. 471. Power to Mortgage. 472. Power to Make and Take a Lease — Railroad Companies — Natural Gas, Gas and Electric Companies. 473. Illegal or Ultra Vires Lease — Ratification — Estoppel — Equity — Validating Stat- ute. 474. Power to Assign Franchises. 475. Assignment of Franchises of Insolvent Bankrupt Corpo- ration — What Passes. 476. Power to Purchase. 477. Judicial Sales — Decree — Gen- erally. 478. Judicial Sales — What Does and Does not Pass — Pur- chasers' Rights and Obliga- tions. 479. Exemption or Immunity from Taxation or Governmental Regulation — Not Transfer- able Unless Expressly Au- thorized by State. 480. Exemption or Immunity from Taxation, etc., Continued — Judicial Sale — Sale Un- der Mortgage or Statutory Lien. 481. Exemption or Immunity from Taxation, etc., Continued — Whether Passes on Con- solidation of Corporations. 482. Same Subject — When Ex- emption Does and Does not Pass — Illustrative De- cisions. 483. Exemption or Immunity from Taxation, etc. — Rule as to Effect of Reservation of Power to Alter, Amend or Repeal. 484. Same Subject — Illustrative Decisions. 485. Forfeiture of Franchise — Leg- islative Power as to. 486. Forfeiture of Franchise — Ju- dicial Determination of — Quo Warranto — State Offi- cial — Ipso Facto Forfeit- ure. 487. Courts Reluctant to Adjudge Forfeitures and Will Pro- ceed with Caution. 488. Forfeiture of Franchise — Abuse, Misuser or Non- user of Corporate Powers. 489. Nature and Extent of Mis- user or Nonuser Justifying Forfeiture. 490. When Franchise Will Be For- feited^Instances. 491. When Franchise Will not Be Forfeited — Instances. XXVI TABLE OF CONTENTS APPENDIX A. PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK. ARTICLE I. PUBLIC SERVICE COMMISSIONS; GENERAL PROVISIONS. 1. Short Title. 2. Definitions. 3. Public Service Districts. 4. Commissions Established; Ap- pointment; Removal; Terms of Office. 5. Jurisdiction of Commissions. 6. Counsel to the Commissions. 7. Secretary to the Commissions. S. Additional Officers and Em- ployees. 9. Oath of Office; Eligibility of Commissioners and Officers. iO. Offices of Commissions; Meet- ings; Official Seal; Station- ery. 11. Quorum; Powers of a Commis- sioner. 12. Counsel to the Commissions; Duties. 13. Salaries and Expenses. 14. Payment of Salaries and Ex- penses. 15. Certain Acts Prohibited. 16. Annual Report of Commis- sions. 17. Certified Copies of Papers Filed to Be Evidence. 18. Fees to Be Charged and Col- lected by the Commissions. 19. Attendance of Witnesses and Their Fees. 20. Practice Before the Commis- sions; Immunity of Wit- nesses. 21. Court Proceedings; Prefer- ence. 22. Rehearing Before Commis- sion. 23. Service and Effect of Orders. ARTICLE II. PROVISIONS RELATING TO RAILROADS, STREET RAILROADS AND COMMON CARRIERS. § 25. Application of Article. § 29. Changes in Schedule; Notice 26. Adequate Service; Just and Required. Reasonable Charges. 30. Concurrence in Joint Tariffs; 27. Switch and Side-track Con- Contracts, Agreements or nections; Powers of Commis- Arrangements Between any sions. Carriers. 28. Tariff Schedules; Publication, 31. Unjust Discrimination. TABLE OF CONTENTS XXVll 32. Unreasonable Preference. § 36. 33. Transportation Prohibited Un- 37. til Publication of Schedules; 38. Rates as Fixed to Be Charged; Passes Prohibited. 39. 34. False Billing, etc., by Carrier 40. qr Shipper. 35. Discrimination Prohibited; Connecting Lines. Long and Short Haul. Distribution of Cars. Liability for Damage to Prop- erty in Transit. Continuous Carriage. Liability for Loss or Damage by Violation of This Act. ARTICLE III. PROVISIONS RELATING TO THE POWERS OF THE COMMISSIONS IN REliPECT TO COMMON CARRIERS, RAILROADS AND STREET RAILROADS. § 45. 46. 47. 48. 49. 50. 51. General Powers and Duties of Commissions in Respect to Common Carriers, Railroads and Street Railroads. Reports of Common Carriers, Railroad Corporations and Street Railroad Corpora- tions. Investigation of Accidents. Investigations by Commission. Rates and Service to Be Fixed by the Commissions. Power of Commissions to Order Repairs or Changes. Power of Commissions to Order Changes in Time Schedules; Running of Additional Cars and Trains. 52. Uniform System of Accounts; Access to Accounts, etc.; Forfeitures. Franchises and Privileges. Transfer of Franchises or Stocks. Approval of Issues of Stock, Bonds and Other Forms of Indebtedness. Forfeiture; Penalties. Summary Proceedings. Penalties for Other Than Com- mon Carriers. Action to Recover Penalties or Forfeitures. Duties of Commissions as to Interstate Traffic. 56. 57. 58. 59. 60. ARTICLE IV. PROVISIONS RELATING TO GAS AND ELECTRICAL CORPORATIONS; REGULATION OF PRICE OF GAS AND ELECTRICITY. § 65. Application of Articles. § 67. Inspection of Gas and Electric 66. General Powers of Commis- Meters. sions in Respect to Gas and 68, Approval of Incorporation and Electricity. Franchises; Certificate. XXVlll TABLE OF CONTENTS 69 Approval of Issue of Stock, Bonds and Other Forms of Indebtedness. 70. Approval of Transfer of Fran- chises. 71. Complaints as to Quality and Price of Gas and Electricity; Investigation by Commis- sion; Forms of Complaints. 72. Notice and Hearing; Order Fixing Price of Gas or Elec- tricity, or Requiring Im- provements. § 73. Forfeiture for Noncompliance With Order. 74. Summary Proceedings. 75. Defense in Case of Excessive Charge for Gas or Electricity. 76. Jurisdiction. 77. Powers of Local OfiScers. ARTICLE V. COMMISSIONS AND OFFICES ABOLISHED; SAVING CLAUSE> REPEAL. § 80. Board of Railroad Commis- sioners Abolished; Effect Thereof. 81. Commission of Gas and Elec- tricity Abolished; Effect Thereof. 82. Inspector of Gas Meters Abol- ished; Effect Thereof. 83. Board of Rapid Transit Rail- road Commissioners Abol- ished; Effect Thereof. § 84. Transfer of Records. 85. Pending Actions and Proceed- ings. 86. Construction. 87. Repeal. 88. Appropriation. 89. Time of Taking Effect. APPENDIX B. PUBLIC UTILITY LAW OF WISCONSIN. Giving the Wisconsin Railroad Commission Jurisdiction Over Public Utilities. 1797m— 1 Public Utility Law: definitions; "public utility," "municipal coimcil, " " munici- pality, " " service, ' ' "indeterminate per- mit," " commission." 1797m — 2 Railroad commission's powers. 1797m — 3 Utility charges to be reasonable and just. 1797m — 1 Facilities to be granted to other utilities; complaint and ap- peal. § 1797m — 5 Utility property; valu- ation. 1797m — 6 Valuation; commis- sion's hearing and report. 1797m — 7 Revaluation. 1797m — 8 Uniform accounting by utilities; other busi- ness separate. TABLE OF CONTENTS XXIX § 1797m— 9 Forms of bookkeeping; § 1797m— 30 prescription. 1797m — 31 1797m— 10 Blanks. 1797m — 11 No other books, etc., to 1797m — 32 be kept than those prescribed or ap- 1797m — 33 proved by commis- sion. 1797m— 34 1797m — 12 Books: office for; no removal from State. 1797m — 35 1797m — 13 Balance sheets filed annually. 1797m— 36 1797m — 14 Audit and inspection. 1797m— 15 Depreciation rates and 1797m— 37 accounts; commis- sion's rules; depreci- 1797m — 38 ation fund and use thereof. 1797m— 39 1797m — 16 New constructions; ac- counting. 1797m — 40 1797m — 17 Profit-sharing and slid- ing scales; when and 1797m — 41 while conamission ap- proves. 1797m — 42 1797m— 18 Report by utiHties; items. 1797m — 43 1797m — 19 Commission's reports, annual and other; 1797m — 44 values shown. 1797m — 45 1797m — 20 Commission's records public. 1797m — 46 1797m — 21 Temporary secrecy. 1797m— 22 Units of products or 1797m — 47 service. 1797m— 23 Standard measure- 1797m — 48 ments; accurate ap- pliances. 1797m — 24 Tests of measuring in- 1797m — 49 struments; fees. 1797m — 25 Public equipment for 1797m — 50 tests. 1797m — 26 Entry upon premises. 1797m — 51 1797m — 27 Publicity of rate sched- ules. 1797m— 52 1797m — 28 Publicity of rules and regulations. 1797m — 53 1797m — 29 Files accessible to pub- lic. Pubhcity of joint rates. Changes of rates; ten days' notice. Pubhcity of revised schedules. Unlawful to depart from schedules. Schedules' forms pre- scribed. Classification of utility service. Commission's rules of procedure. Business management; inquiries. Books subject to in- spection. Judicial process to ob- tain papers. Commission's em- ployees. Agents of commis- sions; powers. Response of utilities to commission's calls. Complaint by consum- ers. Hearing on complaint. Ten days' notice of hearing. Commission to fix rates and regulations. Costs of investiga- tion. Separate rate hearing; absence of direct damage. Summary investiga- tions. Followed by general hearings. Hearings; notices and procedure. Utilities may com- plain. Evidences and wit- nesses; proceedings for contempt. XXX TABLE OF CONTENTS § 1797m — 54 Witness fees and mile- § 1797m- age. . 1797m- 1797m — 55 Depositions. 1797m — 56 Stenographic records. 1797m — 57 In court actions, com- mission to file tes- timony. 1797m — 58 Certified transcripts of 1797m — ' testimony as evi- dence. 1797m — 59 Free transcripts for parties. 1797m — ' 1797m — 60 Commission to deter- mine rates and regu- lations ; utility at fault to pay costs; 1797m — ' orders, service and effect. 1797m — 61 Utilities to conform to 1797m- order made. 1797m — 62 Commission may 1797m- change orders. 1797m — 63 Findings of commis- sion prima facie law- ful and reasonable. 1797m- 1797m — 64 Utility dissatisfied with order of commission; action to set aside; precedence on calen- 1797m- dar. 1797m — 65 Action to set aside or- der of commission, 1797m- ninety days for. 1797m — 66 Injunction procedure; 1797m — 80 order of commission. 1797m — 67 New evidence before court; stay while 1797m — 81 commission recon- siders. 1797m — 68 Upon commission's refinding, rescission, 1797m — I alteration or amend- ment of order; judg- ment on original or- der; conclusion of trial. 1797m — 69 Appeal to supreme court. -70 Burden of proof. -71 Court procedure; ser- vice of process; evidence; powers and compensation of sheriff and other offi- cers. 72 Incriminating e v i - dence ; production of books, accounts and papers. 73 Distribution of orders of commission ; or- ders as prima facie evidence. 74 Competition of utili- ties, municipalities and others. -75 Foreign utilities ex- cluded. ■76 Grants hereafter to be indeterminate ; mu- nicipal acquisi- tion. ■77 Voluntary change to indeterminate plan; contract waiver im- plied. ■78 Grant hereafter; im- plied consent and waiver. 79 Municipal powers un- der utility law. Plants non-existing, municipality 's action to acquire. Under indeterminate permit ; municipal- ity's notice for ac- quisition. 82 Compensation for property taken of public utility to be determined by com- mission and certi- fied; public hearing; notice; filing certifi- cate. TABLE OF CONTENTS XXXI 1797m- 1797m- 1797m- 1797m- -83 Appeal to court from § 1797m — 97 compensation order. -84 If decision for commis- sion, ■85 If decision for utility. 86 Reconsideration of, or rehearing as to com- pensation ; alteration or amendment of previous order. 1797m — 87 Power of mimicipal council to regulate utilities; appeal. 1797m — 88 Franks and privileges to political commit- tees and candidates; penalty. 1797m — 89 Unjust discrimina- tions; definition and penalty. 1797m — 90 Facilities by public utilities, in exchange for compensation prohibited ; excep- tions or quaUfica- tions. 1797m — 91 Undue preference or prejudice by public utility; penalty. 1797m — 92 Rebates, concessions and discriminations unlawful; penalty. 1797m— 93 Utility's liabihty for damages; treble damages. 1797m — 94 Information, papers and accounting; of- ficers, agents or em- ployee's of utilities; delinquency penal. 1797m — 95 Violations by utilities in general, penalty; utility responsible for agents. 1797m — 96 Municipal officers' de- linquency penal. 1797m- 1797m- 1797m— 1797m— 101 1797m— 1797m- 1797m- 1797m- 1797m— 1797m- 1797m- Interference with com- mission's equipment penal. 98 Every day's violations distinct. 99 Temporary alteration or suspension of rates. 100 Followed by perma- nent rate regula- tion. Lives lost; utility must report; inves- tigation. 102 Law enforcing power of commission; at- torney general's or district attorney's aid in prosecution; suit to recover for- feiture or penalty; suit in name of State, in specified court; power to em- ploy counsel. 103 Commission's work; rules, orders, acts and regulations of; technical omissions not to invalidate. 104 Other rights of ac- tion ; release or waiver; penalties cumulative. 105 Rates of April 1, 1907, to govern, unless; reports thereof; proceed- ings to change. 106 Employee's of com- mission, and their compensation. 107 Appropriation. 108 Conflicting laws re- pealed. XXXU TABLE OF CONTENTS APPENDIX C. WILLCOX V. CONSOLIDATED GAS CO. 212 U. S. 19. [January 4, 1909.] Headnotes. Opinion. Statement of Case. TABLE OF CASES CITED. Abbotsford, The, 98 U. S. 440, § 267. Abbott V. City of Duluth, 104 Fed. 833, §§311, 313. Abbott V. Omaha Smelting Co., 4 Neb. 416, § 2. Aberdeen Bank v. ChehaUs County, 166 U. S. 440, § 439. Acker v. Alexandria & F. R. Co., 84 Va. 648, § 464. Ackerman v. Cincinnati S. & M. R. Co. (Mich.), 12 Det. L. News, 908, §464. Acme Dairy Co. v. City of Astoria (Oreg.), 90 Pac. 153, §§ 205, 209, 225. Adams v. Bank of Oxford, 78 Miss. 532, §421. Adams v. Dendy, 82 Minn. 135, § 215. Adams v. Grand Island & W. C. R. Co., 10 S. Dak. 239, § 269. Adams v. Kuykendale (Miss.), 35 So. 830, § 456. Adams v. New York, 192 U. S. 585, §273. Adams v. Yazoo & Miss. Valley R. Co., 77 Miss. 194, §§ 12, 20, 481. Adams Express Co. v. Kentucky (Weir V. Norman), 166 U. S 171, §§ 9, 420, 421, 423. Adams Express Co. v. Ohio, 165 U. S. 194, §§419,420,426,432. Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, §§ S, 12, 39, 67, 358, 359, 419, 423, 425, 440, 448. Adams Express Co. v. Railroad Co. (U. S. C. C), 8 Am. & Eng. Rd. Gas. 591, § 79. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, §§ 368, 370, 404. Adee v. Nassau Elect. Rd. Co., 76 N. Y. Supp. 589, § 344. Adee v. Nassau Elect. Rd. Co., 72 N. Y. Supp. 992, §§ 14, 48, HI, 148. Adirondack Ry. Co. v. New York, 176 U. S. 335, § 332. Adler- Weinberger S. S. Co. v. Roths- child & Co., 123 Fed. 145, § 87. /Etna Life Ins. Co. v. Coulter, 25 Ky. L. Rep. 193, §§ 436, 437. Africa v. Knoxville, 70 Fed. 729, §488. Agua Pura Co. of Las Vegas v. City of Las Vegas (Cal.), 60 Pac. 208, § 186. Aiken v. Columbus, 167 Ind. 139, §56. Aiken v. Western Rd. Corp., 30 Barb. (N. Y.) 305, § 15. Akin. See Aiken. Alabama & F. R. Co. v. Burkett, 46 Ala. 569, § 311. Albany Mutual Bldg. Assoc, v. City of Laramie, 10 Wyo. 54, § 71. Alberts v. City of Muskegan, 146 Mich. 210, § 56. Albrecht v. Milwaukee & S. R. Co., 94 Wis. 397, § 284. Albright v. Fisher, 164 Mo. 56, § 184. Aldnutt V. Inglis, 12 East, 527, § 391. Aldridge v. Tuscumbia P. & D. R. Co., 2 Stew. & P. (Ala.) 199, § 311. Aldridge v. Williams, 3 How. (44 U. S.) 9, § 262. Alexander v. People, 7 Colo. 155, § 205. Ill XXXlll XXXIV TABLE OF CASES CITED Alexandria, Warsaw & Keokuk Ferry Co. V. Wisch, 73 Mo. 655, § 15. Allbright v. Payne, 43 Ohio St. 8, §248. Allbyer v. State, 10 Ohio St. 588, §215. Allegheny County v. McKeesport Diamond Market, 123 Pa. 164, §§ 62, 92, 132. Allen V. Allegheny County, 196 U. S. 458, § 354. Allen V. Clausen, 114 Wis. 244, § 344. Allen V. Clayton, 63 Iowa, 11, § 216. Allen V. Long, 80 Tex. 261, § 52. Allen V. Louisiana, 103 U. S. 90, §234. Allen V. McKeen, 1 Summer, 276, §61. Allen V. Myers, 1 Alaska, 114, § 130. Allen V. Pullman's Palace Car Co., 191 U. S. 171, § 356. Allen V. Pullman's Palace Car Co., 139 U. S. 658, § 422. Allen V. Reed, 10 Okla. 105, § 130. Allgeyer v. Louisiana, 165 U. S. 578, §§ 299, 354, 366. Allison V. Southern Ry. Co., 129 N. Car. 336, § 67. Almand v. Atlanta Consol. St. Ry. Co., 108 Ga. 417, § 379. Alpena Electric Co. v. City of Alpena, 130 Mich. 413, § 390. Alsop V. Southern Express Co., 104 N. Car. 278, § 79. American Ins. Co. v. Canter, 1 Pet. (26 U. S. 511), § 1.39. American Loan & Trust Co. v. Gen- eral Electric Co., 71 N. H. 192, §76. American Mail Steamship Co. v. Crowell (N. J.), 68 Atl. 752, § 440. American Mutoscope Co. v. State Board of Assessors (N. J. Sup.), 56 Atl. 369, § 441. American Nat. Bank v. Morey, 24 Ky. L. Rep. 658, § 69. American Order Scottish Clans v. Merrill, 151 Mass. 558, § 11. American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, §§ 191, 298. American Steel & Wire Co. v. Speed, 192 U. S. 500, §§ 272, 404. American Steel & Wire Co. v. Wire Drawers & Die Makers Union, 90 Fed. 598, § 52. American Surety Co. v. The Great White Spirit Co., 58 N. J. Eq. 526, §245. American Union Teleg. Co. v. West- ern Union Teleg. Co., 67 Ala. 26, §§ 67, 236, 266. Ames V. People, 26 Colo. 83, § 448. Ames V. Union Pacific R. Co., 64 Fed. 165, § 390. Ames V. Union Pacific R. Co., 62 Fed. 7, § 51. Amet V. Texas & Pacific Ry. Co., 117 La. 454, § 241. Amsterdam, City of, v. Fonda, J. & Y. R. Co., 101 N. Y. Supp. 694, §387. Ancient Order of Hibernians v. Spar- row, 29 Mont. 132, § 269. Andel v. People, 106 111. App. 558, § 236. Anderson v. Baker, 23 Md. 531, § 21. Anderson v. Cincinnati S. R. Co., 86 Ky. 44, § 464. Anderson v. Manchester Fire Assur. Co., 59 Minn. 182, § 163. Anderson V. Tyree, 12 Utah, 129, § 21. Andrews v. National Foundry & Pipe Works, Lim., 61 Fed. 782, §§16, 185, 187. Andrews v. People, 173 III. 123, § 269. Andrews Bros. v. Youngstown Coke Co., 86 Fed. 585, §§ 50, 51, 52. Angle V. Chicago, St. Paul, Minne- apolis & Omaha Ry. Co., 151 U. S. 1, § 136. Anglo-American Provision Co. v. Davis Provision Co., 169 N. Y. 506, § 51. Anglo-American Provision Co. v. Davis Provision Co., 63 N. Y. Supp. 987, § 293. TABLE OF CASES CITED XXXV Appeal of. See name of party. Appeal Tax Court v. Union R. Co., 50 Md. 274, § 423. .\rapahoe County v. Rocky Mountain News Printing Co., 15 Colo. App. 189, §§ 1, 12. Areata v. Areata & M. R. Co., 92 Cal. 639, §§ 486, 491. Archbald v. Carbondale Traction Co., 3 Pa. Dist. R. 751, § 485. Archer v. Board of Levee Inspectors of Chicot County, 128 Fed. 125, §52. Archer v. Ellison, 28 S. Car. 238, §248. Ardry v. Ardry, 16 La. 264, § 239. Arkansas, L. & T. Ry. Co. v. Ken- nedy (.\rk., 1907), 105 S. W. 885, §233. Arkansas Southern Ry. Co. v. Ger- man National Bank, 207 U. S. 270, §273. Armour Packing Co. v. Lacy, 200 U. S. 226, §§ 277, 361. Armour Packing Co. v. United States, 209 U. S. 56, § 415. Arnold v. Covington & Cincinnati Bridge Co., 1 Duv. (62 Ky.) 372, §70. Arnold v. Mundy, 6 N. J. L. 87, §§ 10, 21. Arthur v. Dodge, 101 U. S. 34, § 270. Arthur v. Horner, 96 U. S. 137, § 282. Asbell V. Kansas, 209 U. S. 251, § 373. Ashby V. White, 2 Ld. Raym. 938, §21. Asher v. Texas, 128 U. S. 129, § 360. Ashley v. Ryan, 153 U. S. 436, §§ 3, 359, 426. Askew V. Hale County, 54 Ala. 639, §51. Aspinwall v. County of Davie-ss, 22 How. (63 U. S.) 364, § 316. Assessors. See Board of. Associates of The Jersey Co. v. Davison, 2 N. J. L. 415, § 239. Atchison Street Ry. Co. v. Missouri Pac. Ry. Co., 31 Kan. 661, § 1S5. Atchison, Topeka & S. F. Ry. Co. v. Clark, 60 Kan. 83, § 421. Atchison, Topeka & Santa Fe Ry. Co., V. Denver & N. O. R. Co., 110 U. S. 667, §§ 227, 381. Atkin V. Kansas, 191 U. S. 207, §§ 298, 343. Atkins V. Disintegrating Co., 18 Wall. (85 U. S.) 272, § 236. Atkinson v. Tennill, 14 Ky. L. Rep. 922, § 348. Atlantic & B. Ry. Co. v. City of Cordele, 125 Ga. 373, § 386. Atlantic & Gulf R. Co. v. Georgia, 98 U.S. 359, §§ 5, 12. Atlantic & Pacific R. Co. v. City of St. Louis, 66 Mo. 228, § 215. Atlantic & Pacific R. Co. v. Lesuer (Ariz.), 19 Pac. 157, § 418. Atlantic & Pacific R. Co. v. Mingus, 165 U. S. 413. Atlantic & Pacific Teleg. Co. v. Phila- delphia, 190 U. S. 160, §§ 356, 360, 419. Atlantic, City of, v. Gate City Gas Light Co., 71 Ga. 106, § 349. Atlantic City Waterworks Co. v. Con- sumers' Water Co., 44 N. J. Eq. 427, §§ 231, 282. Atlantic Coast Line Rd. Co. v. Braz- ley (Fla., 1908), 45 So. 761, § 269. Atlantic Coast Line Rd. Co. v. Flor- ida, 203 U. S. 256, §§ 167, 381, 408. Atlantic Coast Line Rd. Co. v. North Carolina Corporation Commission, 206 U. S. 1; see "Appendix C," herein, §§ 63, 167, 364, 381, 386, 399, 407. Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, §§ 373, 375. Atlee V. Packet Co., 21 Wall. (88 U. S.) 389, § 146. Attorney General v. A. Booth & Co., 143 Mich. 89, § 296. .\ttorney General v. Bank of Char- lotto, 57 N. Car. 287, §311. XXXVl TABLE OF CASES CITED Attorney General v. Boston, 123 Mass. 478, §§ 15, 17, 80. Attorney General v. Brunst, 3 Wis. 787, (§ 222, 223. Attorney General v. Chicago North- western Rd. Co., 35 Wis. 425, §§ 8, 31, 313, 317, 350, 400. Attorney General v. Continental Life Ins. Co., 53 How. (N. Y.) 16, §486. Attorney General v. Detroit, 113 Mich. 388, § 453. Attorney General v. Mercantile Ins. Co., 121 Mass. 524, § 53. Attorney General v. Old Colony R. Co., 160 Mass. 63, § 173. Attorney General v. Perkins (Mason V. Perkins), 73 Mich. 303, § 41. Attorney General v. Preston, 56 Mich. 177, §§ 231, 289. Attorney General v. Railway Com- panies, 35 Wis. 599, § 43. Attorney General v. Superior & St. C. R. Co., 93 Wis. 604, § 486. Attorney General v. Trustees of Brit- ish Museum, 2 Chan. Div. 598, §§1, 10. Attorney General of Mass. v. Western Union Teleg. Co., 141 U. S. 40, § 131. Augusta & S. R. Co. v. City Council of Augusta, 100 Ga. 701, § 379. Augusta, Bank of, v. Earle, 13 Pet. (38 U. S.) 519, §§ 64, 67, 132. Aurora & G. R. Co. v. Harvey, 178 111. 477, § 63.. Aurora Electric Light & Power Co. v. McWethy, 104 111. App. 479, § 345. Aurora, The, 7 Cranch (11 U. S.), 382, § 151. Averett v. Brady, 20 Ga. 523, § 26. Avery v. Indiana & O. Oil, Gas & Mining Co., 120 Ind. 600, § 374. Avon-by-the-Sea Land & I. Co. v. Neptune City (N. J.), 32 Atl. 220, §379. Ayer & Lord Tie Co. v. Keown, 122 Ky. 580, § 440. Ayer & Lord Tie Co. v. Keown, 29 Ky. L. Rep. 110, § 440. Ayer & Lord Tie Co. v. Keown, 26 Ky. L. Rep. 585, § 440. Ayers, In re, 123 U. S. 443, § 416. B. Babcock v. Scranton Traction Co., 1 Lack. L. News, 223, § 488. Backus V. Fort St. Union Depot Co., 169 U. S. 557, §§ 272, 273, 275. Bacon v. Texas, 163 U. S. 207, § 313. Bacot, Ex parte, 36 S. Car. 125, § 245. Bailey v. Commonwealth, 11 Bush (Ky.),688, §§238,239. Bailey v. Fayette Gas Fuel Co. (Pa.), 44 Wkly. N. C. 505, § 83. Bailey v. Philadelphia, W. & B. R. Co., 4 Har. (Del.) 389, § 231. Bailey v. Southern Ry. Co., 112 Ky. 424, §§ 8, 34, 466. Baker v. City of Pittsburg, 4 Penn. St. Rep. 51, § 21. Baker v. Grice, 169 U. S. 284, § 416. Baker v. Payne, 22 Oreg. 335, § 249. Baldwin v. State, Hull, 89 Md. 587, §440. Ball V. Rutland R. Co. (C. C), 93 Fed. 513, §§ 329, 406. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, § 300. Balsley v. St. Louis, Alton & Terra Haute Rd. Co., 119 111. 68, §§ 63, 464. Baltimore v. Baltimore Trust & Guar. Co., 166 U.S. 673, §§ 345,387. Baltimore v. Stole, 52 Md. 435, § 127. Baltimore & Fredericktown Turnpike Road V. Baltimore, Catonville & E. M. P. R. Co., 81 Md. 247, §§ 12, 26, 332. Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, § 212. Baltimore & Ohio R. Co. v. Jefferson County (C. C), 29 Fed. 305, § 245. Baltimore & Potomac Rd. Co. v. Fifth Baptist Church, 108 U. S. 317, § 51. TABLE OF CASES CITED xxxvu Baltimore & Potomac Rd. Co. v. Hopkins, 130 U. S. 210, § 229. Baltimore & Susquehanna R. Co. v. Nesbit, 10 How. (51 U. S.) 395, § 333. Baltimore, Chesapeake & Atlantic R. Co. V. Mayor, etc., of Ocean City, 89 Md. 89, §§ 12, 17, 20, 479. Baltimore, Chesapeake & Atlantic Ry. Co. V. Wicomico County Commrs., 103 Md. 277, §§ 20, 479. Baltimore City v. Chesapeake & Po- tomac Teleph. Co., 92 Md. 692, §§ 23, 255. Baltimore City v. Johnson, 96 Md. 737, §§ 2, 25. Baltimore, City of, v. Safe Deposit & Trust Co. of Bait. (Md.), 55 Atl. 316, § 440. Baltimore, City of, v. United States & Elec. Co. (Md., 1908), 68 Atl. 557, § 48. Baltimore Trust & G. Co. v. Balti- more (C. C), 64 Fed. 153, § 379. Bank. See name of. Bank v. Marye, 191 U. S. 272, § 422. Bank v. Pennsylvania, 167 U. S. 461, §421. Bank for Savings v. Collector, 3 Wall. (70 U. S.) 495, § 282. Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, §§ 2, 3, 11, 51, 00, 132, 187. Bank of California v. San Francisco, 142 Cal. 276, §§ 3, 5, 11. 27, 28, 29, 30, 34, 132, 423. Bank of Chenango v. Brown, 26 N. Y. 467, § 289. Bank of Commerce v. New York, 2 Black (67 U. S.), 620, §§ 424, 425. Bank of Commerce v. Tennessee, lf)l U. S. 134, § 459. Bank of Commerce v. Wiltsie, 153 Ind. 460, § 218. Bank of Idaho v. Malheur (,'ounty, '.'>() Oreg. 420, § 15. Bank of Kentucky v. Kentucky, 207 U. S. 258, § 330. Bank of Middlebury v. Edgerton, 30 Vt. 182, 190, §§ 8, 14. Bank of Redemption v. Boston, 125 U. S. 60, §§ 300, 439. Bank of Saginaw v. Peirson, 112 Mich. 410, § 282. Bank of Toledo v. City of Toledo, 1 Ohio St. 622, §§ 4, 311. Bank of United States v. Dandridge, 12 Wlieat. (25 U. S.) 64, 91, §§ 11, 18, 350. Bank of United States v. Deveaux, 5 Cranch (9 U. S.), 61, §§ 51, 67. Bank of United States v. State, 12 Smedes & Marsh (20 Miss.), 456, § 51. Bank Tax Case, 2 Wall. (69 U. S.) 200, § 424. Barber v. International Co. of Mex- ico, 73 Conn. 587, § 51. Barber v. Jacksonville & A. Plank Road Co., 6 Fla. 262, § 22. Barber Asphalt Paving Co. v. French, 158 Mo. 5,34, §§ 184, 188. Barbier v. Connolly, 113 U. S. 27, §§ 149, 295, 399. Bardwell v. State, 16 Wall. (U. S.) 130, § 21. Barhite v. Home Teleph. Co., 63 N. Y. 659, § 188. Barhite v. Home Teleph. Co., 50 N. Y. App. Div. 25, § 140. Barker v. Torrey, 69 Tex. 7, §231. Barnard v. Gall, 43 La. Ann. 959, § 237. Barnes v. Arnold, 45 N. Y. App. Div. 314, § 324. Barnes v. Kornegay, 62 Fed. 071, § 459. Barney v. City of New York, 193 N. Y. 430, §§ 182, 422. Barney v. Winona & St. Peter Rd. Co., 117 U.S. 228, § 241. Barron v. Baltimore, 7 Pet. (32 U. S.) 243, § 289. Barron v. Burnside, 121 U. S. 186, §§ 355, 356. XXXVlll TABLK OF CASES CITED Barrow Steamship Co. v. Kane, 170 U. S. 100, § 355. Bartholomew v. Austin, 85 Fed. 359, § 456. Bartlett v. Wilson, 59 Vt. 23, § 297. Barton v. Barbour, 104 U. S. 126, §97. Bartram v. Hopkins, 71 Conn. 505, §270. Baslian v. Modern Woodmen of America, 166 111. 595, § 283. Bate Refrigerating Co. v. Gillett (C. C), 20 Fed. 192, § 271. Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, §§ 263, 270. Batterson, In re, 72 Conn. 374, § 449. Baxter Springs, City of, v. Baxter Springs liight & Power Co., 64 Kan. 591, §§ 33,47,311. Bayne v. Board of Commrs. of Wright County, 90 Minn. 1, § 194. Beals V. Amador County, 35 Cal. 624, §289. Beals V. Hale, 4 How. (45 U. S.) 37, §§ 272, 282, 283. Beard v. Rowan, 9 Pet. (34 U. S.) 301, § 244. Beardsley v. New York, L. E. & W. R. Co., 44 N. Y. Supp. 175, § 412. Beardstown v. City of Virginia, 76 111. 34, §§ 205, 208. Bear Lake & River Waterworks & Irrig. Co. v. Garland, 164 U. S. 1, §270. Beaston v. Farmers' Bank, 12 Pet. (37 U. S.) 102, § 65. Beatty v. Ry. Co., 84 App. Div. 91, §33. Becket Paper Co. v. Hamilton & R. H. Co., 18 Ohio C. C. 200, § 464. Bedell v. Scott, 126 Cal. 675, § 199. Beekman v. Saratoga & Schenectady R. Co., 3 Paige Ch. (N. Y.) 45, § 14, 17, 63, 97, 400. Beekman v. Third Ave. R. Co., 43 N. Y. Supp. 174, § 379. Beekman v. Third Ave. Rd. Co., 153 N. Y. 144, §§48, 148, 344. Beer Co. v. Massachusetts, 97 U. S. 25, §§ 138, 317, 366. Beggs V. Edison Electric Illuminating Co., 96 Ala. 295, § 77. Beirs v. Vanceburg Teleph. Co., 28 Ky. L. Rep. 142, § 176. Belfast Savings Bk. v. Stowe, 92 Fed. 102, § 292. Bell V. Clegg, 25 Ark. 26, §§ 15, 144. Bell V. Farwell, 176 111. 489, § 227. Bell V. Railroad Co., 4 Wall. (71 U. S.) 598, § 343. Belleville v. Citizens' Horse Ry. Co., 152111. 171, §§ 1,47,336. Bell Teleph. Co. v. Montreal St. R. Co., Rap. Jud. Quebec, 6 B. R. 223, § 188. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, §§ 446, 448. Belton, In re, 47 La. Ann. 1614, § 488. Benbow v. Cook, 115 N. Car. 324, § 350. Benedict v. Columbus Const. Co., 49 N. J. Eq. 23, §§ 374, 388. Bennett v. Town of Mt. Vernon (Iowa), 100 N. W. 349, § 345. Bennington v. Park, 50 Vt. 178, § 231. Benson v. Mayor of New York, 10 Barb. (N. Y.) 223, § 80. Bent V. Underdown, 156 Ind. 516, §41. Benton v. Johncox, 17 Wash. 277, §306. Berea College v. Commonwealth of Kentucky, 211 U. S. 45. See "Appendix C," herein. Bergen Traction Co. v. Ridgefield Township Committee (N. J. Ch.), 32 Atl. 754, § 379. Berry v. Mobile Life Ins. Co., Fed. Cas. No. 1358, § 67. Berry Coal & Coke Co. v. Chicago, P. & St. L. Ry. Co., 116 Mo. App. 214, §370. Besson v. Crapo Toll Road Co. (Mich.), 114 N. W. 924, § 200. Beveridge v. New York Elev. R. Co., 112 N.Y.I, §467. TABLE OF CASES CITED XXXIX Bierhop v. City of Milwaukee, 21 Wis. 257, § 62. Billings V. Breinig, 45 Mich. 65, § 26. Billings V. Hall, 7 Cal. 1, § 311. Binghamton v. Binghamton & P. D. Ry. Co., 16 N. Y. Supp. 225, §337. Binghamton Bridge, The, 3 Wall. (70 U. S.) 51, §§ 286, 311, 340, 412. Binghamton Trust Co. v. City of Binghampton, 76 N. Y. Supp. 517, §§ 437, 455. Bird V. Arnott (Mich.), lOS N. W. 646, § 245. Bird V. United States, 187 U. S. 118, §261. Birmingham & P. M. S. R. Co. v. Birmingham S. R. Co., 79 Ala. 465, §§ 311, 313. Birmingham Mineral Rd. Co. v. Jacobs, 92 Ala. 187, § 111. Birmingham Mineral Rd. Co. v. Par- sons, 100 Ala. 662, § 366. Birmingham N. R. Co. v. Elyton Land Co., 114 Ala. 70, § 245. Bitterman v. Louisville & Nashville Ry. Co., 207 U. S. 205, § 413. Bixler v. Summerfield, 195 111. 147, §41. Black well v. First National Bank, 10 N. W. 555, § 265. Blades v. Board of Water Commis- sioners of the City of Detroit, 122 Mich. 366, §§ 235, 245. Blaine v. Curtis, 59 Vt. 120, § 271. Blair v. City of Chicago, 201 U. S. 400, §§ 23, 228, 241, 245, 247, 254, 257, 279, 283, 287, 306, 330, 344, 347. Blair v. Ilidgely, 41 Mo. 63, § 21. Blake v. Ada County Commrs. (Idaho), 47 Pac. 734, § 227. Blake v. Concord & M. R. Co., 73 N. H. 597, § 382. Blake v. McClung, 172 U. S. 239, §§ 66, 67, 291, 292, 300, 354, 355. Blake v. National Banks, 23 Wall. (90 U. S.) 307, § 262. Blake v. Winona & St. Peter Ry. Co., 19 Minn. 418, § 132. Blanchard v. Abraham, 115 La. 999, § 201. Blandford Third School Dist. v. Gibbs, 2 Cush. (56 Mass.) 39, § 350. Blissett V. Hart, Willes, 508, §§15, 148. Bliven v. Penn S. & I. Co., 9 Abb. (N. Car.), 205, § 489. Block V. O'Connor Min. & Mfg. Co., 129 Ala. 528, § 486. Blocki V. People, 220 111. 444, §§ 23, 47, 255. Blodgett V. Worcester Consol. St. Ry. Co. (Mass.), 78 N. E. 222, §379. Blood V. Woods, 95 Cal. 78, § 116. Bloodgood V. Grasey, 31 Ala. 575, § 271. Bloomington Cemetery Assoc, v. Peo- ple, 170 111. 377, § 455. Bloxham v. Consumers' E. L. & St. R. Co., 36 Fla. 519, §§ 111, 433. Bly V. Nassau St. R. Co., 67 N. H. 474, § 387. Board. See Commissioners; see also Name of Board. Board of Assessors v. Plainfield Water Supply Co., 67 N. J. L. 357, §§ 380, 412, 455. Board of Commissioners. See Com- missioners. Board of Commissioners of Johnson County v. Hewitt, 76 Kan. 816, §440. Board of Councilmen of City of Frankfort v. Stone, 108 Ky. 400, §§8, 11, 12, 16, 40, 434. Board of Councilmen of City of Frankfort v. Stone, 22 Ky. L. Rep. 502, § 440. Board of Directors. See Directors; see State Board of. Board of Directors for Leveeing Wabash River v. Houston, 71 111. 318, §§ 61, 63, 99. xl TABLE OF CASIOS CITED Board of Directors of Middle Kittas Irrig. Dist. v. Peterson, 4 Wash. 147, § 88. Board of Directors of St. Francis Levee Dist. v. Bodkin (Tenn.), 69 S. W. 270, § 89. Board of Education v. Greene'oaum & Sons, 39 111. 609, § 56. Board of Liquidation v. Louisville & Nashville R. Co., 109 U. S. 221, §343. Board of Liquidation v. McComb, 92 U. S. 531, § 416. Board of Liquidation of New Orleans v. Louisiana, 179 U. S. 622, § 272. Board of Railroad Commissioners v. Market St. Ry. Co., 132 Cal. 677, §217. Board of Supervisors of Elizabeth City Council v. City of Newport News, 106 Va. 764, § 440. Board of Tax Commrs. v. Holliday, 150 Ind. 216, § 227. Board of Trade of Chicago v. The People, 91 111. 80, 82, §§ 1, 3, 9, 11. Board of Water Commissioners of White Plains, Matter of, 76 N. Y. Supp. 11, § 3. Boca & L. R. Co. v. Sierra Valleys Ry. Co. (Cal. App.), 84 Pac. 298, §§ 19, 227. Bohn v. Harris, 130 111. 525, § 26. Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, §§ 16, 269, 394. Bonaparte v. Baltimore, H. & L. R. Co., 75 Aid. 340, § 490. Bonebrake v. Wall (Ohio C. P.), 24 Ohio L. J. 175, § 289. Bon Homme County v. Berndt, 15 S. Dak. 494, § 231. Booth v. Town of Woodbury, 32 Conn. 118, § 269. Bordentown Banking Co. v. Spar- hawk, 214 Pa. 334, § 63. Borough. See name of. Borough V. City of Cherokee (Iowa), 109 N. W. 876, § 343. Boston V. Crowley, 38 Fed. 602, §348. Boston V. Cummins, 16 Ga. 102, §231. Boston V. Richardson, 13 Allen (Mass.), 146, § 16. Boston V. Union Freight R. Co., 181 Mass. 205, § 337. Boston & Albany Ry. v. Pearson, 128 Mass. 445, § 52. Boston & M. R. Co. v. County Commrs., 79 Me. 386, § 96. Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, § 33, 140. Boston Glass Manufactory v. Lang- don, 24 Pick. (41 Mass.) 49, § 311. Boston Mining & Milling Co., In re, 51 Cal. 624, § 245. Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436, § 11. Bourland v. Hildreth, 26 Cal. 161, §§ 205, 289. Bowers v. Smith, 111 Mo. 45, §§ 261, 269. Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465, §§ 368, 370, 404, 412. Bowman v. Wathen, 2 McLean (U. S. C. C), 376 Fed. Cas., No. 1,740, §26. Boyce, Ex parte, 27 Nev. 299, § 231. Boyer v. Onion, 108 111. App. 612, § 233. Boyle v. Philadelphia & Reading Rd. Co., 54 Pa. 310, § 17. Brabham v. Hinds County, Board of Supervisors of, 54 Miss. 363, § 56. Brace v. Solner, 1 Alaska, 361, § 266. Bradford v. National Ben. Assn., 26 App. D. C. 268, § 53. Bradley Fertilizer Co. v. South Pu!). Co., 23 N. Y. Supp. 675, § 51. Brady v. Moulton, 61 Minn. 185, §§ S, 31. Branch v. Baker, 53 Ga. 502, § 311. Branch v. Charleston, 92 U. S. 677, § 481. TABLE OF CASES CITED xli Branch v. Jesup, 106 U. S. 468, §§ 463, 468, 476. Brass v. Stoeser, 153 U. S. 391, §§ 295, 366, 391. Brauer v. Baltimore Refrigerating Co. (Md.), 58 Atl. 21, § 345. Braun v. Webb, 65 N. Y. Supp. 668, §109. Bray v. Florence City Council, 62 S. C. 17, § 220. Brennan v. German-American Bank, 144 U. S. 173, § 343. Brennan v. Titusville, 153 U. S. 289. §§ 131, 359. Brent v. Hart, 10 Mo. App. 143, § 425. Brewer V. Blougher, 14 Pet. (39 U. S.) 178, § 239. Bridgeport, Citj' of, v. New York & New Haven Rd. Co., 36 Conn. 255, §§ 8, 9, 12, 34. Bridge Proprietors v. Hoboken Com- pany, 1 Wall. (68 U. S.) 116, §§ 340, 412. Bridgers v. Taylor, 102 N. Car. 86, §269. Bridges v. Shallcro.ss, 6 W. Va. 562, §§ 231, 289. Bridge Street & Allendale Gravel Road Co. V. Hogadone (Mich.), 114 N. W. 917, § 200. Bridgewater Ferry Co. v. Sharon Bridge Co., 145 Pa. 404, § 489. Brien v. Williamson, 7 How. (Miss.) 14, § 225. Brightwell v. Mallory, 10 Yerg. (Tenn.) 196, § 425. Brimmer v. Rebman, 138 U. S. 78, §§ 136, 373. Bristol County, In re, 193 Mass. 257, §§ 298, 382. Broadnax v. Baker, 94 N. Car. 675, §§ 15, 24. Bronson v. City of New York, 10 Barb. (N. Y.) 223, § 306. Bronson v. Kinzie, 1 How. (42 U. S.) 311, § 416. Bronson v. Oberhn, 41 Ohio St. 476, §231. Brooker v. Maysville & B. S. R. Co., 26 Ky. L. Rep. 1022, § 464. Brooklyn v. Nassau Elec. R. Co., 56 N. Y. Supp. 609, § 387. Brooklyn City Rd. Co. v. New York State Board of Tax Commrs., 199 U.S. 48, §§ 426, 446. Brooklyn Rd. Co., In re, 125 N. Y. 434, § 486. Brooklyn, Q. C. & L. R. Co., In re, 185 N. Y. 171, § 490. Brooklyn Union Gas Co. v. City of New' York, 100 N. Y. Supp. 625, §§ 82, 392. Brooks V. Roberts, 78 Fed. 41, § 245. Brooks V. Southern Pacific Co., 207 U. S. 463, §§ 369, 370, 375, 384. Brown v. Atlanta Ry. & Power Co., 113 Ga. 462, §§ 288, 349. Brown v. Carolina Midland Ry. Co., 67 S. C. 481, §§ 296, 300. Brown v. Gerald, 100 Me. 351, § 241. Brown v. Houston, 114 U. S. 622, §404. Brown v. Maryland, 12 Wheat. (25 U. S.) 419, §§ 205, 213, 231, 366. Brown v. Phillips, 71 Wis. 239, § 262. Brown v. South Kennebec Agricul- tural Soc, 47 Me. 275, § 68. Brown v. Thorpe, 74 S. C. 207, § 136. Brown v. Turner, 174 Mass. 150, § 236. Brown v. United States, 113 U. S. 568, § 202. Brown v. Walker, 161 U. S. 591, § 269. Brown University v. Granger, 19 R. I. 705, § 455. Bruffett V. Great Western R. Co., 25 111. 353, § 311. Brundred v. Rico, 49 Ohio St. 640, §11. Brunswick Terminal Co. v. National Bank of Bait., 192 U. S. 386, §§ 253, 274. Bryan v. Board of Education, Ken- tucky Conference, 151 U. S. 639, §331. xlii TABLE OF CASES CITED Brymer v. Butler Water Co., 179 Burnette, In re, 73 Kan. 609, § 233. Pa. 231, § 390. Burrows v. Delta Transp. Co., 106 Buchanan v. Knoxviile & Ohio Rd. Mich. 582, § 245. Co., 71 Fed. 324, §§ 3, 12, 20. Burton v. Snyder, 22 Colo. 173, § 245. Buchanan v. Litchfield, 102 U. S. Bush v. Shipman, 4 Scam. (5 111.) 278, § 343. 186, § 56. Buck V. Mills, 147 Ind. 586, § 440. Bushnel v. Leland, 164 U. S. 684. Buckner v. Hart, 52 Fed. 835, § 241. § 152. Budd V. Multnomah St. Rd. Co., 15 Bushnell v. Beloit, 10 Wis. 195, Oregon, 404, § 25. § 289. Budd V. New York, 143 U. S. 517, Bushnell -v. Park (U. S. C. C), 46 §§ 113, 173, 295, 366, .391. Fed. 209; § 53. Buente v. Pittsburg, A. & M. Tract. Business Men's League v. Waddill, Co., 2 Pa. Super. Ct. 185, § 387. 143 Mo. 495, § 163. Buffalo East Side Rd. Co. v. Buffalo Butler v. Mayor, etc., of Thomasville, Street Rd. Co., Ill N. Y. 132, 74 Ga. 570, § 343. § 400. Butler v. State of Pennsylvania, 10 Buffalo Loan, Trust & Safe Deposit How. (51 U. S.) 402, § 21. Co. V. Medina Gas & Elect. Light Butte Hardware Co. v. Sullivan, 7 Co., 42 N. Y. Supp. 781, § 11. Mont. 307, § 253. Building & Loan Assoc, v. Sohn, 54 Buttfield v. Stranahan, 192 U. S. W. Va. 101, §§ 236, 262, 283. 470, §§ 151, 231, 368. BuUmaster v. St. Joseph, 70 Mo. App. Button v. El Paso Northeastern Ry. 60, § 11. Co. (Tex. Civ. App.), 93 S. W. 676, Burgen & Dundee R. Co. v. State § 130. Board of Assessors, 74 N. J. L. 742, Button v. State Corporation Com- § 421. mission, 105 Va. 634, §§ 121, 163. Burgess v. Seligman, 107 U. S. 20, Byars v. Bennington & H. V. Ry. Co., § 272. 90 N. Y. Supp. 736, § 413. Burgoyne v. Supervisors, 5 Cal. 23, Bybee v. Oregon & California Ry. § 262. Co., 139 U. S. 663, § 485. Burhop V. City of Milwaukee, 21 Byrne v. Chicago, G. R. Co., 169 111. Wis. 257, §§ 56, 99. 75, §§ 96, 359. Burlington v. Beasley, 94 U. S. 310, Bywaters v. Paris & G. W. R. Co., 73 § 391. Tex. 624, § 486. BurUngton & Henderson County Ferry Co. v. Davis, 48 Iowa, 133, ^■ I 80. Cable v. United States Life Ins. Co., Burlington, C. R. & N. Ry. Co. v. 191 U. S. 288, § 352. Dey, 82 Iowa, 312, §§ 233, 390. Cadwalader v. Zeh, 151 U. S. 171, Burlington, K. & S. R. Co. v. John- § 238. son, 38 Kan. 142, § 238. Cain v. City of Wyoming, 104 111. Burlington Lumber Co. v. Willetts, App. 538, §§ 1, 47, 132, 185. 118 111. 559, § 404. Cain v. Smith, 117 Ga. 902, § 137. Burnes v. City of St. Joseph, 91 Mo. Calder v. Bull, 3 Dall. (3 U. S.) 386, App. 489, § 345. §§ 229, 261. Burnett v. Maloney, 97 Tenn. 697, Caldwell v. Texas, 137 U. S. 692, § 285. § 297. TABLE OF CASES CITED xliii Caledonia Coal Co. v. Baker, 196 U.S. 432, § 261. Calhoun v. Pullman Palace Car Co., (U. S. C. C.) 149 Fed. 546, § 109. California v. Central Pacific Rd. Co., 127 U. S. 1, §§ 1, 2, 3, 17, 124, 129, 418. California v. Pacific Ry. Co.. 127 U.S. 1,§ 144. California, City of, v. Bunceton Teleph. Co., 112 Mo. App. 722, §347. California Reduction Co. v. Sani- tary Reduction Co., 126 Fed. 29, §136. California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, §§ 3, 24, 26, 476. Caliban v. Jennings, 16 Colo. 471, §234. Callahan v. St. Louis Merchants' Bridge Terminal Co., 170 Mo. 473, §300. Calvert v. Southern Ry. Co., 64 S. C. 139, § 67. Camblos v. Philadelphia & Reading R. Co., 4 Brewster (Pa.), 563, §§ 14, 17. Camblos v. Philadelphia & R. R. Co., Fed. Cas. 2,331, § 22. Cambria Iron Co. v. Ashburn, 118 U. S. 54, § 270. Camden & A. R. Transp. Co. v. Briggs, 22 N. J. L. 623, § 264. Camfield v. United States, 167 U. S. 518, § 399. Camp V. Wabash R. Co., 94 Mo. App. 272, § 270. Campbell v. Pittsburg & W. R. Co., 137 Pa. 574, § 478. Campbell v. St. Louis & S. Ry. Co., 175 Mo. 161, § 387. Campbell, Receiver, v. Watson, 62 N. J. Eq. 396, § 69. Canadian S. R. Co. v. Niagara Falls, 22 Ont. Rep. 41, § 468. Canal Company v. Railroad Co., 4 Gill & J. (Md.) 1, 107, §§ 12, 15. Cantrell v. Seaverns, 168 III. 165, §240. Cape Girardeau Co. Court v. Hill, 118 U. S. 68, § 284. Cape May, City of, v. Cape May Transp. Co. (N. J. Sup.), 44 Atl. 948, § 359. Capital City Ferry Co. v. Cole, etc., Transp. Co., 51 Mo. App. 228, § 26. Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462, § 314. Capital City Water Co. v State, Macdonald, 105 Ala. 406, § 490. Capital State Bank v. Lewis, 64 Miss. 727, § 287. Carder v. Fayette County, Board of Commrs. of, 16 Ohio St. 353, § 56. Cardwell v. American Bridge Co., 113 U. S. 205, §§ 145, 152. Carey v. Giles, 9 Ga. 253, § 264. Carli V. Stillwater St. Ry. & Transfer Co., 28 Minn. 373, § 111. Carlisle v. Cumberland Valley Elect. Pass. R. Co., 22 Pa. Co. Ct. 221, § 347. Carlisle v. Pullman P. C. Co., 8 Colo. 320, § 448. Carrell v. Muncie, H. & Ft. W. Ry. Co. (Ind. App.), 78, § 111. Carrigan v. Coney Island Jockey Club, 22 N. Y. Supp. 394, § 63. Carroll v. Campbell, 108 Mo. 550, §§ 26, 144, 396. Carruthers v. Kansas City, Ft. S. & M. R. Co., 59 Kan. 629, § 464. Carson v. St. Francis Levee Dist., 59 Ark. 513, § 89. Carstairs v. Cochran, 193 U. S. 10, §272. Carter County v. Sinton, 120 U. S. 517, § 245. Carter, Webster & Co. v. United States, 137 Fed. 978, § 250. Carthage, Village of, v. Central New York Teleph. Co., 96 N. Y. Supp. 919, §§ 198, 379. Cascade County v. City of Great Falls, 18 Mont. 537, § 15. xliv TABLE OF CASES CITED Case V. Cayuga County, 34 N. Y. Supp. 595, § 379. Case V. Kelly, 133 U. S. 21, § 12. Casey v. St. Louis Transit Co., 116 Mo. App. 235, § 252. Cassatt V. Mitchell Coal & Coke Co., 150 Fed. 32, § 64. Cathcart v. Robinson, 5 Pet. (30 U. S.) 264, § 269. Cauble v. Craig, 94 Mo. App. 675, §§ 26, 186. Cedar Rapids & M. C. R. Co. v. Cedar Rapids, 106 Iowa, 476, § 433. Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, §§ 2, 8, 11, 12, 16, 44, 48, 235, 288, 348, 349, 394. Central Branch Union Pacific Rd. Co. V. Atchison, Topeka & Santa Fe Rd. Co., 28 Kan. 453, § 232. Central Bridge Corp. v. Bailey, 8 Cash. (62 Mass.) 319, § 51. Central City v. Morquis (Neb.), 106 N. W. 221, § 15. Central Crosstown Ry. Co. v. Metro- politan St. Ry. Co., 44 N. Y. Supp. 752, § 193. Central Iron Works v. Pennsylvania R. Co., 2 Dauph. Co. Rep. (Pa.) 308, § 226. Central Irrigation District v. De Lappe, 79 Cal. 351, §§ 88, 148. Central of Georgia Ry. Co. v. Mur- phey, 196 U. S. 194, §§ 276, 378. Central of Cieorgia Ry. Co. v. State, 104 Ga. 831, § 245. Central of Georgia Ry. Co. v. Wright, 207 U. S. 127, § 285. Central of Georgia Ry. Co. v. Wright, 125 Ga. 617, §§ 300, 421. Central Pacific R. Co. v. California, 162 U. S. 91, §§ 5, 11, 17, 26, 34, 124, 129, 418, 422. Central Pacific R. Co. v. Gallatin, 99 U. S. 700, §§ 391, 400. Central Pacific R. Co. v. Gallatin, 99 U. S. 700 (see also Sinking Fund Cases), § 319. Central Pacific R. Co. v. State Board of Equalization, 60 Cal. 35, § 66. Central Pacific R. Co. v. United States, 99 U. S. 700 (see also Sink- ing Fund Cases), § 319. Central Railroad & Banking Co. v. Georgia, 92 U. S. 665, §§ 481, 482. Central Railroad & Banking Co. v. State of Georgia, 54 Ga. 401, §§ 1, 3, 10, 51, 243, 318. Central R. & E. Co.'s Appeal, 67 Conn. 197, § 141. Central R. Co. v. Collins, 40 Ga. 582, §311. Central R. Co. of New Jersey v. State Board of Assessors, 74 N. J. L. 1, § 421. Central Transportation Co. v. Pull- man's Palace Car Co., 139 U. S. 24, §§ 63, 254, 464. Central Trust Co. v. Citizens' St. R. Co. (C. C), 82 Fed. 1, §§ 311, 313, 398. Central Trust Co. v. Western North Carolina Rd. Co., 89 Fed. 24, §§11, 12, 30, 465. Central Union Teleg. Co. v. Fehring, 146 Ind. 189, § 245. Central Union Teleph. Co. v. Brad- bury, 106 Ind. 1, § 63. Cereghino v. Oregon Short Line Rd. Co., 26 Utah, 467, §§ 188, 344. Cerf V. Reichert, 73 Cal. 360, §§ 282, 283. Chadwick v. Kelley, 187 U. S. 540, § 229. Chamberlain v. Iowa Teleph. Co., 119 Iowa, 619, § 140. Chamberlain v. State, 50 Ark. 132, § 282. Chamberlain v. Wood, 15 S. Dak. 216, § 21. Chambers v. Baltimore & Ohio Ry. Co., 207 U. S. 142, § 293. Chambers v. Solner, 1 Alaska, 271, § 2,36. Chambers County v. Lee County, 55 Ala. 5.34, § 56. TABLE OF CASES CITED xlv Champer v. City of Greencastle, 138 Ind. 339, § 366. Chandler v. Lee, 1 Idaho, 349, § 239. 'Chapin v. Crasen, 31 Wis. 209, § 199. Chapman v. Barney, 129 U. S. 677, §52. Cliapman v. Brewer, 43 Neb. 890, §64. Chapman, In re, 166 U. S. 661, § 238. Charge to Grand Jury, In re (D. C), 62 Fed. 840, § 367. Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, §§ 4, 15, 17, 22, 23, 24, 26, 120, 136, 138, 257, 258, 311, 342. Charleston, Cincinnati & Chicago Rd. Co. V. Whitesides, 30 S. Car. 579, § 288. Charleston, City of, v. Branch, 15 Wall. (82 U.S.) 470, §481. Charleston, City of, v. Oliver, 16 S. Car. 47, § 205. Charlotte, Columbia & Augusta Rd. Co. V. Gibbes, 142 U. S. 386, §§ 66, 97, 99, 102, 167, 294, 381, 382, 421. Chase v. Curtis, 113 U. S. 452, § 252. Chase v. Michigan Tel. Co., 121 Mich. 631, § 464. Chatfield Co. v. City of New Haven, 110 Fed. 788, §§ 127, 152. Chattanooga Nat. B. & L. Assn. v. Denson, 189 U. S. 408, § 353. Chattaroi R. Co. v. Kinner, 81 Ky. 281, § 332. Chattock V. Bellamy, 64 L. J. Q. B. (N.S.) 250, § 119. Chemung Canal Bank v. Lowery, 93 U. S. 72, § 293. Cherokee, County of, v. State, 36 Kan. 339, § 233. Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, §§ 107, 130. Chesapeake & O. Canal Co. v. Balti- more & Ohio R. Co., 4 Gill & J. (Md.) 1, §311. Chesapeake & Ohio Canal Co. v. Key, 3 Cranch (U. S. C. C), 599, §§ 252, 255. Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, §§ 38, 465. Chesapeake & O. Ry. Co. v. Howard, 178 U.S. 153, §§ 464,465. Chesapeake & Ohio Ry. Co. v. Miller, 114 U. S. 176, §§ 3, 12, 17, 20, 216, 479, 480. Chesapeake & Ohio Railway v. Vir- ginia, 94 U. S. 718, §§479, 481, 482. Chesapeake & P. Tel. Co. v. Manning, 186U. S. 238, §§ 136,251. Chestatee Pyrites Co. v. Cavenders Creek Gold Min. Co., 119 Ga. 354, §6.3. Chester. City of, v. Wabash, C. & W. R. Co., 182 111. 382, § 344. Chester, County of, v. Brower, 117 Pa. 647, § 56. Chew Ileong v. United States, 112 U. S. 536, §§ 282, 287. Cheyenne County v. Bent County, 15 Colo. 320, § 261. Chicago V. Chicago Union Traction Co., 199 111. 259, § 337. Chicago V. People's Gas Light & Coke Co., 121 111. 530, §§ 97, 464. Chicago V. Phoenix Ins. Co., 126 111. 276, § 250. Chicago & A. R. Co. v. Erickson, 91 111. 613, § 372. Chicago & A. R. Co. v. People, 129 111. 571, § 448. Chicago & Erie Rd. Co. v. Keith, 67 Ohio St. 279, § 212. Chicago & Grand Trunk Ry. Co. v. WcUman, 143 U. S. 339, §§ 167, 173, 229, 381, 400. Chicago & Iowa Rd. Co. v. Pinckney, 74 111. 277, § 276. Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424, §464. Chicago & N. W. Ry. Co. v. Dcy, 35 Fed. 866, § 167. Chicago & N. W. Ry. Co. v. State, 128 Wis. 553, §§ 231, 233, 421, 440, 448. Chicago & N. W. Ry. Co. v. United States, 104 U. S. 680, § 287. xlvi TABLE OF CASES CITED Chicago & R. R. Co. v. Minnesota, 134 U. S. 418, § 416. Chicago & S. S. R. T. Co. v. Northern Trust Co., 90 111. App. 400, § 466. Chicago & St. P. Ry. Co. v. Third Nat. Bank, Chicago, 134 U. S. 276, §464. Chicago & Western Indiana Ry. Co. V. Dunbar, 95 111. 571, §§ 1, 2, 3, 4, 9, 10, 11, 12, 19, 24, 132. Chicago, B. & K. C. R. Co. v. Guffey, 120U.S. 569, §§455, 569. Chicago, Burlington & Quincy Rd. Co. V. Chicago, 166 U. S. 226, §§ 294, 346, 381, 397. Chicago, Burlington & Quincy Rd. Co. V. Drainage Commrs., 200 U. S. 561, §§ 63, 75, 149, 167, 298, 366. Chicago, Burlington & Quincy Rd. Co. V. Illinois, 200 U. S. 561, § 381. Chicago, Burlington & Quincy Rd. Co. V. Iowa, 94 U. S. 155 (see Granger Cases), §§ 167, 381, 391, 400, 404, 405, 412. Chicago, Burlington & Quincy Rd. Co. V. Jones, 149 111. 361, § 390. Chicago, Burlington & Quincy Rd. Co. V. Nebraska, 170 U. S. 57, § 381. Chicago, Burlington & Quincy Rd. Co. V. Nebraska City, 53 Neb. 453, §430. Chicago, Burlington & Quincy Rd. Co. V. Nebraska, 47 Neb. 549, §149. Chicago, City of, v. Galpin, 183 111. 399, § 343. Chicago, City of, v. Reeves, 220 111. 274, § 220. Chicago, City of, v. Selz, Schwab & Co., 104 111. App. 376, § 11. Chicago City Ry. Co. v. Chicago, 142 Fed. 844, § 299. Chicago City Ry. Co. v. People, 73 111. 541, §§ 1, 47, 132, 133, 185, 187. Chicago, D. & v. R. Co. v. Chicago, 121 111. 176, §§ 240, 255. Chicago, etc., Ry. Co. v. Tompkins, 176 U. S. 167, §§ 381, 409, 416. Chicago Drainage Case. See Missouri V. Illinois. Chicago Gas Light & Coke Co. v. People's Gas Light & Coke Co., 121 111. 530, §§ 63, 82, 88. Chicago General R. Co. v. Chicago, 176 111. 253, §§ 96, 359. Chicago, Indianapolis & Louisville Ry. Co. V. Irons (Ind. App., 1906), 78 N. E. 207, § 382. Chicago, Indianapolis & Louisville Ry. Co. V. Railroad Commission of Indiana, 38 Ind. App. 439, 78 N. E. 338, §§63, 74, 174,412. Chicago, Indianapolis & Louisville Ry. Co. V. McGuire, 196 U. S. 128, §354. Chicago, Kansas & Western Rd. Co. V. Pontius, 157 U. S. 209, § 298. Chicago Life Ins. Co. v. Needles, 113 U. S. 574, §§ 311, 365, 488. Chicago Lumber Co. v. Newcomb, 19 Colo. App. 265, § 298. Chicago, Milwaukee & St. Paul Ry. Co. V. Ackley, 94 U. S. 179, §§ 167, 381. Chicago, Milwaukee & St. Paul Ry. Co. V. City of Chicago, 83 111. App. 233, § 464. Chicago, Milwaukee & St. Paul Ry. Co. V. Minnesota, 134 U. S. 418, §§ 97, 113, 173, 369, 381, 391, 401, 406, 407, 408, 409. Chicago, Milwaukee & St. Paul Ry. Co. V. Tompkins, 176 U. S. 167 (see " Appendix C," herein), §§ 381, 409, 416. Chicago, Milwaukee & St. Paul Ry. Co. V. Tompkins (C. C), 90 Fed. 363, § 406. Chicago, Milwaukee & St. Paul Ry. Co. V. United States, 127 U. S. 406, § 283. Chicago, Milwaukee & St. Paul Ry. Co. V. Wabash, St. Louis & Pac. Ry. Co., 61 Fed. 993, § 100. Chicago, Milwaukee & St. Paul Ry. Co. V. Wallace, 66 Fed. 506, § 105. TABLE OF CASES CITED xlvii Chicago Municipal Gas Light & Fuel Co. V. Town of Lake, 130 111. 42, §§ 1, 42, 47. Chicago, R. I. & P. R. Co. v. Union Pacific R. Co., 47 Fed. 15, § 472. Chicago, S.F.&C.R. Co.v. Ashling, 160111.373, §481. Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 111. 324, § 47, 348. Chicago Teleph. Co. v. Northwestern Co., 100 111. App. 57, § 379. Chicago Theological Seminary v. Ilh- nois, 188 U. S. 662, § 455. Chicago Title & Trust Co. v. O'Marr, 18 Mont. 568, § 287. Chicago Union Traction Co. v. City of Chicago, 199 111. 484, § 231. Chilcott V. Hartm, 23 Colo. 40, §269. Chincleclamouche Lumber, etc., Co. V. Commonwealth, 100 Pa. 444, §311. Chisholm v. Georgia, 2 Ball. (2 U. S.) 419, § 416. Chittenden v. Wurster, 152 N. Y. 345, §227. Choctaw, O. & G. R. Co. v. Alexan- der, 7 Okla. 579, §§ 237, 244, 245. ChoUette v. Omaha & Republican Valley Rd. Co., 26 Neb. 159, §§ 63, 464. Choquette v. Southern Elec. R. Co. (Mo.), 53 S. W. 897, § 387. Christensen, Ex parte, 85 Cal. 208, § 234. Christian Union v. Yount, 101 U. S. 352, §§ 12, 351. Chudnovski v. Eckels, 232 111. 312, §§ 236, 237, 2.38, 239, 265. Church V. Kelsey, 121 U. S. 282, § 30. Church of Holy Trinity v. United States, 143 U. S. 457, § 220. Cincinnati & H. E. St. Ry. Co. v. Cincinnati, H. & I. R. Co., 12 Ohio CD. 113, §286. Cincinnati, City of, v. Covington & C. Bridge Co., 20 Ohio Cir. Ct. Rep. 396, §491. Cincinnati Gas Light & Coke Co. v. Avondale, 43 Ohio St. 257, § 390. Cincinnati, H. & D. R. Co. v. Bowling Green, 57 Ohio St. 336, § 76. Cincinnati, Hamilton & Dayton Ry. Co. V. Interstate Commerce Com- mission, 206 U. S. 142, § 403. Cincinnati Inclined Plane R. Co. v. Cincinnati, 52 Ohio St. 609, § 379. Cincinnati Mut. Health Assur. Co. v. Rosenthal, 55 111. 85, § 67. Cincinnati, New Orleans & Texas Pac. Ry. Co. V. Interstate Commerce Commission, 162 U. S. 184, §§ 153, 403, 413. Cincinnati, Volksblatt Co., v. Hoff- meister, 62 Ohio St. 189, § 11. Cincinnati, Wilmington & Zanesville Rd. Co. V. Commissioners of Clin- ton County, 1 Ohio St. 77, § 230. Citizens' Bank v. Parker, 192 U. S. 73, §§ 278, 412, 455, 461. Citizens' Savings Bank v. Owens- boro, 173 U. S. 636, §§ 317, 321, 339, 412. Citizens' Street R. Co. v. Africa, 100 Tenn. 26, §§ 23, 255. Citizens' St. Ry. Co. v. City Ry. Co., 56 Fed. 746, § 313. Citizens' St. Ry. Co. v. City Ry. Co. (C. C), 64 Fed. 647, § 306. Citizens' St. Ry. Co. v. Jones, 34 Fed. 579, § 257. Citizens' St. Ry. Co. v. Memphis, 53 Fed. 715, § 481. City. See also name of. City & County of San Francisco v. Oakland Water Co. (Cal.), 83 Pac. 61, § 440. City of Colorado Springs v. Weirlle (Colo., 1908), 93 Pac. 1096, § 287. City Ry. Co. v. Citizens' St. Ry. Co. (Ind.), 52 N. E. 157, § 379. City Ry. Co. v. Citizens' St. R. R. Co., 166 U. S. 557, §§ 287, 330, 349. City Water Co. v. State (Tex. Civ. App.), 33 S. W. 259, § 488. Civil Rights Cases, 109 U. S. 3, § 391. xlviii TABLE OF CASES CITED Claflin V. Commonwealth Ins. Co., Clinton Bridge, The, 10 Wall. (77 110 U. S. 81, §§ 268, 270. U. S.) 454, § 128. Clark V. Adair County, 79 Mo. 536, Chnton Electric Light, H. & P. Co. v. § 56. Snell, 95 111. App. 552, § 390. Clark V. American Express Co., 130 Close v. Glenwood Cemetery, 107 Iowa, 254, § 252. U. S. 466, § 321. Clark V. Mayor, 29 Md. 277, § 221. Coast Line R. Co. v. Savannah, 30 Clark V. Nash, 198 U. S. 361, §§ 272, Fed. 646, § 337. 275. Coatesville & D. St. Ry. Co. v. West Clark V. Turner, 73 Ga. 1, § 271. Chester St. Ry. Co., 206 Pa. 40, Clark County Court v. Warner, 25 § 379. Ky. L. Rep. 857, § 178. Cobb v. Commissioners of Durham Clarke v. Philadelphia W. & B. B. County, 122 N. Car. 307, §§ 12, 30. Co., 4 Houst. (Del.) 158, § 404. Cochise, County of, v. Copper Queen Clarkesdale Ins. Agency v. Cole, 87 Consol. Min. Co. (Ariz., 1903), 71 Miss. 637, § 356. Pac. 946, § 182. Clark, In re, 65 Conn. 17, § 366. Cochran v. McCleary, 22 Iowa, 75, Clarksburg Electric Light Co. v. City § 21. of Clarksburg, 47 W. Va. 739, Codd v. Rathbone, 19 N. Y. 37, § 51. §§ 314, 348. Coe v. Columbus, Piqua & Indiana Clark's Run & Turnpike Rd. Co. v. Rd. Co., 10 Ohio St. 372, §§ 8, 11, Commonwealth, 16 Ky. L. Rep. 17, 38. 681, § 260. Coe v. Errol, 116 U. S. 517, § 404. Clausen & Sons Brewing Co. v. The Coffin v. Rich, 45 Me. 507, §§ 306, Baltimore & Ohio Teleg. Co. 311. (N. Y. Sup. Ct. Chambers, 1884), Cohen v. Wright, 22 Cal. 293, § 205. 2 Am. Elec. Cas. 210, § 131. Cohens v. Virginia, 6 Wheat. (19 Clearwater v. Meredith, 1 Wall. (68 U. S.) 264, 404, 418, §§ 216, 229. U. S.) 25, § 481. See "Appendix C, " herein. Cleary v. Hoobler, 207 111. 97, § 287. Cohn v. United States, 152 U. S. 212, Cleveland v. Cleveland Electric R. § 152. Co., 201 U. S. 529, §§286, 330, Coite v. Society for Savings, 32 Conn. 398. 173, § 51. Cleveland v. Cleveland Electric R. Colby v. Town of Mt. Morris, 100 Co., 3 Ohio Dec. 92, § 337. N. Y. Supp. 362, § 200. Cleveland, C. C. & St. L. Ry. Co. v. Cole v. Greenwich Fire Engine Co., Hamilton, 200 111. 633, § 279. 12 R. I. 202, § 81. Cleveland, C. C. & St. L. Ry. Co. v. Cole Mfg. Co. v. Falls, 90 Tenn. 466, Illinois, 177 U. S. 514, §§ 375, 378, § 233. 3S4. Colegrave Water Supply Co. v. City Cleveland, City of, v. Cleveland Ry. of Hollingwood (Cal.), 90 Pac. Co., 194 U. S. 517, §§ 398, 412. 1053, §§ 139, 380. Cleveland Electric Ry. Co. v. City Colliers v. Bingham, 22 Ohio Cir. of Cleveland, 135 Fed. 368, § 286. Ct. R. 533, § 229. Cleveland Electric Ry. Co. v. Cleve- Collins v. Henderson, 11 Bush land, 204 U. S. 116, §§ 23, 254, 343. (74 Ky.), 74, § 262. Cleveland Trust Co. v. Lander, 62 Collins v. New Hampshire, 171 U. S. Ohio St. 266, § 440. 30, § 238. TABLE OF CASES CITED xlix Collins Coal Co. v. Hadley (Ind. App.. 1906), 78 N. E. 353, § 282. Colonial City Traction Co. v. King- ston City R. Co., 153 N. Y. 540, § 379. Colorado Canal Co. v. McFarland & Southwell (Tex. Civ. App.), 94 S. W. 400, §§ 63, 88. Colton V. City of Montpelier, 71 Vt. 413, § 453. Columbia & G. R. Co. v. Gibbs, 24 S. C. 60, § 233. Columbia, District of, v. Washington Market Co., 108 U. S. 243, § 216. Columbia Water Power Co. v. Camp- bell, 75 S. C. 34, § 412. Columbia Water Power Co. v. Nun- amaker, 73 S. C. 550, § 300. Columbus Southern Railway Co. v. Wright, 151 U. S. 470, § 448. Columbus Railway Co. v. Wright, 89 Ga. 574, § 421. Colwell V. May's Landing Water Power Co., 19 N. J. Eq. 245, § 233. Commercial Bank v. Eastern Bkg. Co., 51 Neb. 766, § 288. Commercial Bell Teleph. Co. v. War- wick, 185 Pa. 623, § 362. Commercial Electric Light & P. Co. V. Judson, 21 Wash. 49, §§424, 435. Commercial Electric Light cvy, 25 Neb. 457, § 234. Ixxxii TABLE OF CASES CITED Hunger v. Board of State Medical Examiners, 90 Md. 659, § 248. Munn V. Illinois, 94 U. S. 113 (see Granger Cases), §§ 113, 297, 3G5, 391, 400, 404. Murphy v. Board of Chosen Free- holders, 57 N. J. L. 245, §§ 55, 58. Murphy v. Lindell Ry. Co. (Mo.), 54 S. W. 442, § 350. Murphy v. Utter, 186 U. S. 95. §§ 130, 165. Murphy v. Wheatley, 102 Md. 501, § 491. Murray v. Hobson, 10 Colo. 66, §§ 236, 238. Murray v. Minefee, 20 Ark. 561, §§ 144, 178. Murray v. State, 21 Tex. App. 620, §§ 238, 248, 249. Murray Hill Land Co. v. Milwaukee Light, Heat & Traction Co., 110 Wis. 555, § 243. Murray's Lessee et al. v. Hoboken Land & Improvement Co., 18 How. (59 U. S.) 272, § 297. Muskogee Nat. Teleg. Co. v. Hall, 118 Fed. 382, §§ 130, 391. Mutual Fire Ins. Co. v. Hammond (Ky.), 51 S. W. 151, § 352, 354. Mutual Union Teleg. Co. v. Chicago, 16 Fed. 309, § 131. Myers v. Moran, 99 N. Y. Supp. 269, §326. N. Naglee v. Alexandria & F. R. Co., 83 Va. 707, § 464. Napa V. Howland, 87 Cal. 84, § 89. Napier v. Foster, 80 Ala. 379, § 239. Nashville, C. & St. L. Ry. v. Ala- bama, 128 U. S. 96, §§ 369, 377, 382. Nashville, C. & St. L. R. Co. v. Ed- wards, 91 Ga. 24, § 464. Nashville, City of, v. Ward, 16 Lea (84 Tenn.), 27, § 11. Nassau Elec. R. Co., In re, 40 N. Y. Supp. 334, § 183. Nassau Gas Light Co. v. City of Brooklyn, 25 Hun (N. Y.), 567, §84. National Bank v. Banck, 2 Abb. (U. S.) 232, § 67. National Bank v. Commonwealth, 9 Wall. (76 U. S.) 353, §§ 389, 439. National Bank v. Kimball, 103 U. S. 732, § 439. National Bank v. Williams, 38 Fla. 305, § 270. National Bank of New York v. Merchants' National Bank of West Virginia, 4 Thomp. & Cook (N. Y.), 196, § 67. National Bank of the Republic v. St. Joseph (C. C), 51 Fed. 216, §§ 249, 251. National Cotton Oil Co. v. Texas, 197 U.S. 115, § 280. National Foundry & Pipe Works v. Oconto City Water Supply Co., 105 Wis. 48, § 478. National Live Stock Commission Co. v. Taliaferro (Okla., 1908), 93 Pac. 983, § 269. National Mut. B. & L. Assn. v. Brahan, 193 U. S. 635, §§ 306, 353. Neagle, In re, 135 U. S. 1, § 416. Neal v. Delaware, 103 U. S. 370, § 298. Nebraska Teleg. Co. v. Hall County (Neb.), 106 N. W. 471, § 448. Nebraska Teleg. Co. v. State, 55 Neb. 627, § 171. Nebraska Teleph. Co. v. City of Fre- mont (Neb.), 99 N. W. 811, §§ 485, 486. Nebraska Teleph. Co. v. Western In- dependent Long Distance Teleph. Co., 68 Neb. 772, § 140. Nebraska ex rel. v. The Fremont, etc., Ry. Co., 22 Neb. 313, § 416. Neely v. State, 4 Lea (72 Tenn.), 316, § 20. Nelson v. Gorer, .34 Ala. 565, § 271. TABLE OF CASES CITED Ixxxiii Nelson v. Heywood County, 87 Tenn 781, § 305. Nelson v. Northern Pacific Ry. Co., 188 U. S. 108, § 129. Nephi Plaster & Mfg. Co. v. Juab County (Utah), 93 Pac. 53, §§ 205, 240. Nesmith v. Sheldon, 7 How. (48 U.S.) 812, §§272, 276. Nevada School Dist. v Shoecraft, 88 Cal. 372, § 215. New Albany Water Works v. Louis- ville Banking Co., 122 ted. 770, §470. Newark v. Mount Pleasant Cemetery Co., 58 N. J. L. 168, § 245. Newburyport Water Co. v. Newbury- port, 193 U. S. 5G1, § 177. Newcastle, Town of, v. Lake Erie & W.R. Co., 155 Ind. 18, § 345. New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537, §215. New England Engineering Co. v. Oakwood St. Rd. Co. (C. C), 75 Fed. 162, § 235. New England Teleph. & Teleg. Co. v. Boston Terminal Co., 182 Mass. 397, § 33. New Hampshire Savings Bank v. Richey, 121 Fed. 956, § 469. New Haven Steam Sawmill Co. v. City of New Haven, 72 Conn. 276, § 381. New Jersey v. Yard, 95 U. S. 104, §§ 325, 328, 402, 450. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. (47 U. S.) 344, § 79. New Jersey Zinc Co. v. Sussex County Board of Equalization, 70 N. J. L. 186, § 182. Newland v. Marsh, 19 111. 376, § 233. New Memphis Cas Light Co. v. City of Memphis, 72 Fed. 952, §§ 390, 406, 409. New Mexico v. United States Trust Co., 172 U. S. 171, § 454. New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, §§ 241, 311, 313. New Orleans v. Houston, 119 U. S. 265, § 311. New Orleans v. Morris, 105 U. S. 600, § 326. New Orleans v. New Orleans Water Works Co., 142 U. S. 79, §§ 297, 298, 303, 305, 310, 315. New Orleans, C. & L. R. Co. v. New Orleans, 157 U. S. 219, §337. New Orleans City & L. R. Co. v. New Orleans, 143 U. S. 192, §§ 359, 423, 455. New Orleans City Gas Light Co. v. Board of Assessors, 31 La. Ann. 476, § 423. New Orleans, City of, v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, § 356. New Orleans Debenture Redemption Co. v. Louisiana, 180 U. S. 320, §§ 11, 478, 486. New Orleans, etc , Co. v. New Or- leans, 164 U. S. 471, § 313. New Orleans Gas Light Co. v. Drain- age Commissioners, 197 U. S. 453, § 295. New Orleans Gas Light Co. v. Drain- age Commission, 111 La. 838, §315. New Orleans Gas Light Co. v. Hart, 40 La. Ann. 474, § 366. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, §§ 1(5, 82, 120, 131, 149, 185, 311, 313, 335, 388, 412. New Orleans, J. & G. N. R. Co. v. Harris, 5 Cushm. (27 Miss.) 517, §311. New Orleans, Mobile «&: T. R. Co. v. Southern & Atl. Teleg. Co., 53 Atl. 211, § 241. New Orleans, Spanish Fort & Lake Rd. Co. V. Dclamorc, 114 U. S. 501, §§ 11, 14, 471, 475, 478. Ixxxiv TABLE OF CASES CITED New Orleans Water Works Co. v. Louisiana, 185 U. S. 336, §§ 486, 488. New Orleans Water Works Co. v. Louisiana Sugar Ref. Co., 125 U. S. 18, §§ 279, 306. New Orleans Water Works Co. v. New Orleans, 164 U. S. 471, § 185. New Orleans Water Works v. Rivers, 115 U. S. 675, §§ 161, 313. Newport v. Masonic Temple Assoc, 20 Ky. L. Rep. 266, § 215. Newport v. Taylor, 16 B. Mon. (55 Ky.) 699, § 396. Newport Ilium. Co. v. Tax Asses- sors, Newport, 19 R. I. 632, § 356. Newport News & O. P. Co. v. City of Newport News (Va.), 4 Va. Super. Ct. Rep. 31, § 359. Newport News & O. P. Ry. & Elec- tric Co. V. Lake (Va.), 54, § 111. New Union Teleph. Co. v. Marsh, 89 N. Y. Supp. 79, § 198. New York v. Interurban Street Rail- way Co., 86 N. Y. Supp. 673, § 387. New York v. Miller, 202 U. S. 584, §420. New York v. Miln, 11 Pet. (36 U. S.) 102, §§ 149, 295, 366. New York v. Roberts, 171 U. S. 658, §§ 352,355,425,426. New York v. Squires, 145 U. S. 175, §§ 294, 335, 366. New York v. Starin, 106 N. Y. 1, §26. New York & L. I. R. Co. v. O'Brien, 106 N. Y. Supp. 909, § 111. New York & L. I. R. Co. v. O'Breen, 100 N. Y. Supp. 316, § 379. New York & N. E. R. Co. v. Bristol, 151 U. S. 556, §§ 276, 294, 295, 319, 321, 331, 366, 381. New York & Oswego Mid. R. Co. v. Van Home, 57 N. Y. 473, § 233. New York Cement Co. v. Consoli- dated Rosendale Cement Co., 76 N. Y. Supp. 469, § 72. New York Central & Hudson River Rd. Co., In re, v. Metropolitan Gas Light Co., 63 N. Y. 326, § 82. New York Central & Hudson River Rd. Co. v. Miller, 202 U. S. 584, §§ 272, 277, 425, 440, 446. New York City v. Consolidated Gas Co. See "Appendix C," herein. New York City v. Harlem Bridge, M. & F. Ry. Co., 91 Supp. 557, §337. New York City v. Interurban St. Ry. Co., 86 N. Y. Supp. 673, § 167. New York Dist. Ry. Co., In re, 107 N. Y. 42, § 111. New York, etc., Rd. Co. v. Winans, 17 How. (58 U. S.) 30, § 464. New York, Lackawanna & Western Ry. Co. V. Roll, 66 N. Y. Supp. 748, §§ 7, 14. New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431, §§ 17, 420, 426. New York, New Haven & Hartford Ry. Co. V. Interstate Commerce Commission, 200 U. S. 361, §§ 402, 403. New York, New Haven & Hartford Ry. Co. V. New York, 165 U. S. 628, §§ 366, 369, 385. New York, New Haven & Hartford Ry. Co. V. Wheeler (Conn.), 45 Atl. 14, § 381. New York Sanitary Utihzation Co. V. Department of Public Health of N. Y., 67 N. Y. Supp. 324, § 335. New York Steam Co. v. Foundation Co., 108 N. Y. Supp. 84, § 345. Niagara County v. People, 7 Hill (N. Y.), 504, § 51. Niagara, L. & O. Power Co., In re, 97 N. Y. Supp. 853, § 76. Nicholson v. Thompson, 5 Rob. (La.) 367, § 204. Nicklaus v. Conkhng, 118 Ind. 289, §287. Nicol V. Ames, 173 U. S. 509, § 231. TABLE OF CASES CITED Ixxxv Nicolet National Bank v. City Bank, 38 Minn. 85, § 269. Noble V. MitcheU, 100 Ala. 519, § 233. Noblesville, City of, v. Noblesville Gas & Improvement Co., 157 Iml. 162, § 392. Noecker v. Noecker, 66 Kan. 347, § 236. Noerr v. Schmidt, 151 Ind. 579, § 265. Norfolk V. Pennsylvania, 136 U. S. 114, §§ 67, 359. Norfolk & Western Ry. Co. v. Board of Public Works, 97 Va. 23, § 440. Norfolk & Western Ry. Co. v. Lynch- burg Cotton Mill Co., 106 Va. 376, § 255. Norfolk & Western Ry. Co. v. Pen- dleton, 156 U. S. 667, §§ 412, 479, 480, 481. Norfolk & Western Ry. Co. v. Schein, 106 Va. 382, § 255. Norman v. Boaz, 85 Ky. 557, § 234. Norris v. Boston. See Passenger Cases. Norris v. Farmers' & Teamsters' Co., 6 Cal. 590, §§ 15, 80. Norris v. State, 25 Ohio St. 217, § 64. North Baltimore Pass. Ry. Co. v. North Ave. Ry. Co., 75 Md. 233, §257. North Chicago Electric Ry. Co. v. Penser, 190 111. 67, § 111. Northern Bank v. Stone (C. C), 88 Fed. 413, § 284. Northern Bank of Kentucky v. Stone, 88 Fed. 413, § 330. Northern Central Ry. Co. v. Holland, 117 Pa. 613, §317. Northern Central Ry. Co. v. Mary- land, 187 U. S. 258, §§317, 483, 484. Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583, § 138. Northern Pacific Ry. Co. v. Ely, 197 U. S. 1, § 129. Northern Pacific Ry. Co. v. Roberts, 42 Fed. 734, § 102. Northern Pacific Ry. Co. v. Sanders, 47 Fed. 604, § 262. Northern Pacific Ry. Co. v. Soder- berg, 188 U. S. 526, §§ 129, 256. Northern Pacific Ry. Co. v. Town- send, 190 U. S. 267, § 129. Northern Pacific Ry. Co. v. Traill Ry. Co., 115 U. S. 600, § 322. Northern Ry. Co. v. Snohomish County (W^ash., 1908), 93 Pac. 924, § 262. North Hudson Co. Ry. Co. v. May, 48 N. J. L. 401, § 51. North Jersey St. Ry. Co. v. Jersey City, 73 N. J. L. 481, 63 Atl. 833, §§ 356, 424. North Missouri Ry. Co. v. Maguire, 20 Wall. (87 U. S.) 46, §§ 412, 455. North Point Consol. Irrig. Co. v. Utah & S. S. Canal Co., 16 Utah, 246, § 42. North River Steamboat Co. v. Liv- ingston, 3 Cow. (N. Y.) 713, § 209. Northumberland County v. Zimmer- man, 75 Pa. 26, § 366. Northumberland, Duke of, v. Hough- ton, L. R. 5 Ex. 127, § 10. Northwestern Fertilizer Co. v. Hyde Park, Fed. Cas. No. 10,336, § 66. Northwestern Improvement & B. Co. V. O'Brien, 75 Minn. 335, § 90. Northwestern Mut. Life Ins. Co. v. Lewis & Clarke County, 28 Mont. 484, §§ 13, 436. Northwestern Teleph. Exchange Co. V. City of St. Charles (C. C), 154 P^ed. 386, § 187. Northwestern Teleph. Exchange Co. V. Minneapolis, 81 Minn. 140, §§ 33, 238, 314. Northwestern Warehouse Co. v. Oregon R. & Nav. Co., 32 Wash. 218, § 227. Norton v. Bradham, 21 S. C. 375, §§ 205, 208. Norton v. City of St. Louis, 97 Mo. 537, § 387. Norton v. Peck, 3 Wis. 714, § 56. Ixxxvi TABLE OF CASES CITED Norton v. Shelby County, 118 U. S. 425, §§ 204, 272, 274, 288. Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, §§1, 22, 2G, 133. Nye V. Storer, 168 Mass. 53, § 472. O. Oakland v. Oakland Water Front Co., 118 Cal. 160, § 238. Oakland Paving Co. v. Barstow, 79 Cal. 45, § 305. Oakland R. Co. v. Oakland, Brook- lyn & Fruit Vale Rd. Co., 45 Cal. 365, § 26. Oak Ridge Coal Co. v. Rogers, 108 Pa. 147, §§ 52, 53. Gates V. National Bank, 100 U. S. 239, §§ 2.38, 2.39. O'Brien v. Krenz, 36 Minn. 136, §234. Ochiltree v. Railroad Co., 21 Wall. (88 U. S.) 249, § 334. O'Connor v. Gertgens, 85 Minn. 481, § 262. Odd Fellows Cemetery Assn. v. San Francisco, 140 Cal. 226, § 136. O'Donnell v. City of Syracuse, 184 N. Y. 1, § 56. O'Donovan, Ex parte, 24 Fla. 281, §265. Offield V. New York, N. H. & H. Ry. Co., 203 U. S. 372, § 332. Ogden V. Bear Lake & River Water Works Irrig. Co., 16 Utah, 440, §§ 55, 343. Ogden V. Saunders, 12 Wheat. (25 U. S.) 7.38, § 205. O'PIara v. National Biscuit Co., 69 N. J. L. 198, §§ 244, 247. Ohio v. Thomas, 173 U. S. 276, §416. Ohio & Miss. Rd. Co. v. Wheeler, 1 Black (66 U. S.), 286, §§ 51, 67, 351. Ohio Life Ins. & Trust Co. v. Debolt, 16 How. (57 U. S.) 416, §§ 254, 306, 412, 455. Ohio Life Ins. Co. v. Detroit, 16 How. (57 U. S.) 416, § 453. Ohio Oil Co. V. Indiana (No. 1), 177 U. S. 190, § 388. Ohio Postal Teleg. Cable Co. v. Board of Commissioners, 137 Fed. 947, §§131, 379. Ohio R. V. Weber, 96 111. 443, § 425. Ohio State v. Toledo Ry. & Terminal Co., 28 Ohio Cir. Ct. R. 321, § 63. Olcott V. Supervisors, 16 Wall. (83 U. S.) 678, §§ 63, 98, 107, 306. Old Colony Trust Co. v. Atlanta, 83 Fed. 39, § .390. Old Colony Trust Co. v. City of Wichita, 123 Fed. 762, §§ 311, 313. Old Dominion Bldg. & Loan Assoc. v. Sohn, 54 W. Va. 101, §§ 238, 2.39. Old Dominion Steamship Co. v. The Hamilton, 207 U. S. 398, § 137. Olden v. Hallet, 5 N. J. L. 466, § 231. Oleson V. Wilson, 20 Mont. 544, § 269. Oliff V. City of Shreveport, 52 La. Ann. 1203, § 107. Olin V. Denver & Rio Grande R. Co., 25 Colo. 177, § 269. Oliphant Sewage Drainage Co. v. Borough of Oliphant (Pa. Com. PL), 5 Lack. Leg. N. 346, § 486. Oliver v. Liverpool & London Life & Fire Ins. Co., 100 Mass. 521, § 52, 357. Oliver v. Worcester, 102 Mass. 489, §62. Omaha & G. Smelting & Refining Co. V. Tabor, 13 Colo. 41, § 269, Omaha Horse R. Co. v. Cable Tram- way Co. (C. C), 30 Fed. 324, §§ 23, 2.54. Omaha Real Estate & T. Co. v. Kragscon, 47 Neb. 592, § 282. Omaha Water Co. v. City of Omaha, 147 Fed. 1, §§319,394. O'Neill V. Hestonville, M. D. F. Pass. Ry. Co., 9 Pa. Dist. R. 2, § 467. TABLE OF CASES CITED Ixxxvii O'Neill V. Insurance Co., 166 Pa. 72, §163. O'Neill V. Vermont, 144 U. S. 323, §370. O'Phinney v. Sheppard & Enoch Pratt Hospital, 88 Md. 633, §§ 307, 317. Opinion of Justices, 150 Mass. 592, § 390. Opinion of Justices, In re (N. H.), 68 Atl. 873, § 238. Opinions of the Justices, 102 Me. 52, § 423. Oregon & California Rd. Co. v. Uni- ted States (No. 3), 190 U. S. 186, §129. Oregon Railroad Commrs. v. Oregon R. & Nav. Co., 17 Ore. 65, §§ 401, 406. Oregon Railway & Navigation Co. v. Oregonian Ry. Co., 130 U. S. 1, §§ 23, 132, 254, 465, 466, 467, 473. Orient Ins. Co. v. Daggs, 172 U. S. 557, §§ 67, 296. Orr V. Quimby, 54 N. H. 590, § 231. Ortiz V. Hanson (Colo.), 83 Pac. 964, §63. Orvil Township v. Woodcliff, 61 N. J. L. 107, § 249. Osborn v. United States Bank, 9 Wheat. (22 U. S.) 738, §§ 126, 205, 416, 439. Osborne v. Florida, 164 U. S. 650, § 358. Osborne v. Mobile, 16 Wall. (S3 U. S.) 479, §§ 358, 404. Osborne v. San Diego Land & Town Co., 178 U. S. 22, § 393. Osburn v. Staley, 5 W. Va. 85, § 231. Oshkosh Water Works Co. v. Osh- kosh, 187U. S. 437, §301. Otis V. Parker, 187 U. S. 606, § 300. Otis Co. V. Ludlow Mfg. Co., 201 U. S. 140, § 298. Otis Co. V. Ludlow Mfg. Co., 186 Mass. 89, § 298. Otis Co. V. Warr, 8 Gray (Mass.), 509, §65. Otoe County v. Baldwin, HI U. S. 1, §343. Ouachita Packet Co. v. Aiken, 121 U. S. 444, § 17. Overstreet v. Citizens' Bank, 12 Okla. 383, § 481. Owens V. Yazoo & Miss. Valley R. Co., 74 Miss. 821, § 282. Owensboro v. Owensboro Water Works Co., 191 U. S. 358, §§ 393, 395. Owensboro National Bank v. Owens- boro, 173 U. S. 664, § 439. Owensboro Water Works Co. v. City of Owensboro, 24 Ky. L. Rep. 2530, § 434. Owings V. Speed, 5 Wheat. (18 U. S.) 420, § 301. Oxan Lumber Co. v. Union County National Bank of Liberty, 207 U. S. 251, §§ 137, 300, 365. Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, § 356. Pacific Express Co. v. Cornell (Neb.), 81 N. W. 377, § 401. Pacific Express Co. v. Seibert, 142 U. S. 339, §§ 79, 359, 421. Pacific Express Co. v. Seibert (C. C), 44 Fed. 310, § 234. Pacific Nat. Bank v. Pierce County, 20 Wash. 675, § 421. Pacific Postal Teleg. Co. v. Western Union Teleg. Co., 50 Fed. 493, §4G9. Pacific Railway v. Maguire, 20 Wall. (87 U. S.) 36, §§ 305, 454. Packet Co. v. Keokuk, 95 U. S. 80, § 234. Packett V. Ducktown Sulphur C. & I. Co., 97 Tenn. 690, § 270. Paddlcford v. Savannah, 14 Ga. 438, § 205. Page V. Allen, 58 Pa. 338, § 289. Page V. Young, 106 Mass. 313, § 221. Paige V. Schenectady R. Co., 178 N. Y. 102, §§ 14, 33, 97, 111. Ixxxviii TABLE OF CASES CITED Palatine Ins. Co., Ltd., v. Northern Pac. Ry. Co. (Mont., 1906), 85 Pac. 1032, § 282. Palatine, Town of, v. Canajoharie Water Supply Co., 86 N. Y. Supp. 412, § 200. Palestine Water & P. Co. v. Palestine, 91 Tex. 540, § 490. Palmyra Township, Inhabitants of, v. Pennsylvania R. Co. (N. J. Ch.), 50 Atl. 369, § 315. Parfitt V. Ferguson, 159 N. Y. Ill, §245. Park V. Candler, 113 Ga. 647, § 231. Park Bank v. Remsen, 158 U. S. 337, §§ 252, 280. Parker v. Moore, 115 Fed. 799, §272. Parker v. Otis, 130 Cal. 322, § 300. Parker & Washington Co. v. Kansas City (Kan., 1906), 85 Pac. 781, § 282. Parks V. State ex rel. Owens, 100 Ala. 634, § 21. Park Tax Cases (Mayor & City of Baltimore v. Baltimore, Catons- ville & Ellicott's Mills Pass. R. Co.), 84 Md. 1, §§ 111, 433. Passenger Cases, 7 How. (48 U. S.) 283, §§ 205, 370. Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, §§ 373, 404. Patapsco Guano Co. v. North Caro- lina, 171 U. S. 345, § 373. Paterson P. & Gas Electric Co. v. State Board of Assessors (N. J. Sup.), 54 Atl. 246, § 435. Patterson v. Bark Eudora, 190 U. S. 169, § 244. Patterson v. Kentucky, 97 U. S. 501, § 366. Patterson v. Marine Nat. Bank, 130 Pa. 419, § 69. Patterson v. Winn, 11 Wheat. (24 U. S.) 380, § 265. Patterson v. WoUman, 5 N. Dak. 608, §§ 4, 15, 22, 24, 144, 194. Paul V. Virginia, 8 Wall. (75 U. S.) 168, §§ 67, 87, 291, 357. Payne v. Baldwin, 3 Smedes & M. (11 Miss.) 661, § 311. Payne v. Goldbach, 14 Ind. App. 100, §38. Paynter v. Miller, 25 Ky. L. Rep. 2222, § 466. Peabody & Co. v. Pratt, 121 Fed. 772, §421. Peacock & Co. v. Pratt, 121 Fed. 772, §456. Pearsall v. Great Northern R. Co., 161 U. S. 646, §§ 23, 38, 167, 254, 308,311,327,334,458. Pecot V. Police Jury, 41 La. Ann. 707, § 215. Peifly V. Mountain Water Supply Co., 214 Pa. 340, § 63. Peik V. Chicago & Northwestern Ry. Co., 94 U. S. 164 (see Granger Cases), §§ 167, 381, 391, 400, 404, 412. Peirce v. Van Dusen, 78 Fed. 693, § 369. Pelham, Town of, v. The B. Y. Woolsey, 14 Fed. 418, § 17. Pell's Estate, Matter of, 171 N. Y. 48, § 298. Pelzer v. Campbell, 15 S. Car. 581, §233. Pembina, C. S. M. & M. Co. v. Penn- sylvania, 125 U. S. 181, §§ 50, 66, 67, 352. Pennoyer v. McConnaughy, 140 U. S. 1, §§ 262, 416. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U. S.) 421, §128. Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U. S.) 518, §128. Pennsylvania Co. v. Dunlap, 112 Ind. 93, § 283. Pennsylvania Coal Co. v. Delaware & Hudson Canal Co., 3 Abb. Dec. (N. Y. Ct. App.) 704, §17. T.-LBLE OF CASES CITED Ixxxix Pennsylvania College Cases, 13 Wall. (80 U. S.) 190, § 331. Pennsylvania Ry. Co. v. Bowers, 124 Pa. 183, §§ 25, 311. Pennsylvania Ry. Co. v. Canal Com- missioners, 21 Pa. 9, §§ 23, 254. Pennsylvania Ry. Co. v. Duncan, HI Pa. 352, § 311. Pennsylvania Ry. Co. v. Hughes, 191 U. S. 477, §§ 369, 386. Pennsylvania Ry. Co. v. Knight, 192 U. S. 21, § 427. Pennsylvania Ry. Co. v. Miller, 132 U. S. 75, § 327. Pennsylvania Ry. Co. v. Philadelphia Belt Line Rd. Co., 10 Pa. Co. Ct. Rep. 625, §§ 3, 14. Pennsylvania Ry. Co. v. Riblet, 66 Pa. 164, § 231. Pennsylvania Ry. Co. v. Sly, 68 Pa. 205, § 17. Pennsylvania Ry. Co. v. St. Louis, A. & T. H. R. R. Co., 118 U. S. 290, §§ 67, 472. Pennsylvania, State of, v. WheeHng & Belmont Bridge Co., 18 How. (59 U. S.) 421, § 152. Penobscot Boom Corp. v. Lamson, 16 Me. 224, §§ 57,61. Penrose v. Chaffraix, 106 La. 250, § 455. Pensacola Gas Co. v. Pensacola, 33 Fla. 322, § 255. Pensacola Teleg. Co. v. Western Union Teleg. Co., 96 U. S. 1, § 120. People. See Attorney General; Com- monwealth; State. People V. Adirondack Ry. Co., 160 N. Y. 225, § 332. People V. Albany & V. R. Co., 37 Barb. (N. Y.) 216, §311. People (Bolton) v. Albertson, 55 N. Y. 50, § 230. People v. American Bell Teleph. Co., 117N. Y. 241, §425. People V. Angle, 109 N. Y. 564, § 224. People V. Assessors of Watertown, 1 Hill (N. Y.), 616, § 51. People V. Atlantic R. Co., 125 N. Y. 513, §§ 489, 491. People V. Barber, 48 Hun (N. Y.), 198, § 21. People (ex rel. Manhattan Ry. Co.) v. Barker, 152 N. Y. 417, §§ 425, 446. People (ex rel. Manhattan Ry. Co.) v. Barker, 146 N. Y. .304, §§ 425, 446. People V. Barker, 48 N. Y. 70, § 424. People V. Barker, 83 N. Y. Supp. 33, §440. People (Dean) v. Board of County Commissioners of Grand County, 6 Colo. 202, § 215. People V. Board of Railroad Commis- sioners, 175 N. Y. 516, § 184. People V. Board of Railroad Commis- sioners, 81 N. Y. Supp. 26, § 167. People (Kimball) v. Boston & Albany R. Co., 70 N. Y. 569, §§ 324, 400. People V. Budd, 117 N. Y. 1, §§ 15, 74, 80, 113, 122, 400. People (Commissioners of) v. Buffalo County, 4 Neb. 150, § 15. People (Edison Elec. L. Co.) v. Campbell, 88 Hun (N. Y.), 527, §77. People (ex rel. Electric Light Co.) v. Campbell, 138 N. Y. 543, § 440. People (Western Elec. Co.) v. Camp- bell, 145 N. Y. 587, § 77. People V. Central Illinois Tel. Co., 192 111. 307, § 33. People V. Central Union Tel. Co., 192 111. 307, § 311. People (Davi.s) v. Chicago, 124 111. 636, § 455. People (Keeney) v. Chicago, 152 111. .546, § 238. People V. Chicago Gas Trust Co., 130 111. 268, § 41. People (Mcllhaney) v. Chicago Live Stock Exchange, 170 111. 556, § 486. People V. Chicago Telephone Co., 220 111. 238, §§ 47, 486, 488. People (Koehersperger) v. Chicago Theological Seminary, 174 111. 177, §§ 412, 455. xc TABLE OF CASES CITED People V. City of Buffalo, 84 N. Y Supp. AM, § 262. People V. Coleman, 4 Cal. 46, § 223. People V. Coleman, 133 N. Y. 279, §52. People (ex rel. Union Trust Co.) v. Coleman, 126 N. Y. 433, § 425. People (ex rel. Edison Illuminating . Co.) V. Commissioner of Taxes, 58 Misc. 249, § 444. People V. Commissioners, 48 Barb. (N. Y.) 157, § 404. People V. Consolidated Teleg. & Elec- trical Subway Co., 96 N. Y. Supp. 609, § 191. People V. Cooper, 139 111. 461, § 11. People (ex rel. Woodhaven Gas Co.) V. Deeham, 153 N. Y. 528, §§ 16, 23, 26, 48, 185, 254. People V. Detroit Citizens' Ry. Co., 116 Mich. 132, § 387. People V. Detroit United Railway (Mich.), 10 Det. L. News, 648, § 387. People V. Duncan, 41 Cal. 507, § 26. People (ex rel. Cairo & St. Louis Ry. Co.) V. Dupuyt, 71 111. 651, § 51. People V. Ellison, 101 N. Y. Supp. 441, 444, §§ 191, 379, 491. People V. Equitable Trust Co., 96 N. Y. 387, §§ 428, 446. People V. Fancher, 50 N. Y. 288, § 205. People V. Flagg, 46 N. Y. 401, § 289. People V. Fleming, 10 Colo. 522, 552 553, §§ 137, 210, 289. People V. Folks, 85 N. Y. Supp. 1100, §81. People (ex rel. Kunze) v. Fort Wayne & Elmwood Ry. Co., 92 Mich. 522, §§ 36, 47. People V. Geneva, W. S. F. & C. L. Traction Co., 98 N. Y. Supp. 719, §§ 337, 387. People V. Gies, 25 Mich. 83, § 216. People V. Gilson, 109 N. Y. 389, § 131. People (ex rel. Union Sulphur Co.) v. Glynn, 125 App. Div. 328, §§ 427, 441. People V. Grand Rapids & W. PI. Road Co., 67 Mich. 5, § 282. People (Byars) v. Grand River Bridge Co. (Colo.), 21 Pac. 898, §486. People V. Grand Trunk Ry. Co., 232 111. 292, §§ 147, 200. People (ex rel. Harlin & Hollings- worth Co.) V. Campbell, 139 N. Y. 68, § 428. People (Standerfer) v. Hamill, 125 111. 600, § 247. People V. Hanrahan, 75 Mich. 611, § 282. People V. Harris, 203 111. 272, § 345. People (ex rel. Iron S. M. Co.) v. Henderson, 12 Colo. 369, § 448. People v. Holtz, 92 111. 426, §§ 1, 10, 21, 122. People V. Home Ins. Co., 92 N. Y. 328, §§ 8, 12, 39. People V. Horn Silver Mining Co., 105 N. Y. 76, §§ 425, 446. People (Mooney) v. Hutchinson, 172 111. 486, §§ 217, 218. People V. Imlay, 20 Barb. (N. Y.) 68, §67. People (ex rel. Howell) v. Jessup, 160 N. Y. 249, § 48. People (Terry) v. Keller, 54 N. Y. Supp. 1011, § 236. People V. Kelly, 76 N. Y. 475, § 127. People (ex rel. Fourteenth St. Realty Co.) V. Kelsey, 97 N. Y. Supp. 197, § 428. People (ex rel. Hubert Apartment Assoc.) V. Kelsey, 96 N. Y. Supp. 745, §§ 428, 446. People ex rel. Metropolitan Security Co.) V. Kelsey, 91 N. Y. Supp. 711, §446. People (ex rel. Spencerian Pen Co.) v. Kelsey, 93 N. Y. Supp. 971, § 466. People (ex rel. Steinway & Sons) v. Kelsey, 96 N. Y. Supp. 42, §§441, 446. People V. King, 110 N. Y. 418, §§ 298, 366. TABLE OF CASES CITED xci People V. Knickerbocker Ice Co., 99 N. Y. 181, § 445. People V. Knight, 174 N. Y. 475, §§ 8, 424, 425, 431. People (ex rel. Digester Co.) v. Knight, 73 N. Y. Supp. 743, § 445. People (ex rel. Lackawanna Transp. Co.) V. Knight, 77 N. Y. Supp. 398, §§ 425, 441, 442, 446. People (ex rel. N. Y. Central & H. R. R. Co.) V. Knight, 173 N. Y. 255, § 446. People (ex rel. Paving Co.) v. Knight, 90 N. Y. Supp. 537, § 445. People (ex rel. Pennsylvania Ry. Co.) V. Knight, 73 N. Y. Supp. 790, §427. People (Neil) v. Knopf, 171 111. 191, §262. People (ex rel. Poughkeepsie Trust Co.) v. Lane, 83 N." Y. Supp. 606, §437. People V. Leonard, 73 Cal. 230, §204. People V. Linda Vista Irrig. Dist., 128 Cal. 477, § 88. People V. Littleton, 96 N. Y. Supp. 444, § 379. People v. Loew, 44 N. Y. Supp. 43, §§ 10, 18, 87. People (Gage) v. Lohnas, 54 Hun (N. Y.), 604, § 324. People V. Michigan Cent. Rd. Co. (Mich., 1906), 108 N. W. 772, §283. People V. Miller, 86 N. Y. Supp. 420, rev'd 179 N. Y. 526, §§ 8, 12, 39, 428, 429, 446. People V. Miller, 83 N. Y. Supp. 184, rev'd 177 N. Y. 51, §§ 8, 12, 39, 425, 437. People (ex rel. Bank of Savings) v. Miller, 177 N. Y. 461, § 446. People (ex rel. Cohn & Co.) v. Miller, 180 N. Y. 16, § 449. People (ex rel. Connecting Terminal R. Co.) v. Miller, 178 N. Y. 194, § 427. People (ex rel. Continental Ins. Co.) V. Miller, 177 N. Y. 515, §§ 436, 438. People (ex rel. Ft. George Realty Co.) V. Miller, 179 N. Y. 49, 526, rev'g 86 N. Y. Supp. 420, §§8, 12, 39, 428, 429, 446. People (ex rel. Hans Rees' Sons) v. Miller, 86 N. Y. Supp.' 193, 90 App. Div. 591, §§ 437, 440, 442, 446, 449. People (ex rel. Hyde & Sons) v. Miller, 85 N. Y. Supp. 522, §449. People (ex rel. Manhattan Silk Co.) v. Miller, 125 App. Div. 296, §§ 428, 449. People (ex rel. Mutual Trust Co.) v. Miller, 177 N. Y. 51, rev'g 83 N. Y. Supp. 185, §§ 8, 12, 39, 425, 437. People (ex rel. Mutual Trust Co. of Westchester County) v. Miller, 83 N. Y. Supp. 184, 185, §§ 8, 12, .39, 437. People (ex rel. New York Central & Hudson River Rd. Co.) v. Miller, 88 N. Y. Supp. 373, § 427. People (ex rel. New York Central & Hudson River Rd. Co.) v. Miller, 85 N. Y. Supp. 998, § 449. People (ex rel. New York Central & Hudson River Rd. Co.) v. Miller, 84 N. Y. Supp. 1088, § 441. People (ex rel. North American Co.) V. Miller, 86 N. Y. Supp. 286, §§ 428, 446. People (ex rel. North American Co.) V. Miller, 90 App. Div. 560, §§ 428, 446. People (ex rel. Provident Sav. Life Ass. Soc.) V. Miller, 179 N. Y. 227, § 436. People (ex rel. Wall & Hanover St. Realty Co.) v. Miller, 181 N. Y. .328, §§ 428, 429. People (ex rel. Brooklyn Rapid Tran- sit Co.) V. Morgan, 57 App. Div. 335, § 446. xcu TABLE OF CASES CITED People (ex rel. Commercial Cable Co.) V. Morgan, 178 N. Y. 433, §§ 425, 441, 446. People (ex rel. Koechl & Co.) v. Morgan, 88 N. Y. Supp. 1066, §446. People (ex rel. Waterman Co.) v. Morgan, 48 App. Div. 395, § 445. People V. Morris, 13 Wend. (N. Y.) 325, §§ 61, 69, 230. People (ex rel. Maybury) v. Mutual Gas Light Co., 38 Mich. 154, §§ 36, 47. People (City of Buffalo) v. New York Cent. & Hudson River R. Co., 156 N. Y. 570, § 282. People (City of Niagara Falls) v. New York Cent. & Hudson River R. Co., 158 N. Y. 410, § 282. People V. New York Cent. R. Co., 34 Barb. (N. Y.) 123, § 231. People V. North River Sugar Refining Co., 3 N. Y. Supp. 401, §§ 11, 51. People V. O'Hair, 128 111. 20, § 11. People V. O'Brien, 111 N. Y. 1 (see "Appendix C," herein), §§ 287, 299, 309, 319, 324, 485. People V. Olsen, 222 111. 117, § 234. People V. Orange County Road Const. Co., 175 N. Y. 84, § 298. People V. People's Gas Light & Coke Co., 205 111. 482, § 245. People (ex rel. Rochester Ry. Co.) v. Pond, 57 N. Y. Supp. 490, §§ 425, 446. People v. Potter, 82 N. Y. Supp. 649, §287. People (ex rel. Jackson) v. Potter, 47 N. Y. 375, § 204. People V. Priest, 77 N. Y. Supp. 382, §§ 9, 33, 424. People (ex rel. Retsof Min. Co.) v. Priest, 77 N. Y. Supp. 382, §§ 9, 33, 424. People (Moloney) v. Pullman's Pal- ace Car Co., 175 111. 125, § 42. People V. Raymond, 18 Colo. 242, § 265. People V. Reardon, 97 N. Y. Supp. 535, §§ 231, 298. People V. Reclamation District No. 551, 117 Cal. 114, § 89. People (Attorney General) v. Reis, 76 Cal. 269, § 238. People (Koerner) v. Ridgley, 21 111. 65, §§ 1, 3, 11, 21, 132. People V. Ritchie, 12 Utah, 180, § 269. People V. Roberts, 92 Cal. 659, § 17. People V. Roberts, 158 N. Y. 162, §26. People (A. J. Johnson Co.) v. Roberts, 159 N. Y. 70, §§441,446. People (ex rel. Badische Anilin & Soda Fabrik) v. Roberts, 152 N. Y. 59, § 428. People (ex rel. Chicago Junction Ry. & Union Stockyards Co.) v. Rob- erts, 154 N. Y. 1, §§ 428, 446. People (ex rel. Jerome Park Villa Site & S. I. Co.) V. Roberts, 58 N. Y. Supp. 254, § 429. People (ex rel. Jewelers Pub. Co.) v. Roberts, 155 N. Y. 1, § 445. People (ex rel. New England Dressed Meat & Wool Co.) v. Roberts, 155 N. Y. 408, § 446. People (ex rel. New York & East River Ferry Co.) v. Roberts, 168 N. Y. 14, § 446. People (ex rel. Parke Davis & Co.) v. Roberts, 91 Hun, 158, § 425. People (ex rel. Union Ferry Co.) v. Roberts, 72 N. Y. Supp. 950, § 442. People (ex rel. United Verdi Copper Co.) V. Roberts, 156 N. Y. 585, §442. People (ex rel. Washington Mills Co.) V. Roberts, 40 N. Y. Supp. 417, §425. People (ex rel. Wiebush & Hilger Co.) V. Roberts, 154 N. Y. 101, § 446. People V. Rose, 207 111. 352, §§ 231, 233, 261. People V. Rosentein-Cohn Cigar Co., 131 Cal. 153, § 491. TABLE OF CASES CITED xcm People V. Saint, etc. See People v. St., etc. People V. San Francisco & Alameda R. Co., 35 Cal. 606, § 15. People V. Sasswitch, 29 Cal. 482, §289. People V. Seneca Lake Grape & Wine Co., 52 Hun (N. Y.), 174, § 489. People (Deneen) v. Simons, 176 111. 165, § 234. People V. Spring Valley, 129 111. 169, §11- People (ex rel. New York Elect. Lines Co.) V. Squire, 107 N. Y. 593, §§ 191, 247, 298. People V. Stanford, 77 Cal. 360, § 474. People (Cantrell) v. St. Louis, A. & T. H. R. Co., 176 111. 512, § 464. People V. Tax Commissioners, 174 N. Y. 441, § 423. People (ex rel. Interborough Rapid Transit Co.) v. Tax Commissioners, 126 App. Div. 610, § 444. People (ex rel. Jamaica Water Supply Co.) V. Tax Commissioners, 128 App. Div. 13, § 450. People (ex rel. Metropolitan St. Ry. Co.) V. Tax Commissioners, 174 N. Y. 417, §§ 7, 9, 11, 12, 417, 423, 425, 446. People V. Thames & Mersey Marine Ins. Co., 176 N. Y. 531, § 436. People V. Trustees of Geneva College, 5 Wend. (N. Y.) 211, § 21. People V. Union Tel. Co., 192 111. 307, §47. People V. Utica Ins. Co., 15 Johns. (N. Y.) 357, §§ 1, 3, 11, 26, 65, 122, 233, 236, 239, 251, 311. People (Weaver) v. Van De Carr, 150 N. Y. 439, § 234. People (ex rel. Tyroler) v. Warden, 157 N. Y. 116, § 298. People (ex rel. Burk(0 v. Wells, 95 N. Y. Supp. 100, § 427. People (ex rel. American C'ontracting 6 D. Co.) v. Wemple, 129 N. Y. 558, §§ 428, 446. People (ex rel. Brush Electric Mfg. Co.) V. Wemple, 129 N. Y. 543, §§ 77, 445. People (ex rel. Edison Electric Illumi- nating Co.) V. Wemple, 129 N. Y. 664, §§ 77, 445. People (ex rel. Edison Electric Light Co.) V. Wemple, 148 N. Y. 690, §§ 442, 446. People (ex rel. Edison Electric Light Co.) V. Wemple, 138 N. Y. 543, § 442. People (ex rel. Roebling's Sons Co.) v. Wemple, 1.38 N. Y. 582, § 445. People (ex rel. Seth Thomas Clock Co.) V. Wemple, 133 N. Y. 323, §§ 425, 446. People (ex rel. Singer Mfg. Co.) v. Wemple, 150 N. Y. 46, §§ 425, 442. People (ex rel. Southern C'otton Oil Co.) V. Wemple, 131 N. Y. 64, §425. People V. West, 106 N. Y. 293, § 231. People V. Williams, 56 Cal. 549, § 108. People (ex rel. Frost) v. Wilson, 3 Hun (10 N. Y. Super. Ct.), 437, §21. People (Livesay) v. Wright, 6 Colo. 92, §§ 205, 207, 217. People's Gas Light & Coke Co. v. Chicago, 194 U. S. 1, §§ 325, 392. People's Gas Light & Coke Co. v. Hale, 94 111. App. 406, §§ 82, 83, 311, 390. People's National Bank v. Marye, 191 U. S. 272, §§ 234, 272, 277. People's Rd. v. Memphis Rd., 10 Wall. (77 U. S.) 38, §§ 2, 14, 15, 17, 97, 132, 185. Peoria & Rock Island Ry. Co. v. Coal Valley Mining Co., 68 111. 489, §§ 63, 97, 105, 464. Pere Marquette R. Co. v. City of Ludington, 10 Det. Leg. N. 231, § 425. Perkins v. Northern Pac. Ry. Co., 155 Fed. 445, §§ 391, 400, 402. xciv TABLE OF CASES CITED Perkinson v. State, 14 Md. 184, § 238. Perkiomen R. Co. v. Collegeville Electric St. R. Co. (Pa. C. P.), 14 Mont. Co. L. R. 13, § 96. Peter v. Kendal, 6 Barn. & Cress. 703, §§ 15, 17. Peters v. Vawter, 10 Mont. 201, § 283. Petersburg, City of, v. Petersburg Aqueduct Co., 102 Va. 654, § 379. Peterson v. Chicago, Rock Island & Pacific Ry. Co., 205 U. S. 364, § 353. Peterson v. Gittings, 107 Iowa, 306, § 253. Peterson & Passaic Gas & Elect. Co. V. State Board of Assessors, 69 N. J. L. 116, § 448. Petit V. Minnesota, 177 U. S. 164, §384. Petri V. F. E. Creehman Lumber Co., 199 U. S. 487, § 282. Pettit V. McClellan, 97 N. Y. Supp. 320, § 192. Philadelphia v. Empire Pass. R. Co., 177 Pa. 382, § 344. Philadelphia v. Fox, 64 Pa. 180, § 55. Philadelphia v. Hestonville, M. & F. Pass. Ry. Co., 203 Pa. 38, § 337. Philadelphia v. Lombard & S. St. Pass. R. Co., 4 Brewst. (Pa.) 14, §379. Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. 444, §§ 337, 225, 243. Philadelphia & M. R. Co.'s Appeal, 187 Pa. 123, § 488. Philadelphia & Southern Steamship Co. V. Pennsylvania, 122 U. S. 326, §§ 404, 420, 465. Philadelphia, City of, v. Field, 58 Pa. 320, § 289. Philadelphia, City of, v. McManes, 175 Pa. 28, §§ 14, 111. Philadelphia, City of, v. Philadelphia Traction Co., 206 Pa. 35, § 433. Philadelphia, City of, v. Postal Teleg. Cable Co., 21 N. Y. Supp. 556, § 360. Philadelphia Co. v. Park, 138 Pa. 346, §83. Philadelphia Fire Assoc, v. New York, 119 U. S. 110, §§ 67, 357. Philadelphia W. & B. Co. v. Bowers, 4 Houst. (Del.) 506, § 311. Philadelphia, W. & B. Ry. Co. v. Maryland, 10 How. (51 U. S.) 376, §482. Phillips V. Bloomington, 1 G. Greene (Iowa), 498, § 24. Phillips V. Bury, 2 Term. Rep. 346, §61. Phillips V. Covington & Cincinnati Bridge Co., 2 Mete. (59 Ky.) 219, §§ 213, 230. Phillips' Academy v. King, 12 Mass. 546, § 51. Phillipsburg Electric Lighting, H. & P. Co. V. Town of Phillipsburg, 66 N. J. L. 505, §§ 33, 314, 485, 488. Phoenix v. Trustees of Columbia Col- lege, 84 N. Y. Supp. 897, § 328. Phoenix Carpet Co. v. State, 118 Ala. 143, §§ 421, 425. Phcsnix Fire & Marine Ins. Co. v. Tennessee, 161 U. S. 174, §§ 479, 482. Picard v. East Tennessee, Virginia & Georgia Rd. Co., 130 U. S. 637, §§ 20, 479. Pickard v. Pullman Southern Car Co., 117U. S. 34, §§404,419. Pickens v. Georgia Rd. Co., 126 Ga. 517, § 464. Pickering Phipps v. London & North- western Ry. Co., 2 Q. B. D. 229, §413. Picking V. State, 26 Md. 503, § 205. Pierce v. Commonwealth, 104 Pa. 150, §§ 56, 99. Pierce v. Emery, 32 N. H. 484, §§8, 11, 12, 21, 38, 313. Pierce v. Van Dusen, 78 Fed. 699, §384. Pikes Peak Power Co. v. City of Colorado Springs, 105 Fed. 1, §33. Pingree v. Dix, Auditor General, 120 Mich. 95, §§ 219, 421. TABLE OF CASES CITED XCV Pingree v. Michigan Central R. Co., 118 Mich. 314, §§ 412, 4S1. Pingree v. Mutual Gas Co., 107 Mich. 156, § 390. Pique (Branch of the State) v. Knoop, 16 How. (57 U. S.) 369, §§ 438, 460. Piscataqua Bridge v. New Hampshu-e Bridge, 7 N. H. 35, § 311. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U. S. 421, §§ 182, 426. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Board of Public Works, West Virginia, 172 U. S. 32, § 430. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Lighthei-ser, 168 Ind. 438, § 66. Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Montgomery, 152 Ind. 1, §§ 245, 291. Pittsburg Coal Co. v. Bates, 156 U. S. 577, § 404. Pittsburg, Ft. W. & C. R. Co. v. Chicago (Cook County Super. Ct.), 27 Chicago Leg. News, 242, § 315. Pittsburg, Wheeling & Ky. Rd. Co. v. Bcnwood Iron Works, 31 W. Va. 710, §63. Planters' & M. Bank v. Andrews, 8 Port. (Ala.) 404, § 65. Piatt V. Lecocq, 150 Fed. 391, §§ 63, 137, 365. Piatt V. Union Pac. R. Co., 99 U. S. 48, § 262. Platte & D. Canal & M. Co. v. Dowell, 17 Colo. 376, §§ 317, 335. Plessy V. Ferguson, 163 U. S. 537, §386. Plum V. Kansas City, 101 Mo. 525, §261. Plum V. Lugar, 49 N. J. L. 557, §§ 282, 283. Plumlcy V. Massachusetts, 155 LT. S. 461, § 229. Plymouth Township v. Chestnut Hill & N. R. Co., 16S P;i. 1X1, § 379. Pocantico Water Works Co. v. Bird, 130 N. Y. 249, § 19. Poindexter v. Greenhow, 114 U. S. 270, § 416. Police Jury v. Bridge Co., 44 La. Ann. 137, §§ 15, 34. Police Jury v. McDonough, 8 La. Ann. 341, § 231. Police Jury of Lafourche v. Robi- chaux, 116 La. 286, § 201. Polk V. Mutual Reserve Fund Life Association of New York, 207 U. S. 310, §§ 317, 3.39. Pomeroy v. Pomeroy, 93 Wis. 262, §269. Pontchartrain R. Co. v. Orleans Levee Dist. Commrs., 49 La. Ann. 570, § 89. Pool V. Simmons, 134 Cal. 621, § 239. Poor V. Iowa Central Ry. Co., 155 Fed. 226, §§ 407, 408. Port Chester St. Ry. Co., In re, 43 App. Div. 536, § 183. Porter v. Illinois Southern Ry. Co., 116 Mo. App. 526, § 464. Porter v. Kingfisher County, 6 Okla. 550, § 2S2. Porter v. Rockford, Rock Island & St. Louis Rd. Co., 76 III. 561, §§11, 26, 51, 423. Porter v. Waterman, 77 Ark. 383, § 283. Portland v. Portland Water Co., 67 Me. 135, § 456. Portland & Willamette Valley Rd. Co. V. Portland; 14 Ore. 188, §§ 33, 233. Port of Mobile v. Louisiana & Nash- ville Rd. Co., 84 Ala. 115, §§ 185, 260, 314, 317, 334. Port of Mobile v. Louisville & Nash- ville R. Co., 84 Ala. 115, §§ 14, 185, 260, 314, 317, 334. Portsmouth Township v. Cranage S. S. Co., 148 Mich. 230, § 440. I'ostal Teleg. Cable Co. v. Adams, 155 U. S. 688, §§ 419, 420, 432. XCVl TABLE OF CASES CITED Postal Teleg. Cable Co. v. Baltimore, 156 U. S. 210, § 131. Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, § 358. Postal Teleg. Cable Co. v. City of Newport, 25 Ky. L. Rep. 635, § 131. Postal Teleg. Cable Co. v. City of Norfolk, 101 Va. 125, § 356. Postal Teleg. Cable Co. v. New Hope, 192 U. S. 55, § 356. Postal Teleg. Cable Co. v. Norfolk & Western R. Co., 88 Va. 920, §§ 238, 241. Postal Teleg. Cable Co. v. Southern R. Co., 89 Fed. 190, §§ 63, 269. Postal Teleg. Cable Co. v. Taylor, 192 U. S. 64, § 356. Postmaster General v. Early, 12 Wheat. (25 U. S.) 136, § 244. Potsdam Elec. Light & Power Co. v. Village of Potsdam, 97 N. Y. Supp. 190, 199, §§ 11, 160. Potter V. Collis, 156 N. Y. 16, § 344. Potter V. State, 92 Ala. 37, § 270. Pottlach Lumber Co. v. Peterson, 12 Idaho, 769, §§ 19, 63. Poughkeepsie Bridge Co., In re, 108 N. Y. 483, § 252. Pound V. Turck, 95 U. S. 459, § 152. Powell V. Brunswick County Super- visors, 88 Va. 707, § 245. Powell V. De Plane, 23 Tex. 66, § 271. Powell V. Pennsylvania, 127 U. S. 678, § 295. Powell V. Spackman, 7 Idaho, 692, § 205. Power V. Choteau* County, 7 Mont. 82, § 236. Powers V. Detroit, Grand Haven & M. R. Co., 201 U. S. 543, §§ 278, 412, 459, 482. Powers V. Slaght, 180 U. S. 173, §129. Powers V. St. Paul, 36 Minn. 87, §287. Prairie Cattle Co. v. Williamson, 5 Okla. 488, § 440. Pratt v. Allen, 13 Conn. 119, § 289. Pratt V. American Bell Teleph. Co., 141 Mass. 225, § 269. Pratt V. Bacon, 10 Pick. (27 Mass.) 123, §§ 51, 53. Pratt V. Bown, 3 Wis. 603, § 311. Pratt V. Munson, 17 Hun (N. Y.), 475, § 425. Prentis v. Atlantic Coast Line et al., 211U. S. 210. See "Appendix C," herein. Presbyterian Soc. v. Auburn & Rochester Rd. Co., 3 Hill (N. Y.), 567, § 99. Presser v. Ilhnois, 116 U. S. 252, §234. Price v. Chicago Title & Trust Co., 182 U. S. 438, § 270. Price V. People, 193 111. 114, § 366. Prigg V. Pennsylvania, 16 Pet. (41 U.S.) 539, §§ 205,216. Prince v. Police Jury of Concordia Parish, 112 La. 257, § 201. Printing, etc.. Registering Co. v. Sampson, L. R. 19 Eq. 462, § 82. Proprietors of Jeffries Neck Pasture V. Ipswich, 153 Mass. 42, § 64. Propst V. Southern Ry. Co., 139 N. Car. 397, § 236. Prospect Park & Coney I. R. Co. v. Coney Island & B. R. Co., 144 N. Y. 152, § 469. Prosser v. County of Wapello, 18 Iowa, 327, §§ 1, 15, 199. Prosser v. Northern Pacific Ry. Co., 152 U. S. 59, § 146. Prout V. Starr, 188 U. S. 537, § 416. Providence Bank v. Billings, 4 Pet. (29 U. S.) 514, §§ 60, 138, 311. Provident Institution v. Massachu- setts, 6 Wall. (73 U. S.) 611, §§ 272,423,424,438. Provident Institution for Savings v. Jersey City, 113 U. S. 506, § 298. Provident Life & Trust Co. v. Mercer County, 170 U. S. 593, § 228. Prudential Ins. Co. v. Hummer, 36 Colo. 208, § 231. Pryor, In re, 55 Kan. 724, § 392. TABLE OF CASES CITED XCVll Pueblo & Arkansas Valley Rd. Co. v. Taylor, 6 Colo. 1, § 100. Pullman Car Co. v. Kraus (Ala.), 40 So. 398, § 109. Pullman Palace Car Co. v. King, 99 Fed. 380, § 109. Pullman Palace Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 587, §481. Pullman State Bank v. Manring, 18 Wash. 250, § 234. Purczell V. Smidt, 21 Iowa, 540, §289. Purdy V. People, 4 Hill (N. Y.), 384, §51. Purnell v. McLane, 98 Md. 589, §§ 2, 16, 132, 185, 191, 344. Pyle V. Brennerman, 122 Fed. 787, §440. Q- Queen v. Hertford College, 3 Q. B. Div. 707, § 216. Queen City Teleph. Co. v. Cincinnati, 27 Ohio Cir. Ct. R. 385, § 179. Quick V. White-Water Township, 7 Ind. 570, § 207. Quincy v. Bull, 106 111. 337, § 47. Quinlan v. Houston & T. C. R. Co., 89 Tex. 356, §§ 247, 284, 348, 349, 350. Quinlan v. Smye, 21 Tex. Civ. App. 156, § 225. R. Rafferty v. Central Traction Co., ] Pa. Adv. R. 419, § 465. Rahn Township v. Tamaqua & L. St. R. Co., 167 Pa. 84, §§111, 379. Rahrer, In re, 140 U. S. 545, § 370. Railroad & Teleph. Cos. v. Board of Equalization (C. C), 85 Fed. 302, § 226. Railroad Cases, 40 La. Ann. 587, 42 La. Ann. 4, 44 La. Ann. 1055, § 423. Railroad Commission. See State Railroad Commission. Railroad Commission v. Kansas City Southern Ry. Co., Ill La. 133, §§ 167, 386. Railroad Commission v. Weld (Tex. Civ. App.), 66 S. W. 122, § 184. Railroad Commission Cases (see Stone V. Farmers' Loan & Tr. Co.), 116 U. S. 307, §§391, 400, 401, 406, 407, 412. Railroad Commission Cases (see Stone V. New Orleans & Northwestern Ry. Co.), 116 U. S. 352, §§ 398, 400. Railroad Commissioners. See Board of. Railroad Commissioners v. Atlantic Coast Line R. Co., 74 S. Car. 80, §375. Railroad Commissioners v. Portland & Oxford Central Rd. Co., 63 Me. 269, § 100. Railroad Companies v. Gaines, 97 U. S. 697, §§421, 454, 479. Railroad Company v. Commissioners, 103 U. S. 1, § 479. Railroad Company v. Ervin, S9 Pa. 71, § 387. Railroad Company v. Fuller, 17 Wall. (84 V. S.) 560, §§ 366, 404. Railroii'i Company v. Georgia, 98 U. S. 359, §§ 317, 331, 479, 481, 484. Railroad Company v. Hamblen, County of, 102 U. S. 273, § 480. Railroad Company v. Hammersley, 104 U. S. 1, § 383. Railroad Company v. Hecht, 95 U. S. 168, § 138." Railroad Company v. Husen, 95 U. S. 465 . (see Hannibal & St. Joseph R. Co. V. Husen), §§ 295, 366, 373, 404. Railroad Company v. Maine, 96 U. S. 499, §§ 458,481,482,484. Railroad Company v. Maryland, 21 Wall. (88 U. S.) 456, § 404. Railroad Company v. McClurc, 10 Wall. (77 U. S.) 511, §§ 279. 305. VU XCviil TABLE OF CASES CITED Railroad Company v. Peniston, 18 Raymond v. Security Trust Co., 89 Wall. (85 U. S.) 5, § 418. N. Y. Supp. 753, § 463. Railway Company v. Philadelphia, Raymond, County Treasurer, v. 101 U. S. 528, §§ 331, 359. Hartford Fire Ins. Co., 196 111. 329, Railroad Company v. Richmond, 96 § 421. U. S. 521, § 345. Reading, City of, v. United Traction Railroad Company v. Tompkins, 176 Co., 202 Pa. 571, § 337. U. S. 167 (see "Appendix C," Reading Rd. Co. v. Pennsylvania, 15 herein), §§ 381, 409, 416. Wall. (82 U. S.) 232, § 17. Railroad Tax Cases (see State Rail- Reagan v. Farmers' Loan & Trust road Tax Cases), 13 Fed. 722, Co., 154 U. S. 362 (see "Appen- § 137. dix C," herein), §§ 171, 173, 234, Ramagnano v. Cook, 85 Ala. 226, 298, 381, 400, 406, 407, 409, 412, § 234. 416. Ramsey v. Hommel, 68 Wis. 12, Reclamation Dist. v. Turner, 104 § 253. Cal. 334, § 108. Ramsey v. Tacoma Land Co., 196 Redlands L. & C. Domestic Water U. S. 360, § 129. Co. V. Redlands, 121 Cal. 312, Randolph v. Larned, 27 N. J. Eq. § 390. 557, §§ 25, 26. Red Rock v. Henry, 106 U. S. 596, Ransome v. Eastern Ry. Co., 1 C. B. § 283. 437, § 413. Reelfoot Lake Levee Dist. v. Daw- Rasin v. Lidgerwood Mfg. Co., 86 son, 97 Tenn. 151, §§ 89, 137, 138, N. Y. Supp. 49, § 253. 150, 164, 226. Rasmusser v. Baker, 7 Wyo. 117, Reeves v. Philadelphia Traction Co., § 216. 152 Pa. 153, § 337. Ratchff v. Wichita Union Stock Reid v. Colorado, 187 U. S. 137, Yards Co., 74 Kan. 1, §§ 110, 289, §§ 231, 291, 372, 373. 298. Reid v. Jones, 187 U. S. 153, § 416. Rathbone v. Mirth, 150 N. Y. 459, Reimers v. Seatco Mfg. Co., 70 Fed. § 2.30. 575, § 355. Ratterman v. Western Union Teleg. Reis v. City of New York, 188 N. Y. Co., 127 U. S. 411, § 404. 58, § 192. Rauen v. Prudential Life Ins. Co. Revere Water Co. v. Town of Win- (lowa), 106 N. W. 198, § 87. throp, 192 Mass. 455, §§ 136, 298. Rawson v. State, 19 Conn. 292, Rex v. Inhabitants of Bucks County, § 264. 12 East, 192, § 15. Ray v. Henderson, 132 Ala. 175, Rex v. Inhabitants of Yorkshire, 2 § 47. East, 342, § 15. Rayburn Water Co. v. Armstrong Rex v. Williams, 1 Burr. 402, § 21. Water Co., 9 Pa. Dist. R. 24, Reynolds v. City of Cleveland, 24 § 4. Ohio Cir. Ct. R. 609, § 379. Ray County v. Bentley, 49 Mo. 236, Rhawn v. Edge Hill Furnace Co., 201 § 56. Pa. 637, § 11. Rayford v. Faulk (Ala., 1908), 45 So. Rhinehart v. Redfield, 179 N. Y. 569, 714, §§ 245, 270. §§ 63, 344. Raymond v. Chicago Traction Co., Rhinehart v. Redfield, 87 N. Y. Supp. 207 U. S. 20, §§ 182, 422. 789, §§ 63, 344. TABLE OF CASES CITED XCIX Rhode Island Hospital Trust Co. v. Tax Assessors of Providence, 25 R. I. 355, § 441. Rhodes v. Iowa, 170 U. S. 412, § 370. Rice V. Detroit, Y. & A. Ry. Co., 122 Mich. 677, § 398. Rice V. Railroad Co., 1 Black (G6 U. S.), 358, §§ 253, 254. Rich V. Flanders, 39 N. H. 304, § 231. Richard v. Lazard, 108 La. 540, § 236. Richards v. Clarksburg, 30 W. ^'a. 491, § 11. Richardson v. Richardson, 38 La. Ann. 641, § 265. Richardson v. Treasure Hill Min. Co., 23 Utah, 366, §§ 20G, 212, 216. Richman v. Consolidated Gas Co. of N. Y., 186 N. Y. 209, §§ 298, 392. Richman v. Consolidated Gas Co. of N. Y., 100 N. Y. Supp. SI, §§ 298, 392. Richmond v. Henries County, 83 Va. 204, §§ 239, 287. Richmond v. Southern Teleph. & Teleg. Co., 42 U. S. 686, § 131. Richmond & Allegheny R. Co. v. R. A. Patterson Tobacco Co., 169 U. S. 311, § 378. Richmond, City of, v. Richmond Natural Gas Co. (Ind., 1907), 79 N. E. 1031, § 392. Richmond, City of, v. Smith, 101 Va. 161, §§ 176, 344, 345. Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. (54 U. S.) 71, §§ 26, 323, 333. Richmond R. & E. Co. v. Brown, 97 Va. 26, §§ 96, 362. Ricker v. American Loan & Trust Co., 140 Mass. 346, § 53. Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, § 56. Rider v. United States, 178 U. S. 250, § 1.^1. Ridley v. Shcrbrook, 3 Coldw. (4.3 Tenn.) 569, § 21. Rieger, Kapner & Altmark, In re, 157 Fed. 609, § 11. Riker v. Lee, 133 N. Y. 519, § 238. Rio Grande W. R. Co. v. Telluride Power Transmission Co., 16 Utah, 125, § 490. Ripley v. Evans, 87 Mich. 217, § 245. Rippstein v. Ilaynes Medina Vallej' Ry. Co. (Tex. Civ. App.), 85 S. W. 314, § 486. Ritchie v. People, 155 111. 98, § 300. Roanoke Gas Co. v. Clarksburg, 30 W. Va. 491, § 51. Roanoke Gas Co. v. Roanoke, 88 Va. 810, § 51. Robbing v. Shelby Co. Taxing Dist., 120 U. S. 489, §§ 366, 404, 419. Roberts v. Northern Pacific R. Co., 158 U. S. 1, §§ 276, 288. Robinson v. Lamb, 129 N. Car. 16, § 194. Robinson v. Lamb, 126 N. Car. 492, §47. Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, § 293. Robinson v. Rippey, 111 Ind. 112, § 282. Robinson v. Schenck, 102 Ind. 307, § 231. Roby V. New York C. & H. R. R. Co., 142 N. Y. 176, § 472. Rocheblave Market Co. v. City of New Orleans (La.), 34 So. 665, §§446, 447. Rochester City v. Rochester, 182 N. Y. 99, 116, §§ 335, 479. Rochester & Charlotte Turnpike Road Co. V. Joel, 58 N. Y. Supp. 346, § 17. Rochester Ry. Co. v. City of Roches- ter, 205 U. S. 236, §§ 20, 138, 335, 338, 412, 479, 481, 482. Rochester Teleph. Co. v. Ross, 125 App. Div. 1, § 187. Rockland Water Co. v. Camden & R. Co., SO Me. 544, §§ 23, 254. Rockwell County v. Kaufman County, 69 Tex. 172, § 287. TABLE OF CASES CITED Roddy V. Brooklyn Heights R. Co., 23 Misc. 373, § 270. Rodenbaugh v. Philadelphia Trac- tion Co., 190 Pa. 358, § 245. Roenberg v. Weeks, 67 Tex. 578, §231. Rogers Park Water Co. v. Fergus, 180 U. S. 624, § 185. Rohn V. Harris, 130 111. 525, § 17. Rosenbloom v. State, 64 Neb. 342, §231. Rosin V. Lidgerwood Mfg. Co., 86 N. Y. Supp. 49, §§233, 244. Ross V. Chicago, M. & St. P. Ry. Co., 8 Fed. 544, § 51. Ross V. Whiteman, 6 Cal. 361, § 289. Rothschild v. Knight, 184 U. S. 334, §292. Rowan v. Runnels, 5 How. (46 U. S.) 134, § 225. Roxbury Lodge v. Hocking, 60 N. J. L. 439, § 287. Royall, Ex parte, 117 U. S. 241, §416. Royer, Estate of Matter of, 123 Cal. 614, § 73. Ruckert v. Grand Ave. Ry. Co., 163 Mo. 260, § 241. Ruggles V. lUinois, 108 U. S. 526, §§ 167, 236, 262, 381, 391, 400, 412, 455. Ruggles V. People, 91 111. 256, § 311. Rumford v. Wood, 13 Mass. 193, § 56. Rundle v. Delaware & R. Canal Co., 14 How. (55 U.S.) 80, §311. Runnels v. State (Tex. Civ. App., 1903), 77 S. W. 458, § 270. Runyan v. Coster, 14 Pet. (39 U. S.) 122, § 351. Runyan v. Lessee of Coster, 14 Pet. (.39 U. S.) 122, § 51. Rushville v. Rushville Natural Gas Co., 132 Ind. 575, §§ 83, 244, 392. Rutland R, Co., In re (Vt., 1906), 64 Atl. 233, § 382. Ryalls V. Mechanics' Mills, 150 Mass. 190, §§ 253, 269. Ryan v. Carter, 93 U. S. 78, §§ 250, 265. S. Sacramento v. The New World, 4 Cal. 41, § 17. Saddle River Township v. Garfield Water Co. (N. J. Ch.), 32 Atl. 978, §379. Sage v. New York, 154 N. Y. 61, §120. Saguache County v. Decker, 10 Colo. 149, § 282. Saint. See St. Salisbury, In re, 44 N. Y. Supp. 291, § 239. Salt Co. V. East Saginaw, 13 Wall. (80 U. S.) 373, § 334. Salt Lake County v. State Board of Equalization, 18 Utah, 172, § 440. Salt River Valley Canal Co. v. Nell- sen. (Ariz.), 85 Pac. 117, § 393. Salvage v. St. Louis & S. F. Ry. Co., 135 Mo. 163, § 372. Salzenstein v. Mavis, 91 111. 391, §372. Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, § 90. Sammons v. Kearney Power & Irriga- tion Co. (Neb.), 110 N. W. 308, §88. Sams V. Sams, 85 Ky. 396, §§ 238, 2.39. Samuelson v. State, 116 Tenn. 470, §245. San Antonio v. Mehaffey, 96 U. S. 312, § 245. San Antonio Traction Co. v. Altgelt, 200 U. S. 304, §§ 286, 330, 479, 481. Sanders v. Bridges, 67 Tex. 93, § 268. Sanders v. Southern Elec. Ry. Co., 147 Mo. 411, § 387. Sanders v. St. Louis & New Orleans Anchor Line, 97 Mo. 26, § 222. Sanderson v. Commissioners, 3 Pa. Com. PI. 1, § 82. Sandford v. New York, 15 How. Pr. (N. Y.) 172, § 51. TABLE OF CASES CITED CI Sandham v. Nye, 30 N. Y. Supp. 552, §§ 8, 12, 35. San Diego Flume Co. v. Southern, 90 Fed. 164, §§ 88, 393. San Diego Land & Town Co. v. Jas- per, 189 U. S. 439 (see "Appen- dix C," herein), § 88. San Diego Land & Town Co. v. Na- tional City, 174 U. S. 739 (see "Appendix C," herein), §§ 393, 406, 409. Sands v. Manistee River Imp. Co., 123 U. S. 288, §§ 17, 224, 298. Sanford v. City of Tucson (Ariz., 1903), 71 Pac. 903, § 130. San Francisco & S. M. Electric Ry. Co. V. Scott, 142 Cal. 222, § 433. San Francisco Nat. Bank v. Dodge, 197 U. S. 70, § 277. San Joaquin & King's River Canal & Irrig. Co. v. Merced County, 2 Cal. App. 593, §§ 8, 11, 12, 26, 37, 423, 440. San Luis Water Co. v. Estrada, 117 Cal. 168, §§ 51, 474. San Mateo County v. Railroad Co., 7 Sawy. 517, § 421. Santa Clara, County of, v. Southern Pac. Rd. Co., 18 Fed. 385, § 51. Sargent v. Union School District, 63 N. H. 528, § 239. Satterlee v. Mathewson, 2 Pet. (27 U. S.) 380, § 306. Sauter v. Utica City Nat. Bank, 90 N. Y. Supp. 838, § 185. Savage v. Salem, 23 Ore. 381, § 33. Savannah v. Jesup, 106 U. S. 563, §20. Savannah, T. & L of H. Ry. Co. v. Savannah, 198 U. S. 392, §§ 277, 460. Savings Bank v. Owensboro, 173 U. S. 636, § 458. Sawyer v. Davis, 136 Ma.ss. 239, § 400. Sawyer, In re, 124 U. S. 200, § 416. Scarsburgh Turnpike Co. v. Cutler, Vt. 315, § 350. Scharfer v. Werling, 188 U. S. 516, §272. Schenectady Ry. Co. v. Peck, 84 N. Y. Supp. 759, § 111. Schenk v. State, 60 N. J. L. 381, §245. Schinzel v. Best, 92 N. Y. Supp. 754, §§ 145, 158. Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U. S. 1, § 385. Schlesinger v. Kansas City & S. Ry. Co., 139 U. S. 663, § 485. Schmidt v. Indianapolis (Ind., 1907), 80 N. E. 632, § 67. Schmidt v. Louisville & M. R. Co., 101 Ky. 441, § 464. School Board of Brooklyn v. Board of Education of New York, 157 N. Y. 566, § 236. School City of Marion v. Forrest, 168 Ind. 94, § 417. School District v. Insurance Co., 103 U. S. 707, § 56. School Town of Montecello v. Ken- dall, 72 Ind. 91, § 56. Schurz v. Cook, 148 U. S. 397, § 329. Schwede v. Hemrich Bros. Brewing Co. (Wash.), 69 Pac. 362, § 344. Scott V. Donald, 165 U. S. 58, §§ 404, 416. Scott V. McNeal, 154 U. S. 34, § 298. Scottish Union & National Ins. Co. of Edinburg v. Herriott (Iowa), 80 N. W. 665, § 357. Scouten v. City of Whatcom, 33 Wash. 273, § 262. Scovel V. City of Detroit, 146 Mich. 93, § 344. Scranton Elect. Light & Heat Co. v. Scranton Illuminating, Heat & Power Co., 122 Pa. 154, § 23. Scripps V. Board of Review of Fulton County, 183 111. 278, § 440. Seaboard Air Line Ry. Co. v. Florida, 203 U. S. 261, §§ 167, 381, 408. Seaboard Air Line Ry. Co. v. Olive, 142N.Car. 257, §§486, 491. Cll TABLK OF CASKS CITED Seaboard Air Line Ry. Co. v. Rail- road Commissioners of Ala., 155 Fed. 192, § 409. Seaboard Air Line Ry. Co. v. Seegers, 207 U. S. 73, §§ 300, 370, 386. Seaboard & R. R. Co. v. Norfolk County, 83 Va. 195, §§ 20, 479. Seaboard Teleg. & Teleph. Co. v. Kearney, 74 N. Y. Supp. 15, § 485. Searle v. Lead, 10 S. Dak. 312, § 226. Seattle, City of, v. Clark, 28 Wash. 717, § 366. Seattle Gas & Electric Co. v. Citizens' Light & Power Co., 123 Fed. 588, §51. Security Co. v. Hartford, 61 Conn. 89, § 425. Security Mut. Life Ins. Co. v. Prewitt, Ins. Commr., 202 U. S. 246, §§ 352, 355. Security Savings & Loan Assoc, v. Elbert (Ind.), 54 N. E. 753, § 352. Security Trust Co. v. Liberty Build- ing Co., 89 N. Y. Supp. 340, §§ 424, 437. Seeley v. Franchot, 104 N. Y. Supp. 1145, § 233. Seeley, Matter of, v. Stevens, 190 N. Y. 158, § 233. Seibert v. Lewis, 122 U. S. 284, § 416. Selectmen of Gardner v. Templeton St. Ry., 184 Mass. 294, § 197. Sellers v. Greer, 172 111. 549, § 51. Sellers v. Union Lumbering Co., 39 Wis. 525, §§ 1, 2, 11, 17, 26, 43, 122. Selma & Gulf Rd. Co., Ex parte, 48 Ala. 696, § 217. Seneca Min. Co. v. Osman, 82 Mich. 573, §§ 204, 288. Senior v. Rattermann, 44 Ohio St. 661, § 233. Sessions v. Romadka, 145 U. S. 29, §270. Seymour Water Co. v. City of Sey- mour (Ind.), 70 N. E. 514, § 486. Shadford v. Detroit, Y. & A. Ry., 130 Mich. 300, § 481. Shamokin Valley Rd. Co. v. Liver- more, 47 Pa. 465, §§ 1, 8, 12, 17, 19, 26. Sharp, In re (C. A.), L. R. 45 Ch. D. 280, § 98. Sharpless v. Mayor of Philadelphia, 21 Pa. 160, §§ 209, 289. Shaw v. City of Covington, 194 U. S. 593, § 481. Shea V. Muncie, 148 Ind. 14, § 282. Shelby County v. Union & P. Bank, 161 U. S. 149, § 334. Shelton v. Piatt, 139 U. S. 591, §422. Shenandoah Valley R. Co. v. Clarke County, 78 Va. 269, § 448. Shepard v. Milwaukee Gas Co., 6 Wis. 539, §§ 82, 390. Sherlock v. Ailing, 93 U. S. 99, §§ 131, 369. Shields v. Clifton Hill Land Co., 94 Tenn. 123, § 315. Shields v. Ohio, 95 U. S. 319, § 479. Shively v. Bowlby, 152 U. S. 1, §§ 130, 146. Shotwell V. Moore, 129 U. S. 590, § 287. Shreveport v. Cole, 129 U. S. 36, §215. Shreveport v. Shreveport Belt Ry. Co., 107 La. 785, § 337. Shreveport & R. R. V. R. Co. v. St. Louis W. R. Co., 51 La. Ann. 814, § 333. Shreveport, City of, v. St. Louis Southwestern R. Co., 115 La. 885, §345. Shreveport Traction Co. v. Kansas City, Shreveport & Gulf Ry. Co., 119 La. 759, § 48. Siemens v. Sellers, 123 U. S. 276, § 262. Sigur V. Crenshaw, 8 La. Ann. 401, §224. Simpkins v. Ward, 45 Mich. 559, §265. Singer Manufacturing Co. v. Mc- Collock (C. C), 24 Fed. 667, § 233. TABLE OF CAHES CITED cm Singer Manufacturing Co. v. Wright, 33 Fed. 121, § 291. Sinking Fund. See Commissioners of. Sinking Fund Cases (Union Pacific Rd. Co. V. United States and Cent. Pac. Rd. Co. V. Gallatin), 99 U. S. 700, §§ 319,391,400,458. Sinking Fund Cases, 110 U. S. 347, §391. Sinnot v. Davenport, 22 How. (63 U. S.) 227, § 120. Sioux City St. Ry. Co. v. Sioux City, 78 Iowa, 367, § 337. Sisters of Charity of St. Elizabeth v. Corey, 73 N. J. L. 699, §§ 412, 455. Skaget County v. Stiles, 10 Wash. 388, §§ 232, 234. Skaneateles Water Works Co. v. Skaneateles, 184 U. S. 354, § 23. Skaneateles Water Works Co. v. Vil- lage of Skaneateles, 54 N. Y. Supp. 1115, §§ 234, 235, 394. Skinner v. Garnett Gold Mining Co., 96 Fed. 735, §§ 245, 298, 300. Slaughter v. Commonwealth, 13 Gratt. (Va.) 767, § 67. Slaughter-House Cases, 16 Wall. (S3 U. S.) 36, §§ 19, 63, 126, 295. Slaughter-House Cases, 10 Wall. (77 U. S.) 273, § 296. Slidcll V. Grandjean, 111 U. S. 412, §254. Slingerland v. International Con- tracting Co., 60 N. Y. Supp. 12, §21. Slinguff V. Weaver, 66 Ohio St. 621, §§ 249, 262. Smead v. Indianapolis, P. & C. R. Co., 11 Ind. 104, §§ 311, 313. Smiley v. Kansas, 196 U. S. 447, §§ 272, 280, 366. Smith V. Alabama, 124 U. S. 465, §§ 366, 369, 377. Smith V. Atchison, Topoka & Santa Fe R. Co. (C. C), 64 Fed. 272, § 319. Smith V. Baker, 5 Okla. 326, § 269. Smith V. Bryan, 10!) Va. 199, § 236. Smith V. Dayton Coal & Iron Co., 115 Tenn. 543, § 269. Smith V. Frankfort & C. Ry. Co., 24 Ky. L. Rep. 2040, § 476. Smith V. Haney, 73 Kan. 506, § 234. Smith V. Jennings, 206 U. S. 276, §§ 273, 279. Smith V. Lake Shore & M. S. R. Co , 114 Mich. 460, §§ 375, 400, 411, 412. Smith V. Mayor, etc., of New York, 68 N. Y. 552, §§ 2, 8, 15, 17, 34, 424. Smith V. Nashville, 88 Tenn. 464, Ill- Smith V. Strother, 68 Cal. 194, § 173. Smith V. Thursby, 28 Md. 244, § 208. Smith V. Turner. See Passenger Cases. Smyth V. Ames, 169 U. S. 466, §§ 66, 173, 298, 381, 392, 397, 401, 402, 406, 407, 408, 416. Smji^he v. Fiske, 24 Wall. (90 U. S.) 374, § 262. Snell v. Dubuque & S. C. R. Co., 78 Iowa, 88, § 282. Snider v. Barks, 84 Ala. 53, § 270. Snider v. City of St. Paul, 51 Minn. 466, §§ 56, 62. Society for Savings v. Coite, 6 Wall. (73 U. S.) 594, §§ 29, 423, 424. Soon Hing v. Crowley, 113 U. S. 703, §149. Soper V. Henry County, 26 Iowa, 264, §56. Southampton, Trustees of, v. Jessup, 162 N. Y. 122, § 254. South Carolina v. Georgia, 93 U. S. 13, §§ 127, 152. South Carolina v. United States, 199 U. S. 437, §§ 120, 204, 208, 210, 212, 289. South Carolina Rd. Co. v. McDonald, 5 Ga. 531, § 51. South Covington & C. St. R. Co. v. Bcllcvue, 20 Ky. L. Rep. 1184, § 433. South Dakota v. North Carolina, 192 U. S. 286, § 205. CIV TABLE OF CASES CITED Southern Bell Teicpli. Co. v. D'Alem- berte, 39 Fla. 25, §§ 238, 240. Southern Bell Teleph. & Teleg. Co. v. Richmond (C. C. E. D. Va.), 78 Fed. 858, § 131. Southern Elec. Light & Power Co. v. Philadelphia, 191 Pa. 170, § 78. Southern Express Co. v. R. M. Rose Co., 124 Ga. 581, § 74. Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, § 52. Southern Gum Co. v. Laylin, 66 Ohio St. 578, §§ 5, 137, 417. Southern Illinois & Missouri Bridge Co. V. Stone, 174 Mo. 1, §§ 70, 145. Southern Pacific Co. v. Denton, 146 U. S. 202, § 355. Southern Pacific R. Co. v. Bell, 183 U.S. 675, § 129. Southern Pacific R. Co. v. Board of Railroad Commrs., 78 Fed. 236, . § 137. Southern Pacific R. Co. v. California, 162 U. S. 167, § 128. Southern Pacific R. Co. v. Esquibel (N. Mex.), 20 Pac. 109, § 468. Southern Pacific R. Co. v. Interstate Commerce Commission, 200 U. S. 536, §§153, 177. Southern Pacific R. Co. v. Orton, 32 Fed. 457, §§ 11, 12, 30, 14.3, 209, 231, 252, 289. Southern Pacific R. Co. v. Railroad Commissioners (C. C), 78 Fed. 236, § 214. Southern Pacific R. Co. v. United States, 200 U. S. 341, 354, § 129. Southern Pacific R. Co. v. United States, 189 U. S. 447, § 129. Southern Pacific R. Co. v. United States, 183 U. S. 519, §§ 124, 129, 242. Southern R. Co. v. Coulter, 24 Ky. L. Rep. 203, § 453. Southern R. Co. v. Franklin & P. R. Co., 96 Va. 693, § 477. Southern R. Co. v. (ireensboro Ice & Coal Co., 134 Fed. 82, § 170. Southern R. Co. v. McNeill, 155 Fed. 756, §§ 284, 401. Southern R. Co. v. North Carolina Corp. Commissions (C. C), 97 Fed. 513, § 417. Southern R. Co. v. North Carolina R. Co., 81 Fed. 595, §§ 306, 472. Southern R. Co. v. State, 125 Ga. 287, §382. South Park Commissioners v. Chi- cago, 107 111. 105, § 25. South Park Commissioners v. First National Bank, 177 111. 234, § 244. South Passadena, City of, v. Passa- dena Land & Water Co. (CaL, 1908), 93 Pac. 490, § 26. Southwestern R. Co. v. Georgia, 92 U. S. 665, § 479. Southwestern R. Co. v. Paulk, 24 Ga. 356, § 64. Southwestern Teleg. & Teleph. Co. v. City of San Antonio (Tex. Civ. App., 1903), 73 S. W. 859, § 423. South Yorkshire Ry. & River Dun Co. V. Great Northern Ry. Co., 22 Eng. L. & Eq. 531, § 17. Spalding v. Macomb & W. I. Ry. Co., 225 111. 585, § 111. Sparks v. Macon, 98 Ga. 301, § 421. Spease Ferry, In re, 138 N. Car. 219, §§ 148, 194. Spencer v. Board of Registration, 1 McArthur (D. C), 169, § 21. Spencer v. State, 5 Ind. 41, § 207. Spira v. State (Ala.), 41 So. 465, §361. Spitzer v. Village of Fulton, 68 N. Y. Supp. 660, § 21. Spokane Falls & Northern Ry. Co. v. Stevens (Wash., 1908), 93 Pac. 927, § 262. Spooner v. McConnell, 1 McLean (C. C), 337, § 289. Spotswood V. Morris, 12 Idaho, 360, §§ 53, 132. Sprague v. Fletcher, 69 Vt. 69, § 292. Spraigue v. Thompson, 118 U. S. 90, § 234. TABLE OF CASES CITED CV Spratt V. Helena Power & Trans. Co. (Mont.), 94 Pac. 631, §§ 226, 231. Sprigg V. Garett Park, 89 Md. 406, §§ 295, 297. Springfield v. Greene, 120 111. 269, §239. Springfield v. Springfield St. Ry. Co., 182 Mass. 41, § 337. Spring Valley Water Works v. Schottler, 110 U. S. 347, §§ 173, 320, 336, 391, 392, 393, 458. Spring Valley Water Works v. Schottler, 62 Cal. 69, §§ 1, 5, 10, 11, 12, 16, 122. St. Anna's Asylum v. Parker, 109 La. 592, § 421. St. Charles St. Ry. Co. v. Board of Assessors, 51 La. Ann. 458, § 447. St. Clair County v. Interstate Sand & Car Trans. Co., 192 U. S. 454, § 371. St. Cloud, City of, v. Water, Light & Power Co. (Minn.), 92 N. W. 1112, §490. St. Joseph & Grand Island Rd. Co. v. Steele, 167 U. S. 059, § 353. St. Joseph Board of Pubhc Schools, 62 Mo. 444, § 226. St. Joseph Plank Co. v. Kline, 106 La. 325, §§ 136, 201. St. Louis V. Berry, 113 U. S. 465, §479. St. Louis V. St. Louis Gas Co., 70 Mo. 69, § 82. St. Louis V. Western Union Teleg. Co., 148 U. S. 92, §§ 17, 131, 356, 360. St. Louis & A. R. Co. v. Fire Assoc, 60 Ark. 325, § 227. St. Louis & C. R. Co. V. East St. Louis & C. R. Co., 39 111. App. 354, § 465. St. Louis & C. R. Co. V. Postal Teleg. Co., 173 111. 508, §§ 241, 469. St. Louis & San Francisco Ry. Co. v. Gill, 156 U. S. 649, §§ 381, 407, 410, 416. St. Louis & San Francisco Ry. Co. v. James, 161 U. S. 545, §§ 291, 353. St. Louis & San Francisco Ry. Co. v. Matthews, 165 U. S. 1, §§ 138, 300, 366. St. Louis & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393, §§ 467, 473. St. LouLs, A. & T. R. Co. v. Phila. F. Assoc., 55 Ark. 163, § 287. St. Louis Brewing Assoc, v. City of St. Louis, 140 Mo. 419, § 17. St. Louis, City of, v. Conn. Mut. Life Ins. Co., 107 Mo. 92, § 387. St. Louis, City of, v. Ferry Co., 11 Wall. (78 U. S.) 423, § 67. St. Louis, City of, v. Green, 7 Mo. App. 468, § 17. St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203, §§ 151, 162. St. Louis County v. Duluth, 77 Minn. 433, § 459. St. Louis, Iron Mountain & Southern Ry. Co. V. Berry, 113 U. S. 465, §481. St. Louis, Iron Mountain & Southern Ry. Co. V. Commercial Union Ins. Co., 139 U. S. 223, § 353. St. Louis Iron Mountain & Southern Ry. Co. V. Neal, 83 Ark. 591, § 154. St. Louis, Iron Mountain, etc., Ry. Co. V. Paul, 173 U. S. 404, §§ 317, 320. St. Louis, Iron Mountain & Southern Ry. Co. V. Paul, 64 Ark. 83, §§ 42, 282, 300, 317. St. Louis, Iron Mountain & Southern Ry. Co. V. Southern Express Co., See Express Cases. St. Louis, Iron Mountain & Southern Ry. Co. V. State, 55 Ark. 200, §234. St. Louis, Iron Mountain & Southern Ry. Co. V. St. Louis, 92 Mo. 160, §§ 178, 184. St. Louis Southwestern Ry. Co. v. Gentry (Tex. Civ. App.), 95 S. W. 74, §§ 234, 245. CVl TABLE OF CASES CITED St. Mary's Gas Co. v. Elk County, 191 Pa. 458, § 83. St. Mary, Village of, v. Lake Erie & W. R. Co., 60 Ohio St. 136, §§ 238, 381. St. Paul V. Chicago, Milwaukee & St. Paul R. Co., 63 Minn. 330, §234. St. Paul & Minneapolis M. R. Co. v. Todd County, 142 U. S. 283, § 459. St. Paul, City of, v. Freedy, 86 Minn. 350, § 140. St. Paul, etc., Ry. Co. v. St. Paul, 39 Minn. 112, § 454. St. Paul Gas Light Co. v. City of St. Paul, 181 U. S. 142, § 315. St. Paul Gas Light Co. v. City of St. Paul, 91 Minn. 521, § 390. St. Paul, M. & M. Ry. Co. v. Phelps, 137 U. S. 528, § 263. St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, §§ 16, 313. Standard Cotton Seed Oil Co. v. Matheson, 48 La. Ann. 1321, §245. Standard Oil Co. v. Commonwealth, 26 Ky. L. Rep. 985, § 423. Staniels v. Raymond, 4 Cush. (58 Mass.) 314, § 239. Stanislaus County v. San Joaquin Canal & Irrig. Co., 192 U. S. 201, §§ 311, 319, 393, 406, 409, 458. Stanley County v. Coler, 190 U. S. 437, §§ 274, 276. Starin v. Staten Island R. T. Ry. Co., 112 N. Y. 206, § 466. Starne v. People, 222 111. 189, § 216. State. See Attorney General; Com- monwealth; People. State V. Ackerman, 51 Ohio St. 163, §13. State V. Adams Express Co., 2 Ohio N. P. 98, § 53. State (ex rel. Railroad & Warehouse Commission) v. Adams Express Co., 66 Minn. 271, § 169. State V. Alabama Bible Soc, 134 Ala. 632, § 311. State V. Allen, 178 Mo. 555, § 390. State V. Anderson, 31 Ind. App. 34, §41. State V. Anderson, 90 Wis. 550, §§5, 27. State (Badger Ilium. Co.) v. Ander- son, 97 Wis. 72, 114, §§ 465, 474. State V. Ashley, 1 Pike (1 Ark.), 513, §§ 205, 289. State (Star Pub. Co.) v. Associated Press, 159 Mo. 410, § 366. State (Leese) v. Atchison & N. R. Co., 24 Neb. 143, §§ 465, 481. State V. Atkin, 64 Kan. 174, § 298. State V. Atlantic & N. Car. R. Co. (N. Car., 1906), 53 S. E. 290, § 313. State V. Atlantic Coast Line Rd. Co. (Fla.), 41 So. 705, §§ 63, 167, 300. State V. Atlantic Coast Line Rd. Co. (Fla.), 40 So. 875, §§ 63, 74, 167, 401. State V. Atwood, 11 Wis. 422, § 311. State V. Austin & Northwestern Rd. Co., 94 Tex. 530, §§ 2, 8, 11, 19. State V. Austin & Northwestern Rd. Co. (Tex. Civ. App.), 60 S. W. 886, §440. State (Berry) v. Babcock, 21 Neb. 599, § 265. State (Gassies) v. Ballou, 6 Pet. (31 U. S.) 761, § 67. State V. Baltimore & Ohio R. Co., 12 Gill & J. (Md.) 399, § 348. State V. Banfield, 43 Ore. 287, § 248. State V. Barrett, 27 Kan. 213, § 231. State (Hutchinson) v. Belmar, 61 N. J. L. 443, §§ 96, 347, 379. State V. Berard, 40 La. Ann. 172, §238. State V. Bernheim, 19 Mont. 512, §245. State V. Board of Assessors, 35 La. Ann. 651, § 222. State (Childs) v. Board of County Commissioners of Crow Wing, 66 Minn. 519, § 224. TABLE OF CASES CITED evil State (ex rel. Morris) v. Board of Trustees of Westminster College, 175 Mo. 52, §§ 311, 455. State V. Bockstruck, 136 Mo. 335, § 234. State V. Boston, Concord & Montreal R. Co., 25 Vt. 433, §§ 12, 14, 17, 32. State V. Bradford (S. Dak.), SO N. W. 143, § 227. State (Bridgeton) v. Bridgeton & M. Traction Co., 62 N. J. L. 592. §§ 64, 464. State V. Brown & Sharpe Mfg. Co., 18R. I. 16, §§66, 67, 317. State (Hopkins) v. Brown Tobacco Co., 140 Mo. 218, § 440. State V. Burlington & M. R. R. Co. v. Scott, 22 Neb. 028, § 63. State (Memphis) v. Butler, 86 Tenn. 614, §§ 412, 459. State (Anderson) v. Camden, 58 N. J. L. 515, § 269. State V. Campbell (Kan., 1906), 85 Pac. 784, § 269. State V. Canadian Pac. Ry. Co., 100 Me. 202, §§ 428, 448. State V. Canal & C. R. Co., 50 La. Ann. 1189, § 387. State (Cape May, D. B. & S. P. R. Co.) V. Cape May, 59 N. J. L. 393, §387. State V. Carroll, 38 Conn. 449, § 231. State (ex rel. Harlan) v. Centralia- Chehalis Elect. Ry. Power Co., 42 Wash. 633, §§ 19, 63. State (ex rel. Copes) v. Charleston, 10 Rich. Law (S. C), 491, § 51. State V. Chicago & N. W. Ry. Co., 128 Wis. 449, §§ 311,317,417. State (John.son) v. Chicago & Q. R., 195 Mo. 228, § 421. State (ex rel. Crumpackcr) v. Chi- cago, Burlington & Kansas City Ry. Co., 89 Mo. 523, § 20. State V. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn. 28, § 169. State V. Chilowee Woolen Mills, 115 Tenn. 266, § 488. State V. Chittenden, 127 Wis. 468, §§ 147, 149, 181, 366. State (Attorney General) v. Cincin- nati Central R. Co., 37 Ohio St. 157, § 265. State V. Cincinnati FertiUzer Co., 24 Ohio St. 611, § 64. State V. Cincinnati Gas Co., 18 Ohio St. 262, §§ 16, 185, 313. State (Caldwell) v. Citizens' St. Ry. Co. (Neb., 1907), 141 N. W. 429, § 47. State V. City of Bangor, 98 Me. 114, §215. State V. City of Helena, 34 Mont. 67, §§ 63, 140. State V. City of Helena (Mont.), 85 Pac. 744, § 227. State V. City of Hiawatha & General Elect. Co., 53 Kan. 477, § 11. State (ex rel. Wisconsin Metropolitan Teleph. Co.) v. City of Milwaukee (Wis.), 113 N. W. 40, §§ 184, 187. State V. City of New Brunswick, 30 N. J. L. 395, § 345. State V. City of Red Lodge, 30 Mont. 388, § 352. State (ex rel. Wisconsin Teleph. Co.) V. City of Sheboygan, 111 Wis. 23, §140. State (ex rel. Spokane & British Columbia Teleph. & Teleg. Co.) v. City of Spokane, 24 Wash. 53, §§ 140, 227, 380. State V. City of Topeka, 30 Kan. 653, §§ 1, 3, 21. State V. Clark, 30 Wash. 439, § 289. State V. Coffin (Idaho), 74 Pac. 962, § 245. State V. Columbus R. Co., 24 Ohio Cir. Ct. 609, §§ 14, 317, 379. State V. Commercial Ins. Co., 158 Ind. 680, § 245. State (Morris & Essex Rd. Co., Pros.) V. Commissioner of Rd. Taxation, 37 N. J. L. 228, § 46. State V. Constantine, 42 Ohio St. 437, §230. CVUl TABLE OF CASES CITED State (Hudspeth) v. Cooper, 114 Ind. 1, § 283. State (Hibbard) v. Cornell, 60 Neb. 276, § 217. State (Pearson) v. Cornell, 54 Neb. 647, §§ 262, 270. State V. Corrigan, 10 Vroom (N. J.), 35, § 404. State (ex rel. City of Kansas City) v. Corrigan Consol. St. Ry. Co., 85 Mo. 263, § 337. State V. Courtney, 73 Iowa, 619, §283. State V. Cox, 3 Eng. (8 Ark.) 436, §224. State V. Cumberland Teleph. & Teleg. Co., 114 Tenn. 194, § 491. State V. Curler, 26 Nev. 347, § 229. State V. Dalton, 22 R. I. 77, § 366. State (Chamberlin) v. Daniel, 17 Wash. Ill, §§ 205, 207, 209, 216, 217. State V. Dawson, 22 Ind. 272, § 350. State V. Dawson, 16 Ind. 40, § 349. State V. Dayton Traction Co., 18 Ohio Cir. Ct. R. 49.0, § 379. State (Hadley) v. Delmar Jockey Club (Mo.), 92 S. W. 185, § 488. State (Holt) v. Denny, 118 Ind. 449, §§ 231, 234. State V. Dens, R. M. Charleton's R. (Ga.), 397, § 21. State V. District Court of Tenth Jud. Dist. of Meagher County, 34 Mont. 535, §§ 19, 63. State (Missouri) v. Dockery, 191 U. S. 165, § 182. State V. Davis (W. Va., 1908), 60 S. E. 584, § 262. State (Hallock) v. Donnelly, 20 Nev. 214, § 265. State V. Doran, 5 Nev. 399, § 205. State V. Drexel (Neb.), 106 N. W. 791, §§ 236, 239. State (Minnesota) v. Duluth & I. R. Co., 97 Fed. 353, § 313. State v. Duluth Gas & Water Co., 76 Minn. 96, §§ 111, 425. State V. Duluth St. Ry. Co., 76 Minn. 96, § 111. State (Kansas City) v. East Fifth St. R. Co., 140 Mo. 539, § 488. State V. Edwards (Utah, 1908), 95' Pac. 367, § 231. State (Consol. Tract. Co.) v. Ehza- beth, 58 N. J. L. 619, §§ 6, 387. State V. Engel, 5 Vroom (N. J.), 435, §404. State (Walker) v. Equitable Loan & I. Assoc, 142 Mo. 325, § 287. State V. Ferris, 53 Ohio St. 314, § 25, State (Crow) v. Firemen's Fund Ins. Co., 152 Mo. 1, § 234. State V. Fitzpatrick, 16 R. I. 1, § 366. State V. Fleming (Neb.), 97 N. W. 1063, §§ 432, 436. State (Hoadley) v. Florida Ins. Commrs., 37 Fla. 564, § 291. State V. Fontenot, 112 La. 628, § 236. State (ex rel. State Board of Equali- zation) V. Fortune (Mont.), 60 Pac. 1086, § 223. State (Judah) v. Fost (Mo.), 109 S. W. 737, §§ 231, 244. State V. Franklin County Sav. Bank & Trust Co., 74 Vt. 246, §§ 425, 446. State (McCullough) v. FrankUn Township, 59 N. J. L. 106, § 234. State V. Freeholders of Hudson, 23 N. J. L. 206, § 4. State (Transportation Board) v. Fre- mont, E. & M. V. R. Co., 22 Neb. 313, § 264. State V. Frost (Neb.), 110 N. W. 986, §§ 140, 380. State V. Galena Water Co. (Kan.), 65 Pac. 257, § 491. State V. Galveston, H. & S. A. Ry. Co. (Tex., 1906), 97 S. W. 71, §§ 422, 427. State V. Garibaldi, 44 La. Ann. 809, § 202. State (ex rel. Waring) v. Georgia Medical Soc, 38 Ga. 608, §§ 1, 11, 28. TABLE OF CASES CITED CIX State V. Gerhardt, 145 Ind. 439, §§ 218, 234, 265. State V. Gloss, 83 Ala. 93, § 287. State V. Great Northern Ry. Co., 100 Minn. 445, §§ 169, 382. State V. Griffin, 69 N. H. 1, § 366. State (ex rel. Port Royal Mining Co.) V. Hagood, 30 S. C. 519, § 156. State V. Holden, 14 Utah, 71, § 289. State V. Hammond Packing Co. (La.), 34 Pac. 368, § 356. State (Michener) v. Harrison, 116 Ind. 300, § 265. State V. Hartford & New Haven Rd. Co., 29 Conn. 538, § 88. State (Singer Mfg. Co.) v. Heppen- heimer, 58 N. J. L. 633, §§ 412, 459. State (Ohio ex rel. Walton) v. Her- mann, 63 Ohio St. 440, § 184. State V. Heyward, 3 Rich. Law (S. C), 389, §§ 55, 61, 93. State V. Holloday, 66 Mo. 385, § 215. State V. Hood, 15 Rich. (S. C.) 177, §11- State V. Hudson Co. Freeholders, 23 N. J. L. 206, § 390. State V. Humboldt County Com- missioners, 21 Nev. 235, § 231. State (Hunt) v. Illinois Central R. Co., 33 Fed. 721, § 245. State V. Indiana & O. Oil Gas & Mining Co., 120 Ind. 575, § 374. State (ex rel. Agricultural College) V. Irvine, 14 Wyo. 318, § 08. State V. Iverson, 97 Minn. 286, § 440. State V. Jackman, 69 N. H. 318, § 295. State (Jacksonville) v. Jacksonville St. R. Co. (Fla.), 10 So. 590, § M4. State (ex rel. Wisconsin Tcleph. ('<).) V. Janesville St. Ry. Co., 87 Wis. 72, § 131. State V. Jennings (S. Car., 1908), 60 S. E. 967, § 229. State (Kennelly) v. Jersey City, 57 N. J. L. 293, § 379. State V. Johnson, 61 Kan. 803, § 180. State V. Jones, 51 Ohio St. 492, § 231. State (Barton County) v. Kansas City, Ft. S. & G. R. Co. (C. C), 32 Fed. 722, §§ 237, 383. State (City Water Co.) v. Kearney, 49 Neb. 325, § 240, 282, 287, 311. State (Ross) v. Kelly, 45 S. Car. 457, §§ 227, 285. State v. KibHng, 63 Vt. 636, § 270. State V. Iving, 28 Mont. 268, § 229. State V. King County (Wash.), 69 Pac. 1106, § 467. State (Brown) v. Klein, 116 Mo. 259, § 265. State (ex rel. Arkansas Southern Rd. Co.) v. Knowles (La.), 41 So. 439, § 102. State (Saunders) v. Kohnke, 109 La. 838, §§ 51, 220, 239, 245. State V. Kreutzberg, 114 Wis. 530, §366. State V. Laclede Gas Light Co., 102 Mo. App. 472, § 390. State V. Lancashire F. Ins. Co., 66 Ark. 466, § 262. State (Jones) v. Landis, 50 N. J. L. 374, § 287. State V. Leighton, 83 Me. 419, §127. State V. Lewis, 26 Utah, 120, §§ 137, 231, 233. State (Crow) v. Lincoln Trust Co., 144 Mo. 562, § 42. State (Crow) v. Lindell R. Co., 151 Mo. 162, § 379. State v. Maine, 27 Conn. 641, § 117. State v. Maine C. R. Co., 90 Me. 207, §284. State V. Maine Central R. Co., 66 Me. 488, §§ 12, 17, 20. State V. Martin, 68 Vt. 93, § 282. State (ex rel. New York & New Jer- sey Tcleph. Co.) V. Mayor, etc., of Bound Brook, 66 N. J. L. 168, §§ 140, 176. State V. Mayor, etc., of New York, 3 Duer (N. Y.), 119, §§ 3, 11, 12, 14, 32, 48, 185, 343. ex TABLE OF CASES CITED State (Guerguin) v. McAllister, 88 Tex. 284, § 217. State V. McCann, 4 Lea (72 Tenii.), 1, §§ 120, 245. State V. McCoUister, 11 Ohio Rep. 50, §21. State V. McCoomer (S. Car., 1908), 60 S. E. 237, § 282. State V. McCracken, 42 Tex. 383, §245. State (ex rel. Chicago, Milwaukee & St. Paul Ry. Co.) v. McFetridge, 56 Wis. 256, § 47. State (Robertson) v. McGough, 118 Ala. 159, § 207. State V. Miller, 45 Mo. 495, § 245. State (ex rel. Vilter Mfg. Co.) v. Mil- waukee, Burlington & Lake Ge- neva Rd. Co., 118 Wis. 142, §§ 9, 11, 14. State V. Milwaukee Independent Teleph. Co. (Wis., 1907), 114 N. W. 108, § 48. State (ex rel. Attorney General) v. Milwaukee, Lake Shore & Western Ry. Co., 45 Wis. 579, § 51. State (Clapp) v. Minnesota Thresher Mfg. Co., 40 Minn. 213, §§ 3, 11, 12, 32, 132, 189. State (Nolan) v. Montana R. Co., 21 Mont. 221, § 481. State V. Moore, 104 N. Car. 714, § 366. State (Farmers' Mut. Ins. Co.) v. Moore, 48 Neb. 870, § 245. State V. Moore, 40 Neb. 854, § 289. State V. Moore & Ligon, 19 Ala. 520, §§ 1, 132, 140. State (Smythe) v. Moores, 55 Neb. 480, §§ 204, 230, 289. State V. Morgan, 28 La. Ann. 482, §§ 1, 3, 20, 26, 254, 412, 455, 468, 471, 478, 479, 480. State V. Morristown F. Assoc, 23 N. J. L. 195, § 425. State V. Mortensen, 26 Utah, 312, §269. State V. Murlin, 137 Mo. 297, § 245. State V. Nashville University, 4 Humph. (Tenn.) 157, § 65. State v. Nathan, 121 Rob. (La.) 332, § 289. State (Theberath) v. Newark (N. J.), 30 Atl. 528, § 379. State V. New Orleans, C. & L. R. Co., 104 La. 685, § 349. State V. New Orleans Debenture Re- demption Co., 51 La. Ann. 1827, §51. State (Bourdette) v. New Orleans Gas Light Co., 49 La. Ann. 1556, § 226. State V. New Orleans Ry. & Light Co., 116 La. 144, §§ 218, 455. State (New Orleans) v. New Orleans Tract. Co., 48 La. Ann. 567, § 337. State V. New Orleans Water Works Co., 107 La. 1, §§ 488, 490. State V. Nolan, 71 Neb. 136, § 231. State (Ellis) v. Noncomiah Turnp. Co. (Tenn.), 17 S. W. 128, § 490. State V. Northern Cent. R. Co., 44 Md.. 162, § 311. State V. Northern Cent. Ry. Co., 90 Md. 447, §§ 412, 560. State V. Northern Pac. R. Co., 36 Minn. 207, § 347. State V. Northern Pac. Ry. Co. (Minn.), 108 N. W. 269, § 138. State V. Northern Pac. Ry. Co. (Mont., 1908), 93 Pac. 945, § 287. State V. Northwestern Trust Co. (Neb.), 101 N. W. 14, § 486. State V. Noyes, 47 Me. 189, §§ 311, 313. State (Getchell) v. O'Connor, 81 Minn. 79, §§ 220, 221. State V. Omaha Elevator Co. (Nev., 1906), 106 N. W. 979, § 283. State V. O'Neil Lumber Co., 170 Mo. 7, § 215. State V. Parkinson, 5 Nev. 15, §§ 223, 262. State V. Payne, 129 Mo. 468, § 51. State (Baker) v. Payne, 22 Ore. 335, §248. TABLE OF CASES CITED CXI State V. Peel Splint Coal Co., 36 W. Va. 802, §§ 1, 46. State V. Philadelphia, Wilmington & Bait. Rd. Co., 45 Md. 361, §§ 2, 25. State V. Pittman, 32 Wash. 137, § 41. State V. Pittsburg, Youngstown & Ashtabula Rd. Co., 50 Ohio St. 239, §1. State (Maggard) v. Pond, 93 Mo. 605, §234. State V. Portage City Water Co., 107 Wis. 441, §§ 3, 5, 9, 16, 34, 48, 143, 185, 228. State V. Portage Lumber Co. (Minn.), 115 N.W. 162, §261. State V. Post, 55 N. J. L. 264, § 24. State V. Poynter, 59 Neb. 417, § 234. State V. Pullman Co. (Kan.), 90 Pac. 319, § 3.39. State V. Quayle, 26 Utah, 26, § 213. State (Rochester) v. Racine County, 70 Wis. 543, § 270. State v. Railroad Commissioners, 23 Neb. 117, § 407. State V. Railroad Commissioners, 38 Minn. 281, § 407. State V. Railway Company, 128 Wis. 449, § 421. State V. Rayse, 71 Neb. 1, § 265. State V. Real Estate Bank, 5 Pike (Ark.), 595, §§ 1, .3, 4, 26, 63, 311, 363, 486, 488, 489. State V. Red River Valley Elevator Co., 69 Minn. 131, § 440. State V. Reneau (Neb.), 106 N. W. 451, § 249. State V. Richcreek, 167 Ind. 217, §§ 18, 69. State V. Richcreek (Ind.), 77 N. E. 1085, § 366. State V. Robinson, 35 Neb. 401, § 68. State (ex rel. Young, Attorney Gen- eral) V. Robinson, 112 N. W. 269, § 416. State (McLorinan) v. Ryno, 49 N. J. L. 603, § 288. State v. Saint, etc. See State v. St., etc. State v. Savage, 65 Neb. 714, 91 N. W. 716, §§ 26, 448. State (Harris) v. Scarboro, 110 N. Car. 232, § 261. State V. Schultz Gas Fixture & A. M. Co., 83 Md. 58, § 245. State V. Scougal, 3 S. Dak. 55, §§ 1, 2, 3, 18, 132. State V. Searey, 20 Mo. 489, § 366. State (German Sav. & Loan Soc.) v. Sears, 29 Ore. 580, § 287. State (ex rel. Attorney General) v. Seattle Gas & Electric Co., 28 Wash. 488, §§ 9, 16. State (ex rel. K. C, St. J. & C. R. R. Co.) V. Severance, 55 Me. 378, §448. State (ex rel. Henson) v. Shephard, 192 Mo. 497, §§ 121, 137, 289. State V. Simmons Hardware Co., 109 Mo. 118, § 231. State V. Skeggs (Ala., 1908), 46 So. 268, §§ 231, 289. State (Essex Public Road Board) v. Skinkle, 49 N. J. L. 641, § 287. State V. Sloss, 83 Ala. 93, § 265. State (ex rel. Wood) v. Smith, 114 Mo. 180, § 113. State (Minnesota) v. Smith, 58 Minn. 35, § 387. State V. Sorrells, 15 Ark. 664, §§ 219, 289. State V. Southern Bldg. & Loan Assoc. (Ala.), 31 So. .375, § 491. State V. Southern Pac. R. Co., 24 Tex. 80, § 311. State V. Southern R. Co., 122 N. Car. 1052, § 260. State V. Southern Ry. Co., 141 N. Car. 846, § 156. State V. Southern Ry. Co. (N. Car., 1899), .34S. E. 527, § 284. State (Spartenburg) v. Spartonburg, C. & G. R. Co., 51 S. Car. 129, § 486. State (Kenner) v. Spears (Tcnn. Ch. App.), 53 S. W. 247, § 217. State (Grinsfclder) v. Spokane St. R. Co., 19 Wash. 518, §§ 464, 488. CXll TABLE OF CASES CITED State V. Sponangle, 45 W. Va. 415, §297. State (Hadley) v. Standard Oil Co., 194 Mo. 124, § 352. State V. Standard Oil Co., 61 Neb. 28, § 231. State V. Standard Oil Co., 49 Ohio St. 137, §§ 11, 51. State (Camden Gas Light Co.) v. State Comptroller, 54 N. J. L. 135, § 435. State V. Staten, 6 Coldw. (46 Tenn.) 233, § 21. State (ex rel. Marr) v. Stearns, 72 Minn. 200, § 421. State V. Stebbins, 1 Stew. (Ala.) 299, §§ 11, 18. State V. Stewart, 52 Neb. 243, § 232. State V. Stonewall Ins. Co., 89 Ala. 338, § 425. State V. Stovall, 103 N. Car. 416, § 68. State V. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380, §§ 23, 138, 254, 255, 346. State V. St. Paul, M. & M. Ry. Co. (Minn.), 108 N. W. 261, §§ 366, 385. State V. Street, 117 Ala. 203, § 15. State (Wheeler) v. Stuht, 52 Neb. 209, §§ 234, 245. State V. Superior Court of Thurston County (Wash.), 85 Pac. 666, §§ 63, 76. State V. Sutton, 100 N. Car. 474, § 282. State (Cheyenne) v. Swan, 7 Wyo. 166, § 234. State V. Taylor, 7 S. Dak. 533, § 240. State V. Taylor, 119 Tenn. 229, § 421. State V. Taylor, 36 Wash. 607, §§11, 140, 185, 379. State V. Terre Haute & Indianapolis Rd. Co., 166 Ind. 580, § 136. State V. Tingey, 24 Utah, 225, § 217. State (Attorney General) v. Toledo, 48 Ohio St. 112, § 83. State V. Topeka Water Co., 61 Kan. 547, §§ 8, 351. State (Safford) v. Topeka Water Co., 59 Kan. 151, § 490. State V. Travelers' Ins. Co., 73 Conn. 255, §§ 291, 421. State V. Travellers' Ins. Co., 70 Conn. 590, §§13, 440. State V. Turley, 142 Mo. 403, § 51. State (ex rel. Summerfield) v. Tyler, 14 Wash. 495, § 56. State (Brown) v. Union, 62 N. J. L. 142, § 233. State V. United States, etc., 140 Ala. 610, § 491. State V. United States Express Co., 81 Minn. 87, § 79. State V. United States Express Co., 1 Ohio N. P. 259, § 53. State V. United States Fidelity & Guaranty Co. of Bait. City, 93 Md. 314, § 427. State V. Walsh, 136 Mo. 400, § 234. State (Leffingwell) v. Warren, 2 Black (67 U. S.), 599, § 272. State V. Water Co., 61 Kan. 547, §§ 11, 470. State (Sanche) v. Webb, 110 Ala. 214, § 234. State V. Western Irrig. Canal Co., 40 Kan. 96, §§ 3, 5, 11, 470. State V. Western Union Teleg. Co. (Kan.), 90 Pac. 299, §§ 286, 351, 356. State (Rogers) v. Wheeler, 97 Wis. 96, § 269. State V. Whitaker, 160 Mo. 59, § 387. State V. Wilburn (Ala., 1905), 39 So. 816, § 132. State V. Woram, 6 Hill (N. Y.), 33, §64. State V. Yazoo & M. V. R. Co., 87 Miss. 679, § 383. State Bank v. Hooper, 2 Yerg. (10 Tenn.) 599, § 231. State Bank of Chicago v. Carr, 130 N. Car. 479, § 41. State Bank of Ohio v. Knoop, 16 How. (57 U. S.) 369, § 438. State Board. See also Board of. TABr.K OF CASES CITED CXlll State Board of Assessors v. Central Rd. Co., 48 N. J. L. 14G. §§ S, 12, 26, 101, 424. State Board of Assessors v. Patter- son (X. J.), 14 Atl. 610, § 460. State Board of Assessors v. Plain- field Water Supply Co., 67 N. J. L. 357, § 187. State Board of Equalization v. People, 191 III. 528, § 425. State Freight Tax Cases, 15 Wall. (82 V. S.) 232, §§ 402, 404. State National Bank v. Memphis, 116 Tenn. 641, §§ 234, 456. State Railroad Commission. See also Commissions ; Railroad Commis- sion. State Railroad Commission v. West- ern I'nion Teleg. Co., 113 N. Car. 213, § 390. State Railroad Tax Cases (see Rail- road Tax Cases), 92 U. S. 575, §§ 5,, 13, 272, 421, 447, 448. Staten Island Midland R. Co. v. Staten Island Electric R. Co., 54 N. Y. Supp. 598, § 4. State Tide- water Pipe Line Co. v. Berry, 52 N. J. L. 308, § 12. Staunton, City of, v. Mary Baldwin Seminary, 99 Va. 653, § 454. Steamboat Co. v. Collector, 18 Wall. (85 U. S.) 478, § 282. Steamship Co. v. Joliffe, 2 Wall. (69 U. S.) 450, §§ 282, 306. Stearns v. Minnesota, 179 U. S. 223, § 459. Stedman v. Merchants' & P. Bank, 69 Tex. 50, § 265. Steele v. County Commissioners, 83 Ala. 304, § 220. Steele County v. Erskine, 98 Fed. 215, § 288. Steenerson v. Great Northern R. Co., 69 Minn. 353, § 171. Steers v. Brownell, 124 III. 27, § 249. Stehmeyer \-. Charleston, .">/> S. (':ir. 259, § 149. Stein V. Bienville Water Supply Co., 141 U. S. 67, §§ 23, 254, 255. Stein V. McCrath, 128 Ala. 175, § 347. Stein V. Morrison, 9 Idaho, 426, §§ 223, 269. Stephens v. Texas & Pac. Ry. Co. (Tex. Sup.), 97 S. W. 309, § 425. Stevens v. Lake George & M. R. Co., 82 Mich. 426, § 244. Stevens County v. St. Paul, M. & M. R. Co., 36 Minn. 467, § 349. Stewart v. Hardin County Agricul- tural Soc. Commrs. (Dist. Ct.), 7 Am. Law Rec. 668, § 68. Stewart v. Hargrove, 23 Ala. 429, §26. Stewart v. Vandervort, 34 W. Va. 524, § 287. Stillwell V. Jackson, 77 Ark. 250, § 231. Stockton V. Baltimore & N. Y. R. Co., 32 Fed. 9, § 127. Stockton & V. R. R. Co. v. City of Stockton, 41 Cal. 147, §§ 231, 289. Stockton Gas & Electric Co. v. San Joachin County, 148 Cal. 313, §§ 26, 440. Stone V. Bank of Kentucky, 174 XT. S. 799, § 330. Stone V. Farmers' Loan & Tr. Co. (see Railroad Commission Cases), 116 U. S. 307, §§ 167, 381, 391, 398, 400, 401, 403, 412. Stone V. Illinois Central Rd. Co., 116 U. S. 347, §§ 167, 381. Stone V. Mississippi, 101 U. S. 814, §§ 298, 312. Stone V. New Orleans & North- western Rd. Co. (see Railroad Com- mission Cases), 116 U. S. 352, §§ 167, 381, 398. Stone V. Southern Illinois & Missouri Bridge Co., 206 U. S. 267, §§ 184, 270. Stone V. Wisconsin, 94 V. S. ISI, §§ 167, 381, 391. Stone V. ^'azoo & M. N . H. Co., 62 Miss. 607, § 112. vni CXIV TABLE OF CASES CITED Storrie v. Cortes, 90 Tex. 283, § 306. Story V. Indiana Hydraulic Power Co. (Ind.), 76 N. E. 1057, § 76. Stowe V. Citizens' Natural Gas Co., 23 Pa. Co. Ct. R. 273, § 472. Stowe V. Town of Kearney, 72 N. J. L. 106, §§ 196, 203. Straight v. Crawford, 73 Iowa, 676, § 283. Strasburger v. Dodge, 12 App. D. C. 37, § 269. Stratford v. Greenboro, 124 N. Car. 127, § 63. Stratton v. Morris, 5 Pick. (89 Tenn. 497), § 289. Strickler v. City of Colorado Springs, 16 Colo. 61, § 215. Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, §§ 272, 275. Strike v. Wisconsin Odd Fellows Mut. L. Ins. Co., 95 Wis. 583, § 287. Stuart V. Laird, 1 Cranch (5 U. S.), 299, § 218. Stump V. Hornback, 94 Mo. 26, § 265. Sturdivant v. Tallette (Ark., 1907), 105 S. W. 1037, § 229. Sturges V. Stetson, 1 Biss. (C.'C.) 246, § 425. Stutsman County v. Wallace, 142 U. S. 293, §§ 269, 272, 273. Suburban Elect. Light & Power Co. V. Inhabitants of East Orange, 59 N. J. Eq. 563, § 379. Suburban Rapid Transit Co. v. New York, 128 N. Y. 510, § 306. Suburban Rapid Transit Co. v. West Side El. R. Co., 193 111. 217, §111. Sugden v. Partridge, 174 N. Y. 87, §§ 231, 233. Sulhvan v. Lear, 23 Fla. 463, §§ 12, 17, 39. Sully V. American Nat. Bk., 178 U. S. 289, § 292. Sun Life Ins. Co. v. Phillips (Tex. Civ. App.), 70 S. W. 603, § 300. Sun Printing & Publishing Assn. v. Mayor, etc., of New York, 152 N. Y. 257, § 186. Supervisors. See Board of. Supervisors of Niagara v. People, 7 Hill (N. Y.), 504, § 11. Swan V. Williams, 2 Mich. (1 Gibbs) 427, §§ 51, 55. Swartz V. Siegel, 117 Fed. 13, § 237. Swayze v. City of Monroe, 116 La. 643, § 92. Sweeney v. Otis, 37 La. Ann. 520, §17. Sweet v. Syracuse, 129 N. Y. 337, §288. Sweetland v. Atchison, Topeka & Santa Fe R. Co., 22 Colo. 220, § .300. Swing V. Western Lumber Co., 205 U. S. 275, §§ 281, 352, 354. Syracuse Water Co. v. City of Syra- cuse, 116 N. Y. 167, §§ 23, 254, 265. T. Tabor v. Commercial National Bank, 62 Fed. 383, § 245. Taft V. Ward, 106 Mass. 518, § 52. Talcott V. Township of Pine Grove, 1 Flipp (U. S. C. C), 120, §§ 1, 15, 17, 100, 107, 272. Talladega Ins. Co. v. Landers, 43 Ala. 115, § 350. Tamaqua & L. St. R. Co. v. Inter County St. R. Co., 167 Pa. 91, § 379. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, §§ 16, 313. Tampa v. Kannitz, 39 Fla. 687, § 453. Tampa v. Tampa Water Works Co. (Fla.), 34 So. 631, § 226. Tampa Water Works Co. v. Tampa, 199 U. S. 241, § 395. Tate V. Bell, 4 Yerg. (12 Tenn.) 202, § 231. Taten v. Wright, 23 N. J. L. 429, § 67. Tax Commissioners. See Board of. TABLE OF CASES CITED CXV Taylor v. Empire State Sav. Bank, 66 Hun, 540, § 270. Taylor v. Taintor, IG Wall. (83 U. S.) 366, § 416. Taylor v. Western Union Teleg. Co., 95 Iowa, 740, § 376. Tazewell v. Hermann (Va.), 60 S. E. 767, §§ 205, 208. Telegraph Co. v. Texas Co., 105 U. S. 460, § 404. Telluride Power Trans. Co. v. Rio Grande Western Ry. Co., 187 U. S. 569, § 281. Temmick v. Owings, 70 Md. 246, §231. Ten Eyek v. Delaware & Raritan Canal Co., 18 N. J. L. 200, §§61, 63, 72. Tennessee v. Whitworth, 117 U. S. 129, §§ 20, 205, 241, 454, 479, 482. Terre Haute & Indianapolis R. Co. V. Cox, 102 Fed. 825, § 473. Terre Haute & Indianapolis R. Co. v. Ketcham, 194 U. S. 579, § 276. Terrel v. Taylor, 9 Cranch (13 U. S.), 43, § 69. Terrell v. State, 86 Tenn. 523, § 283. Terrett v. Taylor, 9 Cranch (13 U. S.), 43, § 488. Tesch V. Milwaukee Elect. R. & Light Co., 108 Wis. 593, § 12. Texarkana & Ft. Smith Ry. Co. v. Parsons, 74 Fed. 411, § 127. Texarkana & Ft. Smith Ry. Co. v. Texas & N. O. R. Co. (Tex. Civ. App.), 67 S. W. 525, § 344. Texas v. White, 7 Wall. (74 U. S.) 700, § 142. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, §§ 153, 403, 413. Texas Express Co. v. Texas, 6 Fed. 426, § 79. Third Ave. R. Co., Matter of, 121 N. Y. 536, § 183. Third National Bank, Louisville, v. Stone, 174 U. S. 432, § 439. Thomas v. Dakin, 22 Wend. (N. Y.) 71, §§ 8, 38, 49, 51, 57. Thomas v. Dakin, 20 Wend. (N. Y.) 9, § 348. Thomas v. Lee County, 3 Wall. (70 U. S.) 327, § 288. Thomas v. Raikoad Co., 101 U. S. 71, §§ 42, 464, 467, 472, 473. Thomas v. West Jersey Rd. Co., 101 U. S. 71, §§ 63, 97. Thomas v. Williamson (Fla.), 40 So. 831, §§ 136, 137. Thompson v. Lambert, 44 Iowa, 239, §68. Thompson v. M'Connell, 107 Fed. 33, §272. Thompson v. People, 23 Wend. (N. Y.) 537, § 311. Thompson v. Schenectady R. Co., 124 Fed. 274, §§ 12, 14, 26, 34, 111. Thompson v. Waters, 25 Mich. 214, §51. Thompson-Houston Elect. Light Co. v. City of Newton, 42 Fed. 723, §11. Thompson-Houston Electric Co. v. Simon, 20 Ore. 60, §§ 74, 111. Thomson v. Lee County, 3 Wall. (70 U. S.) 327, § 259. Thorpe v. Rutland & Burlington R. Co., 27 Vt. 140, §§ 14, 17, 289. Thousand Islands Steamboat Co. v. Visgar, 83 N. Y. Supp. 325, § 119. Thurston v. Huston, 123 Iowa, 157, § 286. Thurston County v. Sisters of Char- ity, 14 Wash. 264, §§ 412, 455. Tillamook Water Co. v. Tillamook City, 139 Fed. 405, § 16. Tillis v. Liverpool & London & Globe Ins. Co. (Fla., 1903), 35 So. 171, § 300. Tindall v. Wesley, 167 U. S. 204, §416. Tinsman v. Belvidere Delaware Rd. Co., 26 N. J. L. 148, §§ 56, 62, 69. CXVl TABLE OF CASES CITED Tippecanoe County, Board of Com- missioners of, V. Lafayette, Muncie & Bloomington Rd. Co., 50 Ind. 85, § 51. Tippecanoe County, Board of Commrs. of, v. Lucas, 93 U. S. 108, §56. Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, § 234. Tod V. Kentucky Union Land Co., 57 Fed. 47, § 481. Toledo V. Northwestern Ohio Natu- ral Gas Co., 5 Ohio C. C. 557, §83. Toledo Bank v. Bond, 1 Ohio St. 622, §§4,22,60,236,311. Toledo, Bank of, v. City of Toledo, 1 Ohio St. 622, §§ 22, 23, 60, 236, 254. Toledo, City of, v. Northwestern Ohio Natural Gas Co., 6 Ohio N. P. 351, §311. Toledo Electric St. Ry. Co. v. West- ern Light & Power Co., 4 Ohio C. D. 43, § 76. Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 Fed. 497, §477. Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 111. 37, § 366. Tollepson v. Ottawa, 228 111. 134, §56. Tomlinson v. Branch, 15 Wall. (82 U. S.) 460, §§ 453, 481, 482. Tomlinson v. Jessup, 15 Wall. (82 U. S.) 454, § 458. Toncray v. Budge (Idaho), 92 Pac. 26, § 216. Topeka v. Topeka Water Co., 58 Kan. 349, § 487. Topeka, City of, v. Raynor, 61 Kan. 10, § 245. Topping Avenue, In re, 187 Mo. 146, §349. Towanda Bridge Co., In re, 91 Pa. 216, § 19. Tower v. Tower & S. Street Ry. Co., 68 Mmn. 500, § 488, Towle V. American Bldg., Loan & In- vestment Soc, 61 Fed. 446, § 71. Town. See name of. Townsend Gas & Elec. Co. v. Hill, 24 Wash. 469, § 231. Township. See name of. Township of Pine Grove v. Talcott, 19 Wall. (86 U. S.) 666, §§ 15, 272. Tracy v. Tuffy, 134 U. S. 206, §§ 282, 283. Trade. See Board of. Traders' National Bank v. Lawrence Mfg. Co., 96 N. Car. 298, § 250. Tradesman Publishing Co. v. Knox- ville Car Wheel Co., 11 Pick. (95 Tenn.) 634, § 425. Transportation Company v. Parkers- burg, 107 U. S. 691, § 17. Trask v. Mahuire, 18 Wall. (85 U. S.) .391, § 479. Travelers' Ins. Co. v. Fricke, 94 Wis. 258, § 262. Trezza v. Bush, 142 U. S. 160, § 289. Tripp V. Frank, 4 Term. 666, § 15. Tripp V. Pontiac & L. Plank Road Co., 66 Mich. 1, § 324. Trott V. Warren, 2 Fairf. (11 Me.) 227, § 350. Truckee & Tahoe Tiu-npike Co. v. Campbell, 44 Cal. 80, 89, §§ 1, 3, 17, 148, 199. Trunk R. Co. v. Richardson, 91 U. S. 454, § 472. Trustees of Davidson College v. Chambers, 56 N. Car. 253, § 311. Trustees of Exempt Firemen's Ben. Fund V. Roome, 93 N. Y. 313, § 24. Trustees of Freeholders, etc., of Southport V. Jessup, 162 N. Y. 122, § 311. Trustees of Schools v. Tatman, 13 til. 27, § 56. Trustees of Southampton v. Jessup, 162 N. Y. 122, §§ 2, 3, 15, 23, 36, 48, 198. Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh (Va.), 42, §§ 3, 8, 11, 15, 17, 22. TABLE OF CASES CITED cxvu Tucker v. Constable, 16 Ore. 407, §264. Tucker v. Ferguson, 22 Wall. (89 U. S.) 527, §§ 455, 460. Tugwell & Madison v. Eagle Pass. Ferry Co., 74 Tex. 450, §§ 144, 178. Tullis V. Lake Erie & Western R. Co., 175 U. S. 348, §§ 298, 300. Turlock Irrig. Dist. v. Williams, 76 Cal. 360, § 88. Turner v. Interstate Bldg. & Loan Assoc, 51 S. Car. 33, § 287. Turner v. Revere Water Co., 171 Mass. 329, § 390. Turnpike Co. v. Parks, 50 Ohio St. 568, § 26. Turnpike Co. v. State, 3 Wall. (70 U. S.) 210, §§ 23, 254. Turnpike Co. v. Wallace, 8 Watts (Pa.), 316, §§ 56, 116. Tuscaloosa County v. Foster, 134 Ala. 392, § 15. Tuttle V. Brush Elec. Ilium. Co., 50 N. Y. Super. Ct. 464, §§ 11, 76. Twelfth St. Market Co. v. Philadel- phia & Reading Term. Co., 142 Pa. 580, §§ 1, 3, 4, 24, 92, 113, 122. Twin Village Water Co. v. Damaris- cotta Gas Light Co., 98 Me. 325, §47. Tyson v. Washington County (Ncv., 1907), 110 N. W. 634, §§ 135, 136, 171. U. Ulbrecht v. City of Keokuk, 124 Iowa, 1, § 215. Ulmer v. Lime Rock R. Co., 98 Me. 579, §§ 11, 103, 464, 486, 488, 490. Underwood Lumber Co. v. Pelican Boom Co.. 76 Wis. 76, § 90. Underground Railroad of the City of New York v. City of New York, 193 U.S. 416, §§ 177,332. Underground Railroad of the City of New York v. New York City, 116 Fed. 952, § 190. Union Bank v. Richmond, 94 Va. 316, § 440. Union Bank v. State, 9 Yerg. (Tenn.) 489, § 425. Union Bridge Co. v. United States, 204 U. S. 365, §§ 151, 152. Union College, In re, 129 N. Y. 308, § 287. Union County Board v. Short, 77 111. App. 448, § 238. Union Elevator Co. v. Kansas City Suburban B. R. Co. (Mo.), 33 S. W. 929, § 89. Union Ferry Co., Matter of Applica- tion of, 98 N. Y. 139, § 24. Union Mutual Bldg. Assoc, v. Aichele, 28 Ind. App. 69, § 71. Union Pacific Ry. Co. v. Cheyenne, 113 U. S. 516, §§ 285, 448. Union Pacific Ry. Co. v. Chicago, R. I. & P. R. Co., 164 U. S. 564, § 467. Union Pacific Ry. Co. v. Commis- sioners of Colfax County, 4 Neb. 450, § 15. L^nion Pacific Ry. Co. v. Mason City & Fort Dodge Rd. Co., 199 U. S. 160, §§ 416, 478. Union Pacific Ry. Co. v. Mason City & Fort Dodge R. Co., 128 Fed. 230, § 319. Union Pacific Ry. Co. v. Sprague, 69 Neb. 48, §§ 245, 246. Union Pacific Ry. Co. v. United States, 99 U. S. 700, §§ 319, 321, .391, 400. Union Pacific Ry. Co. v. United States. See Sinking P^und Cases. Union Refrigerator Transit Co. v. Lynch, 18 Utah, 378, § 440. Union St. Rd. Co. v. Snow, 113 Mich. 694. § 337. Uniontown, City of, v. State, 145 Ala. 471, § 21. Uniontown, City of, v. State (Ala., 1905), 39 So. 814, § 132. Union Traction Co. v. Chicago, 199 111. 484, § 41. CXVlll TABLE OF CASES CITED Union Traction Co. v. City of Water- vliet, 71 N. Y. Supp. 977, § 387. Union Trust Co. v, Atchison, Topeka & S F. R. Co., S N. M. 327, §469. Union Water Co. v. Kean, 52 N. J. Eq. Ill, §§ 11,21. Union Water Power Co. v. Auburn, 90Mc. 71, §440. United Electric Co. v. City of Ba- yonne (N. J.), 63 Atl. 996, § 485. United Mines Co. v. Hatcher (C. C), 79 Fed. 517, § 287. United New Jersey R. & Canal Co. v. Parker, (Err. & App., 1908), 69 Atl. 239, § 421. United States v. Alabama Great Southern R. Co., 142 U. S. 615, § 262. United States v, Amedy, 11 Wheat. (24 U. S.) 392, § 65. United States v. American Sugar Ref . Co., 202 U. S. 563, § 287. United States v. Arredondo, 6 Pet. (31 U.S.) 691, § 254. United States v. Atchison, Topeka & Santa Fe Ry. Co., 142 Fed. 176, §287. United States v. Averill, 1.30 U. S. 335, § 270. United States v. Babbit, 1 Black (66 U. S.), 55, § 265. United States v. Bale, 156 Fed. 687, §152. United States v. Benson, 31 Fed. 896, § 265. United States v. Binns, 1 Alaska, 553, § 130. United States v. Bliss, 12 App. D. C. 485, § 262. United States v. Bowen, 100 U. S. 508, § 270. United States v. Carbery, 2 Cranch (C.C), 358, §221. United States v. Cassidy, 67 Fed. 698, § 367. United States v Chicago & A. Ry Co., 148 Fed 646, § 17. United States v. Chicago, P. & St. L. Ry. Co., 143 Fed. 353, § 385. United States (Search) v. Choctaw, O. & G. R. Co., 3 Okla. 404, §§ 96, 341. United States v. Cincinnati & Mus- kingum Valley Ry. Co., 134 Fed. 353, § 127. United States v. Clafiin, 97 U. S. 546, §§ 282, 283. United States v. Colorado & N. W. R. Co., 157 Fed. 321, §§ 237, 238, 262, 267, 402. United States v. Coombs, 12 Pet. (37 U. S.) 72, § 233. United States v. Cruikshanks, 92 U. S. 542, § 289. United States v. Dastervignes, 118 Fed. 190, § 151. United States v. Denver & Rio Grande R. Co., 150 U. S. 1, §§ 241, 256. United States v. Finnell, 185 U. S. 236, § 262. United States v. Fisher, 2 Cranch (6 U.S.), 358, §§ 236,244. United States v. Freeman, 3 How. (44 U.S.) 556, §§ 251, 265. United States v. Goldenberg, 168 U. S. 95, §§ 236, 239. United States v. Great Northern Ry. Co., 145 Fed. 438, §§ 385, 402. United States v. Heth, 3 Cranch (7 U.S.), 399, §§ 254,287. United States v. Insurance Com- panies, 22 Wall. (89 U. S.) 99, § 142. United States v. Jackson, 143 Fed. 783, § 249. United States v. Johnston, 124 U. S. 2.36, § 262. United States v. Joint Traffic Assoc, 171 U. S. 505, § 106. United States v. Jones, 109 U. S. 513, § 155. United States v. Keitel (D. C), 157 Fed. 396, § 152. TABLE OF CASES CITED CXIX United States v. Keokuk & Hamilton Bridge Co. (Dist. Ct.), 45 P^ed. 178, §§ 127, 152. United States, Koechlin, v. Marble, 2 Mackey (D. C), 12, § 265. United States v. Lacher, 134 U. S. 624, § 270. United States v. Lee, 106 U. S. 196, § 416. United States v. Lee Yen Tai, 185 U. S. 213, § 283. United States v. Lewns, 200 U. S. 1, §416. United States v. Louisville & Port- land Canal Co., 1 Flipp. (U. S.) 260, §340. United States v. Maid, 116 Fed. 650, §151. United States v. Matthews (D. C), 146 Fed. 306, § 152. United States v. Milwaukee Refrig- erator Co., 142 Fed. 247, § 11. United States v. Moline (D. C), 82 Fed. 592, § 152. United States v. Northern Pacific Rd. Co., 193 U. S. 1, § 129. United States v. Northern Pac. R. Co., 177 U.S. 435, §341. United States v. Northern Pacific Terminal Co., 144 Fed. 861, § 385. United States v. Northern Securities Co., 120 Fed. 721, § 136. United States v. Oregon & California Rd. Co., 176 U. S. 28, § 129. United States v. Oregon & C. R. Co., 57 Fed. 426, § 262. United States v. Ormsbee (D. C), 74 Fed. 207, § 152. United States v. Palmer, 3 Wheat. (16 U.S.) 610, §§221,244. United States v. Pugh, 99 U. S. 265, § 262. United States v. Rickert, 188 U. S. 438, § 120. United States v. Rider (D. C), 50 Fed. 406, § 152. United States v. St. Anthony Rd. Co., 192 U.S. 524, § 251. United States v. Saunders, 22 Wall. (89 U. S.) 492, § 239. United States v. Shannon (C. C), 151 Fed. 863, § 152. United States v. Southern Pacific Rd. Co., 184 U. S. 49, § 129. United States v. Stanford, 161 U. S. 412, § 124. United States v. Stanford, 70 Fed. 346, § 123. United States v. Tenn. & C. R. Co., 176 U. S. 242, §§ 129, 341. United States v. Trans-Missouri Freight Assoc, 166 U. S. 290, §§ 97, 216, 245, 262, 287, 403. United States v. Trans-Missouri Freight Assoc, 58 Fed. 58, § 265. United States v. Trans-Missouri Freight Assoc, 53 Fed. 440, § 22. United States v. Union Bridge Co., 143 Fed. 377, §§ 147, 152. United States v. Union Pacific Ry. Co. & Western Union Teleg. Co., 160 U. S. 1, §§ 321, 469. United States v. Union Pacific Ry. Co., 98 U. S. 569, §§ 230, 486. United States v. Union Pacific Ry. Co., 91 U. S. 72, §§ 216, 220, 244, 262. United States v. Union Pacific Ry. Co., 37 Fed. 551, § 244. United States v. Walker, 22 How. (63 U. S.) 299, § 265. United States v. Western Union Teleg. Co., 70 Fed. 28, §§ 321, 469. United States v. Wong Kim, 169 U.S.649, § 212. United States Bank v. Dandridge, 12 Wheat. (25 U. S.) 64, §§ 11, 18, 350. United States Capsule Co. v. Isaacs, 23 Ind. App. 533, § 464. United States Electric L. Co. v. Ross, 9 App. D. C. 558, § 257. United States Illuminating Co. v. Hess, 3 N. Y. Supp. 777, § 19. United States Life Ins. Co. v. Cable, 98 Fed. 767, § 355. cxx TABLE OF CA.SES CITKD Unity V. Burrage, 108 U. S. 447, §§ 247, 284. University v. People, 99 U. S. 309, §460. Urquhart v. Brown, 205 U. S. 179, §416. Utah, N. & C. R. Co. v. Utah & C. Ry. Co., 110 Fed. 879, § 486. Utica, City of, v. Utica Teleph. Co., 24 N. Y. App. Div. 361, § 140. Utley V. Clark-Guardian Lode Min. Co., 4 Colo. 369, § 51. Utsy V. Hiott, 30 S. Car. .360, § 234. V. Van Allen v. Assessors, 3 Wall. (70 U. S.) 573, § 425. Vance v. W. A. Vandercook Co., 170 U. S. 438, § 370. Vanceburg & S. L. Turnpike Road Co. V. Maysville & B. S. R. Co., 25 Ky. L. Rep. 1404, § 421. Vandyke v. City of Cincinnati, 1 Disn. 532, § 387. Van Epps v. Same, 84 App. Div. 91, §33. Van Hook v. City of Selma, 70 Ala. 361, § 366. Vanhorne v. Dorrance, 2 Dall. (2 U. S.) 304, §§ 204, 252. Van Matre v. Sankey, 148 111. 536, §271. Van Pelt v. Gardner, 54 Neb. 701, §282. Van Slyke v. Wisconsin, 154 U. S. 581, \ 439. Van Steuben v. Central R. Co., 178 Pa. 367, § 472. Veazie Bank v. Fenno, 8 Wall. (75 U. S.) 533, §§ 26, 126. Vega Steamship Co. v. Consolidated Elevator Co., 75 Minn. .308, § 299. Veginan v. Morse, 160 Mass. 143, §173. Venner v. Farmers' Loan & Tru.st Co., 90 Fed. 348, § 478. Vermont Loan & Trust Co. v. Whit- bed, 2 N. Dak: 82, § 239. Vicksburg v. Vicksburg Water Works Co., 202 U. S. 453, § 477. Victoria County v. Victoria Bridge, 68 Tex. 62, § 257. Victoria Lumber Co. v. Rives, 115 La. 996, § 218. Viemeister v. White, 84 N. Y. Supp. 712, § 261. Village of Champlain v. McCrea, 165 N. Y. 264, § 282. Village of London Mills v. Fairview- London Teleph. Circuit, 105 111. App. 146, § 314. Village of London Mills v. White, 208 111. 289, §§ 33, 314. Village of Phoenix v. Gannon, 108 N. Y. Supp. 255, § 344. Village of Portchester, In re Locust Ave., 97 N. Y. Supp. 508, § 283. Village of Saratoga Springs v. Sara- toga Gas, Electric Light & Power Co., 191 N. Y. 123, § 160. Vilter Mfg. Co. v. Milwaukee, Burling- ■ ton & Lake Geneva Rd. Co., 116 Wis. 142, § 16. Vincennes v. Citizens' Gas Light Co., 132 Ind. 114, § 257. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, § 300. Vink V. Work, 158 Ind. 638, § 86. Virginia Canon Toll Road Co. v. Peo- ple, 22 Colo. 429, §§ 8, 17. Virginia Coupon Cases (Poindexter V. Greenhow), 114 U. S. 270, §416. Virginia Passenger & Power Co. v. Commonwealth, 103 Va. 644, § 398. Visalia Gas & E. L. Co. v. Sims, 104 Cal. 326, §§ 472, 473. Voigt v. Kersten, 164 111. 314, § 287. Von Hoffman v. City of Quincy, 4 Wall. (71 U. S.) 535, § 334. W. Wabash Electric Co. v. City of Wy- more, 60 Neb. 199, § 390. Wabash R.. Co. v. Defiance, 167 U. S. 88, § 381. TABLE OF CASES CITED CXXl Wabash, St. L. P. Ry. Co. v. lUinoLs. 118U.S. 557, §§ 391,400. Wabash, St. Louis & Pacific Ry. Co. V. Binkert, 106 111. 208, §§ 238, 239, 266. Wade V. Atlantic Lumber Co. (Fla.), 41 So. 72, §§ 245, 247. Wadsworth v. Eau Claire County Supervisors, 102 U. S. 534, § 316. Wadsworth v. Smith, 11 Me. 278, §17. Waggoner v. Flack. 188 U. S. 595, §279. Walker v. New Mexico & Southern Pac. Ry. Co., 165 U. S. 593, § 139. Walker v. Vicksburg, S. & P. Ry. Co.. 110 La. 718, § 237. Wallace v. Ann Arbor D. Y. Electric Ry. Co., 121 Mich. 528, § 464. Wallace v. Board of Equalization (Ore.), 86 Pac. 356, §§262, 453, 455. Wallace v. City of Reno. 27 Nev. 71, §120. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, §§ 16, 313. Walling V. Michigan, 116 U. S. 446, § 131. Walsh V. New York Floating Dry Dock Co., 77 N. Y. 448, § 17. Walston V. Nevins, 128 U. S. 578, § 300. Ward V. Gentry County Board of Equalization, 135 Mo. .309, §§ 245, 421. Ward V. Sea Ins. Co., 7 Paige (N. Y.), 294, § 489. Warfield v. Marshall County Canning Co., 72 Iowa, 666, § 463. Waring v. Clarke. 5 How. (46 U. S.) 441, § 212. Warner v. Beers, 23 Wend. (N. Y.) 103, § 51. Warner v. Ford Lumber & Mfg. Co.. 29 Ky. L. Rep. 527, § 80. Warren v. Board of Registration, 72 Mich. 398, § 262. Warsaw Water Works Co. v. Village of Warsaw, 44 N. Y. Supp. 876, § 394. Washburn, Town of, v. Washburn Water Works Co. (Wis.), 98 N. W. 539, § 434. Washburn Water Works Co. v. City of Washburn, 129 Wis. 73, §§ 118, 148, 195. Washington Investment Assoc, v. Stanley, 38 Oreg. 319, § 71. Wastl V. Montana Union Ry. Co., 24 Mont. 159, § 1.39. Watauga Water Co. v. Wolfe, 99 Tenn. 429, § 63. Watensblen v. Haithcock, 80 Ala. 565, § 250. * Waterbur>' & Co. v. City of Laredo, 60 Tex. 519, § 51. Water Commissioners. See Board of. Water, Light & Gas Co. of Hutchin- son V. City of Hutchinson, 207 U. S. 385, §§ 4, 23. Water Pipe Co., Lim., v. State Board of Assessors, 57 N. J. L. 516, § 52. Waters-Pierce Oil Co. v. McElroy (Tex. Civ. App.), 47 S. W. 272, § 343. Waters- Pierce Oil Co. v. Texas, 177 U. S. 28, §§ 51, 352, 354. Watson v. Fairmont & Suburban Ry. Co., 49 W. Va. 528, §§ 3, 188. Watson V. Lane, 52 N. J. L. 550, § 271. Watson V. Mercer, 8 Pet. (33 U. S.) 88, § 287. Watson V. Orr, 14 N. Car. 161, § 271. W^atson, In re, 17 S. Dak. 886, § 137. Watson Seminary v. Pike County, 149 Mo. 57, § 312. Weaver v. Lapsley, 43 Ala. 224, § 245. Webb v. Ritter, 60 W. Va. 193, §§ 236, 2.39, 263, 266. Webber v. Clarke, 74 Cal. 11, § 287. Weber v. Rogan, 188 U. S. 10, §§ 305. 306. Weddell v. Commonwealth, 84 Ky. 276, § 283. Weed V. City of Binghamton, 71 N. V. Supp. 282, § 387. CXXll TABLE OF CASES CITED Weeks v. Smith, 81 Me. 538, §§ 229, 231. Weems Steamboat Co. v. People's Steamboat Co., 141 Fed. 454, §§ 119, 391. Wehrenberg v. New York, New Haven & Hartford Rd. Co., 108 N. Y. Supp. 704, §§ 236, 238. Weil V. State, 46 Ohio St. 450, §245. Weir V. MetropoHtan St. Ry. Co., 126 Mo. App. 471, § 53. Weir V. Norman (Adams Express Co. V Kentucky), 166 U. S. 171, §§ 9, 420, 421, 423. Weir V. State, 161 Ind. 435, § 229. Welch V. Cook, 97 U. S. 541, § 460. Wellmaker v. Terrell (Ga. App., 1908), 60 S. E. 464, § 2.33. Wellman v. Chicago & G. T. R. Co., 83 Mich. 592, § 412. Wells V. Burbank, 17 N. H. 393, § 56. Wells V. Missouri Pac. R. Co., 110 Mo. 286, § 231. Welsh V. Plumas County, 94 Cal. 368, §350. Welton V. Missouri, 91 U. S. 275, § 404. Wenger v. Taylor, 39 Kan. 754, §236. West V. Louisiana, 194 U. S. 258, §272. West Branch Boom Co. v. Pennsyl- vania Joint Lumber & Land Co., 121 Pa. 14.3, § 250. West Chester Borough v. West Ches- ter St. Ry. Co., 203 Pa. 201, § 337. West Chicago St, Ry. Co. v. Chicago, 201 U. S. 506, §§ 298, 340. West Chicago St. Ry. Co. v. Illinois, 207 U. S. 506, § 298. West Coast Naval Stores Co. v. Louisville & N. R. Co. (C. C. A.), 121 Fed. 645, § 391. Western & A. R. Co. v. State (Ga.), 14 L. A. R. 438, § 262. Western Invest. Bkg. Co. v. Murray (Ariz.), 56 Pac. 728, § 249. Western Plank Road Co. v. Central Union Tel. Co., 116 Ind. 227, § 95. Western Turf. Assn. v. Greenburg, 204 U. S. 359, §§ 66, 296. Western Union Teleg. Co. v. Ala- bama, 132 U. S. 472, §§ 358, 432. Western Union Teleg. Co. v. Ameri- can Union Teleg. Co., 65 Ga. 160, §§ 82, 469. Western Union Teleg. Co. v. Ameri- can Union Teleg. Co., 9 Biss. (C. C.) 72, § 469. Western Union Teleg. Co. v. An- drews, 154 Fed. 95, § 147. Western Union Teleg. Co. v. Atlantic & Pacific Teleg. Co., 7 Biss. (C. C.) 108, § 469. Western Union Teleg. Co. v. Attorney General of Massachusetts, 125 U. S. 5.30, §§131, 425. Western Union Teleg. Co. v. Austin, 67 Kan. 208, §§ 232, 234, 265. Western Union Teleg. Co. v. Borough of New Hope, 187 U. S. 419, § 356. Western Union Teleg. Co. v. Call, 181 U. S. 92, § 413. Western Union Teleg. Co. v. City of Fremont, 43 Neb. 499, § 360. Western Union Teleg. Co. v. City of New York, 38 Fed. 552, § 298. Western Union Teleg. Co. v. City of Omaha (Neb.), 103 N. W. 84, §§ 9, 12, 20, 33, 39, 47, 424. Western Union Teleg. Co. v. City of Visalia, 149 Cal. 744, §§ 16, 48, 379. Western Union Teleg. Co. v. Harris (Tenn.), 52 S. W. 748, § 360. Western Union Teleg. Co. v. Indiana, 165U. S. 304, § 421. Western Union Teleg. Co. v. James, 162 U. S. 650, §§ 120, 131, 366, 376. Western Union Teleg. Co. v. Lark, 95 Ga. 806, § 376. Western Union Teleg. Co. v. Lowrey, 32 Neb. 732, § 245. Western Union Teleg. Co. v. Massa- chusetts, 125 U. S. 530, §§ 131, 432. TABLE OF CASES CITED CXXlll Western Union Teleg. Co v. Mayer, 24 Ohio St. 521, § 67. Western Union Teleg. Co. v. Mayor of New York, 38 Fed. 552, §§ 131, 314. Western Union Teleg. Co. v. Mellon, 100 Tenn. 429, § 376. Western Union Teleg. Co. v. Missouri ex rel. Gottlieb, 190 U. S. 412, §§ 182, 432, 448. Western Union Teleg. Co. v. Missis- sippi R. Commission, 74 Miss. SO, §131. Western Union Teleg. Co. v. Myatt, 98 Fed. 335, §§ 135, 147, 180, 365. Western Union Teleg. Co. v. Norman, 77 Fed. 13, §§ 2 8, 34, 132, 419, 420, 421, 425, 432. Western Union Teleg. Co. v. Pendle- ton, 122 U. S. 347, §§ 366, 376. Western Union Teleg. Co. v. Railroad Commission (La.), 45 So. 598, §§ 205, 213. Western Union Teleg. Co. v. Rich- mond, 26 Gratt. (Va.) 1, § 64. Western Union Teleg. Co. v. State Board of Assessors, 80 Ala. 273, § 238. Western Union Teleg. Co. v. Taggart, 163U.S.1,§§ 426, 4.32. Western Union Teleg. Co. v. Tyler, 94 Va. 268, § 376. Western Union Teleg. Co. v. Tyler, 90 Va. 297, §§ 131, 376. Western Union Teleg. Co. v. Western & Atlantic Teleg. Co., 91 U. S. 283, §469. Westfield Borough v. Tioga County, 150 Pa. 152, § 15. West Hartford v. Hartford Water Commrs., 68 Conn. 323, § 269. West Manayunk Gas Light Co. v. New Gas Light Co., 21 Pa. Co. Ct. Rep. 378, §§ 3, 16, 23, 257, 486. West Point Water Power & L. I. Co. V. State, 49 Neb. 223, §§ 138, 245. Westport, City of, v. Mulholland, 1.59 Mo. 86, §§ 335, 344. West River Bridge v. Dix, 6 How. (47 U. S.) 507, §§ 26, 332, 412. West Side Electric Co. v. Consolidated Teleph. Co., 96 N. Y. Supp. 609, §§ 191, 379. West Virginia & P. R. Co. v. Harrison County Court (W. Va.), 34 S. E. 786, § 349. West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, §§ 82, 88. West Wisconsin Ry. Co. v. Trempea- leau County, 93 U. S. 595, § 460. Wetumpka v. Winter, 29 Ala. 651, § 238. Weyeth Hardware & M. Co. v. James- Spencer-Bateman Co., 15 Utah, 110, §§42, 51. Wheat V. Smith, 50 Ark. 266, § 236. Wheeler v. County Commissioners, 88 Me. 174, § 423. Wheeling & Belmont Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287, §§ 340, 412, 455. Wheeling Bridge & Terminal Ry. Co. V. Gilmore, 8 Ohio Cir. Ct. R. 655, §66. Whitbeck v. Mercantile Nat. Bank, 127 U. S. 193, § 182. White V. Brownell, 4 Abb. Pr. (N. S.) (N. Y.) 162, § 11. White V. Chicago, M. & St. Paul R. Co., 5 Dak. 508, § 269. White V. Chowan, Commrs. of, 90 N. Car. 437, § 56. White V. Meadville, 177 Pa. 643, §265. White V. State, 69 Ind. 273, § 64. White V. State, 134 Ala. 197, § 270. White V. United States, 191 U. S. 545, § 287. Whitfield V. ^tna Life Ins. Co. of Hartford, 205 U. S. 489, §§ 3.52, 365. Whitlock V. Hawkins, 105 Va. 242, §§ 137, 287. Whitman v. Mast, Buford & Burwcll Co., 11 Wash. 318, § 271. CXXIV TABLE OF CASES CITED Whitmyre v. Mast, Buford & Burwell Co., 84 App. Div. 91, § 33. Wichita, City of, v. Missouri & K. Teleph. Co., 70 Kan. 441, § 379. Wiggins Ferry Co. v. Ohio D. M. R. Co., 142 U. S. 396, § 478. Wight V. Davidson, 181 U. S. 371, §399. Wight V. United States, 167 U. S. 512, § 403. Wilcox V. McClellan, 185 N. Y. 9, §§ 148, 192. Wild V. Boston & M. R. Co., 171 Mass. 245, § 287. Wilkes-Barre Bank v. Wilkes-Barre, 148 Pa. 601, § 425.' Wilkes-Barre Elec. L. Co. v. Wilkes- Barre L., H. & M. Co. (C. P. Penn., 1886), 4 Kulp, 47, § 23. Wilkes County v. Call, 123 N. Car. 308, § 316. Wilkes County v. Coler, 180 U. S. 506, §§ 273, 275. Wilkins v. State, 113 Ind. 514, § 2.34. Wilkins County v. City of Baltimore, 103 Md. 293, §§ 453, 454. Wilkinson v. Evans, 34 Pa. Super. Ct. 472, § 53. Wilkinson v. Leland, 2 Pet. (27 U. S.) 627, § 239. Willcox V. Consolidated Gas Co. See "Appendix C," herein. Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, §§ 127, 152. Williamette Mfg. Co. v. Bank of Brit- ish Columbia, 119 U. S. 191, §§ 3, 10, 465, 471. Williams v. Bank, 7 Wend. (N. Y.) 540, § 350. WiUiams v. Brousard, 51 La. Ann. 335, § 423. Williams v. City Electric Ry. Co., 41 Fed. 556, § 111. Williams v. Cresswell, 51 Miss. 817, §130. Williams v. Gold Hill Min. Co., 96 Fed. 454, § 272. Williams v. Mayor, etc., of New York, HON. Y. 569, §33. Williams v. Miles, 62 Neb. 566, § 264. Williams v. Parker, 188 U. S. 491, § 399. Williams v. Supervisors of Albany, 122 U. S. 154, § 182. Williams v. Western Union Teleg. Co., 48 N. Y. Super. Ct. 349, §§ 425, 446. Williamson v. Carlton, 51 Me. 449, § 231. Williamson v. Liverpool & London & Globe Ins. Co., 141 Fed. 54, § 300. Williamsport Passenger R. Co.'s Ap- peal, 120 Pa. 1, § 317. Willis v. Eastern Trust & Banking Co., 169 'U. S. 295, § 269. Willoughby v. Horridge, 16 Eng. L. & Eq. 437, §§ 14, 97. Wilmington v. Addicks (Del.), 47 Atl. 366, § 307. Wilmington & Reading Ry. Co. v. Downward (Del.), 14 Atl. 720, §§1, 11, 26. Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279, §§ 412, 452, 455, 451), 479. Wilmington City R. Co. v. Wilming- ton & Brandywine Springs R. Co. (Del. Ch.), 46 Atl. 12, §§ 12, 26, 307, 317. Wilmington Ry. v. Reid, 13 Wall. (.80 U. S.) 264, §§ 26, 34, 454, 459, 460. Wilmington Star Mining Co. v. Ful- ton, 205 U. S. 60, § 295. Wilmington Water Power Co. v. Evans, 166 111. 548, §§ 3, 122, 1.32, 133, 463. Wilson V. Blackbird Creek Marsh Co., 2 Pet. (27 U. S.) 245, § 152. Wilson V. Briscoe, 6 Eng. (11 Ark.^ 44, § 239. Wilson V. Gabler, 11 S. Dak. 579, § 194. Wilson V. Gaines, 9 Baxt. (68 Tenn.) 546, §§ 12, 20, 480. TABLE OF CASES CITED cxxv Wilson V. Kansas City, St. J. & C. B. R. Co., 60 Mo. 184, § 372. Wilson V. Spaulding (C. C), 19 Fed. 304, § 221. Winchester & L. Turnpike Road Co. V. Croxton, 98 Ky. 739, § 397. Winchester & Strasburg Rd. Co. V. Commonwealth, 106 Va. 264, §§170, 464. Winn V. Wabash R. Co., 118 Fed. 55, §§ 67, 481. Winnebago (Iroquois Transp. Co. v. De Laney Forge & Iron Co.), 205 U. S. 354, § 229. Winona & St. Peter Rd. Co. v. Blake, 94 U. S. 180, §§ 167, 381, 391, 400. Winspear v. District Township of Halman, 37 Iowa, 542, § 56. Winston, City of, v. Town of Salem, 131 N. Car. 404, § 440. Winters v. City of Duluth, 82 Minn. 127, §§ 56, 118. Wisconsin & M. R. Co. v. Powers, 191 U.S. 379, §§458,460. Wisconsin Central R. Co. v. For- sythe, 159 U. S. 46, § 256. Wisconsin Central R. Co. v. Taylor, 52 Wis. 57, §§ 216, 223. Wisconsin Central R. Co. v. United States, 164 U. S. 190, §§ 254, 263. Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis. 153, §62. Wisconsin, M. & P. R. Co. v. Jacob- son, 379 U. S. 287, §§ 167, 381, 386. Wiswall V. Hall, 3 Paige (N. Y.), 313, §17. Witbrcck V. Holland, 45 N. Y. 13, §79. Withers v. Buckley, 20 How. (61 U. S.) 84, § 275. Wolf V. Bauereis, 72 Md. 481, § 213. Wood V. Brady, 150 U. S. 18, § 259. Wood V. City of Seattle, 23 Wash. 1, § 347. Wood V. Common Council of (Jity of Binghamton, 56 N. Y. Supp. 105, §24. Wood V. Fitzgerald, 3 Ore. 568, § 224. Wood V. Truckee Turnpike Co., 24 Cal. 474, § 17. Woodall V. Boston Elevated Ry. Co. (Mass., 1906), 78, § 283. Woodfork v. Union Bank, 3 Coldw. (43 Tenn.) 488, § 311. Woodruff V. New York & N. E. R. Co., 59 Conn. 63, § 366. Woods V. Colfax County, 10 Neb. 552, §56. Woods V. Lawrence County, 1 Black (66 U. S.), 386, §§ 3, 236, 256. Woodson V. Murdock, 22 Wall. (89 U. S.) 351, § 247. Woodward v. Commonwealth, 9 Ky. L. Rep. 670, § 67. Woodworth v. Bowles, 61 Kan. 569, §227. Woolsey v. Cade, 54 Ala. 378, § 270. Worcester v. Worcester Consol. St. Ry. Co., 182 Mass. 49, § 337. Worcester, City of, v. Worcester Con. St. Ry. Co., 196 U. S. 539, §§ 337, 343. Workman v. Southern Pacific R. Co., 129 Cal. 536, §§ 47, 241. Worth V. Wilmington & Weldon Rd. Co., 89 N. Car. 291, § 26. Wortham v. Basket, 99 N. Car. 70, § 265. Wright V. Adams, 45 Tex. 134, § 233. Wright V. Baltimore & Ohio Rd. Co., 32 Pa. Super. Gt. 5, § 63. Wright V. Cunningham, 115 Tenn. 445, § 137. Wright V. Milwaukee Electric R. & L. Co., 95 Wis. 29, §§ 465, 488. Wright V. Minnesota Life Ins. Co., 193 U. S. 657, § 339. Wright V. Nagle, 101 U. S. 791, §§ 17, 23, 171, 145, 148, 254, 257, 313. Wright V. Sill, 2 Black (67 U. S.), 644, § -334. Wright V. Southern R. Co. (C. C), 80 Fed. 260, § 287. Wrought Iron Range Co. v. Carver, 118 N. Car. 328, § 288. CXXVl TABLE OF CASES CITED Wulff V. Aldrich, 124 111. 591, § 216. Wyandotte Elec. L. Co. v. City of Wyandotte, 124 Mich. 43, § 33. Wynn Johnson, In re, 1 Alaska, 630, §233. Wyoming Agricultural College v. Ir- vine, 206 U. S. 278, § 69. Yankton Sav. Bank v. Gutterson, 15 S. Dak. 486, § 269. Yarbrough, Ex parte, 110 U. S. 651, §416. Yard v. Ford, 2 Saund. 172, § 15. Yarmouth v. North Yarmouth, 34 Me. 411, §§61, 115, 132,311. Yazoo V. Adams, 180 U. S. 1, §§ 479, 481, 483. Yazoo & M. V. R. Co. v. Board of Levee Commrs., 37 Fed. 24, §§ 61, 412, 453, 459. Yazoo & M. V. R. Co. v. Thomas, 132 U. S. 174, § 455. Yick Wo V. Hopkins, 118 U. S. 356, §§ 136, 298. Yonkers, City of, v. Yonkers R. Co., 64 N. Y. Supp. 955, § 387. York V. Washburn, 129 Fed. 564, § 272. Youghiogheny & Ohio Coal Co. v. Erie Ry. Co., 24 Ohio Cir. Ct. Rep. 289, § 103. Young v. City of Kansas City, 152 Mo. 661, § 136. Young V. Commonwealth, 101 Va. 853, § 231. Young V. Harrison, 6 Ga. 130, §§ 17, 145. Young V. Webster City & So. West. Ry. Co., 75 Iowa, 140, §§ 1, 5, 11. Younger v. Webster City & So. West. R. Co., 75 Iowa, 140, § 491. Youngerman v. Murphy, 107 Iowa, 686, § 245. Young, Ex parte, 209 U. S. 123 (see "Appendix C," herein), § 416. Young Men's Christian Assoc, of Omaha v. Douglass County, 60 Neb. 642, § 455. Young's Case, 101 Va. 853, § 231. Youree v. Home Town Mut. Ins. Co., 180 Mo. 153, § 491. Z. Zabriskie v. Hackensack & N. Y. R. Co., 18 N. J. Eq. 178, §311. Zanesville, City of, v. Zanesville Teleg. & Teleph. Co., 64 Ohio St. 67, §§ 135, 179. Zeiger v. Pennsylvania R. Co., 158 Fed. 809, § 272. Zeigler v. South & N. A. R. Co., 58 Ala. 594, § 231. Zeigler v. Thompson, 43 La. Ann. 101.3, § 89. Zimmer v. State, 30 Ark. 677, § 20. Zirele v. Southern Ry. Co. (Va.), 45 S. E. 802, §§ 63, 136. JOYCE ON FRANCHISES, ESPECIALLY THOSE OF PUBLIC SERVICE CORPORATIONS. CHAPTER I. DEFINITIONS. 1. Definition of Franchise by Finch, Blackstone, Chitty, Cruise and Kent. 2. Chief Justice Taney's Defini- tion of a Franchise. 3. Other Definitions and Expres- sions Classified — Franchises. 4. "Franchise" as a Contract — As an Exclusive Right. 5. "Corporate Franchise" — Cor- porate Franchises. § 6. General Franchise of Corpora- tion. 7. Special Franchise of Corpora- tion. 8. Primary Franchise and Secon- dary Franchises of Corpora- tion. 9. "Franchise" Under Constitu- tions and Statutes. Section 1. Definition of Franchise by Finch, Blackstone, Chitty, Cruise and Kent.— Finch says "a franchise is a royal privilege in the hands of a subject." ' This definition is one of those quoted by Kent,^ and has not only been adopted and followed substantially by Blackstone/"' Chitty/ and Cruise,-' but it has also been accepted, either in the words of Finch or in those of Blackstone, as an authority and quoted by subse- ^ Finch's Laws of Eng. 126 [38.] ^ Kent's Comm. (14 ed.), bottom p. 723, *p. 458. ' " A royal privilege or branch of the king's prerogative, subsisting in the hands of a subject," 2 Blackstone's Comm. (Lewis's ed.), bottom p. .506, *37; (Hammond's ed.) 67 [37]; (Wen- dell's ed.) 37, side p. [38]; (Shars- wood's ed.) 37; (Chase's ed.) 234, *37. '' Chitty on Prerogatives, p. 119. ^ 3 Greenleaf's Cruise on Real Prop- erty (ed. 1850), 55, *260, giving same definition as Blackstone. 1 §1 DEFINITIONS quent writers and likewise by the courts in numerous opinions and cases.® ^ United States: California v. Cen- tral Pacific Rd. Co., 127 U. S. 1, 40, 32 L. ed. 346, 9 Sup. Ct. 6 (taxation of franchises of railroad company amongst which were franchises con- ferred by the United States); Talcott V. Township of Pine Grove, 1 Flipp (U. S. C. C), 120, 142, Fed. Cases No. 13,735, per Emmons, Cir. J. Alabama: Horst, Mayor, etc., v. Moses, 48 Ala. 146, per Peters, J., in dissenting opinion; State v. Moore & Ligon, 19 Ala. 520, per Parsons, J. California: Spring Valley Water Works V. Schottler, 62 Cal. 69, 106, per Thornton, J. Connecticut: Norwich Gas Light Co. V. The Norwich City Gas Co., 25 Conn. 19, 36, per Hinman, J. (a case of right to lay gas-pipes in streets) . Illinois: Lasher v. People, 183 111. 226, 232, per Cartwright, C. J.; Belle- ville V. Citizens' Horse Ry. Co., 152 111. 171, 185, 38 N. E. 584, 26 L. R. A. 681, per Baker, J. (a case holding that corporate property cannot be forfeited by ordinance); Fietsam v. Hay, 122 111. 293, 295, 13 N. E. 501, 11 West. Rep. 582, 3 Am. St. Rep. 492, per Mulkey, J. (a case of right to sell or transfer); Chicago & West- em Indiana Rd. Co. v. Dunbar, 95 111. 571, 575, per Dickey, J. (a case of what is a franchise under a state constitution and also as to appellate jurisdiction); People v. Holtz, 92 111. 426, 428 (holding that an office is not a franchise); Board of Trade of Chicago V. The People, 91 111. 80, 83 (a question of appeal and the right of a member of a Board of Trade to be restored to membership); Chicago City Ry. v. People, 73 111. 541, 547 (a case of quo warranto against a street railway company); People ex rel. Koerner v. Ridgley, 21 111. 65, 69, per Breese, J.; Cain v. City of Wyo- ming, 104 111. App. 538, 540, per Brown, J. (a case of a grant for the use of streets made by city ordinance for a water works system, also of mu- nicipal indebtedness and powers) . Iowa: Prosser v. Wapello County, 18 Iowa, 327, 333, per Dillon, J. Kansas: State v. City of Topeka, 30 Kan. 653, 657, 2 Pac. 587, per Hor- ton, C. J. (holding that the right of licensing the sale of intoxicating liq- uors as a beverage and the exaction of tax or charge therefor was a fran- chise or privilege which no city in the State had the power to exercise and that quo warranto was the proper remedy in case of an unlawful as- sumption of such power.) Kentucky: Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420 (" a branch of the king's prerogative subsisting in the hands of a subject," A case of corporation failing to report for franchise tax); Commonwealth v. City of Frankfort, 13 Bush (76 Ky.), 185, 189, per Lindsey, C. J. (a lottery case). Louisiana: Maestri v. Board of As- sessors, 110 La. 517, 526, 34 So. 658, per Blanchard, J. Michigan: Mayor v. Park Commis- sioners, 44 Mich. 602, 604, 7 N. W. 180, per Cooley, J. (a case of a pub- lic park as a public franchise). Minnesota: State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 3 L. R. A. 510, 41 N. W. 1020, per Mitchell, J. ("The definition of a 'franchise' given by Finch, adopted DEFINITIONS 51 Another definition, given by Kent, is that franchises are "certain privileges conferred by a grant from govern- ment, and vested in individuals," ^ and this definition has by Blackstone, and accepted by every authority since, is ' a royal privilege or branch of the King's prerogative, subsisting in the hands of a subject.' ' A case involving the Constitution; quo warranto; corporations under Act 1873; Ultra Vires acts; forfeiture). New York: Peoplev. Uticalns. Co., 15 Johns. (N. Y.) 357, 386, 387, 8 Ana. Dec. 243, per Spencer, J. ("All the elementary writers agree in adopting Finch's definition." A case of usurpation of franchise by insur- ance company to carry on banking business as a corporation). Ohio. State v. Pittsburgh, Youngs- town & Ashtabula Rd., 50 Ohio St. 239, 251, 33 N. E. 1051, per Mar- shall, J. (a case of quo warranto); Knoup v. Piqua Bank, 1 Ohio St. 603, 613, per Corwin, J. ("A fran- chise is a royal privilege subsisting in a subject by a grant from the crown.") Pennsylvania: Douglass's Appeal, 118 Pa. 65, 68, per Master's Re- port; Commonwealth v. Arrison, 15 Serg. & R. (Pa.) 127, 130, 16 Am. Dec. 531, per Tilghman, C. J. ("A franchise is a word of extensive sig- nification. It is defined by Finch, whom all sub.sequent writers have followed, to be a 'royal privilege in the hands of a subject.' " A case of information in nature of quo war- ranto against persons acting as trustees of incorporated church.) See Twelfth St. Market Co. v. Phila- delphia & Reading Term. Co., 142 Pa. 580, 590, 21 Atl. 989, per Thayer, P. J.; Shamokin Valley Rd. Co. v. Livermore, 47 Pa. 465, 468, 86 Am. Dec. 552, per Agnew, J. South Dakota: State v. Scougal, 3 S. Dak. 55, 62, 15 L. R. A. 477, 44 Am. St. Rep. 756, per Corson, J. (a case of banking business). West Virginia: State v. Peel Splint Coal Co., 36 W. Va. 802, 813, 17 L. R. A. 385, 15 S. E. 1000, per Lucas, Pres. (a case of constitutional law; " Scrip " act; laborers' wages; Screening act; weighing and measur- ing coal; construction of statutes and indictment). England: Attorney General v. Trustees of British Museum, Law Rep. (1903), 2 Chan. Div. 598, 612, per Farwell, J. ("A franchise is a royal privilege or a branch of the king's prerogative subsisting in a subject by a grant from the king. Chitty on Prerogatives, 119. So long as it is attached to the Crown it is called a prerogative, but when it is granted to a subject it is called a franchise. Chitty on Prerogatives, 118." A case of treasure-trove held not to pass under a general grant of franchises, but must be expressly granted when it becomes a franchise in the grantee.) See also Viner's Abridg., "Fran- chises," 508; Angell & Ames on Corp. (9th ed.), §§ 4, 737; Bouvier's L. Diet.; Brown's L. Diet.; Bum's L. Diet.; Burrill's L. Diet.; 3 Jacob's L. Diet., 122, title "Franchises;" Kin- ney's L. Diet. & Gloss.; Rapalje & Lawrence's L. Diet.; Shumaker & Longsdorf's Cyc. Diet.; Stroud's Judic. Diet.; Mozley & Whiteley's L. Diet. ' Kent's Comm. (14 ed.), bottom p. 723, *p. 458. § 1 DEFINITIONS also been adopted and relied upon by the courts to a great extent.® And with the exception that the words "particular privilege" are used instead of the words "certain privileges" this last definition by Kent has also been given in a number of opinions.^ Other forms of this definition are as follows: ° Alabama: Horst, Mayor, etc., v. right of transfer and construction of Moses, 48 Ala. 129, 146, per Saf- charter), quoting Bouvier's L. Diet., fold, J. but definition same as Kent's. Arkansas: State v. Real Estate Maine: Kennebec & Portland Rd. Bank, 5 Ark. (5 Pike) 595, 599, 41 Co. v. Portland & Kennebec Rd. Co., Am. Dec. 109, per Lacy, J. 59 Me. 9, 66, dissenting opinion of California: Henshaw ex parte, 73 Tapley, J. (mortgage and foreclosure Cal. 486, 493, 15 Pac. 110, per Mc- of railroad franchise and other prop- Kinstry, J.; Spring Valley Water erty), citing Bouvier's L. Diet., but Works V. Schottler, 62 Cal. 69, 106, definition same as Kent's, per Thornton, J. Minnesota: McRoberts v. Wash- Colorado: Londoner v. People, 15 burne, 10 Minn. 23, 27. Colo. 246, 247, 25 Pac. 183, per New York: Milhau v. Sharp, 27 Hayt, J.; Arapahoe County v. Rocky N. Y. 611, 619, 84 Am. Dec. 314, per Mountain News Printing Co., 15 Selden, J., quoting Bouvier's L. Colo. App. 189, 202, 61 Pac. 494, per Diet., but definition same as Kent's. Wilson, J. Ohio: State v. Pittsburgh, Youngs- Delaware: Wilmington & Reading town & Ashtabula Rd. Co., 50 Ohio Ry. Co. V. Downward (Del. Ct. Err. St. 239, 251, 33 N. E. 1051, per & App., 1888), 14 Atl. 720, 721, per Minshall, J. Saulsbury, Ch. J. Oregon: Montgomery v. Multno- Georgia: State ex rel. Waring v. mah Rd. Co., 11 Oreg. 344, 354, Georgia Medical Society, 38 Ga. 608, per Lord, J. 626, 95 Am. Dec. 408, citing Bou- Wisconsin: Sellers v. Union Lum- vier's L. Diet., but definition same as bering Co., 39 Wis. 525, 527, per Kent's. Ryan, C. J. Illinois: Fietsam v. Hay, 122 111. ' California: Ex parte Henshaw, 73 293, 295, 13 N. E. 501, 11 West. Rep. Cal. 486, 492, 15 Pac. 110, per Mc- 582, 3 Am. St. Rep. 492, per Mul- Kinstry, J. key, J. (a case of right to sell or Colorado: Londoner v. People, 15 transfer), citing Bouvier's L. Diet., Colo. 247, per Hayt, J.; Arapahoe but definition same as Kent's. County v. Rocky Mountain News Kentucky:' Commonwealth v. Printing Co., 15 Colo. App. 189, 202, Frankfort, 13 Bush (76 Ky.), 185, 61 Pac. 494, per Wilson, J. 189, per Lindsay, C. J. Connecticut: Crum v. Bhss, 47 Louisiana: Maestri v. Board of Conn. 592, 602, per Park, C. J. (case Assessors, 110 La. 517, 526, 34 So. of transfer of corporate franchise). 658, per Blanchard, J.; State v. Iowa: Young v. Webster City & Morgan, 28 La. Ann. 482, 493, per So. West Ry. Co., 75 Iowa, 140, Ludeling, C. J., in dissenting opinion 143, 39 N. W. 234, per Rothrock, J. (a case of exemption from taxation, (case of forfeiture of railroad fran- 4 DEFINITIONS § 2 "A particular privilege conferred by grant from a sovereign or government and vested in individuals;"^'' "a, particular privilege or right granted by a prince or sovereign to an in- dividual, or to a number of persons;" ^^ a certain privilege of a public nature, conferred by grant from the government, and vested in individuals.^^ § 2. Chief Justice Taney's Definition of a Franchise. — Under a definition which is generally accredited to Chief Jus- tice Taney of the United States Supreme Court, franchises are special privileges conferred by the government on in- dividuals, and which do not belong to the citizens of the country generally of common right. ^^ This definition has been extensively quoted or adopted and relied upon as an authority by the courts in their opinions and decisions. ^^ chise and taxation), quoting from 130 III. 42, 53, 22 N. E. 616, per Bromin. Baker, J. (a case of charter powers to, Kentucky: Miller v. Common- and use of streets by, a gas company, wealth, 112 Ky. 404,65 S. W. 828, per its rights under grant as a contract Guffy, J. (Bouvier's L. Diet, is cited, and specific performance); Louisville however); Louisville Tobacco Ware- Tobacco Warehouse Co. v. Common- house Co. V. Commonwealth, 20 Ky. wealth, 20 Ky. L. Rep. 1047, 1050, L. Rep. 1047, 1050, 48 S. W. 420 (a 48 S. W. 420, per Paynter, J. (a case case of corporation failing to report of corporation failing to report for for franchise tax); Commonwealth v. franchise tax) quoting Webster's City of Frankfort, 13 Bush (76 Ky.), Diet. 185, 189, per Lindsay, C. J. (a lottery n Central Railroad & Banking Co. case). v. State of Georgia, 54 Ga. 401, 409, Ohio: State v. Pittsburgh, Youngs- per Warner, C. J. (a case of duration town & Ashtabula Rd. Co., 50 Ohio of charter and right of State to with- St. 239, 251, 33 N. E. a051, per draw franchise), quoting Webster's Marshall, J. (a case of quo warranto Diet, to determine right to franchise). 12 Truckee & Tahoe Turnpike Road Wisconsin: Sellers v. Union Lum- Co. v. Campbell, 44 Cal. 89, 91, ap- bering Co., 39 Wis. 525, 527, per plied by Rhodes, J., to a right to col- Ryan, C. J. (a case of right to take lect tolls on bridges, roads, etc. tolls). 13 Bank of Augusta v. Earle, 13 See also Kinney's L. Diet. & Gloss. Pet. (38 U. S.) 519, 595, 10 L. ed. 274. >» Crum V. Bliss, 47 Conn. 592, 602, '* United States: People's Rd. v. per Park, C. J. (a case of transfer of Memphis Rd., 10 Wall. (77 U. S.) 38, corporate franchise), quoting Web- 51, 20 L. ed. 844; Western Union ster's Diet.; Chicago Municipal Gas Teleg. Co. v. Norman, 77 Fed. 13, 22, Light & Fuel Co. v. Town of Lake, per Barr, Dist. J. (taxation of fran- 5 §3 DEFINITIONS § 3. Other Definitions and Expressions Classified — Fran- chises. — The word "franchise" is frequently used to denote chises); Jersey City Gas-Light Co. v. United Gas Improvement Co., 46 Fed. 264, 265, per Greene, J., case aiT'd 58 Fed. 323. Illinois: Chicago & Western Indi- ana Rd. Co. V. Dunbar, 95 111. 571, 576, 579, per Dickey, J. Iowa: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 238, 91 N. W. 1081, per Weaver, J. (the court also says: "The term 'fran- chise ' is defined in various ways and the meaning depends more or less upon the connection in which the word is employed"). Kentucky: Miller v. Common- wealth, 112 Ky. 404,65 S. W. 828, per Guffy, J. (gives same definition, but cites Bouvier's L. Diet.); Louisville Tobacco Warehouse Co. v. Common- wealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420, per Payntor, J. (a case of corporation failing to report for franchise tax. Gives same definition, but cites Angell & Ames on Corp. § 4). Louisiana: Maestri v. Board of As- sessors, 110 La. 517, 526, 34 So. 658, per Blanchard, J. (gives same defini- tion, but cites Angell & Ames on Corp. § 4, and Bouvier's, also Blacks. L. Diets.). Maryland: Consolidated Gas Co. V. Baltimore City, 101 Md. 541, 545- 548, per McSherry, C. J.; Purnell v. McLane, 98 Md. 589, 592, 56 Atl. 830, per Pearce, J.; Baltimore City v. Johnson, 96 Md. 737, 747, 61 L. R. A. 568, 54 Atl. 646, per Boyd, J. (a case where seat in stock exchange was held not liable to taxation); State v. Philadelphia, Wilmington & Bait. Rd. Co., 45 Md. 361, 379, 24 Am. Rep. 511, per Robinson, J. (a case of franchise tax and exemption from taxation.) Minnesota: Green v. Knife Falls Boom Corp., 35 Minn. 155, 157, per Vanderburgh, J. Nebraska: Abbott v. Omaha Smelting Co., 4 Neb. 416, 420 (citing also Angell & Ames on Corp. § 4). New York: Smith v. Mayor, etc., of New York, 68 N. Y. 552, 555, per Earl, J. (taxation; pier as land); Curtiss V. Leavitt, 15 N. Y. 9, 170, per Shankland, J. (in connection with bank's capacity or liability to incur obligations). See Trustees of South- ampton v. Jessup, 162 N. Y. 122, 56 N. E. 538, per Vann, J. (case re- verses 42 N. Y. Supp. 4, 10 App. Div. 456), who applies the substance of the definition in the above text in determining that a right to make a roadway and to erect a bridge is a franchise and not a license. South Dakota: State v. Scougal, 3 S. Dak. 55, 62, 15 L. R. A. 477, 11 Ry. & Corp. L. J. 254, 6 Bkg. L. J. 432, 51 N. W. 858, 44 Am. St. Rep. 756, per Corson, J. Texas: State v. Austen & North- western Rd. Co., 94 Tex. 530, 532, 62 S. W. 1050, per Gaines, C. J. [a case of taxation franchises of rail- road. Citing People's Rd. v. Mem- phis Rd., 10 Wall. (77 U. S.) 38, 51, 19 L. ed. 844]. Wisconsin: Sellers v. Union Lum- bering Co., 39 Wis. 525, 527, per Ryan, C. J. Which do not belong to the citizens of the country generally by common right: The qualification [by Chief Jus- tice Taney, in Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 595, 10 L. ed. 274] " 'which do not belong to citizens of the country generally by common right' is an important one and constitutes the distinguishing DEFINITIONS § 3 a right or privilege, and in a legal sense, franchise and liberty- are said to be synonymous terms. "Franchise" is also said to be synonymous with rights, privileges and immunities. One of the legal meanings of the word, approaching very closely to its primary signification, is freedom, and exemption or immunity from a burden or duty to which others are sub- ject. In its broad sense the word "franchise" is sometimes used to denote all the rights, powers and privileges of a cor- feature of a franchise. What is meant by this qualification is made clear by Mr. Justice Bradley, in a recent case decided by the Supreme Court of the United States. * * * He says ' no private person can estab- hsh a public highway, public ferry or railroad, or charge tolls for the use of the same, without authority from the legislature, direct or derived. These are franchises. No persons can make themselves a body politic without legislative authority. Corporate ca- pacity is a franchise.' California v. Central Pacific Rd. Co., 127 U. S. 1, 40, 41, 32 L. ed. 346, 9 Sup. Ct. 6. Of course, as the learned judge says, this list might be continued indefi- nitely. But this quotation clearly illustrates the nature of a franchise. Over all public property, highways, navigable rivers and seas, over every- thing that belongs to the sovereign, the power of the government is abso- lute, whether that power is derived from the common law or from the State, or the National Constitution. When, therefore, the State grants the right thus belonging to the govern- ment, and not to the citizens gener- ally, as a matter of right, it is the grant of a franchise." State v. Scougal, 3 S. Dak. 55, 62, 15 L. R. A. 477, 44 Am. St. Rep. 756, per Cor- son, J. "In this country it is a special privilege granted by the State, which does not belong to citizens of the country generally by common right. This is the distinguishing feature of a franchise. A right which belongs to the government when conferred upon a citizen is a franchise." Lasher v. People, 183 111. 226, 233, per Cart- wright, C. J. " This ordinance then undertook to confer an especial privilege not en- joyed by the people of the Territory in common, and conferred such privi- lege in perpetuity, for there is no limitation to it in point of time, and no power of revocation reserved to the city council therein. Such a privilege is a franchise. In England the granting of a franchise w-as a royal prerogative, and could only be granted by the Crown, and in the Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 595, 10 L. ed. 274, Chief Justice Taney says: 'Fran- chises are special privileges, con- ferred by the government upon in- dividuals, which do not belong to the citizens of the country generally of common right.' It is essential that a franchise should be created by a grant from the sovereign authority. It is doubtful whether the legislature can delegate the power to grant such a franchise at all." Denver & S. Ry. Co. v. Denver City Ry. Co., 2 Colo. 673, 682, per Brazec, J. 7 §3 DEFINITIONS poration, especially those which are essential to its operations and management and to make the grant of value. ^^ Other definitions given or expressions used by the courts, in opinions or decisions, may be briefly stated as follows: Privileges or a privilege; ^® a privilege with conditions; ^^ a privilege vested— '5 Central Rd. & Banking Co. v. State of Georgia, 54 Ga. 401, 409, per Warner, C. J. (a case of duration of charter and right of State to with- draw franchise); Buchanan v. Knox- ville & Ohio Rd. Co., 71 Fed. 324, 334, 18 C. C. A. 122, per Severens, Dist. J.; Morgan v. Louisiana, 93 U. S. 217, 23 L. ed. 860; State v. Morgan, 28 La. Ann. 482, 493, per Ludehng, C. J., in dissenting opinion; Board of Trade v. People, 91 111. 82, per Scott, C. J.; Board of Water Commissioners of White Plains, Mat- ter of, 76 N. Y. Supp. 11, 16, 71 App. Div. 541, rev'd 176 N. Y. 239, 68 N. E. 348, per Jenks, J.; Kinney's Law Diet. & Gloss.; Stroud's Judic. Diet.; Taylor's Law Gloss, (ed., 1858), 210. See Finch's Laws of Eng., 126 (38); 2 Black. Comm., *37. '' " If there is anything peculiar in the word franchise it must include, in any definition that can be given it, this word 'privilege,' especially where " a statute gives to a corpora- tion "the exclusive right to the hy- draulic powers and privileges." Wil- hamette Mfg. Co. v. Bank of British Columbia, 119 U. S. 191, 198, 30 L. ed. 384, 7 Sup. Ct. 187, per Miller, J. (a case of foreclosure of mortgage, and right to sell or mortgage fran- chises). "Franchises are privileges derived from the government, vested either in individuals or private or pubhc cor- porations." California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422, per Crocker, J. 8 The term ("franchise") "may sometimes be used in a popular sense as a privilege." Lawrence v. Times Printing Co., 22 Wash. 482, 490, 61 Pac. 166, per Reavis, J. " A privilege in the hands of a sub- ject which the king alone can grant will be a franchise." State v. Real Estate Bank, 5 Pike (5 Ark.), 595, 599, 41 Am. Dec. 509, per Lacy, J. A privilege emanating from the sovereign power of the State, owing its existence to a grant on a prescrip- tion presupposing a grant. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 137 111. 231, 28 N. E. 248, per Scholfield, J. "It is a privilege which the sover- eign power alone can grant, whether it be the king or the people assembled in legislative bodies." Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dis- senting opinion of Tapley, J. 1' " A franchise is a privilege con- ferred in the United States by the immediate or antecedent legislation, with conditions expressed, or neces- sarily inferential from its language, as to the manner of its exercise and for its enjoyment. To ascertain how it is to be brought into existence the whole charter must be consulted and compared." Woods v. Lawrence County, 1 Black (66 U. S.), 386, 409, 17 L. ed. 122, per Wayne, J. (a case of charter of railroad company, with authority in charter to subscribe to stock; question whether to be made in prcesenti or held in abeyance.) DEFINITIONS §3 a privilege or authority vested; ^* a liberty or privilege — powers and privileges; ^^ a right or privilege; ^^ a right, privilege or power of public concern which should be reserved for pub- lic control; 2^ a special privilege; ^2 a privilege granted, not a *' In this country a franchise "may be defined as a privilege vested," or "a privilege or authority vested in certain persons by grant from the sovereign authority in the State, to exercise powers or perform acts, which without such grant they could not do or perform. A franchise is jus publicum and necessarily ex- clusive in its nature." Twelfth St. Market Co. v. Philadelphia & Read- ing Term. R. Co., 142 Pa. 580, 590, 21 Atl. 989, per Thayer, P. J. (a case of public market house, and right of eminent domain over, or right of an- other corporation to appropriate); West Manayunk Gas Light Co. v. New Gas Light Co., 21 Pa. Co. Ct. Rep. 378; Watson v. Fairmont & Suburban Ry. Co., 49 W. Va. 528, 539, 39 S. E. 193, per Poffenbarger, J. A franchise is "a privilege or au- thority vested in certain persons by grant of the sovereign (with us by special statute) to exercise powers or to do and perform acts which without such grant they could not do or per- form." Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 545- 548, per McSherry, C. J.; Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh (Va.), 42. " "Franchise is a word of exten- sive signification; it is a liberty or privilege. In England, it was the powers and privileges inherent in the Crown which subsisted in the hands of a subject by grant from the Crown. It was therefore defined to be 'a royal privilege in the hands of a sub- ject.' In this country the people have not only the rights and privi- leges of English subjects, but they have succeeded to all the rights and privileges of the Crown." State v. City of Topeka, 30 Kan. G53, 657, 2 Pac. 587, per Horton, C. J., (a case of liquor license, and exaction of a charge or tax therefor. See § 21, herein, as to liquor hcense). " Franchise in its general sense is a liberty or privilege." Rapalej & Lawrence's L. Diet. 2" " The word ' franchise ' is gener- ally used to designate a right, or privilege, conferred by law." State V. Western Irrigating Canal Co., 40 Kan. 96, 99, 19 Pac. 349, per Hor- ton, C. J. " A franchise is nothing more than the right or privilege of being a cor- poration, and of doing such things and such things only as are author- ized by the corporation's charter." Fietsam v. Hay, 122 111. 293, 295, 13 N. E. 501, 11 West. Rep. 582, 3 Am. St. Rep. 492, per Mulkey, J. (a case of right to sell or transfer). See also Morgan v. State of Louisi- ana, 93 U. S. 217, 23 L. ed. 860, per Field, J.; Chesapeake & Ohio Ry. Co. v. Miller, 114 U. S. 176, 185, 29 L. ed. 121, 5Sup. Ct. 813. 2' "Generalized, and divested of the special form which it assumes un- der a monarchical government based " " A franchise is generally under- of the State, owing its existence to a stood to be a special privilege grant or to prescription presupposing emanating from the sovereign power a grant." Wilmington Water Power 9 §3 DEFINITIONS right taken away; ^^ certain immunities and privileges in which the pubhc have an interest — a privilege or immunity of a public nature; '** a certain privilege or exemption — immu- on feudal traditions, a franchise is a right, privilege or power of pubhc concern, which ought not to be exer- cised by private individuals at their mere will and pleasure, but should be reserved for public control and ad- ministration, either by the govern- ment directly or by public agents, acting under such conditions and regulations as the government may impose in the public interest, and for the public security. Such rights and powers must exist under every form of society. They are always educed by the laws and customs of the community. Under our system, their existence and disposal are under the control of the legislative depart- ment of the government, and they cannot be assumed or exercised without legislative authority." Cali- fornia v. Central Pacific Rd. Co., 127 U. S. 1, 40, 32 L. ed. 150, 8 Sup. Ct. 1073, per Bradley, J.; Ashley v. Ryan, 153 U. S. 436, 441, 38 L. ed. 773, 14 Sup. Ct. 865. Co. V. Evans, 166 111. 548, 556, 46 N. E. 1083, per Magruder, C. J. In this country "a special privilege existing in an individual by grant of the sovereignty and not otherwise exercisable." Mayor v. Park Com- missioners, 44 Mich. 602, 604, 7 N. W. 180, per Cooley, J. (a pubhc park as public franchise). A special privilege granted by sovereign authority, either to an individual or a corporation, is a franchise. State v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. A special privilege emanating from the government by a legislative or royal grant and vested in an indi- vidual person or in a body politic and corporate. Standard Diet. As all persons have the right of forming corporations upon complying with the formalities required by law (State v. Western Irrigating Canal Co., 40 Kan. 96, 99, 19 Pac. 349, per Horton, J., in case sustaining right of irrigation company to sell property) the above words "special privilege" might, perhaps, be open to construc- tion. See subsequent sections herein covering exclusive franchises; see Chief Justice Taney's definition, § 2, herein, see also § 3, herein. Examine Bank of California v. San Francisco, 142 Cal. 276, 280, 75 Pac. 832, per Angellotti, J. " " The real meaning of ' fran- chise' is a privilege granted, not a right taken away." Fresno Canal, etc., Co. V. Park, 129 Cal. 437, 442, 62 Pac. 87, per McFarland, J. (where "franchise" is held an affirmative word denoting a grant, and that the right to collect certain rates is not taken away by the use of the word. See § 9 herein). 10 ^* " If there are certain immunities and privileges in which the public have an interest, as contradistin- guished from private rights, and which cannot be exercised without authority derived from the sovereign power, it would seem to me that such immunities and privileges must be franchises. * * * If^ in England, a privilege in the hands of a subject, DEFINITIONS § 3 nity; ^' an exemption from a burden or duty to which others are subject; ^^ an exemption or immunity from ordinary jurisdic- tion; a constitutional or statutory right or privilege; ^^ a right reserved to the people by the constitution ; ^^ a right belonging to the government ; '^ a grant under authority of govern- whicb the king alone can grant, exercised without a legislative grant, would be a franchise, with us, a are franchises, although they never privilege, or immunity of a public existed in the people, or could be nature, which cannot legally be exer- exercised by them in their political cised without legislative grant, would capacity. People v. Utica Ins. Co., be a franchise." People v. Utica Ins. 15 Johns. (N. Y.) 357, 8 Am. Dec. Co., 15 Johns. (N. Y.) 357, 387, 8 243. Am. Dec. 243 (a case of usurpation of ^^ State v. Morgan, 28 La. Ann. franchise to carry on banking busi- 482, 493, per Ludeling, C. J., in dis- ness as a corporation); State v. Real senting opinion, in case of exemption Estate Bank, 5 Pike (5 Ark.), 595, from taxation and right of trans- 599, 41 Am. Dec. 509, per Lacy, J.; fer. Crum V. Bliss, 47 Conn. 592, 602, The term "franchises" in a '"'legal per Park, C. J.; Chicago & Western sense, contains the element of a grant Indiana Rd. Co. v. Dunbar, 95 111. or immunity, privilege or exemption" 571, 576; People ex rel. Koemer v. by public or quasi-public authority. Ridgley, 21 111. 65, 69, per Breese, J. Lawrence v. Times Printing Co., 22 (a case of an information in the na- Wash. 482, 490, 61 Pac. 166, per ture of quo warranto in a criminal Reavis, J. proceeding; held, not to be allowed ^° Central Rd. & Banking Co. v. against persons for assuming a fran- State of Georgia, 54 Ga. 401, 409, chise of a merely private nature, and per Warner, C. J. (a case of duration that persons appointed by statute to of charter and right of State to with- close up affairs of a bank are not draw franchise). officers, but mere trustees, and do not ^' Louisville Tobacco Warehouse exercise or enjoy a franchise); Com- Co. v. Commonwealth, 20 Ky. L. monwealth v. City of Frankfort, 13 Rep. 1047, 1050, 48 S. W. 420, per Bush (76 Ky.), 185, 189 (a lottery Paynter, J. (citing Webster's Diet.), case); Cumberland River Lumber Co. (a case of corporation failing to re- v. Commonwealth, 6 Ky. L. Rep. 295 port for franchise tax), (in abstract only, no opinion); '' People ex rel. Koemer v. Ridge- Maestri v. Board of Assessors, 110 ley, 21 111. 65, 69, per Breese, J. (as in La. 517, 526, 34 So. 658, per Blanch- case of the elective franchise). ard, J.; State, Clapp, v. Minnesota =" "A franchise is a right belonging Thresher Mfg. Co., 40 Minn. 213, 41 to the government, as a sovereign, N. W. 1020, 3 L. R. A. 510; State v. yet committed in trust to some offi- Mayor, etc., of New York, 3 Duer cer, corporation or individual." (N. Y.), 119, 144. Knoup v. Piqua Bank, 1 Ohio St. Privileges and immunities of a pub- 603, 613, per Corwin, J. lie nature which cannot legally be 11 § 4 DEFINITIONS ment;^° a grant of sovereign power; ^^ a sovereign power; '^ a sovereign prerogative emanating from the sovereign authority of the State, either directly or through a delegated body.^^ § 4. " Franchise " — As a Contract — As an Exclusive Right.^^ — The definition given by Finch and substantially adopted and followed by Blackstone and other authorities,^^ has been criticised as not being strictly correct under our government and laws, since franchises are based in this country upon contracts between the sovereign power and a private citizen, made upon a valuable consideration for purposes of public benefit as well as for individual advantage; and it is said by Chancellor Kent that franchises "contain an implied covenant on the part of the government not to invade the rights vested, and on the part of the grantees to execute the conditions and duties prescribed in the grant. Some of these franchises are presumed to be founded on a valuable consideration, and to involve public duties, and to be made for public accommoda- tion, and to be affected with jus publicum, and they are neces- sarily exclusive in their nature. The government cannot resume them at pleasure, or do any act to impair the grant, without a breach of contract." ^^ Again, "Franchise" is ^""A franchise is a grant under Augusta v. Earle, 13 Pet. (38 U. S.) authority of government, conferring 519, 595, 10 L. ed. 274, per Taney, a special and usually a permanent C. J.; State v. Scougal, 3 S. Dak. 55, right to do an act, or a series of acts, 62, 44 Am. St. Rep. 756, 15 L. R. A. of pubhc concern." Trustees of 477. Southampton v. Jessup, 162 N. Y. ^' Truckee & Tahoe Turnpike Road 122, 126, 56 N. E. 538, per Vann, J.; Co. v. Campbell, 44 Cal. 89, 91, per case reverses 10 App. Div. 456 (a Rhodes, J. case of a right "to make a roadway ^^ See §§ 22, 23 herein, and erect a bridge"). '^ See § 1 herein. '* Pennsylvania Rd. Co. v. Phila- ^' Kent's Comm. (14 ed.), bottom delphia Belt Line Rd. Co., 10 Pa. Co. p. 723, *p. 458; Horst, Mayor, etc., v. Ct. Rep. 625, 629. Moses, 48 Ala. 146, per Peters, J., ''"It must needs be a sovereign dissenting in part; Maestri v. Board power or something which no sub- of Assessors, 110 La. 517, 526, 34 So. ject or citizen can of right use." 658, per Blanchard, J.; State v. Real Knoup v. Piqua Bank, 1 Ohio St. Estate Bank, 5 Pike (5 Ark.), 595, 603, 613, per Corwin, J. See Bank of 599, 41 Am. Dec. 509, per Lacy, J. 12 DEFINITIONS § 4 sometimes used to mean an exclusive right held by grant from the sovereign power, such in its nature that the same right or privilege cannot be subsequently granted to another without the grant operating as an invasion of the franchise of the first grantee and of his property rights. The strictly legal signification of the term is not, however, always con- fined to exclusive right and the word is used in law to designate powers and privileges which are not exclusive in their nature." It is also declared that every grant of a franchise is, so far as that grant extends, necessarily exclusive, and cannot be re- sumed or interferred with; it is a contract whose obligation cannot be constitutionally impaired. ^^ In a recent case in the United States Supreme Court it is held that there are privileges which may exist in their full entirety in more than one person, and the privilege or franchise or right to supply the inhabitants of a city with fight or water is of this kind; and that a grant of power conferring such a privilege is not necessarily a grant making that privilege exclusive. ^^ So a franchise may consist solely in being a corporation and carrying on business solely in a corporate capacity and still be also a right which any person or persons may exercise without any grant from the State, and, therefore, such a right would not be an exclusive one, and the corporation would be a private one as distin- " Chicago & Western Indiana Rd. Co., 54 N. Y. Supp. 598, 34 App. Div. Co. V. Dunbar, 95 111. 571, 576, per 181. Dickey, J. North Dakota: Patterson v. Woll- " Charles River Bridge v. Warren man, 5 N. Dak. 008, 33 L. R. A. 536, Bridge, 11 Pet. (36 U. S.) 420, 604, 67 N. W. 1040. 618, 637, 638, 643, 645, 9 L. ed. 773, Ohio: Bank of Toledo v. City of per Story, J., in disf3enting opinion. Toledo (Toledo Bank v. Bond), 1 Examine the following cases: Ohio St. 622, 635, 636, per Bart- Illinois: Mills V. County of St. ley, C. J. Clair, 7 111. 197. Pennsylvania: Raybum Water New Jersey: Millville Gas Light Co. v. Armstrong Water Co., 9 Pa. Co. V. Vineland Light & Power Co. Dist. R. 24, 30 Pittsb. Leg. J. (N. S.) (N. J.), 65 Atl. 504; State v. Free- 239. holders of Hudson, 23 N. J. L. 206, '» Water, Light and Gas Co. of 209, per Carpenter, J. Hutchinson v. City of Hutchinson, New York: Staten Island Midland 207 U. S. 385, 28 Sup. Ct. 135, case R. Co. V. Staten Island Electric R. affirms 144 Fed. 256. 13 § 5 DEmsriTioNs guished from a public one with no public functions which it would be under obligation to perform.'*" We shall, however, consider this entire matter exhaustively under other sections in this work. § 5. " Corporate Franchise " — Corporate Franchises. — Whenever a corporation is legally formed, the right to be and exist as such and as a corporation to do the business specified and authorized in the articles, constitutes a valuable right which has been called the "corporate franchise," as it is a grant from the sovereign power. And this applies, whether a banking or a grocery business, or the operation of a railroad, or in fact any other business, in which individuals may engage without a grant from the State, is specified and in which the right to engage in a corporate capacity is granted.'*^ But it is decided that a franchise granted to an organized corporation, or to an individual or individuals, and thereafter transferred to a corporation, is not a corporate franchise strictly so called, or in any sense, except that of being the property of the corpora- tion.'*' As to the term corporate franchises, it is declared that it covers all rights granted to a corporation.'*^ The above statements, however, involve certain questions which have been " Twelfth St. Market Co. v. Phila- 90 Wis. 550, 63 N. W. 746; 2 Mora- delphia & Reading Term. R. Co., 142 wetz on Corp. §922); Jersey City Pa. 580, 590, 21 Atl. 989. Gas-Light Co. v. Gas Improvement ^1 Bank of Cahfornia v. San Fran- Co., 46 Fed. 264, 265, per Greene, J., Cisco, 142 Cal. 276, 279, 64 L. R. A. case aff'd 58 Fed. 323. 918, 75 Pac. 832, per Angellotti, J. See State v. Western Irrig. Canal (citing Central Pacific R. Co. v. Cal- Co., 40 Kan. 96, 99, 19 Pac. 349, per ifomia, 162 U. S. 91, 17 Sup. a. 35, Horton, C. J. 41 L. ed. 362; Horn Silver Mining Co. Compare Meyer v. Johnson, 53 Ala. V. New York, 143 U. S. 305, 36 L. ed. 237, 324, per Manning, J.; Yoimg v. 164, 12 Sup. Ct. 403; Home Ins. Co. v. Webster City & So. West. Ry. Co., New York, 134 U. S. 594, 599, 33 L. 75 Iowa, 140, 143, 39 N. W. 234, per ed. 1025, 10 Sup. Ct. 593; State Rd. Rothrock, J.; Knoup v. Piqua Bank, Tax Cases, 92 U. S. 575, 23 L. ed. 1 Ohio St. 603, 613, per Corwin, J. 663, Spring Valley Water Works v. '^^ State v. Portage City Water Co., Schottler, 62 Cal. 69, 106; Southern 107 Wis. 441, 83 N. W. 697. Gun Co. v. Laylin, 66 Ohio St. 578, ^^ Atlantic & Gulf R. Co. v. Geor- 64 N. E. 564, 566; State v. Anderson, gia, 98 U. S. 359, 365, per Strong, J. 14 DEFINITIONS §§ 6, 7 the subject of considerable discussion by the courts, and which relate principally to the power of alienation, taxation and the nature of franchises, based upon such distinctions as exist be- tween the franchise to be a corporation and other franchises or rights and privileges; but these questions will be fully con- sidered elsewhere herein under their proper headings.'*^ § 6. General Franchise of Corporation. — The general fran- chise of a corporation is its right to live and do business by the exercise of the corporate powers granted by the State. Such a franchise, however, gives the corporation no right to do anything in the public highways without special authority from the State, or from some municipal officer or body act- ing under its authority. Thus the general franchise of a street railroad is the special privilege conferred by the State upon a certain number of persons known as the corporators to become a street railroad corporation and to construct and operate a street railroad upon certain conditions, but its privileges are within the above rule as to occupation of streets. ^^ § 7. Special Franchise of Corporation. — A right granted to a corporation to construct, maintain or operate in a public highway some structure intended for public use, which except for the grant would be a trespass, is a special franchise, and when a right of way over a public street is granted to a cor- poration with leave to construct and operate a street railway thereon, the privilege is known as a special franchise.'*^ In a ** See three last preceding sections number of persons known as the cor- herein, also sections as to transfer or porators to become a street railroad alienation; taxation; nature of fran- corporation and to construct and op- chise; and distinctions. erate a street railroad upon certain ^^ People ex rel. Metropolitan St. conditions," but this differs from a Ry. Co. V. Tax Commissioners, 174 special franchise); reargument de- N. Y. 417, 435, 67 N. E. 69 (a case of nied, 175 U. S. 482 (Mem.), case af- taxation, etc. In this case the court, firmed, Metropolitan St. Ry. Co. v. per Vann, J., says: "The general New York, 199 U. S. 1, 50 L. ed. franchise of a street railroad company 65, 25 Sup. Ct. 705. See Chap. IV * * * is the special privilege con- herein, ferred by the State upon a certain ■" People ex rel. Metropolitan St. 15 § 7 DEFINITIONS case of taxation of a special franchise decided in New York the court, per Kenefick, J., says: "Tlie plaintiff insists that the authority to cross highways sprang into being with the creation of the corporation, that it is a part of the franchise to be a corporation, and that, to constitute a special franchise, some particular railroad must be grantee of the right, or some particular highway or highways must be the subject of the grant. As I view it, this claim argues a misconception of the term 'special franchise.' As applied to railroads, this species of property is defined as the 'franchise' right or per- mission to construct, maintain or operate the same in, under, above, on or through, streets, highways, or public places.''^ A special franchise thus derives its character from the nature of the grant, to wit, the right to occupy the public ways. This right does not lose its character as a special franchise because it emanates directly from the State, rather than in- directly through its political subdivisions, nor because it comes into being with the creation of a corporation, rather than by subsequent action of the legislature or its duly au- thorized municipal agents. The tax on its franchise to be a corporation is imposed irrespective of whether it crosses any highways, or of the number of highways crossed. Authority to run 'upon and along' highways is conferred by the same section of the general railroad law which confers the right to 'cross highways.' If the plaintiff's argument is sound, then a railroad might, under its general powers, run for some dis- tance along a highway, without possessing a special franchise therein subject to taxation." "^^ Ry. Co. V. Tax Commissioners, 174 Definition of special franchise and N. Y. 417, 435, 67 N. E. 69, per what the term inckides, under tax Vann, J., reargument denied, 175 laws of New York, see 3 Cumming & N. Y. 482 (Mem.), case affirmed, 199 Gilbert's Annot. Genl. Laws & Stat- U. S. 1, 50 L. ed 65, 25 Sup. Ct. 705. utes of N. Y. (ed. 1901), 3876, 3877, ^'Laws 1899, c. 712, § 1. Laws 1896, ch. 908, § 2, subds. 3, 4, *^ New York, Lackawanna & West- as amended by Laws 1899, ch. 712 em Ry. Co. v. Roll, 66 N. Y. Supp. and Laws 1901, ch. 490. See chap. 748, 749, 750, 32 Misc. 321. See IV, herein, chapter herein on taxation. 16 DEFINITIONS § 8 § 8. Primary Franchise, and Secondary Franchises of Corporation. — The right of an incorporated company to be a corporation, or the right conferred upon it by the State, to be an artificial body, has been called its primary franchise, and this has been distinguished from what is termed its second- ary franchises, which include the right to carry on or transact a particular kind of business, as in case of the privileges granted to a water company with the right to take tolls, etc.; or the right of a railroad company to collect fares; or of a toll road company to exact toll for services' performed. This distinction has been considered as important in connection with the power of alienation, since in certain corporations other than those subject to public service duties and obligations, second- ary franchises may be said, generally, to be those which may be alienated, and even in connection with public utility cor- porations there are some decisions in which the same dis- tinction is made apparent. So in certain tax cases the dis- tinction between the franchise to be a corporation and other rights, privileges and franchises of the corporation, has been the subject of much discussion and many adjudications."*^ " Virginia Canon Toll Road Co. v. 350, 8 Sup. Ct. 1385, restored to People, 22 Colo. 429, 432, 45 Pac. calendar, 122 U. S. 636 (Mem.). (The 398, 37 L. R. A. 711, per Camp- principal case is cited in People v. bell, J. See two last preceding sec- Miller, 83 N. Y. Supp. 184, 187, 85 tions, and next following section App. Div. 211, which case is re- herein. versed 177 N. Y. 51, 69 N. E. 124, See also the following cases: which is cited in People v. Miller, 86 United States: Adams Express Co. N. Y. Supp. 420, 422, 90 App. Div. V. Ohio State Auditor, 166 U. S. 185, 588. This last case is reversed 179 224, 41 L. ed. 965, 17 Sup. Ct. 604, N. Y. 49, 71 N. E. 463); Memphis & per Brewer, J., rehearing denied, 165 Little Rock Rd. Co. v. Commis- U. S. 194, 255, 41 L. ed. 683, 707, 17 sioners, 112 U. S. 609, 619, 28 L. ed. Sup. Ct. 305; Mercantile Bank v. 837, 5 Sup. Ct. 299; Gordon v. Appeal Tennessee, 161 U. S. 160, 171, 40 Tax Court, 3 How. (44 U. S.) 133; L. ed. 656, 16 Sup. Ct. 466, per Western Union Telcg. Co. v. Norman, Peckham, J.; Home Ins. Co. v. New 77 Fed. 13, 22. York, 134 U. S. 594, 599, 33 L. ed. California: San Joaquin & King's 1025, 10 Sup. Ct. 593, per Field, J., River Canal & Irrig. Co. v. Merced case affirms People v. Home Ins. County, 2 Cal. App. 593, 595, 597, Co., 92 N. Y. 328, also aff'd by di- 599, S4 Pac. 285. vided court 119 U. S. 129, 30 L. ed. Connecticut: Bridgeport, City of, 2 17 DEFINITIONS In a Kansas case, a corporation was organized under state laws for the purpose of supplying a municipality with water, V. New York & New Haven Rd. Co., 36 Conn. 255, 266, 4 Am. Rep. 63. Iowa: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 239, 91 N. W. 1081, per Weaver, J., citing Grand Rapids Bridge Co. v. Prange, 35 Mich. 400, 24 Am. Rep. 585. Kentucky: Bailey v. Southern Ry. Co., 112 Ky. 424, 430, 61 S. W. 31, per O'Rear, J.; Board of Comicilmen of City of Frankfort v. Stone, 108 Ky. 400, 22 Ky. L. Rep. 25, 56 S. W. 679. Michigan: Grand Rapids Bridge Co. V. Prange, 35 Mich. 400, 405, 24 Am. Rep. 585; Joy v. Jackson & Michigan Plank Road Co., 11 Mich. 155, 164, 165, per Christian cy, J. New Jersey: Lumberville Bridge Co. v. Assessors, 55 N. J. L. 529, 535, 537, 25 L. R. A. 134, 26 Atl. 711, per Garrison, J.; State Board of As- sessors V. Central Rd. Co., 48 N. J. L. 146, 314, per Dixon, J. New York: People v. Knight, 174 N. Y. 475, 67 N. E. 65 (case reverses 73 N. Y. Supp. 745, 67 App. Div. 333); Smith v. New York, 68 N. Y. 552, 555; Sandham v. Nye, 30 N. Y. Supp. 552, 555, 62 N. Y. St. Rep. 198, 9 Misc. 541, per Rumsey, J. Ohio: Coe v. Columbus, Piqua & Indiana Rd. Co., 10 Ohio St. 372, 385, 75 Am. Dec. 5.18, per Gholson, J. [citing Thomas v. Dakin, 22 Wend. (N. Y.) 71]; Pierce v. Emery, 32 N. H. 484-507. Pennsylvania: Monongahela Bridge Co. v. Pittsburg & Birming- ham Traction Co., 196 Pa. 25, 46 Atl. 99; Shamokin Valley Rd. Co. v. Livermore, 47 Pa. 465, 468, 86 Am. Dec. 552, Agnew, J. Texas: State v. Austin & North- 18 western Rd. Co., 94 Tex. 530, 532, 62 S. W. 1050, per Gaines, C. J. Vermont: Miller v. Rutland & Washington Rd. Co., 36 Vt. 452, 494, per Barrett, J., quoting from Bank of Middlebury v. Edgerton, 30 Vt. 182, 190. Virginia: Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh (Va.), 42. Wisconsin: Linden Land Co. v. Milwaukee Elect. Ry. & Light Co., 107 Wis. 493, 513, 83 N. W. 858; Attorney General v. Chicago & North- western Rd. Co., 35 Wis. 425, 560, per Ryan, C. J., quoted in Brady v. Moulton, 61 Minn. 185, 186, per Mitchell, J. Examine Baldwin's Amer. Rd. Law (ed. 1904), 26. See Thompson's Comm. on Corp. § 257 (where the franchise to be a corporation is designated a primary franchise, and that of the right to carry on a certain business, as the right to maintain and operate a railway, a secondary franchise); Id. § 694 (where it is said that the primary franchise may be exercised only in State where created, while the secondary franchise may by comity, or unless by prohibited, be exercised in any State. See also Id. § 7884); Id. §§ 5336, 5341-5352, (where he says: "The secondary franchises of a corporation, that is, those peculiar and exclusive privileges which do not consist in the right of being a corpora- tion, are property, and hence are alienable"); Id. § 5353 (where under the section heading " Franchise to be a corporation not alienable," the au- thor makes the distinction "between what may be regarded as primary, and what as secondary franchises. DEFINITIONS § 9 and a municipality granted to it, by ordinance, the right to erect, construct and maintain waterworks in the city and to occupy its streets for the laying of pipes, erecting hydrants, and other privileges usually accorded to water companies, including the right to take tolls, etc., for a certain period, and it was declared by the court, and the decision was based thereon, that such rights to occupy the streets, erect hydrants, supply water, etc., were secondary franchises, differing and distinct from the franchise to be a corporation, received from the State which was essential to the creation and continued existence of the corporation, to its right to live, to exist as an artificial being. The court, per Smith, J., said: ''The rule is that the primary franchise of being a corporation vests in the individuals who compose it and not in the corporation itself, while the secondary franchises, such as the right of a railway to construct and operate its road, or the right to operate a water plant and collect water-rents are vested in the corpora- tion." ^° § 9. " Franchise " under Constitutions and Statutes. — As appears elsewhere, herein, the word "franchise" has various meanings, and it is difficult to define the term as used under constitutions and statutes, since, as a rule, it is a question of construction in each particular case precluding any definition applicable to all cases. Thus, although a state constitution declares that the right to collect rates or compensation for the use of water is a "franchise," still such word is an affirmative one denoting a grant, instead of a negative term signifying prohibition, and docs not take away the right to collect water The franchise of being a corporation of dissolution," as "the pecuHar priv- — of having a corporate existence — ileges or rights" of a corporation is a franchise of the former character; "which it may have received from and the franchise of carrying on a the legislature under its charter or particular business or holding par- incorporating act, or from a munici- ticular property is of the latter char- pal corporation under an ordinance acter"); Id. §§5356, 6140, 6747 by way of a license"), (where secondary franchises, as con- '^° State v. Topeka Water Co., 61 sidered in connection with the " effect Kan. 547, 558-560, 60 Pac. 337. 19 §9 DEFINITIONS rates or compensation, fixed by contract between the parties for the irrigation of lands, where no special statute regulates such rates.*^^ So the words " privileges, immunities or fran- chises," used in a constitution may be intended to refer to things of the same or similar general nature. ^^ But it is de- clared that where the term "franchise" is used in a statute or elsewhere in the law, it is generally, if it is not always, understood as a special privilege conferred by grant from the State or sovereign power, as being something not belong- ing to the citizen of common right.^^ Again, "franchise" " Fresno Canal & Irrigation Co. v. Park, 129 Cal. 437, 62 Pac. 87. In this case the court, per McFarland, J., said: "Section 2, of Art. XIV, Con- stitution of California, which is mainly relied on, is as follows: 'The right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a fran- chise, and cannot be exercised except by authority of and in the manner prescribed by law.' Appellants seem to lay great stress on the fact that the word 'franchise' is used in this sec- tion, as if ' franchise ' were a negative word signifying prohibition instead of being, as it is, an affirmative word denoting a grant. Whatever right a ditch owner had to sell and distribute water at the time the Constitution was adopted, or afterward, was not destroyed because it was called in the Constitution a franchise. The real meaning of ' franchise ' is a privi- lege granted — not a right taken away; but the word was evidently em- ployed in section 2 mainly for the purpose of emphasizing the general declaration in section 1, that the use of water for sale, distribution, etc., is a public use, and with the notion no doubt, that calling it a franchise would make more clear and certain 20 the intent to subject it to State regu- lation. In all other respects the meaning and effectiveness of sec- tion 2 would be thei same if the words 'is a franchise, and' were not there." " Dike V. State, 38 Minn. 366, 38 N. W. 95. The court, per Mitchell, J., says: "In construing the meaning of the word 'privilege,' as used in the constitution, the maxim noscitur a sociis, is applicable. The prohibition is against granting special or exclu- sive 'privileges, immunities, or fran- chises.' The three terms are evi- dently all intended to refer to things of the same or sim ilar general nature. An ' immunity ' has been defined as an exemption from any charge, duty, office, tax, or imposition; a 'fran- chise' has been defined to be a particular privilege conferred by the sovereign power of the State, and vested in individuals; and while it is not necessary, and would be perhaps unwise, to attempt to give a com- plete definition of any of these terms, yet it is evident that the word ' privi- lege,' as used in this connection, means, generally, a right or im- munity granted to a person either against or beyond the course of the common or general law." " City of Bridgeport v. New York & New Haven Rd. Co., 36 Conn. 255, DEFINITIONS § 9 under a statute is defined as a privilege emanating from the sovereign power of the State, owing its existence to a grant, or, as at common law, to prescription which presupposes a grant and invested in individuals or a body politic, something not belonging to the citizen as of common right.^"* So in an- other case the word ''franchise" in a statute conferring a right of appeal is held not to include a liberty or privilege merely, but that the word is used in a restricted sense of a special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right.^^ The words ''public * * * franchise," in a remedial statute as to usurping, etc., unlawfully holding or exercising any "public office or franchise," is construed as including the exercise of the right to use city streets for laying gas pipes. ^^ And where a statute °^ provided for the bringing of an action by the attorney general in the name of the State, against the parties offending, "when any person shall usurp, intrude into, or unlawfully hold or exercise * * * aj^y franchise within this State," etc., it was held, that the section contained no word of limitation as in the statute of Anne,^* and was not an adoption therefrom with the English construc- tion thereof, but was taken from the New York statute,^'' and that the word "franchise " was used in its general sense so as to include franchises, whether corporate or not.^° Again, a street railway franchise may be such a "franchise" under a statute quoted in Chicago & Western Indi- to be a relator cannot exist in be- ana Rd. Co. v. Dunbar, 95 111. 571, half of anyone to cause a prosecu- 575. tion to be carried on in an informa- ** Hazel ton Boiler Co. v. Tripod tion). Boiler Co., 1.37 111. 231, 232, 28 N. E. '« State ex rel. Attorney General v. 248, per Scholfield, C. J. (statute in Seattle Gas & Electric Co., 28 Wash, this case created appellate court, and 488, 68 Pac. 496, rehearing denied, 70 the question of right to appeal arose, Pac. 114; Ballinger's Annot. Codes, also holding that a corporate name § 5780, subd. 1. was, and a trade-mark was not, a '' Wis. Stat., 1898, § 3466. franchise). Same definition in Board ^' Stat. 9 Anne, c. 20, § 4. of Trade of Chicago v. The People, 91 5» 2 Rev. Stat. (N. Y., 1829), c. 9, 111. 80, 82. art. 2, § 28. " He-sing v. Attorney General, 104 "" State v. Portage City Water Co., lU. 292, 296 (holding that a franchise 107 Wis. 441, 83 N. W. 697. 21 § 9 DEFINITIONS as may be annulled by quo warranto upon sufficient cause .®^ And where the word ''franchise" is used in a statute pro- viding for taxation ^' such word is held to be a generic term and to include all rights and privileges granted to or exer- cised by a person, association, copartnership, joint-stock company, or corporation engaged in the express, telegraph, or telephone business in the State. *^^ So under the Kentucky statute ^-^ when an assessment is made of the "franchise" of a railroad company it is decided that it necessarily embraces all the intangible property of the company, as the word "fran- chise" is not used in its strict technical sense. ^^ In New York "the statute, which is an amendment of the General Tax Law, declares in substance, that the right, authority or permission to construct, maintain or operate some structure intended for public use, 'in, under, above, on or through streets, highways or public places,' such as railroads, gas pipes, water mains, poles and wires for electric, telephone and telegraph lines, and the like, is a special franchise." ^^ " State ex rel. Vilter Mfg. Co. v. Milwaukee, Burlington & Lake Ge- neva Rd. Co., 116 Wis. 142, 92 N. W. 546. "^ Sec. 78 of the new Revenue Law, § 10, 477, Cobbey's Ann. Stat., 1903. " Western Union Teleg. Co. v. City of Omaha (Neb., 1905), 103 N. W. 84. «*Ky. Stat., 1903, §§4077-4080. '* Commonwealth v. Chesapeake & Ohio Ry. Co., 28 Ky. L. Rep. 1110, 91 S. W. 672. See also Adams Ex- press Co. V. Kentucky (Weir v. Norman), 166 U. S. 171, 41 L. ed. 960, 17 Sup. Ct. 527, under Ky. Stat., 1894, §§ 4077-4081. *^ People ex rel. Metropolitan Street Ry. Co. v. Tax Commissioners, 174 N. Y. 417, 436, 67 N. E. 69, per Vann, J., reargument denied 175 N. Y. 482 (Mem.), case aff'd 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. 705. See People v. Priest, 77 N. Y. Supp. 382, 75 App. Div. 131, under Tax Law § 2, subd. 3, as amended by Laws, 1899, c. 712. See also chapter herein on Taxation. 22 ENUMERATION OF FRANCHISES § 10 CHAPTER II. ENUMERATION OF FRANCHISES. 11 12 10. Enumeration of Franchises § 17 Generally. Corporations Generally— Mem- 18, bers' Rights — Membership — 19, Corporate Name — Munici- 20. pal Corporations — " Public Franchise." Corporations Continued — What Franchises are Embraced Generally. 13. Corporations Continued — For- eign Corporations Generally. 14. Common Carriers — Railroads — Street railroads. 15. Bridges — Roadways — Ferries — Canals. 16. Right to Supply Water, Gas or Electricity. Right to Tolls, Fares, Rates or Wharfage. 18. Banking — Insurance. 19. Eminent Domain. 20. Exemption or Immunity from Taxation, Jury Duty and Working on Public Roads. 21. Pohtical Rights, " Elective Suf- frage," "Elective Fran- chise" or Freedom — Pubhc Office — Attorney or Coun- sellor — Right to Preside — Appointment of Professors — Liquor License — " Com- modities " — Fishery — Public Market — Patent Right — Trade-mark — " News Con- tract." § 10. Enumeration of Franchises Generally. — Franchise is a word of extensive signification, and various kinds of fran- chises exist. ^ And it is said that whatever is of large public • "The kinds of franchises are vari- ous and almost infinite." Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J., quot- ing 2 Black. Comm. 37; Central Rail- road & Banking Co. v. State of Georgia, 54 Ga. 401, 409, per War- ren, C. J.; Louisville Warehouse Co. V. Commonwealth, 20 Ky. L. Rep. 1047, 1051, 48 S. W. 420. "Franchises are divers, says Finch, and almost infinite." Common- wealth V. Arrison, 15 Serg. & R. (Pa.) 127, 130, per Tilghman, C. J. Franchises are extremely numerous and of various kinds. 3 Greenleaf's Cruise on Real Prop., *260. See also next following note. " The word ' franchise ' is used with various meanings. In its broad and popular sense it embraces the right of trial by jury, the right to habeas corpus, the right to vote at an elec- tion, the right to membership in voluntary associations or corpora- tions, the right to hold an office, and perhaps other rights." Chicago & Western Indiana Rd. Co. v. Dunbar, 23 10 ENUMERATION OF FRANCHISES concern, so that a want of regulation and control will in- juriously affect the public in its general interests, may be the subject of a franchise. ^ There are, however, certain classes of franchises which have been enumerated as existing in England but which are unknown here and can have no application under the laws of this country.^ 95 111. 571, 575, per Dickey, J. A case of what constitutes a franchise under a state constitution and also of appeal. ' People V. Loew, 44 N. Y. Supp. 43, 26 Civ. Proc. 132, 19 Misc. 248. ^ " Franchises are of various kinds, such as the privilege of exercising the powers of a corporation, of having waifs, wrecks, estrays; the right to collect tolls on a road, bridge, ferry or wharf; the privilege of fishing, or taking game and numerous others which might be referred to. In Eng- land a large class of franchises exist which are unknown to our law, but some are of more extensive use than here, especially corporate franchises." California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422, per Crocker, J. The word is "frequently used to denote the right of voting for a mem- ber to serve in Parliament, which is called the parliamentary franchise or the right of voting for an alderman or town councillor, which is called the municipal franchise." Mozley & Whiteley's Law Diet. " The franchises of Forest, Chase, Park, Free Warren, Manor, Game, Court-leet, Waif, Wreck, Estray, Treasure-trove, Royal Fish, Goods of Felons, and Deodands, which form the body of this title in Mr. Cruise's work, have no existence in the United States, and afford but few and remote illustrations of any principles of our law of real property. Those 24 subjects, therefore, are entirely omit- ted in this edition. The others are retained, for the sake of the doctrines involved in them, which are useful and interesting to the American law- yer." Note to 3 Greenleaf's Cruise on Real Prop., * 261. None of the franchises enumerated by Blackstone "except corporations having the right to take tolls at bridges, wharfs, etc., have any appli- cation, under our laws. If, then, his enumeration is to be taken, the number of cases is small in which a franchise may be involved. If the Constitutional Convention and the General Assembly used the term ac- cording with its strict legal import, and we must presume they did, then in this country it can only embrace corporations, ferries, bridges, wharfs and the like, where tolls are author- ized to be taken, and we may add the elective franchise as it is granted by the constitution to a portion of the people to elect their officers. If others exist they do not occur to us at this time." People v. Holtz, 92 111. 426, 429, per Curiam. " The right to create a corporation, assuredly, is a franchise; so is the right to create an office, or to coin money, or to appropriate private property, or, in England, to take royal fish, to work mines of gold and silver, to take waifs, wrecks, estrays, and treasure-trove, to hold courts baron, or courts leet, to keep warrens, forests, parks and chases, and many ENUMERATION OF FRANCHISES 11 § 11. Corporations Generally— Members' Rights — Mem- bership — Corporate Name — Municipal Corporations — " Pub- lic Franchise." — Under our laws corporations or bodies politic are the most usual franchises ; '^ and the privilege or right to privileges of the like description. A franchise is a right belonging to the government, as a sovereign, yet, com- mitted, in trust, to some officer, cor- poration or individual. On page 279 of the third volume of Cruise's Di- gest, it is said: 'A franchise is a royal privilege, or branch of the King's prerogative, subsisting in a subject by a grant from the Crown.' It must needs be a sovereign power, or some- thing which no subject or citizen can, of right, use. In England, as is well known, there were certain fish, as whale or sturgeon, to which, when thrown ashore or caught near the coast, the King is entitled. Mines of gold and silver, also, were the King's property and part of his revenue. All the game in the kingdom, be- longed originally to him, as did all waifs, wrecks, estrays, treasure-trove, deodands, etc. None but the King, at first, could have a forest, a chase, a warren, or a park. 1 Black. Comm., chap. 8; 3 Crui-se's Digest, title 28, chap. 1. In England, therefore, all such rights, when delegated to a sub- ject, are franchises. * * * It is plain that many things are the sub- jects of a franchise, in England, which are not such in this country." Knoup v. Piqua Bank, 1 Ohio St. 603, 613, 614, per Corwin, J. See also Arnold V. Mundy, 6 N. J. L. 1, 87, 10 Am. Dec. 266, per Kirkpatrick, C. J. "Franchises may be divided into two classes — those which the King has in his o\vn hands as parcel of the flowers of his crown, and those which have no existence until created by the King. * * * This distinction is well settled and was recognized in the case of Duke of Northumberland v. Houghton, L. R. 5 Ex. 127. Fran- chises which belong to the King by right of his prerogative cannot pass under the general word ' franchise ' in a grant from the Crown because they do not exist as such until, created by grant, they are part of the preroga- tive; if created and resumed they merge in the prerogative. But fran- chises which are no part of the flowers of the Crown have no existence until the Crown expressly creates them, and these if resumed do not merge." Attorney General v. Trustee of Brit- ish Museum, Law Rep. (1903) 2 Ch. Div. 598, 612, 613, per Farwell, J. (holding that treasure-trove cannot be claimed under a general grant of franchises, but must itself be ex- pressly granted and when so granted it becomes a franchise in the grantee). * Spring Valley Water Works v. Schotler, 62 Cal. 69, 106, per Thorn- ton, J., quoting 3 Kent's Comm. 459; State ex rel. Waring v. Georgia Medical Society, 38 Ga. 608, 626, 95 Am. Dec. 408, quoting Bouvier's L. Diet. 593; People ex rel. Koerner v. Ridgley, 21 111. 65, 69 (an information in nature of quo warranto in a crimi- nal proceeding); Kennebec & Port- land Rd. Co. V. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dissenting opinion of Tapley, J. (a mortgage and foreclosure of a railroad franchise, etc.), quoting 3 Kent's Comm. 459. "The word ' franchise ' is often used in the sense of privileges generally, but in its more appropriate and legal sense the term is confined to such 25 11 ENUMERATION OF FRANCHISES be or exist as a corporation is declared to be of itself a fran- chise * belonging to members of the corporation.® But it is rights and privileges as are conferred upon corporate bodies by legislative grant." Fietsam v. Hay, 122 111. 293, 294, 13 N. E. 501, 11 West. Rep. 582, 3 Am. St. Rep. 492, per Mulkey, J. (a case of right to sell or transfer). ' People V. O'Hair, 128 111. 20, 21 N. E. 211, per Schofield, J. (a case of quo warranto and whether franchise involved on appeal); Louisville To- bacco Warehouse Co. v. Common- wealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420, quoting from People v. Utica Ins. Co., 15 Johns. (N. Y.) 357, 387; Pierce v. Emery, 32 N. H. 484, 507; State v. Austin & Northwestern Rd. Co., 94 Tex. 530, 532, 62 S. W. 1050, per Gaines, C. J. (a case of rail- way taxation.) See also the following cases: United States: Central Pacific Rd. Co. V. Cahfornia, 162 U. S. 91, 125, 40 L. ed. 903, 16 Sup. Ct. 766, where it is said that " corporate capacity is a franchise" (a case of taxation); Mercantile Bank v. Tennessee, 161 U. S. 171, 40 L. ed. 656, 16 Sup. Ct. 466, per Peckham, J.; Memphis & Little Rock Ry. Co. v. Railroad Commissioners, 112 U. S. 609, 610, 5 Sup. Ct. 299, 28 L. ed. 837. California: Spring Valley Water Works V. Schottler, 62 Cal. 69 (under state constitution). Colorado: Iron Silver Mining Co. V. Cowie, 31 Colo. 450, 72 Pac. 1067 (upon the question of mandamus and the jurisdiction of the Supreme Court to review judgment, a franchise was held to be involved, where the legal ex- istence of the corporation was treated by both parties as the sole issue). Illinois: People ex rel. v. Cooper 139 III. 461, 29 N. E. 872 (franchise involved and appeal lies where legal existence of drainage district and of commissioner's powers the question in issue); Porter v. Rockford, Rock Island & St. Louis Rd. Co., 76 111. 561, 573, per Scholfield, J. Iowa: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 239, 91 N. W. 1081, per Weaver, J. Kentucky: Board of Councilmen of City of Frankfort v. Stone, 108 Ky. 400, 22 Ky. L. Rep. 25, 56 S. W. 679 (a case of taxation and apportionment of tax. In this case a distinction was made be- tween the franchise itself and the means of exercising the franchise, Id., 407). Michigan: See Grand Rapids Bridge Co. v. Prange, 35 Mich. 400, 405, 24 Am. Rep. 585. Minnesota: State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 226, 41 N. W. 1020, 3 L. R. A. 510, per Mitchell, J. New York: People ex rel. Metro- politan Street Ry. Co. v. Tax Com- missioners, 174 N. Y. 417, 435, 67 N. E. 69; State v. Mayor, etc., of New York, 3 Duer (N. Y.), 119, 144, per Bosworth, J. Virginia: Tuckahoe Canal Co. v. Tuckahoe Rd. Co., 11 Leigh (Va.), 42, 76, 36 Am. Dec. 374 ("thus it is a franchise to be a corporation, with power to sue and be sued and to hold property as a corporate body," per Tucker, P.). See State ex rel. Vilter Mfg. Co. v. Milwaukee, Burlington & Lake Ge- « Memphis & Little Rock Rd. Co. V. 28 L. ed. 837, 5 Sup. Ct. 299, per Commissioners, 112 U. S. 609, 619, Matthews, J.; Fietsam v. Hay, 122 26 ENUMERATION OF FRANCHISES § 11 said that the franchise to be a corporation belongs to the corporators in so far that it does not pass by mortgage and neva Rd. Co., 116 Wis. 142, 92 N. W. 146, per Winslow, J. " Corporations or bodies politic are the most usual franchise known to our law." Wilmington & Reading Ry. Co. V. Downward (Del. Ct. Err. & App., 1888), 14 Atl. 720, 721, per Salisbury, Ch. " The creation of a corporation, the grant of power to exist and act as such is, in itself, a franchise." San Joaquin & King's River Canal Irrig. Co. V. Merced County, 2 Cal. App. 593, 84 Pac. 285. Where the creation of a corpora- tion was sought to be enjoined and the question was one of appeal and whether a franchise was involved, the court declared that to be a corpora- tion was itself a franchise. Drum- mond Tobacco Co. v. Randle, 114 111. 412, 434, 2 N. E. 536, per Schol- field, J. Franchises "are very generally granted to corporations. Indeed, the right of incorporation is said to be itself a franchise." Sellers v. Union Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J., citing 2 Bl. Comm. 37; Angell & Ames on Corp. § 4. "It is true, the right to be a cor- poration is itself a franchise, but all franchises granted to a corporation do not become corporate fran- chises." Green v. Knife Falls Boom Corp., 35 Minn. 155, 157, 158, per Vanderbergh, J. "When the legislature grants a charter of incorporation, it confers upon the grantees of the charter the 111. 293, 295, 3 Am. St. Rep. 492, 13 N. E. 501, per Mulkey, J. See criti- cism of this case by Judge Thompson in next following note. Driscoll v. Norwich & Worcester Rd. Co., 65 Conn. 230, 256, 32 Atl. 354, per Tor- rence, J., in dissenting opinion. See Medical & Surgical Soc. of Mont- gomery v. Weatherly, 75 Ala. 248, 253; Coe v. Columbus, Piqua & In- diana Rd. Co. 10 Ohio St. 372, 385, 75 Am. Dec. 518, per Gholson, J. "A corporation is itself a franchise belonging to the members of the cor- poration." Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J.; Ix)uisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1051, 48 S. W. 420. Both cases quoting from Pierce v. Emery, 32 N. H. 484, 507, per Parley, J. "Franchise is the privilege held by the individual members to be a cor- poration and exercise corporate powers." Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 239, 91 N. W. 1081, per Weaver, J. "The rule is that the primary fran- chise of being a corporation vests in the individuals who compose it, and not in the corporation itself." State v. Water Co., 61 Kan. 547, 560, 60 Pac. 337, per Smith, J. " 'The franchise to exist as a cor- poration' * * * is a franchise of the individual corporators, of the natural persons who are shareholders of the capital stock, and pertains to them as such corporators; whereby they are endowed with the privilege and capacity of being constituted into, and co-operating together as a body politic, with power of succes- sion, and without individual liabil- ity." Meyer v. Johnson, 53 Ala. 237, 324, per Manning, J., case decided in 1875. 27 § 11 ENUMERATION OF FRANCHISES sale thereunder.' And considered in connection with the right to assess for taxation, the assessment should not be right or privilege of forming a corpo- rate association, and of acting, within certain limits, in a corporate capacity, and this right or privilege is called the 'corporate franchise.' " Jersey City Gas-Light Co. v. Gas Improve- ment Co., 46 Fed. 264, 265, per Greene, J., case aff'd 58 Fed. 323. "A corporation is defined by Mr. Justice Blackstone (2 Black. Comm. 37) to be a franchise. It is, says he, * A franchise for a number of persons to be incorporated and exist as a body politic, with a power to main- tain perpetual succession, and to do corporate acts.' " Dartmouth Col- lege v. Woodward, 4 Wheat. (17 U. S.) 518, 657, 4 L. ed. 629, per Washington, J., See also id., 700 per Story, J, A corporation franchise to be and act as a corporation merely gives the corporation life as a person, bear- ing the same relation to the taxing powers borne by the natural person. San Joaquin & King's River Canal Irrig. Co. v. Merced County, 2 Cal. App. 593, 84 Pac. 285. "A corporation is a franchise possessed by one or more individuals, who subsist as a body politic, under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual. The ordinary incidents to a corporation are to have perpetual succession, and the power of electing or otherwise providing members in the place of those removed by death or other- wise; to sue and be sued; to grant and receive and to purchase and hold lands and chattels by their corporate name; to have a common seal; to make by-laws for the government of the corporation; and sometimes the power of a motion or removal of members. * * * The right to be a corporation is itself a separate, dis- tinct and independent franchise." Southern Pacific Rd. Co. v. Orton, 32 Fed. 457, 473, per Sawyer, J., citing 2 Kent's Comm. (9 ed.), 306, 325; Memphis & Little Rock Rd. Co. v. Commissioners, 112 U. S. 609, 5 Sup. Ct. 299. Above quotation is given in part in Porter v. Rockford, Rock Is- land & St. Louis Rd. Co., 76 111. 561, 573, per Scholfield, J. " What is called 'the franchise of ' See New Orleans Debenture Re- demption Co. v. Louisiana, 180 U. S. 320, 329, 45 L. ed. 551, 21 Sup. Ct. 378, per Peckham, J. (a case of ac- tion to enjoin use of charter; neces- sary parties, and power of States over corporations); Julian v. Central Trust Co., 193 U. S. 93, 106, 48 L. ed. 629, 24 Sup. Ct. 399, per Day, J. (a case of state laws as rules of decision ; railroads, foreclosure of mortgages; purchase by foreign corporation, validity of; indebtedness; Hability of 28 purchaser; and conflicting jurisdic- tion); New Orleans, Spanish Fort & Lake Rd. Co. v. Delamore, 114 U. S. 501, 510, 5 Sup. Ct. 1009, 29 L. ed. 244 (a case of federal jurisdiction over state judgment as to sale; jurisdic- tion in bankruptcy; railroad franchise of right of way, title by foreclosure; right to mortgage; and of transfer to assignee in bankruptcy of franchises mortgaged). See subsequent sec- tions herein as to this power to trans- fer or alienate. ENUMERATION OF FRANCHISES § 11 made against the stockholders or members as such, but against the corporation, for this franchise of a right to exist, while in a certain sense belonging to the members of the corporation, must be availed of through the corporation itself.* Again, it is declared that corporate rights are granted to the corporation and not to the individuals interested therein, as is instanced by a case where the stockholders may separately assign and transfer their stock, and, independently of their rights, the corporation itself may alienate its property and franchises, where the law permits such transfer, mortgage or conveyance.® forming a corporation,' is really but an the corporation which comprise the exemption from the general rule of the franchises thereof, — its special powers common law prohibiting the forma- and rights,' 1 Wood, Ry. Law, § 14, tion of corporations. All persons in p. 27; now, it is perfectly apparent this State have now the right of that any acts done to further the ob- forming corporate associations upon jects of the corporation are the exer- complying with the simple formalities cise of its franchises." Young v. prescribed by the statute. The right Webster City & So. West. Ry. Co., 75 of forming a corporation and of acting Iowa, 140, 143, 39 N. W. 234, per in a corporate capacity under the Rothrock, J. general incorporation laws, can be " Strictly ' the franchise to exist as called a franchise only in the sense in a corporation ' is not a corporate which the right of forming a limited franchise 'or franchise of the corpora- partnership, or of executing a con- tion' at all." Meyer v. Johnson, 53 veyance of land by deed, is a Ala. 237, 324, per Manning, J. franchise (2 Morawitz, Priv. Corp. "The right to be a corporation has § 923)." State v. Western Irrigating sometimes been called a franchise, Canal Co., 40 Kan. 96, 99, 19 Pac. but that is a misapplication of 349, per Horton, C. J. terms." Knoup v. Piqua Bank, 1 "'The corporation itself is not a Ohio St. 603, 613, per Corwin, J. franchise, but it is the attributes of » Bank of California v. San P>an- 293, 3 Am. St. Rep. 492, 494, says: cisco, 142 Cal. 276, 75 Pac. 832, 64 "But this is an imperfect statement L. R. A. 918. of the true conclusion, — which is, ' Detroit, City of, v. Mutual Gas that a primary franchise, that is to Co. & Mutual Gas Light Co., 43 say, the franchise of being a corpora- Mich. 594, 5 N. W. 1039. tion, vests in the individuals who Judge Thompson after quoting compose the corporation; while those from an Illinois case to the point, secondary franchises which, as we " 'that a franchise or right to be and shall hereafter sec, are vendible by the act as an artificial body, is vested in corporation, necessarily and for that the individuals who compose the cor- reason alone must vest in the corpora- poration, and not in the corporation tion." 4 Thompson's Comm. on itself,' " Fietsam v. Hay, 122 111. Corp. § 5336. The author' also adds 29 § 11 ENUMERATION OF FRANCHISES It is also held that a corporation is an entity, irrespective of the persons who own all of its stock; that the fact that one person owns all the stock does not make such owner and the corporation one and the same person; and that there is not any identity between the individual or the corporation which owns such stock in another corporation, and that latter cor- poration.^" And whenever a corporation makes a contract, the following: "We shall, however, fers to entity and not to individual see hereafter that judicial theory is stockholder's right of removal to so confused on the subject, that pro- Federal court, cannot be defeated on ceedings in the nature of quo war- ground that corporation not a legal ranto, to vacate the franchises of entity). corporations, are sometimes brought Maryland: Folsom v. Detrick Fer- against the individuals who com- tilizer & Chemical Co., 85 Md. 52, 69, pose the corporation and sometimes 36 Atl. 446 (corporation is person dis- against the corporation itself." tinct from stockholders, per Bryan, loUlmer v. Lime Rock R. Co., 98 J.). Me. 579, 594, 57 Atl. 1001. Nebraska: Home Fire Insurance Whether corporation is person or Co. v. Barber, 67 Neb. 644, 666, 93 entity distinct from stockholders, see N. W. 1024 (stating when separate the following cases: and distinct in law and when not in United States: Central Trust Co. equity, per Pound, C). of N. Y. V. Western North Carolina New York.- Buffalo Loan, Trust & Rd. Co., 89 Fed. 31, per Simonton, Safe Deposit Co. v. Medina Gas & Cir. J. ("this sovereign power made Elec. Light Co., 42 N. Y. Supp. 781, of several persons a single entity"); 788, 12 App. Div. 199 (word "entity" M'Cabe v. Illinois Central Rd. Co., is merely descriptive; but cannot act 13 Fed. 827, 828 (is a legal entity, independently of persons composing per Love, D. J.). it, per Green, J.); People v. North Alabama: State v. Stebbins, 1 River Sugar Refining Co., 3 N. Y. Stew. (Ala.) 299, 306-308 [per Saf- Supp. 401, 408, 16 Civ. Proc. R. 1, 2 fold, J., citing Bank of United States L. R. A. 33 (is not in reality distinct, V. Dandridge, 12 Wheat. (25 U. S.) although in one point of view an 91, per Marshall, C. J., to point that entity, per Barrett, J.); Supervisors it is one entire impersonal entity]. of Niagara v. People, 7 Hill (N. Y.), Illinois: Ford v. Chicago Milk 504, 507 (individuality of natural Shippers' Assoc, 155 111. 166, 39 persons is merged in entity, per N. E. 651, 27 L. R. A. 298 (while Bockee, Senator), legal entity and distinct from persons Pennsylvania: Rhawn v. Edge composing it, it cannot act inde- Hill Furnace Co., 201 Pa. 637, 51 Atl. pendently of natural persons con- 360 (is an entity irrespective of per- stituting it, per Phillips, J.). sons owning stock); Monongahela Kentucky: Lewis v. Maysville & Bridge Co. v. Pittsburg & Birming- Big Sandy Rd. Co., 25 Ky. L. Rep. ham Traction Co., 196 Pa. 25, 46 AtL 948, 76 S. W. 526 (when statute re- 99 (same statement as last case). 30 ENUMERATION OF FRANCHISES § 11 it is the contract of the legal entity, of the artificial being created by the charter — and not the contract of the individual South Carolina: State v. Hood, 15 Rich. L. (S. C.) 177, 188 (corporation is wholly distinct from natural per- sons composing it, per Inglis, J.). Tennessee: City of Nashville v. Ward, 16 Lea (84 Tenn.), 27, 30 (is not distinct, per Deaderick, C. J.). Corporation is an entity irrespective of, and entirely distinct from, the per- sons who own its stock, and it is well settled that all the shares in a cor- poration may be held by a single per- son and yet the corporation continue to exist; nor does the fact that one person owns all of the stock, make him and the corporation one and the same person. The corporation does not lose its legally distinct and sepa- rate personality by reason of the ownership of the bulk or whole of its stock by another; nor does the fact that all the shares of a corporation pass into the ownership of one person, operate to dissolve the cor- poration. It is also immaterial whether the sole owner of stock is a man or another corporation, and the corporation owning such stock is as distinct from the corporation whose stock is owned as the man is from the corporation of which he is the sole member. Commonwealth v. Monon- gahela Bridge Co., 216 Pa. 108, 114, 115, 64 Atl. 909, per Potter, J., citing or quoting Exchange Bank of Macon V. Macon Construction Co., 97 Ga. 1, 6, 25 S. E. 326; Kendall v. Klapper- thal Co., 202 Pa. 596, 607, 52 Atl. 92; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637, 644, 51 Atl. 360; Mo- nongahela Bridge Co. v. Pittsburg •*L' Birmingham Traction Co., 196 Pa. 25, 46 Atl. 99; 10 Cyc. 1277. "Franchises are usually conferred upon corporations for the purpose of enabling them to do certain things. The franchises are vested in the cor- porate entity rather than in the offi- cers." Londoner v. People, 15 Colo. 246, 247, 25 Pac. 183, per Hayt, J. " The doctrine of corporate entity is not so sacred that a court of equity, looking through forms to the substance of things, may not, in a proper case, ignore it to preserve the rights of in- nocent parties or to circumvent fraud." Rieger, Kapner & Altmark, In re, 157 Fed. 609, 19 Am. B. Rep. 622, 628. The court, per Sater, Dist. J. (p. 629), cites First National Bank of Chicago v. Trebein Co., 59 Ohio St. 316, 52 N. E. 834, and the following is a part of the quotation in the said case, given by the court: "In con- templation of law, a corporation is a legal entity, an ideal person, separate from the real persons who compose it. This fiction, however, is limited to the uses and purposes for which it was adopted — convenience in the transaction of business, and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, imaffected by changes in its corporate members. But the fic- tion cannot be abused. A corpora- tion cannot be formed for the purpose of accomplishing a fraud or other illegal act under the disguise of the fiction." The court in the principal case cites also the following authori- ties: Cincinnati, Volksblatt Co. v. Hoff"meister, 62 Ohio St. 189, 200, 56 N. E. 1033, 48 L. R. A. 732, 78 Am. St. Rep. 707; State v. Standard Oil Co., 49 Ohio St. 137, 177-179, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541; Brundred v. Rice, 49 31 § 11 ENUMERATION OF FRANCHISES members; the only rights it can claim are given to it in that character, and not the rights which belong to its members as citizens of a State.^^ Even though the word ''franchise" is sometimes used as synonymous with privileges and immunities of a personal character, it is nevertheless something which cannot be enjoyed by a citizen without a legislative grant; so that a membership in a religious, benevolent, literary and scientific corporation or association, incorporated under gen- eral or special laws, is not a franchise, and a member of a cor- poration or association without legislative grant, organized to transact commercial business, has not a franchise but a mere privilege. Therefore, the right of membership in a private corporation, such as a Board of Trade, is not a franchise. ^^ So, in New York, a distinction is made between membership in a municipal, eleemosynary, or private corporation, where the member is declared to be in the enjoyment of a franchise, the right to which is not derived from the body, but is created by statute or exists by prescription, and membership in an unincorporated voluntary association, such as an association or exchange called an ''Open Board of Brokers," where the privilege of membership is not given by statute or derived through prescription, as in a corporation, but is created and conferred by the organization itself and may be conferred or withheld at pleasure and therefore is not a franchise arising from a grant from a sovereign or government-^^* Again, it Ohio St. 640, 32 N. E. 169, 34 Am. right of a member of a board of trade St. Rep. 589; Thompson on Corp. to be restored to membership and § 1077; Cook on Corp. (4th ed.), 23; whether such membership was a 7 Ency. Am. & Eng. Law, 633, 634. franchise within the meaning of a See also United States v. Milwaukee law giving the right to prosecute ap- Refrigerator Co., 142 Fed. 247 (hold- peals and writs of error to the Su- ing corporation a legal entity as a preme Court). See Chicago & West- general rule, but will be regarded in ern Indiana Ry. Co. v. Dunbar, 95 law as an association of persons under 111. 571, 575, per Dickey, J. certain circumstances. Disfranchisement of member of cor- '1 Bank of Augusta v. Earle, 13 poration, what is. See Richards v. Pet. (38 U. S.) 519, 10 L. ed. 274. Clarksburg, 30 W. Va. 491, 4 S. E. >2 Board of Trade of Chicago v. 774; White v. Brownell, 4 Abb. Pr. People ex rel. Sturgis, 91 111. 80, 83 (N. S.) (N. Y.) 162, 192. (the question here was one of the ''White v. Brownell, 4 Abb. Pr. 32 ENUMERATION OF FRANCHISES § 11 is declared that the right to be a corporation by a particular name is a franchise, but that this is an entirely distinct and different right from the right to use a franchise in transacting business which can only exist by specific grant or prescrip- tion.^^ And it is further decided that where, under the law, a corporation may acquire a right to the exclusive use of another than its corporate name as a trade name, but not as a corporate name, and the object of the statute is not to pre- vent the fraudulent use of trade names but to prevent the identity of corporate names, the commissioner of corporations may properly approve a name as that of a corporation, not- withstanding that name is then in use as a trade name by a corporation with a different corporate name ; and the corporate name inserted in the certificate of incorporation from the Secretary of State under authority of the statute is conclusive of the right to the corporate name and gives a franchise to bear the name which can no more be impeached by private persons than can the franchise to be a corporation, and in bearing such a name a franchise conferred by law is exercised precluding any right of the older corporation to have a petition granted for leave to file an information in the nature of a quo warranto to restrain the exercise of a franchise and the use of the corporate name.^^ As to municipal corporations, special franchises may be conferred upon a city in respect to its waterworks, sewers and public parks, to enable it to ac- complish the purpose for which it was created. So the right of a city to take possession of, and improve as a public park, lands lying outside its limits, is derived only from a sovereign N. S. (N. Y. Ct. Com. Pleas) 162, See Union Water Co. v. Kean, 52 191-193, 2 Daly (N. Y.), 329, 358, N. J. Eq. Ill, 129-132, 27 Atl. 1015, per Daly, F. J. citing numerous cases. '♦ Hazelton Boiler Co. v. Tripod *^ Boston Rubber Shoe Co. v. Bos- Boiler Co., 137 111. 231, 233, 28 N. E. ton Rubber Co., 149 Mass. 436, 21 248, per Schofield, C. J. N. E. 875, cited in American Order That equitable relief may be had Scottish Clans v. Merrill, 151 Mass. to prevent use of corporate name, 558, 561, 8 L. R. A. 320, 24 N. E. 918. given by special charter, and exer- Compare Hazlcton Boiler Co. v. cise of a franchise and that complain- Ilazleton Tripod Boiler Co., 137 111. ant not restricted to quo warranto. 231, 28 N. E. 248. 3 33 § 11 ENUMERATION OF FRANCHISES grant, and so far as concerns the city is a " public franchise." " And, by way of further illustration, the franchise right to erect and maintain electric light and power plants may be conferred upon cities of a certain class." And, generally, municipalities may, within constitutional limitations, be em- powered, or granted the franchise, to own and operate electric lighting plants not only for use of the city but also for private use.^* Again, where a city acts in the capacity of a private corporation, in exercising its powers or franchise, it is placed by the law upon the same plane, in the matter of its liability for damages, as would any person or collection of persons which is the grantee of a like special franchise.^* " Mayor of Detroit v. Park Com- Newton, 42 Fed. 723, 3 Am. Else, missioners, 44 Mich. 602, 7 N. W. 180. Cas. 507. An information in nature of quo Florida: Jacksonville Elec. Light warranto to inquire by what author- Co. v. Jacksonville, 36 Fla. 229, 18 ity the city usurped certain fran- So. 677, 30 L. R. A. 540, 12 Am. R. & chises. See People v. Spring Valley, Corp. Rep. 626, 51 Am. St. Rep. 24, 6 129 111. 169, 21 N. E. 843, where the Am. Elec. Cas. 668. information charged a city with Indiana: Crawfordsville v. Braden, exercising a franchise not authorized 130 Ind. 149, 28 N. E. 849. by its charter, and it was held proper Michigan: Mitchell v. Negaumee, to make the city a defendant by its 113 Mich. 359, 4 Det. L. N. 318, 38 corporate name, but the question of L. R. A. 157, 71 N. W. 646. franchise as such was not discussed. New York: Potsdam Elec. Light & being evidently conceded to exist. Power Co. v. Village of Potsdam, 97 "A municipal corporation, for in- N. Y. Supp. 199, 49 Misc. 18. See stance, may have the franchise of a Tuttle v. Brush Elec. Ilium. Co., 50 market, or of a local court." Pierce N. Y. Super. Ct. 464, 1 Am. Elec. V. Emery, 32 N. H. 484, 507, per Cas. 508, 514, 515. Perley, C. J. Pennsylvania: Linn v. Chambers- Municipality may be authorized to burgh Borough, 160 Pa. 511, 4 Am. erect and maintain a system of Elec. Cas. 647, 28 Atl. 842. See also waterworks. See Keen v. Waycross, Black v. Chester, 175 Pa. 101, 34 Atl. 101 Ga. 588, 29 S. E. 42. 354. City may be authorized to con- Tennessee: Smith v. Nashville, 88 struct sewers. See Kennedy v. Boll- Tenn. (4 Pick.) 464, 12 S. W. 924. mar, 61 N. J. L. 20, 38 Atl. 756. See Opinion of Justices, 150 Mass. '' State v. City of Hiawatha & 593, 24 N. E. 1084. General Elec. Co., 53 Kan. 477; State " Chicago, City of, v. Selz. Schwab V. Taylor, 36 Wash. 607, 79 Pac. 286. & Co., 104 111. App. 376, aff'd 202 111. "United States: Thompson- 545, 67 N. E. 386; Dickinson v. City Houston Elec. Light Co. v. City of of Boston, 188 Mass. 595, 1 L. R. A. 34 ENUMERATION OF FRANCHISES § 12 § 12. Corporations Continued — What Franchises are Em- braced Generally. — A corporation is not only itself a franchise, but it consists and is made up of its rights and franchises and it may hold other franchises as rights and franchises of the corporation. 2^ So it is said, by the court, in a Connecticut (N. S.) 664, 75 N. E. 68; Bullmaster V. St. Joseph, 70 Mo. App. 60. 20 United States: See Memphis & Little Rock Rd. Co. v. Commis- sioners, 112 U. S. 609, 610, 619, 28 L. ed. 837, 5 Sup. Ct. 299; Buchanan V. Knoxville & Ohio Rd. Co., 71 Fed. 3J4, 334, 18 C. C. A. 122, per Sever- ens, Dist. J. California: Spring Water Works V. Schottler, 62 Cal. 69, 106, per Thornton, J., quoting from Pierce v. Emery, 32 N. H. 484, 507, per Perley, J. Connecticut: Driscoll v. Norwich & Worcester Rd. Co., 65 Conn. 230, 256, 32 Atl. 354, per Torrance, J., in dissenting opinion. Florida: Sullivan v. Lear, 23 Fla. 463, 2 So. 846, 11 Am. St. Rep. 388. See quotation from this case in note to § 39, herein, as to distinction be- tween franchise to be and to do. Illinois: Chicago & Western Indi- ana Rd. Co. V. Dunbar, 95 111. 571, 576. Iowa: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 239, 91 N. W. 1081, per Weaver, J. Kentucky: Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1051, 48 S. W. 420, quoting from Pierce v. Emery, 32 N. H. 484, 507, per Perley, J. New Jersey: State Board of As- sessors v. Central Rd. Co., 48 N. J. L. 146, 271, per Scudder, J. New York: People ex rol. Metro- politan Street Ry. Co. v. Tax Com- missioners, 174 N. Y. 417, 67 N. K. 69; State v. Mayor, etc., of New York, 3 Duer (N. Y.), 119, 144, per Bosworth, J. Vermont: State v. Boston, Con- cord & IMontreal Rd. Co., 25 Vt. 433, 442, per Redfield, Ch. J. Examine the following cases: United States: Mercantile Bank V. Tennessee, 161 U. S. 171, 40 L. ed. 656, 16 Sup. Ct. 466, per Peck- ham, J.; Home Ins. Co. v. New York, 134 U. S. 594, 599, 33 L. ed. 1025, 10 Sup. Ct. 593, per Field, J. [case affirms People v. Home Ins. Co., 92 N. Y. 328, also aff'd by divided court, 119 U. S. 129, 30 L. ed. 350, 8 Sup. Ct. 1385, restored to calendar 122 U. S. 636 (Mem.). The principal case is cited in People v. Miller, 83 N. Y. Supp. 184, 187, 85 App. Div. 211, which case is re- versed 177 N. Y. 51, 69 N. E. 124, which is cited in People v. Miller, 86 N. Y. Supp. 420, 422, 90 App. Div. 588, this last case is reversed 179 N. Y. 49, 71 N. E. 463. The principal case is also quoted from in Cobb v. Commissioners of Durham County, 122 N. Car. 307, 309, 30 S. E. 338, per Montgomery, J.]; Davis v. Gray, 16 Wall. (83 U. S.) 203, 228, 21 L. ed. 447, per Swayne, J.; Thompson v. Schenectady Ry. Co., 124 Fed. 274, 279, per Ray, Dist. J., see same case 131 Fed. 577; Central Trust Co. of New York v. Western North Carolina Rd. Co., 89 Fed. 24, 31, per Simon ton, Cir. J.; Southern Pacific Rd. Co. v. Orton, 32 Fed. 457, 474, per Sawyer, J. California: San Joaquin & King's River Canal Irrig. Co. v. Merced 35 § 12 ENUMERATION OF FRANCHISES case, that: "The term 'franchise' has several signijfications and there is some confusion in its use. The better opinion, deduced from the authorities, seems to be that it consists of the entire privileges embraced in and constituting the grant. It does not then embrace the property acquired by the exer- cise of the franchise." ^^ In case of a mortgage which "pur- County, 2 Cal. App. 593, 84 Pac. 285. Kentucky: Board of Councilmen of City of Frankfort v. Stone, 108 Ky. 400, 22 Ky. L. Rep. 25, 56 S. W. 679. Maryland: Consolidated Gas Co. V. Baltimore City, 101 Md. 541, 545- 548, 61 Atl. 532, per McSherry, C. J. Minnesota: State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 226, 41 N. W. 1020, 3 L. R. A. 510, per Mitchell, J. New York: Sandham v. Nye, 30 N. Y. Supp. 552, 555, 62 N. Y. St. Rep. 198, 9 Misc. 541, per Rum- sey, J. Wisconsin: Linden Land Co. v. Milwaukee Elect. Ry. & Light Co., 107 Wis. 493, 513, 514, 83 N. W. 858. " City of Bridgeport v. New York & New Haven Rd. Co., 36 Conn. 255, 266, 4 Am. Rep. 63, per But- ler, J. (case of assessment for bene- fits), quoted in part in Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, also quoted in Louisville Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1051, 48 S. W. 420. See Gordon v. Appeal Tax Court, 3 How. (44 U. S.) 133, 150, 11 L. ed. 529, per Wayne, J. " It is quite too narrow a definition of the word ' franchise ' * * * to hold it as meaning only the right to be a corporation. The word is ge- neric covering all the rights granted by the legislature." Atlantic & Gulf 36 Rd. Co. V. Georgia, 98 U. S. 359, 365, 25 L. ed. 185, quoted in State Tide- Water Pipe Line Co. v.' Berry, 52 N. J. L. 308, 311, 19 Atl. 665, per Van Syckel, J.; quoted in part in Wil- mington City Ry. Co. v. Wilmington & Brandywine Springs Ry. Co. (Del. Ch., 1900), 46 Atl. 12. The term "franchise" is "also to be regarded as a generic term cover- ing all rights granted to a corpora- tion by legislative act or statute." Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 238, 91 N. W. 1081, per Weaver, J., dis- tinguishing also between the fran- chise to be a corporation and the privileges granted when organized. Covers all rights granted to a cor- poration. Whence " corporate fran- chises." Atlantic & Gulf R. Co. v. Georgia, 98 U. S. 365, 25 L. ed. 185, per Strong, J. ' "As applied to corporations" the word "franchise" "constitutes its right to do business, and, also, in so doing, to exercise certain special powers and privileges which do not belong to citizens of the country gen- erally of common right, and is vested in the corporate entity." Arapahoe County V. Rocky Mountain News Printing Co., 15 Colo. App. 189,^203, 61 Pac. 494, per Wilson, J. " The franchise of the company is the right to hold property and exercise its corporate privileges. * * * All the rights and privileges which the company is empowered to exer- ENUMERATION OF FRANCHISES § 12 ports to convey only the 'road and its franchises/ " these terms "embrace only such rights and privileges as are in- volved in the o^Tiing, maintaining and operating of the rail- road, and in the receipt and enjoyment of the income and emoluments of so doing. The franchise conveyed is, by the language, restricted to the franchise that the corporation had in the road itself; and therefore cannot be regarded as touch- ing other franchises, such as that of being a corporation, with the right of perpetual succession, of suing and being sued by corporate names, etc." ^^ Again, those franchises are es- pecially to be considered which are essential to corporate operation, and the exercise of corporate rights and necessary to make the grant of value. ^^ And such privileges as are rea- sonably necessary to the discharge of the duty of a street-car company to the public in transporting persons from place to place on the street, in the way in which such business is ordinarily conducted, are incident to the franchise to main- tain and operate the road, in the absence of municipal regula- tions or something in the franchise, or some state police cise were granted to it by its charter 922); Morgan v. Louisiana, 93 U. S. upon the terms specified therein." 217, 23 L. ed. 860; Chicago & West- Hancock, Comptroller, v. Singer Mfg. ern Indiana Ry. Co. v. Dunbar, 95 Co., 62 N. J. L. 289, 336, 42 L. R. A. 111. 571, 576; Shamokin Valley Rd. 852, 41 Atl. 846, per Van Syckel, J. Co. v. Livermore, 47 Pa. 465, 468, "The franchise to be is only one of per Agnew, J., and examine gener- the franchises of a corporation." ally cases throughout this work. Adams Express Co. v. Ohio State ^^ Miller v. Rutland & Washington Auditor, 166 U. S. 185, 224, 41 L. ed. Rd. Co., 36 Vt. 452, 493, per Bar- 965, 17 Sup. Ct. 604, per Brewer, J. rett, J. (a case of taxation and interstate '^ See the following cases: commerce) denying rehearing, 165 United States: Chesapeake & U. S. 194, 41 L. ed. 683, 707, 17 Ohio Ry. Co. v. Miller, 114 U. S. 176, Sup. Ct. 305. See further chap. IV, 186, 29 L. ed. 121, 5 Sup. Ct. 813; herein, as to distinctions. East Tennessee, Virginia & Georgia What franchises a railroad company Rd. Co. v. Hamblen, 102 U. S. 275, embraces. See Chesapeake & Ohio 277, 26 L. ed. 121, 152; Morgan v. Ry. Co. V. Miller, 114 U. S. 176, State of Louisiana, 93 U. S. 217, 23 186, 29 L. ed. 121, 5 Sup. Ct. 813 L. ed. 860. (quoted in Baltimore, Chesapeake & Illinois: Chicago & Western Indi- Atlantic Ry. Co. v. Mayor, etc., of ana Rd. Co. v. Dunbar, 95 111. 571, Ocean City, 89 Md. 89, 98, 42 Atl. 576. 37 § 12 ENUMERATION OF FRANCHISES regulation to the contrary .^^ So it is declared that a fran- chise of itself is of no value when considered as the bare right to do a thing exclusive of its public utility; that its value de- pends upon the profit to be made out of it, having in view its practical uses in connection with the nature of the franchise and the skill, business judgment and management necessary to make it profitable.^^ But the privilege, right or power to exercise and acquire or own varied and distinct franchises may never be exercised by the corporation, and such fran- chises may never be acquired or owned, as in the case of the power to acquire realty .^^ This right to acquire and sell real estate, including particular real estate designated in the char- Maine: State v. Maine Central Rd. and act as a single person, with a Co., 66 Me. 488, 512, per Appleton, succession of members, without dis- C. J. solution or suspension of business and Maryland: Baltimore, Chesapeake with a limited individual liability. & Atlantic Ry. Co. v. Mayor, etc., of The granting of such right or privi- Ocean City, 89 Md. 89, 98, 42 Atl. lege rests entirely in the discretion of 922. the State, and, of course, when Nebraska: Western Union Teleg. granted," the legislature may impose Co. V. City of Omaha (Neb., 1905), conditions affecting the grant of the 103 N. W. 84, 86. franchise. Home Insurance Co. v. New Jersey: State Board of As- New York, 134 U. S. 594, 599, 33 sessors v. Central Rd. Co., 48 N. J. L. L. ed. 1025, 10 Sup. Ct. 593, per 146, 271, per Scudder, J. Field, J. Case 'affirms People v. Pennsylvania: Shamokin Valley Home Ins. Co., 92 N. Y. 328, which Rd. Co. V. Livermore, 47 Pa. 465, is also aff'd 119 U. S. 129, 30 468, per Agnew, J. L. ed. 350, 8 Sup. Ct. 1385, re- Tennessee: Wilson V. Gaines, 9 stored to calendar, 122 U. S. 636 Baxt. (68 Tenn.) 546, 552. (Mem.). Texas: Denison & Sherman Ry. '* Tesch v. Milwaukee Elect. Ry. Co. V. St. Louis Southwestern Ry. & Light Co., 108 Wis. 593, 608, 84 Co., 30 Tex. Civ. App. 474, 481, N. W. 823, per Marshall, J. 482, 72 S. W. 201, per Bookhout, " Sullivan v. Lear, 23 Fla. 463, 11 Assoc. J. Am. St. Rep. 388, 2 So. 846. See " The right or privilege to be a cor- Medical & Surgical Soc. of Mont- poration, or to do business as such gomery v. Weatherly, 75 Ala. 248, body, is one generally deemed of 253. value to the corporators, or it would " San Joaquin & King's River not be sought in such numbers as at Canal Irrig. Co. v. Merced, 2 Cal. present. It is a right or privilege by App. 593, 84 Pac. 285. See chap. IV, which several individuals may unite herein, as to distinctions, themselves under a common name 38 ENUMERATION OF FRANCHISES § 13 ter, is declared to be a franchise; ^^ as is also the right to con- sohdate.^* § 13. Corporations Continued — Foreign Corporations Gen- erally. — As to foreign corporations "the franchise of a cor- " Davis V. Gray, 16 Wall. (83 U. S.) 203, 228, 21 L. ed. 447, per Swayne, J. See chap. IV, herein, as to distinctions. The rule that the limitation of the power of a corporation in a State to receive and hold real estate concerns the State alone, does not apply when the corporation, as plaintiff, seeks to acquire real estate which it is not authorized by law to acquire. Case V. Kelly, 133 U. S. 21, 33 L. ed. 513, 10 Sup. Ct. 216. Includes right to acquire land. Baltimore & Fredericktown Turnpike Road V. Baltimore, Catonsville & E. M. P. Rd. Co., 81 Md. 247, 255, 31 Atl. 854, per Bryan, J. As to power to take and hold lands while empowered to receive grants of land; limitations as to purchase of real estate, see Southern Pacific Rd. Co. V. Orton, 32 Fed. 457, 470, 473. " This franchise, this corporate right, to select and acquire land, is property; it is an incorporeal here- ditament, not a legal title to the land itself, not a mere capacity or faculty to acquire and hold land, such as every individual possesses; but in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation, to acquire the legal title to land sub- jected by the grant to its will, and thus to convert the incorporeal into a corporeal hereditament, and after the franchise to choose and condemn land for any particular public pur- pose; that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise." Canal Company v. Railroad Com- pany, 4 Gill. & J. (Md.) 1, 144, 145, per Buchanan, Ch. J., quoted in Baltimore & Fredericktown Turn- pike Road V. Baltimore, Catonsville & EUicott Mills Pass. Rd. Co., 81 Md. 247, 255, 31 Atl. 854, per Bryan, J. See also § 19, herein, as to Eminent Domain. The right of a city to take posses- sion and improve lands lying outside the city limits as a public park is a franchise which the right to purchase, to create a debt therefor, and to ex- tend over it the police power is ex- pressly granted by a special act of the legislature. Mayor v. Park Commis- sioners, 44 Mich. 602, 605, 7 N. W. 180. A corporation created for the pur- pose of c'ealing in lands, and to which the powers to purchase, to subdivide, to sell, and to make any contract es- sential to the transaction of its busi- ness are expressly granted, possesses, as fairly incidental, the power to incur liability in respect of securing "Adams v. Yazoo & Miss. Valley Rd. Co., 77 Miss. 194, 1 Miss. Dec (No. 30) 296, 24 So. 200, 317. 39 § 13 ENUMERATION OF FRANCHISES poration is granted by the jurisdiction where the company is incorporated, and its situs is in the State or country of its origin." The certificate of authority issued to a foreign cor- poration "confers upon such company a privilege or right not possessed or enjoyed by citizens generally, and not con- ferred upon it by its original franchise. This right or privilege so conferred is in that sense a franchise." ^^ So in Ohio, where a certificate of authority is required to enable a foreign cor- poration to carry on its business in a State, other than that of its incorporation, "the authority emanates from the State and the privilege granted is a franchise, " and any company or association, carrying on its business in the domestic State without such authority, is unlawfully exercising a franchise.^" It is also said that: "A State has the right to debar ahens * * * from holding shares in her corporations, or to admit them to that privilege only on such terms as she may pre- scribe. The right of an association under the protection of an artificial personality, and of doing business on its credit, better facilities for transit to and States composing the Union, the from the lots of lands which it is its presumption is to be indulged that a business to acquire and dispose of. corporation, if not forbidden by its Fort Worth City Co. v. Smith Bridge charter, may exercise the powers Co., 151 U. S. 294, 38 L. ed. 167, thereby granted within other States, 14 Sup. Ct. 339. including the power of acquiring Power to purchase and hold real es- lands, unless prohibited therefrom tate indefinitely. In the absence of either in their direct enactments or an enabling statute, either general or by their pubhc pohcy, to be deduced special, a railroad or other corpora- from their general course of legisla- tion cannot purchase and hold real tion or the settled adjudications of estate indefinitely, without regard to their highest courts. Christian Union the uses to be made of it. Case v. v. Yount, 101 U. S. 352, 25 L. ed. 888. Kelly, 133 U. S. 21, 33 L. ed. 513, As to right of a corporation to hold 10 Sup. Ct. 516. lands in a State other than that of its Foreign corporations — Power to ac- incorporation, see State v. Boston, quire lands. In harmony with the Concord & Montreal Rd. Co., 25 Vt. general law of comity among the 433. 2» Northwestern Mutual Life Ins. Ohio St. 163, 194, 24 L. R. A. 298, 37 Co. V. Lewis & Clarke County, 28 N. E. 828, per Williams, J., quoting Mont. 484, 491, 492, 72 Pac. 982, per also from Spelling on Extraordinary Poorman, Comm'r. Relief, §§ 1807, 1808. ^° State ex rel. v. Ackerman, 51 40 ENUMERATION OF FRANCHISES § 14 whether it be obtained by a special charter or under a gen- eral incorporation law, is a franchise granted by the State to such, and such only, as she deems fit to be intrusted with its exercise." ^^ § 14. Common Carriers— Railroads — Street Railroads. — Although the business of a common carrier is not of itself a fran- chise, but is general and has its foundation in the common law, needing in itself no legislative authority,^- still a grant to a cor- poration of a right to lay out, construct and operate a railroad, is a franchise. ^^ So a grant by a municipal corporation to a railway company of a right of way through certain streets of the municipality, with the right to construct its railroads thereon and occupy them for its use, constitutes a franchise.^'* It is also said that "the right of a railroad company to be, and to build a road is a franchise;'' '^ it is a grant to the corporation of the capacity to exercise a portion of the powers of sovereignty for the purpose of making a pecuniary profit to itself.^^ So the '1 State V. Travellers' Ins. Co., 70 Co. v. Roll, 66 N. Y. Supp. 748, 749, Conn. 590, 600, 40 Atl. 465, 66 Am. 750, 32 Misc. 321; Miller v. Rutland St. Rep. 138, per Baldwin, J. (Taxa- & Washington Rd. Co., 36 Vt. 452, tion). 494, per Barrett, J., quoting from " McGregor v. Erie Ry. Co., 35 Bank of Middlebury v. Edgerton, 30 N. J. L. 89, 96, per Bedle, J. Vt. 190, per Bennett, J.; Camblos v. " People's Railroad v. Memphis Philadelphia & Reading Rd. Co., 4 Railroad, 10 Wall. (77 U. S.) 38, 51, Brewster (Pa.), 563, 596, 597, per 19 L. ed. 844, per Clifford, J. [citing Cadwalader, Dist. J.; Thorpe v. Rut- Beekman v. Saratoga & Schenectady land & Burlington Rd. Co., 27 Vt. Rd. Co., 3 Paige Ch. (N. Y.) 45; 140, 62 Am. Dec. 625; State v. Bos- Willoughby v. Horridge, 16 Eng. L. ton, Concord & Montreal Rd. Co., 25 & Eq. 437, 3 Kent's Comm. (11th Vt. 433, 442, per Redfield, Ch. J. cd.) 590]; DriscoU v. Norwich & ^* New Orleans, Spanish Fort & Worcester Rd. Co., 65 Conn. 230, Lake Rd. Co. v. Delamore, 114 U. S. 254, 32 Atl. 354, per Andrews, C. J.; 501, 5 Sup. Ct. 1009, 29 L. ed. 244. Milhau V. Sharp, 27 N. Y. 611, 619, See §§ 47, 48, herein, per Selden, J. •" Consolidated Gas Co. v. Balti- See the following cases: Kennebec more City, 101 Md. 541, 545-548, 61 & Portland Rd. Co. v. Portland & Atl. 532, per McSherry, C. J. Kennebec Rd. Co., 59 Me. 9, 66, dis- " DriscoU v. Norwich & Worcester senting opinion of Tapley, J.; New Rd. Co., 65 Conn. 230, 254, 32 Atl York, Lackawanna & Western Ry. 354, per Andrews, C. J. 41 § 14 ENUMERATION OF FRANCHISES right to build in and upon a public road or river is a franchise. In this respect the owners of wharves and railroads stand upon the same plane and have similar rights, ^'^ Again, it is said that the right to carry passengers on a railway is a fran- chise requiring a specific grant from the legislature and that the right to run a railroad "is as much a part of the franchise as the right to build it." ^* It is declared, however, that the right to build, own, manage and run a railroad, or take the tolls thereon, is not, of necessity, of a corporate character, or dependent upon corporate rights, as it may belong to and be enjoyed by natural persons.^*' The right to construct and operate a street railway is also a franchise granted by the State upon considerations of public poUcy.^*^ So in a New York case it is said that: "The right to construct and operate a street railway is a franchise which must have its source in the sovereign power, and the legislative power over the sub- ject has this limitation, that the franchise must be granted for public and not for private purposes, or at least the grant must be based upon public considerations." ^^ So a grant of a privilege by a city ordinance to a railroad company, of the use of certain streets, is a franchise.'*^ And a grant of powers, " Pennsylvania Rd. Co. v. Phila- quotation in Hatfield v. Strauss, 189 delphia Belt Line Rd. Co., 10 Pa. Co. N. Y. 208, 224, 226 (per Bartlett, J.) Ct. Rep. 625, 629. (dissenting opinion per Chase, J.), 38 McGregor v. Erie Ry. Co., 35 82 N. E. 172; case affirms 102 N, Y. N. J. L. 89, 97, per Bedle, J. Supp. 934, 117 App. Div. 671. ^* Miller v. Rutland & Washington The right to construct and operate Rd. Co., 36 Vt. 452, 494, per Bar- a street railway in a city and to take rett, J. (citing Bank of Middlebury v. tolls from persons traveling on the Edgerton, 30 Vt. 182, 190); Joy v. same is a franchise. Denver & S. Ry. Jackson & Michigan Plank Road Co. v. Denver City Ry. Co., 2 Colo. Co., 11 Mich. 155, 164, 165, per 673. See State v. Columbus Ry. Co., Christiancy, J. 24 Ohio Cir. Ct. 609, as to rights and "Thompson v. Schenectady Ry. franchiseprior to act of May 14, 1878, Co., 131 Fed. 577, 579, per Wal- 75 Ohio Laws, 359. lace, Cir. J. See §§ 47, 48, herein. ■'^ Port of Mobile v. Louisville & " Paige V. Schenectady Ry. Co. Nashville Rd. Co., 84 Ala. 115, 4 So. (Thompson v. Same), 178 N. Y. 102, 106 (the original charter here granted 115, 70 N. E. 213, per Martin, J., the right to use any street or highway case reverses 82 N. Y. Supp. 192, and the amended charter authorized 84 App. Div. 91. Substantially same grants by cities, etc., of rights, privi- 42 ENUMERATION OF FRANCHISES § 15 privileges and immunities conferred by a resolution of a municipality, to run a street railroad in the city, is the grant of a franchise which is void if made without the proper legis- lative authority .^^ But the right of a city railway company to use certain streets acquired by contract with the city and giving an exclusive right, constitutes no part of the franchise of the company and is not of itself a franchise, although it is in the nature of property and an incorporeal right.'*^ In a Wisconsin case the court, in discussing the question of the proper remedy, under a statute, for usurping or unlawfully holding or exercising, etc., "any franchise," says that a street railway franchise is of the same nature as that of a franchise to operate a system of public waterworks in the streets of a city, and while not a corporate franchise necessary to corpo- rate existence, it is still a franchise or "special privilege, within the statute, granted by sovereign authority and the State may always inquire into the title by which it is held, and render judgment of ouster if the party assuming to exer- cise it has not title thereto." "^^ § 15. Bridges — Roadways — Ferries — Canals. — The right to construct and maintain a pubhc bridge is a franchise.'*^ So leges and franchises within city may be exercised without the con- limits), sent of the city councils. Philadel- " State V. Mayor, etc., of New phia. City of, v. McManes, 175 Pa. York, 3 Duer (N. Y.), 119. 28, 34 Atl. 331. The right or privilege of construct- As to franchise to construct connect- ing and operating railroads in the ing switch from a street railway track streets is called a "franchise" for to a warehouse, under ordinance, convenience. Adee v. Nassau Elec- granting "permission to connect," trie Rd. Co., 72 N. Y. Supp. 992, see Dulaney v. United Rys. & Elec- 1000, 65 App. Div. 529, per Wood- trie Co., 104 Md. 423, 65 Atl. 45. ward, J., case aff'd (Mem.) 177 N. Y. ''^Metropolitan City Ry. Co. v. 548, 69 N. E. 1120. Chicago West. Division Ry. Co., 87 Railway in jiark. The commis- 111. 317, 322. sionersof Fairmount Park in the city *' State ex rcl. Vilter Mfg. Co. v. of Philadelphia have the power to Milwaukee, Burhngton & Lake Ge- grant to an individual or a foreign neva Rd. Co., 116 Wis. 142, 92 N. W. corporation the franchise or power to 546, per Winslow, J. construct a passenger railway in *° County Commissioners v. Chand- Fairmount Park, and such franchise ler, 96 U. S. 205, 209, 24 L. ed. 625, 43 § 15 ENUMERATION OF FRANCHISES it is said in a case in the Federal Supreme Court, that: "The corporation had conferred on it a public right of partially obstructing the river, which is a common highway, and which obstruction would have been a nuisance if done without public authority. This special privilege, conferred on the corporation by the sovereign power, of obstructing the naviga- tion, did not belong to the country generally by common right and is therefore a franchise." ''^ And the rule would apply to the right of a riparian proprietor to make a roadway, which includes a right of way, and to erect a bridge which is to be a drawbridge.^* Bridges are of the same nature as per Bradley, J.; Davis v. Mayor of New York, 14 N. Y. 506, 523, 67 Am. Dec. 186, per Denio, C. J. See Norris V. Farmers' & Teamsters' Co., 6 Cal. 590, 595, 65 Am. Dec. 535; Tuckahoe Canal Co. v. Tuckahoe Rd. Co., 11 Leigh (Va.), 42, 75, per Tucker, P. The consideration for building the bridge for the political corporation was the franchise granted to the building corporation. Police Jury v. Bridge Co., 44 La. Ann. 137, 138, 10 So. 617. As to bridge as a structure not being a franchise see Smith v. Mayor, etc., of New York, 68 N. Y. 552, 555, per Earl, J.; opinion given in § 34, herein, as to distinctions. Public bridge defined and as part of road or highway see: Alabama: State v. Street, 117 Ala. 203, 208, 23 So. 807, per Brick- ell, C. J. (defined and declared part of road or highway). Montana: Cascade Coimty v. City of Great Falls, 18 Mont. 537, 540, 46 Pac. 437 (is part of highway). Nebraska: Union Pacific Rd. Co. v. Commissioners of Colfax County, 4 Neb. 450, 456, per Maxwell, J. (de- fined as part of common highway and considered as an internal improve- ment); People, Commissioners of, v. 44 Buffalo County, 4 Neb. 150, 158, per Maxwell, J. (is part of a road). Oregon: Bank of Idaho v. Malheur County, 30 Oreg. 420, 423, 45 Pac. 781, 35 L. R. A., 141 per Moore, J. (is part of highway; a case of me- chanic's lien on pubhc property). Pennsylvania: Westfield Borough V. Tioga County, 150 Pa. 152, 153, 24 Atl. 700, per Mitchell, P. J. (de- fined as part of public highway); Commonwealth ex rel. Freeman v. Westfield Borough, 11 Pa. Co. Ct. R. 369, 372, per Mitchell, C. J. (de- fined; is part of public highway). England: Rex v. Inhabitants of Bucks County, 12 East, 192, 203, 204, per Lord Ellenborough, C. J. (de- fined; is part of public highway); Rex v. Inhabitants of Yorkshire, 2 East, 342, 349, per Lord Ellenbor- ough, C. J. That "bridge" does not include approaches under statute relating to habilities of cities and counties for construction and repairs, see Central City V. Morquis (Neb., 1905), 106 N. W. 221, under Cobbey's Ann. Stat., 1903, § 8756. ^' Covington Drawbridge Co. v. Shepherd, 21 How. (62 U. S.) 112, 123, 16 L. ed. 38, per Catron, J. *' Trustees of Southampton v. ENUMERATION OF FRANCHISES § 15 ferries; a bridge franchise differs in no essential from a ferry- franchise except in the mode or manner of transportation; both are for the same purpose, that is, to transfer men, cattle and vehicles across a stream for tolls. '^^ So a right to estab- lish and maintain a public ferry is a franchise,^" and it is said Jessup, 162 N. Y. 122, 56 N. E. 538, rev'g 42 N. Y. Supp. 4, 10 App. Div. 456 (a case as to construction and material of which roadway should be built. See this case under § 48, herein). See County Commissioners V. Chandler, 96 U. S. 205, 209, 24 L. ed. 625, per Bradley, J.; Davis v. Mayor of New York, 14 N. Y. 506, 523, 69 Am. Dec. 186, per Denio, C. J. ** Hunter v. Moore, 44 Ark. 184, 188, 51 Am. Rep. 589, per Eakin, J.; Gihnan v. Philadelphia, 3 Wall. (70 U. S.) 713, 726, 18 L. ed. 96, per Swayne, J. " It is a franchise to be empowered to build a bridge or to keep a ferry over a pubUc stream, with a right to demand tolls or ferriage." Con- soUdated Gas Co. v. Baltimore City, 101 Md. 541, 545-548, 61 Atl. 532, per McSherry, C. J. '" See the following cases: United States: County Commis- sioners v. Chandler, 96 U. S. 205, 209, 24 L. ed. 625, per Bradley, J.; Peo- ple's Railroad v. Memphis Railroad, 10 Wall. (77 U. S.) 38, 51, 19 L. ed. 844, per Clifford, J. Alabama: Tuscaloosa County v. Foster, 132 Ala. 392, 399, 31 So. 587; see Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296, 303, 304, 27 Am. Dec. 655, per Hitchcock, J. Arkansas: Bell v. Clegg, 25 Ark. 26, 28, per Compton, J. California: Norris v. Farmers' & Teamsters' Co., 6 Cal. 590, 595, 65 Am. Dec. 535. Massachusetts: Fay, Petitioner, 15 Pick. (32 Mass.) 243, 249, per Shaw, C. J.; see Attorney General v. Boston, 123 Mass. 478. Minnesota: McRoberts v. Wash- burne, 10 Minn. 23. New York: Milhau v. Sharp, 27 N. Y. 611, 619, 84 Am. Dec. 314; Davis V. Mayor of New York, 14 N. Y. 506, 523, 67 Am. Dec. 186, per Denio, C. J. North Dakota: Patterson v. WoU- man, 5 N. Dak. 608, 617, 33 L. R. A. 536, 67 N. W. 1040, per Corliss, J. Oregon: Montgomery v. Multno- mah Ry. Co., 11 Oreg. 344, 347, 348, 3 Pac. 435 (quoting from Attorney General v. Boston, 123 Mass. 478). South Dakota: Evans v. Hughes County, 3 S. Dak. 580, 581, 582, 54 N. W. 603, per Corson, J. England: Blissett v. Hart, Willes, 508. The right to establish and main- tain a public ferry is a franchise. Hudspeth v. Hall, 111 Ga. 510, 36 S. E. 770. " The right to establish and keep a public ferry is a franchise * * * ' a ferry is publici juris. It is a fran- chise which no one can erect without a license from the Crown.' * * * The franchise in England is in the Crown, and in this country in the State." Douglass's Appeal, 118 Pa. 65, 68-70, 12 Atl. 834, per Master's Report. "The right to establish and keep a public ferry is, in law, termed a fran- chise * * * and it is perfectly clear that the franchise of a public ferry cannot be set up or exercised by any of the king's subjects without 45 § 15 ENUMERATION OF FRANCHISES in a case in the United States Circuit Court that, "for all time the setting up of a highway or ferry for conveying persons and property has been deemed, in the common law a franchise, a part of the subjects in the immediate possession of the politi- cal power, and, to exercise which, demanded a release of this right by the sovereign by special grant or charter. It is not in its nature, or actual history, like those private avocations of milling, hotel keeping and traffic, which all may pursue at pleasure unless, in the exercise of police power, a restrain- ing statute interferes and requires a license." ^^ But it is declared that a ferry franchise is neither more or less than a right conferred to land at a particular point, and receive toll for the transportation of passengers and property from that point across a stream.^^ No franchise is required, how- prescription, grant or license from State, from the year 1820, the right the Crown. Thus says Chief Jus- to keep a pubhc ferry for toll had tice Willes (Willes' Rep. 512; Blissett been a franchise requiring a legisla- V. Hart, note), 'a ferry is publici tive grant. Milton v. Haden, 32 Ala. juris. It is a franchise which no 30, 70 Am. Dec. 523. one can erect without a license from Under the laws of Kentucky a ferry the Crown.' " Prosser v. Wapello franchise on the Ohio river was held County, 18 Iowa, 327, 333, per grantable to a citizen who was a Dillon, J. riparian owner on the Kentucky side. "A public ferry is a franchise, and Conway v. Taylor's Executor, 1 consists not merely in the building of Black. (66 U. S.) 603, 17 L. ed. 191. the ferry and the furnishing of the ^' Talcott v. Township of Pine boats, but in the running of them. Grove, 1 Flipp (U. S. C. C), 120, The right of the public to use them is 142, Fed. Cas. No. 13,733, per Em- common, but the running of the ferry mons, Cir. J. [case aff 'd Township is a part of the franchise." Mc- of Pine Grove v. Talcott, 19 Wall. Gregor v. Erie Ry. Co., 35 N. J. L. (86 U. S.) 666, 22 L. ed. 227]. 89, 98, per Bedle, J. " Mills v. County of St. Clair, 7 111. "The right to establish a ferry was 197. a franchise, and no man could set up " A ferry, in its ordinary sense, is a ferry, although he owned the soil but a substitute for a bridge where a and landing-places on both sides of bridge is impracticable, and its end the stream, without a charter from and use is the same. Like a toll- the king or a prescription time out of bridge, it is a franchise created for the mind." People v. Budd, 117 N. Y. 1, use and convenience of the traveling 17, 18, 26 N. Y. St. R. 533, 22 N. E. public, as a link in the highway sys- 670, 682, per Andrews, J. tem of the country, and by no means In an early case in Alabama it is includes the transportation of goods, held that under the statutes of that wares, and merchandise by them- 46 ENUMERATION OF FRANCHISES § 15 ever, to lawfully establish and maintain a private ferry as incident to ownership of lands on each side of the stream, and Belves, or, in other words, the carry- ing trade of modem commerce. Ferriage, literally speaking, is the price or fare fixed by law for the transportation of the traveling pub- lic, with such goods and chattels as they may have with them, across a river, bay, or lake." People v. San Francisco & Alameda Rd. Co., 35 Cal. 606, 619, per Sanderson, J. "A ferry franchise is a privilege to take tolls for transporting men, horses, cattle and vehicles, with or without them loading, across a lake or stream, or some other body of water." Hunter v. Moore, 44 Ark. 184, 188, 51 Am. Rep. 589, per Eakm, J. "A ferry franchise is neither more nor less than a right conferred to land at a particular point, and secure toll for the transportation of passen- gers and property from that point across a stream." Mississippi River Bridge Co. v. Lonergan, 91 111. 508, 513, per Craig, C. J., quoting Mills v. County of St. Clair, 2 Gilm. (111.) 197. A ferry "is a franchise granted by the State and regulated by statute. It may be defined to be a right to transport persons and property across a watercourse and land within the jurisdiction granting the franchise and receive tolls and pay therefor." Einstman v. Black, 14 111. App. 381, 383, 384, per Higbee, J. (also citing Bouvier's L. Diet.). "The definition of a ferry in the early books is 'a liberty by prescrip- tion, or the King's grant, to have a boat for passage upon a great stream for carriage of horses and men for reasonable toll.' Termes de la Ley (1st Am. ed.), 223; Jacobs' Law Diet., 'Ferry.' And according to all au- thorities, English and American, the grant of a ferry, in its very nature, implies the taking of tolls by the grantee." Attorney General v. Bos- ton, 123 Mass. 460, 468, per Gray, C.J. "A ferry, when considered as a franchise, consists in the right, aris- ing from grant or prescription, to have a boat or boats for carrying men and horses across a river for reason- able fare or toll (Burrill's Law Diet., 'Ferry'). Bouvier defines a ferry to be a place where persons and things are taken across a river or stream in boats or other vessels for hire. The franchise consists in the right to exact toll, and this right involves the cor- responding obligation of maintaining the ferry and carrying such persons as apply and pay their fare." Akin (Aiken) v. Western Rd. Corp., 30 Barb. (N. Y.) 305, 310, per Harris, J. See also Alexandria, Warsaw & Keokuk Ferry Co. v. Wisch, 73 Mo. 655, 657, 39 Am. Rep. 535, per Nor- ton, J. The essential element of a ferry franchise, is the exclusive right to transport persons, with the horses and vehicles and such personal goods as accompany them from one shore to the other. Broadnax v. Baker, 94 N. Car. 675, 55 Am. Rep. 633. "A ferry is not a railroad, nor a railroad a ferry. Both franchises, i. e., the right to construct a railroad and to erect a ferry, may be granted to one corporation, where the grant con- flicts with no other rights. But * * * the two things are in their nature distinct, and cannot be merged." Aiken (Akin) v. Western Rd. Corp., 20 N. Y. 370, 376, per Selden, J. 47 § 16 ENUMERATION OF FRANCHISES the owner of such a ferry may charge and collect toll for its use, but he cannot maintain the ferry for use of the public at large or seek public patronage and maintain its character as a pri- vate ferry.^^ Again, the right to improve navigation by a canal is a franchise. ^^ § 16. Right to Supply Water, Gas or Electricity.— The right to dig up the streets of a city or town and to supply water to the inhabitants is a franchise. ^^ So the right of a waterworks company to exist as a corporation and to collect water rates for the use of water supplied to a city and its inhabitants are franchises.^^ And a grant made by the com- "That the franchise of a ferry at common law, and in the State of Massachusetts extends beyond the landing places, is very clear from au- thority." Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 555, 9 L. ed. 773, per M'Lean, J., citing 10 Petersdorf, 53, 13 Vin. 513; Blissett V. Hart, Willes' Rep. 512, note; King v. Nicholson, 12 East, 330; Peter v. Kendal, 6 Barn. & Cress. 703; Year Book, Hen. 6, 22; RoUes' Ab. 140; Fitz., 428, note; Com. Dig., Market, c. 2; Piscary, B. Action on the case. A; 3 Blk. 219; Nott & M'Cord, 387; Yard v. Ford, 2 Saund. 172; 6 Mod. 229; 2 Vent. 344; 3 Levinz, 220; Com. Dig., Patent, F., 4, 5, 6, 7; 2 Saund. 72, note 4; 2 Inst. 406; Chit. Pre., 12 Chap. 3; 10 Chap. 2; 3 Salk. 198; Tripp v. Frank, 4 Term. 666; Saimd. 114; Croke, E. 710. "Hudspeth v. Hall, 111 Ga. 510, 36 S. E. 770. 5* See Tuckahoe Canal Co. v. Tuckahoe Rd. Co., 11 Leigh (Va.), 42, 75, per Tucker, P. "The right to improve and extend the navigation of the river, w^as a franchise granted; the manner of do- ing it a mode of exercising that fran- 48 chise." Canal v. Railroad Co., 4 Gill & J. (Md.) 1, 107, per Bu- chanan, Ch. J. 55 New Orleans Water Works Co. v. Rivers, 115 U. S. 674, 681, 29 L. ed. 525, 6 Sup. Ct. 273, case controlled by New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252. Principal case is cited in Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 9, 43 L. ed. 341, 19 Sup. Ct. 77; cited, Tillamook Water Co. v. Tillamook City, 139 Fed. 405, 406; cited, Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 235; aff'd in St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, 30 L. ed. 563, 7 Sup. Ct. 405. See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252; Andrews v. Na- tional Foundry & Pipe Works, Lim., 61 Fed. 782, 787-789, 10 C. C. A. 60, per Woods, Cir. J., s. c, 73 Fed. 516, 19 C. C. A. 548, 77 Fed. 774, 23 C. C. A. 454, 113 Fed. 793, 794, 183 U. S. 216, 225. Examine §§ 47, 48, herein. 56 Spring Valley Water Works v. Schottler, 62 Cal. 69 (under constitu- tion of State), ENUMERATION OF FRANCHISES § 16 mon council of a city, by authority of its charter, to con- struct, maintain and operate a system of waterworks in such city and to use the streets and alleys thereof for that purpose, is a legislative grant through the medium of an authorized legislative agency, and is a franchise. ^^ So an ordinance grant- ing to a corporation an exclusive right to supply a city with water is a franchise.^* And under a statute providing for taxation the franchise primarily in view "is any special or exclusive privilege not allowed by law to natural persons." ^^ It is also held that a private corporation is a "person" within the meaning of a statute providing a remedy for usurping or unlawfully holding or exercising, etc., "any franchise," and that a franchise to operate a system of public waterworks in a city, using the streets for that purpose, while not a corporate franeliise in the sense that it is necessary to corporate exist- ence, is still a franchise within the meaning of the enactment and may be annulled for cause by quo warranto proceedings.^" Again, the right to dig up and to place pipes and mains in the public streets and ways of a city for the distribution of gas for public and private use is also a franchise. "^^ So a legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, through pipes and mains laid in the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, 67 State V. Portage City Water Co., Portage City W. Co., 107 Wis. 441, 107 Wis. 441, 83 N. W. G97. 83 N. W. 697, cited in State ex rel. '* Cedar Rapids Water Co. v. Cedar Vilter Mfg. Co. v. Milwaukee, Burling- Rapids, 118 Iowa, 234, 91 N. W. ton & Lake Geneva Rd. Co., 116 Wis. 1081. The question whether a grant 142, 92 N. W. 546, per Winslow, J. by a municipality is a franchise or ^i Consolidated Gas Co. v. Balti- license is considered elsewhere herein, more City, 101 Md. 541, 545-548, 61 '' Board of Councilmen of City of Atl. 532, per McSherry, C. J. (citing Frankfort v. Stone, Auditor, 108 Ky. State v. Cinn. Gas Co., 18 Ohio St. 400, 400, 22 Ky. L. Rep. 25, 56 S. W. 262; Jersey City Gas Co. v. Dwight, 679, per Hobson, J. (a case of taxa- 29 N. J. Eq. 242; Purnell v. McLane, tion of franchise of water company. 98 Md. 589, 593, 56 Atl. 830, per See above case where the grant to a Pearce, J., citing New Orleans Gas water company is considered through- Co. v. Louisiana Light Co., 115 U. S. out the opinion as a franchise). 650, 659, 6 Sup. Ct. 252, 29 L. ed. '" State ex rel. Attorney General v. 516. 4 49 § 16 ENUMERATION OF FRANCHISES in consideration of the performance of a public service, and, after performance, by the grantee, is a contract protected by the constitution of the United States against state legislation to impair it.^- And a consent by town authorities, acting un- der a statute, giving a gas company power to lay conductors for conducting gas in and through the public streets and highways of a town, confers upon the company a franchise to carry on its business in the town and to lay conductors in the streets and highways for the purpose of delivering gas,^^ While the right to produce and sell electricity as a commercial product is open to all persons without legislative authority, still the right to use the streets of a city for the purpose of transmitting electricity with wires is not common to all citizens, but is a franchise which can only be granted by the State or a municipality acting under legislative authority.®^ 62 New Orleans Gas Co. v. Louisi- ana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252 (cited, Walla Walla V. Walla Walla Water Co., 172 U. S. 1, 9, 43 L. ed. 341, 19 Sup. Ct. 77; cited, Tillamook Water Co. v. Tillamook City, 139 Fed. 405, 406; cited Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 235). It is said in the principal case that: "The right to dig up the streets and other public ways of New Orleans, and place therein pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which could only be granted by the State, or by the municipal government of that city acting under legislative au- thority. Dillon's Munic. Corp. (3d ed.) § 691; State v. Cincinnati Gas Co., 18 Ohio St. 262; see also Boston V. Richardson, 13 Allen (Mass.), 146. To the same effect is the de- cision of the Supreme Court of Louisi- ana in Crescent City Gas-Light Co., 27 La. Ann. 138, 147, in which it was said: 'The right to operate gas- 50 works, and to illuminate a city, is not an ancient or usual occupation of citizens generally. No one has the right to dig up the streets, and lay down gas pipes, erect lamp-posts, and carry on the business of lighting the streets and the houses of the city of New Orleans, without special au- thority from the sovereign. It is a franchise belonging to the State, and, in the exercise of the police power, the State could carry on the business itself or select one of several agents to do so.' " New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 659, 660, 29 L. ed. 516, 6 Sup. Ct. 252. See State ex rel. Attorney General v. Seattle Gas & Electric Co., 28 Wash. 488, 68 Pac. 496; Bui. Code, § 5780, subd. 1, construed. 63 People ex rel. Woodhaven Gas Co. V. Deehan, 153 N. Y. 528, 47 N. E. 787, rev'g 11 App. Div. 175. See Ghee v. Northern Union Gas Co., 56 N. Y. Supp 450, 454, 34 App. Div. 551, per O'Brien, J ; rev'd 158 N. Y. 510, 53 N. E. 592. 64 Purnell v. McLane, 98 Md. 589, ENUMERATION OF FRANCHISES § 17 But a city ordinance does not create a franchise, which can be taxed, by giving the right to the use of the city streets to a telegraph company for its poles and wires, where it has a franchise, under the Post Roads Act, to construct its hnes along the post roads of the United States, and the state statutes also give authority to construct such lines upon any public road or highway and declare streets, alleys and roads laid out and dedicated to the public to be public highways, and a Federal statute provides that all public highways are post roads .^^ § 17. Right to Tolls, Fares, Rates or Wharfage.— The right to receive tolls for the use of roadways, turnpike roads, bridges and ferries is a franchise .^^ So a turnpike company which con- 56 Atl. 83. See Joyce on Electric Montreal Rd. Co., 25 Vt. 433, 442, Law (2d ed.), §§ 184a, 349, 430a. per Redfield, Ch. J. " The right to manufacture and " The privilege of making a road or supply gas is not a special privilege bridge, or of establishing a ferry, and which can only be exercised under of taking tolls from the citizens for authority from the sovereign. There the use of the same, are among the is nothing in the law to prevent an most common examples of a fran- individual from manufacturing and chise [3 Kent's Comm., 458; 2 Black, selling gas as a private manufacturing Comm., 37; Charles River v. The business." West Manayunk Gas Warren Bridge, 11 Pet. (36 U. S.) Light Co. V. New Gas Light Co., 21 420, 639, 9 L. ed. 773, per Story, J.]. Pa. Co. Ct. Rep. 378. Chancellor Walworth, in Beekman v. «5 Western L^nion Teleg. Co. v. The Saratoga and Schenectady Rail- City of Visalia, 149 Cal. 744, 87 Pac. road Company [3 Paige (N. Y.), 75], 1023. said: 'The privilege of making a road As to Post Roads Acts and tele- and taking tolls thereon is a fran- graph companies' rights thereunder, chise, as much as the establishment of see Joyce on Electric Law (2d ed.), a ferry or a public wharf, and taking §§ 39 et seq. tolls for the use of the same.' " Electricity — " Manufacturing " cor- Davis v. The Mayor of New York, 14 porations, see Joyce on Electric Law N. Y. 506, 523, 67 Am. Dec. 186, per (2d ed.), §§ 169, 932, 933. Denio, C. J. w Truckee & Tahoe Turnpike Road "Chancellor Kent says: 'The privi- Co. V. Campbell, 44 Cal. 89; Mc- lege of making a road or establishing Roberts v. Washbume, 10 Minn. 23. a ferry, and taking tolls for the use of See Virginia Canon Toll Road Co. v. the same, is a franchise, and the pub- People, 22 Colo. 429, 432, 45 Pac. lie have an interest in the same; and 398, 37 L. R. A. 711, per Camp- the owners of the franchises are au- bell, J.; State v. Boston, Concord & swerable in damages if they should 51 § 17 ENUMERATION OF FRANCHISES structs a road has the franchise to collect the tolls authorized by law.*^^ And it has been decided in Georgia that the right refuse to transport an individual not of common right, and in this without any reasonable excuse, upon country, does not exist in the ab- being paid or tendered the usual sence of a grant from the legis- fare.' In the same connection, he latures. This power of collecting enumerates in this class of franchises, tolls is a part of the sovereign power ferries, bridges, turnpikes, and rail- of the state, which the legislature roads. 3 Kent's Comm., 458, 459." may delegate in return for a sup- County Commissioners v. Chandler, posed public good, and the grant 96 U. S. 205, 209, 24 L. ed. 625, per of the power may be conferred Bradley, J.; People's Railroad v. with any restrictions which the Memphis Railroad, 10 Wall. (77 legislature may see fit to impose, U. S.) 38, 51, 19 L. ed. 844, per and the grantee takes subject to all Clifford, J. such limitations, and the grant of the " No private person can establish a right is the equivalent of, or com- public highway, or a public ferry pensation for, the cost of building or railroad or charge tolls for the and maintaining the road. 2 Water- use of the same without authority man on Corporations, sec. 419; from the legislature, direct or de- Angell & Ames on Corps., sec. 4; rived. These are franchises. ' ' Cen- Commonwealth v. Wilkinson, 16 tral Pacific Rd. Co. v. California, Pick. 175; Wood et al. v. Truckee 162 U. S. 91, 124, 40 L. ed. 903, Turnpike Co., 24 Cal. 474; Craig v. 16 Sup. Ct. 766, per Fuller, C. J., The People, 4J 111. 487." the Vir- quoting from California v. Central ginia Canon Toll Road Co. v. People, Pae. Rd., 127 U. S. 1, 38, 40, 32 22 Colo. 424, 431, 45 Pac. 398, 37 L. ed. 150, 8 Sup. Ct. 1073. L. R. A. 711, per Campbell, J. The right to take tolls is appar- "Toll" defined and distinguished: ently conceded to be a franchise see the following cases: in Monongahela Nav. Co. v. United United States: New York, Lake States, 148 U. S. 312, 37 L. ed. 463, Erie & Western Rd. Co. v. Pennsyl- 13 Sup. Ct. 622; Detroit v. Detroit vania, 158 U. S. 431, 435, 15 Sup. & Howell Plank Road Co., 43 Mich. Ct. 896, 39 L. ed. 1043, per Shiras, 140, 5 N. W. 275; Grand Rapids J.; St. Louis v. Western Union Bridge Co. v. Prange, 35 Mich. Teleg. Co., 148 U. S. 92, 97, 13 Sup. 400, 405, 24 Am. Rep. 585. Ct. 485, 37 L. ed. 380, per Brewer, To build a mill upon a public J. (toll and tax distinguished; a river and receive tolls for grinding, case of municipal charge for use etc., is said to be a franchise. Tuck- of streets by telegraph company); ahoe Canal Co. v. Tuckahoe Rd. Sands v. Manistee River Imp. Co., Co., 11 Leigh (Va.), 42, 75, per 123 U. S. 288, 294, 31 L. ed. 149, 8 Tucker, P. Sup. Ct. 113, per Field, J. (toll de- "The right of a corporation, or fined and distinguished from taxes); of an individual, to exact tolls is Huse v. Glover, 119 U- S. 543, 548, 87 Derry Township Road, 30 Pa. Examine Coe v. Columbus, Piqua Super. Ct. 538. & Indiana Rd. Co., 10 Ohio St. 372, 52 ENUMERATION OF FRANCHISES § 17 to receive tolls for the transportation of travelers and others across a river on a public highway is a franchise which belongs 7 Sup. Ct. 313, 30 L. ed. 487, per Assoc, v. City of St. Louis, 140 Mo. Field, J. (tolls for passage through 419, 429, 37 S. W. 525, per Mac- locks are not impost on naviga- farlane, J. (charges and rates al- tion, and tolls are like charges for lowed to be made by a city for wharves and docks); Lake Superior water are not in the nature of general & Mississippi Rd. Co. v. United taxation but in that of a toll); St. States, 93 U. S. 442, 454, 23 L. ed. Louis, City of, v. Green, 7 Mo. App. 965, per Bradley, J. (toll and 468, 476, per Bakewell. freight compared. See also Id., New York: Pennsylvania Coal 458, in dissenting opinion of jus- Co. v. Delaware & Hudson Canal tices); Reading Rd. Co. v. Pennsyl- Co., 3 Abb. Dec. (N. Y. Ct. App.) vania (case of the state freight tax), 470, 477, per Emott, J. 15 Wall. (82 U. S.) 232, 278, 21 L. North Carolina: McNeal Pipe & ed. 14, per Strong, J. (tolls and Foundry Co. v. Rowland, 111 N. C. freights defined; toll distinguished 615, 624, 16 S. E. 857, 20 L. R. A. from tax); Kentucky & Indiana 743, per MacRae, J. (toll, fare and Bridge Co. v. Louisville & Nash- water rate defined) . ville Rd. Co., 37 Fed. 567, 616, 2 L. Pennsylvania: Geiger v. Perkio- R. A. 289, per Jackson, J.; Lake Su- men & Reading Turnpike Road, 167 perior & Mississippi Rd. Co. v. Pa. 582, 585, 31 Atl. 918, 28 L. R. A. United States, 12 Ct. ^Cl. 35, 54, per 458, per Dean, J.; Commonwealth v. Bradley, J. (toll and freight com- New York, Lake Erie & Western pared). Rd. Co., 145 Pa. 200, 22 Atl. 212; Maine: Wadsworth v. Smith, 11 Pennsylvania Rd. Co. v. Sly, 68 Pa. Me. 278, 282, 26 Am. Dec. 525, per 205, 210, per Sharswood, J.; Boyle Paris, J. (toll is a common charge v. Philadelphia & Reading Rd. Co., which it is the prerogative of the 54 Pa. 310, 314, government alone to impose and England: South Yorkshire Ry. & regulate). River Dun Co. v. Great Northern Michigan: McKee v. Grand Ry. Co., 22 Eng. L. & Eq. 531, 535, Rapids & Reeds Lake St. Ry. Co., 22 L. J. Rep. (N. S.) Exch. 305, per 41 Mich. 274, 279, 1 N. W. 873. Martin, B. Missouri: St. Louis Brewing 380, 75 Am. Dec. 518, per Gholson, use the road after its completion, J. subject only to the payment of toll. " A toll road is a public highway. The acceptance by the corporation of differing from ordinary public high- the franchise to construct the road ways chiefly in this, that the cost and the operation thereof constitute of its construction in the first in- a dedication of the same as a public stance is borne by individuals, or highway.' ' The Virginia Canon Toll by a corporation, having authority Road Co. v. People, 22 Colo. 429, from the State to build it, and 431, 45 Pac. 398, 37 L. R. A. 711, further in the right of the public to per Campbell, J. 53 § 17 ENUMERATION OF FRANCHISES to the people collectively.^^ This right to tolls also includes a bridge ^-^ and a ferry 7*^ And this franchise or right to tolls or fares applies to railroads. '* A distinction is said to exist, 88 Wright V. Nagle, 101 U. S. 791, ute conferring jurisdiction upon 794, 25 L. ed. 921, per Waite, C. J., county courts to license ferries, is citing, Young v. Harrison, 6 Ga. to secure the public accommoda- 130. tion; the right to take tolls is con- *" " The authority of taking tolls ferred as an equivalent for the obli- from those who crossed the river gation to accommodate the travehng on the bridge was also a franchise, public. Although the right to take a freedom to do that which could tolls is privati juris and incident to not lawfully be done without pub- the franchise, a ferry is privati lie authority." Covington Draw- juris and cannot be created with- bridge Co. v. Shepherd, 21 How. out a license. Hackett v. Wilson, (62 U. S.) 112, 123, 16 L. ed. 38, 12 Oreg. 25, 6 Pac. 652. per Catron, J. Right to take tolls is incident When bridge company cannot de- to ferry franchise. Montgomery v. mand tolls for automobile, see Mai- Multnomah Ry. Co., 11 Oreg. 344, lory V. Saratoga Lake Bridge Co., 347, 348, 3 Pac. 435, quoting from 104 N. Y. Supp. 1025, 53 Misc. Attorney Genl. v. Boston, 123 Mass. 446. 478. "The right to set up a ferry or a " " 'The privilege of making a road, and the taking of tolls is "a road, or establishing a ferry, and franchise," or the "right of taking taking tolls for the use of the toll for a bridge, way or wharf. " same, is a franchise.' Railroads cer- Talcott V. Township of Pine Grove, tainly do not form an exception." 1 Flipp. (U. S. C. C.) 120, 142, Fed. Milhan v. Sharp, 27 N. Y. 611, 619, Cas. No. 13,735, per Emmons, Cir. J. 84 Am. Dec. 314, per Selden, J., Keeping a ferry over a public quoting 3 Kent's Comm. 458, citing stream with the right to demand Beekman v. Saratoga & Schenec- toUs and ferriage is a franchise, tady Rd. Co., 3 Paige Ch. (N. Y.) 45. Tuckahoe Canal Co. v. Tuckahoe See also Chesapeake & Ohio Ry. Rd. Co., 11 Leigh (Va.), 42, 75, per Co. v. Miller, 114 U. S. 176, 185, 29 Tucker, P. L. ed. 121, 5 Sup. Ct. 813; East The right to maintain and oper- Tennessee, Virginia & Georgia Rd. ate a ferry and to collect tolls for Co. v. County of Hamblen, 102 transporting persons and property, U. S. 273, 275, 26 L. ed. 152; Mor- is a franchise. Evans v. Hughes gan v. State of Louisiana, 93 U. S. County, 3 S. Dak. 580, 581, 54 N. 217, 23 L. ed. 860; State v. Maine W. 603. Central Rd. Co., 66 Me. 488, 512, "The privilege of establishing a per Appleton, C. J.; Baltimore, ferry and taking tolls for the use Chesapeake & Atlantic Ry. Co. v. of the same, is a franchise." Rohn Mayor, etc., of Ocean City, 89 Md. V. Harris, 130 111. 525, 530, 22 N. E. 89, 98, 42 Atl. 922; Shamokin Valley 587, per Craig, J. Rd. Co. v. Livermore, 47 Pa. 465, The primary object of our stat- 468, per Agnew, J. 54 ENUMERATION OF FRANCHISES § 17 however, between tolls for the use of a turnpike and the com- pensation charged by railroads for transportation^^ But rates chargeable for the use by others of a railroad track as a public highway are of themselves alone in a strictly proper sense called tolls, and a railroad company which is also a Privilege of making railroad and transportation. "A 'toll-thorough' taking tolls thereon is a franchise, then, as understood at the common See Beekman v. Saratoga & Schenec- law, did include compensation for tady Rd. Co., 3 Paige Ch. (N. Y.) 45. something more than the use of a The essential franchise of a rail- roadbed or a water-way, and did road company is the right to operate include, when applied to a proper their road, and receive fare and case, compensation for the means freight. Thorpe v. Rutland & Bur- of locomotion and transportation lington Rd. Co., 27 Vt. 140, 62 Am. used by the party who claimed the Dec. 625. right of toll * * * neither by "Now what was the franchise in the common law of England, by its this case, specified in the mortgage statutes, nor by customary usage as ' the Iranchise of said company?' there or in the United States, is the A recurrence to the grant (its charter) word ' toll' limited to compensation will show substantially, it was the for the use of a road, a way, a mill privilege of being a body politic and or a ferry, where the moving power possessing the powers incident to comes from the party using it; but, such bodies; the privilege of taking on the contrary, that it is and al- lands of individuals in invitum for ways has been applied to compensa- the purpose of constructing a rail- tion for such use when the thing way; and the right to construct, used, and the motive power by maintain, and manage such rail- which it was used, came from the way, and in so doing levy and party charging the toll, as well as collect tolls upon and from travelers when it came from the party pay- thereon." Kennebec & Portland ing it." Lake Superior & Missis- Rd. Co. V. Portland & Kennebec sippi Rd. Co. v. United States, 93 Rd. Co., 59 Me. 9, 66, dissenting U. S. 442, 458, 459, 23 L. ed. 965, opinion of Tapley, J. (a case of mort- per Bradley, J. gage and foreclosure of railroad '^ " The analogy is very imper- franchise, etc.) feet between the tolls exacted for The word "loll" is 'properly used the use of a turnpike, and the com- to express the charges made by rail- pensation charged by a railroad road companies for transportation company for the transportation of persons and property in the of persons and property. The right manner which is now usual and to exact the one, and the earning universal. It is also "a sum de- of the other, involve very different manded for a passage through a duties and responsibilities." Coe highway or for passage over a ferry, v. Columbus, Piqua and Indiana In the latter case it is not for the Rd. Co., 10 Ohio St. 372, 380, 75 use of the river but is for the Am. Dec. 518, per Gholson, J. 55 § 17 enump:ration of franchises transportation company has the twofold franchise of taking tolls and also engaging in the business of carriers upon its own road 7^ The corporate right to build and run a railroad, and take tolls, or fares, is a franchise of the prerogative char- acter, which no person can legally exercise without some special grant of the legislature 7^ The right, however, to build, own, manage and run a railroad, or take the tolls thereon, is not of necessity of a corporate character, or dependent upon corporate rights. It may belong to and be enjoyed by natural persons.'^ The constitution of California provides that the right to collect rates or compensation for the use of water by counties, etc., is a franchise.'^ And where a statute grants " Camblos v. Philadelphia & with some franchise which involves Reading Rd. Co., 4 Brewster (Pa.), duties as well as privileges of a gen- 563, 596, 597, per Cadwalader, eral or public nature. The right Dist. J., who states the distinction to receive fixed tolls is found in between railroad and transporta- fairs, markets, mills, turnpikes, tion companies after 1829 (case ferries, bridges and many other was decided in 1873), and also con- classes of interests where the owner eiders the distinction between tolls of the franchise is obliged to ac- and charges for locomotive power commodate the public, and the pub- and of both of these from charges of lie in turn are protected from ex- passenger money and freight money, tortion by an obligation to pay only As to meaning of "rate" (in In- regular dues. The law has in this terstate Commerce Act, Feb. 19th, State always provided some means 1903, c. 708, §1, 32 Stat. 847, U. S. of fixing rates of ferriage, and pas- Comp. Stat. Supp. 1905, p. 599) and sage over turnpikes and bridges, also what constitutes giving a re- It has also done the same on street bate, see United States v. Chi- and other tramroads. " McKee cago & A. Ry. Co., 148 Fed. 646. v. Grand Rapids & Reeds Lake Where a statute provides that St. Ry. Co., 41 Mich. 274, 279, 1 "rates of toll or fare" to be charged N. W. 873, per Campbell, C. J. by street railway companies "shall '* State v. Boston, Concord & be established by agreement be- Montreal Rd. Co., 25 Vt. 433, 442, tween such company and the cor- per Reffield, Ch. J. porate authorities of the city," etc., "Miller v. Rutland & Washing- the word "toll" so used, "is used ton Rd. Co., 36 Vt. 452, 494, per in its established meaning. * * * Barrett, J., quoting from Bank of The term applies at common law Middlebury v. Edgerton, 30 Vt. 190, to a very large class of dues and ex- per Bennett, J., who cites Peter actions which are in the nature of v. Kendall, 6 B. & C. 703; Comyn's fixed rights, and which cannot be Dig., Grant, C. lawfully exceeded. They are gener- '* Fresno Canal, etc., Co. v. Park, ally if not universally connected 129 Cal. 437, 442, 62 Pac. 87. 56 ENUMERATION OF FRANCHISES § 17 a right to collect tolls upon logs put into a river, such a right is a franchise.'^^ So the right of a turnpike company to re- quire wheelmen to pay tolls, for using its road or sidepath, is a franchise ; '* as is also the right to construct and maintain a pier or wharf and take wharfage therefor 7^ But a pier as a structure is not a franchise. It is built under the franchise " Sellers v. Union Lumbering point Town of Pelham v. The B. Y. Co., 32 N. H. 525. Woolsey, 14 Fed. 418, 423, per '* Rochester & Charlotte Turn- Brown, J. pike Road Co. v. Joel, 58 N. Y. See Sullivan v. Lear, 23 Fla. 463, Supp. 346, 41 App. Div. 43. Adams, 2 So. 846, 11 Am. St. Rep. 388. The J., said: "The plaintiff when it per- case, however, is merely one as to fected its organization under the assignment of franchise and evi- provisions of the general turnpike dence of value of franchise granted law, acquired a valuable franchise, to build and operate a wharf, con- in virtue of which it was not only ceding, apparently, that such wharf enabled to construct its road, but is a franchise in connection with its also to derive such profit and ad- use. vantage therefrom as might be gained Wharfage defined and distin- from the patronage of the traveling guished; see the following cases: pubUc. " Ouachita Packet Co. v. Aiken, 121 '» " The right to collect wharfage U. S. 444, 449, 7 Sup. Ct. 907, 30 rests upon the statute; it is a fran- L. ed. 976, per Bradley, J. (a charge chise dependent upon a grant from for rent for temporary use of wharf); the sovereign power. In Walsh v. Transportation Company v. Parkers- New York Floating Dry Dock Co., burg, 107 U. S. 691, 696-699, 27 77 N. Y. 448, 452, this court said, L. ed. 584, 2 Sup. Ct. 732, per Brad- Judge Andrews writing the opinion, ley, J. (wharfage and tonnage de- ' The right to collect wharfage is a fined and distinguished); The Idle- franchise and depends upon a grant wild, 64 Fed. 603, 605, 12 C. C. A. by the sovereign power [Wiswall v. 198, per Shipman, Cir. J., (a pecuni- Hall, 3 Paige (N. Y.), 313; Houck ary charge in the nature of rent to on Rivers, §§ 283, 284]. It is given which vessels are liable for use of as a compensation to persons who, dock or wharf); People v. Roberts, under authority of law, have con- 92 Cal. 659, 28 Pac. 689, (wharfage structed piers and wharfs, and to and dockage defined and distin- remunerate them for the outlay guished); Sacramento v. The New made for the convenience and safety World, 4 Cal. 41, 44, per Heyden- of vessels and the benefit conferred feldt, J.; Sweeney v. Otis, 37 La. thereby upon commerce and navi- Ann. 520, 521 (defined and dis- gation." Flandreau v. Elsworth, tinguished from taxes, duty of ton- 151 N. Y. 473, 477, 45 N. E. 853, nage, tolls, imposts, etc.); Kusen- per Bartlett, J. Case affirms 29 berg v. Browne, 42 Pa. 173, 179, N. Y. Supp. 694, 60 N. Y. St. R. per Read, J. 609, 9 Misc. 340. See also to same 57 § 18 ENUMERATION OF FRANCHISES which consists of the right to construct and maintain the pier and to take wharfage for its use.**^ Again, where a lock and dam of a navigation company are condemned under an act of Congress, the corporation is entitled to recover compensa- tion from the United States for the taking of the franchise to exact tolls, and the assertion by Congress of its purpose to take the property does not destroy the state franchise.*^ § 18. Banking — Insurance. — The charter of a bank is de- clared to be a franchise. ^^ So in an early case in Alabama it is said, that since the adoption of the constitution in that State, the right to exercise banking powers constitutes a franchise.*' *" Smith V. Mayor, etc., of New Thompson, chief justice of the Su- York, 68 N. Y. 552, 555, per Earl, preme Court of New York, in the J. same opinion referred to by the de- '• Monongahela Navigation Co. v. fendant's counsel to maintain an- United States, 148 U. S. 312, 37 L. other principle, deemed material to ed. 463, 13 Sup. Ct. 622. the defense. The latter principle *' Gordon v. Appeal Tax Court, alluded to is, ' that the right of bank- 3 How. (44 U. S.) 133, 150, 11 L. ed. ing was a common law right, be- 529, per Wayne, J. longing to individuals, and to be *^ State V. Stebbins, 1 Stew. (Ala.) exercised at their pleasure.' Such 299. The court said in that case is the language of the chief justice, that: "The object and necessity and is a doctrine which this court at all times and in every country has no disposition to disturb or ques- of incorporating companies has tion, but the deductions proper to been to give them perpetuity and be drawn from it, are worthy of con- legal authority to exercise specific sideration. Does it follow that powers and privileges of a nature corporations can claim all rights, promising some degree of public privileges and immunities, which utility, and to which individuals in the law has not denied to individuals? their natural capacity, are supposed Or if they can, must they not de- incompetent; or such as are of a na- rive such rights from the principles ture so far involving the general in- of the common law and general terest of society, that public policy legislation? If the first branch of forbids the unrestrained pursuit of the proposition is assumed, the con- them by individuals. The doctrine sequence would be, that corpor- has universally prevailed, that a ations, instead of being limited to corporation can only exercise such the powers granted them, can claim powers as are specially granted by irrevocably, all powers not expressly the 'act of incorporation.' or are denied them. If the latter, the necessary to carry into effect the necessary consequence must be powers expressly granted. This that the rights and powers of cor- principle is clearly maintained by porations, hke those of individuals, 58 ENUMERATION OF FRANCHISES § 18 But at common law the business of banking, in all its branches, was open and free to all and belonged to the citizens of the country generally by common right. It did not constitute one of the prerogatives of the sovereign, or pertain to sover- eignty. The only banking privilege in this country that is made a franchise is the privilege of issuing bank notes intended to circulate as money, which, since the adoption of the con- stitution of the United States, has existed in the National government, and, when not exercised by that government, could be exercised by the several States. The business of banking ''by discounting and negotiating promissory notes, bills of exchange, drafts, and other evidences of debt, by re- are general and insecure, dependent writing for him makes it himself; on such restraints and modifications but with these bodies, which have as the legislature may think proper only a legal existence, it is other- to prescribe. That corporations wise. The act of incorporation is have only legal, invisible, intangi- to them an enabling act. It gives ble existence, with powers specially them all the power they possess. It granted and circumscribed, within enables them to contract, and when limits necessary to the objects of it prescribes to them a mode of con- their creation, is one of the promi- tracting, they must observe that nent principles of elementary law. mode, or the instrument no more In the case of the Bank of the United creates a contract than if the body States against Dandridge, 12 Wheat, had never been incorporated. In 91, Chief Justice Marshall, in a dis- the case of the New York Firemen's senting opinion, but on points on Insurance Company against Sturgis, which he was not opposed, says 'a 2 Co wen's R. 664, it was ruled that corporation being one entire imper- 'a corporation, having no power by sonal entity, distinct from the indi- the act of incorporation to discount viduals who compose it, must be notes, but created for the purposes endowed with a mode of action pe- of insurance, has no right to carry culiar to itself, which will always on the business of discovmting; that distinguish its transactions from a corporation has no powers except those of its members.' This faculty such as are specially granted, and must be exercised according to its those that are necessary to carry own nature. In the case of Head into effect the powers so granted.' and Amory against the Providence The authorities referred to, show Insurance Company, 2 Cranch, 127, conclusively to my mind, that no the Supreme Court said,' an indi- corporation can legally exercise vidual has an original capacity to banking privileges, unless the power contract and bind himself in such be specially granted." State v. manner as he plea.ses. He who acts Stebbins, 1 Stew. (Ala.) 299, 306- by another, acts by himself.' He 308, per Saffold, J. who authorizes another to make a 59 § 19 ENUMERATION OF FRANCHISES ceiving deposits, by buying and selling exchange, coin and bullion, and by loaning money on personal security," was not a franchise at common law, and has not been made such by the state or National constitutions .»^ So it is said in a New York case that: "Banking is not in its nature a corporate franchise. In the absence of legislative restraints, it may be carried on by individuals and partnerships in all its depart- ments of issuing, lending, receiving deposits, discounting, deal- ing in exchange, bullion, etc.»^ The State has, however, the power to regulate and restrain the right of conducting a bank- ing business, even though it may, under the common law, be exercised at pleasure by a citizen. ^'^ It has also been held re- peatedly that the State has the right to regard the business of insurance as one dependent upon the exercise of a franchise, which the State has the right to give and to withhold. This franchise right has grown up from a small beginning from necessity, but is not a departure from the general rule charac- terizing the meaning of the term "franchise." It is simply a modern application of the principle governing such privileges, applied to new emergencies.^^ § 19. Eminent Domain. — A railroad corporation under the constitution and laws of the State of Illinois possesses not only the franchise of the right to exist as a corporation, but the right to condemn private property for corporate use is also one of its most important franchises, since the right of eminent domain is a franchise.** In a Pennsylvania case it is " State V. Scougal, 3 S. Dak. 55, Ohio St. 603, 619, where Corwin, J., 15 L. R. A. 477, 44 Am. St. Rep. speaks of a railroad or a turnpike 756 (decided 1892). being made, "In virtue of a fran- '^ Curtis V. Leavitt, 15 N. Y. 9, chise of eminent domain." The 52, per Comstock, J. same court (at pp. 615, 616) also *« State V. Richcreek, 167 Ind. 217, says: "Any citizen may construct 77 N. E. 1085. a railroad upon his own land, but no " People V. Loew, 44 N. Y. Supp. citizen can construct a railroad upon 43, 26 Civ. Proc. 132, 19 Misc. 248. the land of another without that *^ Chicago & 'Western Indiana other's consent, unless authorized Rd. Co. V. Dunbar, 95 111. 571, 576. to do so by law. The right to See also Knoup v. Piqua Bank, 1 construct a road over the lands 60 ENUMERATION OF FRANCHISES § 20 said that the ordinary franchise of a railroad company is, by virtue of the sovereign power of eminent domain, to condemn, take and use lands for the purpose of a public highway, and to take tolls from those who use it as such.^^ So it is declared in a Texas decision that the ordinary franchises of a railroad corporation are the right to exist and to transact business as a corporation, and the right to condemn property for its use.^'' It is also said that exclusive grants for ferries, bridges and turnpikes are grants of franchises of a public character ap- pertaining to the government, and that their use usually requires the exercise of the right of eminent domain.^^ § 20. Exemption or Immunity from Taxation, Jury Duty, and "Working on Public Roads.— In a case in the United States Supreme Court, decided in 1876, it was held that im- munity from taxation is not itself a franchise of a railroad corporation which passes as such without other description of private citizens, without their 1050, per Gaines, C. J. (a case of consent, is a sovereign right; it is railway franchise taxation), the right, so called, of eminent " Slaughter-House Cases, 16 Wall, domain. Whenever that right is (83 U. S.) 36, 88, 21 L. ed. 394, per delegated to a corporation or an in- Field, J., in dissenting opinion, dividual, by an act of the general See the following cases as to the assembly, the corporation or indi- right of corporations to exercise the vidual has a franchise of eminent power of eminent domain: domain. In England, also, a fran- United States: Miocene Ditch chise may become the property of Co. v. Jacobsen, 146 Fed. 680, 77 a corporation or an individual. C. C. A. 106. * * * Whenever, therefore, a California: Boca & Loyalton Rd. franchise is conferred, upon a cor- Co. v. Sierra Valleys Rd. Co., 2 Cal. poration, or an individual, nothing Ct. App. 546, 84 Pac. 298. but the public good is to be con- Idaho: Potlach Lumber Co. v. sidered; the private advantage which Peterson, 12 Ida. 769, 88 Pac. 426. may result to the corporation or Montana: State v. District Court individual, is but incidental to the of Tenth Jud. Dist. of Meagher chief object and cannot ripen into County, 34 Mont. 535, 88 Pac. 44. a right of property." New York: Pocantico Water- s' Shamokin Valley Rd. Co. v. works Co. v. Bird, 130 N. Y. 249, 41 Livermore, 47 Pa. 465, 468, 68 Am. N. Y. St. R. 315, 29 N. E. 246; East Dec. 552, per Agnew, J. Canada Creek Elect. Light & Power '"State V. Austin & Northwestern Co., In re, 99 N. Y. Supp, 109, 49 Rd. Co., 94 Tex. 530, 532, 62 S. W. Misc. 565. 61 § 20 ENUMERATION OF FRANCHISES to a purchaser of its property.^' In this case the court, per Field, J., says: "Much confusion of thought has arisen in this case and in similar cases, from attaching a vague and un- defined meaning to the term 'franchise.' It is often used as synonymous with rights, privileges and immunities, though of a personal and temporary character; so that, if any one of these exists, it is loosely termed a 'franchise,' and is supposed to pass upon a transfer of the franchise of the company. But Pennsylvania: Towanda Bridge Maryland: Baltimore, Chesa- Co., In re, 91 Pa. 216. peake & Atlantic Ry. Co. v. Ocean Washington: State ex rel. Har- City, 89 Md. 89, 42 Atl. 922, 14 Am. Ian, Centralia-Chehalis Elect. Ry. & & Eng. Rd. Cas. (N. S.) 195 (does Power Co., 42 Wash. 633, 85 Pac. not pass to purchaser without express 344. statutory direction). But see Balti- '2 Morgan v. Louisiana, 93 U. S. more, Chesapeake & Atlantic Ry. 217, 23 L. ed. 860. Co. v. Wicomico County Commrs., That exemption or immunity from 103 Md. 277, 63 Atl. 678. taxation is not such a franchise as Missouri: State ex rel. Crum- can be transferred, assigned, or will packer v. Chicago, Burhngton & pass to a purchaser, see the follow- Kansas City Ry. Co., 89 Mo. 523, ing cases: 14 S. W. 522 (not transferrable in United States: Mercantile Bank absence of express statutory au- V. Tennessee, 161 U. S. 161, 40 L. ed. thority). 656, 16 Sup. Ct. 466; Pickard V. East Tennessee: Wilson v. Gaines, 9 Tennessee, Virginia & Georgia Rd. Baxt. (68 Tenn.) 546, 552. Co., 130 U. S. 637, 32 L. ed. 1051, Virginia: Examine Seaboard & 9 Sup. Ct. 640, 6 Rd. & Corp. L. J. R. R. Co. v. Norfolk County, 83 Va. 130; Memphis & Little Rock Rd. 195, 2 S. E. 278. See also subse- Co. V. Railroad Commissioners, 112 quent sections herein upon tax- U. S. 609, 28 L. ed,- 837, 5 Sup. Ct. ation. 899; Wilson v. Gaines, 103 U. S. That such exemption is not such 417, 421, 26 L. ed. 401; East Tennes- a franchise as passes on consohda- see, Virginia & Georgia Rd. Co. v. tion see: Keokuk & Western Rd. County of Hamblen, 102 U. S. 273, Co. v. Missouri, 152 U. S. 301; Adams 277, 26 L. ed. 121, 152. Examine v. Yazoo & Mississippi Valley R. Co., Rochester Ry. Co. v. City of Roches- 77 Miss. 194, 24 So. 200, 317, 1 ter, 205 U. S. 236, 254, 255, per Miss. Dec. (No. 30), 296. Ex- Moody, J.; Savannah v. Jesup, 106 amine Tennessee v. Whitworth, 117 U. S. 563, 565-570, 27 L. ed. 276, U. S. 129, 29 L. ed. 830, 6 Sup. Ct. 1 Sup. Ct 512. 645; State v. Maine Central Rd. Kentucky: Evansville, Hender- Co., 66 Me. 488. Examine Roches- son & Nashville Rd. Co. v. Com- ter Ry. Co. v. Rochester, 205 U. S. monwealth, 9 Bush (Ky.), 438, 443. 236, 247, 27 Sup. Ct. — , 51 L. ed. Louisiana: State v. Morgan, 28 784. La. Ann. 482. 62 ENUMERATION OF FRANCHISES § 20 the term must always be considered in connection with the corporation or property to which it is alleged to appertain." The court then specifies certain franchises which belong to a railroad company and concludes with the words: "Immunity from taxation is not one of them. The former may be con- veyed as a part of the property of the company; the latter is personal and incapable of transfer without express statutory direction." The above quotation has been given and relied upon in several cases,^^ and in another Federal case which was decided in 1884, and which also gives the above quota- tion, it is declared, as affirming the 1876 case, that immunity from taxation conferred on a corporation by legislation was not a franchise, although in the 1884 case the principal point determined was that immunity from taxation did not pass by a transfer of the corporate property,^"* and it has, therefore, been frequently declared that immunity from taxation is not a franchise. But the same court decided in 1885, that an exemption from taxation granted by the government to an individual is a franchise, which can be lost by acquiescence under the imposition of taxes for a period long enough to raise a conclusive presumption of a surrender of the privilege; and that such acquiescence for a period of sixty years, or even for a much shorter period, raises such a presumption.^^ In another case the court in discussing the meaning of the word " United States: East Tennessee, Co., 30 Tex. Civ. App. 474, 481, 482, Virginia & Georgia Rd. Co. v. 72 S. W. 201, in dissenting opinion, County of Hamblen, 102 U. S. 275, Bookhout, Assoc. J. 277, 26 L. ed. 121, 152. »* Chesapeake & Ohio Rd. Co. v. Maine: State v. Maine Central Miller, 114 U. S. 176, 185, 186, 29 Rd. Co., 66 Me. 488. 512, per Apple- L. ed. 121, 5 Sup. Ct. 813. ton, C. J. »' Given v. Wright, 117 U. S. 648, Maryland: Baltimore, Chesa- 29 L. ed. 1021, 6 Sup. Ct. 907. Ex- peake & Atlantic Ry. Co. v. Mayor, emption from taxation is declared to etc., of Ocean City, 89 Md. 89, 98, be "a franchise property." State 42 Atl. 922. V. Morgan, 28 La. Ann. 482, 493, Nebraska: Western Union Tel. per Ludeling, C. J., in dissenting Co., v. City of Omaha (Neb., 1905), opinion (a case of exemption from 103 N. W. 84, 86. taxation, right of transfer and con- Texas: Denison & Sherman Ry. struction of charter). Co. V. St. Louis Southwestern Ry. 63 § 21 ENUMERATION OF FRANCHISES "franchise" considers it in its broad sense and its legal mean- ings, and continuing says: "It is true that it is now generally used in more restricted senses, and for that reason the Su- preme Court of the United States has held in a number of cases that, because of the reasons for adopting a strict con- struction of language claimed to create or transfer exemptions from taxation, and a presumption against an intent to do either, a reference to the 'franchises' of a corporation would not include its immunities, in the absence of other language or circumstances indicating that the term was used with a signifi- cation wide enough to include them." ^^ An exemption from jury duty and from working on public roads granted in the charter of a railroad company to its officers, agents and serv- ants, is not a grant of a mere personal privilege, but is a grant of a valuable right or privilege upon the company based upon considerations of public policy.^' § 21. Political Rights, " Elective Suffrage," " Elective Franchise " or Freedom — Public Office — Attorney or Coun- sellor — Right to Preside — Appointment of Professors — Liquor License — " Commodities " — Fishery — Public Market — Patent Right — Trade-mark — " News Contract." — Various other franchises exist, such as the political rights of citizens and subjects, the "elective suffrage," or the "elective fran- chise," which is not a natural but a permissive right, dependent for its exercise upon the law conferring it.^* It is also said that "' Buchanan V. Knoxville & Ohio per Perley, C. J.; People ex rel. Rd. Co., 71 Fed. 324, 334, 18 C. C. A. Koemer v. Ridgley, 21 II!. 65, 69, 122, per Severens, Dist. J. per Breese, J. *' Johnson v. State, 88 Ala. 176, 7 See also the following cases: So. 253 (followed in Zimmer v. State, United States: Corfield v. Coryell, 30 Ark. 677, which also holds that 4 Wash. (U. S. C. C.) 371, Fed. Cas. another company consolidated with No. 3,230, where Washington, Cir. it succeeds to such right, where J., in discussing the points as to the consolidation is authorized by "privileges and immunities of citi- the State). As to exemption being zens of the several States" under unconstitutional and class legislation, the constitution mentions as funda- see Neely v. State, 4 Lea (72 Tenn.), mental, "the elective franchise, as 316. regulated and established by the " Pierce v. Emery, 32 N. H. 507, laws or constitution of the State in 64 ENUMERATION OF FRANCHISES § 21 each individual of a corporation has "a franchise or freedom." ^^ A pubHc office is declared to be of the nature of a franchise in which it is to be exercised." The case, however, was one as to regu- lation of fisheries and constitutional law. Delaware: Frieszleben v. Shall- cross, 9 Houst. (Del.) 1, 59, 8 L. R. A. 337, 19 Atl. 576 (a case where the constitution required every elec- tor to pay a county tax before elec- tion; a statute requiring the pay- ment of poll taxes and dropping delinquents from assessment list; said legislation being held not to dis- franchise a voter). "It is conceded that the power to use the ballot, is one derived from the government, or the political society in which the elector resides." District of Columbia: Spencer v. Board of Registration, 1 McArthur (D. C), 169, 29 Am. Rep. 582. Holding that elective franchise uni- formly rests upon the express au- thority of the political power and revolves within the limitations of express law and includes only male citizens in the district. Indiana: Gougar v. Timberlake, 148 Ind. 38, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487 (where the nature of suffrage, considered as a political privilege and not a natural right, is discussed, as well as the question of woman suffrage and constitutional law); Morris v. Powell, 125 Ind. 281, 292, 9 L. R. A. 326, 25 N. E. 221 [where regula- tions of the elective franchise are •• Dartmouth College v. Wood- ward, 4 Wheat. (17 U. S.) 518, 657, 4 L. ed. 629. See also same case Id., 700, where Story, J. (citing Ashby v. White, 2 Ld. Raym. 938, 1 Kyd. on Corp. 16), says: "The cor- porators are not mere agents, but have vested rights in their character as corporators. The right to be a freeman of a corporation is a valu- able temporal right. It is a right of voting and acting in the corporate concerns, which the law recognizes and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of voting in public elections; it is as sacred a right; and whatever might have been the prevalence of former doubts since the time of Lord Holt, such a right has always been deemed a valuable franchise or privi- lege." In the case of Ashby v. White, 2 Ld. Raymond, 938, 6 Mod. 45, above cited, it was declared by Chief Justice Holt (p. 951) that the right of sending members to Parliament must be granted to a corporation "and when this right of election is granted ivithin time of memory it is a franchise, that can be given only to a corporation. " And it was held that a man who has the right to vote at an election for members of Parlia- ment could maintain an action against the returning officer for re- fusing to admit his vote. See 3 Ld. Raymond, 320. Franchise also means the locality subject to a franchise. Rapalje & Lawrence's L. Diet. That the word "franchise" under the English Stat. 9 Anne, c. 20 re- fers only to the franchise of being a freeman of a municipality, see Union Water Co. v. Kean, 52 N. J. Eq. Ill, 128, 27 Atl. 1015, per Pit- ney, V. C, citing High, Extr. Rem. § 602, Rex v. Williams, 1 Burr. 402. 65 § 21 ENUMERATION OF FRANCHISES that it can only be derived from the sovereign.^ And a board of inspectors being general officers of the State, the power to considered, quoting Cooley's Const. Lira. (5tL ed.) p. 758]. Maryland: Anderson v. Baker, 23 Md. 531. The regulation of the * Ex parte Henshaw, 73 Cal. 486, 492, 15 Pac. 110, per McKinstry, J. (§ 802 of the Code of Civ. Proc. provides for an action against one who unlawfully exercises any pubUc office "or any franchise")- A franchise "is said to be a privi- lege conferred by grant from the government and vested in indi- viduals as a pubhc office. " People ex rel Koerner v. Ridgeley, 21 111. 65, 69, per Breese, J. " Lexicographers generally define 'office' to mean 'pubhc employment '; and I apprehend its legal meaning to be an employment on behalf of the government, in any station or public trust, not merely transient, occa- sional or incidental. In common parlance, the term 'office' has a more general signification. Thus we say the office of executor, or guardian, or the office of a friend." Matter of Oaths by Attorneys & Counsel- lors, 20 Johns. (N. Y.) 491, 493. "An office like a franchise, is a royal gift, it is considered property in England. Some offices are estates in fee simple, or fee tail, some, estates for life, and some only estates at will. Cruise's Digest, volume 3, title 25. There are some offices, also, which are said to be estates for a term of years, or for one year. And minis- terial offices may be granted in re- version, or to commence at a future period. Some offices are even as- signable by deed. But in America, a pubhc officer is only a public agent or trustee, and has no proprietor- ship, or right of property in his office. It is true that in The State v. Mc- 66 CoUister, 11 Ohio Rep. 50, Judge Hitchcock said, that an officer, had ' a vested right ' in his office, but that dictum is opposed to many and well- considered authorities. Butler v. The State of Pennsylvania, 10 How- ard's Rep. 402; The State v. Dens, R. M. Charleton's R. (Ga.) 397; The Commonwealth v. Bacon, C. S. & Rawle, 322; The Commonwealth v. Mawe, 5 Watts & S. (Pa.) 418; The Commonwealth v. Clark, 7 Watts & S. (Pa.) 127; Barker v. The City of Pittsburg, 4 Penn. St. Rep. 51;" Ivnoup V. The Piqua Bank, 1 Ohio St. 603, 616, per Corwin, J. A statute providing that "in case any person or persons shall usurp, intrude into or imlawfully hold or exercise any office or franchise within this State, it shall and may be law- ful to and for the attorney general," etc., is substantially a copy of the English Act, 9 Anne, 20, and the word "franchise" in the latter statute " has always been construed in the English courts to refer to the fran- chise of being a freeman of a munici- pality and no more." High, Extr. Rem. § 602; Rex. v. Wilhams, 1 Burr. 402, and the remedy of quo warranto, under that act, is there confined to municipal or public or quasi public corporations. High, Extr. Rem. § 626, Short, Inf. 129. Its application to offices in private corporations had its origin in this country." Union Water Co. v. Kean, 52 N. J. Eq. Ill, 128, 27 Atl. 1015, per Pitney, V. C; the change being from "said" in the Enghsh act to "any" office or franchise. ENUMERATION' OF FRANCHISES § 21 appoint them is a franchise.- But a franchise is not conferred upon the president of a county board by a constitutional elective franchise is an unqualified right of the States; citizenship and right of sufi'rage are not inseparable, as latter is not one of the universal, inalienable rights; suffrage is not a right of property or absolute, un- qualified personal right. Missouri: Blair v. Ridgely, 41 Mo. 63, 174, 97 Am. Dec. 248. Holding that the elective franchise cannot be exercised as a natural right and is subject to such quali- fications as may be prescribed by the State or body politic. It was argued by counsel in this case that: "The very term franchise excludes the idea of natural right; for a fran- chise is a privilege granted by the sovereign authority to an individ- ual." Id., 161. New York: People v. Barber, 48 Hun (N. Y.), 198, 201, 15 N. Y. St. R. 601, 28 Wkly. D. 313. " The elective suffrage is not a natural right of the citizen. It is a fran- chise dependent upon law by which it must be conferred to permit its exercise." "It is a poHtical right to be given or withheld at the pleasure of the lawmaking power of the sov- ereignty, and is not deemed within the privileges and immunities guar- anteed to the citizen by the Consti- tution of the United States," per Bradley, J. Case reversed, 25 N. Y. St. R. 184 (case cited in Gage, Mat- ter of, 141 N. Y. 112, 116, 56 N. Y. St. R. 662, 35 N. E. 1094, to point that constitutional definition of elec- tor must be read into laws regulating election of county officers; cited also in Spitzer v. Village of Fulton, 68 N. Y. Supp. 660, 662, 33 Misc. 257, to point that right of suffrage is not a natural right, but a privilege to be granted or denied, regulated or modified. This last case is affirmed, 69 N. Y. Supp. 1146, 61 App. Div. 612, which is affirmed, 172 N. Y. 285, 64 N. E. 957); People ex rel. Frost V. Wilson, 3 Hun (10 N. Y. Supr. Ct.), 437, rev'd, 62 N. Y. 186. Right of suffrage — whence derived and power of legislature to regulate. Pennsylvania: Huber v. Reily, 53 Pa. 112, 115, 23 Leg. Int. 228. "The right of suffrage at a state election is a state right, a fran- chise conferrable only by the State, which Congress can neither give or take away. * * * Congress may doubtless deprive an individual of * * * even the right of suf- frage. But this is a different thing from taking away or impairing the right itself," per Strong, J.; Duffy, In re, 4 Brewst. (Pa.) 531. The ex- ercise of the elective franchise, though a constitutional right, is not one of unrestrained license, and is to be enjoyed in subordination to law. South Dakota: Chamberlain v. Wood, 15 S. Dak. 216, 221, 56 L. R. A. 187, 88 N. W. 109, 91 Am. St. Rep. 674. "The right of suffrage is not a natural or civil right, but a privilege conferred upon the person by the constitution and laws of the State. Judge Cooley, in his work on Constitutional Limitations, says, 'Participation in the elective fran- ' Lasher v. People, 183 III. 226, to be a franchise. Knoup v. Piqua 236, 55 N. E. 663, 47 L. R. A. 802. Bunk, 1 Ohio St. 603, 613, per Cor- The right to create an office is .said win, .1. 67 § 21 ENUMERATION OF FRANCHISES statute empowering him to appoint a civil service commis- sion.^ Nor is an office a franchise within the meaning of a constitution and a statute prescribing the appellate jurisdic- tion of courts." And a public office is not a franchise under a statute clearly distinguishing the two, and the right of appeal does not exist where the judgment relates to the former and not to the latter.^ It is declared in a New York case that an attorney or counsellor does not hold an office, but exercises a chise is a privilege, rather than a Coldw. (43 Tenn.) 569, 576. The right, and it is granted or denied elective franchise is not an inalien- upon grounds of general policy.' able right or privilege, conferred, Cooley Const. Lim. (6th ed.) 752," limited or withheld, at the pleasure per Corson, J. of the people, acting in their sov- Tennessee: State v. Staten, 6 ereign capacity. Coldw. (46 Tenn.) 233, 255. "The Utah: Anderson v. Tyree, 12 elective franchise is at once, a right Utah, 129, 149, 42 Pac. 201. "It is and a trust, conferred by the people conceded that the elective franchise of a State, acting in their supreme is permissive, and from its nature and sovereign capacity, upon such excludes all not within the classes members of the body politic as pointed out, and that it requires a they, in their sovereign discretion, legislative enactment or authority deem should hold and exercise it, to extend the privilege to classes having regard to the protection, not previously embraced." Women both of private rights and of public held not entitled to vote, interests. Once conferred upon the The "elective franchise" under a citizen, it is a franchise in which he statute as to preventing "a fair, has a right of property which the free and full exercise of the elective law protects," per Andrews, J. franchise" "is the right or privi- " The elective franchise is a right lege of a qualified elector or voter to which the law protects and enforces cast his ballot freely in favor of the as jealously as it does property in man of his choice, in an election chattels or lands. * * * Per- authorized by law to be held. " sons invested with it, cannot be de- Parks v. State ex rel. Owens, 100 prived of it, otherwise than by 'due Ala. 634, 651, 13 So. 756, per Stone, process of law.'" Id., p. 243, per C. J.; Acts Ala. 1893-94 p. 468 (Act Smith, J.; Ridley v. Sherbrook, 3 Feb. 10, 1893, §1, subdv. 5). 3 Morrison v. The People, 196 111. Supreme Court jurisdiction of ap- 454, 63 N. E. 989. peals direct from the trial court in ^ Graham v. People, 104 111. 321; quo warranto to test the right to the People v. Holz, 92 111. 426 (a case of office. McGrath v. People, 100 111. quo warranto to try title to office of 464. inspectors of schools). ' Londoner v. Barton, 15 Colo. An office of alderman is not a 246, 247, 25 Pac. 183, per Hayt, J. franchise within a statute giving the 68 ENUMERATION OF FRANCHISES § 21 privilege or franchise; that as attorneys or counsellors, they perform no duties on behalf of the government; they execute no public trust, but they enjoy the exclusive privilege of prosecuting and defending suits for clients, who may choose to employ them.^ Again, the right of a mayor of a city to preside over the meetings of a city council, is a franchise within the meaning of a statute, and quo warranto will lie to test such right even though such a case is not a contest for office 7 And it is also declared that "if appointment of pro- fessors by an incorporated college is a franchise the assertion of such right, unless justified by authority from the legislature, is the usurpation of a franchise" for which an information in the nature of a quo warranto may be filed.* Under a Kansas decision the right of licensing the sale of intoxicating liquors as a beverage, and the exaction of a tax or charge therefor, is a franchise or privilege which no city has the power to exe- cise, and, if unlawfully exercised, quo warranto is the proper remedy.^ And in Alabama the right to operate a dispensary for the sale of liquors is held to be the exercise of a franchise. ^'^ So in Kentucky such a license is held to be a franchise. ^^ But in ' Matter of Oaths by Attorneys from proper authority — in this coun- & Counsellors, 20 Johns. (N. Y.) 491, try from the legislature. The right 493. The court says also: "Various to preside therein is a legal right classes of persons are licensed in the conferred by law. This right is a city of New York, with an exclusive 'franchise' or privilege given by privilege in their employment; yet law, and therefore, if invaded, the they are not public officers. Physi- law affords a means of redress, a cians are also hcensed, pursuant to remedy, and this remedy is by quo statute; yet they hold no office or warranto, or information in that na- public trust, in legal construction." ture," citing Angell & Ames, Corp. The right to practice law is not a § 737. privilege or immunity of a citizen * People v. Trustees of Geneva of the United States within the mean- College, 5 Wend. (N. Y.) 211, 220, ing of the first section of the Four- per Savage, Ch. J. tcenth Article of Amendment of the * State v. City of Topeka, 30 Kan. Constitution of the United States. 653, 6G1, 2 Pac. 587. P.ardwell v. State, 16 Wall. (U. S.) '"City of Uniontown v. State, 130. 145 Ala. 471, 39 So. 814; State 'Cochran v. McCleary, 22 Iowa, v. Wilbum (Ala., 1905), 39 So. 75, 89, per Dillon, J., who said: "A 816. public corporation can only emanate "Miller v. Commonwealth, 112 69 § 21 ENUMERATION OF FRANCHISES an Illinois case a liquor license is not a franchise under statutory provision allowing appeals in certain cases. ^' As to "com- modities" it is said that: "It has been repeatedly held that corporate franchises enjoyed by grant from the government are commodities and subject to an excise. So with corporate franchises granted by a foreign government." " It is said in a New Jersey case that: "A free fishery or exclusive right of fishing in a public river, is a royal franchise, which is now frequently vested in private persons, either by grant from the crown or by prescription.^'' But no exclusive right of fishing, or several fisheries, in the Hudson river, can be granted to any one person, where, under the constitution, no franchise which does not promote the public welfare may be granted." An exclusive privilege to build and operate a public market Ky. 404, 65 S. W. 828. Point arose Greenleaf's Cruise on Real Prop, upon question of right of appeal. 261). '^ Martins v. Rock Island County '* Slingerland v. International Atty., 186 111. 314, 318, 57 N. E. Contracting Co., 60 N. Y. Supp. 12, 871. 17, 43 App. Div. 215, per Landon, J., " Gleason v. McKay, 134 Mass. who also says: "The plaintiffs' claim 419, 424, 425, per Morton, C. J. The is not to the land, but to what may defendant in this case was not a cor- come because of the land, — an in- poration but merely a partnership, corporeal hereditament, which Black- See Finch's Law of Eng. 126 [38]. stone classifies as a franchise. 2 Bl. Where a state constitution em- Comm. 39. It manifestly is a fran- powers the legislature to impose and chise if it is a private, exclusive levy reasonable duties and excises monopoly of a public right. Under upon "commodities," etc., an act our constitution no franchise can be of incorporation is declared to be granted except to promote the pub- a commodity or privilege. Com- lie welfare. To grant to one person monwealth v. People's Five Cent the exclusive right of fishing in any Sav. Bank, 5 Allen (87 Mass.), 428, part of the Hudson river, would be 435, per Bigelow, C. J., who says, to deprive every other person of his "Certainly it is most just and reason- privilege of fishing there." Case able that a privilege, or to use the aff'd, 169 N. Y. 60, 72, 61 N. E. 995. words of the constitution, ' a com- See this case also as to riparian own- modity,' which an act of incorpo- ers "right to ice." The court said: ration furnishes * * * should "As riparian owner he has no ex- bear a portion of the public bur- elusive right of fishery or of taking dens, in the form of an excise." ice." "As to shell fish private own- '* Arnold v. Mundy, 6 N. J. L. 1, ership in public waters may exist 87, 10 Am. Dec. 366, per Kirk- and the State may lease privi- patrick, C. J., citing 2 Cruise, 29 (73 leges." 70 ENUMERATION OF FRANCHISES § 21 and rent stalls is also a franchise. ^^ But a franchise is not involved in an action to set aside or redeem from convey- ance of a patent right so as to authorize an appeal to the Supreme Court, where the existence or validity of the patent itself is not questioned. ^^ Nor is a trade-mark a franchise.^* Although the term "news contracts" may pass under the name of "franchises" in the newspaper trade, where the term is used, they are not "franchises" in a legal sense, but are confined to the trade meaning of the term and do not pass under a sale of franchises under a statute providing a method for such sale.^^ " Maestri v. Board of Assessors, " Admitting for the sake of argu- 110 La. 517, 34 So. 658. Holding ment, that a patent is a franchise, that the exclusive privilege vested still it does not necessarily follow in a person, pursuant to a city or- that this case is properly before this dinance and contract predicated court. " thereon made by him with the city " "A trade-mark is not a franchise. of New Orleans to furnish the It is not a privilege emanating from ground, build thereon a structure the sovereign power of the State, suitable for a public market and owing its existence to a grant, or a then operate it as such for 25 years prescription presupposing a grant, by renting stalls to those engaged in but it is on the contrary, the name, the market business, and collecting symbol, figure, letter, from a device and appropriating to himself the adopted and used by a manufac- revenues derived from the renting of turer or merchant in order to desig- the stalls — the ground and market nate the goods he manufactures or house to be conveyed by formal title sells, and distinguish them from those to the city at the beginning, and to manufactured or sold by another, accrue to the city in full ownership * * * There being no franchise at the expiration of the period fixed involved the appeal must be dis- for the duration of the privilege — is missed." Hazelton Boiler Co. v. a franchise taxable under the revenue Hazelton Tripod Boiler Co., 137 111. laws of the State. ' 231, 28 N. E. 248, per Scholfield, J. " Maginn v. Bassford, 196 111. '* Lawrence v. Times Printing 266, 63 N. E. 668. The court said: Co., 22 Wash. 482, 61 Pac. 166. 71 22 NATURE OF FRANCHISE CHAPTER III. NATURE OF FRANCHISE. § 22 Franchise as Monopoly or § 28. Franchise of Members, Exclusive in Nature. Shareholders, or Corpo- 23. Same Subject Continued. rators as Property. 24. Same Subject Continued. 29. Corporate Franchises are 25. Franchise as Property. Legal Estates not Mere 26. Same Subject Continued. Naked Powers. 27. Same Subject Continued. § 22. Franchise as Monopoly or Exclusive in Nature.^ — Monopoly is not an essential feature of a franchise; and it is declared in a New York case that a corporation with banking powers would be no less a franchise if there were no law restraining private banking, which alone gives to banking corporations the character of monopolies.^ So a monopoly cannot be implied from the mere grant of a charter to a com- pany to construct a work of public improvement, and to take the profits; there must be an express provision in the charter to give such a monopoly; the legislature must restrain itself therein from granting charters for rival and competing works. Therefore, where a company was granted a charter to con- struct a navigable canal along the valley of a stream, and to take the profits in consideration of the work, and there was no provision against the exercise of power to charter other and rival companies, it was determined that the legislature was not restrained from chartering a company to construct a railroad along the same valley, even though it might afford the same public accommodation as the canal and in effect 'See § 4, herein. 619, 84 Am. Dec. 314, per Selden, 'MilTiau V. Sharp, 27 N. Y. 611, J., quoting Bouvier. 72 NATURE OF FRANCHISE § 22 might impair or annihilate its profits.^ In an Ohio case the court, per Bartley, C. J., basing its conclusions upon the language of Mr. Burke, in a speech upon a bill to repeal the charter of the East India Company, said; "The true nature of the franchise of a private corporation, is here portrayed in clear and comprehensive language. We are here told that it is an institution to establish monopoly and to create power; that to speak of such charters and their effects in terms of the greatest possible moderation, they do at least suspend the natural rights of mankind at large; and in their very frame and constitution, are liable to fall into a direct violation of them; that all special privileges of this kind, claimed or exer- cised in exclusion of the greater part of the community, being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit; and that they are not original self-derived rights, or grants for the mere and sole private benefit of the holders, but rights and privileges, which in the strictest sense are derivative trusts, and from their very nature accountable to the power which created them." ^ 'Tuckahoe Canal Co. v. Tucka- 24 L. R. A. 73, per Sanborn, Cir. J.; hoe & James River Ry. Co., 11 s. c, 166 U. S. 290, 41 L. ed. 100, 17 Leigh (Va.), 42, 36 Am. Dec. 374. Sup. Ct. 540; Camblos v. Phila- See §§ 23, 24, herein. delphia & R. R. Co., Fed. Cas. No. * Bank of Toledo v. City of Toledo 2,331, per Cadwalader, Dist. J. See (Toledo Bank v. Bond), 1 Ohio St. Slaughter House Cases, 16 Wall. 622, 635, 636. (83 U. S.) 36, 65, 21 L. ed. 394. Definitions or meaning of monopoly, Arkansas: Levy, Ex parte, 43 see the following cases: Ark. 42, 53, 51 Am. Rep. 550, per United States: Charles River Eakin, J. Bridge v. Warren Bridge, 11 Pet. Connecticut: Norwich Gas Light (36 U. S.) 420, 567, 9 L..ed. 773, per Co. v. Norwich City Gas Co., 25 M'Lean, J.; City of Laredo v. Inter- Conn. 19, 38, per Hinman, J., quoting national Bridge & Tramway Co., 66 Bouvier. Fed. 246, 248, 14 C. C. A. 1, per Mc- Florida: Barbee v. Jacksonville Cormick, Cir. J.; United States v. & A. Blank Road Co., 6 Fla. 262, 268, Trans-Missouri Freight Assn., 53 269, per DuPont, J., citing Walker's Fed. 440, 452, per Reiner, Dist. J.; Amor. Law, p. 208. 8. c, 58 Fed. 58, 92, 7 C. C. A. 15, Montana: Davenport v. Klein- 73 123 NATURE OF FRANCHISE § 23. Same Subject Continued. — It is pertinent, in this connection,^ to notice the rule that grants of franchises should, as to all rights claimed under them, be strictly construed against the grantee and most favorably to the sovereign power or State, — that is, strictly against the corporation and liberally in favor of the public.*^ Such grants of franchises should be -in plain language, and certain and definite in their nature,^ as only that passes which is granted in clear and explicit schmitt, 6 Mont. 502, 529, 13 Pac. 249, per McLeary, J. (gives an ex- clusive right or sole power). North Dakota: Patterson v. WoUmann, 5 N. Dak. 608, 615, 616, 67 N. W. 1040, 33 L. R. A. 536, per Corliss, J. Tennessee: Leeper v. State, 103 Tenn. 500, 514, 53 S. W. 962, 48 L. R. A. 167, per Wilkes, J.; Memphis, City of, V. Memphis Water Co., 5 Heisk (52 Tenn.), 495, 529, per Nicholson, C. J. Texas: Jones v. Carter (Tex. Civ. App. 1907), 101 S. W. 514, 515, 516, per Gill, C. J. ' See § 4, herein. "United States: Water, Light & Gas Co. of Hutchinson v. Hutchin- son, 207 U. S. 385, 28 Sup. Ct. 135, case affirms 144 Fed. 256; Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116, 130, citing Blair v. Chi- cago, 201 U. S. 400, 471, 50 L. ed. 801, 26 Sup. Ct. 427; Pearsall v. Great Northern Rd. Co., 161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct. 705, case reverses 73 Fed. 933; Hamilton Gas Light & C. Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. ed. 963; Oregon Ry. & Nav. Co. v. Ore- gonian Ry. Co., 130 U. S. 1, 32 L. ed. 837, 9 Sup. Ct. 409; Hannibal & St. Joseph Rd. Co. v. Missouri River Packet Co., 125 U. S. 260, 31 L. ed. 731, 8 Sup. Ct. 874; Omaha Horse Rd. Co. v. Cable Tramway Co., 30 Fed. 74 324. Rule also applied to fran- chises giving monopolies. Georgia Macon & Western Rd. v. Davis, 13 Ga. 68. Illinois: Blocki v. People, 220 111. 444, 77 N. E. 172; Mills v. County of St. Clair, 7 111. 197. Maryland: Baltimore, City of, v. Chesapeake & Potomac Teleph. Co., 92 Md. 692, 48 Atl. 465. Minnesota: State v. St. Paul, Minneapohs & Manitoba Ry. Co., 98 Minn. 380, 108 N. W. 261. Nebraska: Lincoln St. R. Co. v. City of Lincoln, 61 Neb. 109, 110, 84 N. W. 802. New Jersey: Millville Gas Light Co. V. Vineland Light & Power Co. (N. J. Eq., 1906), 65 Atl. 504. New York: Trustees of Souths ampton v. Jessup, 162 N. Y. 122, 127, 56 N. E. 538, per Vann, J.; case re- verses 10 App. Div. 456. Ohio: Bank of Toledo v. City of Toledo (Toledo Bank v. Bond), 1 Ohio St. 622, 636, per Bartley, J. Pennsylvania: Emerson v. Com- monwealth, 108 Pa. 111. Tennessee: Citizens' St. Ry. Co. V. Africa, 100 Tenn. 26, 53, 42 S. W. 485, 878. ' Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116, 130, 51 L. ed. 399, 27 Sup. Ct. — , citing Blair v. Chicago, 201 U. S. 400, 471, 26 Sup. Ct. 427, 50 L. ed. 801. NATURE OF FRANCHISE § 23 terms; whatever is not unequivocally granted is withheld, and nothing passes by implication except what is necessary to carry into effect the obvious intent of the grant.* The above rule as to strict construction is held to apply so that grants of a franchise or privilege are not ordinarily to be taken as grants of an exclusive privilege.^ So it is declared that "Exclusive rights to public franchises are not favored. If granted, they will be protected, but they will never be pre- sumed. Every statute which takes away from the legislature its power will always be construed most strongly in favor of the State. These are elementary principles." ^° It is also said that an exclusive privilege cannot legally exist where there is the slightest doubt as to its validity, and that a special franchise to be exclusive must be absolutely free from am- biguity.^^ And in a late case in the United States Supreme Court it is held that the power to grant an exclusive privilege must be expressly given, or, if inferred from other powers, must be indispensable, and not merely convenient to them.^^ So, under a New York decision, grants of franchises by the same State are to be so strictly construed as to operate as a surrender of the sovereignty no further than is expressly declared by the terms of the grant; the grantee takes nothing in that respect by inference, except so far, therefore, as, by the terms of the grant, the exercise of the franchise rights granted is made exclusive, the legislative power is reserved to grant * Knoxville Water Co. v. Knox- Ry. Co. v. Canal Commissioners, 21 ville, 200 U. S. 22, 26 Sup. Ct. 224, Pa. 9, 22, per Black, C. J. 50 L. ed. 353; Stein v. Bienville " Long Island Water Supply Co. Water Supply Co., 141 U. S. 67, 11 v. Brooklyn, 166 U. S. 685, 696, 41 Sup. Ct. 892, 35 L. ed. 622; Charles L. ed. 1165, 17 Sup. Ct. 718, per River Bridge v. Warren Bridge, 11 Brewer, J.; McLeod v. Burroughs, 9 Pet. (.36 U. S.) 420, 9 L. ed. 773; Ga. 213. City of Helena v. Helena Water- '"Wright v. Nagle, 101 U. S. 791, works Co., 122 Fed. 1, 59 C. C. A. 159; 796, 25 L. ed. 921, per Waite, C. J. People ex rel. Woodhaven Gas Co. " West Manayunk Gas Light Co. V. Deehan, 153 N. Y. 528, 47 N. E. v. New Gas Light Co., 21 Pa. Co. Ct. 787, case reverses 11 App. Div. 175; Rep. 379 (a franchise under Pa. act Syracuse Water Co. v. City of Syra- 1874). cuse, 116 N. Y. 167, 26 N. Y. St. R. 'MVater, Light & Gas Co., of 364, 22 N. E. 381; Pennsylvania Hutchinson v. Hutcliinson, 207 U. 75 § 23 NATURE OF FRANCHISE and permit the exercise of competing and rival powers and privileges, however injurious they may be to those previously granted. ^^ And if a State grants no exclusive privileges to one company which it has incorporated, it impairs no contract by incorporating a second one which itself largely manages and profits by to the injury of the first. ^"^ Again, in the con- struction of charters and statutes granting exclusive privileges to street-railway, gas or water companies, authority therefor must be given explicitly by the legislature in clearly expressed terms — the right will not be implied from the use of general language; and, as a rule, municipalities have no power to grant such exclusive rights to said companies except upon legislative authorization subject to the same rules of con- struction as above stated. ^^ Where a statute grants exclusive rights to supply light or heat, a corporation which comes within the terms of the statute may exercise such exclusive privilege. But where the statute provides for the incorpora- tion of companies "for the supply of water to the public, or for the manufacture of gas, or the supply of light or heat to the public, by any other means," it does not include electric lighting, where such grant is relied on for the purpose of claim- ing an exclusive privilege, especially so where the act in ques- tion gives no power to enter upon the public streets for the erection of poles and placing of wires, the privilege of so enter- ing being confined to the laying of pipes only and the process of lighting by electricity being unknown when the statute was S. 385, 28 Sup. Ct. 135, case affirms N. Y. 154, 55 N. E. 562, aff'g 54 144 Fed. 256. See § 4, herein. N. Y. Supp. 1115, 33 App. Div. 642. *' Syracuse Water Co. v. City of '^ Detroit Citizens' St. R. Co. v. Syracuse, 116 N. Y. 167, 26 N. Y. Detroit, 110 Mich. 384, 68 N. W. St. R. 364, 22 N. E. 381. 304, 35 L. R. A. 859, 28 Chic. L. >* Turnpike Co. v. State, 3 Wall. News, 409, 3 Detroit L. News, 377, (70 U. S.) 210, 18 L. ed. 180. See 5 Am. & Eng. R. Cas. (N. S.) 15, aff'd also Rockland Water Co. v. Camden 171 U. S. 48, 18 Sup. Ct. 732. See & Rockland Water Co., 80 Me. 544, Morawetz on Priv. Corp. (ed. 1882) 1 L. R. A. 388, 15 Atl. 785. Ex- §431; Cooley on Const. Lim. (ed. amine Skaneateles Water Works Co. 1890) pp. 231 et. seq; 4 Thomp. on V. Skaneateles, 184 U. S. 354, 46 L. Corp. (ed. 1895) §§ 5348, 5398- ed. 585, 22 Sup. Ct. 400, aff'g 161 5403. 76 NATURE OF FRANCHISE § 24 enacted.^® The rule was also relied upon in t^is ease, that a legislative grant to a corporation of exclusive privileges is to be construed most strictly, that every intendment not ob- viously in favor of the grant must be construed against it, and that monopolies are not to be favored." § 24. Same Subject Continued.— The term " franchise " ^» is, however, sometimes used to mean an exclusive right, ^^ and " Scranton Elect. Light & Heat Co. V. Scranton Illuminating, Heat & Power Co., 122 Pa. 154, 9 Am. St. Rep. 79, 15 Atl. 446, 3 Am. Elec. Cas. 499; Act of Pa. 1874, § 34, el. 3, contra, except as to ex- clusive privilege; Wilkesbarre Elec. L. Co. V. Wilkesbarre L. H. & M. Co. (C. P. Penn. 1886), 4 Kulp, 47. " Citing Emerson v. Common- wealth, 108 Pa. 111. The court in the principal case (122 Pa. 154, cited in last preceding note), per Gordon, C. J., said: "Monopolies are favorites neither with courts nor people. They operate in restraint of competition, and are hence, as a rule, detrimental to the public wel- fare; nor are they at all allowable except where the resultant ad- vantage is in favor of the public, as, for instance, where a water or gas company could not exist except as a monopoly." " See § 4, herein. *' Chicago & Western Indiana Rd. Co. V. Dunbar, 95 111. 571, 576, per Dickey, J. See § 4, herein. "The word 'exclusive' is derived from ' ex, ' out, and ' daudere, ' to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoy- ing a similar privilege or franchise. The most familiar instances of grants of exclusive privileges or franchises are to be found in acts authorizing the establishment of ferries, toll bridges, turnpikes, telegraph com- panies and the like. * * * "Yhe delegation to a corporation of the power to acquire title to land for pub- Uc purposes is not a grant of an ' ex- clusive' privilege, for the same delegated power may be conferred upon any corporation to whom the legislature may see fit to intrust it." Union Ferry Co., Matter of Appli- cation of, 98 N. Y. 139, 151, per Rapallo, J.; Davenport v. Klein- schmidt, 6 Mont. 502, 531, 13 Pac. 249, per McLeary, J., gives same definition. The grant of every franchise or privilege is " an exclusive one, in the sense that all others are excluded from the enjoyment of that par- ticular franchise or privilege. The true test is not, are all others ex- cluded from the enjoyment of that particular grant? But are all others excluded from the enjoyment of a like grant? The fact that no others enjoy a like immunity does not ren- der the immunity exclusive. It is not whether others enjoy a similar privilege, immunity or franchise, but are others prohibited from a similar enjoyment by reason of the enactment." Wood v. Common Council of City of Binghamton, 56 N. Y. Supp. 105, 111, 26 Misc. 208, per Mattice, J. Meaning of exclusive franchise, 77 § 24 NATURE OF FRANCHISE it is expressly declared that every grant of a franchise is, so far as that grant extends, necessarily exclusive, and cannot be resumed or interfered with; that it is a contract whose obligation cannot be constitutionally impaired ; ^'^ and that certain franchises are founded upon a valuable consideration and are necessarily exclusive in their nature and cannot be resumed at pleasure or the grant impaired by any act of the government without a breach of contract.^^ So in a California case it is said that franchises are necessarily exclusive in char- acter, otherwise their value would be liable to be destroyed or seriously impaired; and that even though the grant does not declare the privilege to be exclusive, yet that is necessarily implied from its nature. ^^ It is also declared that a franchise is jus publicum and necessarily exclusive in its nature.^^ So a grant of a ferry franchise by the legislature, unless limited by some general law, or some restrictive provision in the grant itself, is said to be necessarily exclusive to the extent privilege or immunity, see the follow- v. Multnomah Ry. Co., 11 Oreg. ing cases: 344, 3 Pac. 435 (ferry franchise gives Montana: Davenport v. Klein- exclusive privilege of transporta- schmidt, 6 Mont. 502, 529-531, 13 tion between certain points or ferry Pac. 249 (holding that a right to landings). furnish all the water to a municipal Pennsylvania: Lehigh Water corporation for twenty years, which Co.'s Appeal, 102 Pa. 515, 527. right cannot be abridged, is an ex- ^^ Charles River Bridge v. Warren elusive privilege). ' Bridge, 11 Pet. (36 U. S.) 420, 604, New Jersey: State v. Post, 55 618, 637, 638, 643, 645, 9 L. ed. N. J. L. 264, 26 Atl. 683. 773, per Story, J., in dissenting New York: Trustees of Exempt opinion. Firemen's Benev. Fund v. Roome, ^^ Dyer v. Tuskaloosa Bridge Co., 93 N. Y. 313, 328, 45 Am. Rep. 217 2 Port. (Ala.) 296, 303, 304, 27 Am. (a grant of a right to receive a cer- Dec. 655, per Hitchcock, J. tain proportion of public funds is '^California State Teleg. Co. v. not an exclusive privilege, fran- Alta Teleg. Co., 22 Cal. 398, 422, chise or immunity, under a constitu- per Crocker, J. tional provision prohibiting such '^ Twelfth St. Market Co. v. Phila- grants by private or local bill). delphia & Reading Term. R. Co., Oregon: Hackett v. Wilson, 12 142 Pa. 580, 590, 21 Atl. 989, per Oreg. 25, 31, 32, 6 Pac. 652 (ex- Thayer, P. J. (a case of a public elusive privilege confined to ferry market house and right of eminent landings and such privilege can be domain). See also 3 Kent's Comm. implied beyond that); Montgomery (14th ed.) bottom p. 723, *p. 458. 78 NATURE OF FRANCHISE § 25 of the privilege conferred. ^^ But it is also asserted that a grant of a public ferry franchise carries with it no exclusive privilege, and that such franchise is subject to the power of the proper authorities, under state laws, to establish such other public ferries over the same waters as public convenience demands, and that any injury thereby sustained by the first grantee is damnum absque >injuriaP Legislative grants of franchises, however, whether granted by special charters or under general laws, confer privileges which are exclusive in their nature as against all persons upon whom similar rights have not been conferred, so that any attempted exercise of such rights, without legislative sanction, is not only an un- warranted usurpation of power, but operates as a direct in- vasion of the private property rights of those upon whom the franchises have been so conf erred, ^^ § 25. Franchises as Property. — A franchise has been de- clared to be a mere legal right or privilege ; " only an in- tangible right or privilege not subject to assessment; ^* not property of any description except in the sense that it is valuable ; ^'^ not property within the meaning of that term as '* Mills V. County of St. Clair, 7 an exclusive right of conveyance, 111. 197. See also Patterson v. and can only be set up by license Wollmann, 5 N. Dak. 608, 67 N. W. from the crown. While it may be a 1040, 33 L. R. A. 536. Examine right to convey one way only, there Mills v. County of St. Clair, 7 111. must, at least, be a right to land on (2 Gilm.) 225; Phillips v. Blooming- the opposite shore, or the franchise ton, 1 G. Greene (Iowa), 498, 502; cannot beneficially exist." State v. Broadnax v. Baker, 94 N. C. 675, 55 Freeholders of Hudson, 23 N. J. L. Am. Rep. 633. 206, 209, per Carpenter, J. "There can be no question as to "Hudspeth v. Hall, 111 Ga. 510, the meaning of the word ferry, when 36 S. E. 770. used in the common-law sense of a '° Millville Gaslight Co v. Vine- franchise or right of ferry. The land Light & Power Co., (N. J. Eq. definition, given in Termes de la Ley 1906), 65 Atl. 504. is 'a liberty, by prescription or the '' Pennsylvania Rd. Co. v. Bowers, king's grant, to have a boat for pas- 124 Pa. 183, 191, 2 L. R. A. 621, 23 sage upon a great stream for car- Wkly. N. of Cas. 257, 16 Atl. 836. riage of horses and men for reason- ^' South Park Commissioners v. able toll.' The term, according to Chicago, 107 111. 105, 108. the common law of England, implies " State v. Ferris, 53 Ohio St. 314, 79 § 26 NATURE OF FRANCHISE used in the Bill of Rights, even though in one sense property and valuable property; ^^ not real estate; ^^ and that a ferry is not land nor an incorporeal hereditament.^^ It has also been declared by an eminent writer, whose statements, gen- erally, have been accepted as having almost the force of a judicial opinion, that franchises have with some impropriety been classed among hereditaments.^^ Again, in a New Jersey case the court says that: "Although, technically speaking, franchises are property, they are property of a peculiar char- acter, arising only from legislative grant, and are not in ordi- nary cases, subject to execution or to sale and transfer, even in payment of the debts of the corporation without the assent or authority of the legislature.^^ And it is also held that an action at law cannot be maintained to recover possession of a franchise of a corporation because it is intangible and is in- capable of physical identification or delivery.^^ § 26. Same Subject Continued.— Notwithstanding any as- sertion to the contrary, franchises are property, and are almost universally classed as real property or incorporeal hereditaments.^^ But, upon the point that the legislature 329, 41 N. E. 579, 30 L. R. A. editaments, since they have no inher- 218. itable quality, inasmuch as a corpo- '° City of Baltimore v. Johnson, 96 ration, in cases where there is no Md. 737, 747, 61 L. R. A. 568, 54 Atl. express limitation to its continuance 646, per Boyd, J.; State v. Philadel- by the charter, is supposed never to phia, Wilmington & Bait. Rd. Co., die, but to be clothed with a kind of 45Md. 361,379, 24 Am. Rep. 511, per legal immortality." 3 Kent's Comm. Robinson, J. (a case of taxation). (14th ed.) bottom p. 727, *459; '* Fidelity Title & Trust Co. v. quoted in dissenting opinion of Tap- Schenley Park & Highlands Rd. Co., ley, J., in Kennebec & Portland Rd. 189 Pa. 363, 370, 42 Atl. 140, 69 Am. Co. v. Portland & Kennebec Rd. St. Rep. 815. Co., 59 Me. 966 (a case of mortgage ^' Morse v. Gamer, 1 Strobh. (S. and foreclosure of franchise, etc., of C.) 514, 520, held not an incorporeal railroad). hereditament "in this State." See '* Randolph v. Lamed, 27 N. J. notes imder next following section Eq. 557, 561, per Green, J. herein. '* Budd v. Multnomah St. Rd. Co., *^ "These incorporated franchises 15 Oreg. 404, 15 Pac. 654. seem, indeed with some impropriety, '" United States: Louisville & to be classed by writers among her- Jeffersonville Ferry Co. v. Kentucky, 80 NATURE OF FRANCHISE § 26 had no power to authorize the construction of one railroad across another, the Supreme Court of the United States has 188 U. S. 385, 394, 23 Sup. Ct. 463, 47 L. ed. 513 (ferry franchise is incorporeal hereditament — taxation case); Central Pac. Rd. Co. v. Cal- ifornia, 162 U. S. 91, 127, 16 Sup. Ct. 766, 40 L. ed. 903, per FuUer, C. J. (is property, etc., a case of taxation of franchise); Wilmington v. Reid, 13 Wall. (80 U. S. ) 264, 268, 20 L. ed. 568, per Davis, J. (case of exemp- tion from taxation); Veazie Bank v. Fenno, 8 W^all. (75 U. S.) 533, 547, 19 L. ed. 482 (" Franchises are prop- erty often very valuable and produc- tive"), Conway v. Taylor, 1 Black (66 U. S.), 603, 17 L. ed. 191 (ferry franchise is property, and as sacred as other property); West River Bridge Co. v. Dix, 6 How. (47 U. S.) 12 L. ed. 535 (property held by an incor- porated company stands upon the same footing with that held by an in- dividual, and a franchise cannot be distinguished from other property); Bowman v. Wathen, 2 McLean (U. S. C. C), 376, Fed. Cas. No. 1.740 (is an incorporeal hereditament). Alabama: Medical & Surgical Soc. of Montgomery v. Weatherly, 75 Ala. 248, 253 (corporate franchise is prop- erty, incorporeal it is true, but never- theless valuable in the eye of the law); Horst V. Moses, 48 Ala. 129, 146 (an incorporeal hereditament); Stewart V. Hargrove, 23 Ala. 429, 436 (fran- chise of a toll bridge is properly with- in the bankrupt law and passes to the assignee in bankruptcy). California: City of South Passa- dena v. Passadena Land & Water Co., (Cal., 1908), 93 Pac. 490 (is a species of real property); Stockton Gas & Electric Co. v. San Joachin County, 148 Cal. 313, 83 Pac. 54 (is incorporeal 6 hereditament; real estate in nature of an easement); Oakland R. Co. v. Oak- land, Brooklyn & Fruit Vale Rd. Co., 45 Cal. 365, 373, 13 Am. Rep. 181 (has legal character of estate in property); People v. Duncan, 41 Cal. 507, 511 (franchise to construct turn- pike road and collect tolls is personal trust reposed in grantee and is not assignable except with consent of granting party); California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422 (is in nature of vested right of property subject to conditions); San Joaquin & Kings River Canal Irr. Co. v. Merced County, 2 Cal. App. 593, 84 Pac. 285 (is property subject to taxation). Delaware : Wilmington & Reading R. Co. V. Downward (Del., 1888), 4 Atl. 720, 723 (is property and can- not be wantonly or of whim be taken away by legislative act and trans- ferred to another). Florida: Gibbs v. Drew, 16 Fla. 147, 26 Am. Rep. 700 (are incor- poreal hereditaments of intangible nature not embraced within terms, lands and tenements in act regulating unlawful detainer). Georgia: Averett v. Brady, 20 Ga. 523, 529 (ferry right is incorporeal hereditament. It grows out of the soil and may be granted). Idaho: Evans v. Kroutinger, 9 Ida. 153, 72 Pac. 882 (is an incor- poreal hereditament which may be voluntarily transferred — question of right to transfer discussed, however). Illinois: Dundy v. Chambers, 23 111. 369 (ferry franchise is real estate, transferrable only in accordance with statutory provisions). Iowa: Lippincott v. Allander, 27 81 § 26 NATURE OF FRANCHISE declared that: "The grant of a franchise is of no higher order, and confers no more sacred title than a grant of land to an Iowa, 460, 1 Am. Rep. 299 (ferry species of property and transferrable franchise is included in the general subject to conditions lawfully im- denomination of incorporeal heredita- posed), ments, a term used to distinguish one Minnesota: McRoberts v. Wash- of the different kinds of things real), burne, 10 Minn. 23 (ferry is prop- Kentucky: Dufour V. Stacey, 90 erty entitled to protection same as Ky. 288, 296, 29 Am. St. Rep. 374, other property). 14 S. W. 48 (ferry franchise is prop- Missouri: Carroll v. Campbell, 108 erty ahenable and descendable and a Mo. 550, 17 S. W. 884 (ferry fran- property right of which the legisla- chise is property right); Capital City ture has no power to divest the Ferry Co. v. Cole, etc., Transp. Co., owner); Frankfort, Lexington & 51 Mo. App. 228, 234 (ferry franchise Versailles Turnpike Co. v. Common- is property, just as real estate or wealth, 82 Ky. 386, 388, 6 Ky. L. ordinary chattels are property and Rep. 391, 392 (the term "property" is entitled to protection). in its broad sense includes even a Nebraska: State v. Savage, 65 franchise). Neb. 714, 91 N. W. 716 ("property" Louisiana: Maestri V. Board of As- includes all property tangible or in- sessors, 110 La. 157, 528, 529, 34 So. tangible). 658 (is taxable property); State v. New Jersey: State Board of As- Morgan, 28 La. Ann. 482, 493 sessors v. Central R. Co., 48 N. J. L. (franchises are incorporeal heredita- 146, 283, 4 Atl. 578 (franchises are ments known as a species of property, imdoubtedly propeiiy ana as such as well as any estate in lands, per are taxable). Ludeling, C. J., in dissenting opinion. New York: Hatfield v. Strauss, a case of exemption from taxation 189 N. Y. 208, 219, 82 N. E. 172, and construction of charter and right per O 'Brien (a franchise is property to transfer). assignable, taxable and transmis- Maryland: Jacob Tome Inr^t. of sible); case affirms 102 N. Y. Supp. Port Deposit v. Crothers, 87 Md. 569, 934, 117 App. Div. 671; Mayor, etc., 585, 40 Atl. 261 (a vested right pecul- of New York v. Starin, 106 N. Y. 1, iar in its nature — a quasi property); 8 N. Y. St. Rep. 655, 27 Wkly Dig. Baltimore & Fredericktown Turn- 124, 12 N. E. 631 (a ferry franchise pike Road v. Baltimore, Catonsville is property, an incorporeal heredita- & Ellicotts Mills Pass. Rd. Co., 81 ment, as sacred as other property); Md. 247, 255, 31 Atl. 854 (fran- People v. Utica Ins. Co., 15 Johns, chise or corporate right to acquire (N. Y.) 357, 386, 8 Am. Dec. 243, per land by right of eminent domain is Spencer, J. (is a species of incorporeal an incorporeal hereditament, not a hereditament). See People v. Rob- legal title to the land itself). erts, 158 N. Y. 162, 167, 158, 52 N. Michigan: Billings v. Breinig, 45 E. 1102. IMich. 65, 70, 7 N. W. 722 (fran- North Carolina: Worth v. Wil- chise of keeping rope ferry is property mington & Weldon Rd. Co., 89 N. C. possessing valuable incidents of other 291, 301, 306, 45 Am. Rep. 679 82 NATURE OF FRANCHISE § 26 individual; and, when the pubhc necessities require it, the one as well as the other, may be taken for public purposes (is property — exemption from taxa- tion). Ohio: Turnpike Co. v. Parks, 50 Ohio St. 568, 576, 35 N. E. 304 (is property and nothing more — incor- poreal — cannot be distinguished from other property). Pennsylvania: Shamokin Valley Rd. Co. V. Livermore, 47 Pa. 465, 468, per Agnew, J. (land, in itself, is not a franchise; it is an absolute tenement; a corporeal thing. Fran- chise is an incorporeal hereditament). West Virginia: Mason v. Har- per's Ferry Bridge Co., 17 W. Va. 396, 410, 417 (a ferry is an incor- poreal hereditament — it is private property within a constitutional provision that private property shall not be taken or damaged for public use without just compensation). Wisconsin: Sellers v. Union Lum- bering Co., 39 Wis. 525, 527 (is prop- erty — an incorporeal hereditament). Franchise is a seventh species of incorporeal hereditaments. 2 Black- stone's Comm. (Lewis's ed.) p. 506, *37; (Hammond's ed.) 67 [37]; (Wen- dell's ed.) 37 [38]; (Sharswood's ed.) 37; (Chase's ed.) 234 *37; Taylor's Law Gloss, (ed. 1858) p. 210. " Besides the above hereditaments there are others * * * called Franchises. * * * Such are every Liberty or Commodity which having their Creation at first by Special Grant of the King, or of their nature appertaining to him, are given to a common Person to have in them some Estate of Inheritance or for life," etc. Finch's Laws of Eng. 125 [38J. See §§ 33-36, herein. Property in its broadest and most comprehensive sense, includes all rights and interests in real and per- sonal property and also in easements, franchises and incorporeal heredita- ments. Metropolitan City Ry. Co. v. Chicago West Division Ry. Co., 87 111. 317, 324. "It is clear upon authority that the franchise of a corporation is property, and as such, it may be a proper subject of taxation." Porter v. Rockford, Rock Island & St. Louis Rd. Co., 76 111. 561, 573, per Schol- field, J. A franchise "is property which may be transferred by sale or other- wise, and it will descend to heirs like other property; and the owner has the same security for its protection under the constitution, as has the owner of any other property. * * * As this is a species of property derived by grant from the government, it follows, that if the government has no power to make the grant, either be- cause it is contrary to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee." Norwich Gas Light Co. v. The Nor- wich City Gas Co., 25 Conn. 19, 36, per Hinman, J. "A franchise is an incorporeal hereditament known as a species of property, as well as any estate in lands. It is property which may be bought and sold, which will descend to heirs, and may be devised. Its value is greater or less according to the privilege granted to the pro] rie- tors. Enfield Toll Bridge Co. v. Hartford & New Haven Rd. Co., 17 Conn. 40, 59, per Williams, Ch. J. Street railroads. " A franchise, both at common law and by New 83 26 NATURE OF FRANCHISE on making suitable compensation; nor does such an exercise of the right of eminent domain interfere with the inviolabihty York statute, is real estate, being classified as an incorporeal heredita- ment, " and thus applies to street railroads. Thompson v. Schenectady Ry. Co., 124 Fed. 274, 278, per Ray, Dist. J. [citing 2 Wash. R. P. C. I., p. 291, § 2, note I, et seq.; 3 Kent's Comm. (12th ed.), p. 458; Laws N. Y. 1899, p. 1589, c. 712]. See also same case, 131 Fed. 577, 579, per Wal- lace, Cir. J. Exclusive right vested in street rail- road to operate line in city is prop- erty right entitling company to raise question of forfeiture by injunction suit. Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co. (Del. Ch.), 46 Atl. 12. Gas light company. A franchise to carry on its business in a town and to lay conductors in the streets and highways for the purpose of deliv- ering gas is property of which the gas light company cannot be divested except for cause and by due legal process. People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 47 N. E. 787, rev'g. 11 App. Div. 175. In a strict sense a ferry franchise is not real estate, but it is held that it partakes so far of the nature of real estate that it may be partitioned in the same manner as real property, and a franchise to cross a river and receive tolls is so connected with the land on each side of the river as a part of the ferry that it may be regarded as a part of the land for the purpose of being partitioned. Bohn v. Harris, 130 111. 525, 22 N. E. 587. A license to establish a ferry is the grant of an incorporeal hereditament subject to be revoked if a sufficient bond is not executed within ten days 84 after such requisition is made. It is an interest which may be sold, and will descend to the heir as an incident of the fee. "At common law, a ferry was an incorporeal heredita- ment, and was consequently capable of alienation, and would pass to the heir by descent. In this State, the whole matter has been regulated by statute; so that we must therefore look thereto to ascertain what rights appertain to the grantee of a ferry." Lewis V. Intendant and Town Council of Gainesville, 7 Ala. 85, 87, per Or- mond, J. "There can be no doubt, at this day, that the right to enjoy a ferry franchise is property, the full use of which the court will protect by appro- priate remedies, one of which is in- junction, where a direct pecuniary loss ensues to plaintiff by the un- authorized and continuous operation of a rival ferry. Cauble v. Craig, 94 Mo. App. 675, 69 S. W. 49. In the Charles River Bridge case the court, per Story, J., in dissenting opinion, said: "This franchise is property; is fixed, determinate prop- erty. * * * That franchise, so far as it reaches, is private property; and so far as it is injured, it is the taking away of private property." Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 604, 618, 637, 638, 643, 645, 9 L. ed. 773. " A franchise for banking is in every State in the Union recognized as property." Gordon v. Appeal Tax Court, 3 How. (44 U. S.) 133, 150, 11 L. ed. 529, per Wayne, J. (a case of right to tax). See also Home Insur- ance Co. v. New York, 134 U. S. 594, 601, 33 L. ed. 1025, 10 Sup. Ct. NATURE OF FRANCHISE §§ 27, 28 of contracts." ^^ So an estate in a franchise vests upon the same principle as estates in land, being equally a grant of a right or privilege for a valuable consideration,^* § 27. Same Subject Continued.— In some States the fran- chises and privileges of a corporation are declared to be per- sonal property, and it is said in a Federal case that: "Accord- ing to the law of mo^t States this franchise or privilege of being a corporation is deemed personal property, and is sub- ject to separate taxation." ^^ § 28. Franchise of Members, Shareholders or Corporators as Property. — Each individual member is said to be the owner of a franchise, and his privilege of membership is, there- fore, subject to protection as valuable."*^ And the corporators have a property in the franchise of a private civil corporation of which they cannot be deprived without due process of law.^^ 593, per Field, J., citing Monroe Sav. York, 143 U. S. 305, 312, 36 L. ed. Bk. V. City of Rochester, 37 N. Y. 164, 12 Sup. Ct. 403, per Field, J. 365, 369, 370. (a case of taxation of corporate ^'Richmond, Fredericksburg & franchises). See also Home Insurance Potomac Rd. Co., 13 How. (54 U. S.) Co. v. New York, 134 U. S. 594, 601, 71, 83, 14 L. ed. 55, per Grier, J. 33 L. ed. 1025, 10 Sup. Ct. 593, per A franchise of a corporation is Field, J.; Bank of CaUfornia v. San property and may be condemned for Francisco, 142 Cal. 270, 280, 75 Pac. public use by virtue of the power of 832; Monroe Sav. Bk. v. City of Roch- eminent domain, due compensation ester, 37 N. Y. 365, 367, per FuUerton being made therefor. Porter v. Rock- J.; State v. Anderson, 90 Wis. 550, ford. Rock Island & St. Louis Rd. 561, 63 N. W. 746. Co., 76 111. 561, 575. ^"Medical & Surgical Soc. of '* State V. Real Estate Bank, 5 Montgomery v. Wcatherly, 75 Ala. Pike (5 Ark.), 595, 41 Am. Dec. 509. 248, 253. " All the elementary writers treat *^ State ex rcl. Waring v. Georgia bf franchises as real property, though Medical Soc, 38 Ga. 608, 626, 95 Am. incorporeal in their nature. Chan- Dec. 408. The court, per Brown, cellor Kent, in his commentaries, C. J., said: "When the voluntary says that an estate in a franchise society accepted the charter, it br- and an estate in land rest upon the came a private, civil corporation, and same principles." Randolph v. the corporators then in being ac- Larncd, 27 N. J. Eq. 557, 561, per quired a property in the franchise. Green, J. and every person who has since be- '• Horn Silver Mining Co. v. New come a corporator has acquired a 85 § 28 NATURE OF FRANCHISE In a Kentucky case the legislature by statute ''^ incorporated a company to construct a railroad from Lexington to the Ohio River, giving to said corporation perpetual succession, and the power to raise funds by subscription in shares, to purchase ground for a railway, and for the erection of suitable buildings for the safe-keeping of articles received for transportation, and for shops for the accommodation of the company, cars, vehicles, etc., and to charge toll, and make a dividend of the profits among the shareholders according to the amount of stock held by each. It was determined that the right con- ferred on each shareholder was unquestionably an incorporeal hereditament. The court said; "It is a right of perpetual duration; and though it springs out of the use of personalty, as well as lands and houses, this matters not. It is a fran- chise which has ever been classed in that class of real estate denominated an incorporeal hereditament. An annuity, though only chargeable upon the person of the grantor is an incorporeal hereditament; and though the owner's security is merely personal, yet he may have a real estate in it.^^ Much less can it be doubted that a franchise created by act of in- like property. The property which easement and the like. Blackstone the corporator acquires is not visible, says, volume 2, page 37, it is likewise tangible property; but it is none the a franchise for a number of persons less property because it is invisible to be incorporated and subsist as a and intangible. It is not a corporeal body politic, with power to maintain hereditament; but it is incorporeal, perpetual succession, and to do other Blackstone, in his commentaries, vol- corporate acts, and each individual ume 2, page 21, says: That incorpo- member of such corporation is also real hereditaments are divided into said to have a franchise or freedom, ten sorts; one of these consists of fran- We think it well settled by these and chises. * * * The law books are other authorities, that a corporator full of the doctrine that persons may in a private civil corporation has a have a property in incorporeal here- property in the franchise, of which ditaments, franchises, etc. Property, he cannot be deprived without due says Bouvier, volume 2, page 381, is process of law." divided into corporeal and incorpo- See Bank of California v. City & real. The former comprehends such County of San Francisco, 142 Cal. property as is perceptible to the 276, 64 L. R. A. 918, 75 Pac. 832. senses, as lands, houses, goods, mer- *'^ Approved Jan'y 27, 1830. Ses- chandi-se and the like; the latter con- sion Acts 1829, 126. sistsin legal rights, as choses in action, " Citing 2 Blackstone's Comm. 40. 86 NATURE OF FRANCHISE § 29 corporation, unlimited in duration, and springing out of the combined use of lands and personalty, should be denominated and classed as real estate." ^^ So in the Dartmouth College case it is declared that the franchise of a corporation and that of its members, ''like other franchises, is an incorporeal here- ditament, issuing out of something real or personal, or con- cerning or annexed to, and exercisable within, a thing corpo- rate. To this grant, or this franchise, the parties are the king and the persons for whose benefit it is created, or trustees for them. The assent of both is necessary." ^^ § 29. Corporate Franchises are Legal Estates, not Mere Naked Powers. — In respect to corporate franchises, they are, properly speaking, legal estates vested in the corporation itself as soon as it is in esse. They are not mere naked powers granted to the corporation, but powers coupled with an in- terest, which vest in the corporation by virtue of its charter. The property of the corporation, vests upon the possession of its franchises; and whatever may be thought as to the cor- porators, it cannot be denied that the corporation itself has a legal interest in such franchises. It may sue and be sued for them.^^ ** Price V. Price's Heirs, 6 Dana (36 Ky.), 107, citing 2 Blackstone's Comm, 20-22, 37-38; Co. Litt. 19, 20; Com. Dig., title "Franchise." " Dartmouth College v. Wood- ward, 4 Wheat. (17 U. S.) 518, 657, 4 L. ed. 629, per Washington, J., Id., 700, per Story, J. " Dartmouth College v. Woodward, 4 Wheat. (17 U. S.) 518, 700, 4 L. ed. 629, per Story, J.; Hamilton Mfg. Co. V. Massachusetts, 6 Wall. (73 U. S.) 632, 638, 18 L. ed. 904, per Clifford, J.; Society for Savings v. Corte, 6 Wall. (73 U. S.) 594, 606, 18 L. ed. 897, per Clifford, J. (a case of impo- sition of franchise tax); Bank of Cal- ifornia V. San Francisco, 142 Cal. 276, 281, 75 Pac. 832, per Angel- lotti, J. See also Commonwealth v. Standard Oil Co., 101 Pa. 119, 127 (a case of taxation). 87 § 30 NATURE OF FRANCHISE CONTINUED — CHAPTER IV. NATURE OF FRANCHISE CONTINUED — DISTINCTIONS. § 30. Franchises Essential and not Essential to Corporate Exist- ence — " Essentially Corpo- rate Franchises." 31. " Corporate Powers or Privi- leges " not Franchises Essen- tial to Corporate Existence. 32. Franchises and Powers — To What Extent Distinguished. 33. Franchise to Be Separate and Distinct from Property or Franchise Which Corpora- tion May Acquire. 34. Same Subject Continued. 35. Same Subject — " Personal Franchise" Distinguished from Property Franchise. 36. Franchise Differs from Grant of Land — Easement — Free- hold. 37. General Creative Franchise and Special Franchise Dis- tinguished. 38. Franchises Belonging to Cor- porators and Those Belong- ing to Corporation Distin- guished. 39. Franchise to Be and to Carry on Business Distinguished — " Corporate Franchise or Business." 40. Franchise Distinguished from Means Employed in Exer- cising it. 41. Charter and Franchise — To What Extent Distinguished. 42. Charter and Franchise Con- tinued — How Extent of Pow- ers Is Ascertained. 43. Charter and Franchise Con- tinued — Where Franchise Does Not Take Effect Before Actual Formation of Cor- poration. 44. Charter and Franchise Con- tinued — Charter Rights and Privileges Derived Through Organization — " Additional Franchise or Privilege" Ac- quired after Incorpora- tion. 45. Charter and Franchise Con- tinued — Distinction Exists. 46. Charter and Franchise Con- tinued — "Charter" as Syn- onymous with " Franchise." 47. Whether Certain Grants Con- stitute a License, Privilege, Permission, Gratuity or Con- tract; and not a Franchise — Distinction. 48. Same Subject Continued. § 30. Franchises Essential and not Essential to Corporate Existence — " Essentially Corporate Franchises." — It may be stated generally that a marked distinction exists between a 88 DISTINCTIONS § 30 franchise which is essential to the creation and continued ex- istence of a corporation, to its right to exist as an artificial being, and inseparable from it, and other franchises, rights and privileges, subsidiary in their nature, which it possesses and may exercise under and by virtue of the franchise to be and to the enjoyment of which corporate existence is not a prerequi- site.^ So it is declared that: "The essential properties of cor- porate existence are quite distinct from the franchises of the corporation. The franchise to be is distinct from a franchise as a corporation to maintain and operate a railway. The latter may be mortgaged without the former, and may pass to a pur- ^ As to primary and secondary jran- v. Western North Carolina Rd. Co., chises of corporations, see § 8, herein. 89 Fed. 24, 31, per Simonton, Cir. J. "The Western North Carohna "The right to be a corporation is Railroad Company was created a itself a separate, distinct and inde- corporation by the legislature of that pendent franchise, complete within State in the exercise of a sovereign itself, and a corporation having been power. This sovereign power made created, enjoying this franchise, of several persons a single entity, may receive a grant and enjoy other and conferred on them the franchise distinct and independent franchises, of acting as one person. This new such as may be granted to and en- person, creature of the law, and ex- joyed by natural persons; but be- isting through the grace and at the cause it enjoys the latter franchises, willof the sovereign, was then clothed they do not, therefore, constitute a with certain powers, and granted part of the distinct and independent certain privileges. These are its essential franchise, — the right to be franchises. First, the franchise of a corporation. They are additional existence as a corporation, — its life franchises given to the corporation, and being. This is inseparable from and not parts of the corporation it- it. When it parts with it, — with self,— not of the essence of the cor- this franchise, — it parts with its poration." Southern Pacific Rd. life. But, with respect to the other Co. v. Orton, 32 Fed. 457, 474, per franchises with which it has been Sawyer, J. clothed, — the right and privilege to "By the term ' corporate franchise act as a common carrier, to carry a business' as here used * * * passengers and goods, to charge tolls, is meant * * * the right or to operate a railroad, — these it en- privilege given by the State to two joys as an individual could, and or more persons of being a corpo- they are not inseparable from its ex- ration, that is, of doing business in a istence. They are its property. A corporate capacity, and not the privi- franchise to be a corporation is dis- lege or franchise which, when in- tinct from a franchise, as a corpo- corporated, the company may cxer- ration to maintain and operate a rail- cise." Cobb v. Commissioners of road." Central Trust Co. of N. Y. Durham County, 122 N. C. 307, 309, 89 § 30 NATURE OF FRANCHISE CONTINUED — chaser at a foreclosure sale.^ And a franchise to take tolls, which comes into existence by grant, not directly from the State, but from a local board, is distinct from a corporate franchise. So a franchise to be a corporation may continue to exist, though any particular franchise annexed to it may have been surrendered or forfeited.^ In a California case it is said: "This corporate franchise — viz., the franchise to be and exist as a corporation for the purposes specified in the articles of incorporation — appertains to every corporation, for whatever purpose it may be formed, and there is no distinction in this regard between the banking or grocery corporation, and the railroad, water or gas corporation. The right to engage in every such business is open to all citizens, independent of any grant from the sovereign, but it is available to no one to con- duct any such business through the agency of a corporation, without such grant. Certain occupations are, however, of such a nature that various privileges conferrable only by the sovereign power are convenient, and in most cases absolutely essential, to the successful maintenance of the business to be carried on, whether it be carried on by a corporation or by an individual — such, for instance, as the right to use public high- ways. Such rights and privileges are also known as franchises, but they constitute a class entirely distinct from and inde- pendent of the corporate franchise." ^ Again, what have been called "Essentially corporate franchises" are those without which the corporation could not exist, and which are, in their nature, incapable of being vested in, or enjoyed by, a natural person — such as the right or franchise of being a corporation, of having a corporate succession, etc. But the franchise of taking private property, or the right of eminent domain, is not perhaps necessarily a corporate right. So the franchises to 30 S. E. 338, per Montgomery, J., ' Grand Rapids Bridge Co. v. quoting Home Ins. Co. v. New York, Prange, 35 Mich. 400, 405, 24 Am. 134 U. S. 594, 599, 33 L. ed. 1025, Rep. 585. 10 Sup. Ct. 593, per Field, J. * Bank of California v. San Fran- 2 Memphis & Little Rock Rd. Co. cisco, 142 Cal. 276, 280, 75 Pac. 832, V. Commissioners, 112 U. S. 609, 619, per Angellotti, J. 28 L. ed. 837, 5 Sup. Ct. 299. 90 DISTINCTIONS §§ 31,32 build, own and manage a railroad, and to take tolls thereon, are not necessarily corporate rights; they are capable of ex- isting and being enjoyed by natural persons. The franchise of maintaining a plank road and taking tolls, is not necessarily a corporate franchise, more than that of a ferry .^ §31. " Corporate Powers or Privileges" not Franchises Essential to Corporate Existence. — In granting franchises to street railway corporations to use and occupy city streets, a common council may exercise delegated legislative powers, but they are not grants of "corporate powers or privileges" under a constitution prohibiting the enactment of any special or private law granting corporate powers or privileges. They are not franchises essential to corporate existence, granted as part of the organic act of incorporation, but are such as may be sold and assigned, if assignable, or lost by forfeiture, and yet not affect the corporate existence of the street railway. It is said, however, that some confusion undoubtedly exists .in the cases upon this subject and such franchises have been sometimes called "corporate franchises," but that this does not affect the true character of the franchises.^ § 32. Franchises and Powers— To What Extent Distin- guished. — A distinction is made in a Minnesota case between ^ Joy V. Jackson & Michigan Plank corporate charters. This is implied Road Co., 11 Mich. 155, 164, 165, not only by the word grant, but also per Christiancy, J. by the word corporate. A franchise ' Linden Land Co. v. Milwaukee is not essentially corporate; and it Elect. Ry. & Light Co., 107 Wis. is not the grant of franchise which 49.3, 513, 514, 83 N. W. 858, per is prohibited, but of corporate fran- Winslow, J. chise; that is, as we understand it, "We feel bound to hold, and find franchise by act of incorporation." n-) difficulty in holding, the phrase Attorney Gen'l v. Chicago & North- in the amendment" (of a state con- western Rd. Co., 35 Wis. 425, 560, Btitution [.rohibiting the legislature per Ryan, C. J., quoted in Brady v. from passing special laws, amongst Moulton, 61 Minn. 185, 186, per other purposes, for corporate powers Mitchell, J. (holding that a special or privileges, except to cities) " to law authorizing a city to issue bonds grant corporate powers or privileges, for waterworks is not a grant of to mean in prindpio donatinnu, and "corporate powers or privileges im- equivalent to the phrase, to grant der the state constitutional pro- 91 § 32 NATURE OF FRANCHISE CONTINUED — franchises and powers, and it is said that in order to consti- tute a franchise the right possessed, the privilege or immunity of a pubHc nature must be such as to require the express per- mission of the sovereign power, through legislative authoriza- tion or grant, to warrant its exercise; that the right, whether existing in a natural or artificial person, to carry on any par- ticular business is not necessarily a franchise; that a business which corporations are organized to carry on under a statute are powers and not franchises where such right is one pos- sessed by all citizens who choose to engage in it without any legislative grant; and that the only franchise which corpora- tions so organized possess is the general franchise to be or exist as a corporate entity so that if they engage in any business not authorized by the statute it is ultra vires or in excess of their powers, but not a usurpation of franchises not granted nor necessarily a misuser of those granted/ It is also declared, however, that the term power is in a sense synonymous with franchise. Thus, the capacity or liability to incur obligations in conducting the legitimate business of banking is said not to be a power in any just sense. ^ So it is asserted that: "The various powers conferred on corporations are franchises; the execution of a policy of insurance by an insurance company, and the issuing of a bank note by an incorporated banking company are the exercise of franchises; without legislative authority neither could be lawfully done by a corporation." " And in a case in the Federal Supreme Court it is said that: "The franchise to be a corporation is distinguished from the franchise to exercise as a corporation the banking powers named in this charter." ^" It may be stated, in this connec- vision substantially the same as that distinction between franchises and last above considered). powers, in substance same as the last ' State V. Minnesota Thresher above cited case, but citing no cases. Mfg. Co., 40 Minn. 213, 225, 226, 41 « Curtis v. Leavitt, 15 N. Y. 9, N. W. 1020, 3 L. R. A. 510, per 170, per Shankland, J. Mitchell, J. " State v. Mayor, etc., of New Examine Wait on Operations Pre- York, 3 Duer (N. Y.), 119, 144, per liminary to Construction in Engineer- Bosworth, J. ing & Architecture, § 862, as to '" Mercantile Bank v. Tennessee, 92 DISTINCTIONS § 33 tion, that all the functions of a corporation are, in one sense franchises. Thus, the right to hold property in the corporate name, to sue and be sued in that capacity, to have and to use a corporate seal, and by that to contract, and some others, perhaps, are franchises, which constitute the very definition of a corporation. And whenever and wherever the corpora- tion is recognized, for any purpose, the existence and exercise of these franchises must also be recognized." § 33. Franchise to Be Separate and Distinct from Property or Franchise Which Corporation May Acquire. — Corporations may by virtue of a legislative grant of a franchise obtain or acquire certain property essential to their successful opera- tions. Thus an electrical company which, in pursuance of a grant of a right by the proper authorities to enter upon and occupy streets or highways, proceeds to the construction and erection of its lines, obtains a right, partaking of the nature of an easement in property, of which it cannot be deprived, in the absence of a reservation of the right so to do.^^ Again, it is 161 U. S. 160, 171, 40 L. ed. 656, 16 was irrevocable after acceptance, un- Sup. Ct. 466, per Peckham, J. (a less the power to alter or revoke was case of judicial sale of franchises of reserved." See Pikes Peak Power a corporation; of tax exemption, Co. v. City of Colorado Springs, 105 and purchasers' rights). Fed. 1, 44 C. C. A. 33. "State V. Boston, Concord A: Illinois: Village of London Mills Montreal Rd. Co., 25 Vt. 433, 442, v. White, 208 111. 289, 70 N. E. 313, per Redfield, Ch. J. aff'g 105 111. App. 146; People v. "United States: City of Morris- Central Illinois Tel. Co., 192 111. 307, town V. East Tennessee Teleph. 61 N. E. 428. Co., lio Fed. 304, 53 C. C. A. 132, 8 Kansas: City of Baxter Springs Am. Elec. Cas. 3. The court, per v. Baxter Springs L. & P. Co., 64 Lurton, C. J., said: that the consent Kan. 591, 68 Pac. 63, 8 Am. Elec. of the municipal authorities "to the Cas. 125. occupancy of the streets by poles Michigan: Mohan v. Michigan and wires of the telephone company Teleph. Co.., 132 Mich. 242, 93 N. W. for the purpose of maintaining a 629, 8 Am. Elec. Cas. 38; Michigan telephone system was a grant of an Teleph. Co. v. City of St. Joseph, 121 easement in the streets and a con- Mich. 502, 80 N. W. 383, 7 Am. Elec. veyance of an estate or property Cas. 1. interest, which, 1 cing in a large sense Minnesota; City of Duluth v. the exercise of a proprietory or con- Duluth Tolcph. Co., 84 Minn. 486, tractual right rather than legislative, 87 N. W. 1128, 8 Am. Elec. Cas. 136; 93 § 33 NATURE OF FRANCHISE CONTINUED — declared to be settled law that when in pursuance of proper legislative authority a grant is made of a valid franchise, right or privilege to use or occupy a public street, common, or levee, or navigable waters adjacent thereon, for a public purpose, such as the construction and maintenance of wharves in aid of commerce, water tanks for use in sprinkling, streets, telegraph and telephone poles, railway tracks and the like, and the grantee, relying upon such grant, expends money in prosecuting the enterprise he thereby acquires the proj.erty in- terest or right of which he cannot be deprived except under the power of eminent domain and upon compensation there- for. In such case the grantee acquires a right or easement different in kind from that enjoyed by the general pubUc.^^ So where the consents of abutting owners is necessary to the use of streets and the construction of an electric street railway, property rights are created, by such valid consents, which cannot be abandoned except by action of all parties interested, including the consent of the State; nor can the rights acquired, under such consents be destroyed by the action of a receiver of the company appointed in foreclosure proceedings, under Northwestern Teleph. Exch. Co. v. 9, 76 Pac. 347, per Bean, J., citing Minneapolis, 81 Minn. 140, 83 N. W. 1 Dillon, Munc. Corp. (4th ed.) §§ 110,, 527, 7 Am. Elec. Cas. 168. Ill, 29 Am. & Eng. Ency. of Law New Jersey: Inhabitants of East (1st ed.), 69; Portland & Willamette Orange v. Suburban Elec. L. & P. Valley Rd. Co. v. Portland, 14 Co., 59 N. J. Eq. 563, 44 Atl. 628, 7 Oreg. 188, 12 Pac. 265, 58 Am. Rep. Am. Elec. Cas. 37. 299; Savage v. Salem, 23 Oreg. 381, See §§ 25-27, herein. 31 Pac. 832. 24 L. R. A. 787, 37 Am. " The right to use the public streets St. Rep. 688; City of Des Moines or highways is a property right and v. Chicago, R. I. &. P. R. Co., 41 has an assessable value. Western Iowa, 569; Phillipsburg Elect. Light- Union Teleg. Co. v. City of Omaha ing, Heating & Power Co. v. Phillips- (Neb., 1905), 103 N. W. 84, 85, 86, burg, 66 N. J. L. 505, 49 Atl. 445; per Letton, C, quoting from People Langdon v. Mayor, etc., of New ex rel. Retsof Min. Co. v. Priest, York, 93 N. Y. 129; Williams v. 77 N. Y. Supp. 382, 75 App. Div. Mayor, etc., of New York, 110 N. Y. 131, case aff'd (Mem.) 175 N. Y. 569, 18 N. E. 435. See also Wyan- 511, 67 N. E. 1088 (which determines dotte Elec. L, Co. v. City of Wyan- what franchises are taxable under dotte, 124 Mich. 43, 82 N. W. 821, the statute). 7 Am. Elec. Cas. 43. '' Mead v. Portland, 45 Oreg. 1, 94 DISTINCTIONS § 33 an order limiting his authority to the management, operation and protection of its property, in abandoning that portion of the road to which such consents attached ; nor has the city any power to authorize such abandonment.^^ But where it is provided by ordinance that telegraph, telephone and electric light companies may lay wires under the streets of a city, and that such company shall remove its conduits whenever di- rected so to do by the city council, the company does not ac- quire a right of property in the street which cannot be dis- continued and appropriated to another public use without compensation, but only a right to use the streets in the man- ner specified, which is subject to revocation, and a statute providing for the removal of electrical appliances from the streets and that the companies shall have the right either to remove the same or to put them in underground conduits which are to be constructed under regulations does not con- fer a franchise which includes an individual right of property in the public easement, and in such a case the right so reserved may be exercised either by the municipality or, by the legis- lature.^^ And it is also decided that though the right of an electrical company to use the streets for its purposes, is recog- nized as within the public easement, which was paid for in assessing damages to the owner when the street was opened, such company acquires no property rights in the streets by reason of the fact that it is authorized to construct its conduits therein by statute or ordinances which clearly do not purport to convey private rights of property. ^^ '* Paige V. Schenectady Ry. Co. " New England Teleph. & Teleg. (Thompson v. Same), 178 N. Y. 102, Co. v. Boston Terminal Co., 182 70 N. E. 213, case reverses 82 N. Y. Mass. 397, 65 N. E. 835, 8 Am. Elec. Supp. 192, 84 App. Div. 91, and Cas. 132. In this case the court, per Whitmyre v. Same, 84 App. Div. Knowlton, J., said: "In this Com- 91, but affirms Lansing v. Same, 84 mon wealth, on the laying out or App. Div. 91; Van Epps v. Same, construction of a highway or public 84 App. Div. 91; Beatty v. Same, street, the fee of the land remains in 84 App. Div. 91, see 131 Fed. 577. the landowner, and the public ac- " Boston Electric Light Co. v. (|uire an easement in the street for Boston Terminal Co., 184 Mass. 566, travel. * * * fhe rights, in 69 N. E. 346, 8 Am. Elec. Cas. 50. the streets which are so exercised or 95 § 34 NATURE OF FRANCHISE CONTINUED — § 34. Same Subject Continued. — It is apparent, therefore, from what is above stated, that a corporation in the exercise of its franchise may or may not obtain certain property rights according to the nature of the franchise or character of the grant. It also appears, as we have stated elsewhere, that the right to acquire property is declared to be a franchise." But the right and privilege, or what is termed the franchise of being a corporation, is of value to its members, and is considered as property separate and distinct from the property or fran- chises which the corporation may itself acquire subsequent to its incorporation by the use of its franchise.^* So the corpo- enjoyed are not private rights of Southern Ry. Co., 112 Ky. 424, 61 property, but are part of the public S. W. 31; Smith v. Mayor, etc., of rights which are shared in common." New York, 68 N. Y. 552, 555. Rails and other materials of a street " The powers and privileges which railway company embedded in the constitute the franchises of a cor- surface of the public streets of a city poration were in a just sense prop- remain personal property and may erty, quite distinct and separate be disposed of as such. French v. from the property which by the use Jones, 191 Mass. 522, 526, 78 N. E. of such franchises the corporation 118. might acquire." Home Insurance " See § 12, herein. Co. v. New York, 134 U. S. 594, "Central Pac. R. Co. v. Cali- 601, 33 L. ed. 1025, 10 Sup. Ct. 593, fornia, 162 U. S. 91, 127, 16 Sup. Ct. per Field, J. (taxabiUty of franchises 766, 40 L. ed. 903, per Fuller, C. J. considered), (a case of taxation of franchise); See §§ 25-27, herein. Horn Silver Mining Co. v. New "Much confusion often happens York, 143 U. S. 305, 312, 36 L. ed. from a failure to distinguish between 164, 12 Sup. Ct. 403, per Field, J. those franchises that are corporate (a case of taxation of corporate fran- in a strict legal sense and not really chises); Bank of Cahfornia v. San property of the corporation, and Francisco, 142 Cal. 276, 280, 64 L. franchises acquired by a corporation R. A. 918, 75 Pac. 832, per Angellotti, after corporate existence commenced, J.; Consohdated Gas Co. v. Balti- that it may part with if they be as- more City, 101 Md. 541, 545-548, per signable, or deprived of without McSherry, C. J.; Lumberville Bridge corporate existence being affected Co. v. Assessors, 55 N. J. L. 529, and which may survive the death of 535, 26 Atl. 711, 25 L. R. A. 134, the corporation." State v. Portage per Garrison, J. See Western Union City Water Co., 107 Wis. 441, 446, Teleg. Co. v. Norman, 77 Fed. 13, 83 N. W. 697, per Marshall, J. (a 22; City of Bridgeport v. New York case of action to forfeit a waterworks & New Haven Rd. Co., 36 Conn, franchise granted by a city to in-< 255, 266, 4 Am. Rep. 63; Bailey v. dividuals and assigned to defendant). 96 DISTINCTIONS § 34 rate property of a bank is separable from the franchise, and the banking capital attached to the franchise is another prop- erty owned in its parts by persons, corporate or natural, and the corporate property may be taxed in the absence of a special contract otherwise.^* And although the franchise or pri\ilege of running a railroad and taking fares and freight is property which is valuable, still it is not the same sort of property as the rolling stock, roadbed, and depot grounds. ^^ The roadbed, acquired by purchase or condemnation, is altogether distinct from the pre-existing franchise to exist and to build the road, even though it is obtained as a result of the exercise of such franchise to be. That franchise con- sists in the incorporeal right, the property acquired is not the franchise; this distinction is clear between a franchise, as such, and the property acquired by the exercise or use thereof, even though the property so acquired may be largely augmented by the use to which the franchise enables that property or easement to be put and although it may have no particular value inde- pendent of the use made as incidental to the franchise to be.^^ Again, the real estate of a corporation is a distinct thing from its franchises, even though the right to acquire and sell real estate is a franchise. 22 And a structure, such as a pier, or bridge, is " Gordon v. Appeal Tax Court, thing; the property rights, includ- 3 How. (44 U. S.) 133, 150, 11 L. ed. ing rights of way which the char- 529, per Wayne, J. . tered body may acquire from pri- '" Wilmington Railroad v. Reid, vate individuals, is quite another. 13 Wall. (80 U. S.) 264, 268, 20 L. ed. These latter may be lost by acts of 568, per Davis, J. (a case of exemp- the corporation and the approval tion from taxation, including fran- of the State is not necessary," al- chise of railroad company). though it may be true that a cor- " Consolidated Gas Co. v. Balti- poration cannot abandon its fran- more City, 101 Md. 541, 545-548, 61 chise without the consent of its Atl. 532, per McSherry, C. J. creator, the State. Thompson v. "A 'franchise', i. e., the right to Schenectady Ry. Co., 124 Fed. 274, exist and perform certain acts, is 279, per Ray, Dist. J., see same case a thing distinct from the property 131 Fed. 577. rights which the corporation when *^ Davis v. Gray, 16 Wall. (83 U. created may acquire from individ- S.) 203, 228, 21 L. ed. 447, per uals. * * * The 'franchise,' the Swayne, J. (a suit by receiver of charter granted by the State is one railroad, grantee of lands from State, 7 97 § 34 NATURE OF FRANCHISE CONTINUED — not a franchise; it differs from the franchise right or privilege to construct and maintain the pier, etc., and take wharfage, tolls, rates or like charges for the use thereof.^^ It is also de- clared that: ''In every instance of a private easement — that is, an easement not enjoyed by the public — there exists the characteristic feature of two distinct tenements — one dominant and the other servient. On the other hand, a franchise is a special privilege conferred by government on individuals, which does not belong to the citizens of the country generally by common right.^^ A franchise does not involve an interest in land — it is not real estate, but a privilege which may be owned without the acquisition of real property at all. The use of a franchise may require the occupancy, or even the owner- ship, of land, but that circumstance does not make the fran- chise itself an interest in land. To define the nature of a thing to enjoin forfeiture and grant of the bridge was the franchise to col- same lands to another; was as pre- lect tolls for a designated number of venting fulfillment of conditions of years. The plaintiffs needed the grant). bridge for the convenience of the See § 12, herein. public. The defendants agreed to " " The plaintiff has a franchise build it for the franchise granted, to construct and maintain this pier The bridge as soon as completed be- and take wharfage for its use. The came the property of the plaintiffs, pier itself is a structure built under and at the termination of this fran- his franchise. It is tangible, bulky chise they are compelled to deliver property, and in no sense incorporeal, the bridge to plaintiffs. They as- (2 Black. Comm. 191). It is not serted their duty in their charter, like a mere right or privilege which when in the fifth section they agreed has no physical existence. A per- to abandon the bridge to the plain- son may have a franchise to build tiffs. The defendants owned the and maintain a bridge and take toll franchise and not the bridge. They for its use. The bridge as a struc- had the use of the bridge during the ture is not a franchise. * * * A existence of their franchise, and held railroad company has a franchise it in trust for the public. The to construct and maintain a rail- defendant corporation, under their road * * * its road and other charter, stood in the same relation structures may be taxed as real es- to the public as the plaintiffs would tate." Although under the laws of have done had they built the bridge." the State a mere franchise is not tax- Police Jury v. Bridge Co., 44 La. able except by special statute. Ann. 137, 141, 10 So. 677, per Mc- Smith V. Mayor, etc., of New York, Enery, J. 5S N. Y. 552, 555, per Earl, J. ^' Citing 2 Wash. Real Prop. 303. " The consideration for building See § 2, herein. 98 DISTINCTIONS §§ 35, 36 by the accidents which are employed in its use, is to confound the thing itself with the agencies applied in its adaptation. Because land may be required in putting a franchise into ef- fective operation, it doj5s not follow that the franchise is land, or an interest in land. But an easement is quite a different thing. It is essentially and inherently an interest in land. It is an estate — a dominant estate imposed upon a servient tenement. * * * i^ wQI be found upon examining some of the cases that there is occasionally, in the arguments of counsel, a want of exactness in the use of terms, and now and then the right to do a particular thing is confused with the results achieved in the exercise of the right, and those results are inaccurately spoken of as the franchise. The right to occupy the streets with gas mains is a franchise — the actual occupation of them in that way pursuant to the franchises the acquisition of an easement. You must distinguish between the right to do the thing, and the interest acquired in the soil by the exercise of that right." ^^ § 35. Same Subject — " Personal Franchise " Distin- guished from Property Franchise. — A clear distinction is made between that franchise which creates a corporation that has the power to own property, and the franchise which authorizes the corporation thus organized to construct and operate a rail- road. The first has been called the "personal franchise," so denominated, by virtue of which the corporation becomes a legal entity, and obtains the capacity to acquire property and other rights. The other franchise is declared to be purely and only a property franchise. ^^ § 36. Franchise Differs from Grant of Land — Easement — Freehold. — The grant of franchises and privileges is unlike a grant of land, since, in the latter, the grantee is invested with " Consolidated Gas Co. v. Balti- " Sandham v. Nye, 30 N. Y. Supp. more City, 101 Md. 541, Gl Atl. 532, 552, 555, 62 N. Y. St. Rep. 198, 9 545-548, per McSherry, C. J. See Misc. 541, per Rumsey, J. See §§25- §§ 26, 36, herein. 27, herein. 99 § 37 NATURE OF FRANCHISE CONTINUED — exclusive dominion. But there is, however, a certain resem- blance to a grant to a telephone company of the use of a cer- tain space on, above or beneath the earth's surface, since it cannot be excluded from the space which it is lawfully en- titled to possess for its purposes, although this rule is subject to many qualifications dependent upon a lawful exercise of the public rights in, and public user of streets. Nor is the right existent in an electrical company to claim any exclusive right in the earth as an electrical field for the conduct of electricity.^'' Again, it is declared that, "The exercise of the power of using streets for laying gas pipes is rather an easement than a fran- chise." ^* In an Illinois case where it was sought to set aside or redeem from conveyance of a patent it was held that a franchise was not involved so that a direct appeal to the Su- preme Court would lie, the existence or validity of the patent not being questioned, and the court in its argument upon the point of analogy of title to a freehold declared that franchises differ in their nature from freeholds; that the very essence of a freehold lies in the title to the land; that no question can arise as to the existence of the land, but only as to the title to it; that a franchise is something incorporeal and artificial, created by the will of the sovereign authority and its very es- sence lies in its existence, in the right to exercise it.^^ § 37. General Creative Franchise and Special Franchise Distinguished.^" — Under the constitution of California, fran- chises must be classed as property, subject to taxation. The " Hudson River Telephone Co. Jessup, 162 N. Y. 122, 56 N. E. 538, V. Watervliet Turnpike & Rd. Co., where franchise is distinguished from 56 Hun (N. Y.), 67, 3 Am. Elec. Cas. easement. Case reverses 42 N. Y. 387, 389, 9 N. Y. Supp. 177, per Lan- Supp. 4, 10 App. Div. 456. don, J. See §§ 25-27, 33, 34, herein. An indefeasible interest in land. ^* People ex rel. Kunze v. Fort See Ghee v. Northern Union Gas Wayne & Elmwood Ry. Co., 92 Co., 158 N. Y. 510, 513, 53 N. E. 692. Mich. 522, 525, 52 N. W. 1010, per Case reverses 56 N. Y. Supp. 450, 34 Montgomery, J.; People ex rel. App. Div. 551. Maybury v. Mutual Gas Light Co., " Maginn v. Bassford, 196 111. 266, 38 Mich. 154, 155, per Campbell, C. 63 N. E. 668, per Carter, J. J. See Trustees of Southampton v. ^^ See §§ 6-8, herein. 100 DISTINCTIONS § 38 franchises so assessable, may be classified as creative and special. The creation of a corporation, the grant of power to exist and act as such is, in itself, a franchise distinctly held to be assessable as property. This creative franchise is, how- ever, inseparable from the being or personality of the corporate body. But the right to collect water rates or compensation for water distributed or furnished is a franchise independent of the creative or corporate franchise; it is a separate entity or franchise, a special franchise distinct from the general franchise to be and act as a corporation. It is also a property right. So it is declared that a difference exists "between the general creative franchise to be, and the special franchises which, when accepted or purchased, vest privileges or franchises resting in special grant from governmental sources. * * * The mere fact that a corporation is organized for the specific purpose of acquiring, and is given power to acquire public uses or franchises, does not carry with it the idea that such franchises, when acquired, be they many or few, are merged in, and must be assessed as part and parcel of the general corporate franchise. * * * The distinction between the corporate or creative franchise, and other special franchises which the corporate entity may acquire and exercise, has long been recognized by our courts." ^^ § 38. Franchises Belonging to Corporators and Those Belonging to Corporation Distinguished. — The franchise of being a corporation belongs to the corporators, while the powers, rights and privileges vested in and to be exercised by the corporate body as such constitute franchises of the corporation.^^ So it is declared by Judge Baldwin that: "In the common case of the incorporation of a domestic company to build and operate a domestic railroad, the franchises granted are also distinct, and are held by different persons. The fran- " San Joaquin & King's River " Memphis & Little Rock Rd. Canal & Irrig. Co. v. Merced County, Co. v. Commissioners, 112 U. S. 609, 2 Cal. App. 593, .595, 597, 599, 84 619, 28 L. ed. 837, 5 Sup. Ct. 299, Pac. 285, per McLaughlin, J. See per Matthews, J. See §§ 11, 28, §§ 5, 11, 12, herein. herein. 101 § 39 NATURE OF FRANCHISE CONTINUED — chise to become and exist as an artificial person vests in the corporators; that to act, when incorporated, in such a way as to accomphsh certain purposes, vests in the corporation." ^^ But, a franchise granted by a city to an electric light company is, under an Indiana case, the property of the corporation and not of the owner of stock therein. ^^ § 39. Franchise to Be and to Carry on Business Distin- guished — " Corporate Franchise or Business." — The franchise ^^ Baldwin's Amer. Rd. Law (ed. 1904), p. 26. " Now it is clear from these defini- tions, and from the very nature of a corporation, that a franchise, or the right to be and act as an artificial body, vests in the individuals who compose the corporation and not in the corporation itself," although " It will be kept in mind that the corporate body, for most purposes, has a distinct identity from that of the individual corporators." Feit- sam V. Hay, 122 111. 293, 295, 3 Am. St. Rep. 492, 13 N. E. 501, per Mulkey, J. "It has been said, 'the essence of a corporation consists in the capacity (1) to have perpetual succession un- der a special name, and in an artifi- cial form; (2) to take and grant property, contract obligations, sue and be sued by its corporate name, as an individual; and (3) to receive and enjoy, in common, grants of privileges and immunities. * * * Under the two first is described what may be termed the franchise of the corporators, or individual members of the corporation, and under the last what may be termed the franchises of the corporation.'" Coe V. Columbus, Piqua & Indiana Rd. Co., 10 Ohio St. 372, 385, 75 Am. Dec. 518, per Gholson, J., citing Thomas v. Dakin, 22 Wend. (N. Y.) 102 71; Pierce v. Emery, 32 N. H. 484- 507. "The word 'franchise' is often used as a generic name, descriptive of all the rights, privileges and im- munities contained in the charter, including the right of the corporation to become and continue to be a legal person; but in a narrower sense it includes only the rights, powers and privileges conferred by the legislature upon the corporation as such after it has come into existence as a legal person. The right to form a cor- poration is a franchise which may be said to belong to the corporators; while the right to take land for rail- road purposes, to operate the railroad and to take tolls there, are properly called 'franchises' which belong to the corporation." DriscoU v. Nor- wich & Worcester Rd. Co., 65 Conn. 230, 256, 32 Atl. 354, per Torrance, J., in dissenting opinion. Formation of corporation to ac- complish fraud or other illegal act cannot be based upon distinction that corporation and corporators have independent existence. First Nat. Bank v. J. C. Trebein Co., 59 Ohio St. 316, 41 Ohio L. J. 142, 52 N. E. 834. See also Chesapeake & Ohio R. Co. V. Howard, 14 App. D. C. 262, 27 Wash. L. Rep. 146. ^* Payne v. Goldbach, 14 Ind. App. 100, 42 N. E. 642. DISTINCTIONS § 39 to be or exist is only one of the franchises of a corporation. The franchise to do, to carry on the lousiness of the corporation, is an independent francli^se, or rather, a combination of fran- chises, embracing all things which a corporation is given power to do, and this power, this authority, constitutes a thing of value and a part of the corporation's intangible property as much as does the franchise to be. Franchises to do, go wherever the work is done; for the transaction of its business the cor- poration may go into various States, and wherever it goes as a corporation it also carries wdth it the franchise to be, for although for the purposes of jurisdiction in the Federal courts, it is also true that a corporation is presumed to be a citizen of the State which created it, still it does not follow that its franchise to be is for all purposes to be regarded as confined to that State. Again, it would seem that these intangible properties, these franchises to do, exercised in connection with the tangible property which it holds, create a substantive matter of taxation to be asserted by every State in which that tangible property may be found.^'^ So in a Nebraska case a distinction is made between a franchise to be and a franchise consisting of a right to do business in a State, where the latter franchise is sought to be reached for the purpose of taxation, whether such right is derived through an act of Congress, or of the legislature, or by an ordinance of a municipality; that is, the thing which is so sought to be reached for taxation is the intangible right to transact or carry on business by means of the usual, visible and tangible agencies with which the operations of such business are carried on independent of the '' Adams Express Co. v. Ohio it can be said to be valuable. The State Auditor, IGG U. S. 185, 224, wharf without a right to use it would 41 L. ed. 965, 17 Sup. Ct. G04, per be of no appreciable value. It is Brewer, J. Denying rehearing in the combination of the two — the 165 U. S. 194, 255, 17 Sup. Ct. 305, wharf and the franchise— that mutu- 41 L. ed. 683, 707. ally impart to each other, when com- "The franchise or bare right to bined, an estimable value. * * * do a thing considered with reference No franchise is of any value when to itself alone is of no value. It is considered without reference to its only when it is considered relatively utility." Sullivan v. Lear, 23 Fla. and in connection with its usse that 463, 2 So. 846, 11 Am. St. Rep. 388. 103 §§ 40, 41 NATURE OF FRANCHISE CONTINUED — instrumentalities themselves. It was also said in this case, that there was a clear distinction between "corporate franchise " and franchises or privileges which a corporation or individual might exercise.^^ The term "corporate franchise or business" as used in the tax law of New York " providing for the tax- ation of corporations, means (not referring to corporations sole which are not usually created for commercial business) the right or privilege given by the State to two or more persons of being a corporation, that is, of doing business in a corporate capacity, and not the privilege or franchise which, when in- corporated, the company may exercise.^* § 40. Franchise Distinguished from Means Employed in Exercising It. — A franchise is distinguished from the means employed in exercising it, as in case of a franchise of furnishing a city and its inhabitants water for public and private pur- poses and limited to the city. In such case, the fact that the water is pumped and stored without the city, constitutes only a means of exercising the franchise. The franchise does not consist in pumping the water or in maintaining the reservoirs. ^^ §41. Charter and Franchise— To What Extent Distin- guished. — In determining to what extent, if any, a charter and franchise may be distinguished, we will first consider the meaning of the word " charter," where definitions of the word have a bearing upon the question. The definitions of a fran- 3« Western Union Teleg. Co. v. point in People v. Miller, 83 N. Y. City of Omaha (Neb., 1905), 103 Supp. 184, 187, 85 App. Div. 211, N. W. 84-86, per Lurton, C. which case is reversed, 177 N. Y. 51, " Act May 26, 1881, c. 361. 69 N. E. 124, which is cited in People 3« Home Insurance Co. v. New v. Miller, 86 N. Y. Supp. 420, 422, York, 134 U. S. 594, 599, 33 L. ed. 90 App. Div. 588. This last case is 1025, 10 Sup. Ct. 593, per Field, J. reversed, 179 N. Y. 49, 71 N. E. Case affirms People v. Home Insur- 463. ance Co., 92 N. Y. 328, also affirmed '' Board of Councilmen of City of by divided court, 119 U. S. 129, 30 Frankfort v. Stone, 108 Ky. 400, 22 L. ed. 350, 8 Sup. Ct. 1385, restored Ky. L. Rep. 25, 56 S. W. 679 (a case to calendar, 122 U. S. 636 (Mem.), of taxation and apportionment of The principal case is cited to above tax). 104 DISTINCTIONS § 42 chise have been fully given elsewhere.^" A charter of incorpo- ration is defined as the instrument evidencing the act of a legislature, governor, court, or other authorized department or person, by which a corporation is or was created.^^ The word "charter" is also used to signify the agreement between the shareholders of the corporation, whether this agreement be contained in a special act of the legislature, or in articles of association, or in either of these taken in connection with the general laws of the State. ''^ So the general law under which corporations are formed, together with the articles of associa- tion adopted in pursuance thereof, sometimes called " constating instruments,' ' constitute the charter of the corporation,"*^ § 42. Charter and Franchise Continued — How Extent of Powers Is Ascertained. — It may be stated, as pertinent to the question as to the distinction between a charter and a fran- chise, that resort must be had to the charter in connection with the general law in order to ascertain the extent of the powers, rights and privileges conferred, and where a private corpora- tion is organized under the general incorporation law, the franchises conferred by the State, when it was organized, are to be ascertained or determined from the objects of the in- corporation as stated and set forth in the articles of incorpo- ♦"See Chap. I, herein. on Stock and Stockholders, §§ 2, 9; *' Anderson's L. Diet., "Charter." People v. Chicago Gas Trust Co., 130 See State Bank of Chicago v. Carr, 111. 268, 22 N. E. 798; 1 Morawetz on 130 N. C. 479, 41 S. E. 876. Exam- Corp. (2d. ed.) § 318; and cited in ine State v. Pittman, 32 Wash. 137, State v. Anderson, 31 Ind. App. 34, 72 Pac. 142. 67 N. E. 207. " Floyd V. National Loan & In- Examine Union Traction Co. v, vestment Co., 49 W. Va. 327, 345, 87 Chicago, 199 111. 484, 59 L. R. A. 631, Am. St. Rep. 805, 38 S. E. 653, 54 65 N. E. 451; Bixler v. Summerfield, L. R. A. 536, per Poffenbarger, J., 195 111. 147, 62 N. E. 849; McLeod v. citing Morawetz on Corp. § 967. Lincoln Medical College, 69 Neb. 550, " Attorney Gcnl. v. Perkins (Ma- 96 N. W. 265. son V. Perkins), 73 Mich. 303, 319, For other definitions, see Merrick 320, 41 N. W. 426, per Champlin, J. v. Santvoord, 34 N. Y. 208, 214, per See also to same point Bent v. Un- Porter, J.; Lehigh Water Co.'s Ap- derdown, 156 Ind. 516, 519, 60 N. E. peal, 102 Pa. 515, 517. 307, per Monks, J., citing 1 Cook 105 § 43 NATURE OF FRANCHISE CONTINUED — ration. And although the statute, under which it is organized, vests it with and authorizes it to exercise all the powers nec- essary and requisite to carry into effect the objects for which it was formed, nevertheless the general powers intended by the enactment are such powers only as are necessarily incident and supplemental to the special powers granted.'*^ § 43. Charter and Franchise Continued — Where Fran- chise Does not Take Effect Before Actual Formation of Corporation. — It may be also stated, as a consideration having an important bearing upon the matter under discussion, that a corporation may be presently created by the terms of a statute, without condition precedent or preliminary. And " Chicago Municipal Gas Light & Fuel Co. V. Town of Lake, 130 111. 42, 53, 22 N. E. 616; Dartmouth Col- lege V. Woodward, 4 Wheat. (17 U. S.) 518, 635, 4 L. ed. 629, per Mar- shall, C. J.; Meyer v. Johnston, 53 Ala. 237, 324, per Manning, J. See the following cases: United States: Thomas v. Rail- road Co., 101 U. S. 71, 25 L. ed. 950. Illinois: People, Moloney, v. Pull- man's Palace Car Co., 175 111. 125, 51 N. E. 664, 64 L. R. A. 366. Missouri: State, Crow, v. Lincoln Trust Co., 144 Mo. 562, 46 S. W. 593. New York: McGraw, In re, v. Cor- nell University, 45 Hun (N. Y.), 354, 10 N. Y. Supp. 495 and cases cited. Texas: Ft. Worth Street Rd. Co. V. Rosedale Street Rd. Co., 68 Tex. 169, 4 S. W. 434; Gulf, Colorado & Santa Fe R. Co. v. Morris, 67 Tex. 692, 4S. W. 156. Utah: Weyeth Hardware & M. Co. V. James-Spencer-Batoman Co., 15 Utah, 110, 47 Pac. 604. "A corporation being the mere creature of the legislature, its rights, privileges and powers are dependent 106 solely upon the terms of its charter." Horn Silver Mining Co. v. New York, 143 U. S. 305, 312, 36 L. ed. 164, 12 Sup. Ct. 403, per Field, J. (a case of taxation of corporate franchises). Railroad corporations possess only those rights, powers or properties which the charters of their corpora- tions confer upon them, either ex- pressly or as incidental to their ex- istence, and this applies to all other corporations. St. Louis, Iron Moun- tain & Southern Ry. Co. v. Paul, 64 Ark. 83, 40 S. W. 705, 37 L. R. A. 504, 62 Am. St. Rep. 154. Articles of incorporation under gen- eral laws have the effect of a charter when necessary to ascertain the ex- tent of the powers conferred upon the corporation so organized. North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co., 16 Utah, 246, 52 Pac. 168, 40 L. R. A. 851, 8 Am. and Eng. Corp. Cas. (N. S.) 98. See also Detroit Driving Club v. Fitzgerald, 109 Mich. 670, 67 N. W. 899, 4 Am. and Eng. Corp. Cas. (N. S.) 546, 3 Det. L. N. 232; International Boom Co. V. Rainy Lake River Boom Corp., 97 Minn. 513, 107 N. W. 735. DISTINCTIONS § 44 very commonly charters are framed, not of themselves creat- ing, but authorizing the formation of corporations upon pre- liminary conditions. Under the former class of charters, the corporation created is the grantee of the franchises conferred. Under the latter class, however, neither the franchise to be a corporation, nor the particular franchise conferred, takes effect before the actual formation of the corporation. When the corporation is formed, the franchises conferred vest in it as grantee. Franchises so conferred are like any other estate granted upon condition precedent, the estate vesting upon condition fulfilled. But like every other operative grant, franchises so conferred have a certain grantee.^^ Again, it is necessary to complete the corporate organization by the elec- tion of the proper and necessary officers before a corporation can exercise the power of condemnation of property.'*^ § 44. Charter and Franchise Continued — Charter Rights and Privileges Derived Through Organization — " Addi- tional Franchise or Privilege " Acquired After Incorpora- tion. — Another point in the determination of the ques- tion as to the difference between a charter and a franchise may be stated as follows: — A privilege of supplying a city with water may be such that it cannot be said in the strict sense of the word, to be a "corporate franchise " ; that is, not a privilege derived from or obtained by the act of incorporation, when charter rights and privileges are such only as come to a cor- poration through its organization under the general corpo- ration law, and so not include the right to furnish water to a city. Such right may only be acquired after the incorporation is accomplished, and upon the agreement and consent of the city. Although the grant of corporate capacity is from the State, and the subsequent grant from the city may be said theoretically to have been also from the State, still such city *^ Pollers V. Union Lumbering Co., " Consolidated St. Ry. Co. v. 39 Wis. 525, 527, per Ryan, C. J., Toledo Elect. St. Ry. Co., 6 Ohio N. citing Att'y General v. Railway P. 537, 8 Ohio S. & C. P. Dec. 268. Companies, 35 Wis. 599. 107 § 45 NATURE OF FRANCHISE CONTINUED — is under no legal obligation to make the grant, and may re- fuse it, without in any manner affecting the company's corpo- rate rights, powers or franchises. If the city makes the grant it gives the corporation what may be called an "additional franchise or privilege." '*^ A privilege granted by a munici- pality to a telephone company to erect its lines in the streets and alleys of the city is not a charter, where such city has no legislative power to authorize the use of its streets for the erection of telephone poles and wires and cannot grant to any person or corporation the use of the streets and alleys of a city or town for any other purpose than that for which they were dedicated ; and where subsequently the state constitution prohibits the use of such streets, alleys or public grounds of a city or town, without the prior consent of the proper legisla- tive authorities, such consent is a prerequisite and if it is not obtained, the company has no right to occupy such streets and alleys, unless the right so to do existed by virtue of a charter antecedently granted and work had in good faith been begun thereunder. Nor was it the purpose of the constitution to render valid a resolution or ordinance of a board of council- men granting a franchise which, under the law at the time of its adoption, was invalid.'** § 45. Charter and Franchise Continued — Distinction Exists. — It appears from the preceding statements that the charter is the instrument evidencing the act of the authority creating the corporation ; that it is also the agreement between the shareholders of the corporation whether the agreement is contained in the statutes or in the articles of association, in either or both ; that resort must be had to the charter, in con- nection with the general law, or to the articles of incorpora- tion, to ascertain the extent of the powers, rights and privi- *'' Cedar Rapids Water Co. v. *^ East Tennessee Teleph. Co. v. Cedar Rapids, 118 Iowa, 234, 239, City of Russellsville, 106 Ky. 667, 91 N. W. 1081, per Weaver, J., citing 21 Ky. L. Rep. 305, 51 S. W. 308; Grand Rapids Bridge Co. v. Prange, Ky. Const. § 163. 35 Mich. 400, 24 Am. Rep. 585. 108 DISTINCTIONS § 46 leges conferred; that where a charter authorizes the formation of corporations upon conditions, neither the franchise to be a corporation nor the particular franchise conferred takes effect or vests in the grantee before the actual formation of the cor- poration; and that a "corporate franchise" may not be a privi- lege derived by the act of incorporation, but one which can only be acquired by subsequent grant, and so may never vest. It would seem, therefore, that to the extent set forth within this summary a distinction may reasonably be declared to exist between a charter and a franchise.^'' § 46. Charter and Franchise Continued — " Charter " as Synonymous with " Franchise." — Notwithstanding what is said in the preceding sections, it is declared that "a charter of incorporation is a franchise." ^° And that every grant of a franchise is a charter. It may be a grant of the mere franchise of being a corporation, or a grant of powers to a corporation already in existence. In either case, the grant is the company's charter to exercise the rights and privileges and enjoy the immunities granted.^^ Again, where a statute gives authority to mortgage its charter, the word "charter" is said to include at least its franchises in the sense of the right to own and " See Chap. I, herein, as to defini- '* State, Morris & Essex Rd. Co. tions of franchise. Pros. v. Commissioner of lid. Taxa- " A charter contains the grant of a tion, 37 N. J. L. 228, 237, per Depue, franchise, but it is not the franchise J., who adds: "Bouvier defines the itself. The charter is evidence that a word 'charter' to be, a grant made franchise has been granted rather by the sovereign, either to the whole than the franchise, for that is the people, or to a portion of them, se- thing the charter grants. The consti- curing to them the enjoyment of tutional inhibition against impairing certain rights. Bouvier's Law Diet., the obligation of contract is not oper- 'Charter.' 'AH franchises,' says Chief ative upon the charter but upon the Baron Comyn, 'are derived from the contract which the charter contains, king, and ought to be claimed by and protects franchises because they charter.' Com. Dig., 'Franchises' are valuable property or contract A, 71. 'Besides the charter of in- rights." Elliott on Rds. (2d ed.), corporation, a body politic has § G4. granted to it other charters, by which '" State V. Peel Splint Coal Co., 36 the crown, from time to time, adds W. Va. 802, 812, 15 S. E. 1000, 17 L. to or modifies the powers,' etc. R. A. 385, per Lucas, Pres. Grant on Corp. 13." 109 § 47 NATURE OF FRANCHISE CONTINUED — operate the road, take tolls and carry on its business, even though there may be a question whether more is intended to be embraced in the transfer. ^^ § 47. Whether Certain Grants Constitute a License, Privilege, Permission, Gratuity or Contract, and not a Franchise — Distinction. — In Illinois a distinction exists be- tween a franchise and a license, and where a street railway is incorporated under an act of the legislature, but the power to construct and operate is by its charter dependent upon the consent of the city, and such privilege is granted by ordinance, such grant by the city is held a mere license and not a fran- chise; such license may, however, become a contract.^^ So un- der another decision in the same State a distinction exists be- tween a franchise granted by the sovereign power of a State and an authority given by ordinance of a city to construct a railway on the city streets, as the grant in the ordinance is not a franchise but a mere license. Such a privilege of .the use of public streets in a city or town, when granted by ordinance, is not, however, always a mere license revocable at will of the municipality, but it may be a valid and binding contract, as where the grant is based upon an adequate consideration and is accepted by the grantee, or, even though considered as a mere license, it may have been acted upon in such a manner that it would be inequitable and unjust to revoke it.^'* It is " Memphis & Little Rock Rd. Co. Chicago City Ry. Co. v. The People, V. Berry, 37 N. J. L. 436, 443. 73 111. 541, where it is asserted that ^^ Belleville v. Citizens' Horse Ry. a grant or license given by an ordi- Co., 152 111. 171, 185, 38 N. E. 584, nance comes within no definition of a 26 L. R. A. 681. franchise. Id., 547. "License to operate railroad" — Li- An authority given a street railway cense defined, see State ex rel. Chi- company to use city streets for the cago, Milwaukee & St. Paul Ry. Co. construction and operation of its V. McFetridge, 56 Wis. 256, 259, 14 road is a mere license or permission N. W. 185. subject to conditions specified in the '* Chicago Municipal Gas Light ordinance. Blocki v. People, 220 111. & Fuel Co. V. Town of Lake, 130 111. 444, 77 N. E. 172. 42, 22 N. E. 616, citing City of Ordinance granting such a right to Quincj'' V. Bull, 106 111. 337, 351; railroad to use streets is not a mere 110 DISTINCTIONS § 47 also determined in that State that a municipal grant of a right to a company to use the streets for its poles, etc., is not a fran- chise but a license or contract; a binding contract, upon ac- ceptance of the privilege by the company, which cannot be revoked except for cause shown.^^ So a municipal ordinance granting the use of streets for a system of waterworks is held not to confer a franchise but merely a license, as a municipal body cannot grant a franchise.^^ In Maine, permissive rights given by statute, 1885," "regulating the erection of posts and lines for the purposes of electricity," granted no franchises. Prior to 1895 the legislature kept the granting of franchises in its own hands. Quasi-public corporations are, however, required to obtain authority, either general or special, from the legislature, besides, a permit is required from municipal officers, even though a general franchise is obtained, under the act of 1895.^* It is declared in a Michigan case, that the ex- ercise of the power of using streets for laying gas pipes is rather an easement than a franchise; that, it is not a state franchise but a mere grant of authority which, whether coming from private owmers or public agents, vests in contract or license and nothing else.^^ In Nebraska, the right of a street car com- pany to so occupy the streets of a city, when granted by a vote of the electors, is, if nothing more, a license coupled with an interest, and such licenses are assignable .^° Again, it is held revocable license. Workman v. *' Cain v. City of Wyoming, 104 Southern Pac. R. Co., 129 Cal. 536, 62 111. App. 538. Pac. 185. " Chap. 378, Pub. Laws, 1885, " People V. Union Tel. Co., 192 111. p. 318. 307, 61 N. E. 428. See People v. ^^ jwin Village Water Co. v. Da- Chicago Teleph. Co., 220 111. 238, mariscotta Gas Light Co., 98 Me. 77 N. E. 245; Chicago Teleph. Co. v. 325, 56 Atl. 1112. Northwestern Teleph. Co., 199 111. '* People ex rel. Kunze v. Fort 324, 65 N. E. 329, 8 Am. Elec. Cas. Wayne & Elmwood Ry. Co., 92 81. See Baxter Springs, City of, v. Mich. 522, 525, 52 N. W. 1010, per Baxter Springs Light & Power Co., Montgomery, J.; People ex rel. May- 64 Kan. 591, 68 Pac. 63, 8 Am. bury v. Mutual Gas Light Co., 38 Elec. Cas. 125; Duluth, City of, v. Mich. 154, 155, per Campbell, J. Duluth Teleph. Co., 84 Minn. 486, '"State, Caldwell, v. Citizens' St. 8 Am. Elec. Cas. 136, 87 N. W. Ry. Co. (Neb., 1907), 141 N. W. 429. 1128. The charter rights are derived 111 § 48 NATURE OF FRANCHISE CONTINUED — that a grant by private act of a right to maintain a ferry is a mere hcense or gratuity and not a contract.^^ A distinction also exists between a franchise as a special privilege conferred by the legislature, and not belonging of common right to the citizens of the country generally, and a mere license intended by the legislature as a means for the regulation of a business and which confers no special right or privilege upon the holder.®^ It is also declared that a consent, given to a department store by the proper municipal authorities, to construct a spur track connecting with a street railroad for the conveyance of goods confers no franchise, but is merely a license to private parties.^' So a grant by the legislature may be a mere gratuity conferring only a privilege, as where it is not an act of incorporation and confers no chartered rights and does not amount to a contract .^^ § 48. Same Subject Continued.^^ — Under a Louisiana de- cision the authorities of a city are not invested with legal power to create corporations or to grant franchises; that can be done only by the State; a city can, however, concede a from the State, and the provisions of 110, 84 N. W. 802, cited in Western the ordinance, vmder which the con- Union Telegraph Co. v. City of sent of a majority of the electors is Omaha (Neb., 1905), 103 N. W. 84-86. secured, obligate the street railway " Robinson v. Lamb, 126 N. C. company to construct its street rail- 492, 36 S. E. 29. Examine Roy v. way within the time and in the man- Henderson, 132 Ala. 175, 31 So. 457. ner stated, and make it subject to "^ Martens v. The People, 186 111. such regulations as might lawfully 314, 318, 57 N. E. 871 (holding that be established by ordinance; the a license to keep a saloon is not a corporation is thereby privileged or franchise). See § 21, herein, permitted to enter upon the streets of °' Hatfield v. Strauss, 189 N. Y. the city for the purpose of construct- 208, 218, 224, 226, per O'Brien, J., ing its tracks and to carry out the Bartlett, J., and Chase, J., in dis- purposes of its organization; and it senting opinion, thereby derives no other or greater "* Gregory v. Trustees of Shelby right than a privilege, license, or College, 2 Mete. (59 Ky.) 589 (a case permission to enter upon the streets of a lottery privilege). But com- for such purpose. Its grant of cor- pare Commonwealth v. City of Frank- porate franchises or privileges is not fort, 13 Bush (76 Ky.), 185, 189 (as determined by such ordinance, but to lottery privilege being in the na- by general law. Lincoln St. Ry. ture of a franchise). Co. v. City of Lincobi, 61 Neb. 109, "^ ggg gg 14-16, herein. 112 DISTINCTIONS § 48 right of way through its streets, but such right does not con- stitute a franchise in law. The privileges so conceded are held to be "secondary franchises," instrumentalities by means of which the corporate powers granted by the charter may be exercised.^® Where the word "franchise" is not used in an ordinance and it does not purport to grant any franchise, and it is apparent that such ordinance is only intended to exercise the authority to regulate, such regulation is not the grant of a franchise and no effective municipal franchise is granted dis- tinct from the Federal franchise which a telegraph company may hold under the post-roads act, even though the character of the ordinance, in view of its provisions, may have the char- acter of an attempted grant of a franchise.^' The right of a corporation to occupy city streets for railroad purposes is a franchise which primarily resides in the State and must pro- ceed from that source whatever may be the agencies through which it is conferred; ®® and where a city has delegated powers it acts as agent for the State so that its grant by ordinance conferring such rights is a franchise. ^^ So a grant by ordinance of an exclusive right to supply a city with water is a fran- chise,'" as is also a grant by a common council to construct and operate a system of waterworks, where such city council is an authorized legislative agency of the State .'^^ The same rule applies where consent by town authorities, acting under " Shreveport Traction Co. v. Kan- Grant to street railway company sas City, Shreveport & Gulf Ry. Co., is franchise where city empowered 119 La. 759, 44 So. 457. by statute to make grants for use of " Western Union Teleg. Co. v. streets. Linden Land Co. v. Mil- City of Visalia, 149 Cal. 744, 87 Pac. waukee Elec. Ry. & Light Co., 107 1023. Wis. 493, 83 N. W. 851. " Adee v. Nassau Elec. Rd. Co., " Port of Mobile v. Louisville & 72 N. Y. Supp. 992, 1000, 65 App. Nashville Rd. Co., 84 Ala. 115, 4 So. Div. 529, 106 N. Y. St. R. 992, per 106; Los Angeles Ry. Co. v. City of Woodward, J., citing Beekman v. Los Angeles (Cal., 1907), 92 Pac. Third Ave. Rd. Co., 153 N. Y. 144, 490. 152, 47 N. E. 277. Principal case "Cedar Rapids Water Co. v. aff'd, 173 N. Y. 580 (Mem.), 65 N. E. Cedar Rapids, 118 Iowa, 234, 91 N. 1113. See also Baltimore, City of, W. 1081. v United Rys. & Elec. Co. (Md., "State v. Portage City Water 1908), 68 Atl. 557. Co., 107 Wis. 441, 83 N. W. 697. 8 113 § 48 NATURE OF FRANCHISE CONTINUED — a statute, is given to a gas company to occupy and use the public streets and highways for the purpose of conducting and dehvering gas, as such grant constitutes a franchise 7^ Again, it is declared, in a Newark case, that the consent which the "municipal authorities," under a statute are re- quired to give, operates to create a franchise by which is vested in the corporation receiving it an indefeasible interest in the land constituting the streets of a municipality. Al- though the franchise comes from the State, nevertheless, the act of the local authorities, who represent the State by its permission and for that purpose, constitutes the act upon which the law operates to create the franchise. The consent of local authorities is unnecessary as the State may grant the franchise directly, although the tendency is to delegate the power to municipal or local authorities. The legal effect of the consent is, however, the same as if the local authorities in form granted the franchise and the interest in the land.'''^ In another case in the same State it is decided that the right, created by a resolution of the trustees of a town, vested by royal charters granted in colonial days, with title and sov- ereignty over the watei's of a bay in that town and the lands thereunder, authorizing a riparian proprietor ''to make a roadway and to erect a bridge" across the bay, the said bridge to be a drawbridge, and providing that there shall be no un- necessary delay to those navigating the waters of the bay, is a franchise as distinguished from a license or an easement.'''* In this case, the court, per Vann, J., said: "We think it is a franchise, because it was granted in the exercise of a govern- '^ People ex rel. Woodhaven Gas franchise proceeds from the State Co. V. Deehan, 153 N. Y. 528, 47 and the consent of the local authori- N. E. 787, rev'g 11 App. Div. 175. ties is merely to a form of street use, '^ Ghee v. Northern Union Gas even though it has been asserted Co., 158 N. Y. 510, 513, 53 N. E. 692. that a distinction exists between the This case reverses 56 N. Y. Supp. grant of a franchise and the consent 450, 34 App. Div. 551. But it was of a municipahty. said in the reversed case, that a ''* Trustees of Southampton v. municipality acting under a properly Jessup, 162 N. Y. 122, 56 N. E. 538, delegated legislative power or au- rev'g 42 N. Y. Supp. 4, 10 App. Div, thority may grant a franchise, as the 456. 114 DISTINCTIONS § 48 mental power conferred by royal charter in colonial days 7^ It is a special privilege, because it is not of common right; is permanent, because there is no limitation as to time, and is of public concern, because it relates to the public domain. A roadway necessarily includes a right of way, which when granted by a legislative body is a franchise. The resolution has the same effect as if a like privilege had been granted by act of the legislature in relation to similar lands held by the State for public use. A grant by a resolution of a legislative body is as effective as a grant by deed of an executive body and is the usual form in which franchises are conferred." But, although a right to construct a railroad or a telephone system is conferred by the proper city authorities, still if the munici- pality has no power to make such a grant it is in valid. ^^ In conclusion, it would seem to be immaterial whether the grant is made directly by the legislature or through the agency of a municipality or like body acting under delegated powers and exercising proper legislative authority, and, therefore, in so far as this question as to distinctions is concerned, such grant ought in the latter case to be considered as a franchise as well as in the former instance. "Citing People ex rel. Howell v. etc., of City of New York, 3 Duer Jessup, 160 N. Y. 249, 54 N. E. (10 N. Y. Super. C), 119; State v. 682. Milwaukee Independent Teleph. Co. "State of New York v. Mayor, (Wis., 1907), 114 N. W. 108, 315. 115 § 49 DEFINITIONS, CLASSIFICATION, CHAPTER V. DEFINITIONS, CLASSIFICATION, NATURE OF CORPORATION AND DISTINCTIONS. 49. Change in Nature and Rela- tions of Corporations — Ef- fect upon Early Definitions. 50. Definitions of a Corporation. 51. Summary of Expressions Used in Defining a Corporation. 52. To What Extent Defmition of Corporation Includes a Com- pany, Association and Joint- Stock Association or Com- pany — Partnership. 53. Same Subject — Continued. 54. Same Subject — Conclusion. 55. General Classification of Cor- porations — Public and Pri- vate. General Classification of Cor- porations Continued— Quasi- Public Corporations — Quasi- Municipal Corporations. Other Divisions or Kinds of Corporations. Classification as Affected by Constitutions and Statutes. 59. Classification as Affected by Public Service Commission Law or Public Utilities Act. 60. Corporation Considered as 56 57 58 Civil or Political Institu- tion — Distinctions Between Incorporation and Corpora- tion — Distinction Between Public and Private Corpora- tions. § 61. PubHc, Quasi-Public and Pri- vate Corporations Defined and Distinguished. 62. Same Subject — Continued. 63. Duties, Obligations and Power as affecting Classification or Nature of Corporations — Public Service Corpora- tions. 64. To what Extent Corporations are "Persons" — Generally. 65. To What Extent Corporations are "Persons" Under Stat- utes. 66. Corporations as "Persons" un- der Constitution of United States. 67. Corporations as "Citizens" for Federal Jurisdiction Pur- poses — Not "Citizens" Un- der Constitution of United States. § 49. Change in Nature and Relations of Corporations — Effect upon Early Definitions. — What is said by the court in a case in the United States Supreme Court, decided in 1870, is pertinent here; it is as follows: "The subject of the powers, duties, rights and liabilities of corporations, their essential 116 NATURE OF CORPORATION AND DISTINCTIONS § 50 nature and character, and their relations to the business trans- actions of the community, have undergone a change in this country within the last half century, the importance of which can hardly be overestimated. They have entered so ex- tensively into the business of the country, the most important part of which is carried on by them, as banking companies, telegraph companies, insurance companies, etc., and the de- mand for the use of corporate powers in combination with the capital and the energy required to conduct these operations is so imperative, that both by statute, and by the tendency of the courts to meet the requirements of these public neces- sities, the law of corporations has been so modified, liberalized and enlarged, as to constitute a branch of jurisprudence with a code of its own, due mainly to very recent times. To at- tempt, therefore, to define a corporation, or limit its powers by the rules which prevailed when they were rarely created for any other than municipal purposes, and generally by royal charter, is impossible in this country and at this time." ^ § 50. Definitions of a Corporation. — Under a definition given in a comparatively recent case in the Federal Supreme Court a corporation is but an association of individuals with a distinct name and legal entity.^ The definition, however, ' Liverpool Ins. Co. v. Massachu- compose it, and is for certain pur- eetts, 10 Wall. (77 U. S.) 566, 574, poses, considered as a natural per- 575, 19 L. ed. 1029, per Miller, J. son. * * * It means an intel- See also Thomas v. Dakin, 22 Wend, lectual body, composed of individuals, (N. Y.) 1, 70. and created by law; a body which is ' Hale V. Henkel, 201 U. S. 43, 50 united under a common name, and L. ed. 652, 26 Sup. Ct. 370. See also the members of which are capable Pembina Con.solidated Silver Mining of succeeding each other, that the & Milling Co. v. Pennsylvania, 125 U. body (like a river), continues always S. 181, 189, 8 Sup. Ct. 737, 31 L. ed. the same, notwitLstanding the change 650. See § 51, herein. in the parts which compose it." "A corporation is a body, created Angell & Ames on Corp. (9th ed.) by law, composed of individuals §§ 1, 30. united under a common name, the "A body pohtic or corporate, members of which succeed each other, formed and authorized by law to act so that the body continues the same, as a single person, and endowed by notwithstanding the individuals who law with the capacity of perpetual 117 § 51 DEFINITIONS, CLASSIFICATION, which has been the most extensively quoted, adopted and rehed upon, is that given by Chief Justice Marshall, as fol- lows: ''A corporation is an artificial being, invisible, intangi- ble and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same and may act as a single individual." ' It is said, however, that: 'It is not essential to the idea of a corporation that it shall have perpetual existence, for limited corporations are a matter of most common occurrence, whether organized under general or special laws. Neither is it essential that it shall have capacity to sue and be sued under its corporate name, for it may be authorized only to sue in the name of its officers, as was the case under the New York banking law. That it shall have capacity to sue and be sued under some name standing for the collective body is all that is necessary. In the last analysis, the only essential attribute of a corpora- tion is the capacity to exist and act within the powers granted, as a legal entity, apart from the individual or individuals who constitute its members." * § 51. Summary of Expressions Used in Defining a Cor- poration.— The following summary of the expressions used by the courts in defining a corporation evidences a substantial agreement upon certain essential points irrespective of the form in which any particular court has given such definition. succession; a society having the ca- Coke Co., 86 Fed. 585, 589, 30 C. C. A. pacity of transacting business as a 293, 58 U. S. App. 444, per Lurton, single individual." Webster's Diet. Cir. J. That this case is overruled, ^ Dartmouth College v. Woodward, see Great Southern Fire Proof Hotel 4 Wheat. (17 U. S.) 518, 636, 4 L. ed. Co. v. Jones, 177 U. S. 449, 457, 44 629. See note to § 51, herein. L. ed. 842, 20 Sup. Ct. 690, per Har- * Andrews Bros. v. Youngstown Ian, J. 118 NATURE OF CORPORATION AND DISTINCTIONS § 51 Thus a corporation is defined as: "An artificial being, invisible, intangible; an artificial body; an artificial legal person; an artificial person representing shareholders; an artificial person created to become the business representative, agent or trustee of those furnishing money for the business ; an artificial person created by statute; an intelligent though artificial person; an intellectual body created by law; a legal person; a legal being, a legal institution; a fictitious person; an ideal body; in a cer- tain sense legislative bodies; a creature of the law* a body created by the supreme power of the State; a creature existing by statute; created by the legislature; a franchise created by the king; an association of individuals; an association of per- sons; a collection or association of individuals united in one body; composed of persons made into one body; an aggregate body; an aggregation of individuals united by operation of law so as to form but one person; a collective unity; a body con- sisting of one or more persons; a body consisting of one or more natural persons; a collection of many individuals in one body; an assembly of many into one body; a body composed of persons which the law prescribes; a body united in its fran- chises and liberties; an artificial being existing onl}^ in con- templation of law ; a body distinct in law from all its members, or existing independent of its members; a distinct entity; a legal entity; an entity distinct from its members; a body politic or corporate; a franchise for a number of persons to exist as a body politic; existing only in political capacity or in both a political and natural capacity; composed of individuals vested with a political character and personality distinct from their natural capacity; composed of individuals who subsist as a body politic; a body united for a lawful purpose; a mere creature of the law established for special purposes; a personification of certain legal rights; a body established by law with usually some specific purpose, or for certain specific purposes; a body with special privileges not possessed by individuals; a body composed for the purpose of obtaining franchises or privileges not allowed to corporators as individuals; composed of in- dividuals united under a common name, or a special name; 119 § 51 DEFINITIONS, CLASSIFICATION, having a distinctive artificial name; subsisting under a special denomination; having common stock and common business; a person or legal being capable of transacting some kind of busi- ness as a natural person; a person with capacity to transact business as an individual; having power or capacity to act as an individual ; having capacity to act as a single individual ; a body acting in many respects as individuals; having certain powers and duties of natural persons; having like powers and liabilities as natural persons; an artificial being with capacity of acting within the scope of its charter as a natural person; a body which acts and speaks through its officers or agents; a legal institution conferring on its members powers, privileges and immunities which they would not otherwise possess; ia personification of certain legal rights; a body possessed with power to do corporate acts, but with prescribed powers, or with powers prescribed by law, or with powers only of the kind and degree conferred by law; a body constituted by policy with capacity to take or do; being in its corporate capacity a mere creature of the act to which it owes its exist- ence; receiving all its powers from the act creating it; a body with its existence, powers and liabilities fixed by the act of incorporation; a body limited to one peculiar mode of action; a body whose existence is evidenced by the exercise of certain franchises and functions; a person vested with power and capacity to make contracts within the scope of its powers; a person with capacity to take and grant property as an indi- vidual; a body with right to sue and be sued like natural per- sons; composed of constantly changing members, or with a right to change of members without dissolution; a succession of individuals ; in law a single continuous person ; a body with such a grant of privileges as secures a succession of members without changing the identity of the body, a body continued ' by a succession of members, as its members succeed each other so that the body is always the same notwithstanding change of individuals; a body with capacity of succession irrespective of change in membership; or with a capacity of succession in perpetuity, by transfer of shares; a body with capacity of 120 NATURE OF CORPORATION AND DISTINCTIONS § 52 succession, perpetual or limited; a permanent body or thing; a body which never dies.^ § 52. To What Extent Definition of Corporation Includes a Company, Association and Joint-Stock Association or Company — Partnership. — The constitution of New York pro- ' See the following cases for defini- tions of a corporation. (Explanatory note. Cases preceded by a * give, in whole or in part, Chief Justice Mar- shall's definition, quoted in the pre- ceding section; cases preceded by a * and also a t give same definition and also another or other definitions. Unmarked cases give still other and difTerent definitions.) United States: * Waters-Pierce Oil Co. V. Texas, 177 U. S. 28, 44, 44 L. ed. 657, 20 Sup. Ct. 518, per Mc- Kenna, J.; Kansas Pac. Rd. Co. v. Atchison, Topeka & Santa Fe Rd. Co., 112 U. S. 414, 416, 5 Sup. Ct. 208, 28 L. ed. 794; Baltimore & Potomac Rd. Co. V. Fifth Baptist Church, 108 U. S. 317, 330, 27 L. ed. 739, per Field, J.; Ohio & Mississippi Rd. Co. V. Wheeler, 1 Black (66 U. S.), 286, 295, 17 L. ed. 130 (" a corporation ex- ists only in contemplation of law and by force of law"); * Marshall v. Bal- timore & Ohio Rd. Co., 16 How. (57 U. S.) 314, 327, 14 L. ed. 953, per Grier, J.; Louisville, Cincinnati & Charleston Rd. Co. v. Letson, 2 How. (43 U. S.) 497, 558, 11 L. ed. 553; * Runyan v. Lessee of Coster, 14 Pet. (39 U. S.) 122, 129, 10 L. ed. 382, per Thompson, J.; * Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 587, 10 L. ed. 274, per Taney, C. J.; Bank of United States v. Deveaux, 5 Cranch (9U. S.), 61 88, per Marshall, C. J.; * Seattle Gas & Electric Co. v. Citi- zens' Light & Power Co., 123 Fed. 588, 592, per Hanford, Dist. J.; An- drews Bros. v. Youngstown Coke Co., 86 Fed. 585, 588, 589, 30 C. C. A. 293, 58 U. S. App. 444, per Lurton, Cir. J. [quoting Kyd; Thomas v. Dakin, 22 Wend. (N. Y.) 9, 70, 1 Dill. Munic. Corp. (3d. ed.) § IS; An- gel & Ames on Corp. §§ 1-30]; Ames v. Union Pac. Rd. Co., 62 Fed. 7, 14 ("a corporation is organized capital; it is capital consisting of money and property," per Caldwell, Cir. J.); * Ross V. Chicago, M. & St. P. Ry. Co., 8 Fed. 544, per McCrary, J. (simi- lar to first part of Cliief Justice Marshall's definition); Santa Clara, County of, v. Southern Pac. Rd. Co., 18 Fed. 385, 402. Alabama: * Dillard v. Webb, 55 Ala. 468, 474, per Stone, J.; Askew V. Hale County, 54 Ala. 639, 642, 25 Am. Rep. 730, per Brickell, C. J. Arkansas : *t Conway, Ex parte, 4 Ark. (4 Pike) 302, 351, per Lacy, J. California: * San Luis Water Co. V. Estrada, 117 Cal. 168, 177, 48 Pac. 1075, per Chipman, C; Dean v. Davis, 51 Cal. 406, 410, per Crockett, J. (code definition). Colorado: * Utley v. Clark-Guard- ian Lode Min. Co., 4 Colo. 369, 372, per Deady, J. Connecticut: Barber v. Inter- national Co. of Mexico, 73 Conn. 587, 606, 48 Atl. 758, jjer Baldwin, J.; * Coite v. Society for Savings, 32 Conn. 173, 185, per McCurdy, J.; Hartford Fire Ins. Co. v. Hartford, 3 Conn. 15, 25, per Hosmer, Ch. J. Delaware: * Higgins v. Down- ward, S Houst. (Del.) 227, 240, 40 Am. St. Rep. 141, 32 Atl. 133, per 121 § 52 DEFINITIONS, CLASSIFICATION, vides that: "The term corporations as used in this article shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corpora- Saulsbury, Ch.; *t Coyle v. Mcln- tire, 7 Houst. (Del.) 44, 88, 40 Am. St. Rep. 109, 30 Atl. 728, per Sauls- bury, Ch..; * Deringer v. Deringer, 5 Houst. (Del.) 416, 429, 1 Am. St. Rep. 150, per Wales, J. Georgia: *t Goldsmith v. Rome Rd. Co., 62 Ga. 473, 481, per Bleck- ley, J.; Central Rd. & Banking Co. v. State, 54 Ga. 401, 406, per Warner, C. J. (giving Code and Comyns, Dig. definitions); Hightower v. Thornton, 8 Ga. 486, 492, 52 Am. Dec. 412 ("corporations aggregate are but associations of individuals") per Lumpkin, J.; South Carolina Rd. Co. V. McDonald, 5 Ga. 531, 535, per Nis- bet, J. Illinois: Sellers v. Greer, 172 111. 549, 50 N. E. 246, 40 L. R. A. 589; Fietsam v. Hay, 122 111. 293, 295, 3 Am. St. Rep. 492, 13 N. E. 501, per Mulkey, J.; * Mather v. City of Ottawa, 114 111. 659, 664, 3 N. E. 216, per Craig, J.; Porter v. Rock- ford, Rock Island & St. Louis Rd. Co., 76 111. 561, 573, 574, per Scholfield, J.; People ex rel. Cairo & St. Louis Ry. Co. V. Dupuyt, 71 111. 651, 655, per Craig, J. Indiana : Tippecanoe County, Board of Commissioners of, v. Lafay- ette, Muncie & Bloomington Rd. Co., 50 Ind. 85, 108, per Biddle, J.; * Cut- shaw V. Fargo, 8 Ind. App. 691, 693, 36 N. E. 650, 34 N. E. 376, per Gavin, C. J. Kansas: * Land Grant Ry. & Trust Co. V. Coffey County, Board of Commissioners of, 6 Kan. 245, 253, per Valentine, J. Louisiana: State ex rel. Saunders V. Kohnke, 109 La. 838, 843, 33 So. 122 793 (Code definition), per Provosty, J.; State v. New Orleans Debenture Redemption Co., 51 La. Ann. 1827, 1834, 26 So. 586, per Breaux, J. Maine: Goddard v. Grand Trunk Ry. Co., 57 Me. 202, 241, per Tapley, J.; * Miller v. Ewer, 27 Me. 509, 518, 46 Am. Dec. 619, per Shepley, J. Massachusetts: Central Bridge Corp. V. Bailey, 8 Cush. (62 Mass.) 319, 322, per Fletcher, J.; Pratt v. Bacon, 10 Pick. (27 Mass.) 123, 125, 126; PhiUips Academy v. King, 12 Mass. 546, 554, per Thatcher, J. Michigan: Thompson v. Waters, 25 Mich. 214, 223, 224, per Chris- tian cy, Ch. J.; * Swan v. Williams, 2 Mich. (1 Gibbs) 427, 433, per Mar- tin, J. Mississippi: * Bank of the United States V. State, 12 Smedes & Marsh (20 Miss.), 456, 459, per Clayton, J. Missouri: State v. Turley, 142 Mo. 403, 410, 44 S. W. 267, 268, per Bur- gess, J.; Jones v. Williams, 139 Mo. 1, 25, 61 Am. St. Rep. 436, 37 L. R. A. 682, per Macfarlane, J.; State v. Payne, 129 Mo. 468, 478, 31 S. W. 797, 33 L. R. A. 576, per Macfarlane, J. Nebraska: * Horbach v. Tyrell, 48 Neb. 514, 526, 37 L. R. A. 434, 67 N. W. 485, per Ryan, J., in dissenting opinion. Nevada: *t Edwards v. Carson Water Co., 21 Nev. 469, 479, 34 Pac. 381,perMurphy, C. J. New Jersey: North Hudson Co. Ry. Co. V. May, 48 N. J. L. 401, 5 Atl. 276. New York: Anglo-American Pro- vision Co. V. Davis Provision Co., 169 N. Y. 506, 511, 88 Am. St. Rep. NATURE OF CORPORATION AND DISTINCTIONS § 52 tions not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons." ° 608, per Gray, J.; * Codd v. Rath- bone, 19 N. y. 37, 40, per Grover, J.; * Curtis v. Leavitt, 15 N. Y. 9, 257, per Selden, J., in dissenting opinion; *t Warner v. Beers, 23 Wend. (N. Y.) 103, 123, 124; Thomas V. Dakin, 22 Wend. (N. Y.) 9, 70, 71, 104; Niagara County v. People, 7 Hill (N. Y.), 504, 507; Farmers' Loan & Trust Co. v. New York, 7 Hill (N. Y.), 261, 283, per Scott, Senator; Purdy v. People, 4 Hill (N. Y.), 384, 406, per Scott, Senator; People V. Assessors of Waterto'mi, 1 Hill (N. Y.), 616, 620, per Bron- son, J.; *t Gifford v. Livingston, 2 Denio (N. Y.), 380, 395, per Hand, Senator; Sandford v. New York, 15 How. Pr. (N. Y.) 172, 175, per Da vies, J.; Bradley Fertilizer Co. v. South Pub. Co., 23 N. Y. Supp. 675, 678, 53 N. Y. St. Rep. 214, 4 Misc. 172, per Bookstaver, J.; People v. North River Sugar Refining Co., 3 N. Y. Supp. 401, 407, per Bar- rett, J. Ohio: State v. Standard Oil Co., 49 Ohio St. 137, 178, 34 Am. St. Rep. 541, 15 L. R. A. 145, 30 N. E. 279, per Marshall, J. Pennsylvania: Gibbs's Estate, Halstead's Appeal, 157 Pa. 59, 69, 33 Wkly. N. C. 120, 22 L. R. A. 276, 27 Atl. 383, per Williams, J.; Com- monwealth V. Fall Brook Coal Co., 156 Pa. 488, 494, 26 Atl. 1071, per Williams, J. South Carolina: * McCandless v. Richmond R. Co., 38 S. C. 103, 110, 18 L. R. A. 440, 16 S. E. 429, per Pope, J.; State ex rel. Copes v. Charleston, 10 Rich. Law (S. C), 491, 503. Texas: * Waterbury & Co. v. City of Laredo, 60 Tex. 519, 521. Utah: Weyeth Hardware & Mfg. Co. v. James-Spencer-Bateman Co., 15 Utah, 110, 121, 47 Pac. 604, per Bartch, J. Virginia: * Roanoke Gas Co. v. Roanoke, 88 Va. 810, 824, 14 S. E. 665, per Richardson, J. West Virginia: * Roanoke Gas Co. V. Clarksburg, 30 W. Va. 491, 494, 4 S. E. 774, per Woods, J.; * Hope V. Valley City Salt Co., 25 W. Va. 789, 797, per Woods, J. Wisconsin: State ex rel. Attorney Gen'l V. Milwaukee Lake Shore & Western Ry. Co., 45 Wis. 579, 592, 593, per Orton, J. » Const. N. Y., art. 8, § 3. See also the following state con- stitutions: Alabama: Const., art. 12, par. 241. California: Const., art. 12, § 4. Idaho: Const., art. 11, § 16. Kansas: Const., art. 12, § 6 (Dassler's Gen'l Stat. § 215). Kentucky: Const., § 208. Louisiana: Const., art. 268. Michigan: Const., art. 15, § 11. Minnesota: Const., art. 10, § 1. Mississippi: Const., § 199, art. 7. Missouri: Const., art. 12, § 11. Montana: Const., art. 15, § 18. North Carolina: Const., art. 8, § 3. North Dakota: Const., art. 7, § 144. Pennsylvania: Const., art. 16, §13. South Carolina: Const., art. 9, §1. South Dakota: Const., art. 17, § 19. Utah: Const., art. 17. 123 § 52 ■ DEFINITIONS, CLASSIFICATION, Under the Public Service Commissions Law of that State the term "corporation," when used in that act, includes a cor- poration, company, association and joint-stock association^ But under the Joint-Stock Association Law of the same State the term " joint-stock association " does not include a corpora- tion.* In People ex rel. Winchester v. Coleman^ it is held that notwithstanding the various legislative enactments ex- tending the powers of joint-stock companies, and clothing them with many of the essential attributes possessed by and characteristic of corporations, the distinction between the two classes of organizations still exists, and a joint-stock com- pany is not taxable upon its capital under statutes subjecting "all money or stock corporations deriving an income or profit from their capital or otherwise," to such a tax. In People ex rel. Piatt v. Wemple ^" it is held that the words "incorporated or organized under any law of this State," as used in a statute providing for the taxation of certain corpora- tions, joint-stock companies and associations," are not to be taken in a technical or restricted sense and confined to asso- ciations brought into being according to the formality of a statute, but as including any combination of individuals upon terms which embody or adopt as rules or regulations of busi- ness the enabling provisions of the statutes, and, so far as possible for it, assume an independent personality, and claim Virginia: Const., art. 12, § 153 written articles of association and (Pollard's Code, 1904). capital stock divided into shares, Washington: Const., art. 12, § 5. but does not include a corporation; Power to sue under New York con- and the term stockholder includes stitution includes power to maintain every member of such an associ- only actions relating to corporate ation." Joint Stock Assn. Law, rights. Board of Education v. N. Y. Laws 1894, ch. 235, § 2. Board of Education, 78 N. Y. Supp. » 133 N. Y. 279, 31 N. E. 96, 16 L. 522, 76 App. Div. 355. R. A. 183, 45 N. Y. St. R. 217, 46 ' Public Service Commissions of Alb. L. J. 50, 30 Am. & Eng. Corp. N. Y., Laws 1907, p. 891, ch. 429, Cas. 1. art. 1, § 2. '" 117 N. Y. 136, 6 L. R. A. 303, 8 "As used in this chapter the term 22 N. E. 1046. joint-stock association includes every " Ch. 542, Laws N. Y. 1880, as unincorporated joint-stock associ- am'd by § 3, ch. 361, Laws 1881; ation, company or enterprise having ch. 501, Laws 1885. 124 NATURE OF CORPORATION AND DISTINCTIONS § 52 privileges not possessed by individuals or copartnerships, and that an association described in the articles as a "joint-stock company" has the characteristics, in certain respects, of a corporation and not a mere partnership, in view of the capaci- ties and attributes with which it was endowed, and in view also of the statutes which legalized its assumed capacities and made valid and effective its asserted right of succession, its distinctive name and the inalienability of its shares, even though the articles contained no reference to any statute of the State as one under or by which the company was or- ganized. ^^ In Fargo v. McVicker ^^ it is held that in case of joint-stock associations the question of citizenship, in respect to the removal of causes to the Federal courts, should be governed by the same principles of law which determine the question of citizenship in the case of corporations authorized by the laws of a State. In Waterbury v. Merchants' Union Express Co.^^ the nature and legal character of joint-stock associations organized under the New York laws is considered, and it is declared that they have all the attributes of a corpo- ration except the technical one of a common seal; and that in respect to the absence of a common seal they are like partner- ships. In Supervisors of Niagara v. People ^^ it is held that associations formed under the general banking law are cor- porations within the purview of the statute ^^ and liable to taxation on their capital. In a case in the Supreme Court of the United States it appeared that a joint-stock association was, by a deed of settlement in England and certain acts of Parliament, endowed with certain faculties and powers, which were: a distinct artificial name by which it could make con- tracts; a statutory authority to sue and be sued in the name of its officers as representing the association; a statutory recognition of the association as an entity distinct from its " Shareholders of joint-stock com- " 55 Barb. (N. Y.) 437. pany considered as partners, liable '* 50 Barb. (N. Y.) 157. for debts, etc., of company in Hibbs " 7 Hill (N. Y.), .504. V. Brown, 98 N. Y. Supp. 353, 112 '« 1 Rev. Stat. 414, § 1. App. Div. 214. 125 § 52 DEFINITIONS, CLASSIFICATION, members by allowing them to sue and be sued by it; and a provision for its perpetuity by transfers of its shares, so as to secure succession of membership. It was decided that such foreign association was, in view of these like powers, a corpo- ration in this country, notwithstanding the acts of Parlia- ment in accordance with a local policy declared that it should not be so held. It was also determined that such corpora- tions, whether organized under the laws of a State of the Union or a foreign government, could be taxed by another State for the privilege of conducting their corporate business within the latter; and that in this country the individual responsibility of the shareholder for the association's debts was not incompatible with the corporate idea." " Liverpool Insurance Co. v. Mas- ation only possess it under the cir- eachusetts, 10 Wall. (77 U. S.) 566, cumstances mentioned" in the cited 574, 19 L. ed. 1029, afT'g Oliver v. case). Cited in Edgeworth v. Wood, Liverpool & London Life & Fire Ins. 58 N. J. L. 463, 467, 33 Atl. 942 (hold- Co., 100 Mass. 531; Bradley, J., dis- ing that a joint-stock company or sented. association formed under New York This last cited case has been cited, laws and expressly authorized there- explained, distinguished and criti- imder to sue and be sued is a cor- cised as appears from the following porate entity subject to action decisions: against it in New Jersey in the name Cited in Board of Levee Inspectors of designated officers though not in of Chicot Coimty v. Crittenden, 94 its corporate name. And the court, Fed. 613, 616 (holding that a board per Magie, J., said, " Whether an of levee inspectors possessed of the aggregation of individuals united in powers usually incident to a corpo- an artificial body is a corporation or ration is a corporation even though not is to be determined rather by the the statute creating such board does faculties and powers conferred upon not expressly declare them to be the body than by the name or de- such). See also Dean v. Davis, 51 scription given to it.) Cited in Tide Cal. 406, 411; Elmore v. Commis- Water Pipe Co., Lira., v. State Board Bioners, 135 111. 269, 25 N. W. 1010; of Assessors, 57 N. J. L. 516, 517, 27 Archer v. Board of Levee Inspec- L. R. A. 684, 31 Atl. 221 (holding tors of Chicot County, 128 Fed. 125, that joint-stock companies or part- 127. Cited in American Steel & nership associations organized in Wire Co. v. Wire Drawers & Die Pennsylvania even if not a corpo- Makers' Unions, 90 Fed. 598, 600, ration in the State of its creation, per Hammond, J. (to point that "The still it may be deemed a corporation right to sue and be sued is a corpo- within the Corporation Tax Act of rate franchise, must be granted by New Jersey where such company is legislation, and voluntary associ- invested with the essential charac- 126 NATURE OF CORPORATION AND DISTINCTIONS § 53 § 53. Same Subject Continued.— In a case in the Federal Circuit Court of Appeals it is held that an allegation in respect of the plaintiff, styled a "Hmited partnership association organized and existing under the laws of the State of Michi- teristics of a corporation and assumes to exercise corporate powers and statutory privileges in the latter State. Cited in McGregor v. Erie Ry. Co., 35 N. J. L. 115, 118 (but only to the point that a foreign corpo- ration might have the character of a corporation in New Jersey although it is not so expressly declared). Dis- tinguished in Imperial Refining Co. V. Wyman, 38 Fed. 574, 575, 579, 3 L. R. A. 504 (holding that Pennsyl- vania Umited partnerships are not "citizens" imder the Constitution and laws of the United States defin- ing the limited judicial powers of the United States. Distinguished — as to point that " if incorporated it seems that in this country it is to be regarded as at least a quasi-corpo- ration, " although otherwise where unincorporated, — in Allen v. Long, 80 Tex. 261, 266, 26 Am. St. Rep. 735, 739, 16 S. W. 45 (which holds that an imincorporated joint-stock company or association lacking the element of succession or perpetuity is not a corporation but a joint-stock association governed by general laws of partnership). Distinguished in Andrew Bros. v. Youngstown Coke Co., 86 Fed. 585, 587-589, 595, 30 C, C. A. 293, 58 U. S. App. 444 (upon point that statute in this case does not disclaim a purpose to create a corporation. This last case holds that a "limited partnership associ- ation" is a corporation and "citizen" no as to give Federal courts jurisdic- tion). But the court, per Harlan, J., in great Southern Fire Proof Hotel Co. V. Jones, 177 U. S. 449, 457, 44 L. ed. 842, 20 Sup. Ct. 690, says of this case: "For the reasons stated we are unable to concur in the view taken by that court." Explained and distinguished in Gregg v. San- ford, 65 Fed. 151, 154, 12 C. C. A. 525 (holding that a joint-stock com- pany or association formed in the State of New York was not subject to taxation under the Pennsylvania statutes taxing the capital stock of "incorporated" companies, as such joint-stock association was not a cor- poration but a partnership relying as to taxation upon People v. Cole- man, 133 N. Y. 279, 31 N. E. 96, 16 L. R. A. 183; relying as to partner- ship upon Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426; Gleason v. McKay, 134 Mass. 419; Boston & Albany Rd. v. Pearson, 128 Mass. 445; Taft v. Ward, 106 Mass. 518; explaining and distinguishing Oak Ridge Coal Co. v. Rogers, 108 Pa. 147). Criticised. The dissent- ing opinion of Bradley, J., in the principal case, upon the question whether the company was a corpo- ration, is said by the court, per Lathrop, J., in Edwards v, Warren Linoline & Gasoline Works, 168 Mass. 564, 567, 568, 38 L. R. .A. 793, 47 N. E. 503 (to be "in accord with the view of this court and we are not aware that the view taken by the Supreme Court of the United States has been followed in this common- wealth. The decisions we have al- ready cited show that a foreign joint- stock company is considered as an association or partnership and not a corporation "), 127 § 53 DEFINITIONS, CLASSIFICATION, gan," is not, in the absence of some further averment as to citizenship of its members a "citizen" within the Federal jurisdictional rule, unless such organization is a corporation within such rule. And it was also decided that the association was not such a corporation as to become a citizen of the State of its domicile, independent of the members, either under the state constitution or under a statute which did not declare such associations to be corporations.^^ It is decided, how- ever, in that court that, for the purpose of jurisdiction of the Federal court, such company or association may be considered as a corporation and not as a limited partnership. ^^ It is also determined in an early case in the United States Circuit Court that a joint-stock company is a citizen of the State of organiza- tion in the same sense that corporations are citizens and that such company may sue and be sued, in the name of its proper officer, in the Federal courts as a citizen of such State. Gre- sham, J., said: ''Corporations are artificial persons— ideal crea- tures of the State— and so are New York joint-stock com- panies. It is of no consequence that in the statutes under which these companies are organized they are called 'unin- corporated associations.' In determining what such institu- tions really are, regard is to be had to their essential attributes rather than to any mere name by which they may be known. If the essential franchises of a corporation are conferred upon a joint-stock company, it is none the less a corporation for being called something else." The court also relies upon the New York constitution. ^^ In a comparatively recent case in Idaho it is decided that an unincorporated association or joint-stock company, formed for the purpose of acquiring certain land, is a partnership, or governed by some of the principles of partnership, but is not a general partnership, and that its rights, powers and privileges are not those of a corpo- 18 Fred Macey Co. v. Macey, 135 ^^ Fargo v. Louisville, New Albany Fed. 725. See the first note under & Chicago Ry. Co., 10 Biss. (U. S. C. § 52, herein. C.) 273, 277. See § 52, herein, for 1" Bushnell v. Park (U. S. G. C), provisions of New York constitution 46 Fed. 209. above relied on. 128 NATURE OF CORPORATION AND DISTINCTIONS § 53 ration as that word is defined under the constitution of that State. In its discussion of the questions involved the court says: ''From a reading of said section 16, article 11 of the con- stitution of Idaho, it will be observed that the word 'corpora- tion' does not include, as therein defined, all joint-stock com- panies and associations, but only such as ' have or exercise any of the powers or privileges of corporations not possessed by individuals or partnerships.' The provisions of that section expressly affirm that there are joint-stock companies or asso- ciations that do not have or exercise any such powers or privi- leges, and to which the term ' corporation ' as used in section 16 does not apply. In said section 16 the term 'corporation' is there defined only with reference to its use in said section. The definition of the term ' corporation ' as given in said section would not apply to the Denver Townsite Company unless it possessed or exercised some of the powers or privileges not possessed by an individual or partnership. The constitutional definition of the term 'corporation' has been held by some courts as not being a general definition, but only a definition of that term as it is used in that article of the constitution. The Supreme Court of the United States in the case of Great Southern Fireproof Hotel Co. v. Jones,^^ referring to the defini- tion of the term 'corporation' as used in section 13, article 16 of the Pennsylvania state constitution, said 'the only effect of that clause is to place the joint-stock companies or associa- tions referred to under the restrictions imposed by that article upon corporations, but not to invest them with all the at- tributes of corporations.' In People v. Coleman,^^' it was held that this provision in the constitution of New York only applied to the term 'corporation' as used in the article re- ferred to in that constitution, requiring that there should be entered after the word 'corporation' at every place in that article the following: 'All associations and joint-stock com- panies having or exercising any of the powers or privileges of " 177 U. S. 449, 44 L. ed. 842, 20 N. Y. 279, 21 N. E. 96, 16 L. R. A. Sup. Ct. 693. 183. '" 5 N. Y. Supp. 394, aff'd in 133 9 129 § 53 DEFINITIONS, CLASSIFICATION, corporations not possessed by individuals or partnerships.' " ^^ In Kentucky it is held that a joint-stock association, created under the laws of the State of New York, is not a corporation under a statute requiring all corporations doing business in the State, except foreign insurance companies, to have an agent in the State to accept service, and also requiring a speci- fied statement to be filed with the Secretary of State; nor is it a corporation within such a statute, even though the word "corporation" in the constitution embraces joint-stock com- panies, and under a statute the words " corporation " or " com- pany" include joint-stock companies or associations.^' In a case in Massachusetts, which was one of trustee process, the defendant was described in the writ as a "joint-stock com- pany organized under the laws of Pennsylvania" and its de- cision rested upon the question whether an association formed under the laws of that State was a corporation or a partner- ship. It was determined that it was not a corporation and 'so could not be sued as such in Massachusetts, although the court, per Lathrop, J., said that if the question "were an open one in this commonwealth, it might well be held that such an association could be considered to have so many of the characteristics of a corporation that it might be treated as one." ^^ But it is also declared in the same State that: "The words 'joint-stock company,' as used in the statutes of this commonwealth, refer to companies organized under gen- eral laws as corporations. * * * xhe phrases 'joint-stock company' and 'corporations organized under general laws,' as used in all the statutes above cited, are convertible terms, and " Spotswood V. Morris, 12 Idaho, Gasoline Works, 168 Mass. 564, 566, 360, 374, 375, 85 Pac. 1094, per 38 L. R. A. 793, 47 N. E. 503. Sullivan, J. See § 52, herein, for list When association is partnership of constitutions. That joint-stock and its rolling stock taxable as per- company is a partnership, see Brad- sonal property, see Ricker v. Ameri- ford V. National Ben. Assn., 26 App. can Loan & Trust Co., 140 Mass. 346, D. C. 268. 5 N. E. 284. " Commonwealth v. Adams Ex- As to resemblance and difference press Co., 29 Ky. L. Rep. 1280, 97 between corporations and partner- s' W. 386. ships, see Pratt v. Bacon, 10 Pick. ?* Edwards v. Warren Linoline & (27 Mass.) 123, 125-127. 1.30 NATURE OF CORPORATION AND DISTINCTIONS § 53 refer to the same class of corporations, as distinguished from those estabhshed under special charters. * * * The words 'joint-stock company' have never been used as descriptive of a corporation created by special act of the legislature, and au- thorized to issue certificates of stock to its shareholders. They describe a partnership made up of many persons acting under articles of association, for the purpose of carrying on a particu- lar business, and having a capital stock, divided into shares transferable at the pleasure of the holder." ^^ Under a Minne- sota decision certain constitutional and statutory provisions are construed and it is held that an annuity, safe-deposit and trust company is not a corporation embracing banking privi- leges.^^ In a Missouri case it is decided that an express com- pany, as a joint-stock association, cannot maintain an action at law in the name of the association, nor in the name of its officers as trustees." In Ohio, however, express companies have been treated by the courts as corporations though or- ganized as joint-stock companies but not designated as such in the statute of incorporation.^* In Pennsylvania, a partner- ship association limited is a "person or corporation" within the meaning of those words in a statute authorizing an action of trespass for the recovery of damages for trespassing upon and mining coal from the lands of another. In this case the court, per Mercur, C. J., said: "Such an association is not technically a corporation. Yet it has many of the character- istics of one. * * * It jnay ^ot be improper to call such an association a quasi-corporation. If not a corporation it is a person. It is cither a natural or an artificial person. There is no intermediate place for it to occupy, no other name for it to bear." ^s '' Attorney General v. Mercantile 583. Examine Wilkinson v. Evans, Ins. Co., 121 Mass. 524-526, per 34 Pa. Super. Ct. 472. Endicott, J. '* State v. Adams Express Co., 2 ^° International Trust Co. v. Ameri- Ohio N. P. 98; State v. United States can Loan & Trust Co., 02 Minn. 501, Exj)rcss Co., 1 Ohio N. P. 259, 2 Ohio 65 N. W. 78. Leg. News, 257. " Weir V. Metropolitan St. Ry. " Oak Ridge Coal Co., Lim., v, Co., 126 Mo. App. 471, 103 N. W. Rogers, 108 Pa. 147. 131 § 54 DEFINITIONS, CLASSIFICATION, § 54. Same Subject — Conclusion.— -As a summary of what is set forth under the two last preceding sections, it appears that it is conceded in a number of decisions and in the opin- ions of the courts, that joint-stock associations or companies have many of the characteristics, attributes, faculties, and powers of corporations, and in an early case in New York, it is declared that such companies have all the attributes of a corporation except a common seal. So in Massachuselis, the court's statements to the point that such an association has so many of the characteristics of a corporation that it might well be treated as one, and also that the phrases "joint-stock company" and "corporations organized under general aws" are convertible terms, are important. It also appears that a foreign association, having like powers, etc., with corporations is a corporation; that voluntary associations may under cer- tain circumstances exercise certain corporate franchises; that the question is not one as to the name, but one as to essentials, faculties and powers possessed; that if a joint-stock company possesses the essential franchises of a corporation it is none the less a corporation by being called something else; that a distinction exists between these classes of organizations, even though joint-stock companies or associations possess many of the essential attributes of corporations and the former are not corporations; that in a Federal case and in New York they are not corporations taxable as such upon their capital stock; that in a Federal and a Massachusetts case they are so sub- ject to taxation; also so in a New Jersey case if they are in- vested with the essentials of a corporation; and also so in a New York case as to associations formed under the General Banking Law; that under certain Federal decisions they are within the Federal jurisdictional rule, respectively a corpora- tion, a citizen, and a limited partnership association is not a citizen unless it is a corporation within such rule; that under a New York case they are in respect to citizenship and such jurisdiction, governed by the same principles as govern cor- porations in determining the question of citizenship; that un- der another Federal case, a joint-stock company is a citizen 132 NATURE OF CORPORATION AND DISTINCTIONS § 54 in the same sense as a corporation, and may sue and be sued as a citizen in the name of its proper officer; that in Kentucky it is not a corporation so as to require an agent in the State for service of papers, and the same as to fihng a certificate; that under a Massachusetts case it is not a corporation sub- ject to suit; that under a Missouri case it cannot sue as a cor- poration or by officers as trustees; that in New Jersey it is a corporate entity subject to action in name of officers but not in a corporate name; that in the Federal and Ohio courts it has been considered a corporation, and in Pennsylvania a "person or corporation" and not a corporation in Minnesota; that in a number of jurisdictions such companies or associa- tions are considered as an association or partners, or as part- ners, also so under a Texas decision if they lack the element of succession or perpetuity, also so in respect to the absence of a common seal, although it is declared in a New York case that such companies have not the characteristics of a mere partnership, and in a Federal case that they are not partner- ships but corporations for the purposes of jurisdiction, and under a Pennsylvania decision it is said that it may not be improper to call them quasi-corporations. While, therefore, such joint-stock companies or associations have, under certain circumstances and for certain purposes, been considered as corporations, and although it is generally conceded that they possess the attributes, characteristics, faculties, and powers of corporations in a marked degree, nevertheless they are not technically corporations and the courts have more generally relied upon the technical distinctions that exist, and have held that they are not corporations and, as above stated, they have been held in a number of decisions to be partners. In so far, however, as the constitutional provisions, noted under a preceding section,^" affect or control the determination of the question under consideration, it would seem that such pro- visions are limited in their operation to those cases which satisfy or come within the express conditions therein. "» See § 52, herein. 133 § 55 DEFINITIONS, CLASSIFICATION, § 55. General Classification of Corporations — Public and Private. — In classifying corporations regard must be liad to their mode of creation, to the objects and purposes for which they are created, to the degree of power conferred upon them, to their legal status, and to the relation sustained by them to the government and the public. While corporations are divided generally into public and private,^^ other divisions have been made. Thus it is declared that: "The division of corporations into public and private will be more simple and easily understood as political and private." ^^ So, as to all their rights, powers and responsibilities, three classes of cor- porations are said to exist: (1) Political or municipal corpora- tions, such as counties, towns, cities and villages, which from their nature are subject to the unlimited control of the legis- lature; (2) those associations which are created for pubiic benefit, and to which the government delegates a portion of its sovereign power, to be exercised for public utility, such as turnpike, bridge, canal and railroad companies; and (3) strictly private corporations where the private interest of the cor- porator is the primary object or purpose of the association, such as banking, insurance, manufacturing and trading com- panies; and in this class may be included eleemosynary cor- porations, generally. ^^ Although a municipality or city is a '' Dartmouth College v. Wood- created either by the government of ward, 4 Wheat. (17 U. S.) 518, 4 L. the province or of the Republic, most ed. 629; Murphy v. Board of Chosen of which still subsist, may be con- Freeholders, 57 N. J. L. 245, 251, 31 sidered, in reference to their objects, Atl. 229. as belonging to one or other of three As to distinction between public distinct classes. The first kind are and private corporations, see §§ 60- such as relate merely to the public 62, herein. police; which by assuming upon ^^ State V. Hayward, 3 Rich. Law themselves some of the duties of the (S. C), 389, 408, per O'Neall, J. State, in a partial or detailed form, See § 60, herein. and having neither power nor prop- ^^ Swan V. Williams, 2 Mich. (1 erty for the purposes of personal ag- Gibbs) 427, 434, per Mattin, J. grandizement can be considered in no In McKim v. Odom, 3 Bland (Md.), other light than as the auxiliaries of 407, 417-419, decided in 1829, the government of the Republic; and Bland, Chancellor, says: "The multi- consequently, as the secondary and tude of bodies poUtic, that have been deputy trustees and servants of the 134 NATURE OF CORPORATION AND DISTINCTIONS § 55 public corporation,'''* still municipal corporations may possess certain characteristics or powers in the nature of a private people. The right to establish, alter or abolish such corporations, seems to be a principle evidently inherent in the very nature of the institutions themselves; since all mere munici- pal regulations must from the nature of things be subject to the absolute control of the government. These institutions being, in their nature, the auxiliaries of the government in the great business of municipal rule, cannot have the least preten- sion, to sustain their privileges, or their existence upon anything like a contract between them and the government; because there can be ro reciprocity of stipulation; and because their objects and duties are incompatible wth everything of the nature of such a. compact. The power of acquiring and holding prop- erty, although almost always given, is by no means a necessary incident to corporations of this class; they mav be established without any such capacity; as m the instance of the commissioners for emitting bills of credit The preservation of morals, and the administration of justice are the chief ends for which govern- ment has been instituted; and in- fancy, insanity, infirmity, and help- less poverty have an undoubted claim upon the protecting care of the Republic. Bodies politic of this class having these objects in view, are city corporations; le\y courts; county schools of the provincial or state government; public colleges; hospitals; trustees of the poor of the several counties, etc. The second class of corporations are such as have no concern whatever with the duties of the Republic; nor are in any manner boimd to perform any acts for its benefit; but whose only object is the personal emolument of its members. The corporators in such institutions may also, in some sense, be considered as trustees; but then, when in that character, they are the mere factors of individuals; and, therefore, their resignation or re- moval cannot divest or alter any of the rights of the individuals they represented. Each member of such an aggregation either was a pro- prietor at the commencement, or be- came so during the existence of its incorporation; and consequently, un- less he has aliened his right, must continue to be so after its dissolu- tion. A corporation not being, like a natural person, one of the elements of society, of which government is formed, can only be considered as a creature of the law. It is the law alone which gives to it a personality distinct from that of each of its mem- bers, and confers on it the right to act by its president, directors, or agents, in a manner analogous to that in which the government itself acts by its regularly constituted func- tionaries. This individuality of char- acter, and the right so to act is, then, nothing more than a portion of the power of the government with '* Philadelphia v. Fox, 64 Pa. 180, 181; Ogden City v. Rear Lake & River Water Works & Irrig. Co., 16 Utah, 440, 451, 4.')2, .52 Pac. 697, 41 L. R. A. 305, per Zane, C. J. (city de- clared to be a public corporation and the nature of such corporation and the extent of its powers considered). See §§ 60-62, herein. 135 § 55 DEFINITIONS, CLASSIFICATIONS, corporation.^^ A right may be private in respect that it be- longs to the municipality for the exclusive benefit of its own corporators, and yet public in respect that there can be no property in it by individual citizens, and the right itself exists only by public and sovereign grant and as a franchise.^^ which it has been invested. It is this power which is given by the creation of a body poUtic, and which, by its extinguishment, is resumed, and nothing more; the rights of prop- erty vested in its several members, in all other respects, remain unaffected by its dissolution. It is remarkable, that there is no instance of the cre- ation of any body politic of this de- scription under the provincial gov- ernment; but since the establishment of the Republic they have increased and multiplied to a very large and still rapidly growing family. The examples of this class of corporations are the insurance companies; the Free Mason societies; the banks; the manufacturing companies; the li- brary companies, etc. The third species of corporations partake, in many respects, of the nature of the two first classes ; and are such as have a concern with some of the extensive duties of the State, the trouble and charge of which are undertaken and defrayed by them, in consideration of a certain emolument allowed and secured to their members. In cases of this kind there is certainly many of the material features of a contract between the government and the cor- poration; there is manifestly a quid pro quo. But this contract, if it be so, is, and of necessity must be, like all others to which a government or State is a party, one of imperfect obligation as regards the State; and, as such, subject to be dealt with by the government of the State as the public good may require, on making a just compensation for any private property which may be taken for a public use. No bodies politic of this description were ever created under the provincial government; but since our independence, a great number of them have been called into ex- istence; such as canal companies; bridge companies; turnpike road companies, etc." See Tinsman v. Belvidere Delaware Rd. Co., 26 N. J. L. 148, 171, 69 Am. Dec. 195 (de- fining public corporations as created for political purposes, etc.). '^ Mount Pleasant v. Beckwith, 100 U. S. 514, 529, 25 L. ed. 699, per Clifford, J. " Mayor v. Park Commissioners, 44 Mich. 602, 605, 7 N. W. 180, per Cooley, J., who adds: "Indeed in re- spect to its waterworks, sewers and public parks, a city would be with- out power to make them accomplish the purposes for which they are 136 created, held and used, but for spe- cial franchises conferred upon them by the State for the purpose. The power to condemn lands, for exam- ple, is generally essential, but this is only given upon the ground that the end aimed at is public, though it is public only as concerns the particular city, borough, village, etc., to be benefited." NATURE OF CORPORATION AND DISTINCTIONS 56 § 56. General Classification of Corporations Continued — Quasi-Public Corporations — Quasi-Municipal Corporations. — Another division is what has been termed quasi-public corporations, which is a term generally used to designate a subdivision of public corporations, as in the case of certain political divisions or subordinate agencies, such as counties, towns or townships, school districts, etc.^^ These latter are. "United States: School District V. Insurance Co., 103 U. S. 707, 708, 26 L. ed., per Miller, J. (school dis- trict); Madden v. Lancaster County, 65 Fed. 188, 191, 27 U. S. App. 528 (counties). Compare Lincoln, County of, v. Luning, 133 U. S. 529, 33 L. ed. 766, 10 Sup. Ct. 363; Tippe- canoe County, Board of Commrs. of, V. Lucas, 93 U. S. 108, 23 L. ed. 882. Alabama: Chambers County v. Lee County, 55 Ala. 534 (counties are public or quasi-corporations). Arkansas: Compare Eagle v. Beard, 33 Ark. 497, 501 (counties are of a purely political character). California: See County of San Bernadino v. Southern Pac. Rd. Co., 137 Cal. 659, 662, 70 Pac. 782, Cal. Polit. Code, § 1575 (school district is public corporation which may sue and be sued in own name). Illinois: Bush v. Shipman, 4 Scam. (5 111.) 186 (incorporated township for common school purposes). Ex- amine Board of Education v. Greene- baum & Sons, 39 111. 609, 618; Trus- tees of Schools V. Tatman, 13 111. 27, 30 (school trustees). Indiana: See School Town of Montecello v. Kendall, 72 Ind. 91, 37 Am. Rep. 139 (school, town or township is purely public corpo- ration). Iowa: Soper v. Henry County, 26 Iowa, 264. Compare Curry v. Dis- trict Township of Sioux City, 62 Iowa, 102, 104, 105, 17 N. W. 191, per Rothrock, J. (school district is mimicipal corporation; may issue bonds; municipal corporation de- fined); Winspear v. District Town- ship of Holman, 37 Iowa, 542-544, per Day, J. (school district held a political or municipal corporation as to incurring indebtedness). Kentucky: Lawrence County v. Chatteroi Rd. Co., 81 Ky. 225. Massachusetts: Inhabitants of Fourth School Dist. in Rumford v. Wood, 13 Mass. 193 (towns; inhabi- tants of school districts); Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, 186, 187, 5 Am. Dec. 35. Minnesota: See Dowlan v. Sibley, County of, 36 Minn. 430, 432, 31 N. W. 517 (term "municipal corpora- tions" includes such quasi-corpora- tions as counties and tow-ns). Mississippi: Brabham v. Hinds County, Board of Supervisors of, 54 Miss. 363, 364, 28 Am. Rep. 352. Missouri: Clark v. Adair County, 79 Mo. 536, 537; Ray County v. Bentley, 49 Mo. 236. Nebraska: See Woods v. Colfax County, 10 Neb. 552, 554, 555, 7 N. W. 269. New Hampshire: W^ells v. Bur- bank, 17 N. II. 393 (township). North Carolina: White v. Chowan, Commrs. of, 90 N. C. 437, 438, 47 Am. Rep. 534. Ohio: Carder v. Fayette County, Board of Commrs. of, 16 Ohio St. 353, 367; Hopple v. Brown Town- 137 § 56 DEFINITIONS, CLASSIFICATIONS, however, sometimes called quasi-municipal corporations, as distinct from municipal corporations proper, such as cities and incorporated villages, and this distinction has been deemed important in a case in Minnesota which holds that no private action lies for the negligence of public governmental officers.^* ship, 13 Ohio St. 311, 324 (town- ships are often denominated quasi- corporations). Pennsylvania: See Chester, County of, v. Brower, 117 Pa. 647, 655, 12 Atl. 577, 2 Am. St. Rep. 713 (not strictly municipal corporation; is pubhc as distinguished from private; sometimes called a quasi-municipal corporation); Turnpike Co. v. Wal- lace, 8 Watts (Pa.), 316, 317, per Rogers, J. (the words "other corpo- rate bodies," in a statute as to cor- porations exempted from execution, etc., means boroughs, cities, etc.). Texas: Heigel v. Wichita County, 84 Tex. 392, 31 Am. St. Rep. 63, 19 S. W. 562. Washington: State ex rel. Sum- merfield v. Tyler, 14 Wash. 495, 499, 45 Pac. 31. Wisconsin: Norton v. Peck, 3 Wis. 714 (township). See Burhap V. City of Milwaukee, 21 Wis. 257, 260, per Downer, J. (counties, cities, villages, towns, etc., are public; pri- vate corporations distinguished). See § 61, herein. Counties, towns, school districts, etc., as involuntary quasi-corpora- tions, see Dillon's Munic. Corp. (4th. ed.) §§ 22-25. 38 Snider v. City of St. Paul, 51 Minn. 466, 471, 472, 18 L. R. A. 151, 53 N. W. 763. In this case the court, per Mitchell, J., said: "But respecting the principle upon which to rest this distinction, as to the na- ture of the duties to which it extends, the courts seem to be much per- plexed, and their decisions, often in 138 conflict with each other, leave the subject in some confusion. The ground for the distinction is not to be found in the mere fact that one is created by special charter, while the other is not, for both alike are subdivisions of the State, created for public, although local, govern- mental purposes. Nor is it to be found in the fact that one is given greater powers than the other, un- less the power is, not for govern- mental purposes, but to engage in some enterprise of a ^uas i-private nature, from which the municipality will derive a pecuniary benefit in its corporate or proprietary capacity; as, for example, power to build gas- works or waterworks, to furnish gas or water to be sold to consumers, or to build a toll bridge, from each of which the city would derive a revenue. In this class of cases it is generally held that corporations are liable for wrongful or negligent acts, because done in what is termed their 'pri- vate' or 'corporate' character, and not in their public capacity as gov- erning agencies, in the discharge of duties imposed for the public or gen- eral benefit. But it is also gener- ally held that they are not liable for negligence in the performance of a public, governmental duty imposed upon them for public benefit, and from which the municipality in its corporate or proprietary capacity derives no pecuniary benefit. The liabilities of cities for negligence in not keeping streets in repair would seem to be an exception to this gen- NATURE OF CORPORATION AND DISTINCTIONS § 57 The term " quasi-public corporation " has, however, also been used to denominate a certain class of private corporations of a quasi-public character in that they have conferred upon them certain governmental powers to enable them to carry out some enterprise of a public nature involving public interests, al- though the public may have no other concern therein than that it is or may be indirectly benefited.^^ The term has, however, been declared to be a misnomer where applied to private corporations such as a railroad.^" § 57. Other Divisions or Kinds of Corporations. — Corpo- rations have been also divided into aggregate and sole, ecclesi- astical and lay, eleemosynary and civil.''^ Corporations are also domestic or foreign .^^ eral rule * * * and, as already New York: Winters v. City of Du- suggested, as to what are public gov- luth, 82 Minn. 127, 135, 84 N. W. emmental duties and what are pri- 788; O'Donnell v. City of Syracuse, vate corporate duties the courts are 184 N. Y. 1, 76 N. E. 738, 112 Am. not in entire harmony, and their de- St. Rep. 558 (not liable in exercise of cisions do not furnish a definite line discretionary powers of public or of cleavage between the two." legislative character, but otherwise See also upon the points in above for nonperformance of corporate quotation as to liability for negli- duties not discretionary relating to gence and distinctions, the following its special interests), cases: North Carolina: Fisher v. New United States: Madden v. Lancas- Bern, 140 N. C. 506, 53 S. E. 342, ter County, G5 Fed. 188, 27 U. S. App. Ill Am. St. Rep. 857 (not liable for 528. breach of duty while acting as agency Illinois: Tollefson v. Ottawa, 228 of State, but liable for negligence in 111. 134, 81 N. E. 823, 11 L. R. A. operating electric light plant). (N. S). 990 (not liable for negligence See also note 30 Am. St. Rep. of servants in conducting hospital). 376; Dillon's Munic. Corp. (4th. ed.) Indiana: Aiken v. Columbus, 167 §§ 954, 980-984, 987; Thompson's Ind. 139, 78 N. E. 657, 12 L. R. A. Comm. on Law of Neg. §§ 5785 et seq. (N. S.) 416 (liable; case of maintain- ^* See Miners Ditch Co. v. Zellen- ing electric light plant for lighting bach, 37 Cal. 543, 577, per Sawyer, streets). C. J. See Chap. VI. Michigan: Alberts v. City of "Pierce v. CommonweaUh, 104 Muskegan, 146 Mich. 210, 109 N. W. Pa. 150, 155, 13 Am. & Eng. Rd. 262, 117 Am. St. Rep. 633 (when Cas. 74, 79. Compare Chap. VI. not liable for negligence of officers in *^ See Penobscot Boom Corp. v. using steam-roller on streets). Lamson, 4 Shep. (16 Me. 224)33 Am. " See Chap. VI, herein, as to otlier particular kinds of corporations. 139 § 58 DEFINITIONS, CLASSIFICATION, § 58. Classification as Affected by Constitutions and Statutes.— Another consideration of importance in this con- nection is that of the various constitutions and statutes, especially those which define and classify corporations either expressly or impliedly.''^ Although corporations are divided generally into those created by the State for purposes of gov- ernment and management of public affairs, which are public or quasi-public corporations, and those formed by voluntary agreement for private advantage, which are technically private corporations;'^ still, in statutes relating to the creation of corporations and to the grant of the ordinary franchises to them, the term "corporation" may properly be limited by construction to private corporations, and in any remedial statute the term "corporations" includes all classes of cor- Dec. 656; Day v. Stetson, 8 Greenl. and bounty of the founder in such (8 Me.) 365; Jansen v. Ostrander, 1 manner as he has directed, and in Cow. (N. Y.) 670; Thomas v. Dakin, this case are ranked hospitals for the 22 Wend. (N. Y.) 9; Angell & Ames relief of the poor and impotent per- on Corp. (9th ed.) §§26-30, 36-40; sons and colleges for the promotion of Anderson's Diet, of Law, title "Cor- learning and piety and the support poration." of persons engaged in literary pur- Eleemosynary corporations are suits. Dartmouth College v. Wood- such as are constituted for the per- ward, 4 Wheat. (17 U. S.) 518, 668, petual distribution of the free alms 672-676, 4 L. ed. 629. *^ See §§ 52-54, herein. The New tery corporation, (2) a library York General Corporation Law corporation, (3) a co-operative cor- (Laws 1890, ch. 563, § 2, 1 Cum- poration, (4) a board of trade cor- ming & Gilbert's Gen'l Laws & Gen'l poration, or (5) an agricultural and Stat. N. Y., 812, 813) provides: horticultural corporation. A trans- " Classification of Corporations. — A portation corporation shall be either, corporation shall be either, (1) a (1) a railroad corporation, or (2) municipal corporation; (2) a stock A transportation corporation other corporation; (3) a non-stock cor- than a railroad corporation. Amem- poration, or (4) a mixed corporation, bership corporation shall include be- A stock, corporation shall be either, nevolent orders and fire and sol- (1) a moneyed corporation; (2) a diers' monument corporations. A transportation corporation, or (3) a reference in a general law to a class business corporation. A non-stock of corporations described in accord- corporation shall be either, (1) a ance with this classification shall in- religious corporation, or (2) a mem- elude all corporations theretofore bership corporation. A mixed cor- formed belonging to such class." poration shall be either, (1) a ceme- " See §§ 55, 56, 61, 62, herein. 140 NATURE OF CORPORATION AND DISTINCTIONS § 59 porations, and it may, upon applying the legal rules of con- struction, be reasonably concluded that the term should be ex- tended to every character of corporations which can be created by legislative power, especially those which may have imposed upon them duties for the breach of which a liability in law arises.'*^ § 59. Classification as Affected by Public-Service Commis- sions Law, or Public Utilities Act/^ — Still another division of corporations, and one which is of constantly increasing importance, is that of public service or public utility cor- porations or companies. What are embraced within this de- nomination is Evidenced, in some degree. at least, by recent enactments of the Public Service Commissions Law in New York and the Public Utilities Act in Wisconsin. Under the former, the law applies to the public services described therein, and embraces common carriers, all railroad and street railroad corporations, by whatsoever power operated, above or below any street, etc., subways, tunnels, express companies, car, sleeping-car, freight and freight-line companies, gas and electric light, heat and power companies, doing business in the Statc^^ " Murphy v. Board of Chosen and that by reason of such neglect Freeholders, 57 N. J. L. 245, 251, 31 such boards become Hable in dam- All. 229, per Lippincott, J. The ages whenever the death shall be term "corporation" as contained in caused by such neglect. The act of the first section of the act entitled, 1848, to which reference is made, " An act to provide for the recovery called the Death Act, was intended of damages in cases where the death to give a right of action thereunder, of a person is caused by wrongful against persons or corporations upon act, neglect or default," approved whom a liabihty was imposed, if March 3, 1848 (Rev. p. 294), in- death had not ensued, and in the ab- cludes within its meaning the boards sence of any language in the act, of chosen freeholders of the respec- which either expressly or impliedly tive counties of this State, aa public excludes public corporations, it ia corporations, having by the act of upon principle clear that they are in- 1860 (Rev. p. 86, § 1) imposed upon eluded within the provisions of the them a liability for damages for per- statute, which being remedial, must, sonal injuries occasioned by their in its nature, be liberally and bene- neglect to erect, rebuild or repair ficially interpreted, bridges in such manner as not to be "See § 104, herein, dangerous to public travel over them, *' Public Service Commissions 141 § /)9 DEFINITIONS, CLASSIFICATION, Under the latter statute "^^ in 1907 were included telegraph companies, urban street railway companies, and all public utility companies, and under the act of 1905 ''^ creating the commission, all common carriers, including steam railroads, interurban electric railroads; bridge and terminal companies, express companies, car and sleeping-car, freight and freight- line companies were included. ^° Law, Laws N. Y., 1907, ch. 429. See §§ 52-54; and Chap. VI, herein. "The provisions of this article shall apply to the transportation of passengers, freight or property, from one point to another within the State of New York, and to any common carrier performing such service." Id., art. II, § 25. "This article shall apply to the manufacture and furnishing of gas for light, heat or power, and the gen- eration, furnishing and transmission of electricity for light, heat or power." Id., art. IV, § 65. The terms "Corporation," " Common Carrier," " Railroad," "Railroad Corporation," "Street Railroad," "Street Railroad Cor- poration," "Gas Corporation," "Electrical Corporation," "Trans- portation of Property or Freight" and "Municipahty" are defined in said act, art. 1, § 2. See §§ 52-54, and Chap. IV, herein. ■•' Public Utilities Act, Laws Wis., 1907, p. 449, ch. 499, § 1797m-l, subdv. 1. "The term 'public utility' as used in this act shall mean and embrace every corporation, company, indi- vidual, association of individuals, their lessees, trustees or receivers ap- pointed by any court whatsoever, and every town, village or city that now or hereafter may own, operate, manage or control any plant or equip- 142 ment or any part of a plant or equip- ment within the State, for the con- veyance of telephone messages or for the production, transmission, de- livery or furnishing of heat, light, water or power either directly or in- directly to or for the public." Pub- he Utihties Act, Laws Wis., 1907, p. 449, ch. 499, § 1797m-l, subdv. 1. " The term ' service ' is used in this act in its broadest and most inclusive sense." Public Utilities Law, Laws Wis., 1907, p. 449, ch. 499, § 1797m-l, subdv. 4. '^ " Railroad Act " of 1905. ^""The railroad commission of Wisconsin is vested with power and jurisdiction to supervise and regu- late every public utility in the State and to do all things necessary and convenient in the exercise of such power and jurisdiction." Public Utihties Law; Laws Wis., 1907, p. 449, ch. 499, § 1797m-2. The "Railroad Act" of 1905; Laws of Wis., 1905, p. 549, ch. 362, was en- titled "An act, to regulate railroads and other common carriers in this State, create a board of railroad com- missioners, fix their salaries, define their duties, prevent unjust discrim- inations, insure an adequate railway service, prescribe the mode of pro- cedure and the rules of evidence in relation thereto, prescribe penalties for violations, and making an ap- propriation therefor." NATURE OF CORPORATION AND DISTINCTIONS § 60 § 60. Corporation Considered as Civil or Political In- stitution — Distinction Between Incorporation and Corpora- tion — Distinction Between Public and Private Corporations. — It is declared in an Ohio case, decided in 1853, that: "A cor- poration is a civil institution. It is established by a law of the State from considerations of public policy. Its existence, its capacities and its powers are all conferred by law from some real or supposed public benefit to result from it. If this mere creature of the law thus instituted or established, be not a 'political institution of the State, it would be difficult to con- ceive under what other denomination it could be placed by any sensible distinction, which could be invented. Mr. Kyd, a reputable elementary author, has furnished the following comprehensive and descriptive definition: ' A corporation or body politic, or body incorporate, is a collection of many in- dividuals, united in one body, under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with a capacity of acting, in several respects, as an individual, particularly of taking and granting property, contracting obligations and of suing and being sued; of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence. '^^ In England a corporation is usually created by a charter granted by the king, but sometimes by an act of Parliament. But the Supreme Court of the United States say, in Bank of Augusta v. Earle,'^ 'In this country no franchise can be held, which is not de- rived from the law of the State.' In the latest edition of Angell & Ames on Corporations ^^ the authors say : ' The words incorporation and corporation are frequently confounded, par- ticularly in the old books. The distinction between them is, however, obvious; the one is a political institution, the other »« Kyd on Corp., 13. " Pages 3 and 4. " 13 Pet. (38 U. S.) 519, 10 L. ed. 274. 143 § 60 DEFINITIONS, CLASSIFICATION, only the act by which that institution is created. When a cor- poration is said to be a person it is understood to be so only in certain respects, and for certain purposes, for it is strictly a political institution.' ^^ It matters not that private or in- dividual interests may be invested in the corporation, or under authority of the charter, so far as this denomination of the institution is concerned. Individual interests or investments in private property exist under a great variety of the civil institutions of the State. Private institutions are those which are created or established by private individuals for their own private purposes. Public institutions are those which are created and exist by law or public authority. Some public benefits or rights may result from the institutions of private individuals or associations. So also some private or individual rights may arise from public institutions. The only sensible distinction between public and private institutions is to be found in the authority by which, and the purpose for which, they are created and exist. Because, therefore, a corporation may fall under the denomination of private corporations, in the artificial distinction between public and private corpora- tions, it is none the less a public or political institution. The distinction between public and private corporations is some- what arbitrary, and by no means determines whether the cor- poration is a public or private institution. If the stock in a banking, railroad, or insurance corporation, be exclusively owned by the government, the institution is denominated a public corporation; but if a private individual be allowed to own a single share of the stock, in common with the govern- ment, it is said that it becomes a private corporation. Elee- mosynary corporations, established for the purpose of public charity or for the advancement of religion, education or literature, upon donations or bequests made exclusively for ""A grant of incorporation is to 5 Sup. Ct. 208, 28 L. ed. 794, per bestow the character and properties Field, J., quoting from Providence of individuality on a collective and Bank v. Billings, 4 Pet. (29 U. S.) changing body of men." Kansas 514, 562, 7 L. ed. 939, per Marshall, Pac. Rd. Co. V. Atchison, Topeka & C. J.; adding: " This capacity is al- Santa Fe Rd. Co., 112 U. S. 414, 416, ways given to such a body." 144 NATURE OF CORPORATION AND DISTINCTIONS § 60 these great and beneficial public purposes without right to or expectation of dividends, repayment or other individual or private interest therein in future, are denominated private corporations. But an incorporated village in the use and expenditure of whose property, the citizens of the village have individual and private interests, and receive daily individual and private benefits, is denominated a public corporation. To say that an incorporated bank, authorized and created from considerations of public policy, and endowed by law with extraordinary power and sovereign attribute of creating in fact, the circulating medium of the country, and regulating the standard of value, is not a public institution of the State adopted for the purposes of internal government, because it falls under the artificial denomination of private corporations, would be arrogant absurdity. And it would be equally as absurd to treat a railroad corporation as a private institution, which is endowed with extensive powers, and the extraordinary sovereign authority of exercising the right of eminent domain by taking private property for public purposes. In truth and in reality, whatever arbitrary or fictitious distinctions may be created by mere verbiage, these corporations are, in fact, public institutions, created by public authority, from considerations of public policy, and endowed with highly important civil power for the advancement of public welfare. It would be unreasonable at least (to speak with the greatest moderation) to say, that because some private interests are invested in these corporations, that, therefore, they must be denominated private institutions, and for that reason placed beyond the reach of responsibility to the law-making power of the State by which they are created. * * * It is admitted upon all hands, that the legislature has control over those corporations which are denominated public corporations, either to modify or to repeal their charters, as will best subserve the public interests. But it is claimed that the charters of those corpora- tions, technically denominated private corporations, must be regarded as contracts, and therefore beyond the control and regulation of the law-making power of the State. And this, 10 145 § 61 DEFINITIONS, CLASSIFICATION, according to a late elementary work, is 'the main distinction between public and private corporations.' ^^ This distinction is not founded on sound reason, but is based upon a fiction and has its origin in that short-sighted timidity of capitalists, which distrusts the integrity and stability of the govern- ment. * * * The right of Parliament to amend or repeal the charters of private corporations, has for many years been undisputed. * * * Whether regard be had to the fran- chise of the corporation alone, or to the investments of private property under the authority of the charter, in either instance, there exists no good reason for the distinction above mentioned, between public and private corporations. * * * It is ap- parent from a thorough examination of the subject, that the distinction between public and private corporations, as ordi- narily recognized in the books, is a mere arbitrary distinction, without foundation in the nature, objects, incidents or prop- erty of this class of institutions." ^^ § 61. Public, Quasi-Public and Private Corporations De- fined and Distinguished.^^ — Public corporations are such as exist only and wholly for public political purposes, they are political corporations. Strictly speaking they are such only as are founded by the government for public purposes where the whole interest belongs also to the government. Therefore, if the foundation be private, though under charter of the gov- ernment, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder or the nature and objects of the institution.^* The " Citing Angell and Ames on Cor- from Ten Eyck v. Delaware & Rari- porations, §§ 27 and 28. tan Canal Co., 18 N. J. L. 200, 203, '* Bank of Toledo v. City of Toledo per Nevins, J. See Yarmouth v. (Toledo Bank v. Bond), 1 Ohio St. North Yarmouth, 34 Me. 411, 417, 622, 642-652, per Bartley, C. J. 56 Am. Dec. 666, per Howard, J. " See § 56, herein. "The distinction between public and '' Dartmouth College v. Wood- private corporations has reference ward, 4 Wheat. (17 U. S.) 518, 4 L. to their powers, and the purposes of ed. 629; Board of Directors for Lev- their creation. They are public, eeing Wabash River v. Houston, when created for public purposes 71 111. 318, 322, per Scott, J., quoting only, connected with the administra- 146 NATURE OF CORPORATION AND DISTINCTIONS § 61 fact of the public having an interest, direct or incidental, in the works or the property or the objects of a corporation, unless it has the whole interest, does not make it a public corporation. All corporations whether public or private are founded, in the contemplation of the law, upon the principle, that they will promote the interest or convenience of the public.^^ In a California case it is said that: " 'Public corpo- rations are generally esteemed such as exist for public pur- poses only, such as towns, cities, parishes and counties; and in many respects they are so, although they involve s-^-me private interest.' * * * The difference between private and public corporations" is "radical, the former being asso- ciations formed by voluntary agreement of their members," while the latter " 'are not voluntary associations at all, and there is no contractual relation between the corporators who compose them; they are merely governmental institutions created by law for the administration of the affairs of the community.' * * * To corporations proper, authors and courts have added a species called quasi-corporations, or cor- porations sub modo, i. e., associations and government institu- tions possessing only a portion of the attributes which dis- tinguish ordinary public or private corporations. * * * tion of the government, and where These grants are essentially con- the 'whole interests and franchises tracts which the legislature cannot are the exclusive property and do- impair or change without the consent main of the government itself.' of the corporation." Citing Coke Lit. Over these the legislature has § 413; Vin. Abr. Corp. A. 2; Phillips power, not limited by the constitu- v. Bury, 2 Term. Rep. 346; Dart- tion, to impose such modifications, mouth College v. Woodward, 4 extensions or restraints as the gen- Wheat. (17 U. S.) 518, 4 L. ed. 629; eral interests and public exigencies Allen v. McKeen, 1 Sumner, 276; may require without infringing People v. Morris, 13 Wend. (N. Y.) private rights. All corporations 325; Penobscot Boom Corp. v. Lam- invested with subordinate powers, son, 16 Me. 224; Story's Com. on for public purposes, fall within this Const. §§ 1385-1388; Angell & Ames class and are subject to legislative on Corp. §§9, 27, 28. control. All other corporations are " Ten Eyck v. Delaware & Raritan private. They exist by legislative Canal Co., 18 N. J. L. 200, 203, per grants conferring powers, rights and Nevins, J. privileges, for special purposes. 147 § 61 DEFINITIONS, CLASSIFICATION, These quasi-corporations may be either pubHc or private, and are to be distinguished upon the same principle as ordinary corporations." ^" Again, it is declared, in an early South Carolina decision, that whatever belongs to the pubHc, or peo- ple composing a government, or is instituted for the good government of any part of the people, is a public or political corporation; and that private corporations are such as are instituted for the benefit of certain persons as individuals, or for the purpose of applying private funds or enterprise and skill to the public good.^^ A statute may define and limit the meaning of the term " pubhc corporation" and it is asserted in such a case that before the enactment of such a statute a public corporation "was one which was created for public purposes and for those only; and all of whose franchises were exercised for public purposes and whose property belonged to the public; such as counties, towns, parishes and school dis- tricts. Individuals had no private interest in them, such as could be released or conveyed to another. Private corpora- tions were those which were created for the immediate benefit and advantage of individuals. Each stockholder had an in- terest in them which could be bought and sold, and which could be seized on execution. Canals, turnpike roads and bridges, banks and manufacturing companies were of this character," and in such case railroad companies would have been private corporations.^^ So constitutional provisions, ^^ under which discretionary power is vested in the legislature to tax property of corporations, do not apply, in the matter of a right to repeal a prior legislative exemption, to corpora- tions which are of a quasi-public nature and necessary for «» Estate of Royer, Matter of, 123 (S. C), 389, 408, per O'Neall, J., cit- Cal. 614, 620, 44 L. R. A. 364, 56 Pac. ing Phillips v. Bury, 2 Term. R. 352, 461, per Chipman, C. Citing or quot- per Lord Holt; 2 Kent's Comm. ing Dartmouth College v. Woodward, 222, 223. 4 Wheat. (17 U. S.) 518, 563, 4 L. ed. "^ Dearborn v. Boston, Concord & 629, per Story, J.; Morawetz on Corp. Montreal Rd., 24 N. H. (4 Fost.) 179, (2d ed.) §§ 3, 6; 2 Kent's Comm. 274. 189, 190, per Eastman, J. See § 56, See § 56, herein. herein. «> State V. Heyward, 3 Rich. Law «' Mo, Const., art. 12, §§ 13, 20. 148 NATURE OF CORPORATION AND DISTINCTIONS § 62 public convenience as arteries of commerce, the development of the State's resources, and the increase in valuation of other properties, as in the case of railroads, but only apply to such corporations as are created solely for private gain and are those in which the public has no special interest, right or privilege. ^^ § 62. Same Subject Continued.^^ — A corporation is not pubhc merely because its object is of a public character, and this applies to a private corporation authorized to construct works of public improvement by private capital for private emolument .^^ So where a corporation is a private one con- ducted for private gain, the mere fact that it is subject to visitation and inspection by public officials does not make it a public institution." And corporations in which the stock is owned by individuals are private even though the use may be public as in the case of banks, insurance companies, and cor- porations for building bridges, canals and railroads. ^^ AVhat is said by the court in a Minnesota case is important here. It is there stated that: "The State may and must commit the discharge of its sovereign political functions to agencies se- lected by it for that purpose. Such agencies, while engaged exclusively in the discharge of such public duties, do not act in any private capacity, but stand in the place of the State and exercise its political authority. Therefore, when the State creates public corporations solely for governmental purposes, such corporations, while engaged in the discharge of the duties imposed upon them for the sole benefit of the public, and from the performance of which they derive no compensation or benefit in their corporate capacity, are clothed with the im- munities and privileges of the State; and no private action, in " Yazoo & Mississippi Valley Rd. ware Rd. Co., 26 N. J. L. 148, 69 Am. Co. V. Board of Levee Commissioners Dec. 595. (C. C), 37 Fed. 24, case aff'd 132 U. " Wisconsin Keeley Institute Co. S. 190, 33 L. ed, 308, 10 Sup. Ct. v. Milwaukee County, 95 Wis. 153, 74. 158, 70 N. W. 68, 36 L. R. A. 55. ** See § 56, herein. •' Burhop v. City of Milwaukee, 21 '• Tinsman v. Belvidere & Dela- Wis. 257, 260, per Downer, J. 149 § 62 DEFINITIONS, CLASSIFICATION, the absence of an express statute to that effect, can be main- tained against them for negligence in the discharge of such duties. The hability of cities and other municipal corpora- tions created by special charters for negligence in the care of their streets is an illogical exception to this rule, but the rule itself is too well settled, by the almost unanimous agreement of all of the authorities, to be now questioned or discussed .^^ The rule, however, has no application to private corporations, — that is, to those which are organized by the voluntary act and agreement of their members for their own benefit, — although the creation of such corporations directly promotes the public interest and welfare. It is also subject to the qualification that public or quasi-public corporations are not exempt from lia- bility, to which other corporations are subject, for negligence in managing or dealing with property or rights voluntarily held by them for their own profit and advantage, although in- uring ultimately for the benefit of the public."™ Under another definition, however, a public corporation is one which cannot carry out the purposes of its organization without chartered rights from the commonwealth. Railroads, canals and gas companies must have the right of eminent domain in order to perform their functions. A private corporation which needs no chartered rights in order to carry on its business, stands in no different position from an individual.'^ «» Citing Snider v. City of St. Paul, Pa. 374, 379, 380, where it is said as 51 Minn. 466, 53 N. W. 763. to the power of local taxation that: '" Lane v. Minnesota State Agri- " It may be somewhat difficult to de- cultural Soc, 62 Minn. 175, 176, 177, fine what is a public work or a public 29 L. R. A. 208, 64 N. W. 382, per corporation in this sense, but it is Start, C. J., citing Dillon, Mun. Corp. clear that one of the characteristics §§ 980-984; Oliver v. Worcester, 102 is that it has the right of eminent do- Mass. 489; Mersey Docks v. Gibbs, 11 main, that it has franchises which H. L. Cas. 686; Glavin v. Rhode Is- justifies the legislature in defining or land Hospital, 12 R. I. 411; Moulton considering it pubhc. A mere private V. Scarborough, 71 Me. 267; Hannon corporation needs no franchise from V. St. Louis Co., 62 Mo. 313. the State in order to carry on its busi- '' Allegheny County v. McKees- ness. Men may manufacture shoes port Diamond Market, 123 Pa. 164, without corporate power but they 169, 16 Atl. 619, per Hand, J. See cannot occupy streets or property of Pittsburgh, Appeal of City of, 123 private individuals without corporate 150 NATURE OF CORPORATION AND DISTINCTIONS § 63 § 63. Duties, Obligations and Powers as Affecting Classi- fication or Nature of Corporations — Public Service Corpo- rations. — There is a certain class of corporations which are private in so far as their grants relate to their private inter- ests but which also sustain, as a distinct class, a certain rela- tion to the public as to their duties, obligations and powers. Such corporations, even though technically private as dis- tinguished from those which are technically public in their nature, are to some extent governmental agencies of the State, they are public agents or servants, or quasi-public servants; the duties which they perform are public in a certain degree or quasi-public ; their special privileges or franchises are granted to enable them to carry out the objects of their creation, and the consideration therefor is the performance of a public service; their grant presupposes a benefit to the public, and has in view some general enterprise of public utility, involving public interests or evoked by public necessity; they are created or established in these respects for the benefit of the people and to subserve public ends, and the public has a direct and positive interest in their business, such that its rights will be protected by the courts. These corporations must also serve all alike and cannot discriminate; they may, when authorized, exercise the right of eminent domain; they are also subject to reasonable and just governmental control and regulation; and they cannot avoid the performance of the duties which they owe to the public by neglect or refusal, or by agreements with other persons or corporations, nor can they evade such obligations by the transfer of all their rights and powers, nor disable themselves by any contract which makes public ac- commodation or convenience subservient to their private in- terests, nor can they arbitrarily abandon their duties or discon- tinue their service to the public. It is also true, however,'^ that all corporations rest, in the contemplation of the law, upon the principle that the interest or convenience of the power or warrant from the State, properly called public works," per They need a delegation of sovereignty Hand, J. and in such cases their works may be " See §§ 01, 62, herein. 151 § 63 DEFINITIONS, CLASSIFICATION, public will be benefited, and that a corporation is not neces- sarily public in its nature because its object is of a public character; that a corporation may also be created to carry out some work of great public utility and still be one that is strictly private and not a public service corporation in any sense. Again, the power resides in the government to grant to individuals, acting as agents of the State and under legisla- tive control, the right to exercise the power of eminent do- main as well as to corporations, although such right cannot be exercised for a purely private enterprise or for private uses 7^ " " It has been repeatedly held that obligation to maintain its roads as a railroad, telegraph, and telephone thoroughfare for the use of the pub- companies are quasi-public servants, lie' In fact, it may be laid down as The nature of their business makes a general rule that whenever the aid them so, and they are, therefore, of the government is granted to a pri- bound to serve the public on reason- vate company in the form of a mo- able terms, with impartiality. They nopoly, or a donation of public prop- are almost always endowed with the erty or funds, or the delegation of right to appropriate private prop- the power of eminent domain, the erty, presumptively upon the theory grant is subject to an implied condi- that such corporations are quasi-pub- tion that the company shall assume lie servants, as their business is one an obligation to fulfill the public pur- in which the public has a direct and pose on account of which the grant positive interest. * * * It may was made." Corrigan v. Coney Is- be said that it has long been the pol- land Jockey Club, 22 N. Y. Supp. 394, icy of our States to encourage the 396, 397, 2 Misc. 512, 51 N. Y. St. R. formation of private companies for 592, per Dugro, J. the construction and maintenance of " Turnpikes, bridges, ferries, and highways, railroads, canals, bridges, canals, although made by individuals telegraph lines, waterworks or gas- under public grants, or by compa- works, by granting valuable fran- nies, are regarded as ■publici juris. chises or public bounties, or both, in The right to exact tolls or charge their aid, and these grants have been freights is granted for a service to the of funds or property, the right to re- public. The owners may be private ceive municipal aid, subscription;-, for companies, but they are compellable shares, a delegation of the power of to permit the public to use their eminent domain, an exemption from works in the manner in which such taxation or a monopoly, and in each works can be used." Olcott v. Su- instance the acceptance of the grant pervisors, 16 Wall. (83 U. S.) 678, of the public aid implies an assump- 695, 696, 22 L. ed. 382, per Strong, J. tion by the grantee of an obligation "Turnpikes are public highways infavorof the public; for instance, on notwithstanding the exaction of toll the part of a railroad company 'an for passing on them. Railroads are 152 NATURE OF CORPORATION AND DISTINCTIONS § 64 § 64. To What Extent Corporations Are " Persons " — Generally. — Although a corporation is not a natural person public highways * * * yet no one can travel on them without paying toll. Railroads, turnpikes, bridges, ferries are all things of public concern and the right to erect them is a pub- lic right. If it be conceded to a pri- vate individual or corporation, it is conceded as a public franchise; and the right to take toll is granted as a compensation for erecting the work and relieving the public treasury from the burden thereof. Those who have such franchises are agents of the pubhc. They have, it is true, a pri- vate interest in the tolls; but the works are public, and subject to pub- lic regulation, and the entire public has the right to use them. * * * All bridges intended and used as thoroughfares are public highways whether subject to toll or not." County Commissioners v. Chandler, 98 U. S. 205, 208, 24 L. ed. 625, per Bradley, J. Exclusive grants for ferries, bridges and turnpikes are grants of franchises of a public character appertaining to the government. "Their use usually requires the e.xer- cise of the right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges and ferries for the con- venience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon par- ticular individuals or corporations, it may of course stipulate for such ex- clusive privileges connected with the franchise as it may deem proper, without encroachment upon the free- dom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the gov- ernment, is a very different thing from a grant, with exclusive privi- leges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual." Slaughter-House Cases, 16 Wall. (83 T^ S.) 36, 88, 21 L. ed. 394, per Field, J., in dissenti; r opinion. The objects for which a corpora- tion is created are universally such as the government wishes to promote. They are deemed beneficial to the country and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant. Dartmouth College v. Woodward, 4 Wheat. (17 U. S.) 518, 4 L. ed. 629. " Other companies, such as gas and electric light companies, turnpike roads and canal companies, harbors and ferry companies are similar to railways in this, that they receive their franchise as such upon the con- sideration that the public conven- ience will be served thereby." White on Canadian Company Law (ed. 1901), p. 368, § 21. In this country, franchises spring from contracts between the sovereign power and the citizen, made upon a valuable consideration, for purposes of public benefit as well as individual advantage. State v. Real Estate Bank, 5 Pike (5 Ark.), 595, 41 Am. Dec. 509. "All corporations, whether public or private, are, in contemplation of law, founded upon the principle that they will promote the interest or con- venience of the pubhc." Board of 153 § 64 DEFINITIONS, CLASSIFICATION, but is a creature of the State possessing no powers except those conferred by the State/"* still, in a certain sense, the word Directors for Leveeing Wabash River V. Houston, 71 111. 318, 322, per Scott, J., quoting Ten Eyck v. Delaware & Raritan Canal Co., 18 N. J. L. 200, 203, per Nevins, J. As to mutual obligations from franchise and obligations to serve public, see Kent's Comm. (14th ed.) bottom p. 724, *p. 458. See also Chap. VI, herein. As to discrimination see the follow- ing cases: United States: Piatt v. Lecocq, 150 Fed, 391; Little Rock & Memphis Rd. Co, v. St. Louis Iron Mountain & Southern Ry. Co., 59 Fed. 400, 402. Florida: State v. Atlantic Coast Line R. Co. (Fla.,, 1906), 40 So. 875. Kansas: Larrabee Flour Mills Co. V, Wisconsin Pac. Ry. Co., 74 Kan. 808, 88 Pac. 72. Minnesota: Farwell Farmers' Warehouse Assoc, v. Minneapolis St. Paul & Sault Ste Marie Ry. Co., 55 Minn. 8, 12, 56 N. W. 248. New York: Rhinehart v. Redfield, 179 N. Y. 569, 72 N. E. 1150, aff'g 87 N. Y. Supp. 789, 93 App. Div. 410. North Carolina: Freight Discrim- ination Cases (Hines v. Wilmington & Wedon Rd. Co.), 95 N. C. 434, 446, 59 Am. Rep. 250. Pennsylvania: Wright v. Balti- more & Ohio Rd. Co., 32 Pa. Super. Ct. 5; Hagan v. Fayette Gas Fuel Co., 21 Pa. Co. Ct. 503, 29 Pitts. L. J. (N. S.) 229. Tennessee : Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060; Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S. W. 1058. Texas: Houston & Texas Central Ry. Co. v. Rust, 58 Tex. 98, 107; Gulf, Colorado & Santa Fe Ry. Co. V, Lone Star Salt Co., 26 Tex. Civ, App. 531, 63 S. W. 1025. The corporation or person who exer- cises the right of eminent domain as- sumes certain obligations to the pub- lic, and the grant of that right carries with it the right of public supervision and reasonable control. Pottlach Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426. The power of eminent domain can only be granted for public use, and when it is conferred by law, as in the case of irrigation companies, upon a corporation, its status as quasi-pub- lic is fixed irrespective of the question whether it exercises such power or not. "It can no more escape its duty to the public, because it has not exercised such power, than can a railway company who has pur- chased its right of way instead of exercising its power to acquire it by condemnation proceedings." Colo- rado Canal Co. v. McFarland & Southwell (Tex. Civ. App., 1906), 94 S. W. 400, 404, per Neill, J. The incorporation of a railroad company by a State, the granting to it of special privileges to carry out the object of its incorporation, par- ticularly the authority to exercise the State's right of eminent domain to appropriate property to its uses, and the obligation, assumed by the ac- ceptance of the charter, to transport all persons and merchandise upon like conditions and for reasonable rates, affect the property and employment with a public use, and thus subject the business of the company to a leg- islative control which may extend to '* Cassatt v. Mitchell Coal & Coke Co., 150 Fed, 32. 154 NATURE OF CORPORATIOX AND DISTINCTIONS § 64 "person" applies to bodies politic and corporate/^ So it is declared in a case in the United States Supreme Court that, the prevention of extortion by un- reasonable charges, and favoritism by discriminations. Georgia Rd. & Bkg. Co. V. Smith, 128 U. S. 174, 32 L. ed. 377, 9 Sup. Ct. 47. Corporations subject to reasonable and just regulations and rules, see the following c; -^s: United States: Atlantic Coast Line Rd. Co. v. North Carolina Cor- poration Commission, 206 U. S. 1, 19, 51 L. ed. 933, 27 Sup. Ct. 585, citing numerous cases; Chicago, Burlington & Quincy Rd. Co. v. Drainage Commrs., 200 U. S. 561, 584, 50 L. ed. 596, 26 Sup. Ct. 341, per Harlan, J. Florida: State v. Atlantic Coast Line Rd. Co. (Fla.), 41 So. 705; State V. Atlantic Coast Line Rd. Co. (Fla.), 40 So. 875. Idaho: Pottlach Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426. Illinois: Danville v. Danville Water Co., 180 111. 235, 54 N. E. 224. Indiana: Central Union Teleph. Co. v. Bradbury, 106 Ind. 1, 9, 5 N. E. 721; Chicago I. & L. Ry. Co. v. Railroad Commission (Ind. App.), 78 N. E. 338. Iowa: McGuire v. Chicago, Bur- lington & Quincy R. Co. (Iowa), 108 N. W. 902. Montana: State v. City of Helena (Mont.), 85 Pac. 744. New York: Beekman v. Saratoga & Schenectady Rd. Co., 3 Paige Ch. (N. Y.) 45. Wisconsin: Madison, City of, v. Madison Gas & Elect. Co., 129 Wis. 249, 108 N. W. 65. Eminent domain — Delegation to and exercise of right by individuals, see Moran v. Ross, 79 Cal. 159; Ortiz v. Hanson (Colo.), 83 Pac. 964, under Mills Ann. Stat., § 2257; Downing v. More, 12 Colo. 316, 2 Denver Leg. News, 114, 20 Pac. 766. Eminent domain — Private enter- prises — Private use, see the following cases: United States: Miocene Ditch Co. v. Jacobson, 146 Fed. 680, 77 C. C. A. 106. California: See Madera County v. Raymond Granite Co., 139 Cal. 128, 72 Pac. 915, 989. Georgia: Chestatee Pyrites Co. v. Cavenders Creek Gold Min. Co., 119 Ga. 354, 46 S. E. 422. Iowa: Fleming v. Hull, 73 Iowa, 598, 35 N. W. 673. Minnesota: Minnesota Canal & Power Co. v. Kooching Co., 97 Minn. 429, 107 N. W. 405. New York: East Canada Creek Electric Light & Power Co., In re, 99 N. Y. Supp. 109, 49 Misc. 565. North Carolina: Leigh v. Garys- burg Mfg. Co., 132 N. C. 167, 43 S. E. 632; Stratford v. Greensboro, 124 N. C. 127, 32 S. E. 394. Oregon: Dalles Lumbering Co. v. Urquhart, 16 Oreg. 67, 19 Pac. 78. Pennsylvania: Peifly v. Mountain Water Supply Co., 214 Pa. 340, 63 Atl. 751; Bordentown Banking Co. v. Sparhawk, 214 Pa. 334, 63 Atl. 752. Texas: Kyle v. Texas & N. O. R. Co. (Tex.), 4 L. R. A. 275. Washington: State v. Superior Court of Thurston County (Wash.), 85 Pac. 666; Healy Lumber Co. v. Morris, 33 Wash. 490, 63 L. R. A. 820, 74 Pac. 681. West Virginia: Pittsburg, Wheel- " Erwin v. State, Wolley, 150 Ind. 332, 48 N. E. 249. 155 § 64 DEFINITIONS, CLASSIFICATION, "It is indeed a mere artificial being, invisible and intangible; yet it is a person, for certain purposes, in contemplation of law, and has been recognized as such by the decisions of this court." 7« ing & Ky. Rd. Co. v. Benwood Iron Works, 31 W. Va. 710, 2 L. R. A. 680, 8 S. E. 453, 5 R. R. & Corp. L. J. 324. As to right of corporations to exer- cise power of eminent domain, see the following cases: United States: Postal Teleg. Cable Co. V. Southern R. Co., 89 Fed. 190. Georgia: Chestatee Pyrites Co. v. Cavenders Creek Gold Min. Co., 119 Ga. 354, 46 S. E. 422; Gardner v. Georgia R. & Bkg. Co., 117 Ga. 522, 43 S. E. 863. Kansas : Dillon v. Kansas City, Ft. S. & M. R. Co., 67 Kan. 687, 74 Pac. 251. Illinois: Aurora & G. R. Co. v. Harvey, 178 111. 477, 53 N. E. 331. Louisiana: Lawrence v. Morgan's Louisiana & Tex. R. & S. Co., 39 La. Ann. 427, 2 So. 69. Montana: State v. District Court of Tenth Judicial Dist. of Meagher County, 34 Mont. 535, 88 Pac. 44. Nebraska: State, Burlington & M. R. R. Co. V. Scott, 22 Neb. 628, 36 N. W. 121. Ohio: Ohio State v. Toledo Ry. & Terminal Co., 28 Ohio Cir. Ct. R. 321. Pennsylvania: See Philadelphia M. & S. St. Ry. Co., In re, 203 Pa. 354, 53 Atl. 191. New York: East Canada Creek Elect. Light & Power Co., In re, 99 N. Y. S. Supp. 109, 49 Misc. 565. Virginia: Zircle v. Southern Ry. Co. (Va.), 45 S. E. 802. Washington: State v. Centralia- Chehalis Elect. Ry. & Power Co., 42 Wash. 632, 85 Pac. 344. 156 Corporation cannot disable itself from performance of its public duties or neglect or refuse to perform them, or arbitrarily discontinue operations as in case of a railroad or street railway or other quasi-public com- pany. United States: Central Transp. Co. V. Pullman Palace Car Co., 139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct. 478, 45 Am. & Eng. R. Cas. 607, 9 Ry. & Corp. L. J. 342, 43 Alb. L. J. 328; Gibbs V. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 397, 32 L. ed. 788, 9 Sup. Ct. 389; Thomas v. West Jersey R. Co., 101 U. S. 71, 83, 84, per Miller, J.; M'Cutcheon v. Merx Capsule Co., 71 Fed. 787, 793, per Lurton, C. J. Connecticut: Driscoll v. Norwich & Worcester Rd. Co., 65 Conn. 230, 32 Atl. 354. Illinois: Chicago Gas Light & Coke Co. V. People's Gas Light & Coke Co., 121 111. 530, 13 N. E. 169, per Ma- gruder, J. ; Balsley v. St. Louis, Alton & Terre Haute Rd. Co., 119 III. 68, 72,73, 8 N. E. 859; Peoria & Rock Island Ry. Co. v. Coal Valley Mining Co., 68 111. 489. Nebraska: Chollette v. Omaha & Republican Valley Rd. Co., 26 Neb. 159, 4 L. R. A. 135, 41 N. W. 1106. New Jersey: State, Bridgeton v. Bridgeton & M. Traction Co., 62 N. J. L. 592, 43 Atl. 715, 45 L. R. A. 837. '8 Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 588, 10 L. ed. 274. When corporations are and are not persons, see the following cases: NATURE OF CORPORATION AND DISTINCTIONS § 65 § 65. To "What Extent Corporations Are " Persons " Under Statutes. — If it is within the intent and meaning of a statute that the word "person" should include corporations it will undoubtedly be so held, thus the term "any person or persons" in a crimes statute relating to the destruction of a vessel extends to corporations and bodi'es politic as well as to natural persons 7^ And unless excepted they are also included in the word "persons" in statutes as to grants and convey- ances of property 7* If a statute relating to priority of pay- ment by any person insolvent specially designates the class intended, it does not include a trading corporation not so specified 7*^ So corporations are to be deemed and considered persons within the act of Congress, 1797, giving a priority of debts to the United States.**^ They are also persons under California: Douglas v. Pacific Mail Pennsylvania: Lehigh Bridge v. S. S. Co., 4 Cal. 304. Lehigh Coal & Nav. Co., 4 Rawle Connecticut: Emerson v. Good- (Pa.), 8. win, 9 Conn. 422. Virginia: Miller v. Commonwealth, Georgia: London v. Coleman, 59 27 Gratt. (Va.) 110; Western Union Ga. 653; Southwestern R. Co. v. Teleg. Co. v. Richmond, 26 Gratt. Paulk, 24 Ga. 356. (Va.) 1. Indiana: White v. State, 69 Ind. Wisconsin: Fisher v. Horicon Iron 273. & Mfg. Co., 10 Wis. 351. Kentucky: Louisville, City of, v. " United States v. Amedy, 11 Commonwealth, 1 Duer (62 Ky.), Wheat. (24 U. S.) 392, 6 L. ed. 502, 295, 85 Am. Dec. 624. See cases in note to § 64, herein. Louisiana: Factors & Traders Ins. "The word 'person' when used in Co. V. New Harbor Protection Co., 37 this act, includes an individual and a La. Ann. 233; Jeffries v. Belleville firm or copartnership." Public Ser- Iron Works Co., 15 La. Ann. 19. vice Commissions Law of N. Y., Laws Massachusetts: Proprietors of 1907, chap. 429, art. 1, § 2. Jeffries Neck Pasture v. Ipswich, Commonwealth is not a person under 153 Mass. 42, 26 N. E. 239. a covenant by grantor to defend title Nebraska: Chapman v. Brewer, 43 in deed to shore and tideland bot- Neb. 890. torn. Feurer v. Stewart, 83 Fed. New York: La Farge v. Exchange 793. Tns. Co., 22 N. Y. 352; State v. "State v. Nashville University, 4 Woram, 6 Hill (N. Y.), 33. Humph. (Tenn.) 157. Ohio: Norris v. State, 25 Ohio St. '' Commonwealth v. Phoenix Bank, 217, 18 Am. Rep. 291; State v. Cin- 11 Met. 129. cinnati Fertilizer Co., 24 Ohio St. "" Beaston v. Farmers' Bank, 12 611. Pet. (37 U. S.) 102, 9 L. ed. 1017. 157 §§ 66, 67 DEFINITIONS, CLASSIFICATION, taxation statutes;*^ and are also within a law providing for attachments.*^ § 66. Corporations as " Persons " Under Constitution of United States. — Again, corporations are persons within the meaning of the clauses in the Fourteenth Amendment to the Constitution of the United States concerning the deprivation of property and concerning the equal protection of the laws.*' It is held, however, within this amendment of the Constitu- tion, that "due process of law" protects natural and not arti- ficial persons in their ''liberty." *^ § 67. Corporations as " Citizens " for Federal Jurisdic- " People V. Utica Ins. Co., 15 Johns. (N. Y.) 382, 8 Am. Dec. 243; International Life Ins. Co. v. Commr. of Taxes, 28 Barb. (N. Y.) 318. Is an individual under a tax law. Otis Co. V. Ware, 8 Gray (Mass.), 509. " Planters' & M. Bank v. Andrews, 8 Port. (Ala.) 404; Mineral Point R. Co. V. Keep, 22 111. 9. *3 United States: Smyth v. Eames, 169 U. S. 466, 522, 42 L. ed. 819, 18 Sup. Ct. 418; Covington & Lex. Turn- pike R. Co. V. Sandford, 164 U. S. 578, 592, 41 L. ed. 560, 17 Sup. Ct. 198; Charlotte, Columbia & Augusta Rd. Co. V. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. ed. 1051, 48 Am. & Eng. R. Cas. 595, aff'g s. c, 27 S. C. 385, 4 S. E. 49; Minneapolis & St. L. R. Co. V. Beckwith, 129 U. S. 26, 32 L. ed. 585, 17 Wash. L. Rep. 34, 39 Alb. L. J. 166, 5 R. R. & Corp. L. J. 315, 9 Sup. Ct. 207; Missouri Pac. R. Co. V. Mackey, 127 U. S. 205, 32 L. ed. 107; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 32 L. ed. 109; Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. ed. 65; Northwestern Fertilizer Co. v. Hyde Park, Fed. Cas. No. 10,336. 158 California: Johnson v. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304. Iowa: McGuire v. Chicago, Bur- lington & Quincy R. Co. (Iowa), 108 N. W. 902. Maine: Hammond Beef & P. Co. V. Best, 91 Me. 431, 40 Atl. 338. Ohio : Wheeling Bridge & Terminal Ry. Co. V. Gilmore, 8 Ohio Cir. Ct. R. 655, 658, 1 Ohio Dec. 390. Tennessee: Knoxville & O. R. Co. V. Harris, 99 Tenn. 684, 43 S. W. 115. See Lake Shore & Mich. Southern Ry. v. Smith, 173 U. S. 684, 690, 43 L. ed. 858, 19 Sup. Ct. 565; Blake v. McClung, 172 U. S. 239, 259, 19 Sup. Ct. 165, 43 L. ed. 432; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 154, 17 Sup. Ct. 255, 41 L. ed. 666. Compare State v. Brown & Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. 49; Central Pac. R. Co. v. State Board of Equalization, 60 Cal. 35. ** Western Turf Assn. v. Green- burg, 204 U. S. 359, 51 L. ed. 520, 27 Sup. Ct. 384, aff'g 148 Cal. 126, 82 Pac. 684. See Pittsburgh, Cincin- nati, Chicago & St. Louis R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033. NATURE OF CORPORATION AND DISTINCTIONS § 67 tional Purposes — Not " Citizens " Under Constitution of United States. — Corporations are for purposes of jurisdiction in the Federal courts conclusively presumed to be citizens of the State in which created .^^ And a national bank is held, in an early case in Nevada, to be for jurisdictional purposes, a citizen of the State wherein it is located .^^ Corporations are '' Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 224, 41 L. ed. 965, 17 Sup. Ct. 604, per Brewer, J. See St. Louis, City of, v. Ferry Co., 11 Wall. (78 U. S.) 423, 20 L. ed. 192; §§ 52, 53, herein. «» Davis V. Cooke, 9 Nev. 134. The court, per Belknap, J., said: "It is urged by respondent in justification of the ruling of the District Court upon defendant's motion for removal that as the First National Bank of Nevada was incorporated under an act of the Congress of the United States it is a citizen of the United States, and cannot be treated as a citizen of this State for jurisdictional purposes. This question was thor- oughly investigated by Judge Blatch- ford in the case of the Manufacturers' National Bank v. Banck, 2 Abb. (U. S.) 232. The various provisions, in respect to the 'location ' of banking associations incorporated under the act of Congress of June 3, 1864, en- titled, 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' are there discussed. By the sixth section of the act it is provided that the persons uniting to form a banking association under the act shall specify in an organization certifi- cate the place where its operations of discount and deposit are to be carried on, designating the State, territory or district, and also the particular county and city, town or village. And by the eighth section it is pro- vided that its usual business shall be transacted at an office or banking house located at the place specified in its organization certificate. The ninth section provides that the affairs of such banking association shall be managed by a board of directors, at least three-fourths of whom shall have resided in the State, territory or district in which such association is located one year next preceding their election as directors, and be residents of the same during their continuance in office. Further sections speak of the place where the association is ' lo- cated' and 'established.' 'It is quite apparent from all of these statutory provisions,' says Judge Blatchford, 'that Congress regards a national banking association as being "lo- cated" at the place specified in its organization certificate. If such place is a place in a State, the associ- ation is located in the State. It is, in- deed, located at but one place in the State; but when it is so located, it is regarded as located in the State. The requirement that at least three- fourths of the directors of the associ- ation shall be residents, during their continuance in office, in the State in which the association is located, especially indicates an intention on the part of Congress to regard the as- sociation as belonging to such State. Three-fourths of the legal representa- tives of the unknown associates form- ing the corporation, with which repre- 159 §67 DEFINITIONS, CLASSIFICATION, not, however, citizens within the meaning of the Constitution of the United States, under that clause which provides that the sentatives any person dealing with the corporation must deal, are re- quired to reside in the State where the corporation is " located." ' A cor- poration existing by virtue of an act of the Congress of the United States must be considered a citizen of the United States. But a citizen of the United States, resident in any State in the Union, is a citizen of that State, Gassies v. Ballou, 6 Pet. (31 U. S.) 761, 8 L. ed. 573. The residence of the National Bank being in Nevada, it follows that it is a citizen of Ne- vada." See also Cooke v. State National Bank of Boston, 52 N. Y. 96, to the same point where the court, per Church, Ch. J., also says: "As an original question, it seems clear that the residence and citizenship of a cor- poration should be determined with- out regard to the residence of its corporators. No valid reason is per- ceived for applying the presumption, or, if applied, it furnishes no ground for the doctrine that the suit is by the corporators in their personal capacity. Although they have an interest in the suit, they are not parties in any legal sense, and their interests are merged in the corporate body. But I cannot agree with the counsel for the plain- tiff, that if the doctrine of presump- tion is to be maintained it would not apply to these banking associations. Their location and place of business are fixed by the law of their creation. They are made inhabitants of States for the purposes of taxation, and a majority of their managing officers are required by law to reside in the States of their respective location. I see no reason why this artificial 160 presumption should not as well apply to them as if incorporated by state authority, especially as in this case where a state bank by virtue of the statute was transmuted from a state to a national bank. The day before the change it is admitted that the presumption would apply, while the day after it is insisted that it would not, although the change was in form only, and not in substance. Inde- pendent of this presumption, these banks should be deemed citizens of the States where by law they are lo- cated, within this clause of the con- stitution, and this does not impair the decisions in this State, holding that they are foreign corporations under our attachments laws, although lo- cated here, because these decisions are based upon the statutory defini- tion of foreign corporations." See in this connection, Blake v. McClung, at end of note to this section; Chat- ham National Bank of New York v. Merchants' National Bank of West Virginia, 4 Thomp. & Cook (N. Y.), 196. At the present time under the Re- moval Statute (Acts of Congress, Aug. 13, 1888, c. 866, 25 Stat. 433, U. S. Comp. Stat. 1901, pp. 508, 509) a suit between citizens of different States may be removed to the Federal court, though neither party is a resi- dent of the State in which the suit is brought. Examine the fol- lowing cases: Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 43 L. ed. 1081, 19 Sup. Ct. 817; Memphis & Charles- ton R. Co. V. Alabama, 107 U. S. 581, 2 Sup. Ct. 432, 27 L. ed. 518; Foulk v. Gray (U. S. C. C), 120 Fed. 156; NATURE OF CORPORATION AND DISTINCTIONS § 67 citizens of each State shall be entitled to all privileges and immunities of citizens of the several States,*' nor do they come within the protection of that clause of the Fourteenth Amendment which prohibits the abridgment of such privileges and immunities.^ When an existing railroad corporation, Winn V. Wabash R. Co. (U. S. C. C), Letson, 2 How. (43 U. S.) 497, 11 L. 118 Fed. 55; First National Bank v. ed. 553. Bridgeport Trust Co. (U. S. C. C). Alabama: American Union Teleg. 117 Fed. 969; Illinois Cent. Ry. Co. Co. v. Western Union Teleg. Co., 67 V. Hibbs, 25 Ky. L. Rep. 1899, 78 S. Ala. 26, 42 Am. Rep. 90. W. 1116; Illinois Cent. Ry. Co. v. Delaware: State v. Delaware & Whitworth, 24 Ky. L. Rep. 2044, 25 Atl. Teleg. & Teleph. Co., 7 Houst. Ky. L. Rep. 439, 73 S. W. 766, 75 (Del.) 269, 31 Atl. 714. S. W. 849; Cincinnati, N. O. & T. P. IlUnois: Cincinnati Mut. Health Ry. Co. V. Cook, 23 Ky. L. Rep. Assur. Co. v. Rosenthal, 55 111. 85, 8 2410, 67 S. W. 383; Allison v. South- Am. Rep. 626; Ducat v. Chicago, 48 em Ry. Co., 129 N. C. 336, 40 S. E. 111. 172, 95 Am. Dec. 529. 91; Calvert v. Southern Ry. Co., 64 Indiana: Schmidt v. Indianapolis S. C. 139, 41 S. E. 963, aff'g 36 S. (Ind., 1907), 80 N. E. 632; Farmers' E. 750. & Merchants' Iris. Co. v. Narrah, 47 " Art. IV, § 2. Ind. 236. *' United States: Orient Ins. Co. v. Kentucky: Merchants National Daggs, 172 U. S. 557, 19 Sup. Ct. 281, Bank v. Ford, 30 Ky. L. Rep. 558, 99 43 L. ed. 552; Norfolk & Western Rd. S. W. 260; Commonwealth v. Milton. Co. V. Pennsylvania, 136 U. S. 114, 12 B. Mon. (51 Ky.) 212, 54 Am. Dec. 34 L. ed. 394, 10 Sup. Ct. 958; Pem- 331; Woodward v. Commonwealth, bina Consol. Silver Mining & Milling 9 Ky. L. Rep. 670, 7 S. W. 613. Co. v. Pennsylvania, 125 U. S. 181, 8 New Jersey: Tatem v. Wright, 23 Sup. Ct. 737, 31 L. ed. 650; Philadel- N. J. L. 429. phia Fire Assn. v. New York, 119 U. New York: People v. Imlay, 20 S. 110, 7 Sup. Ct. 108, 30 L. ed. 342; Barb. (N. Y.) 68. Liverpool Ins. Co. v. Massachusetts, Ohio: Western Union Teleg. Co. v. 10 Wall. (77 U.S.) 566, 19 L. ed. 1029; Mayer, 28 Ohio St. 521. Paul V. Virginia, 8 Wall. (75 U. S.) Rhode Island: State v. Brown & 168, 19 L. ed. 357; Bank of Augusta Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. V. Earle, 13 Pet. (38 U. S.) 519, 10 L. 246. ed. 274; Bank of United States v. Virginia: Slaughter v. Common- Deveaux, 5 Cranch (9 U. S.), 61, 3 L. wealth, 13 Gratt. (Va.) 767. ed. 38; Kirben v. Virginia-Carolina While the members of a corporation Chemical Co., 145 Fed. 288, 292, per are, for purposes of suit by or against Dayton, Dist. J.; Berry v. Mobile it in courts of the United States, to be Life Ins. Co., Fed. Cas. No. 1,358; conclusively presumed to be citizens of See Ohio & Mississippi Rd. Co. v. State creating it, the corporation itself Wheeler, 1 Black. (66 U. S.) 286, 17 is not a citizen within the meaning of L. ed. 130. Compare Louisville, the provisions of the Constitution Cincinnati & Charleston Rd. Co. v. that the citizens of each State shall be 11 161 § 67 DEFINITIONS, CLASSIFICATION, organized under the laws of one State, is authorized under the laws of another State, to extend its road into the latter, it does not become a citizen of the latter State by exercising this authority, unless the statute giving this permission must nec- essarily be construed as creating a new corporation of the State which grants this permission.*^ entitled to all privileges and immiini- different State from that by which it ties of citizens in the United States, was chartered, unless the persons who Blake v. McClung, 172 U. S. 239, 19 compose the corporate body are all Sup. Ct. 165, 43 L. ed. 432. citizens of that State. Ohio & Miss. A corporation is not a citizen Ry. Co. v. Wheeler, 1 Bl. (66 U. S.) within the meaning of the Constitu- 286, 17 L. ed. 130. tion of the United States, and cannot *' Pennsylvania R. R. Co. v. St. maintain a suit in a court of the Uni- Louis, A. & T. H. R. R. Co., 118 U. S. ted States against the citizens of a 290, 6 Sup. Ct. 1094, 30 L. ed. 83. 162 NATURE OF VARIOUS CORPORATIONS 68 CHAPTER VI. NATURE OF VARIOUS CORPORATIONS. § 68. Agricultural Societies — State § 80. Board of Agriculture — Ag- 81. ricultural College. 82. 69. Banks. 70. Bridge Companies. 83. 71. Building and Loan Associa- tions. 84. 72. Canal Companies. 73. Colleges — State University. 74. Common Carriers. 85. 75. Drainage Companies — Drain- 86. age — Constitutional Law — 87. Police Power. 88. 76. Electric Light, Heat and Power . Companies. 89. 77. Electric Light, Heat and Power 90. Companies — When a "Man- ufacturing" Company. 91. 78. Electric Light, Heat and Power 92. Companies — When not a 93. "Manufacturing" Company. 94. 79. Express Companies. 95. Ferries — Ferry Company, Fire Engine Company. Gas Companies — Public Serv- ice Corporation. Gas — Natural Gas Compa- nies. Gas Company — Natural Gas Company When " Manu- facturing" Company. Heating Corporation. Hospital Corporation. Insurance Companies. Irrigation Companies — Irriga- tion Districts. Levee Districts — Levee Boards. Log Driving or Boom Corpora- tion. Manufacturing Corporations. Market Company. Medical College. Park Association. Plank Roads. § 68. Agricultural Societies— State Board of Agriculture- Agricultural College. — Under an Alabama decision an agri- cultural society is a public corporation.^ It is also so under an Illinois case.^ Under an Iowa decision it is held to be in no sense a corporation for pecuniary profit, but an agency of the State which exists for the sole purpose of promoting the pub- lic interests in the business of agriculture.^ But in another case in the same State it is declared that the objects of an agricultural society may be public and yet it is essentially a ' Dillard v. Webb, 55 Ala. 468. ' Hem v. Iowa State Agricultural ' Livingston County Agricultural Soc, 91 Iowa, 97, 98, 58 N. W. 1092, Society v. Hunter, 110 III. 155. 24 L. R. A. 655. 163 § 68 NATURE OF VARIOUS CORPORATIONS private corporation even though it is not organized for pe- cuniary profit.'* So in Kentucky such societies are private corporations.^ In Michigan, they are said to be quasi-pubhc in their nature.® In Maine such a society is an aggregate cor- poration as distinguished from quasi-corporations and may be hable in its corporate capacity for its negUgent acts.' Under a Minnesota decision it appeared that a state agricultural so- ciety was not, under the complaint therein and the laws, shown to be a public corporation organized for the sole purpose of discharging a governmental function, and it was held that annual contributions by the State did not make it a public corporation for the sole purpose of discharging governmental functions so as to relieve it from its negligence.* In Nebraska these societies are declared not to be corporations within the ordinary meaning of the term, but are rather agencies adopted by the State for the purpose of promoting the interests of agriculture and manufacturing.** In a North Carolina case they seem to be considered as public corporations.^" But under an Ohio decision they are not public agencies of the State. They are the result of the voluntary association of the persons com- posing them, and although their purposes are public in a certain sense as conducing to the public welfare yet all private corporations are for a public purpose in the sense that they accomplish some public good or are of some public benefit. ^^ A state board of agriculture, created by statute as a body corporate with perpetual succession, is, in Indiana, a private * Thompson v. Lambert, 44 Iowa, 'State v. Robinson, 35 Neb. 401, 239. 53 N. W. 213, 17 L. R. A. 383. * Commonwealth v. Bacon, 1 '» State v. Stovall, 103 N. C. 416, 8 Bush (Ky.), 210, 26 Am. Rep. 189. S. E. 900. ' See Kent County Agricultural " Dunn v. Agricultural Soc, 46 Soc. V. Housemary, 81 Mich. 609, Ohio St. 93, 99, 18 N. E. 496, 15 Am. 46 N. W. 15. St. Rep. 556, 1 L. R. A. 754. ' Brown v. South Kennebec Ag- County Agricultural Societies are ricultural Soc, 47 Me. 275, 74 Am. corporations for public purposes. Dec. 484. Stewart v. Hardin County Agricul- * Lane V. Minnesota State Agricul- tural Soc. Comm'rs (Dist. Ct.), 7 tural Soc, 62 Minn. 175, 64 N. W. Am. Law Rec. 668, 6 Ohio Dec. 382, 29 L, R. A. 208. 751. 164 NATURE OF VARIOUS CORPORATIONS § 69 corporation although the public has an interest therein, and the State has voluntarily aided it by contributions and appro- priations, and no shares of stock are issued and held by trustees or private individuals.^' In Wyoming it is held that an agri- cultural college which is subject to state visitation under the statute of its creation and incorporation is a public corpora- tion and that the State is not prohibited from repealing the creative act, even though property had been devised or be- queathed in trust for the benefit of such college. ^^ § 69. Banks. — A bank is a public corporation where the stock is exclusively owned by the government.^"* It is also held in an Ohio case that a bank is a public institution, a pub- lic corporation created solely for public and not for private purposes, and is subject to public control to extend or revoke its privileges according to the emergencies of public necessity or policy. ^^ In a New Jersey case it is declared that banks of " Downing v. Indiana State Board to appropriate private property with- of Agriculture, 129 Ind, 443, 28 N. E. out the consent of the owners?" and 123, 12 L. R. A. 664. The loaning of in conclusion the court also said: "It money to such board by the State may, therefore, be declared, that the was held to amount to a legislative Piqua Branch (Bank) and all other construction of its charter as being a companies organized under the act of private corporation. February 24, 1845, are public corpo- " State ex. rel. Agricultural Col- rations — created for public purposes, lege v. Irvine, 14 Wyo. 318, 373-376, and subject to the emergencies of pub- 84 Pac. 90, aff'd Wyoming Agricul- lie necessity or policy, as declared, tural College v. Irvine, 206 U. S. 278. from time to time, by the legislature. '^Tinsman v. Belvidere Delaware That the charters of such corpora- Rd. Co., 26 N. J. L. 148, 172, 69 Am. tions may be repealed or altered Dec. 595, quoting from 2 Kent's without the consent of the corpora- Comm. 305. tors was admitted by all the judges in " Knoup V. Piqua Bank, 1 Ohio the Dartmouth College case, and is St. 613, 009, 619, 621, 622, per Cor- established by many other authori- win, J., who said: "But banking is ties. Terrel v. Taylor, 9 Cranch (13 no more a private business, certainly U. S.), 43, 3 L. ed. 650; Town of Mari- than making a railroad, or a turnpike, etta v. Fearing, 4 Ohio, 427; People and yet, when they are made, in vir- v. Morris, 13 Wend. (N. Y) 325." tue of a franchise of eminent domain, The case of Dartmouth College v. the corporations are public corpora- Woodward, 4 Wheat. (17 U. S.) 518, tions. For how otherwise, I repeat, 4 L. ed. 629, above referred to, held, could the legislature authorize them however, that the charter granted to 165 § 70 NATURE OF VARIOUS CORPORATIONS deposit and discount, as well as those that issue circulation, and also savings banks, are quasi-public institutions and properly subject to statutory regulations for the protection of those who deal with them as depositors.^® But it is also as- serted in the same State that a bank owned by private persons is a private corporation, even though its operations and ob- ject partake of a public nature and even though the govern- ment has shared with the corporators in the stock. "The same thing may be said of insurance, canal, bridge, turnpike and railroad companies. The uses may in a certain sense be called public, but the corporations are private." ^^ So under an Indiana case banking is of a quasi-public nature.^* And sub- stantially the same statement is made in other jurisdictions.^^ § 70. Bridge Companies.— Although a bridge company is a private corporation, yet, as the bridge, when complete, is to be used by the public as a common highway for public con- venience and forms a continuous line of travel, it is as much dedicated to public use as it could have been had it been in all respects public property erected at public expense, and the legislature may authorize it to take private property for its use. These same principles have been uniformly applied to railroads and turnpikes.^" Where the statute provides for the the trustees of that college was a con- Rd. Co., 26 N. J. L. 148, 172, 69 Am. tract within the Federal Constitution Dec. 595. prohibiting any law impairing the ob- " State v. Richcreek, 167 Ind. 217, ligation of contracts and therefore a 222, 77 N. E. 1085, per Montgomery, state legislative act altering such J. charter without consent of the corpo- " A bank is an institution of a ration was unconstitutional and void quasi-public character. American and that under its charter the college Nat. Bk. v. Morey, 24 Ky. L. Rep. was a private and not a public cor- 658, 660, 69 S. W. 759, 58 L. R. A. poration liable to legislative con- 956, per Hobson, J.; Patterson v. trol. Marine Nat. Bank, 130 Pa. 419, 433, >« Campbell, Receiver, v. Watson, 18 Atl. 632, 17 Am. St. Rep. 778, per 62 N. J. Eq. 396, 406, 50 Atl. 120, per Paxson, C. J. Pitney, V. C. (this case was one of an ^° Arnold v. Covington & Cincin- action by a bank receiver against nati Bridge Co., 1 Div. (62 Ky.) 372. directors for losses alleged to have A " bridge is a part of a road, and been caused by their negligence.) an easement, like the road; and the " Tinsman v. Belvidere Delaware privilege of making the bridge, and 166 NATURE OF VARIOUS CORPORATIONS §§ 71, 72 construction of toll bridges for "public use" and railroad toll bridges are within the intent of the enactment, a railroad bridge is a bridge for public use.^^ But the right, privilege, or franchise of constructing and operating a bridge and approaches as terminal facilities is held not to confer an authority upon the company to act as common carriers of goods or passengers for compensation. 22 § 71. Building and Loan Associations. — Building and loan associations are private associations. ^^ Although they have been considered "corporate partnerships or quasi-partner- ships." 24 § 72. Canal Companies. — A canal company, with the power of eminent domain, occupying some of the bed of a public stream, and carrying on a transportation business, whether as an accommodation to one party or to others, is affected with a public interest or impressed with a public trust.^^ So a canal taking tolls for the use of the same, is on Bldg. Assoc. § 39]; Albany Mutual a franchise in which the public have Bldg. Assoc, v. City of Laramie, 10 an interest; the corporation, as owner Wyo. 54, 65, 66, 65 Pac. 1011, per of the franchise, is liable to answer in Potter, C. J. [quoting Thompson on damages if it refuses to transport in- Bldg. Assoc. (2d ed.) § 3; Endlich on dividuals on being paid or tendered Bldg. Assoc. (2d ed.) § 16]; Cook v. the usual fare; the law secured the Equitable Bldg. & Loan Assoc, 104 tolls as a recompense for the duty Ga. 814, 821, 30 S. E. 911. imposed to provide and maintain ^* See Towle v. American Bldg. facilities for accommodating the pub- Loan & Investment Soc, 61 Fed. 446, lie." Covington Drawbridge Co. v. 447, per Grosscup, Dist. J.; Union Shepherd, 21 How. (02 U. S.) 112, Mut. Bldg. & Loan Assoc, v. Aichele, 124, 16 L. ed. 38, per Catron, J. 28 Ind. App. 69, 73, 61 N. E. 11, per ^' Southern Illinois & Missouri Comstock, J. Bridge Co. v. Stone, 174 Mo. 1, 27, 63 " New York Cement Co. v. Consol- L. R. A. 301, 73 S. W. 453. idated Rosendale Cement Co., 76 N. " Kentucky & I. Bridge Co. v. Y. Supp. 469, 37 Misc. 746 (case was Louisville & N. R. Co., 37 Fed. 567, 2 reversed upon the ground that the L. R. A. 289, 2 Inters. Com. Rep. 35. purchaser of the canal and "fran- '^ Washington Investment Assoc. chi.ses" need not maintain and oper- V. Stanley, 38 Orcg. 319, 331-333, 63 ate it as a public way, the sale and Pac. 489, 84 Am. St. Rep. 793, per conveyance having been made vmder Woolverton, J. [quoting Thompson authority of a statute which also re- on Bldg. .\ssoc. (2d ed.) § 3; Endlich cited that it was no longer useful for 167 § 72 NATURE OF VARIOUS CORPORATIONS constructed by the State is a public use, and the power of emi- nent domain may be exercised in subjecting private property to its construction.^^ A canal company is also held to be a private corporation.^ So a New Jersey case holds that the Delaware and Raritan Canal Company was not a public cor- poration and that it was not justified by its charter in injuring the property of individuals, by obstructions of the natural flow of streams of water, although such injuries may be remote or consequential. In the opinion of the court it is said: "In the present case whatever may have been the objects of the corporation, whether to erect a public navigable highway, or to improve the navigation of the Raritan river, or whether the public have a right to the use and enjoyment of these improve- ments when made or not, the company are essentially a private company and are not the agents of the State. Their works are not constructed by the requirement of the State, nor at the expense of the State, nor does the stock belong to the State, nor is the State answerable for the lands or materials used in the construction of these works, or responsible for the debts of the company, or for injuries committed by them in the execution of their work. The State could not compel the com- pany to construct this canal or improve the navigation of the river; it has permitted them to do so at their own request. The company might have abandoned the work whenever they saw fit, they may now abandon it without responsibility to the State. In all they have done, they have sought their own interest and if thereby they have incidentally promoted that of the public, it cannot reasonably be supposed it was from a liberality beyond that of their fellow citizens or for the sake the purpose originally intended, 78 roads and canals, and plank road N. Y. Supp. 531; but held in 178 N. companies. Douglass v. Boonsbor- Y. 167, that part thereof purchased ough Turnpike Road Co., 22 Md. 219, and used by manufacturing corpo- 85 Am. Dec. 647. ration for transportation purposes '" Cooper v. Williams, 4 Ham. (4 was still a public highway and sub- Ohio) 253, 287, 22 Am. Dec. 745. ject to restrictions imposed by canal ^' Hooker v. New Haven & North- company by its charter). ampton Co., 15 Conn. 313, 36 Am. Distinction exists between rail- Dec. 477. 168 NATURE OF VARIOUS CORPORATIONS §§ 73, 74 of the public. The corporation itself, the property of the cor- poration, the object of the corporation, are essentially private, subject only to public use, under their owti restrictions, and from which use, the company are to derive their profits. The whole scope of their charter indicates clearly that the legisla- ture did not intend to interfere with private and vested rights, without providing a recompense to be paid by the company and not by the State." ^s § 73. Colleges — State University. — Under its charter, Dart- mouth College was a private and not a public corporation; that a corporation is established for purposes of general char- ity, or for education generally, does not, 'per se, make it a pub- lic corporation, liable to the control of the legislature.^^ A state university formed for educational purposes, founded by the State, endowed by the United States by a grant to the State; all its property being property of the State; subject to the laws of the State as a state institution; declared to be a public trust by the state constitution, which also provides for its perpetual continuance, is a pubUc corporation. ^'^ § 74. Common Carriers. — Formerly anyone who chose to engage in the business of a common carrier might do so, and such employment was conducted almost exclusively by private individuals for private gain and no especial protection or bene- fit was given by the State, but it has become a public employ- ment in the sense that it is affected with a public interest and is subject to public regulation because of the obligations rest- ing upon it arising from the character of the business.^^ It not only exercises a public employment but it has been called a public institution. The duties and liabilities are those imposed " Ten Eyck V. Delaware & Raritan Woodward, 1 N. H. 111. See § 93, Canal Co., 18 N. J. L. 200, 203, per herein. Nevins, J. '"Estate of Royer, Matter of, 123 '•Dartmouth College v. Wood- Cal. 614, 621, 44 L. R. A. 364, 56 ward, 4 Wheat. (17 U. S.) 518, 4 L. Pac. 461. ed. 629, rev'g Dartmouth College v. " People v. Budd, 117 N. Y. 1, 26 N. Y. St. R. 533, 22 N. E. 670, 682. 169 § 74 NATURE OF VARIOUS CORPORATIONS by public law, and in this respect a common carrier differs from the private. The former owes an equal duty to all, and it cannot be discharged if allowed to make unequal preferences and thereby prevent or impair the enjoyment of the common right .^^ It is asserted, however, that the employment of com- mon carriers is quasi-public, upon the ground that the public have an interest in the faithful performance of their duties and that this applies to common carriers classified as carriers of goods and carriers of passengers. ^^ Under the Public Service Commissions Law of New York,^'* "The term 'common carrier,' when used in this act, includes all railroad corporations, street railroad corporations, express companies, car companies, sleeping-car companies, freight companies, freight-line com- panies and all persons and association of persons, whether in- corporated or not, operating such agencies for public use in the conveyance of persons or property within this State." ^^ And such carriers cannot unreasonably or unduly discriminate, and are subject to reasonable and just regulation as to rates and to prevent discrimination, and the power to so regulate may be exercised by the legislature itself or delegated to and vested in railroad commissioners.^^ The nature of common carriers will, however, more fully appear under those sections herein which treat of the different corporations whose business is that of common carriers. ^^ Messenger v. Pennsylvania Rd. elevation, transfer in transit, venti- Co., 37 N. J. L. 531, 533, 535, 18 Am. lation, refrigeration, icing, storage Rep. 754. and handling of the property or ^^ Thompson-Houston Electric Co. freight transported. Public Service v. Simon, 20 Oreg. 60, 25 Pac. 147, 10 Commission Law of N. Y., Laws L. R. A. 251, 23 Am. St. Rep. 86 (an 1907, p. 892, chap. 429, art. 1, action to condemn a right of way for § 2. street and suburban railway for pas- ^' Interstate Commerce Commis- sengers). sion v. Chicago Great Western Ry. 3* Laws 1907, p. 891, chap. 429, Co., 141 Fed. 1003; Southern Express art. 1, § 2. See Public Utilities Act, Co. v. R. M. Rose Co., 124 Ga. 581, 53 Laws Wis., 1907, chap. 499. S. E. 185; State v. Atlantic Coast 3=^ The term "transportation of Line R. Co. (Fla.), 40 So. 875; property or freight," when used in Chicago, L & L. Ry. Co. v. Rd. Com- this act, includes any service in con- mission of Indiana (Ind. App.), 78 N. nection with the receiving, delivery, E. 338. 170 NATURE OF VARIOUS CORPORATIONS §§ 75, 76 § 75. Drainage Companies — Drainage — Constitutional Law — Police Power. — A drainage company is a private cor- poration.^^ Under the laws of Illinois the draining of bodies of land so as to make them fit for human habitation and cul- tivation, is a public purpose, to accomplish which the State may by appropriate agencies exert the general powers it possesses for the common good, and § 40| of the Farm Drain- age Act of that State was a proper exercise of the police power of the State. The rights of a railroad company to a bridge over a natural w^ater course crossing its right of way, acquired un- der its general corporate power of Illinois are not superior and paramount to the right of the public to use that water course for the purpose of draining lands in its vicinity in ac- cordance with plans adopted by a drainage commission law- fully constituted under the Farm Drainage Act.''^ § 76. Electric Light, Heat and Power Companies. — An electric light company is a corporation or association organ- ized and engaged in the business of supplying electricity for lighting purposes, and it may by statute include supplying electricity for heat and power purposes. ^^ So under the Pub- lic Service Commissions Law of New York,^*^ the term "elec- trical corporation," when used in that act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers ap- pointed by any court whatsoever (other than a railroad or street corporation generating electricity for its own use ex- clusively), owning, operating, managing or controlling any plant or property for generating and distributing, or generat- ing or selling for distribution, or distributing of electric current for such purposes. In New Hampshire, under a statute pro- viding that all electric light companies serving parties for hire "Howard v. St. Clair & Monroe 561, 50 L. ed. 596, 26 Sup. Ct. 341, Levy & Drainage Co., 51 111. 1.30. aff'g 212 111. 103, 72 N. E. 219. See § 96, herein, "Reclamation Dis- ^* Joyce on Electric Law (2d ed.), tricts. " § 7. See also id., §§ 7a, 7b. "Chicago, Burlington & Quincy "Laws 1907, p. 892, chap. 429, Ry. Co. V. Drainage Com'rs, 200 U S. art. 1, § 2. 171 § 70 NATURE OF VARIOUS CORPORATIONS shall be deemed to be public and shall reasonably accommodate persons wishing to enjoy their facilities without discrimina- tion and at reasonable rates, electric light companies are evi- dently deemed to stand on the basis of quasi-public corpora- tions; although "a natural person may engage in the business of furnishing electric lights for hire, and acquire all the rights and privileges and be subject to all the duties and obligations pertaining to the business as provided in the statute." ''^ An electric light is a thing of general utility and in its nature an article of commerce. '^^ But an electric hghting system main- tained for the purpose of lighting city streets, is held to be a public use.^^ 'And where a municipality prior to a certain date had no power to grant the use of its streets for electric light poles, companies erecting and owning such poles after that period devoted them to public uses.'*^ Again, an electric light company, owning an electric plant and engaged in fur- nishing light for the streets and inhabitants of a city or village has so far devoted its property to a public use, a use in which the public has an interest, that it is bound to furnish light, within such city or village, impartially to all applicants at a reasonable price. "^^ Where a dam is erected, and land is flooded thereby, in order to supply electric power to the pub- lic generally, and especially to mines and smelters, and for irrigation also, it constitutes a public use justifying the ex- ercise of the right of eminent domain.''^ In a Wisconsin case *' American Loan & Trust Co. v. " Cincinnati, H. & D. R. Co. v. General Electric Co., 71 N. H. 192, Bowling Green, 57 Ohio St. 336, 41 51 Atl. 660, 8 Am. Elec. Cas. 117, 118, L. R. A. 422, 49 N. E. 121. 121, 122, 124 (a case or right to " Helena Power Transmission Co. mortgage. v. Spratt, 35 Mont. 108, 88 Pac. 773. " Hull Electric Light Co. v. Ot- See also Story v. Indiana Hydraulic tawa Elect. Light Co., Rap. Jud. Power Co. (Ind.), 76 N. E. 1057; East Quebec, 14 C. S. 124. Canada Creek Electric Light & ^3 Tuttle V. Brush Elec. Ilium. Co., Power Co., In re, 99 N. Y. Supp. 50 N. Y. Super. Ct. 464. Compare 109, 49 Misc. 565; Niagara, L. & O. Joyce on Electric Law (2d ed.), §§ Power Co., In re., 97 N. Y. Supp. 276-278C. 853, 858, 111 App. Div. 686, 112 ^^ Toledo Electric St. Ry. Co. v. App. Div. 901. Examine State v. Su- Westem Light & Power Co., 4 Ohio perior Court of Thurston County C. D. 43. (Wash.), 85 Pac. 666. But see Joyce 172 NATURE OF VARIOUS CORPORATIONS §§ 77, 78 the business of supplying electricity is declared to be a public one in which the community has an interest different from what it has in private enterprises, such as manufacturing, etc*^ And the enterprise is a public one where water power is used to generate electricity which is to be sold and distributed on equal terms to the public generally and is subject to control by the government. In such a case the property is also held to be devoted to a public use.''* § 77. Electric Light, Heat and Power Companies — When a " Manufacturing " Company.— In Alabama an electric light company is a manufacturing corporation, within a statute authorizing consolidation.^ In Colorado the operation of an electric light plant is manufacturing and gives a right to con- demn lands for the purpose of carrying water for power to operate such plant. ^"^ In New York a corporation engaged in producing electricity and supplying the same to customers was a manufacturing corporation and exempt from taxation until the statute of 1889,^^ which took electric hght com- panies out of the exemption clause. ^^ § 78. Electric Light, Heat and Power Companies— When not a " Manufacturing " Company.— In Illinois an electric light company is not a corporation for "purely manufacturing on Electric Law (2 ed.), §§ 278a, " People ex rel. Brush Electric 278c, 278d. Mfg. Co., 129 N. Y. 543, 551, 553, " Madison, City of, v. Madison Gas 14 L. R. A. 708, 29 N. E. 808, case re- & Elec. Co., 129 Wis. 249, 263, 108 verses 15 N. Y. Supp. 711, 61 Hun, N. W. 65, per Siebecker, J. 53. See also People, Edison Elec. L. *^ Minnesota Canal & Power Co. v. Co. v. Campbell, 88 Hun (N. Y.), 527, Koochicing Co., 97 Minn. 429, 107 N. 68 N. Y. St. R. 746, 34 N. Y. Supp. W. 405. 711, 6 Am. Elec. Cas. 653; People, * Beggs V. Edison Electric Illu- Western Elec. Co. v. Campbell, 145 minating Co., 96 Ala. 295, 38 Am. St. N. Y. 587, 65 N. Y. St. R. 526, 40 N. Rep. 94, 11 So. 381. E. 239, afT'g 80 Hun, 466, 30 N. Y. ""Lambom v. Bell, 18 Colo. 346, 4 Supp. 472, People, Edison Elec. II- Am. Elec. Cas. 573, 32 Pac. 989. lum. Co. v. Wemple, 129 N. Y. 664, "Chap. 353, Laws 1889. See Laws 42 N. Y. St. R. 280, 29 N. E. 812, 1898, chap. 908, § 183, 4 Cumming & 4 Am. Elec. Cas. 563, rev'g 61 Hun, Gilbert's (Supplement) Gen '1 Laws & 53,39 N. Y. St. R. 605, 15 N. Y. Gen'l Stat. (N. Y.) p. 1526. Supp. 711. 17:3 § 79 NATURE OF VARIOUS CORPORATIONS purposes." '^ In Maryland an electric light and power com- pany is not a manufacturing industry.^'* In Pennsylvania a corporation engaged in producing electricity and selling it to customers for the generation of light, heat and power is also held not to be a manufacturing company in the sense that it is within a statutory exemption from taxation on its capital stock,^^ § 79. Express Companies. — An unincorporated express com- pany is not a corporation over which the State may exercise visitatorial powers, but is only a partnership carrying on a com- mon carrier business. ^^ But an express company does not carry on a purely private business where it transports between a city and places nearby, all kinds of portable freight and ex- press matter; and it may, under authority of the city, facili- tate such business by the use of a connecting switch between its warehouse and the lines of a street railway, and such ap- propriation of the street constitutes a legitimate public use." A state statute which defines an express company to be per- sons and corporations who carry on the business of transpor- tation on contracts for hire with railroad or steamboat com- panies, does not invidiously discriminate against the express companies defined by it, and in favor of other companies or persons carrying express matter on other conditions, or under different circumstances.^* The following is of importance here: — "An express company is a species of common carrier " Evanston Elec. Ilium. Co. v. Elec. L. Co., 145 Pa. 131, 22 Atl. 841, Kochersperger, 175 111. 26, 51 N. E. 845. Compare Commonwealth v. 519. Keystone Elec. Light, Heat & Power 5* Frederick Elec. Light & Power Co., 193 Pa. 245, 44 Atl. 326. Co. V. Frederick City, 84 Md. 599, ^^ State v. United States Express 36 Atl. 362, 30 L. R. A. 130, 6 Am. Co., 81 Minn. 87, 83 Am. St. Rep. 366, Elec. Cas. 644. 50 L. R. A. 667. *' Commonwealth v. Northern Elec- " Dulaney v. United States Rys. & trie Light & Power Co., 145 Pa. Electric Co., 104 Md. 423, 65 Atl. 105, 22 Atl. 839, 14 L. R. A. 107. Ex- 45. amine Southern Elec. Light & Power ^' Pacific Express Co. v. Seibert, Co. V. Philadelphia, 191 Pa. 170, 43 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Atl. 123; Commonwealth v. Edison ed. 1035. 174 NATURE OF VARIOUS CORPORATIONS § 80 to which have been accorded privileges, and which from the nature of its business incurs great responsibility. * * * They are essentially different from railroad companies, not only in the fact that the latter carry more bulky freight, but they collect money and do other things, that would be held ultra vires if attempted by a railroad company. It has been held that a railroad company could not refuse to carry for an express, according to the peculiar methods of their business. * * * If a railroad company engage in these branches of the express business, authorized by their charters, they must not deny to express companies equal privileges with themselves as to that business. * * * It is the duty of the express companies to receive all goods offered for trans- portation, upon the payment or tender of their charges, but prepayment will be considered waived if not demanded. They are required, too, to have adequate facilities within a reasonable time. * * * A ji^ig]^ degree of care is required of an ex- press company in the delivery of goods." ^^ §80. Ferries — Ferry Company. — A ferry franchise is de- clared to be partly of a public and partly of a private nature,^" or a quasi-public use.^^ If statutory restrictions are imposed, a ferry must conform to such requirements, and the owner of the ferry privilege is obligated to serve the public at all reason- able times .®^ The primary object in establishing roads and " AIsop V. Southern Express Co., 18 Am. Rep. 754; Express Cos. v. 104 N. C. 278, 288, 289, 10 S. E. 297, Railroad Cos. (Adams Express Co. v. 6 L. R. A. 271, per Avery, J., citing to Railroad Cos.) (U. S. C. C. 8th Civ.), first point Witbreck v. Holland, 45 3 Am. & Eng. Rd. Cas. 591; to fifth N. Y. 13; Am. & Eng. Cyc. of Law, point. New Jersey Steam Nav. Co. v. 781-784; 5 Myers Fed. Dec. Carriers, Merchants' Bank, 6 How. (47 U. S.) § 511; to second point, 5 Myers Fed. 344; to sixth point, Marshall v. Amer- Dec. Carriers, § 1.509; to third point, ican Express Co., 7 Wis. 1; Witbreck 5 Myers Fed. Dec. §§ 1508, 1519; to v. Holland, 45 N. Y. 13. fourth point, 5 Myers Fed. Dec. °° I^enson v. Mayor, etc., of N. Y., Carriers, §§ 1508, 1515-1521; Com- 10 Rarb. (N. Y) 223. bios V. Philadelphia, etc., 9 Phila. *' Los Angeles Terminal Land Co. 411; Texas Express Co. v. Texas, 6 v. Southern Pac. Rd. Co., 136 Cal. 36, Fed. 426; Messenger v. Pennsylvania 68 Pac. 308. Rd. Co., 37 N. J. L. (8 Vroom.) 531, " Warner v. Ford Lumber & Mfg. 175 § 80 NATURE OF VARIOUS CORPORATIONS licensing ferries for transportation of persons and property, is to secure tlie public accommodation. For the attainment of this end, but as subordinate to it, when a ferry franchise is granted, the right to take lawful tolls is conferred as an equiva- lent for the obligations to the public. Although the taking of such tolls is privati juris and incident to the franchise, a ferry is publici juris, and cannot be created without a fran- chise, and is a thing of public interest and use. A ferry also forms a part of a pubhc highway, and as such it is a thing of public interest.^^ Co., 29 Ky. L. Rep. 527, 93 S. W. purposes of this prerogative, it will 650. be seen that it was vested in the king '^ Montgomery v. Multnomah Ry. as a means by which a business, in Co., 11 Oreg. 344, 347, 348, 3 Pac. which the whole community were 435, quoting Attorney General v. interested, could be regulated. In Boston, 123 Mass. 478. other words, it was simply one mode "Therefore, although the public of exercising a prerogative of gov- convenience is the occasion of grant- ernment, that is to say, through the ing franchises of this nature, and, sovereign instead of through parlia- for example, the ferry established on ment, in a matter of public concern, the road chartered is publici juris, These and similar prerogatives were yet the property is private, and con- vested in the king for public purposes, sequently an injury to it may be and not for his private advantage or the subject of an action, for no per- emolument." People v. Budd, 117 son could be expected to serve the N. Y. 1, 17, 18, 26 N. Y. St. R. 533, public by bestowing his time, labor 22 N. E. 670, 682, per Andrews, J. and money in establishing a ferry or " A ferry is in some sense an exten- erecting a bridge, if its value could sion of a public road." Burlington & be immediately destroyed by the Henderson Coimty Ferry Co. v. caprice or malice of private persons, Davis, 48 Iowa, 133, 137, 30 Am. in adopting means of drawing away Rep. 390, per Adams, J. (a case of the custom to some establishment of power to grant ferry license), their own. It is, then, truly the in- "Though a ferry be in its nature terest of the public, as well as an part of a highway, yet it is in many instance of the private justice due to respects distinguishable; and from an individual, that the public grant the earliest times of the colonial gov- of franchises of this kind should be ernment, in Massachusetts, the mode protected by being held to be exclu- of establishing ferries, and that of sive in the grantee, imless legally and laying out highways, have been kept duly ordered otherwise by the public distinct." Fay, Petitioner, 15 Pick. authorities." Norris v. Farmers' & (32 Mass.) 243, 249, per Shaw, C. J. Teamsters' Co., 6 Cal. 590, 595, 65 A ferry forms part of, and can only Am. Dec. 535. exist in connection with, a public " When we recur to the origin and highway, or as a connecting link be- 176 NATURE OF VARIOUS CORPORATIONS §§ 81, 82 §81. Fire Engine Company. — A fire engine company is a quasi-municipal corporation.^^ And if a fire company is in- corporated for the purpose of rendering public service, a mem- ber thereof, even though such company is not connected officially with the municipality, is held to be within the pro- visions of the Civil Service Law prohibiting removal, except for cause and upon hearing, of a person under municipal employ- ment or holding a municipal position and who has served in the volunteer fire department for the specified period of time.^^ §82. Gas Companies — Public Service Corporation.— The manufacture and distribution of illuminating gas, by means of pipes or conduits placed, under legislative authority, in the streets of a town or city, is a business of a public character .^^ "The manufacture of gas, and its distribution for public and private use by means of pipes laid, under legislative authority, in the streets and ways of a city, is not an ordinary business in which everyone may engage, but is a franchise belonging to the government, to be granted, for the accomplishment of public objects, to whomsoever, and upon what terms it pleases. It is a business of a public nature, and meets a public necessity for which the State may make provision. It is one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of public convenience and the public safety." " So, in a Wis- tween places in which the public has Fuel Co., 21 Pa. Co. Ct. R. 503, rights, on paying the tolls prescribed 508. by public authority. Hackett v. Gas company as public corpora- Wilson, 12 Oreg. 25, 6 Pac. 652. tion. See Sanderson v. Commis- •*Cole V. Greenwich Fire Engine sioners, 3 Pa. Com. PI. 1,6. Co., 12 R. I. 202. Gas company not a public corpo- « People V. Folks, 85 N. Y. Supp. ration. See New York Central & 1100, 89 App. Div. 171. Hudson River Rd. Co., In re, v. Met- " New Orleans Gas Co. v. Louisi- ropolitan Gas Light Co., 63 N. Y. 326. ana Light Co., 115 U. S. 650, 658, 29 Gas and liglit companies perform L. ed. 516, 6 Sup. Ct. 252, per Har- quasi-public duties. Commonwealth Ian, J. V. Northern Light & Power Co., 145 Gas company is somewhat public Pa. 105, 22 All. 839, 14 L. R. A. 107. in its nature. Ilagan v. Fayette Gas " New Orleans Gas Co. v. Louisi- 12 177 § 82 NATURE OF VARIOUS CORPORATIONS consin case, it is declared that the business of supplying gas and electricity, to meet the demands of the inhabitants of a community, under grant of the State or of a municipal corpo- ration, is of a public nature. It is, in character, a public busi- ness and like that of common carriers, warehousemen and other enterprises in which the community has an interest different from what it has in private enterprises devoted to manufacturing and merchandising the common articles of trade.®* So the legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, by means of pipes and mains laid through the public streets, and upon condition of the performance of the service by the grantee, is a grant of ana Light Co., 115 U. S. 650, 669, 29 Gas Co., 6 Wisconsin, 539; Chicago L. ed. 516, 6 Sup. Ct. 252, per Har- Gas Light & Coke Co. v. People's Ian, J. Gas Ligiit & Coke Co., 121 Illinois, ** Madison, City of, v. Madison Gas 530; St. Louis v. St. Louis Gas Light & Electric Co., 129 Wis. 249, 263, 108 Co., 70 Missouri, 69. Hence, while it N. W. 65, per Siebecker, J., citing is justly urged that those rules which Gibbs V. Consolidated Gas Co., 130 say that a given contract is against U. S. 396, 32 L. ed. 979, 9 Sup. Ct. pubhc policy, should not be arbi- 553; Louisville Gas Co. v. Citizens' trarily extended so as to interfere Gas Co., 115 U. S. 683, 29 L. ed. 510, with the freedom of contract, Print- 6 Sup. Ct. 265; Chicago Gas Light & ing, etc.. Registering Co. v. Sampson, Coke Co. V. People's Gas Light & Coke L. R. 19 Eq. 462, yet in the instance Co., 121 111. 530, 13 N. E. 169; St. of business of such character that it Louis V. St. Louis Gas Co., 70 Mo. 69; presumably cannot be restrained to Shepard v. Milwaukee Gas Light Co., any extent whatever without prej- 6 Wis. 539. quoting also to same ef- udice to the public interest, courts feet New Orleans Gas Co. v. Louisi- decline to enforce or sustain contracts ana Light Co., 115 U. S. 650, 6 Sup. imposing such restraint, however Ct. 265, 29 L. ed. 516. partial, because in contravention of " The supplying of illuminating gas pubhc policy. This subject is much is a business- of a public nature to considered, and the authorities cited meet a public necessity. It is not a in West Virginia Transportation Co. business like that of an ordinary cor- v. Ohio River Pipe Line Co., 22 W. poration engaged in the manufacture Va. 600; Chicago, etc., Gas Co. v. of articles that may be furnished by People's Gas Co., 121 Illinois, 530; individual effort. New Orleans Gas Western Union Telegraph Co. v. Co. V. Louisiana Light Co., 115 U. S. American Union Telegraph Co., 65 650, 29 L. ed. 516, 6 Sup. Ct. 252; Georgia, 160." Gibbs v. Consol- Louisville Gas Co. v. Citizens' Gas idated Gas Co. of Baltimore, 130 U. Co., 115 U. S. 683, 29 L. ed. 510, 6 S. 408, 409, 32 L. ed. 979, 9 Sup. Ct. Sup. Ct. 265; Shepard v. Milwaukee 553, per Mr. Chief Justice Fuller. 178 NATURE OF VARIOUS CORPORATIONS § 83 a franchise vested in the State, in consideration of the per- formance of a pubhc service, and after performance by the grantee, is a contract protected by the Constitution of the United States against state legislation to impair it.^^ Again, a gas company as a public service corporation may fix a rate less than the maximum rate specified in a statute as that to be charged, and in such case the court will not, it is held, have power to determine that the company's charge is unreasonably highJ*^ Under the Pubhc Service Commissions Law of New York,^' the term "gas corporation," when used in that act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operat- ing, managing or controlling any plant or property for manu- facturing or distributing and selling for distribution or dis- tributing illuminating gas (natural or manufactured) for light, heat or power. § 83. Gas — Natural Gas Companies. — A natural gas com- pany is a public corporation when organized under a statute, providing for the incorporation and regulation of such com- panies, and also that the transportation and supply of natural gas for public consumption shall be a public use, and further granting the right of eminent domain and all other powers and privileges necessary for the prosecution of the business for which such companies are incorporated 7^ Such a company is also called a quasi-public corporation, which cannot discrimi- nate by charging more for gas for lighting than for heating, where it is incorporated for the purpose of furnishing natural ^ Louisville Gas Co. v. Citizens' olis, City of, v. Consumers' Gas Trust Gas Co., 115 U. S. 683, 29 L. ed. 510, Co., 144 Fed. 640, 75 C. C. A. 442. 6 Sup. Ct. 265. " Laws 1907, p. 892, chap. 429, "> Brooklyn Union Gas Co. v. City art. 1, § 2. of New York, 100 N. Y. Supp. 625, " St. Mary's Gas Co. v. Elk 115 App. Div. 69, aff'd 81 N. E. 141. County, 191 Pa. 458, 43 Atl. 421. See also People's Gas Light & Coke Is impressed with a public char- Co. V. Hale, 94 111. App. 406. acter. Indiana Natural & Illuminat- Gas company considered as public ing Gas Co. v. State, 158 Ind. 516, 63 service corporation, see Indianap- N. E. 220, 57 L. R. A. 561. 179 §§ 84-86 NATURE OF VARIOUS CORPORATIONS gas for heat and light." Where a municipahty has granted a franchise to a gas company to occupy the streets with its pipes, compulsory service to all consumers along the line may be required of the company by ordinance of the city 7^ So a State may regulate the pressure of natural gas transported in pipes within its borders, and such a regulation is not an unlaw- ful interference with interstate commerce.'^ And the furnish- ing of such gas to municipal corporations and their inhabitants constitutes a public use within the taxing power 7^ §84. Gas Company — Natural Gas Company — When " Manufacturing " Company.— A gas company engaged in manufacturing and supplying illuminating gas is included in the term ''manufacturing" company." But while the pro- duction of illuminating gas is a manufacture, the liberation of natural gas from the earth is not.'* § 85. Heating Corporation.— A heating corporation which is organized to supply heat by circulating hot water, through pipes in city streets to buildings, is not a public or quasi-public corporation .'^^ § 86. Hospital Corporation. — Where a statute provides for " Bailey v. Fayette Gas Fuel Co. L. J. 163, 12 L. R. A. 652, 28 N. E. (Pa.), 44 Wkly. N. C. 505, 44 Atl. 251. 76, 44 Alb. L. J. 145. See People's Gaslight & Coke Co. v. " State, Attorney General, v. To- Hale, 94 111. App. 406. Compare ledo, 48 Ohio St. 112, 25 Ohio L. J. Philadelphia Co. v. Park, 138 Pa. 346, 218, 34 Am. & Eng. Corp. Cas. 28, 26 22 Atl. 26. N. E. 1061, 11 L. R. A. 729. See also Unlawful discrimination — regula- as to public use Toledo v. North- tion of charges — Federal Constitu- western Ohio Natural Gas Co., 5 tion — equal protection of laws, see Ohio C. C. 557. Indiana Natural & Illuminating Gas " Nassau Gaslight Co. v. City of Co. V. State, 158 Ind. 516, 57 L. R. Brooklyn, 89 N. Y. 409, 25 Hun (N. A. 761, 63 N. E. 220. Y.), 567. ^* Rushville v. Rushville Natural '* Commonwealth v. Northern Elec- GasCo., 132Ind. 575, 15L. R. A. 321, trie Light & Power Co., 145 Pa. 28 N. E. 353. 105, 117, 22 Atl. 83, 14 L. R. A. 107, ^^ Jamieson v. Indianapolis Nat. per Williams, J. Gas Co., 128 Ind. 555, 10 Ry. & Corp. " Evans v. Boston Heating Co., 157 Mass. 37, 31 N. E. 698. 180 NATURE OF VARIOUS CORPORATIONS § 87 trustees for the founding of a public hospital for the insane, and such trustees are created a corporation, it is a public cor- poration governed and controlled by the State, and it acts ex- clusively as agent of the State and exercises governmental functions, even though it may sue and be sued under its char- ter; such corporation having no stockholders or members, ex- cept directors who have no interest in its affairs and are ap- pointed by the governor and senate and are public rather than corporate officers .*° But a hospital may be one which is maintained as a private enterprise.*^ §87. Insurance Companies. — The business of insurance is not commerce nor is the contract of insurance an instrumen- tality of commerce, so that a State may exclude a foreign in- surance company from its territory or may impose conditions upon which entry shall be made and may enforce those con- ditions .^^ And statutes prohibiting the carrying on of business by them except on compliance with prescribed conditions, such as obtaining a license therefor, etc., do not conflict with the guarantee under the Federal Constitution of privileges and im- munities to citizens in the several States as they are not "citi- zens" within the Constitution .^^ Insurance companies are also subject to control and regulation by the State, and its power to enact laws of such a character is inherent and these corpo- rations like natural persons are subject to legislation of this character.*'' It is declared in a New York case that: "As the business of insuring lives, property, credits and fidelity of conduct has become of such large public concern, in connection with the business enterprises and activities of the people of the 8» Maia's Adm'r v. Directors of S.) 168, 19 L. ed. 357. See § 67, Eastern State Hospital, 97 Va. 507, herein. 34 S. E. 617, 47 L. R. A. 577. '* Joyce on Ins. § 327. See also " Vink V. Work, 158 Ind. 638, 64 Raucn v. Prudential Life Ins. Co. N. E. 83 (exemption from taxation (Iowa), 106 N. W. 198; Opinion of case). Justices, In re, 97 Me. 590, 55 All. " Hooper v. California, 155 U. S. 828. Examine Adler-Wcinl)ergcr S. 648, 15 Sup. Ct. 207, 40 Cent. L. J. S. Co. v. Rothschild & Co., 123 Fed. 228, per White, J. 145; Melancon v. Phoenix Ins. Co., " Paul V. Virginia, 8 Wall. (75 U. 116 La. 324. 181 § 88 NATURE OF VARIOUS CORPORATIONS State generally, such business has essentially become one of a public character; and it has been found necessary by the legis- lature to guard and protect the people of the State in their dealings with the persons and corporations assuming to act as insurance companies, in the same manner that it has been found essential to deal with the business of banking. The State has now for many years had a governmental department devoted to that purpose, and has placed upon the superin- tendent or head of that department responsible duties in regard to the supervision of domestic and foreign companies doing business within the State." *^ § 88. Irrigation Companies— Irrigation Districts.— Under a Federal decision corporations engaged in the business of fur- nishing water for irrigation under the laws of California are private corporations and have the same rights to contract as have individuals, unless prohibited by statute, and may agree with a consumer as to rates or charges until they are regulated by the law, even though commissioners under the law may fix rates and the use of water for irrigation is a public use under the state constitution.*® But under a California decision such companies are declared to be quasi-public corporations.*'' But irrigation districts organized in that State, under the stat- utes of 1887, are public corporations to the same extent as are reclamation districts, and they are compared as to their crea- tion to municipal corporations.** In Washington such districts are not municipal corporations when formed under the act of March 20, 1890, so as to come within the meaning of the con- stitution of that State as to the latter's incurring indebted- ness.*^ In Texas irrigation companies organized for the pur- «5 People V. Loew, 44 N. Y. Supp. " People v. Linda Vista Irrig. 43, 26 Civ. Proc. 132, 19 Misc. 248. Dist., 128 Cal. 477, 61 Pac. 86. «« San Diego Flume Co. v. Souther, «« Central Irrig. Dist. v. De Lappe, 90 Fed. 164, 170, 32 C. C. A. 548, 61 79 Cal. 351. 21 Pac. 825. Compare U. S. App. 134, s. c, 104 Fed. 706; Turlock Irrig. Dist. v. Williams, 76 s. c, 112 Fed. 229. Examine San Cal. 360, 18 Pac. 379 (are quasi-pub- Diego Land & Town Co. v. Jasper, lie corporations for general public 189 U. S. 4.39, 445, 47 L. ed. 892, 23 benefit). Sup. Ct. 571. «" Board of Directors of Middle 182 NATURE OF VARIOUS CORPORATIONS § 88 pose of furnishing water for hire to those desiring its use, although technically private in their nature, are public or quasi-public corporations or carriers of water. As such quasi- public corporations or carriers of water, they cannot, what- ever their liability may be to the public, limit it by contract, and such attempted Umitation should be deemed unreasonable and held to be void. Corporations of this class must be held to the discharge of their public obligations and cannot avoid or escape the consequences of their failure to perform such duties by limiting their liability by contract. Otherwise, the public, whose servants they are, are at their mercy. Nor can they, in performing their public duty, discriminate in favor of or against any of its members entitled to their service. The ob- hgation rests upon them to discharge their duty to all; they must act faithfully in the performance of such duty, in so far as they can by the exercise of ordinary care and diligence, nor is it any excuse that they treat alike wTongfully all the members of the public entitled to their service, as a multi- plicity of wrongs does not justify a single one. If such a company contracts to furnish water to a consumer and negli- gently or willfully fails to comply with its contract in such respect it becomes liable to the consumer thus injured, for any damage suffered in the loss or injury to his crops by reason of such breach of contract.'^'' In Arizona a public irrigation com- pany is obligated, in the exercise of its franchise, to render its services to the public at reasonable rates.^^ In Nebraska a corporation formed for the purpose of owning, constructing and operating canals, reservoirs, dams and other works for irrigation and water power purposes, is a quasi-public corpo- ration and governmental agency, but its main purpose is the administration of a public utility. To the extent of its capacity it is obligated to furnish water, to persons desiring to use it, Kittitas Irrig. Dist. v. Peterson, 4 94 S. W. 400. See opinion of Neill, Wash. 147, 29 Pac. 195; Wash. J., at pp. 403, 404. Const, art. 8, § 6. " Salt River Valley Canal Co. v. «» Colorado Canal Co. V. McFarland Nellsen (Ariz., 1906), 85 Pac. 117. & Southwell (Tex. Civ. App., 1906), 183 § 89 NATURE OF VARIOUS CORPOlfATIONS on equal terms and without discrimination. It has no right or power to bind itself by a contract which, if enforced, would prevent its serving the public on such terms.^^ §89. Levee Districts — Levee Boards. — Levee districts are declared to be neither private nor public corporations;^^ and are also said to be public corporations.^'* And under a Federal decision, a levee district is a corporation and a public corpo- ration with power to sue and be sued even though a statute creating a board of levee inspectors with the powers usually- incident to such corporations does not expressly declare it to be a corporation.*^^ But in Ilhnois a board of directors ap- pointed by statute to locate and superintend the construction of a levee, with power to contract, sue and be sued under a specified name, is strictly a private corporation.^® It is also held that a levee district board exercises only public duties and functions and cannot be sued outside of the State .^^ Again, it is decided that such a district is a state local tax or assessment district, whose powers may be enlarged by the legislature.^* But it is also held that power cannot be delegated to a levee dis- trict to levy a tax under a state constitutional provision au- thorizing such legislative delegation of power to counties and incorporated towns .^'^ Again, a levee board may be a corpora- " Sammons v. Kearney Power & Wabash River v. Houston, 71 III. Irrigation Co. (Neb., 1906), 110 N. W. 318, 322. 308, 312, citing and considering State " Board of Directors of St. Francis V. Hartford & New Haven Rd. Co., Levee Dist. v. Bodkin (Tenn.), 69 '29 Conn. 538; Chicago Gaslight Co. S. W. 270. V. People's Gaslight Co., 121 111. 530, *'* Hughes v. Board of Commrs. of 2 Am. St. Rep. 124, 13 N. E. 169; Caddo Levee Dist., 108 La. 146, 32 West Virginia Transportation Co. v. So. 218. Ohio River Pipe Line Co., 22 W. Va. A police jury as a sublevee district 600, 46 Am. Rep. 527. cannot under the constitution levy " People v. Reclamation Dist. a special tax for levee improvements. No. 551, 117 Cal. 114, 48 Pac. Zeigler v. Thompson, 43 La. Ann. 1016. 1013, 10 So. 197. '* Dean v. Davis, 51 Cal. 406. *' Reelfoot Lake Levee Dist. v. " Board of Levee Inspectors of Dawson, 97 Tenn. 151, 36 S. W. 1041, Chicot County v. Crittenden, 94 Fed. 34 L. R. A. 725. Compare Carson v. 613. St. Francis Levee Dist., 59 Ark. 513, »• Board of Directors for Leveeing 27 S. W. 590. 184 NATURE OF VARIOUS CORPORATIONS § 90 tion vested with large discretionary powers as a fiduciary agent to carry out public purposes, such as power to aid in building levees, or other works of public improvement. It may also pos- sess authority to sue.^ And an act conferring corporate powers on a board of directors of a levee district created by statute does not violate a state constitutional provision against special acts conferring corporate powers, as private corporations only are within such pro vision. ^ It is held, however, that levee dis- tricts are not corporations, but state functionaries within the prohibition of a state constitution as to loaning funds, etc., of the State.'' In Arkansas neither a levee district nor its board of directors, is a municipality within a constitutional pro- hibition as to issuance of interest-bearing evidences of debt.'' In Missouri a levee district is a political subdivision of the State.^ A levee constructed along a river is, however, such a public use that the power of eminent domain may be exer- cised.^ The word "levee" is synonymous with the word "landing" when used in connection with levees bordering on navigable streams and sloughs.' § 90. Log Driving or Boom Corporation. — The character of a corporation, as one created for pecuniary profit or as a boom company to improve a river for log driving, may be affected ' Louisiana, A. & M. R. Co. v. lands in constructing levee, see De Tensas Basin Levee Dist. Commr's, Baker v. Southern Cal. R. Co., 106 87 Fed. 594, 31 C. C. A. 121, 58 U. S. Cal. 257, 39 Pac. 610. App. 281. ° Missouri, K. & T. Ry. Co. v.» * Carson v. St. Francis Levee Dist., Cambern, 66 Kan. 265, 71 Pac. 809, 59 Ark. 513, 27 S. W. 590. aff g 63 Pac. 605. » Fisher v. Steele, 39 La. Ann. 447, As to exercise of power of eminent 1 So. 882. domain see Pontchartrain R. Co. v. * Memphis Trust Co. v. Board of Orleans Levee Dist. Comm'rs, 49 La. Directors of St. Francis Levee Dist., Ann. 570, 21 So. 765; Union Elevator 69 Ark. 284, 62 S. W. 902 (applied to Co. v. Kansas City Suburban B. R. St. Francis Levee District). Co. (Mo.), 33 S. W. 929, modified 135 5 Morrison v. Morey, 146 Mo. 543, Mo. 353, 36 S. W. 1071; Hansen v. 48 S. W. 629. Hammer, 15 Wash. 315, 46 Pac. Municipal corporation not liable in 332. exercise of police powers for errors ' Napa v. Howland, 87 Cal. 84, 25 of judgment for damage to others' Pac. 247. 185 § 90 NATURE OF VARIOUS CORPORATIONS by the terms of the statute under which such corporation or company is incorporated.* The business of booming logs on the waters of streams running through the forests of the West, is a lawful business, and a boom company is a lawfully organ- ized corporation for the purpose of doing such lawful busi- ness; and it is "chartered" by law, when the corporation owning it is incorporated under either a general or special law. And the improvement made in the Mississippi River by the construction of the boom and its works, and the exaction of reasonable charges for the use of such works, including fees of state officials for inspecting and scaling, if done under state authority, cannot be considered in any just sense a burden upon interstate commerce.^ But a corporation having power under its charter to improve the navigation of a stream, cannot, as incidental thereto, exercise a claimed right to drive or handle logs.^" A log driving or boom corporation, authorized by its articles of incorporation to use the waters of a navigable river for a purpose pubUc in its nature, such as improving navigation, and facilitating its business, has the rights of the public in the stream within its well-defined banks, and in aid of navigation it can raise and permanently maintain the water up to ordinary high-water mark, without making any com- pensation to riparian owners and without incurring liability in case of injury to them.^^ A boom company may exercise the power of eminent domain, ^^ although the condemnation of land for log roads is a taking of private property for private use and violates the constitution.^^ Again, such boom companies are also subject to the right of the legislature to regulate the fees or tolls for booming, sorting and rafting logs or lumber.^'* « See International Boom Co. v. '' Gniadck v. Northwestern Im- Rainy Lake River Boom Corp., 97 provement & B. Co., 73 Minn. 87, 89, Minn. 513, 107 N. W. 735. 75 N. W. 894. » Lindsay & Phelps Co. v. Mullen, '^ Samish River Boom Co. v. Union 176 U. S. 126, 20 Sup. Ct. 125, 44 L. Boom Co., 32 Wash. 586, 73 Pac. 670. ed. 400. '^ Healy Lumber Co. v. Morris, 33 " Northwestern Improvement & B. Wash. 490, 74 Pac. 681, 63 L. R. A. Co. V. O'Brien, 75 Minn. 335, 75 N. 820. W. 989. '^ Machias Boom v. Holway, 89 Me. 186 NATURE OF VARIOUS CORPORATIONS §§ 91-93 §91. Manufacturing Corporations. — Manufacturing corpo- rations are private corporations in the strictest sense, as they are created for the convenience of the corporation, and are charged with no public duties whatever. ^^ § 92. Market Company. — A company incorporated to build and maintain a market house, on property to be acquired by purchase, and authorized to rent stalls therein, on such terms and to such persons as its managers may determine, with full power to lease or sell the property acquired for that purpose, and to quit the business at its own pleasure, is in every legal sense a mere private business corporation.^^ So where a build- ing, which is a market house, is erected upon a public square in a borough, which the corporation, a private one, is permitted to occupy until the borough purchases and pays for the build- ing, it differs in no respect from the business of an individual except that it is erected in such place, as the company needs no chartered rights to carry on its business and the building is not exempt from local taxation; and the principle that the works of a public corporation, as, for example, the case of a railroad company, may not be subjected to local taxation without express statutory mandate, does not apply to such private corporation.^^ § 93. Medical College.'* — A medical college is a private, or part of a private corporation, and not a public or political corporation, and the creating act of such a society constitutes a contract with the State which cannot be impaired, under the 236; Underwood Lumber Co. v. Pel- See §§ 77, 84, herein, ican Boom Co., 76 Wis. 76, 45 N. W. '» Twelfth St. Market Co. v. Phila- 18. Examine as to rights of boom delphia & Reading R. Co., 142 Pa. companies The Navigation Law, 580, 21 Atl. 989. Laws of New York 1897, chap. 592, " Allegheny County v. McKecsport art. V; Cumming & Gilbert's Gen. Diamond Market, 123 Pa. 164, 168, Laws & Gen'l Stat, of N. Y., pp. 2525 16 Atl. 619. et seq. Right of city to control public mar- '^ Hamilton Mfg. Co. v. Massachu- kets, see Swayze v. City of Monroe, setts, 6 Wall. (73 U. S.) 632, 638, 18 116 La. 643, 40 So. 926. L. ed. 904, per Clifford, J. '* See § 73, herein. 187 §§ 94, 95 NATURE OF VARIOUS CORPORATIONS Federal Constitution, by a subsequently enacted statute trans- ferring all its powers to a new corporation without such so- ciety's consent. ^^ But a medical college may by its consent become a public corporation.^" § 94. Park Association. — A park association is a private corporation where its objects are especially private and it possesses a distinctive name.^^ § 95. Plank Roads. ^2 — The nature of the right of a plank road company in a road constitutes rather an easement than an absolute title ; it is a franchise impressed with a public duty to maintain a highway for public use.^' " State V. Heyward, 3 Rich. Law '' Western Plank Road Co. v. (S. C), 389, 408. Central Union Tel. Co., 116 Ind. 227, 2" Lewis V. Whittle, 77 Va. 415. 18 N. E. 14. '' Commonwealth v. Hazen, 207 When plank roads are highways, Pa. 52, 56 Atl. 263. see Flint & Pere Marquette Ry. Co. " See § 116, herein. v. Gord, 41 Mich. 420, 2 N. W. 648. 188 NATURE OF VARIOUS CORPORATIONS CONTINUED § 96 CHAPTER VII. NATURE OF VARIOUS CORPORATIONS CONTINUED. Race Track Association. Railroad Companies — Nature of as Affected by Their Re- lation and Duty to the Public. Railroad Companies as Public Corporations or " Pubhc Companies " — Statute. Railroad Companies as Pri- vate Corporations. 100. Railroad Companies as Quasi- public Corporations. Railroad Companies as Form- ing Distinct Class by Them- selves — Distinct from Pub- lic, Private, or Other Quasi- Public Corporations. Railroad — Public Use. Railroad — Machine for Un- loading Coal — Branch Rail- road Track — Public Use. Railroads as Public Utilities — Public Service Commis- sions Law — Public Utilities Act. Railroad Companies as Com- mon Carriers. 96. 97. 98. 99. 101. 102. 103. 104. 105. 106. Railroad Carriers' Business as Part of Trade or Com- merce — Interstate Com- merce. 107. Railroads as Highways. 108. Reclamation Districts. 109. Sleeping-Car Companies- Palace Cars. 110. Stockyards Company. 111. Street Railways— Street Rail- way Companies. 112. Street Railroad — Street Rail- road Corporation — Pubhc Service Commissions Law. 113. Storage and Elevator Com- panies. 114. Telegraph and Telephone Companies. 115. Trustees — Company Incorpo- rated as — Trustees of Poor. 116. Turnpike Companies — Toll Roads. 117. Turnpike Road as Highway. 118. Waterworks. 119. Wharf— " Public Wharf- Wharfingers. § 96. Race Track Association.— Where a corporation is or- ganized for a public purpose and enjoys a public franchise, the conditions upon which it shall exercise the privileges or right conferred may be determined and directed by the legis- lature; 1 and this rule has been applied to a racing association 1 Grannan v. Westchester Racing 896, modifying 44 N. Y. Supp. 790, Assoc, 153 N. Y. 449, 461. 47 N. E. 16 App. Div. 8. 189 § 97 NATURE OF VARIOUS as a public corporation. ^ But it is also held that a race track corporation which offers purses and stakes, is a private and not a quasi-public corporation where it exercises no franchises, which clothe it with any public duty, and it has never held itself out for public service; and there is no grant of state aid nor the possession of the power of eminent domain, nor any obligation to offer stakes or purses, but its business is trans- acted for its own private purposes.^ §97. Railroad Companies — Nature of as Affected by Their Relation and Duty to the Public. — Railroad corpora- tions are invested with special privileges, and the consideration for the public grant is the performance of their duties to the public. The franchise granted to them is intended to be ex- ercised for the public good; their business is a matter of pub- lic concern as the public have an interest therein; and such corporations exercise their franchises as a quasi-public trust for the benefit of the people. They are public agents and perform, to a certain extent, certain functions of the govern- ment with which they are intrusted in order to afford the public necessary means of transportation. As they are formed See the following cases: v. Choctaw, O. & G. R. Co., 3 Okla. United States: Jersey City Gas 404, 41 Pac. 729. Light Co. V. United Gas Improve- Pennsylvania: Commonwealth, ment Co., 46 Fed. 264, 266, per Bell Teleph. Co. v. Warwick, 185 Greene, J., case aff'd 58 Fed. Pa. 623, 40 Atl. 93; Perkiomen R. 323. Co. V. Collegeville Electric St. R. Co. Illinois: Chicago General R. Co. (Pa. C. P.), 14 Mont. Co. L. R. 13. V. Chicago, 176 111. 253, 66 L. R. A. Texas: Galveston & Western R. 959, 52 N. E. 880, 68 Am. St. Rep. Co. v. Galveston, 90 Tex. 398, 36 188; Byrne v. Chicago General R. L. R. A. 33. Co., 169 III. 75, 7 Am. & Eng. Corp. Virginia: Richmond R. & E. Co. Cas. (N. S.) 768, 48 N. E. 703, aff'g v. Brown, 97 Va. 26, 32 S. E. 775, 63 111. App. 438. 1 Va. S. C. Rep. 213. Maine: Boston & M. R. Co. v. 2 Grannan v. Westchester Racing County Commrs., 79 Me. 386, 10 Atl. Assoc, 153 N. Y. 449, 461, 47 N. E. 113, 4 N. Eng. 657. 896, modifying 44 N. Y. Supp. 790, New Jersey: State, Hutchinson, 16 App. Div. 8. v. Belmar, 61 N. J. L. 443, 39 Atl. 3 Corrigan v. Coney Island Jockey 643, aff'd 62 N. J. L. 450. Club, 22 N. Y. Supp. 394, 2 Misc. 512, Oklahoma: United States, Search, 51 N. Y. St. R. 592. 190 CORPORATIONS CONTINUED § 97 for the convenience of the public in the transportation of per- sons and merchandise, they are empowered to charge and re- ceive a reasonable compensation for such carriage. They are also subjected to burdens not imposed on the owners of mere private property used exclusively for private interests. As their franchises are granted on the ground of public good, or public service, which is common or equal in every citizen, un- equal and unjust favors are precluded, they must exercise a perfect impartiality and cannot discriminate, and they assume the obligation to transport all persons and merchandise upon like conditions and at reasonable rates. They may be au- thorized to exercise the right of eminent domain, and are subject to reasonable and just legislative control for the common welfare; "* nor can they by contract render themselves incapable 4 United States v. Trans-Missouri thorized to charge reasonable corn- Freight Assoc, 166 U. S. 290, 321, pensation for the services they thus 332, 41 L. ed. 1007, 17 Sup. Ct. 540. perform. Being the recipients of See Chicago, Milwaukee & St. Paul special privileges from the State, to Rd. Co. V. Minnesota, 134 U. S. 418, be exercised in the interests of the 461, 33 L. ed. 970, 10 Sup. Ct. 462, pubhc, and assuming the obligations 702, per Bradley, J., in dissenting thus mentioned, their business is opinion. Barton v. Barbour, 104 deemed affected with a public use." U. S. 126, 135, per Woods, J. Charlotte, Columbia & Augusta Rd. "Though railroad corporations are Co. v. Gibbes, 142 U. S. 386, 393, private corporations as distinguished 35 L. ed. 1051, 12 Sup. Ct. 255, per from those created for municipal and Field, J. governmental purposes, their uses are The franchise of a railroad corpora- public. They are formed for the con- tion is intended to be exercised for the venience of the public in the trans- public good, the consideration for this portation of persons and merchan- public grant being the performance of disc, and are invested for that purpose these functions. Thomas v. West with special privileges. They are Jersey Rd. Co., 101 U. S. 71, 83, 25 allowed to exercise the State's right L. ed. 950, quoted in Chicago v. of eminent domain that they may People's Gas Light & Coke Co., 121 appropriate for their uses the neces- 111. 530, 13 N. E. 169, 173. sary property of others upon paying "It is clear that the privilege of just compensation therefor, a right making a railway or turnpike, which can only be exercised for public * * * and taking tolls for the purposes. And they assume, by the same, is a franchise, as the public acceptance of their charters, the obli- have an interest in the same, and the gation to transport all persons and owners of the privilege arc liable to merchandise upon like conditions and answer in damages if they refuse the at reasonable rates; and they are au- use of the same, without any reason- 191 §97 NATURE OF VARIOUS of performing their duties to the pubUc, which are imposed upon them, nor can they absolve themselves from their obli- able excuse, upon being paid or ten- dered the usual fare." People's Rail- road V. Memphis Railroad, 10 Wall. (77 U. S.) 38, 51, 20 L. ed. 844, per Clifford, J., citing Beekman v. Sara- toga & Schenectady Rd. Co., 3 Paige Ch. (N. Y.) 45, so holding; Wil- loughby V. Horridge, 16 Eng. L. & Eq. 437; 3 Kent's Coram. (11th ed.) 590; County Commissioners v. Chandler, 96 U. S. 205, 209, 24 L. ed. 625, per Bradley, J. Railroad companies are by their charters "empowered, besides build- ing and maintaining their roads, to carry passengers and property for a compensation; and at the same time a correlative duty is imposed, that they shall receive and carry passen- gers and freights over their roads, as they may be offered for the purpose. And when they accept their charters, it is with the implied understanding that they will fairly perform these duties to the public, as common car- riers of both persons and property, under the responsibility which that relation imposes." Peoria & Rock Island Ry. Co. v. Coal Valley Mining Co., 68 111. 489, 494. "All property devoted to public use takes a nature or qualification quasi-public. * * * Where prop- erty belonging to a natural person or to a corporation becomes 'affected with a public interest, it ceases to be juris privati only.' Where a party devotes his property to a public use, the community at large acquires such a qualified interest as will subject it to legislative control for the common welfare. Accordingly, the property of railroads and other public corpora- tions transacting business for and 192 with the public has been subjected to burdens not imposed on the own- ers of mere private property, used exclusively for private interests. * * * Railroad companies are public corporations in a limited sense, although the right of way, roadbed, and the track thereon, are for the exclusive use of the owners, over which only their own convey- ances are propelled. * * * The fact that railroad corporations are granted exclusive franchises to con- duct a business in its nature pubhc must subject them to all reasonable control to secure the public safety and welfare. It is now the settled law that railroad corporations are within the operation of all reasonable police regulations." Illinois Central Rd. Co. V. Copiah County, 81 Miss. 685, 694, 33 So. 502, per Whitfield, C. J., quoting from Illinois Central Rd. Co. V. Willenborg, 117 111. 203, 209, 57 Am. Rep. 862, 7 N. E. 698, per Scott, J. "In the grant of a franchise of building and using a public railway, there is an implied condition that it is held as a quasi-public trust for the benefit of the public, and the corpora- tion possessed of the grant must exercise a perfect impartiahty to all who seek the benefit of the trust." It is true "that these railroad corpora- tions are private, and, in the nature of their business, are subject to, and bound by, the doctrine of common carriers, yet, beyond that in a pecu- liar sense, they are intrusted with certain functions of the government, in order to afford the public necessary means of transportation. The be- stowment of these franchises is CORPORATIONS CONTINUED § 97 gations without consent of the State. ^ Although its functions are pubhc, a railroad company holds the legal title to the property employed in the discharge of its duties, and while it must under all circumstances do everything reasonably necessary for the accommodation of passengers and shippers, it may use its property to the best advantage of the public and itself, and for that end may make reasonable rules and regulations for the use of its property consistent with the pur- poses for which it is created, and not inconsistent with legally established regulations. When not unnecessary, unreasonable or arbitrary, a railroad may make arrangements with, including the granting of special privileges to, a single concern to supply passengers arriving at its terminals with hacks, and cabs, and it is not bound, at least in the absence of valid state legislation requiring it to do so, to accord similar privileges to other per- sons, even though they be licensed hackmen. Such an exclu- sive arrangement is not a monopoly in the odious sense of the justified only on the ground of public to railroads should be fostered by- good, and they must be held and the courts. Joy v. St. Louis, 138 U. enjoyed for that end. This public S. 1, II Sup. Ct. 9, 34 L. ed. 604. good is common, and unequal and & "It is well settled on the soundest unjust favors are entirely inconsistent principles of public policy that a con- vvith the common right. So far as tract, by which a railroad company their duty to serve the public is con- seeks to render itself incapable of cemed, they are not only common performing its duties to the public, or carriers, but public agents, and in attempts to absolve itself from its their very constitution and relation obligations without the consent of the to the public, there is necessarily an State, is void and cannot be rendered implied duty on their part, and a enforceable by the doctrine of es- right in the public, to have fair treat- toppel, and any contract which dis- ment and immunity from unjust ables the corporation from perform- discrimination. The right of the ing its functions without the consent public is equal in every citizen, and of the State, and to relieve the gran- the trust must be performed so as to tees from the burden it imposes, is in secure and protect it." Messenger v. violation of the contract with the Pennsylvania Rd. Co., 37 N. J. L. State, and is void as against public 531, 536, 537, 18 Am. Rep. 754. policy." Paige v. Schenectady Ry. Examine note 3 Am. & Eng. Rd. Cas. Co. (Thompson v. Same), 178 N. Y. 602, especially as to weight of Eng- 102, 115, 70 N. E. 213, per Martin, J. lish authority contra. (citing several cases), case reverses The rights of the public in respect 82 N. Y. Supp. 192, 84 App. Div. 91. 13 193 §§ 98, 99 NATURE OF VARIOUS word, nor docs it involve an improper use by a railroad com- pany of its property.^ § 98. Railroad Companies as Public Corporations or " Pub- lic Companies" — Statute. — Railroad companies ''are pub- lic corporations in a limited sense."' And they are "public companies" when incorporated under the English companies' acts, so as to come within the terms of a direction to trustees, under a will, to invest in securities of any railway or other public company.* Where a statute provides that all railroad corporations, chartered by the State, which shall be unable to purchase lands for their roads, of the owners of the respective routes, at agreed upon rates, shall be public corporations, and an earlier statute provides that members of public corpora- tions shall be competent witnesses in cases affecting the in- terests of such corporations, it is held that railroad corpora- tions are not such public corporations, within the meaning of the earlier enacted statute, that the stockholders can be wit- nesses for the corporation.^ § 99. Railroad Companies as Private Corporations.— Tech- nically, railroad companies are private corporations, they are private as distinguished from those created for municipal and governmental purposes. ^*^ They are also private in the nature of their business,^^ and in the sense that, even though their e Donovan v. Pennsylvania Co., L. ed. 382, per Strong, J. See note to 199 U. S. 279, 50 L. ed. 192, 26 Sup. § 99, herein. Ct. 91. 8 Sharp, In re (C. A.), L. R. 45 Ch. 7 lUinois Central Rd. Co. v. Copiah D. 286. County, 81 Miss. 685, 694, 33 So. 502, 9 Dearborn v. Boston, Concord & per Whitfield, J. Montreal Rd., 24 N. H. (4 Fost.) "It is not seriously denied that 179, 189. railroad, though constructed and lo Charlotte, Columbia & Augusta owned by a private corporation is a Rd. Co. v. Gibbes, 142 U. S. 386, 393, matter of public concern, and that 12 Sup. Ct. 255, 35 L. ed. 1051; its uses are so far public that the Burhop v. City of Milwaukee, 21 Wis. right of eminent domain of the State 257. may be exerted to facilitate its con- n Messenger v. Pennsylvania Rd. Btruction." Olcott v. Supervisors, 16 Co., 37 N. J. L. 531, 536, 537, 18 Am. Wall. (83 U. S.) 678, 695, 696, 22 Rep. 754. 194 CORPORATIONS CONTINUED § 100 uses are public, the contract embodied by implication in their charters is within the constitutional provision which prohibits the impairment of obligations of contracts.^' Although a railway company is technically a private corporation, yet it is designed to promote the general public good as well as advance private speculation. So, too, are turnpike and canal companies, and other like corporations, designed to enhance the public prosperity. The interest, therefore, which the public may have in a corporation, unless it has all the interest, does not nec- essarily make it a public corporation.^^ It is declared in a Pennsylvania case that: "A railroad company is not public, nor does it stand in the place of the public; it is but a private corporation over whose rails the public may travel if it choose to ride in its cars. Indeed, we regard it as a misnomer to at- tach even the name 'quasi-public corporation' to a railroad company, for it has none of the features of such corporations, if we except its quahfied right of eminent domain, and this is because of the right reserved in the public to use its way for travel and transportation. Its officers are not public officers, and its business transactions are as private as those of a bank- ing house. Its road may be called a quasi-public highway, but the company itself is a private corporation and nothing more." ^* § 100. Railroad Companies as Quasi-Public Corpora- tions. — In the circumstances of their origin and in their powers, uses and duties, railroad corporations are clearly distinguishable from other merely private corporations. There is no analogy between railroad corporations, and manufactur- ing, mining and other like corporations, evoked by no public necessity, exercising no sovereign powers, subserving no pub- lic uses, and subject to no public duties. And these distin- 12 Georgia R. & Rkg. Co. v. Smith, " Pierce v. Commonwealth, 104 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. Pa. 150, 155, 13 Am. & Eng. Rd. 377, 16 Wash. L. Rep. 749. Cas. 74, 79, per Gordon, J., citing 13 Board of Directors for Leveeing Presbyterian Society v. Auburn & Wabash River v. Houston, 71 111. Rochester Rd. Co., 3 Hill (N. Y.), 318, 322, per Scott, J. 567. 195 I 101 NATURE OF VARIOUS guishing characteristics make railroad corporations quasi- public corporations. They are creatures of the law, intrusted with the exercise of sovereign powers to subserve public ne- cessities and uses and are bound to conduct their affairs in furtherance of the objects of their creation. ^^ § 101. Railroad Companies as Forming Distinct Class by Themselves— Distinct from Public, Private, or Other Quasi- Public Corporations.— "Railroad corporations have pecuhar qualities which distinguish them from mere private corpo- rations, or other public or quasi-public corporations, in the right of eminent domain to condemn lands, conferred on them by charter; in the uses to which their railroads may be applied by them as carriers of passengers and freight, receiving tolls or fares for the same; in the employment of steam power, a dangerous agency, in passing through the State, and their protection in the careful use of such agency; in the structure of the road, with its rails, cuts, embankments, often built and maintained at great detriment to other property; in the ex- 15 Railroad Commissioners v. Port- business and contract against public land & Oxford Central Rd. Co., 63 policy). Me. 269, 277, 278, per Dickinson, J. A railroad corporation is created (railroads as quasi-corporations); see for public purposes, " performs pub- also Eckington & Soldiers' Home Ry. lie duties and exercises delegated Co. V. McDevitt, 191 U. S. 103, 114, sovereign rights for that purpose and 48 L. ed. 112, 24 Sup. Ct. , per is in its nature a public corporation Fuller, C. J. ; Pueblo & Arkansas Val- even though its shares are owned by ley Rd. Co. v. Taylor, 6 Colo. 1, 45 private individuals;" they are quasi- Am. Rep. 512; Kotz v. Illinois Cent, pubhc and stand by themselves in a Ry. Co., 188 111. 578, 59 N. E. 240. distinct class; "The entire duty they " A railroad company is a quasi- perform is a pubhc one, and a charter public corporation, and owes certain from the lawmaking power is neces- duties to the pubhc, among which are sary to its exercise. * * * The the duties to afford reasonable facili- road, once constructed, is, instanter, ties for the transportation of persons and by mere force of the grant and and property anc^ to charge only rea- law, embodied in the governmental sonable rates for such service." agencies of the State and dedicated to Chicago, Milwaukee & St. Paul Ry. public use." Talcott V. Township of Co. v. Wabash, St. Louis & Pac. Ry. Pine Grove, 1 Flipp. (U. S. C. C.) Co., 61 Fed. 993, 997, 9 C. C. A. 659, 120, 143, 144, Fed. Cas. No. 13,735, per Caldwell, C. J. (a case of pooling per Emmons, Cir. J. 196 CORPORATIONS CONTINUED §§ 102, 103 tent of the road, often through several counties or across the State; in the depots, freight houses, wharves, and the great accumulation of property at the termini and other points on the line of the railway. Canals have some of the same pe- culiarities in the construction and maintenance of their water- ways. These characteristics, which so clearly distinguish them from other corporations, make it almost a necessity that they should form a class by themselves." ^^ § 102. Railroad— Public Use.— The business of a railroad company is aftected with a pubhc use, so that the power of taxation may be invoked to aid in the construction of the road.^'' And to the extent of such use the company's business is subject to legislative regulations.^* ''That a railroad is for public use, though granted to a private company, has been decided, so far as we are informed, by every tribunal where the question has been made, and recognized, by the silent ac- quiescence of all concerned, in this State." ^^ § 103. Railroad — Machine for Unloading Coal— Branch Railroad Track— Public Use. — A machine used for unloading coal from cars into boats is devoted to a public use, where it is part of the terminal facilities and of the entire plant of the railroad company and necessary for the successful prosecution of its business, and that of a coal transfer company even though constructed, owned and maintained jointly by both companies, and the grant to one shipper of coal of the exclu- w Stat« Board of Assessors v. is Charlotte, Columbia & Augusta Central R. R. Co., 48 N. J. L. 146, Rd. Co. v. Gibbes, 142 U. S. 386, 393, 289, 4 Atl. 578, per Scudder, J. See 35 L. ed. 1051, 12 Sup. Ct. 255, per note to § 99, herein. Field, J. 17 Northern Pac. R. Co. v. Roberts, "The building and running of a 42 Fed. 734, 31 Am. & Eng. Corp. railroad for public use are of public Cas. 642. See Estill County v. right, and require legislative sanc- Embry, 144 Fed. 913; State ex rel. tion." McGregor v. Eric Ry. Co., 35 Arkansas Southern Rd. Co. v. N. J. L. 89, 97, per Redle, J. Knowles (La.), 41 So. 439; State v. ifl Enfield Toll Bridge Co. v. Hart- Board of Commrs. of Clinton County ford & New Haven Rd. Co., 17 Corm. (Ind.), 76 N. E. 986 40, 58, per Williams, Ch. J. 197 § 104 NATURE OF VARIOUS sive use of such machine, constitutes an unlawful discrimina- tion. ^"^ The decisive tests as to whether a branch railroad track is for public or private purposes are these : Is the track to be open to the public, on equal terms to all having occasion at any time to use it, so that all can demand that they be served without discrimination? If so, and the track is subject to governmental control, under general laws, as are the main lines of a railroad, then the use is public, and the case a proper one for the exercise of the right of eminent domain .^^ § 104. Railroads as Public Utilities— Public Service Com- missions Law— Public Utilities Act.^^— Commercial railroads may be recognized as public utilities, as well as private enter- prises. Extensive rights and franchises have been conferred upon them, including the right to invoke the power of eminent domain; they have also had imposed upon them duties they cannot avoid, one of which is that they shall serve the public without unjust discrimination, but, with the exception of those duties which such carrier owes to the public, it has com- plete dominion over its property as well as every other owner. ^^ Under the Public Service Commissions Law of New York, the term "railroad when used in that act," includes every railroad, other than a street railroad, by whatsoever power operated for public use in the conveyance of persons or property for compensation, with all bridges, ferries, tunnels, switches, spurs, tracks, stations and terminal facilities of every kind used, operated, controlled or owned by or in connection with any such railroad." 24 The same law also provides that: "The term 'railroad corporation,' when used in this act, includes every corporation, company, association, joint-stock associa- 20 Youghiogheny & Ohio Coal Co. " See § 59, herein. V. Erie Ry. Co., 24 Ohio Cir. Ct. Rep. " Memphis News Pub. Co. v. 289. Southern Ry. Co., 110 Tenn. 684, 75 2> Ulmer v. Lime Rock Rd. Co., 98 S. W. 941, 63 L. R. A. 150. Me. 579, 587, 57 Atl. 1001. See ^* Public Service Commissions Law Kansas City, S. & G. Ry. Co. v. of N. Y., Laws 1907, p. 891, chap. Louisiana Western R. Co., 116 La. 429, art. I, § 2. 178, 40 So. 627. 198 CORPORATIONS CONTINUED § 104 tion, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, man- aging or controlling any railroad or any cars or other equip- ment used thereon or in connection therewith." ^^ The Rail- road Act of Wisconsin, as amended by the Public Utilities Act, provides that: "The term 'railroad' as used herein shall mean and embrace all corporations, companies, individuals, asso- ciations of individuals, their lessees, trustees or receivers (ap- pointed by any court whatsoever) that now, or may hereafter, own, operate, manage or control any railroad or part of a railroad as a common carrier in this State, or cars, or other equipment used thereon, or bridges, terminals or side tracks, used in connection therewith, whether owned by such railroad or otherwise, and also all streets and interurhan railway com- panies. (a) The term 'railroad' whenever used herein shall also mean and embrace express companies and telegraph com- panies. * * * a. (b) The provisions of this act shall apply to the transmitting and delivering of messages by telegraph, and to all charges connected therewith, and to the transportation of passengers and property between points within this State, and to the receiving, switching, delivering, storing and handling of such property, and to all charges connected therewith, and shall apply to all railroad corporations, express companies, telegraph companies, car companies, sleeping-car companies, freight and freight-line companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon or over any line of railroad within this State, and to any common carrier engaged in the transportation of passengers and {or) property wholly by rail or partly by rail and partly by water, b. (c) This act shall not apply to * * * logging or other private rail- roads not doing business as common carriers." ^' " Public Service Commissions Law Italicised words and letters added, of N. Y., Laws 1907, p. 891, chap. Laws Wis., 1907, pp. 433, 434, 429, art. I, § 2. chap. 582, § 1797-2 a. b. The words ""Railroad Act" of 1905; Laws "street and electric railroads en- Wis., 1905, p. 552, chap. 362, § 2. gaged solely in the transportation of 199 §§ 105, 106 NATURE OF VARIOUS § 105. Railroad Companies as Common Carriers.— Railroad corporations are common carriers and they occupy a peculiar relation to the public as invested with certain franchises for the public benefit, and they are bound to use them with fair- ness and for the common good.^'^ They impHedly agree "that they will fairly perform their duties to the public as common carriers of both persons and property, under the responsibility which that relation imposes." ^^ But a railroad is not a com- mon carrier where its only duty is to haul a special train of cars under a special contract, wherein the shipper assumes all risks of accident and loads and unloads the cars and the train is run on a schedule of time to suit the shipper's convenience .^^ § 106. Railroad Carrier's Business as Part of Trade or Commerce — Interstate Commerce.— It is declared by the Su- preme Court of the United States that: "The business of a railroad carrier is of a public nature, and in performing it the carrier is also performing to a certain extent a function of gov- ernment which, as counsel observed, requires them to per- form the service upon equal terms to all. This public service, that of transportation of passengers and freight, is a part of trade and commerce, and when transported between States, such commerce becomes what is described as interstate, and comes to a certain extent, under the jurisdiction of Congress by virtue of its power to regulate commerce among the several States. * * * Although the franchise when granted by the State becomes by the grant the property of the grantee, yet there are some regulations respecting the exercise of such passengers within the limits of cities, 37 N. J. L. 531, 536, 537, 18 Am. Rep. nor to ' ' preceded the word " logging " 754. in the act of 1905. They are common carriers imder ^' Messenger v. Pennsylvania Rd. Louisiana constitution 1898, art. 272. Co., 37 N. J. L. 531. Kansas City, S. & G. Ry. Co. v. 2* Peoria & Rock Island Ry. Co. v. Louisiana Western R. Co., 116 La. Coal Valley Mining Co., 68 111. 489, 178, 40 So. 627. 494. 29 Chicago, M. & St. P. R. Co. v. They "are subject to and bound by Wallace, 66 Fed. 506, 14 C. C. A. the doctrine of common carriers." 257, 28 U. S. App. 589, 30 L. R. A. Messenger v. Pennsylvania Rd. Co., 161. 200 CORPORATIONS CONTINUED § 107 grants which Congress may make under its power to regu- late commerce among the several States. This will be con- ceded by all, the only question being as to the extent of the power. * * * \Ye think it extends at least to the pro- hibition of contracts relating to interstate commerce, which would extinguish all competition between otherwise compet- ing railroad corporations, and which would in that way re- strain interstate trade or commerce." ^" § 107. Railroads as Highways.— Railroads built under au- thority of the law are public highways,^^ established primarily for the convenience of the people, and to subserve public ends, and are subject to governmental control and regulation; and for these reasons the corporation owning it may, under legis- lative sanction, take private property for a right of way, upon making just compensation to the owner.^^ "j^^ jg g^^j^ that railroads are not public highways per se; that they are only declared such by the decisions of the courts, and that they have been declared public only with respect to the power of eminent domain. This is a mistake. In their very nature they are public highways. It needed no decision of courts to make them such. True, they must be used in a peculiar man- ner, and under certain restrictions, but they are facilities for passage and transportation afforded to the public, of which the public has the right to avail itself." ^^ There is, however, a clear distinction between the cases of railroads and canals, and plank and turnpike roads; the occupation of the highway by the former being permanent and exclusive, whereas the latter are considered public highways, over which every citi- zen has the right to travel in his own mode of conveyance, « United States v. Joint Traffic Kansas Ry. Co., 135 U. S. 641, 34 Assoc, 171 U. S. 505, 570, 19 Sup. Ct. L. ed. 295, 10 Sup. Ct. 965. 25, 43 L. ed. 2.'59, per Peckham, J. " Qlcott v. The Supervisors, 16 "Talcott V. Township of Pine Wall. (83 U. S.) 678, 695, 696, 22 Grove, 1 Flipp. (U. S. C. C.) 120, 146, L. ed. 382 (per Strong, J., holding Fed. Cas. No. 13,735, per Em- that State may impose a tax for mons, Cir. J. public use); Kansas City, S. & G. Ry. '^Cherokee Nation v. Southern Co. v. Louisiana Western R. Co., 116 201 §§ 108, 109 NATURE OF VARIOUS the imposition of tolls being simply a means of keeping them in repair.^'* Where, throughout an act of Congress, a rail- road is referred to, in its character as a road, as a permanent structure, and designated, and required to be, a public high- way, the term ''railroad" cannot, without doing violence to language, and disregarding long-established usage of legisla- tive expressions, be extended to embrace the rolling stock or other personal property of the company .^^ § 108. Reclamation Districts.^^ — Reclamation districts are declared to be public corporations,^^ and are also said to be quasi-public corporations.^* § 109. Sleeping-Car Companies— Palace Cars.— We have seen that sleeping-car companies are embraced within the pro- visions of the Public Service Commissions Law of New York,^^ and also the Public Utilities Act of Wisconsin. ''o But it is held, however, that such a company is not a common carrier, but that it rests under such obligations only as are based upon its contract to furnish the accommodations which it offers to the public and is Hable only to the extent of its breach thereof .^^ La. 178, 40 So. 627 (under const. " Calhoun v. Pullman Palace Car 1898, art. 272. Co. (U. S. C. C), 149 Fed. 546, 549. ^* Douglass V. Boonsborough Turn- Examine Braun v. Webb, 65 N. Y. pike Road Co., 22 Md. 219, 85 Am. Supp. 668, 32 Misc. 243, aff'g 62 Dec. 647. See also Oliff v. City of N. Y. Supp. 1037 (where the plaintiff Shreveport, 52 La. Ann. 1203, 27 So. obtained judgment in a case where he 688. had purchased a ticket, been assigned Railroads and highways and dis- a berth but it was occupied by an- tinctions as to use of, see McGregor other person and he was refused its V. Erie Ry. Co., 35 N. J. L. 89, 97, occupancy by the conductor and was per Bedle, J. compelled to sit all night in a day ^5 Lake Superior & Miss. Rd. Co. v. coach); Pullman's Palace Car Co. v. United States, 93 U. S. 442, 23 L. ed. King, 99 Fed. 380, 39 C. C. A. 573 (in 965. this case plaintiff was sold accom- ^' See § 75, herein. modations in a particular car, virtu- " People V. Williams, 56 Cal. 547. ally represented and warranted to 3' Reclamation Dist. v. Turner, 104 pass over a particular line, but the Cal. 334, 37 Pac. 1038. car did not pass over the line specified ^^ See § 74, herein. in the ticket and upon refusal to pay *°See § 104, herein. extra fare plaintiff was ejected, and 202 CORPORATIONS CONTINUED §§ 110, 111 A sleeping-car company may make reasonable regulations re- specting the right to a passage or a berth on its cars, as such right of a person is held to be limited, and it is a reasonable regulation which excludes those who have infectious or con- tagious diseases or are insane. ^^ § 110. Stockyards Company.— A stockyard business is one affected with a public interest when it is carried on at a large railroad and commercial center, and affords the only available market within the city and for an extensive territory, for resting, feeding and shipping of live stock. Such a business is also subject to public control and regulation as to the rates charged. ^^ But in Cotting v. Kansas City Stock Yards Com- pany,'*'* wherein a statute defining certain duties in relation to public stockyards and regulating all charges thereof, was held unconstitutional as denying a certain company the equal protection of the laws, in that such enactment applied only to that particular company and not to other companies or corporations engaged in like business in the State, the court reviews the several cases bearing upon the subject and says: "As to those individuals who have devoted their property to a use in which the public has an interest, although not engaged in a work of a confessedly public character, there has been no further ruling than that the State may prescribe and en- force reasonable charges." ^^ §111. Street Railways — Street Railway Companies.— A street railway is a public utility; it is an appropriate and nec- essary method of using the highway; and the municipalities may permit them to occupy and use portions of the street. Such occupancy is in common with that of the general public.^' defendant was held liable for breach *^ See § 118, herein. of contract). ■" City of Detroit v. Detroit United "PuUmanCarCo. V. Kraus (Ala.), Ry., V.ili Mich. 608,611, 95 N. W. 40 So. .398. 736, per Hooker, C. J. " RatclifT V. Wichita Union Stock- Definitions of street railroad or yards Co., 74 Kan. 1, 86 Pac. 150. railway and street railway com- ** 183 U. S. 79, 46 L. ed. 92, 22 panics: Sup. Ct. 30. United States: Williams v. City 203 § 111 NATURE OF VARIOUS Street railway companies are public carriers of passengers, and are given corporate existence in order that they may be enabled Electric Ry. Co., 41 Fed. 556, 557, per Caldwell, J. (definition also dis- tinction between street railroad and railroad; additional servitude). Alabama: Birmingham Mineral Rd. Co. V. Jacobs, 92 Ala. 187, 200, 9 So. 320, 12 L. R. A. 830, per Cole- man, J. (what street railroads are in- tended under statute as to street rail- ways, also statute as to "railroads" crossing each other; collision and in- jury causing death). California: Montgomery v. Santa Ana Westminster Ry. Co., 104 Cal. 186, 189, 43 Am. St. Rep. 89, 37 Pac. 786, 25 L. R. A. 654 (a case as to abutting owner's rights and urban servitudes). Florida: Bloxham v. Consumers' Electric Light & St. Ry. Co., 36 Fla. 519, 539, 51 Am. St. Rep. 44, 18 So. 444, 29 L. R. A. 507, per Liddon, J. Massachusetts: Holland v. Lynn & Boston Rd. Co., 144 Mass. 425, 427, 11 N. E. 674 ("street railway," "railroad corporation" and "rail- road company" in statute means what; action of tort). Michigan: City of Detroit v. Detroit United Ry., 133 Mich. 608, 611, 95 N. W. 736, per Hooker, C. J. Minnesota: Frank v. St. Paul City Ry. Co., 61 Minn. 435, 20 L. R. A. 208, 63 N. W. 1099, 52 Am. St. Rep. 608 ("street railway," "railroad" and " railway," meaning of terms and distinctions); Carli v. Stillwater St. Ry. & Transfer Co., 28 Minn. 373, 378, 41 Am. St. Rep. 290, 10 N. W. 205, per Clark, J. (character, purpose and use of street railways and rail- ways; distinctions; additional servi- tudes). Missouri: Hannah v. Metropoli- (" railroads" in statute as including tan St. Ry. Co., 81 Mo. App. 78, 82, street railroads; street railroad means what). Illinois: North Chicago Electric Ry. Co. V. Peuser, 190 111. 67, 70, 60 N. E. 78, per Boggs, C. J. (a case as to relative rights of such corporations and of travelers on the street). Iowa: Freiday v. Sioux City Rapid Transit Co., 92 Iowa, 191, 60 N. W. 656, 26 L. R. A. 246 (street railway defined; does not include an elevated "railway" under statute as to "rail- per Gill, J. (street railway defined and "railroad" distinguished). New York: New York Dist. Ry. Co., In re, 107 N. Y. 42, 14 N. E. 187 (underground street railroad is a street railway within state constitu- tion, art. 3, § 18, and general rail- road act does not apply). Oregon: Thompson-Houston Elec- tric Co. V. Simon, 20 Oreg. 60, 23 Am. St. Rep. 86, 25 Pac. 147, 10 L. R. A. 251 (distinction as to uses road" and compensation to abutting and purposes of railways and street owners). railways and character of same). Maryland: Park Tax Case (Mayor Pennsylvania: Heilman v. Leb- & City Council of Baltimore v. Balti- anon & Annville St. Ry. Co., 180 Pa. more, Catonsville & Ellicott's Mills 627, 628, 37 Atl. 119 (character of Passenger Ry. Co.), 84 Md. 1, 35 Atl. street railway companies; rights of 17, 33 L. R. A. 503 (question whether abutting landowners); Philadelphia, certain company answered descrip- City of, v. McManes, 175 Pa. 28, 33, tion of street railway within intent of 34 Atl. 331, per Thayer, P. J. (hold- laws imposing park tax). ing that a passenger railway in a 204 CORPORATIONS CONTINUED § HI to provide, for convenience of the public, the means of rapid transportation and promote the public welfare.^' And any contract which disables a street railway corporation from performing its functions, under its franchise, without the consent of the State, and made to relieve the corporation of the burden which it has assumed, is void as against public policy.^ It is declared that street railway companies are not endowed with the right of eminent domain,^ and that stat- park is not a street passenger rail- way requiring consent of city coun- cil, cited in Massachusetts Loan & Trust Co. V. Hamilton, 88 Fed. 588, 591; Manhattan Trust Co. v. Sioux City Cable Ry. Co., 68 Fed. 82); Rahn Township v. Tamaqua & L. St. Ry. Co., 167 Pa. 84, 90, 31 Atl. 472 (necessity of consent of authori- ties). Railway line operated in city streets for passenger service, held not a " com- mercial" railroad but a street railroad possessing some unexercised powers not ordinarily conferred on street railway companies. State v. Duluth Gas & Water Co. (State v. Duluth St. Ry. Co.), 76 Minn. 96, 57 L. R. A. 63, 78 N. W. 1032. Railway is not a street railway when it does not limit its business to passengers with hand baggage, but engages in transportation of freight on its entire line from town to town. Spalding v. Macomb & W. I. Ry. Co., 225 111. 585, 80 N. E. 327. Underground tunnel railroad with a large portion of it under navigable waters and also built mostly on private property is not a street rail- way or street surface railroad. New York & Long Lsl. R. Co. v. O'Brien, 106 N. Y. Hupp. 909. *' North Chicago Electric Ry. Co. V. Peusor, 190 111. 67, 70, 60 N. E. 78, per Hoggs, C. J. *^ Thompson v. Schenectady Ry. Co., 131 Fed. 577, 579, citing Thomp- son V. Schenectady Ry. Co. (Paige v. Same), 178 N. Y. 102, 70 N. E. 213. This case reverses 82 N. Y. Supp. 192, 84 App. Div. 91, but affirms other cases of other complainants against same defendant, 84 App. Div. 91. ^' " Street railway companies are not endowed with the right of eminent domain because they do not need it. They are modern local conveniences, the location and construction of which are subject to the will of the public they are intended to serve. This will is expressed through the local authorities. Such companies cannot force themselves into neigh- borhoods where they are not wanted. When permission is given them to oc- cupy a public street, they acquire thereby not an exclusive right upon its surface, but a right concurrent with that of the general public. Their cars are a substitute for the private carriage and the public omni- bus. They must move them along their tracks upon the surface of the street to the grade of which they are required to conform. They have no right to grade or fill or in any manner interfere with the access to private property from the highway, or so to construct the road as to interfere with public travel, or disturb adja- cent land owners." Hcilman v. Leb- anon & Annvillc St. Ry. Co., ISO Pa. 627, 628, 37 Atl. 119, per Williams, J. 205 § 112 NATURE OF VARIOUS utory provisions for condemnation of a right of way have httle or no reference to street railways using electricity or horse- power for local convenience and for transportation of passengers, and the condemnation of private property for a right of way is not authorized.^'' § 112. Street Railroad— Street Railroad Corporation — Public Service Commissions Law.— The Pubhc Service Com- missions Law of New York provides that: "The term 'street railroad,' when used in this act, includes every railroad by whatsoever power operated, or any extension or extensions, branch or branches thereof, for public use in the conveyance of persons or property for compensation, being mainly upon, along, above or below any street, avenue, road, highway, bridge or public place in any city, village or town, and includ- ing all switches, spurs, tracks, right of trackage, subways, tunnels, stations, terminals and terminal facihties of every kind used, operated, controlled or owned by or in connection with any such street railroad; but the term 'street railroad,' when used in this act, shall not include a railroad constituting or used as part of a trunk line railroad system." ^^ Said law also provides that: "The term 'street railroad corporation,' when used in this act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers appointed by any court what- soever, owning, operating, managing or controlling any street Examine the following cases: United Traction Co., 206 Pa. 91, lUinois: Suburban R. Co. v. West 55 Atl. 841. Side El. R. Co., 193 111. 217, 61 N. E. Virginia: Newport News & O. P. 1090. Ry- & Electric Co. v. Lake (Va.), 54 Indiana: Carrell v. Muncie, H. & S. E. 328. Ft. W. Ry. Co. (Ind. App.), 78 N. E. ^o -phompson-Houston Electric Co. 254. V. Simon, 20 Oreg. 60, 10 L. R. A. New York: Adee v. Nassau Elec- 251, 23 Am. St. Rep. 86, 25 Pac. 147. trie R. Co., 177 N. Y. 548, 69 N. E. See citations under last preceding 1120, aff'g 76 N. Y. Supp.' 589, 72 note. App. Div. 404; Schenectady Ry. Co. '' Public Service Commissions Law V. Peck, 84 N. Y. Supp. 759, 88 App. of N. Y., Laws 1907, p. 891, chap. Div. 201. 429, art. 1, § 2. Pennsylvania: Hinnershitz v. 206 CORPORATIONS CONTINUED § 113 railroad or any cars or other equipment used thereon or in connection therewith." ^^ § 113. Storage and Elevator Companies.— It is decided, in a case in Pennsylvania, that a company incorporated to transact a general storage and elevator business, including the right to issue warehouse receipts, etc., is not a public but a private corporation and its real estate used in the exercise of its franchise is not exempt from mechanics' Uens.^^ But un- * Public Service Commissions Law ofN. Y., Laws 1907, p. 891, chap. 429, art. 1, § 2. *^ Girard Point Storage Co. v. Southwark Foundry Co., 105 Pa. 248. The court, per Gordon, J., said: "From the facts here stated it is argued that the Girard Point Storage Company is in the nature of a pubHc corporation, and that the general public has such an interest in its works as to protect it from the in- cumbrance of a mechanic's hen. It cannot be denied but that if this cor- poration bears the character here claimed for it, it cannot be thus dis- turbed. The material question, then, is, what rights have the public in and upon this property other than what it would have did that property belong to a private individual or to an un- incorporated partnership? We un- derstand very clearly and distinctly the relation of a turnpike road, canal, and railroad to the public. The peo- ple of the commonwealth have the right of way over them, which right, when occasion requires, may be exer- cised regardless of the will of the cor- porations owning them. They are highways, and the companies operat- ing them have the right of eminent domain conferred upon them only be- cause of this direct interest which the public has in these methods of transit. But in the works of the corporation defendant the community at large has no other or further interest than it has in the storehouses of private individuals. It may receive the grain of one person and refuse that of another, or it may, at its own will, suspend operations and shut out the pubUc altogether. Its organization is all that it has received from the pub- Uc, beyond this the pubhc has no special interest in it, and when this organization disappears there is noth- ing left of a public character, or any- thing over which the commonwealth has control. Very different is the case of a turnpike, a canal or railroad, which remains for the common use after the corporation which built it is dissolved, and which the State may take possession of for the public wel- fare. Mr. Chief Justice Thompson, in the case of Foster v. Fowler, 10 P. F. S. 27, has shown very clearly the distinction between those corpo- rations in which the public is di- rectly interested, and those in which it has only an indirect interest; among the latter he mentions manu- facturing, coal and iron companies; and he adds, that as against such as these liens are enforceable. But we cannot understand why a company organized for the shifting and storage of grain should occupy, in this respect, a position superior to those thus mentioned. All are alike established 207 § 113 NATURE OF VARIOUS der a New York decision, a statute fixing the maximum charge for elevating, receiving, weighting and discharging grain and making it a misdemeanor to violate the enactment, is not violative of the constitutional guaranty protecting private property, but is a legitimate exercise of the police power of the State over a business affected with a public interest and is, therefore, constitutional, and this applies to stationary ele- vators owned by individuals or corporations, who have ap- propriated their property to that use and are engaged in that business.^'* In the United States Supreme Court, this statute was held to be a legitimate exercise of the police power of the State over a business affected with a public interest, that did for private purposes, and by them which it arises. But it certainly does the public is at best but incidentally not follow that because of this pubhc benefited. If, however, the property interest, the property of a private and buildings, of every person and person is made public property, or association whose trade or business even quasi-public property, or that it in any degree advanced the common is therefore exempted from ordinary welfare, were exempt from the ordi- execution process.'* Quoted in part nary forms of lien and execution, the in Twelfth St. Market Co. v. Phila- collection of debts would soon be- delphia & Reading Term. Rd. Co., come so tedious and expensive that, 142 Pa. 580, 588, 21 Atl. 902, 989, in most instances, their abandonment per Thayer, P. J. would be the better policy. Nor can ^* People v. Budd, 117 N. Y. 1, 26 we understand how the case of Munn N. Y. St. R. 533, 22 N. E. 670, 682, V. Illinois, 94 U. S. (4 Otto) 113, 24 5 L. R. A. 559, 15 Am. St. Rep. 460, L. ed. 77, can affect the case in hand, two judges dissenting. In the pre- The question there involved not the vailing opinion of Andrews, J. (p. 15), rights of a corporation, but those of a it is said: "That no general power re- private person, and the principle in- sides in the legislature to regulate volved in the ruling of the Supreme private business, prescribe the condi- Court of the United States was that tions under which it shall be con- where the owner of such property as ducted, fix the price of commodities a warehouse, devotes it to a use in or services, or interfere with the free- which the public has an interest he, dom of contract we cannot doubt;" in effect, grants to the public an in- also that, " we have no hesitation in terest in such use, and must, there- declaring that unless there are special fore, to the extent thereof, submit to conditions and circumstances which be controlled by the public for the bring the business of elevating grain common good as long as he main- within principles which, by the com- tains that use, but he may, at any mon law and the practice of free gov- time, withdraw this implied grant ernments, justify legislative control by discontinuing the business from and regulation in the particular case, 208 CORPORATIONS CONTINUED • § 114 not violate the Constitution of the United States and was valid .^^ § 114. Telegraph and Telephone Companies. — Both the telegraph and telephone have become not only necessary, but almost indispensable as a vehicle of public intelligence, and for the conduct of affairs, business and commerce. They are both instrumentalities of a public character, though they exist for private gain. Their operations in doing a general business is in the nature of a public employment, for they are public or quasi-public servants. They undertake for a consideration to transmit messages, intelhgence or communications, not ex- clusively for particular persons, but for all, for their lines are open alike to everyone who pays their charges, subject to such contract limitations as may legally exist. These corpo- rations have valuable franchises conferred upon them. They exercise the right of eminent domain by reason solely of the public nature of their business. They must have suitable and approved instruments and appliances, employ competent serv- ants and agents and skilled operators, and are held to a high degree of care, diligence and skill, adequate to, or commensurate with, their employment or undertaking. They are also sub- ject to constitutional and legislative control, and lawful po- lice regulations. Telegraph companies are "created for pub- lic benefit, endowed with special privileges, such as the right of eminent domain, and perform the most important functions of commerce, supplanting, in cases where celerity and rapid transmission of intelligence is necessary, the postal service of the government. Their business intimately concerns the the statute of 1888 cannot be sus- Milwaukee & St. Paul Ry. Co. v. tained." Minnesota, 134 U. S. 418, 33 L. ed. " Budd V. New York, 143 U. S. 970, 10 Sup. Ct. 462, explained. See 517, 12 Sup. Ct. 468, 36 L. ed. 247. § 110, herein. The case of Munn v. Illinois, 94 U. S. Public warehouses are what; as 113, 24 L. ed. 77, was reviewed and embracing "all warehouses, elevators adliered to, and its application in and granaries," etc., under statute, cases decided in the state courts con- see State ex rcl. Wood v. Smith, 114 sidered. The decision in Chicago, Mo. 180, 21 S. W. 493. 14 200 § 114 • NATURE OF VARIOUS public, and on this account the government assumes and has the right to regulate their business so as to insure impartiality of service, and prevent the exaction of unreasonable tolls. Many and varied interests are dependent upon them. From their exceptional position, it is in their power, by a corrupt use of their knowledge and information, to reap unconscionable advantage in the marts of trade, or by their negligence entail ruin and disaster upon individuals and communities. * * * Their duty springs not alone * * * fj-gm contract, but is the result of the character of their business, and the laws regulating them." Again, ''A telegraph company is a quasi- public corporation — private in the ownership of its stock, but public in the nature of its duties. It has all the powers of a private corporation, such as a separate legal existence, per- petual succession and freedom from individual hability; and possesses also in addition thereto, the extraordinary privi- leges which under our constitution can be exercised only by such corporations as are organized for a public purpose, and then only when necessary for the proper fulfillment of such purpose. Among the extraordinary privileges enjoyed by such corporations is the condemnation of private property, which can never be taken for a private purpose. The acceptance of such privileges at once fixes upon the corporation the indelible impress of a public use. A telegraph company is essentially public in its duties. Without such public duties there would be neither reason for its creation nor excuse for its continued existence. In fact, being the complement of the postal serv- ice, it is one of those great public agencies so important in its nature and far-reaching in its application that some of our wisest statesmen have deemed its continued ownership in private hands a menace to public interests." That a telegraph company owes certain duties to the public which are not de- pendent upon personal contract but are imposed by operation of law, is illustrated by the case of receiving, transmitting and delivering telegrams where the company cannot insist upon a personal contract contrary to its usual custom or contrary to public policy, so the failure to promptly deliver a telegram is 210 CORPORATIONS CONTINUED §§ 115, 116 not only a breach of contract but a failure to perform a duty which the company as a servant of the people is under obli- gation to perform. A telephone company organized to estab- lish and maintain a pubUc telephone system for the purpose of furnishing telephone communication between its subscribers and which under the statute of its incorporation has the right of eminent domain is organized for a public purpose. Its business is of a public character and it is a quasi-public corpo- ration. It depends upon the public for its support and the pubhc depends upon it for its accommodations.^^ § 115. Trustees — Company Incorporated as — Trustees of Poor. — A company, incorporated as the trustees of a fund, with the power and duty of investing it and appropriating its income to the pubhc schools of a town, is a private and not a public corporation. Such a corporation can hold and enjoy their rights and privileges under their charter independent of legislative control or interference within the constitutional provision against passing laws impairing the obligation of contracts." Trustees of the poor are a public corporation.^^ § 116. Turnpike Companies— Toil Roads.— A turnpike com- pany, in which the State holds stock, is not a public corpora- tion, within a statute which exempts from executions "a county, township, or other public corporate body." ^^ Under "Joyce on Electric Law (2d ed.), that the character of the corporation § 14, and note. cannot depend upon the quantity of To what extent telegraph and tele- the stock held by the commonwealth, phone companies are common carriers, so that if this case comes within the see Joyce on Elect. Law (2d ed.), exception, for the same reason every §§ 15, 16, l&-24a, 27, 37c. corporation in which the State re- Considered as instruments of in- serves an interest, however trifling, terstate commerce, see Joyce on must be held to be in the same class. Electric Law (2d ed.), §§ 42a, 44. But on this construction, the act " Yarmouth v. North Yarmouth, which is remedial, would be merely a 34 Me. 411, 56 Am. Dec. 666. dead letter, as there are very few cor- " Governor to Use of Trustees v. porations, if any, in which the State Gridley, 1 Walk. (1 Miss.) 328. does not hold some stock, or in which " Turnpike Co. v. Wallace, 8 they have not some pecuniary inter- Watts (Pa.), 316. "It is very clear est. Besides, the act applies to 211 §§ 117, 118 NATURE OF VARIOUS a California decision no authority is vested in a board of county supervisors to grant a franchise to collect tolls upon a free public highway, but the power of such board is limited to regu- lating the collection of tolls upon toll roads only.^*^ The pay- ment of toll under a turnpike franchise cannot be evaded by constructing a road solely for that purpose .^^ - § 117. Turnpike Road as Highway. — "A road constructed and supported by a turnpike corporation differs in no essential characteristic from a common highway, established and sup- ported by a town, a borough, or a city. Their origin and ob- jects are identical. Both emanate from the same, supreme power, acting through the legislature, the courts, or other depositaries of authority designated by the laws. Both are called into existence, and supported, to subserve, in exactly the same way, the public necessities and convenience, and both alike are intended to endure for an indefinite period, and so long as that convenience requires or that necessity exists." ^^ That a turnpike road is a public highway constructed by virtue of public authority and for public purposes, is definitely settled in Pennsylvania. Such a road is for the use of every person desiring to pass over it on payment of the toll estab- lished by law. If the charter of the company is forfeited, or the corporation abandons the road, such road continues to be a public highway. The corporation is the agent of the State for the purpose of constructing the road, which is a part of the system of public highways of the State. ''^ § 118. Waterworks. — A franchise to construct waterworks can be conferred only through direct or delegated authority from the State, and it is quasi-public in its nature .^^ So a corporation banks, as well as other corporate '^ Hydes Ferry Turnpike Co. v. bodies. In all of these the State has Davidson County, 91 Tenn. 291, 18 a deep interest, and in many holds S. W. 626. stocks to a large amount, with a °^ State v. Maine, 27 Conn. 641, 71 nower to appoint a portion of the Am. Dec. 89. directors." Id., 317, per Rogers, J. °' Derry Township Road, In re, 30 «" Blood V. Woods, 95 Cal. 78, 30 Pa. Super. Ct. 538, 540, 541. Pac. 129. '* Washburn Waterworks Co. v. 212 CORPORATIONS CONTINUED § 119 organized under the general law of Illinois to supply a village with water is a corporation engaged in an enterprise, essentially public in its nature. Its property and its efforts are devoted to a use in which the public has an interest. Its corporate ex- istence is granted to enable it to serve the public. It is not a private corporation, but it is quasi-public. The duty devolves upon it to furnish water for a reasonable compensation and without unjust discrimination, and the power resides in the State, acting in its sovereign capacity, to enforce the per- formance of such duty.^^ § 119. Wharf — " Public Wharf " — Wharfingers. — The words '' pubhc wharf " are not used in the Michigan statutes as a term to indicate anything anolagous to any public use, like that of highways, and the wharves in the city of Detroit are not highways and may be leased. ^^ But a wharf may be so located, and so connected with public highways as to consti- tute the only means of access to navigable water for use of the mediums of commerce navigating such waters, that it becomes impressed with a public interest precluding its con- version by a lessee into private property to the exclusion of the public, or of other carriers desiring its use upon payment of reasonable wharfage .^^ Wharfingers are not common car- riers where they carry goods from their wharf, for wharf cus- tomers only, except in special cases, and they act as lighter- men or carmen.*^ City of Washburn, 129 Wis. 73, 80, '« Horn v. People, 26 Mich. 221, 108 N. W. 194, per Kerwin, J. 224. See Kemp v. Stradley (Mich.), « Danville v. Danville Water Co., 10 Detroit Leg. N. 671, 97 N. W. 180 111. 235, 241, 54 N. E. 224. 41. Whether such company is a public " Weems Steamboat Co. v. Peo- corporation, see Foster v. Fowler, 60 pie's Steamboat Co., 141 Fed. 454. Pa. 27. As to right of exclusive occupation Whether public wnrk/^ include water- of wharf, and public use thereof, see works, see Opinion of Justices, 13 Fla. Thousand Islands Steamboat Co. v. 699; Ellis v. Common Council of Visgar, 83 N. Y. Supp. 325, 86 App. Grand Rapids, 123 Mich. 567, 82 Div. 126; The Davidson (U. S. D. C), N. W. 244; Winters v. City of Duluth, 122 Fed. 1006. 82 Minn. 127, 135, 84 N. W. 788, per «« Chattock v. Bellamy, 64 L. J. Collins, J., in dissenting opinion. Q. B. (N. S.) 250. 213 120 SOURCE OF FRANCHISE — FEDERAL, CHAPTER VIIL SOURCE OF FRANCHISE — FEDERAL, CONSTITUTIONAL AND LEGIS- LATIVE POWERS. 120. National and State Powers — Generally. 121. Distinction Between Limita- tions on Powers of Federal and of State Governments. 122. Grant of Franchises — Gov- ernmental or Legislative Power — Generally. 123. Power of Congress to Estab- lish Corporations — Gener- ally. 124. Power of Congress to Grant Additional Franchises. 125. Power of Congress Over Fran- chises of State Corporation — Interstate Commerce — Generally. 126. Grants by Congress — Banks. 127. Power of Congress — Bridge Corporation — Bridges — Commerce. § 128. Power of Congress to Declare Bridge a Lawful Structure After Its Being Adjudged a Nuisance; or After Injunc- tion Suit — Post Route. 129. Power of Congress to Grant Franchise to Railroads — Interstate Commerce — The Pacific Railroad Com- panies. 130. Power of Congress Over Terri- tories — Telegraph and Tel- ephone — Savings Institu- tion — Territorial Powers Generally — Irrigation Com- panies. 131. Extent of Authority Granted by Post Roads Act — Tele- graph Companies. § 120. National and State Powers — Generally. — In a com- paratively recent case in the United States Supreme Court it is said: "In the Constitution are provisions in separate articles for the three great departments of government — legislative, executive and judicial. But there is a significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: 'Article I, section 1. All leg- islative powers herein granted shall be vested in a Congress,' etc.; and then in Article VIII mentions and defines the legis- lative powers that are granted. By reason of the fact that 214 CONSTITUTIONAL AND LEGISLATIVE POWERS § 120 there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. In McCulloch v. State of Maryland/ Chief Justice Marshall said: 'This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have .required to be enforced by all those argu- ments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.' * * * When a legislative power is claimed for the National Government the question is whether that power is one of those granted by the Constitu- tion, either in terms or by necessary imphcation. * * * As heretofore stated, the constant declaration of this court from the beginning is that this Government is one of enu- merated powers. ' The Government, then, of the United States, can claim no powers which are not granted to it by the Con- stitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. * * * The Government of the United States is one of delegated, limited and enumerated powers.' " ^ And one of the points determined in that case is that : In a qualified sense and to a limited extent the separate States are sovereign and inde- pendent, and the relations between them partake something of the nature of international law. The Federal Supreme Court in appropriate cases, enforces the principles of that law, and in addition by its decisions of controversies between two or more States is constructing what may not improperly be called a body of interstate law. It is also held in the same court that: The National Government is one of enumerated powers; that a power enumerated and delegated to Congress is com- prehensive and complete, without other limitations than those found in the Constitution itself; and that to preserve the even ' 4 Wheat (17 U. S.) 316, 405, 4 Ct. 655, per Brewer, J. See Downes L ed. 579. V. Bidwell, 182 U. S. 244, 21 Sup. Ct. ' Kansas v. Colorado, 206 U. S. 46, 770, 44 L. ed. 1088. 81, 82, 84, 87, 51 L. ed. 9.56, 27 Sup. 215 § 120 SOURCE OF FRANCHISE — FEDERAL, balance between the National and state governments and hold each in its separate sphere is the duty of all courts and pre-eminently of that court. ^ It is declared in an Iowa case that : " It is fundamental in our system of government that all powers not delegated to the United States by the terms of the Federal Constitution and its amendments, nor prohibited by it to the States are reserved to the States or to the people ."^ Subject to the authority thus expressly or by necessary in- ference delegated to the Federal government, the State has sovereign legislative power over all subjects, except such as are withheld from it by the constitution of the State itself," ^ The following principles have been enunciated by the Federal Supreme Court and they are important in this connection. Thus, it is asserted that: (a) The government of the Union is a government of the people; it emanates from them; its powers are granted by them , and are to be directly exercised on them, and for their benefit; (6) the government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land; (c) there is nothing in the Con- stitution of the United States, similar to the articles of con- federation, which includes incidental or implied powers; (d) if the end be legitimate, and within the scope of the Constitution all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect; (e) if a certain means to carry into effect any of the powers, expressly given by the Constitution to the government of the Union, be an appro- priate measure, not prohibited by the Constitution, the de- gree of its necessity is a question of legislative discretion, not of judicial cognizance; (/) it is a general rule, that in so far as 3 South Carolina v. United States, U. S. 488, 49 L. ed. 848, 25 Sup. Ct. 199 U. S. 437, 50 L. ed. , 26 Sup. 506. Ct. (a case of internal revenue, ^ Constitution United States, liability of agents and of sale of liq- amendment 10. uors). See also Heff, Matter of, 197 = McGuire v. Chicago, Burlington & Quincy R. Co., 131 Iowa, 340, 349. 216 COyPTITUTIONAL AND LEGISLATIVE POWERS § 120 laws passed by Congress are constitutional and are enacted to carry out the powers vested in the government of the Uni- ted States, the States are not empowered to retard, burden or control the operations of such constitutional laws; ^ and (g) the prohibition in the Constitution of the United States against the passage of laws impairing the obligation of contracts ap- plies to the constitution as well as to the laws of each Stated The people of the United States, and of the States, have agreed to constitutions as a basis of government, and for the security, amongst other essentials, of their rights, property and common welfare. The people have not, however, committed to the United States government "their own complete functions of legislation and administration," but have intrusted a portion to the separate States, "so that the rights of the individual shall be guarded from the encroachments of power." * The Constitution and laws of the United States, made in pursuance thereof, are, however, the supreme law of the land; ^ and every 'McCulloch V. State of Maryland, Light Co., 115 U. S. 650, 29 L. ed. 4 Wheat. (17 U. S.) 316, 4 L. ed. 579, 615, 6 Sup. Ct. 252. See § 304, herein, cited and quoted from on this last * Pomeroy's Const. Law (3d ed.), point in United States v. Rickert, p. 142, § 226; McRoan v. Devries, 3 188 U. S. 438, 439, 23 Sup. Ct. 480, Barb. (N. Y.) 198; State v. McCann, 481, 47 L. ed. 536, 537; cited also in 4 Lea (72 Tenn.), 9. See Sage v. South Carolina v. United States, 199 New York, 154 N. Y. 61, 47 N. E. U. S. 437, 452, 26 Sup. Ct. 110, 50 906, aff'g 41 N. Y. Supp. 938, 10 L. ed. 261, where Brewer, J., says: App. Div. 294. "The two governments, National and * Const. U. S. art. 6, par. 2; Pensa- State, are each to exercise their cola Tcleg. Co. v. Western LTnion power so as not to interfere with the Teleg. Co., 96 U. S. 1, 18, 24 L. ed. free and full exerci.se by the other of 708, 1 Am. Elec. Cas. 253, per Waite, its powers. This proposition, so far C. J. See Western Union Teleg. Co. as the nation is concerned, was af- v. James, 162 U. S. 650, 40 L. ed. firmed at an early date, in the great 1105, 16 Sup. Ct. 934, 6 Am. Elec. case of McCulloch v. Maryland, 4 Cas. 863; New Orleans Gas Light Co. Wheat. (17 U. S.) 316, 4 L. ed. 579. v. Louisiana Light & H. P. & M. Co., * * * No answer has ever been 115 U. S. 672, 6 Sup. Ct. 252; Sinnot made to the argument of Mr. Clijef v. Davenport, 22 How. (63 U. S.) Ju.stice Marshall, and the proposi- 227, 16 L. ed. 243; Dodge v. Woolscy, tions there laid down have become IS How. (59 U. S.) 331 , 50 L. ed. 401; fundamental in our constitutional Hou.ston v. Moore, 5 Wheat. (18 U. jurisprudence." S.) 49, 5 L. ed. 31. ' New Orleans Gas Co. v. Louisiana 217 § 121 SOURCE OF FRANCHISE — FEDERAL, part of the territory under the jurisdiction of the government of the United States is, irrespective of state hues, subject to its operation and within its protection, provided its acts are within the scope of its powers, and, in so far as national rights are concerned, which belong to all, no part of the country can encroach upon another. Within this doctrine no State can, by legislation, exclude all commercial intercourse by telegraph between its citizens and those of other States, as the power to control and regulate interstate commerce is vested in Con- gress.^" Again, it is declared that the Supreme Court are fully sensible, that it is their duty, in exercising the high powers conferred upon them by the Constitution of the United States, to deal with great and extensive interests, such as chartered property, with the utmost caution, guarding, so far as they have power to do so, the right of property, at the same time, carefully abstaining from any encroachment on the rights re- served to the States." § 121. Distinction Between Limitations on Powers of Federal and of State Governments.^-— The people, and through them the legislature, have supreme power in all mat- ters of government where not prohibited by constitutional limitations, and, while the powers of the Federal government are restricted to those delegated, those of the state government embrace all that are not forbidden. And all acts of the leg- islature are presumed to be valid until it is clearly shown that they violate some constitutional restriction, and questions re- lating to the wisdom, policy and expediency of statutes are for the legislature and not for the courts to determine. ^^ So the rule of construction of the Constitution of the United States and of state constitutions differs in this, that in the former, the question is one of enumerated powers granted to Congress; >«Pensacola Teleg. Co. v. Western Bridge, 11 Pet. (36 U. S.) 420, 9 Union Teleg. Co., 96 U. S. 1, 24 L. ed. L. ed. 773. 708, 1 Am. Elec. Cas. 253, per Waite, '== See § 137, herein. C. J. See Joyce on Electric Law '^ Boyce, Ex parte, 27 Nev. 299, 75 (2ded.), §§ 65-67. Pac. 1. See also Wallace v. City of " Charles River Bridge v. Warren Reno, 27 Nev. 71, 73 Pac. 528. 218 CONSTITUTIONAL AND LEGISLATIVE POWERS § 122 in the latter, whether the law is legislative in its character and whether it is prohibited to the legislature.^'* Again, under a Virginia decision, the state constitution, unlike the Federal Constitution in this particular, is a restraining instrument, and in the matter of enacting laws, the legislature is omnipo- tent, except in so far as it is restrained by the state or Federal Constitution, either in express terms or by necessary impli- cation. Its enactments, therefore, are always presumed to be constitutional, and can never be declared otherwise, except where they clearly and plainly violate the Constitution. All doubts are resolved in favor of their validity, and in resolving doubts, the legislative construction put upon the Constitution is entitled to great consideration though it will not be given a controlling effect. ^^ § 122. Grant of Franchises— Governmental or Legisla- tive Power— Generally.— As we have stated elsewhere, a franchise was early defined as a royal privilege in the hands of a subject; a branch of the royal prerogative subsisting in the hands of a subject."^ Being such royal privilege or prerogative all franchises were derived from the crowTi and subsisted in a subject by grant from the king, which grant was a prerequisite to their existence, and, although it might in some cases be held by prescription, still such prescription presupposed a grant. So that in England, corporations are created and exist by royal charter, by act of Parliament and by prescription.^' Where a " State ex reL Henson v. Shep- Co. v. Evans, 166 111. 548, 556, 46 N. pard, 192 Mo. 497, 507, 91 S. W. E. 1083; People v. Haltz, 92 111. 426, 477. See § 217, herein. 428. •* Button V. State Corporation New York: People v. Utica Ins. Commission, 105 Va. 634, 54 S. E. Co., 15 Johns. (N. Y.) 357, 386, 8 Am. 769. Dec. 243, per Spencer, J. (a case of "See § 1, herein. usurpation of franchise to carry on " California: Spring Valley Water bankinj^ business as a corporation). Works V. Schottler, 62 Cal. 69, 106, Pennsylvania: Twelfth St. Mar- per Thornton, J. ket Co. v. Philadelphia & Reading Georgia: Franklin Bridge Co. v. Term. Co., 142 Pa. 580, 590, 21 Atl. Voting Wood, 14 Ga. 80, 84. 989, per Thayer, J. (a case of a public Illinois: Wilmington Water Power market house and right of eminent 210 § 122 SOURCE OF FRANCHISE — FEDERAL, charter is granted by the Crown under an act of Parliament and privileges are granted which could not be conferred by the Crown except by force of that enactment, it constitutes an incorporation of the company "by act of Parliament" within the terms of a will authorizing the investment of trust funds in stocks of companies incorporated as so directed.^* The right to establish a ferry was a franchise, and no man could set up a ferry although he owned the soil and landing place on domain over, or right of another cor- poration to appropriate). Wisconsin: Sellers v. Union Lum- bering Co., 39 Wis. 525, 527, per Ryan, C. J. See also Finch's Laws of Eng. 126 [38]. See as to prescription, § 133, herein. " By the Civil Law no corporation could be created without the express approbation of the sovereign, after a satisfactory representation of its use- fulness and tendency to promote the public good. * * * In England, it is true, during the latter part of the Saxon period of its history, and for some time after the Conquest, the power of conferring corporate priv- ileges was exercised by the nobles, within their respective demesnes. * * * In the time of Bracton, who lived in the reign of Henry III, and Edward I, the king's preroga- tive, as to the exclusive privilege of granting liberties and franchises in general, seems to have been fully es- tablished; and the absolute necessity of the king's assent to the institu- tion of any corporation was held, in the reign of Edward III, to have been previously settled as clear law. The method by which the king's as- sent is expressly given, is either by act of Parliament (of which the royal assent is a necessary ingredient), or by charter. * * * The king or queen alone, when a corporation is 220 intended with privileges, which by the principles of the English Law may be granted by the king, is qual- ified to create a corporation by his or her sole charter. * * * When, on the other hand, it is intended to establish a corporation vested with powers which the king cannot of himself grant, recourse must be had to an act of Parliament. * * * All the corporations which are said in the English books to have been created by the common law and by 'prescription, imply the sanction of the government." Angell & Ames on Corp. (9th ed.) §§ 66-69. See also Sellers v. Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J. Formerly grants of royal franchises were so common, that in the Parlia- ment held in 21 Edw. 3, there is a petition from the Commons to the king, stating that franchises had been so largely granted in times past, that almost all the lands were en- franchised, to the great averisement and estingsement of the common law, and in great oppression of the people; praying the king to restrain such grants for the time to come. To which his majesty answered, that the franchises which should be granted in the future should be made with good advisement. 3 Greenleaf's Cruise on Real Prop. * 260. isElve V. Boyton (C. A.) [1891], 1 Ch. 501. CONSTITUTIONAL AND LEGISLATIVE POWERS § 123 both sides of the stream, without a charter from the king or a prescription time out of mind. The franchise to estabUsh ferries was a royal prerogative, and the grant of the king was necessary to authorize a subject to establish a public ferry, even on his own premises.^'' Although the granting of fran- chises was a part of the. prerogatives of the British Crown,^° it is declared that on the severance of the colonies from Great Britian they became vested in the people; ^^ and that the com- monwealth stands in place of the king, and has succeeded to all the prerogatives and franchises proper to a republican govern- ment and those only, since many branches of the royal pre- rogative would be altogether improper in this country.^^ In McKim V. Odom,^^ decided in 1829, Bland, chancellor, says: "Under the provincial government, corporations were framed and called into existence, as in England, either directly by or with the immediate sanction of the lord proprietary or the monarch. But however they may have been originated for- merly or elsewhere, it is certain that they can now only be established here by the authority of the legislature," § 123. Power of Congress to Establish Corporations — Generally. — The power of establishing a corporation is not a distinct sovereign power or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the Constitution to the government of the Union, it may be exercised by that government.^^ "People V. Budd, 117 N. Y. 1, 17, "3 Bland (Md.), 407, 417-419. 18, 26 N. Y. St. R. 533, 22 N. E. 670, ^* McCulloch v. State of Maryland, 682, per Andrews, J. See Milhau v. 4 Wheat. (17 U. S.) 316, 4 L. ed. Sharp, 27N.Y. 611,619, 84 Am. Dec. 579. Examine United States v. 314, per Selden, J. See § 144, herein. Stanford, 70 Fed. 346, 361, 17 C. C. » Finch's Law of Eng. 164. A. 143. ^'Milhau V. Sharp, 27 N. Y. 611, "The power of creating a corpo- 619, 84 Am. Dec. 314, per Selden, J. ration, though appertaining to sov- '' Commonwealth v. Arrison, 15 ereignty, is not, like the power of Serg. & R. (Pa.) 127, 130, per Tilgli- making war, or levying taxes, or man, C. J. (a case of information in of regulating commerce, a great sub- the nature of quo warranto). stantive and independent power, 221 § 124 SOURCE OF FRANCHISE — FEDERAL, § 124. Power of Congress to Grant Additional Fran- chises. — It is well settled that Congress has power to grant, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means for wliich other ob- jects are accompUslied. * * * "phe power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, there- fore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to em- ploy the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any depart- ment thereof.' " The court then considers the meaning of the words "necessary and proper" as used in this clause of the constitution and concludes that it was not intended to "abridge, and almost annihilate this useful and necessary right of the legislature to select its means * * * for the following reasons: 1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to di- minish the powers vested in the gov- ernment. It purports to be an addi- tional power, not a restriction on those already granted. * * * Had the intention been to make this 222 clause restrictive, it would un- doubtedly have been so in form as well as in effect. The result of the most careful and attentive consid- eration bestowed upon this clause is, that if it does not enlarge, it can- not be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the govern- ment. We admit, as all must ad- mit, that the powers of the govern- ment are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be car- ried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist in the letter and spirit of the constitution, are constitutional. That a corporation must be con- sidered as a means not less usual, not of higher dignity, not more re- quiring a particular specification than other means have been suffi- ciently proved. * * * Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case, whatever, it would have found a place among the enumerated pow- ers of the government. But be- CONSTITUTIONAL AND LEGISLATIVE POWERS §§ 125, 126 to a corporation created by a State, additional franchises, at least of a similar nature. ^^ § 125. Power of Congress Over Franchises of State Cor- poration—Interstate Commerce— Generally. — Franchises of a corporation chartered by a State are, so far as they involve questions of interstate commerce, exercised in subordination to the powers of Congress to regulate such commerce; and while Congress may not have general visitatorial power over state corporations, its powers in vindication of its own laws are the same as if the corporation had been created by an act of Congress. ^^ § 126. Grants by Congress— Banks.— Congress has power to incorporate a bank, and the act of April 10, 1816, c. 44, to "incorporate the subscribers to the Bank of the United States," is a law in pursuance of the Constitution. The Bank of the United States has, also, constitutionally, a right to establish its branches or offices of discount and deposit within any State.^^ So in the Legal Tender Cases,^ it is declared that: ing considered merely as a means, 32 L. ed. 150, 8 Sup. Ct. 1073; Uni- te be employed only for the purpose ted States v. Stanford, 161 U. S. of carrying into execution the given 412, 431, 16 Sup. Ct. , 40 L. ed. powers, there could be no motive for 751; Central Pacific Rd. v. Califor- particularly mentioning it." Mc- nia, 162 U. S. 91, 118, 123, 16 Sup. CuUoch V. State of Maryland, 4 Ct. 766, 40 L. ed. 903. Wheat. (17 U. S.) 316, 411-421, 4 L. ^e Hale v. Henkel, 201 U. S. 43, ed. 579, per Mr. Chief Justice Mar- 75, 50 L. ed. 652, 26 Sup. Ct. 370. shall. " McCuUoch v. State of Maryland, " Southern Pac. R. Co. v. United 4 Wheat. (17 U. S.) 316, 4 L. ed. 579, States, 183 U. S. 519, 526, 527, 46 L. cited in Slaughter-House Cases, 16 ed. 307, 22 Sup. Ct. 154, citing Sink- Wall. (83 U. S.) 36, 04, 21 L. ed. 394. ing Fund Cases, 99 U. S. 700, 727, 25 Decision discussed in Hepburn v. L. ed. 496; Pacific Railroad Re- Griswold, 8 Wall. (75 U. S.) 603, 629, moval Cases, 115 U. S. 1, 15, 29 L. 19 L. ed. 650, in dissenting opinion ed. 319, 5 Sup. Ct. 1157; California of Miller, Swayne and Davis, JJ. v. Central Pacific Rd., 127 U. S. 1, That Congress has power to establish ■''* 110 U. S. 421, 438, 445, 28 L. ed. land (cited at beginning of last pre- 204, 4 Sup. Ct. 122, per Gray, J., ceding note), is considered, where McCuUoch v. State of Mary- 223 § 126 SOURCE OF FRANCHISE — FEDERAL, "It is equally well settled that Congress has the power to incorporate national banks, with the capacity, for their own profit as well as for the use of the government in its money transactions, of issuing bills which under ordinary circum- stances pass from hand to hand as money at their nominal value, and which, when so current, the law has always recog- nized as a good tender in payment of money debts, unless specifically objected to at the time of the tender." ^^ National banks organized under the act of 1864 ^'^ are the instruments designed to be used to aid the government in the administra- tion of an important branch of the public service; and Con- gress, which is the sole judge of the necessity for their creation, having brought them into existence, the States can exercise no control over them, nor in any wise affect their operation, except so far as it may see proper to permit.^^ a national bank considered as settled opinion of the court in McCuUoch in Veazie Bank v. Fenno, 8 Wall. v. State of Maryland, 4 Wheat. (17 (75 U. S.) 533, 551, 19 L. ed. 482, in U. S.) 316, 4 L. ed. 579, is founded dissenting opinion of Nelson & Davis, on, and sustained by, the idea that JJ. This case holds that Congress the bank is an instrument which is having undertaken, in the exercise of 'necessary and proper for carrying undisputed constitutional power, to into effect the powers vested in the provide a currency for the whole government of the United States.' country, may constitutionally secure It * * * was created in the the benefit of it to the people by ap- form in which it now appears, for propriate legislation, and to that end national purposes only. It is, un- may restrain by suitable enact- doubtedly, capable of transacting ments, the circulation of any notes, private as well as public business, not issued under its own authority, * * * Why is it that Congress and it may impose a tax on the notes can incorporate or create a bank? of state banks. See also as to right This question was answered in the to incorporate bank, Magill v. Par- case of McCulIoch v. State of Mary- sons, 4 Conn. 321. land, 4 Wheat. (17 U. S.) 316, 4 L. ^° " The bank is not considered as ed. 579. It is an instrument which a private corporation, where the is 'necessary and proper' for carry- principal object is individual trade ing on the fiscal operations of gov- and individual profit; but as a pubhc ernment." Osborn v. United States corporation, created for public and Bank, 9 Wheat. (22 U. S.) 738, 860, national purposes. * * * ^ ^as 861, 6 L. ed. 204, per Marshall, C. J. not created for its own sake or for ^o ^ct of June 13, 1864, 13 Stat. 99. private purposes. It has never been " Farmers' & Mechanics' Nat. supposed that Congress could create Bank v. Bearing, 91 U. S. 29, 23 L. such a corporation. The whole ed. 196. 224 CONSTITUTIONAL AND LEGISLATIVE POWERS § 127 § 127. Power of Congress — Bridge Corporation — Bridges — Commerce. — Congress, under the power to regulate com- merce among the States, may create a corporation to build a bridge across navigable water between two States, and to take private lands for the purpose, making just compensation therefor.^2 And it can exercise this power without the consent of any State. ^^ So the act of July 11, 1890, c. 669, to incorpo- rate the North River Bridge Company, and to authorize the construction of a bridge across the Hudson River between the States of New York and New Jersey, is constitutional.^^ And the act approved June 16, 1S86, authorizing the construction of a bridge across Staten Island Sound, known as ''Arthur Kill" is within the power of Congress to regulate commerce and is valid. ^^ Congress has power also to determine the lo- cation, plan, and mode of construction of railroad bridges.^^ "Luxton V. North River Bridge 782; United States v. Cincinnati & Co., 153 U. S. 525, 14 Sup. Ct. 891, Muskingum Valley Ry. Co., 134 Fed. 38 L. ed. 808. See §§ 145, 152, 353, 67 C. C. A. 335. See Missouri herein. v. Illinois (Chicago Drainage Case), , " Decker v. Baltimore & N. Y. R. 200 U. S. 496, 50 L. ed. 572, 26 Sup. Co., 30 Fed. 723, 1 Inters. Comm. Ct. 268, per Holmes, J., discussing Rep. 434. See also Stockton v. the Wheeling Bridge Case. Baltimore & N. Y. R. Co., 32 Fed. Maine: State v. Leighton, 83 Me. 9, 1 Inters. Comm. Rep. 411. 419, 22 Atl. 380. As to powers of Congress and of Maryland: Baltimore v. Stole, 52 the States as to bridges, see the fol- Md. 435. lowing cases: Michigan: Dietrich v. Schreman, United States: Montgomery v. 117 Mich. 298, 75 N. W. 618. Portland, 190 U. S. 89, 47 L. ed. 965, New Hampshire: Dover v. Ports- 23 Sup. Ct. 852; Lake Shore & Michi- moutli i5rilcgraph company has entered for the pur- pose of constructing its lines. Such company must submit to the ordinary, reasonable and lawful regulations of the state " Hewett V. Western Union Tele- 31 L. cd. 790, 8 Sup. Ct. 961, 21 graph Co., 4 Mackey (D. C), 424, 16 Am. & Eng. Corp. Cas. 13, 2 Am. Am. & Eng. Corp. Cas. 276, 2 Cent. Elec. Cas. 57, 61, per Mr. Justice Rep. 694, 2 Am. Elec. Cas. 222, 225, Miller; Southern Bell Teleph. &: 226, per Merrick, J. Teleg. Co. v. Richmond (C. C. E. D. "St. Louis V. Western Union Va.), 78 Fed. 858, 6 Am. Elec. Cas. Teleg. Co., 148 U. S. 92, 37 L. ed. 1, 6, per Goff, Cir. J. 380, 39 Fed. 59, 4 Am. Elec. Cas. 102, «' Ganz v. Ohio Postal Teleg. Ill, 13 Sup. Ct. 485, per Mr. Justice Cable Co., 140 Fed. 692, rev'g Ohio Brewer, citing with approval West- Postal Teleg. Cable Co. v. Board of em TTnion Teleg. Co. v. Attorney- Commissioners, 137 Fed. 947. General of Mass., 125 U. S. 530, 548, 235 § 131 SOURCE or FRANCHISE — FEDERAL, and local governmental authorities whose highways and streets are used, even though said roads and streets are post and military roads. ^* But, on the other side, although the State may, in the exercise of its police power, enact such laws re- lating to persons and property within its territorial limits as shall best promote general prosperity, and the public health, safety and. morals, nevertheless, it cannot encroach upon the powers of the Federal government so as to materially impair or destroy rights granted or secured by constitutional acts of Congress, or granted under a constitutional exercise of power. Especially is this true of the constitutional right to regulate commerce. *''' It is held, however, in a case in the United States Circuit Court that the police power is inherent in the States, and is not affected by the United States interstate commerce pro- vision, nor by the Post Roads Act.'" These two propositions, although seemingly inconsistent, are perfectly reconcilable. It is well settled that the police power extends to the protection of life, health and property, and that no citizen should be per- mitted to exercise his rights so as to injuriously affect a com- munity in these matters. A strictly legitimate exercise of the poUce power of a State does not, in a constitutional sense, «8 Richmond v. Southern Bell N. Y. App. Div. 494, 47 N. Y. Supp. Teleph. & Teleg. Co., 42 U. S. App. 56, citing Walling v. Michigan, 116 686, 28 U. S. C. C. A. 659, 85 Fed. 19, U. S. 446-460, 29 L. ed. 691, 696, 6 30 Chic. Leg. News, 271, 3 Va. La. Sup. Ct. 454; People v. Gilson, 109 Reg. 856; Southern Bell Teleph. & N. Y. 389-401, 4 Am. St. Rep. 465, Teleg. Co. v. Richmond, 78 Fed. 858, 17 N. E. 343; New Orleans G^is Light 6 Am. Elec. Cas. 1, 6, per Goff, Cir. Co. v. Louisiana L. & H. P. & Mfg. J.; Clausen & Sons Brewing Co. v. Co., 115 U. S. 650, 29 L. pd. 516, 6 The Baltimore & Ohio Teleg. Co. Sup. Ct. 252; Brennan v. Titusville, (N. Y. Sup. Ct. Chambers, 1884), 153 U. S. 289-299, 4 Inter. Comm. 2 Am. Elec. Cas. 210, 217, per Van Rep. 658, 38 L. ed. 719, 722, 14 Sup. Brunt, J.; Mutual Union Teleg. Co. Ct. 829; Jacobs, In re, 98 N. Y. 98- V. Chicago, 16 Fed. 309, 1 Am. Elec. 108, 50 Am. St. Rep. 636. Cas. 506, 507, per Drummond, J. ™ Western Union Teleg. Co. v. «9 Western Union Teleg. Co. v. Mayor of New York, 38 Fed. 552, 2 James, 162 U. S. 650, 16 Sup. Ct. 934, Inter. Comm. Rep. 533, 3 L. R. A. 40 L. ed. 1105, 6 Am. Elec. Cas. 858, 449, 6 Ry. & Corp. L. Jour. 105, 2 861, 16 Sup. Ct. 934, per Mr. Justice Am. Elec. Cas. 195. Peckham; People v. Hawkins, 20 236 CONSTITUTIONAL AND LEGISLATIVE POWERS § 131 necessarily encroach upon any authority confided expressly or by implication to the national government. In addition, the exercise of the police power in the last case above noted, related to the enforcement of the subway act ^^ in the city of New York 7^ The franchise of a telegi-aph company is derived from the State, and it owes its existence to the state law of organization, even though its privilege of running lines over post and military roads is derived from Congress/^ A tele- graph company, therefore, within the limitations above speci- fied, owes obedience to the state laws, notwithstanding it has accepted the provisions and benefits of the Post Roads Act/'* It may be stated in this connection that it is a general prin- ciple that the State may legislate with binding effect within its territorial limits where such enactments relate to the rights, duties and liabilities of citizens, and are not directed against commerce nor any of its regulations 7-^ " Lav/s N. Y. 1884, c. 534; Laws 39 Fed. 59, 4 Am. Elec. Cas. 102, 111, 1885, c. 499, and Laws 1887, c. 716. 13 Sup. Ct. 485, per Mr. Justice '^ The case last given is cited with Brewer, citing Western Union Teleg. approval in State ex rel. Wisconsin Co. v. Massachusetts, 125 U. S. 530, Teleph. Co. v. Janesville St. Ry. Co., 548, 21 Am. & Eng. Corp. Cas. 13, 87 Wis. 72, 41 Am. St. Rep. 23, 4 31 L. ed. 790, 8 Sup. Ct. 961, per Mr. Am. Elec. Cas. 289, 294, 57 N. W. Justice Miller. 970, per Orton, C. J. See Western " Sherlock v. Ailing, 93 U. S. 99, Union Teleg. Co. v. Mississippi R. 23 L. ed. 819, cited with approval Commission, 74 Miss. 80, 21 So. 15. in Western Union Teleg. Co. v. " Western Union Teleg. Co. v. Tyler, 90 Va. 297, 4 Am. Elec. Cas. Attorney-General of Mass., 125 U. S. 816, 819, 18 S. E. 280, per Lewis, P. 530, 548, 31 L. ed. 790, 8 Sup. Ct. See Joyce on Electric Law (2d ed.), 961, 21 Am. & Eng. Corp. Cas. 13, under the following sections: § 38. 2 Am. Elec. Cas. 57, 60, 61, per Mr. Acts aiding telegraph companies — Justice Miller; Attorney-General of Post Roads Act; § 39. Object of Post Mass. V. Western Union Teleg. Co., Roads Act; § 40. Powers of Con- 141 U. S. 40, 3 Am. Elec. Cas. 20, 24, gress— Commerce — Post-offices and 25, 35 L. ed. 628, 11 Sup. Ct. 889, per post roads; § 41. Object of vesting Mr. Justice Gray. power in Congress — Commerce; § 42. '* See Attorney-General of Mass. Legislative intent — New discoveries V. Western Union Teleg. Co., 141 U. — Regulation of Commerce; § 42a. S. 40, 3 Am. Elec. Cas. 20, 24, 11 Sup. Interstate Commerce — Regulation of Ct. 889, 35 L. ed. 628, per Mr. Justice by common law and acts of Congress; Gray; St. Louis v. Western Union § 43. Telegraph is instrument of Teleg. Co., 148 U. S. 92, 37 L. ed. 380, commerce— Control of Congress; 287 § 131 SOURCE OF FRANCHISE — FEDERAL, § 44. Telephone is instrument of Roads Act — Condemnation under interstate commerce; § 45. Whether state law — Telegraph companies; Post Roads Act includes telephone § 55. Commerce — Federal Constitu- companies; § 45a. Post Roads Act — tion— Municipal powers; § 56. Com- Messenger service — Call boxes; § 46. merce — Federal Constitution — Stipu- What are post and military roads; lations in telegraph blanks against §47. Post Roads Act not Hmited to negligence; § 57. Commerce— Fed- public domain; § 48. Post Roads eral constitution — Tariff or rates for Act applies to District of Columbia; telegraph or telephone; § 62. Post § 49. Post Roads Act applies to Roads Act— Authority conferred; companies thereafter formed; § 50. § 63. Post Roads Act— Limitations Post Roads Act — Regulation of com- upon authority or right conferred; merce — Foreign corporation; § 51. § 64. Same subject — Public and pri- Acceptance necessary of Post Roads vate property — Streets and highways Act; § 51a. Certificate of postmaster — Abutting owners; § 65. Post Roads general competent evidence of ac- Act exclusive — Hostile legislation; ceptance; § 52. Effect of accept- § 66. Post Roads Act exclusive — ■ ance of Post Roads Act; § 52a. Hostile legislation continued — Modi- Foreign corporations — Incorporation fication of rule; § 67. Post Roads prerequisite to acceptance — Post Act — Modification of the rule as to Roads Act does not confer franchise; hostile legislation continued. See § 53. Post Roads Act does not au- also id., §§ 30-37c, 68-83, 130- thorize condemnation; § 54. Post 140a. 238 CONSTITUTIONAL AND LEGISLATIVE POWERS § 132 CHAPTER IX. SOURCE OF FRANCHISE CONTINUED— STATE, CONSTITUTIONAL AND LEGISLATIVE POWERS. 132. Legislative Power — Source of Franchise of Charter — Leg- islative Grant Necessary. 133. Same Subject — Prescription. 134. Test of Legislative Power to Grant Franchises. 135. Distribution or Division of Powers of State. 136. What Matters Exclusively Within Legislative Dis- cretion — Power of Courts. 137. Limitations on Powers of State Legislature. 138. Abdication or Surrender of Essential or Distinctive Legislative Powers — Bind- ing Future Legislatures — Waiver — Police Powers — Judicial Powers. 139. Legislative Powers of Terri- tory — Corporations Created by Territory Follow It Into Union. 140. Legislative Power to Grant Implies Power to Refuse Franchise— Refusal by Subordinate Body. 141. Consent of Subordinate Body Unnecessary to Exercise of Power by Legislature. 142. Corporations Created by Rebel State. 143. Legislative Power — Grant of Additional Franchises — Amendments. 144. Legislative Grant Necessary — Roads, Highways, Bridges and Ferries, Emi- nent Domain, Generally. 145. Bridge Corporation — Bridges — Commerce — Navigable Waters Wholly Within State — Power of State as to Toll Bridges — Railroad Toll Bridge. 146. Pier Erected Without Au- thority in Navigable Water —Unlawful Structure — Owner's Liability. § 132. Legislative Power— Source of Franchise or Char- ter—Legislative Grant Necessary.— A franchiso must have its source in or emanate from the sovereign power wherein it primarily resides, and that power alone can grant it and make possible its lawful exercise, for such legislative grant or law is a prerequisite. The source of a franchise is the State, what- ever the agency employed.^ ' United States: Bank of Au- 519. 595, 10 L. cd. 274, per Taney, C. gusta V. Earlc, 13 Pet. (38 U. S.) J., who says: "It is essential to the 239 § 133 SOURCE OF FRANCHISE CONTINUED — STATE, § 133. Same Subject — Prescription.^ — Although a corpora- tion may exist by prescription, such prescription presupposes character of a franchise that it should can States emanate from the gov- be a grant from the sovereign au- ernment, or sovereign power, owe thority, and in this country no fran- their existence to a grant," etc.; chise can be held which is not derived People ex rel. Koemer v. Ridgley, 21 from a law of the State;" quoted in 111. 65, 69, per Breese, J., who says: whole or in part in People's Rd. v. " In this country, imder our institu- Memphis Rd., 10 Wall. (77 U. S.) 38, tions, a privilege or immunity of a 51, 19 L. ed. 844; Western Union public nature, which could not be Teleg. Co. v. Norman, 77 Fed. 13, exercised without a legislative grant 22, per Barr, Dist. J.; Chicago & would also be a franchise. There Western Indiana Rd. Co. v. Diyibar, must be some parting of prerogative 95 111. 571, 575; Purnell v. McLane, belonging to a king, or to the people, 98 Md. 589, 592, 56 Atl. 830, per under our system, that can consti- Pearce, J.; State V. Scougal, 3S. Dak. tute a franchise"; Cain v. City of 55, 62, 44 Am. St. Rep. 756, 15 L. R. Wyoming, 104 111. App. 538 (a fran- A. 477, per Corson, J. chise must be granted by the legis- Alabama: State v. Wilburn (Ala., lature). 1905), 39 So. 816; Uniontown, City Louisiana: Maestri v. Board of of, V. State (Ala., 1905), 39 So. 814; Assessors, 110 La. 517, 526, 34 So. State V. Moore & Ligon, 19 Ala. 520, 658, per Blanchard, J., who says: per Parsons, J., who says: "It is " To be a franchise the right possessed clear that the State is the source of must be such as cannot be exercised all such franchises." without the express permission of Colorado: Denver & Swansea Ry. the sovereign power — a privilege or Co. V. Denver City Ry. Co., 2 Colo, immunity of a public nature which 673, 682, per Brazee, J., who says: cannot be legally exercised without "It is essential that a franchise legislative grant." should be created by a gi-ant from Maine: Yarmouth v. North Yar- the sovereign authority." It is a mouth, 34 Me. 411, 56 Am. Dec. 666 franchise which the sovereign au- (private corporations exist by legis- thority alone can grant. lative grants conferring rights and Idaho: Spotswood v. Morris, 12 powers for special purposes). Idaho, 360, 85 Pac. 1094 (sovereign Minnesota: State, Clapp, v. Min- power is necessary in order to pos- nesota Thresher Mfg. Co., 40 Minn. sess or lawfully exercise the powers, 213, 3 L. R. A. 510, 41 N. W. 1020 privileges or franchises of a corpo- (same statement as Louisiana case); ration). Blake v. Winona & St. Peter Ry. Illinois: Wilmington Water Power Co., 19 Minn. 418, 425. Co. V. Evans, 166 111. 548, 556, 46 Pennsylvania: Allegheny County N. E. 1083, per Magruder, C. J.; v. McKeesport Diamond Market, 123 Chicago City Ry. v. People, 73 111. Pa. 164, 19 Pitts. L. J. (N. S.) 280, 46 541, 547, per Story, J., who says: Phila. Leg. Int. 211, 23 W. N. C. 89, "Corporate franchises in the Ameri- 16 Atl. 619 (chartered rights from 2 See § 122, herein. 240 CONSTITUTIONAL AND LEGISLATIVE POWERS § 134 a grant.^ So the presumption of a right to exercise a ferry franchise may arise from its continuous, uninterrupted use for twenty years even though no Ucense or legislative grant exists.^ But a gas and electric company's right to maintain poles in the identical spot of their location on streets of a city, cannot arise by prescriptive right based merely on lapse of time.^ But it is declared that a franchise being derived from the government is always supposed to have been originally granted by the government.^ § 134. Test of Legislative Power to Grant Franchises. — One of the tests of legislative power to grant franchises to par- ticular individuals is whether such grant will promote the pub- commonwealth necessary to effect purposes for which organized). "It is imiversally recognized that the power of creating corporations is one appertaining to sovereignty, and can only be exercised by that branch of the government in which it is legally vested, and whatever method may be adopted for their formation, and with whatever lib- erality the privilege of forming them may be conferred, every corporation is dependent for its existence upon the permission of the State in which it is created." Bank of California v. San Francisco, 142 Cal. 276, 279, 75 Pac. 832, 64 L. R. A. 918, per Angellotti, J. In the United States a corporation can only have an existence under the express law of the State by which it is created and can exercise no power or authority which is not granted to it by the charter imder which it exists, or by some other legislative act. Oregon Ry. & Navi- gation Co. v. Oregonian Ry. Co., 130 U. S. 1, 9 Sup. Ct. 409, 32 L. ed. 837. ' Wilmington Water Power Co. v. Evans, 166 111. 548, 556, 46 N. E. 1083, per Magruder, J.; Chicago City Ry. v. People, 73 111. 541, 547, per Scott, J. "There is no doubt," says Kent, " that corporations, as well as other private rights and franchises, may exist in this country by prescription, 2 Kent's Com. 277(a). * * * It may be considered well settled, that a corporation may exist in this country by presumptive evidence. * * * Although corporations may * * * exist in this country 16 by common law, and by reputation. * * * Yet there are, compara- tively, but few cases where a legis- lative act or charter cannot be shown." Angell & Ames on Corp. (9thed.)§§70, 71. ' Milton v. Haden, 32 Ala. 30, 70 Am. Dec. 523. '^ Merced Falls Gas & Elect. Light Co. v. Turner, 2 Cal. App. 720, 84 Pac. 239. • Norwich Gas Light Co. v. The Norwich City Gas Co., 25 Conn. 19, 36, per Hinman, J. (right to lay gas pipes in streets). 241 §§ 135, 136 SOURCE OF FRANCHISE CONTINUED — STATE, lie good, and is such that the rights or privileges granted must be committed to a few in order to be available/ § 135. Distribution or Division of Powers of State.— The distribution of the powers of the State, by the constitution, to the legislative, executive and judicial departments, operates, by implication, as an inhibition against the imposition on either, of those powers which distinctively belong to one of the other departments.^ So the legislative and judicial func- tions of the State are entirely separate and vitally distinct; * and the fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceed- ing instituted therein, is, itself, of controlling importance, as fixing the judicial character of the power, and is decisive in that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive depart- ment.^*^ The division of powers between the several branches of the state government made by the Nebraska constitution is comprehensive and final, and the legislature can neither add to nor subtract from the classes or character of questions with which the courts are entitled to deal.^^ § 136. What Matters Exclusively Within Legislative Dis- cretion — Power of Courts.^2 — Certain matters rest exclu- sively within the discretion of the legislature to determine, such as whether the public interest will be served by a grant of a right or privilege, whether an act is expedient or wise, ' Horst, Mayor, etc., v. Moses, 48 judgment of the Circuit Court was Ala. 129, 143. See §§ 120-124, 136, reversed. The report of the case on 147, 148, herein. that hearing appears in 63 Ohio St. ^Zanesville, City of, v. Zanes- 442, 59 N. E. 109. On the rehear- ville Teleg. & Teleph. Co., 64 Ohio ing the judgment of reversal was set St. 67. See also Western Union aside and judgment rendered affirm- Teleg. Co. v. Myatt, 98 Fed. 335. ing the Circuit Court in accordance ' Western Union Teleg. Co. v. with the following report of the case Myatt, 98 Fed. 335. —Reporter." Id., 68. '" Zanesville, City of, v. Zanes- "Tyson v. Washington County ville Teleg. & Teleph. Co., 64 Ohio (Neb., 1907), 110 N. W. 634. St, 67. "On the first hearing the "See §§ 171, 184, 200, herein. 242 CONSTITUTIONAL AND LEGISLATIVE POWERS 136 adequate or necessary, and courts cannot inquire into the motives inducing legislation, nor as to the expediency of the enactment, nor as to the wisdom, necessity, policy or justice thereof, nor as to the reasons inducing legislators to act, but their power is Hmited to the determination only of the question of the constitutionality of a statute." But it also held that the " United States: California Re- duction Co. V. Sanitary Reduction Co., 126 Fed. 29, 61 C. C. 91, s. c, 194 U. S. 635, case aff'd 199 U. S. 306. California: Dobbins v. City of Los Angeles, 139 Cal. 179, 72 Pac. 970. See Odd Fellows Cemetery Assn. v. San Francisco, 140 Cal. 226, 73 Pac. 987. Florida: Thomas v. Williamson (Fla., 1906), 40 So. 831. Indiana: State v. Terre Haute & Indianapolis Rd. Co., 166 Ind. 580, 77 N. E. 1077. Iowa: McGuire v. Chicago, Bur- lington & Quincy R. Co., 131 Iowa, 340, 108 N. W. 902. Louisiana: St. Joseph Plank Road Co. V. Kline, 106 La. 325, 30 So. 854. Missouri: Young v. City of Kan- sas City, 152 Mo. 661, 54 S. W. 535. Nebraska: See Tyson v. Wash- ington County (Neb., 1907), 110 N. W. 634. New York: Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 54 N. E. 1081, aff'g 49 N. Y. Supp. 713, 25 App. Div. 329. South Carolina: Brown v. Tharpe, 74 S. C. 207, 54 S. E. 363. Virginia: Zircle v. Southern Ry. Co. rVa.), 45 .S. E. 802: Danville V. Hatcher, 101 Va. 523, 44 S. E. 723. See Joyce on Elect. Law (2d ed.), §357. When an act of the iogisiaturo is challenged in a court, the inquiry is limited to the question of power, and does not extend to the matter of expediency, to the motives of the legislators, or to the reasons which were spread before them to induce the passage of the act; and, on the other hand, the courts will not in- terfere with the action of the legis- lature, so it may be presumed that the legislature never intends to in- terfere with the action of the courts, or to assume judicial functions to itself. Angle v. Chicago, St. Paul, Minneapohs & Omaha Ry. Co., 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. 240. The question of the public welfare or interest rests exclusively with the legislature. Revere Water Co. v. Town of Winthrop, 192 Mass. 455, 78 N. E. 497. " Whether the grant of a franchise is, or is not on the whole, promotive of the public interest, is a question of fact and judgment, upon which dif- ferent minds may entertain different opinions. It is not to be judically assumed to be injurious and then the grant to be reasoned down. It is a matter exclusively confided to the sober consideration of the legis- lature, which is invested with full discretion, and possesses ample means to decide it. For myself, moaning to speak with all due def- erence for others, I know of no power or authority confided to the judicial depart riiont, to rejudge the deci- sions of the legislature, upon such a 243 § 136 SOURCE OF FRANCHISE CONTINUED — STATE, court cannot inquire into the motives of legislators in enact- ing laws, except as they may be disclosed on the face of the acts, or be inferable from their operation, considered with ref- erence to the condition of the country and existing legislation.^^ It is further determined that the policy, wisdom, justice and fairness of a state statute, and its conformity to the state con- stitution, are wholly for the legislature and the courts of the State to determine, and the Federal Supreme Court has nothing to do with those matters. ^^ Again, courts always presume that a legislature in enacting statutes, acts advisedly and with full knowledge of the situation, and they must accept its action as that of a body having full power to act, and only acting when it has acquired sufficient information to justify its action. ^^ And in whatever language a statute may be framed, its pur- pose must be determined by its natural and reasonable effect; and the presumption that it was enacted in good faith, for the purpose expressed in the title, cannot control the determination of the question whether it is, or is not, repugnant to the Con- stitution of the United States. ^^ So questions of relative ben- efit as between the public and a combination alleged to be in subject. It has an exclusive right islature has declared to be of great to make the grant, and to decide utility to the people? It seems to whether it be, or be not, for the me to be our duty to interpret laws, public interests. It is to be pre- and not to wander into speculations sumed, if the grant is made, that it is upon their policy." Charles River made from a high sense of public Bridge v. Warren Bridge, 11 Pet. duty, to promote the public welfare, (36 U. S.) 420, 605, 9 L. ed. 773, and to establish the public pros- per Story, J., in dissenting opinion, perity. In this very case, the legisla- '^ Soon Hing v. Crowley, 113 U. S. ture has, upon the very face of the 703, 28 L. ed. 1145, 5 Sup. Ct. 730. act made a solemn declaration as to '^ Hunter v. City of Pittsburg, 207 the motive for passing it; that, 'The U. S. 161. erecting of a bridge over the Charles '' Chesapeake & Potomac Teleph. River, etc., will be of great public Co. v. Manning, 186 U. S. 238, 46 L. utility.' What court of justice is in- ed. 1144, 22 Sup. Ct. 881, rev'g Man- vested with authority to gainsay this ning v. Chesapeake & P. Teleph. Co., declaration? To strike it out of the 18 App. D. C. 191. act, and reason upon the other *' Minnesota v. Barber, 136 U. S. words, as if it were not there? To 313, 34 L. ed. 455, 10 Sup. Ct. 862. pronounce that a grant is against the See Brimmer v. Redman, 138 U. S. interest of the people, which the leg- 78, 11 Sup. Ct. 213, 34 L. ed. 862. 244 CONSTITUTIONAL AND LEGISLATIVE POWERS § 137 violation of the Anti-Trust Act of Congress, are those of public policy resting solely upon the determination of Congress, and not questions for the consideration of the court. ^* In cases where the validity of a legislative act is to be examined and the opinion of the highest law tribunal of the State to be revised, it is declared by the United States Supreme Court that that court will proceed with cautious circumspection, and in no doubtful case will it pronounce a legislative act to be contrary to the Constitution, but that upon that court is imposed the high and solemn duty of protecting from even legislative vio- lation those contracts which the Constitution has placed be- yond legislative control. ^^ Legislative acts of a city's common council are, equally with those of a state legislature, within the rule which precludes inquiry by the courts into the motives which may have induced legislation. ^^^ But while the right to exercise the police power is a continuing one, and a business lawful to-day may in the future become a menace to the public welfare and be required to yield to the public good, the exercise of the poHce power is subject to judicial review, and property rights cannot be wrongfully destroyed by arbitrary enact- ment. ^^ And although an ordinance may be lawful on its face and apparently fair in its terms, yet if it is enforced in such a manner as to work a discrimination against a part of a com- munity for no lawful reason, such exercise of power will be invalidated by the courts.^^ § 137. Limitations on Powers of State Legislature.^^— Sub- ject to such limitations as are expressly or impliedly imposed " United States v. Northern Se- " Dobbins v. City of Los Angeles, curities Co., 120 Fed. 721, case aff'd 195 U. S. 223, 25 Sup. Ct. 18, 49 193 U. S. 197, 48 L. ed. 679, 24 Sup. L. ed. 169. Ct. 436. " Yick Wo v. Hopkins, 118 U. S. >» Dartmouth College v. Wood- 356, 30 L. ed. 220, 6 Sup. Ct. 1064; ward, 4 Wheat. (17 U. S.) 518, 4 L. Dobbins v. City of Los Angeles, 195 ed. 629. U. S. 223, 25 Sup. Ct. 18, 49 L. ed. "Kittenger v. Buffalo Traction 169. Co., 49 N. Y. Supp. 713, 25 App. " See § 121, herein. Div. 329, aff'd 160 N. Y. 377, 54 N. E. 1081. 245 §137 SOURCE OF FRANCHISE CONTINUED — STATE, by the Federal and state constitutions a State has plenary power to legislate upon all subjects.^'* And whatever the State may do, even with creations of its own will, it must do in subordination to the inhibitions of the Federal Constitution. It may confer, by its general laws, upon corporations, certain capacities of doing business, and of having perpetual succes- sion in their members. It may make its grant in these respects "Colorado: The constitution is not a grant of power to the legis- lature, it is but a Umitation upon legislative authority, as it is invested with plenary power for all the pur- poses of civil government. People ex rel. Rhodes v. Fleming, 10 Colo. 553, 16 Pac. 298. Florida: The state constitution is a limitation upon power; and un- less legislation duly passed be clearly contrary to some express or implied prohibition contained in the consti- tution, the courts have no authority to pronounce it invalid. Thomas v. Williamson (Fla., 1906), 40 So. 831. Iowa: Subject to the power ex- pressly or by necessary inference delegated to the Federal govern- ment, the State has sovereign legis- lative power over all subjects except such as are reserved by the state constitution. McGuire v. Chicago, Burlington & Quincy Ry. Co., 131 Iowa, 340, 108 N. W. 902. Missouri: A state legislature has power to pass any law not prohibited by the Constitution. State ex rel. Henson v. Sheppard, 192 Mo. 497, 507, 91 S. W. 477. The legislative power to enact laws is practically absolute except where limited or prohibited by the Constitution. Jo- seph Roberts, Ex parte, 166 Mo. 207, 65 S. W. 726. Ohio: Southern Gum Co. v. Lay- lin, 66 Ohio St. 578, 64 N. E. 564. South Dakota: The legislature 246 does not look to the state constitu- tion for power to act, but only looks to that instrument to see if the sov- ereign legislative power of the State is in or by such constitution in any way restricted or limited. Piatt v. Le Cocq, 150 Fed. 391. No limita- tions on legislative power; so statute is constitutional unless palpably con- flicts. Watson, In re, 17 S. Dak. 886, 97 N. W. 463. Tennessee: Wright v. Cunning- ham, 115 Tenn. 445, 91 S. W. 293. As to all subjects of legislation the general assembly has full power to pass any law not in conflict with the delegated powers of the Federal gov- ernment, or with the restrictions of the state constitution. Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn. 151, 159, 34 L. R. A. 725, 36 S. W. 1041, per Caldwell, J. Utah: State v. Lewis, 26 Utah, 120, 72 Pac. 388; State v. Cherry (Utah, 1900), 60 Pac. 1103. Virginia : As to matters not ceded to the Federal government, the legis- lative powers of the general assembly are without limit, except so far as restrictions are imposed by the con- stitution of the State in express terms or by strong implication. The state constitution is a restraining instrument only, and every pre- sumption is made in favor of the constitutionality of a state statute. Whitlock v. Hawkins, 105 Va, 242, 53 S. E. 401. CONSTITUTIONAL AND LEGISLATIVE POWERS § 138 revocable at pleasure. It may make the grant subject to modifications and impose conditions upon its use, and reserve the right to change these at will.^^ Again, until Congress acts upon the subject, a State may legislate in regard to the duties and liabilities of its citizens and corporations while on the high seas and not within the Territory of any other sovereign. So a statute giving damages for death caused by tort is a valid exercise of the legislative power of a State, and extends to a case of a citizen of the enacting State wrongfully killed while on the high seas, in a vessel belonging to a corporation of another State by the negligence of another vessel also belong- ing to a corporation of the latter State. ^^ The power of legis- lation may be taken away from the lawmaking body by the Constitution as well by implication as by express prohibition, and prohibitions against legislation are equally as effectual as when they are express, and are to be regarded in the one case, no less than in the other.^^ § 138. Abdication or Surrender of Essential or Distinc- tive Legislative Powers— Binding Future Legislatures — Waiver— Police Powers — Judicial Powers. — No department of the government can abdicate or resign any of its essential and distinctive powers to another department, and much less so to a mere subdivision or inferior agency unless the organic law itself expressly so authorizes. ^^ So a statute prohibiting " Southern Pacific Co. v. Board of 724. Examine also as to principle Railroad Commrs. (C. C), 78 Fed. involved, Ozan Lumber Co. v. Union 236, 254, per McKenna, Cir. J., quot- County National Bank, 207 U. S. ing from Railroad Tax Cases, 13 Fed. 251, 5211,. ed. — , 28 Sup. Ct. — . 722-789, per Field, J., sitting as " Caf^ y Smith, 117 Ga. 902, 44 circuit justice. The principal case S. E. 5. See City of Lexington v. concerned the powers of the Cali- Thompson, 24 Ky. L. Rep. 384, 68 fomia Railroad Commission; regula- S. W. 477, 57 L. R. A. 775. tion of rates; leased lines; illegal '' Reelfoot Lake Levee Dist. v. combinations; amendment of char- Dawson, 97 Tenn. 151, 174, 36 S. W. ters, etc. 1041, 34 L. R. A. 725, per Caldwell, J. *' Hamilton, The (Old Dominion As to reserved powers of State being Steamship Co. v. The Hamilton), innlienable, see West Point Water 207 U. S. 398, 77 C. C. 150, 52 L. ed. Power & L. L Co. v. State, 49 Neb. — , 28 Sup. Ct. — , aff'g 146 Fed. 223, 68 N. W. 507, 60 N. W. 6. 247 § 138 SOURCE OF FRANCHISE CONTINUED — STATE, the laying of any railroad or railway tracks on a certain city street may be repealed, and a statute which provides that, in consideration of the surrender by a certain street railway company of its claims on a city street, no franchise should be granted thereafter to any street railway company to lay tracks on certain other streets, may also be repealed, as the legisla- ture cannot grant away the State's right of eminent domain so as to bind future legislatures, and such railway company, so abandoning its right, has no superior right to the street, and the privilege of using it may by such repealing statute become open to all on equal terms and prior action will secure prior right. ^ And even though it could be assumed that the sov- ereign might be barred from the assertion of sovereign rights by acquiescence in encroachments upon sovereign preroga- tives such view could not be extended to new or additional encroachments by a public service corporation having no legislative authority to exercise franchise rights or corporate powers of the nature and character attempted to be exercised. ^° ^' Commonwealth v. Broad St. convenience and prosperity of the Rapid Transit Co., 219 Pa. 11, 67 people. A State ought never to be Atl. 958. presumed to surrender this power; ^^ McCarter, Atty. Genl., v. Vine- because, like the taxing power, the land Light & Power Co. (N. J. Ch., whole community have an interest 1907), 65 Atl. 1041. in preserving it imdiminished; and The United States Supreme Court when a corporation alleges, that a in the well-known case of Charles State has surrendered, for seventy River Bridge v. Warren Bridge, 11 years, its powers of improvement Pet. (36 U. S.) 426, 9 L. ed. 773, and public accommodation in a great asserts that the object and the end and important line of travel, along of all government is, to promote the which a vast number of its citizens happiness and prosperity of the com- must daily pass, the community munity by which it is established; have a right to insist, in the language and it can never be assumed, that of this court, "that its abandonment the government intends to diminish ought not to be presumed, in a case its power of accomplishing the end in which the deliberate purpose of for which it was created; and in a the State to abandon it, does not ap- country like ours, free, active and pear." The continued existence of enterprising; continually advancing a government would be of no great in numbers and wealth; new channels value, if, by implications and pre- of communication are daily found sumptions, it was disarmed of the necessary both for travel and trade; powers necessary to accomplish the and are essential to the comfort, ends of its creation; and the func- 248 CONSTITUTIONAL AND LEGISLATIVE POWERS § 138 Again, it is not within the power of the State to permanently divest itself, by action or inaction of its police powers, and this is also true as to any subordinate subdivision or agency of the State, acting under a delegation of authority from the State; ^^ nor can a State by any contract divest itself of the power to make police regulations.^^ The right to exercise the police power is a continuing one that cannot be limited or contracted away by the State or its municipality, nor can it be destroyed by compromise, as it is immaterial upon what consideration the attempted contract is based. The exercise of the police power in the interest of public health and safety is to be main- tained unhampered by contracts in private interests, and uncompensated obedience to an ordinance passed in its ex- ercise is not violative of property rights protected by the Federal Constitution ; so an ordinance of a municipality, valid under the state law as construed by its highest court, which compels a railroad to repair a viaduct constructed, after the opening of the railroad, by a city in pursuance of a contract reUeving the railroad, for a substantial consideration, from tions it was designed to perform, State, would, in this instance, be transferred to the hands of privi- affected by the surrender of this leged corporations. The rule of con- great hne of travel to a single corpo- struction announced by the court, in ration, with the right to exact toll the case of the Providence Bank v. and exclude competition for seventy Billings, 4 Pet. (29 U. S.) 514, 7 L. years. While the rights of private ed. 339, was not confined to the tax- property are sacredly guarded, we ing power, nor is it so limited in the must not forget that the com- opinion delivered; on the contrary, munity also have rights; and that the it was distinctly placed on the happiness and well-being of every ground, that the interests of the com- citizen depends on their faithful munity were concerned in preserving preservation. undiminished the power in question; " State v. St. Paul, Minneapolis and whenever any power of the & Manitoba Ry. Co., 98 Minn. 380, State is said to be surrendered or 108 N. W. 261. See § 149, herein. diminished, whether it be the taxing " Beer Co. v. Massachusetts, 97 power, or any other affecting the U. S. 2.5, 24 L. ed. 989. See also St. public interest, the same principle Louis & San Francisco Ry. Co. v. applies and the rule of construction Matthews, 165 U. S. 1, 23, 41 L. ed. must be the same. No one will 611, 17 Sup. Ct. 243, per Bradley, J.; question, that the interests of the State v. Northern Pacific Ry. Co., great body of the people of the (Miim.), 108 N. W. 269. 249 § 139 SOURCE OF FRANCHISE CONTINUED— STATE, making any repairs thereon for a term of years is not void under the contract or the due process clause of the Constitu- tion.^' Again, the power of a State to regulate the forms of administering justice is an incident of sovereignty, and its surrender is never to be presumed.'^ It is held, in a compara- tively late case in the United States Supreme Court, that the rule that every doubt is resolved in favor of the continuance of governmental power, and that clear and unmistakable evi- dence of the intent to part therewith is required, which ap- plies in determining whether a legislative contract of exemp- tion from such power was granted also applies in determining whether its transfer to another was authorized or directed.^' § 139. Legislative Powers of Territory— Corporations Created by Territory Follow It into Union.— The power of territorial legislatures extends to all rightful objects of legis- lation subject to the restriction that laws enacted by them shall not be inconsistent with the laws and Constitution of the United States.'^ But it is held that by the admission of a Territory as a State, the territorial government ceases to exist and all authority under it.'^ On the admission, however, of a Territory into the Union corporations created under terri- torial laws become corporations of such State.'* While a State upon its admission to the Union is on an equal footing with every other State and, except as restrained by the Constitution, has full and complete jurisdiction over all persons and things within its limits, still Congress has power to regulate commerce " Northern Pacific Ry. Co. v. Ferris v. Higley, 20 Wall. (87 U. S.) Duluth, 208 U. S. 583. 375, 22 L. ed. 383. See § 130, herein. 3^ Railroad Co. v. Hecht, 95 U. S. " McNulty v. Batty, 10 How. 168, 24 L. ed. 423. (51 U. S.) 72, 13 L. ed. 333. Com- ^^ Rochester Ry. Co. v. City of pare Wastl v. Montana Union Ry. Rochester, 205 U. S. 236, 248, 51 Co., 24 Mont. 159, 61 Pac. 9; Criswell L. ed. 784, 27 Sup. Ct. — . v. Railway Co., 17 Mont. 189, 42 ^^ American Ins. Co. v. Canter, 1 Pac. 767. Pet. (26 U. S.) 511, 7 L. ed. 242. ^s Kansas Pacific R. Co. v. Atchi- See also Walker v. New Mexico & son, Topeka & Sante Fe R. Co., 112 Southern Pacific Rd. Co., 165 U. S. U. S. 414, 28 L. ed. 794, 5 Sup. Ct. 593, 41 L. ed. 837, 17 Sup. Ct. 421; 208. 250 CONSTITUTIONAL AND LEGISLATIVE POWERS § 140 with the Indian tribes, and such power is paramount and su- perior to the authority of the State within whose Umits are the Indian tribes .^^ § 140. Legislative Power to Grant Implies Power to Re- fuse Franchise— Refusal by Subordinate Body/*^ — The legis- lative power to grant a franchise or privilege implies a power to withhold or refuse it.'*^ And where the constitution of a State provides that any association or corporation, organized for that purpose, or any individual, shall have the right to construct and maintain lines of telegraph and telephone within the State, and declares all such companies to be common carriers and subject to legislative control, and further pro- vides that railroad corporations organized and doing business in the State shall allow such telegraph and telephone com- panies certain rights and privileges, and also gives the latter the right of eminent domain, and authorizes the legislature, by general law of uniform operation, to provide reasonable regulations to give effect to these provisions, such provisions are not self -operative, and in the absence of the provided for regulations by the legislature no rights are conferred on the persons specified, but if the legislature does authorize the con- struction of such lines subject, as to rights of way within the corporate limits of a city, to the consent of the city council, and, by another statute, the authority to regulate and the com- plete control of such hues is given to cities of a certain class with power to authorize or prohibit the use of electricity at, in or upon any of their streets, the power to refuse is correla- tive with the power to consent and the city's authority is not limited to a reasonable regulation of the method of using its streets for the above purposes. In brief, this case decides «» Dick V. United States, 208 U. S. v. Boston Terminal Co., 184 Mass. 340. 566, 69 N. E. 346. *• See § 187, horoin. "The State is the source of all such " Colegrave Water Supply Co. v. franchises, to be granted or withheld City of Hollywood (Cal., 1907), 90 by the legislature at its discretion." Pac. 1053; Boston Electric Light Co. State v. Moore & Ligon, 19 Ala. 520, per Parsons, J , 251 § 140 SOURCE OF FRANCHISE CONTINUED — STATE, that notwithstanding a constitutional provision authorizing the construction of telegraph and telephone lines within a State and giving such companies the power of eminent domain, the legislature, acting under an authority to provide reason- able regulations to give effect to such section, may delegate to a city the right to grant or refuse the use of its streets for the construction of such lines ."^^ But the refusal of a commis- sioner to designate the location of poles cannot be arbitrary and unjustified, where such authority to designate is delegated to him, but in case of such refusal the legal course should be pursued to compel the commissioner to act, and the company will not be warranted in proceeding to erect its poles without thus securing the right to do so.^^ In this case the common council of a city granted permission to a telephone exchange company, in accordance with its request therefor, to extend its telephone poles and wires along certain streets, upon con- dition that the commissioner of public works should designate the location of the poles to be erected, and that the extension of the system should be acceptable to and approved by him, "State ex rel. Spokane & British Am. Elec. Cas. 11; Michigan Teleph. Columbia Teleph. & Teleg. Co. v. Co. v. City of St. Joseph, 121 Mich. City of Spokane, 24 Wash. 53, 63 502, 80 N. W. 383, 47 L. R. A. 87; Pac. 1116, 7 Am. Elec. Cas. 96. See Inhabitants of Township of Summit Michigan Teleph. Co. v. City of v. New York & New Jersey Teleph. Benton Harbor, 121 Mich. 512, 80 Co., 57 N. J. Eq. 123, 41 Atl. 146, 7 N. W. 386, 7 Am. Elec. Cas. 9; Am. Elec. Cas. 58; Barhite v. Home State V. Frost (Neb., 1907), 110 N. Teleph. Co., 50 N. Y. App. Div. 25, W. 986; Nebraska Teleph. Co. v. 7 Am. Elec. "Cas. 75; State ex rel. Western Independent Long Distance Wisconsin Teleph. Co. v. City of Teleph. Co., 68 Neb. 772, 95 N. W. Sheboygan, 111 Wis. 23, 86 N. W. 18, 8 Am. Elec. Cas. 32; State ex rel. 657, 7 Am. Elec. Cas. 109. New York & New Jersey Teleph. Similar constitutional provision is Co. V. Mayor, etc., of Bound Brook, held not self-executing, but it is also 66 N. J. L. 168, 48 Atl. 1022, 7 Am. decided that when the legislature Elec. Cas. 65; Utica, City of, v. Utica acts it must do so imder a general Teleph. Co., 24 N. Y. App. Div. 361, statute so as to give effect to the con- 7 Am. Elec. Cas. 67; State v. Taylor, stitution. State v. City of Helena, 36 Wash. 607, 79 Pac. 286; Joyce on 34 Mont. 67, 85 Pac. 744. Electric Law (2d ed.), § 353. Com- "' St. Paul, City of, v. Freedy, 86 -pare Chamberlain v. Iowa Teleph. Minn. 350, 90 N. W. 781, 8 Am. Elec. Co., 119 Iowa, 619, 93 N. W. 596, 8 Cas. 29. 252 CONSTITUTIONAL AND LEGISLATIVE POWERS §§ 141, 142 and it was held that the commissioner's action, as required by the permit, was a prerequisite to the exercise by the company of whatever authority the permit conferred upon the company, even conceding that the common council had power to desig- nate the locality and the method of constructing such exten- sion, without regard to the commissioner. But the manager of the telephone company having been arrested for violating an ordinance for excavating in the streets contrary to the pro- hibition thereof, it constituted no defense that the reasons assigned by the commissioner for his refusal were purely arbi- trary and unjustified. Again, where the general law, under which the construction of street railroads is authorized, re- quires the consent of the railroad commissioners, and such board refuses its consent, the legislature has power by retro- spective action to cure the defect existing because of such refusal.'*'' § 141. Consent of Subordinate Body Unnecessary to Exercise of Power by Legislature. — The legislature may ex- ercise its power to grant rights, privileges and franchises, or to incorporate a company, without obtaining the consent of a subordinate body to whom it has delegated certain authority. Thus it may authorize the construction of a street railroad without the consent of railroad commissioners,'*^ or without consulting a municipality upon the streets of which the rail- road tracks are to be laid,'*^ and it has the same right which it has vested in county courts relative to the erection of toll bridges."*' § 142. Corporations Created by Rebel State. — A corpora- tion created by a rebel State during the war, if not for a hostile «♦ Kittinger v. Buffalo Traction Div. .329, aff'd 160 N. Y. 377, 54 N. Co., 49 N. Y. Supp. 713, 25 App. Div. E. 1081. 329, aff'd 160 N. Y. 377. " Central R. & E. Co.'s Appeal, « Kittinger v. Buffalo Traction 67 Conn. 197, 35 Atl. 32. Co., 49 N. Y. Supp. 713, 25 App. *' Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296, 27 Am. Dec. 665. 253 §§ 143, 144 SOURCE OF FRANCHISE CONTINUED — STATE, purpose, has power since the war, to sue in the United States courts.^ § 143. Legislative Power— Grant of Additional Franchises — Amendments. — The act of creating a corporation by confer- ring upon an association of individuals certain strictly corporate powers embracing only powers and privileges not ])ossessed by individuals and partnerships, and then granting to it other privileges, enlarging or restricting its right to the enjoyment of other franchises that may be possessed in common with natural persons, and regulating its external relations, are dis- tinct and independent, and there is nothing in the constitution of California prohibiting the latter power to the legislature.'*^ So a corporation's powers may be enlarged in harmony with its corporate purposes, by amendment by the legislature under authority reserved in the grant .^" The right to amend is, however, fully considered elsewhere herein. § 144. Legislative Grant Necessary — Roads, Highways, Bridges and Ferries — Eminent Domain— Generally. — The laying off, regulating and keeping in repair, roads, highways, bridges and ferries, for the public use and convenience of the citizens, is an exercise of the supreme authority of the State. No private person can establish a public highway, or a public ferry or railroad, or charge tolls for the use of the same without authority from the legislature, direct or derived. The right of eminent domain cannot be exercised without a legislative grant, and no person, natural or artificial, can become a body politic or corporate and exercise these rights or privileges, *^ United States v. Insurance Com- the Constitution, before such a suit panics, 22 Wall. (89 U. S.) 99, 22 L. could be prosecuted. ed. 816. Examine Texas v. White, Effect of war on pre-existing valid 7 Wall. (74 U. S.) 700, 19 L. ed. 227, contract, see Joyce on Ins. §§ 289- as to suit by Texas during the re- 291. bellion, and necessity that the gov- ^' Southern Pac. R. Co. v. Orton, ernment and the people of the State 32 Fed. 457. See § 124, herein, should be restored to peaceful re- ^° McKee v. Chautauqua Assembly, lations to the United States, under 124 Fed. 808, 130 Fed. 536, 65 C. C. 8. 254 CONSTITUTIONAL AND LEGISLATIVE POWERS § 144 which inhere in the sovereign power, without legislative au- thority.^^ The state authorities have power to grant a ferry- franchise to the middle of a river, which is a boundary line between it and another State or foreign country, the power to establish ferries being coextensive with the legislative juris- diction of the State, and such exercise of power does not con- flict with the Constitution of the United States, under which Congress has power to regulate commerce between the States and with foreign nations .^^ "' " Such rights and powers must exist under every form of society. They are always educed by tlie laws and customs of the community. Un- der our system, their existence and disposal are imder the control of the legislative department, and they cannot be assumed or exercised with- out legislative authority. No pri- vate person can establish a public highway, or a public ferry, or rail- road, or charge tolls for the use of the same, without authority from the legislature, direct or derived. * * * The right of eminent do- main can only be exercised by virtue of a legislative grant. * * * Nq persons can make themselves a body corporate or politic without legisla- tive authority." California v. Pa- cific Rd. Co., 127 U. S. 1, 40, 32 L. ed. 150, 8 Sup. Ct. 1073, per Brad- ley, J. "No one can exercise the right of eminent domain, or establish a high- way or railway and charge tolls for the same within a grant from the leg- islature. Such rights as inhere in the sovereign power can only be exer- cised by the individual or corpora- tion by virtue of a grant from such sovereign power, and when the State grants such a right it is a franchise." Lasher v. People, 183 111. 226, 233, per Cartwright, C. J. The right to lay off, regulate and maintain roads, highways, bridges and ferries for public use " is an exer- cise of the supreme authority of the State coeval with the institution of civic society, and indispensable to the free exercise of social and com- mercial intercourse. * * * It is a part of the eminent domain, and as such is treated by all writers on public law. It is upon this prin- ciple that roads are laid out." Dyer V. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296, 303, 304, 27 Am. Dec. 655. Certain laws in New York em- braced in one scheme. The general corporation law, the banking law re- lating to trust companies and the stock corporation laws were evi- dently intended to provide one con- sistent scheme of legislation. Gause V. Boldt, 99 N. Y. Supp. 442, 443, 444, 49 Misc. 340, case modified, 100 N. Y. Supp. 1117, 115 App. Div. 879, quoting Hirshfeld v. Bopp, 145 N. Y. 84, 93, 39 N. E. 817. *^ Tugwell & Madison v. Eagle Pass Ferry Co., 74 Tex. 450, 490, 9 S. W. 120. • License or legislative grant is nec- essary to exercise right of keeping public ferry for toll. MiUon v. Ha- doii. 32 Ala. 30, 70 Am. Dec. 523 (so under statute from year 1820); Pat- 255 § 145 SOURCE OF FRANCHISE CONTINUED — STATE, § 145. Bridge Corporation — Bridges — Commerce — Navi- gable Waters Wholly Within State— Power of State as to Toll Bridges — Railroad TollBridge. — Although navigable wa- ters of the United States lie wholly within a State, Congress in the exercise of its power under the commerce clause of the Constitution may exercise control to the extent necessary to protect, preserve and improve their free navigation; but until that body acts, the State has plenary authority over bridges across them, and there is nothing in the ordinance of July 13, 1787, or in the subsequent legislation of Congress, that pre- cludes the State from exercising that authority .^^ But the several States have the power to establish and regulate bridges, and the rates of toll thereon, whether within one State, or between two adjoining States, subject to the paramount au- thority of Congress over interstate commerce .^^ It is deter- mined, however, that under existing legislation, the right to erect a structure in a navigable water of the United States, wholly within the limits of a State, depends upon the con- current or joint assent of the state and national governments; and that neither the act of Congress of March 3, 1899, c. 425, nor any previous act relating to the erection of structures in the navigable waters of the United States, manifested any purpose on the part of Congress to assert the power to invest private persons with power to erect such structures within a terson v. Wollmann, 5 N. Dak. 608, in Murray v. Minefee, 20 Ark. 561, 67 N. W. 1040, 33 L. R. A. 536. Ex- that ' a ferry franchise is the creature amine Conway v. Taylor, 1 Black, of sovereign power, and no one can (66 U. S.) 603, 17 L. ed. 191; Mills v. exercise it without the consent of the St. Clair County, 8 How. (49 U. S.) State.' This is too well settled by 569, 12 L. ed. 1201; Carroll v. Camp- the authorities to admit of discus- bell, 108 Mo. 550; Mayor of New York sion." Bell v. Clegg, 25 Ark. 26, 28, V. Starin, 106 N. Y. 1, 27 Wkly. Dig. per Compton, J. 124, 8 N. Y. St. R. 655; Evans v. " Escanaba Co. v. Chicago, 107 U. Hughes County, 3 S. Dak. 580. S. 678, 2 Sup. Ct. 185, 27 L. ed. 442. "The ownership of the soil does See cases cited in first note to § 127, not necessarily entitle the owner to a herein. public ferry franchise. He can ex- ** Covington & Cincinnati Bridge ercise no such privilege until the Co. v. Kentucky, 154 U. S. 204, 38 L. right to do so is conferred by the ed. 962, 14 Sup. Ct. 1087, proper authority. This court said, 256 CONSTITUTIONAL AND LEGISLATIVE POWERS § 145 navigable water of the United States, wholly within the terri- torial limits of a State, without regard to the wishes of the State upon the subject.^^ Again, the provision in the act ad- mitting California, "that all the navigable waters within the said State shall be common highways and forever free, as well to the inhabitants to said State, as to the citizens of the Uni- ted States, without any tax, impost, or duty therefor," does not deprive the State of the power possessed by other States, in the absence of legislation by Congress, to authorize the erection of bridges over navigable waters within the State .'^^ In determining the question whether a bridge may be erected over one of its own tidal and navigable streams, it is for the municipal power to weigh and balance against each other the considerations which belong to the subject — the obstruction of navigation on the one hand, and the advantage to commerce on the other — and to decide which shall be preferred, and how far one shall be made subservient to the other. And if such erection shall be authorized in good faith, not covertly and for an unconstitutional purpose, the Federal courts are not bound to enjoin it. Congress may, however, interpose whenever it shall be deemed necessary by either general or special laws. It may regulate all bridges over navigable waters, remove offending bridges, and punish those who shall thereafter erect them. Within the sphere of their authority, both the legisla- tive and judicial power of the nation are supreme. Annun- ciating these principles on the one hand and on the other, the court refused to enjoin, at the instance of a riparian owner, to whom the injury would be consequential only, a bridge about to be built, under the authority of the State of Pennsyl- vania, by the city of Philadelphia over the River Schuylkill, a small river — tidal and navigable, however, and on which a great commerce in coal was carried on by barges — which river was wholly within the State of Pennsylvania, and ran through the corporate limits of the city authorized to erect the bridge; "Cummings v. Chicago, 188 U. 113 U. S. 205, 28 L. ed. 959, 5 Sup. S. 410, 23 Sup. Ct. 472, 47 L. ed. 525. Ct. 423. *' Cardwell v. American Bridge Co., 17 257 § 146 SOURCE OF FRANCHISE CONTINUED — STATE, on both sides of which municipal authority was exercised on one as much as on the other; the bridge being a matter of great public convenience every way, and another bridge, just like it, having been erected and in use for many years, over the same stream, about 500 yards above. ^'^ Authority to grant the franchise for establishing and maintaining a toll bridge over a river where it crosses a public highway in a State, is vested solely in the legislature, and may be exercised by it or com- mitted to such agencies as it may select.^^ The legislature has power to create a franchise to construct toll bridges in general for public use within the State, and this term may include rail- road toll bridges where the term " bridge " has been for years construed by the courts to include railroad bridges. ^^ It has been decided in Georgia that the right to receive tolls for the transportation of travelers and others across a river on a pub- lic highway is a franchise which belongs to the people collec- tively.®" "A grant of this franchise from the public, in some form, is, therefore, necessary to enable an individual to establish and maintain a toll bridge for public travel. The legislature of the State alone has authority to make such a grant. It may exercise this authority by direct legislation, or through agen- cies duly established." '^^ And where the constitution of a State authorizes the legislature to provide for the construction of a bridge over navigable water it is thereby empowered to regulate such construction and management and it may also delegate such authority.®^ § 146. Pier Erected Without Authority in Navigable Wa- ter — Unlawful Structure — Owner's Liability. — A pier erected in the navigable water of the Mississippi River for the sole use of the riparian owner, as part of a boom for saw-logs, " Oilman v. Philadelphia, 3 Wall. "o Young v. Harrison, 6 Ga. 130. (70 U. S.) 713, 18 L. ed. 96. " Wright v. Nagle, 101 U. S. 791, " Wright V. Nagle, 101 U. S. 791, 794, 25 L. ed. 921, per Waite, C. J. 25 L. ed. 921. e^ Schinzel v. Best, 92 N. Y. Supp. "Southern Illinois & Missouri 754, 45 Misc. 455, aff'g 96 N. Y. Supp. Bridge Co. v. Stone, 174 Mo. 1, 63 L. 1145, 109 App. Div. 917. R. A. 301, 73 S. W. 453. 258 CONSTITUTIONAL AND LEGISLATIVE POWERS § 146 without license or authority of any kind, except such as may arise from his ownership of the adjacent shore, is an unlawful structure, and the owner is liable for the sinking of a barge run against it in the night. Such a structure differs very ma- terially from wharves, piers, and others of like character, made to facilitate and aid navigation, and generally regulated by city or town ordinances, or by statutes of the State, or other competent authority. They also have a very different stand- ing in the courts from piers built for railroad bridges across navigable streams, which are authorized by acts of Congress or statutes of the States .^^ But land under navigable waters may be granted, even against the owner of the upland, for the purpose of promoting the State's commerce .^^ " Atlee V. Packet Co., 21 Wall, suant to the statutes of the State, a (88 U. S.) 389, 22 L. ed. 619, cited in general system of harbor lines in the Prosser v. Northern Pacific R. Co., harbor, and from filing a plan thereof. 152 U. S. 59, 64, 38 L. ed. 353, Also cited in Shively v. Bowlby, 152 14 Sup. Ct. — , which holds that a U. S. 1, 41, 14 Sup. Ct. 548, 38 L. ed. railroad corporation, which has laid 331, which case considers the ques- out, constructed and maintained its tion of title to tidal lands, distin- railroad for a distance along the guishes the common law and Amer- shore of a harbor, below high water ican rule, the status of territories in mark, claiming under its charter the this connection, and asserts that no right to do so, and the ownership of one can erect a building or a wharf adjacent lands under tide waters of upon such lands without license, the harbor, cannot maintain a bill in '* De Lancey v. Hawkins, 49 N. equity to restrain a board of com- Y. Supp. 469, 23 App. Div. 8, aff'g missioners from establishing, pur- 163 N. Y. 587, 57 N. E. 1108. 259 § 147 DELEGATION OF POWER — GENERALLY CHAPTER X. DELEGATION OF POWER — GENERALLY. § 147. Delegation of Power — Dis- § 148. Grant of Franchise May Be tinction Between Power to Made Tiirough Lawful Del- Make Laws and Dis- egated Agency. cretion as to Their Execu- 149. Delegation of Power — Police tion or Administration — Regulations — Generally. Power to Regulate. 150. Delegation of Power of Tax- ation. § 147. Delegation of Power — Distinction Between Power to Make Laws and Discretion as to Their Execution or Administration — Power to Regulate. — A distinction exists between a delegation of power to fix or make a law, which involves a discretion as to what the law shall be, and employ- ing an agency which is empowered to exercise a discretion in determining when the law as enacted shall be enforced, or to determine questions of fact essential to the apphcation of the law; the power to legislate which is vested in the State cannot be delegated; the administrative duties in carrying out legis- lative powers may be delegated.^ The State has power to regulate public service corporations, or the conduct of a busi- ness affected with a public interest, and to fix and determine, * United States v. Union Bridge former involves legislative, the latter Co., 143 Fed. 377; People v. Grand administrative discretion. The true Trunk Ry. Co., 232 111. 292, 297, 83 distinction between delegation of N. E. 839, per Carter, J., quoting power to make law and delegation of Sutherland on Stat. Construction, power to administer law, is this: the p. 611. former contemplates exercise of dis- Authority which by the Constitu- cretion as to what the law shall be, tion is vested in the legislature, is the the other, exercise of discretion in power to make the law. It may be the administration of the law. exercised, leaving in the particular State ex rel. Milwaukee Medical instance to some agency the duty of College v. Chittenden, 127 Wis. 468, determining questions of fact essen- 10 N. W. 500. tial to the application thereof; the 260 DELEGATION OF POWER — GENERALLY § 148 as a rule for future observance, the rates and charges for serv- ices rendered. This power is wholly a legislative or admin- istrative function. The legislature may itself prescribe such regulations or delegate the exercise of such powers in matters of detail to some administrative board or body of its own creation. To prescribe a tariff of rates and charges is a legis- lative function, but to determine whether existing or pre- scribed rates and charges are reasonable or unreasonable is a judicial function, so the use of property of such corporations may be controlled by the State by regulations providing for the safety and convenience of the public; restrictions may also be imposed prohibiting unjust discrimination and un- reasonable rates or charges, but this limitation exists as to such power, that it cannot be exercised to deprive owners of their property without due process of law, or without com- pensation, nor can they be denied the equal protection of the laws.2 The above-stated principle, as to non-delegation of legislative powers, is also one which does not operate to pre- vent the exercise of certain functions by certain subordinate bodies in relation to the creation of corporations and the grant of privileges or franchises, as will hereinafter appear.^ § 148. Grant of Franchise May Be Made Through Law- ful Delegated Agency.— In England, although the contrary doctrine was formerly asserted, it is now well settled that the power of establishing corporations may, in a certain sense, be delegated.'' So, in this country it is not essential to a franchise that a grant be made direct; it is sufficient that it be made through a legitimate legislative agency; ^ or, to state the rule ^ Western Union Teleg. Co. v. ' See §§ 47, 48, herein, also various Myatt, 98 Fed. 335, considered and sections throughout this treatise, distinguished as having no appHca- * Franklin Bridge Co. v. Young tion to the case before it in Western Wood, 14 Ga. 80. In this case it was Union Teleg. Co. v. Andrews, 154 a question whether the legislature Fed. 95, 103; cited in Louisville & N. could transfer the lawmaking power R. Co. V. Brown, 123 Fed. 946 (a case to any corporation, relating to the powers and nature of ' State v. Portage City Water Co., the functions of a state railroad com- 107 Wis. 441, 83 N. W. 697. mission). 261 § 148 DELEGATION OF POWER — GENERALLY in another form, the legislature may exercise its authority by direct legislation, or through agencies duly established, having power for that purpose. The grant, when made, binds the public, and is directly oi indirectly the act of the State. The easement is a legislative grant, whether made directly by the legislature itself, or by one of its properly constituted instru- mentalities.^ So it is declared in a New York case that: All franchises or privileges known by that term proceed from the State in the exercise of its sovereign powers. Through different mediums or agencies the State may act in granting franchises, but it is itself the source and depositary from which the right proceeds. Sometimes the franchise is conferred directly by the State through some grant or legislative enactment, but more generally the sovereign delegates its power to municipal or local authorities.'' This rule applies to ferries;* to a fran- chise to build a bridge and take tolls ; ^ to the right to make use of city streets for railroad purposes;^" and the franchise or ° Wright V. Nagle, 101 U. S. 791, and in this country vests in an indi- 794, 25 L. ed. 921, per Waite, C. J. vidua! only by a legislative grant, " It makes no difference whether and it makes no difference whether the grant be made directly from the the grant be made directly by the legislature, or by a subordinate body legislature, or by a subordinate body to whom the power is delegated; it to whom the power is delegated; it is still a grant emanating from the is still a grant emanating from the sovereign authority of the State, authority of the State. * * * Jt Truckee & Tahoe Turnpike Road was said in an early English case Co. V. Campbell, 44 Cal. 89, 91, per that ' a ferry is publici juris. It is a Rhodes, J. franchise that no one can erect with- ' Wilcox V. McClellan, 185 N. Y. out a license from the crown.' Blis- 9, 16, 77 N. E. 986, per O'Brien, J. sett v. Hart, Willes, 508; " Evans v. ^The power to establish ferries is Hughes County, 3 S. Dak. 580, 581, one of the attributes of sovereignty 582, 54 N. W. 603, per Corson, J. which is to be exercised by the legis- * A franchise to build a bridge and lature itself, or by any agent whom take tolls can "only be conferred by that body may authorize to act for it. the legislature, directly or indirectly Spease Ferry, In re, 138 N. C. 219, through public agents and tribunals, 50 S. E. 625. in pursuance of a statute." Coving- The right to maintain and operate ton Drawbridge Co. v. Shepherd, a ferry and to collect tolls is a fran- 21 How. (62 U. S.) 112, 113, 16 L. ed. chise or "right only vested in indi- 38, per Catron, J. See also Wright viduals by grant from the govern- v. Nagle, 101 U. S. 791, 25 L. ed. 921. ment. It is a sovereign prerogative, '" "Tlie authority to make use of 262 DELEGATION OF POWER — GENERALLY § 149 contract to construct waterworks can be conferred through authority delegated from the State." And a corporation, public in its nature, such as an irrigation district, need not be created by the legislature itself, but its organization will be valid even though it exists only by or under the supervision of a local body.^^ Other instances of the delegation of power through lawful agencies will appear throughout this treatise. § 149. Delegation of Power — Police Regulations— Gener- ally. — The police power may be asserted directly by the legislature, or may, in the absence of constitutional restric- tions, be delegated to several municipal corporations or other agencies provided for its exercise. ^^ The legislature may also properly designate any agency it deems proper within the State, reasonably calculated to act justly in the matter, to nominate persons for appointment to administer police regu- lations.^"* The general police power is reserved to the States subject to this limitation: that it may not trespass on the rights and powers vested in the national government, ^^ and must be exercised in subordination to the Constitution.^^ That such power is restricted in its exercise to the national Con- stitution, is also shown by those cases in which grants of exclusive privileges respecting public highways and bridges the public streets of a city for rail- " Washburn Water Works Co. v. road purposes primarily resides in City of Washburn, 129 Wis. 73, 80, the State, and is part of the sovereign 108 N. W. 194, per Kerwin, J. power; and the right or privilege of '^ Central Irrigation District v. constructing and operating railroads De Lappe, 79 Cal. 351, 21 Pac. 825. in the streets, which for convenience '' Chicago, Burlington & Quincy is called a 'franchise' must always Rd. Co. v. Nebraska, 47 Neb. 549, proceed from that source, whatever 3 Am. & Eng. R. Cas. (N. S.) 573, may be the agency through which it 41 L. R. A. 481, 66 N. W. 624. is conferred. Adee v. Nassau Electric Police power — Power of courts as R. Co., 72 N. Y. Supp. 992, 1000, 65 to, see § 184, herein. App. Div. 529, per Woodward, J., '* State ex rel. Milwaukee Medical case affirmed (mem.), 177 N. Y. 548, College v. Chittenden, 127 Wis. 468, 69 N. E. 1120. See also Beekman v. 10 N. W. 500. See § 138, herein. Third Ave. Rd. Co., 153 N. Y. 144, '* Heff, Matter of, 197 U. S. 488, 152, 47 N. E. 277, per O'Brien, J.; 49 L. ed. 848, 25 Sup. Ct. 506. Fanning V. Osborne, 102 N. Y. 441, '« Stehmeyer v. Charleston, 53 S. 7 N. E. 305. C. 259, 31 S. E. 322. 263 § 149 DELEGATION OF POWER — GENERALLY over navigable waters have been sustained as contracts, the obligations of which are fully protected against impairment by state enactments.^' But the Fourteenth Amendment to the Constitution does not limit the subjects in relation to which the police power of the State may be exercised for the protec- tion of its citizens.^* Nor is the power of the Federal govern- ment to regulate commerce in conflict with the reserved rights of the several States under the Constitution, nor does it deprive them of the power to pass laws in the nature of police regu- lations under what is known as "the pohce power," but on all matters that are the subjects of commerce within the mean- ing of the Federal Constitution, state regulations must be limited to subjects of police control and must not in them- selves be regulations of commerce. ^^ Nor is uncompensated obedience to a regulation enacted for the public safety under the police power of the State a taking of property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not in- tended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all govern- ments.^" There is also a difference between ordinary vehicles and electric cars which the State may, in the exercise of its police power, recognize without denying the company operat- ing the electric cars the equal protection of the laws.^^ The essential quality of the police power as a governmental agency '^New Orleans Gas Co. v. Louis- nolly, 113 U. S. 27, 28 L. ed. 923, 5 iana Light Co., 115 U. S. 650, 662, 29 Sup. Ct. 357. L. ed. 516, 6 Sup. Ct. 252, per Har- '» Gibbons v. Ogden, 9 Wheat. (22 Ian, J. U. S.) 1, 6 L. ed. 23. '* Minneapolis & St. Louis Ry. Co. ^^ Chicago, Burlington & Quincy V. Beckwith, 129 U. S. 26, 32 L. ed. Ry. Co. v. Drainage Comrs., 200 U. 585, 9 Sup. Ct. 207, considering and S. 561, 50 L. ed. 596, 26 Sup. Ct. 341, following Missouri Pacific Ry. Co. v. aff'g 212 111. 103, 72 N. E. 219. Humes, 115 U. S. 512, 6 Sup. Ct. "Detroit, Fort Wayne & Belle 110, 29 L. ed. 463; Soon King v. Isle Ry. v. Osbom, 189 U. S. 383, 47 Crowley, 113 U. S. 703, 28 L. ed. L. ed. 860, 23 Sup. Ct. — . 1145, 5 Sup. Ct. 730; Barbier v. Con- 264 DELEGATION OF POWER — GENERALLY § 150 is that it imposes upon persons and property burdens designed to promote the safety and welfare of the public at large ; ^^ and the police power of a State embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public health, morals or safety; it is not confined to the suppression of what is offensive, disorderly or unsanitary, but extends to what is for the greatest welfare of the State .23 § 150. Delegation of Power of Taxation. — The power of taxation is an incident of sovereignty, and essentially a legis- lative power, falling, under the general apportionment of governmental powers, to the legislative department, but this power can be delegated to the extent expressly permitted under the Constitution. ^^ '* Chicago, Burlington & Quincy tempt it, they would say, that every Rd. Co. V. Nebraska, 47 Neb. 549, 3 law came within the description of Am. & Eng. R. Gas. (N. S.) 573, 41 L. a regulation of pohce which con- R. A. 481, 66 N. W. 624. cerned the welfare of the whole peo- " Bacon v. Walker, 204 U. S. 311, pie of a State, or any individual 27 Sup. Ct. 289, 51 L. ed. 499, case within it; whether it related to their affirms Walker v. Bacon, 11 Idaho, rights or their duties; whether it re- 127, 81 Pac. 155. spected them as men, or as citizens The police power of a State em- of the State in their public or private braces such reasonable regulations re- relations; whether it related to the lating to matters completely within its rights of persons or of property, of the territory and not affecting the people whole people of a State, or of any in- of other States, established directly dividual within it; and whose oper- by legislative enactment, as will pro- ation was within the territorial lim- tect the public health and safety, its of the State, and upon the persons Jacobson v. Massachusetts, 197 U. and things within its jurisdiction. S. 11, 49 L. ed. 643, 25 Sup. Ct. 358. An example of the application of See also Stehmeyer v. Charleston, 53 these principles, is the right of a S. C. 259, 31 S. E. 322; State, ex rel. State to punish persons who commit Milwaukee Medical College v. Chit- offenses against its criminal laws tenden, 127 Wis. 468, 107 N. W. 500. within its territory. New York v. It is at all times difficult to define Miln, 11 Pet. (36 U. S.) 102, 9 L. ed. any subject with precision and ac- 648. curacy; if this be so, in general, it is ^* Reelfoot Lake Levee Dist, Daw- emphaticaliy so in relation to a sub- son, 97 Tenn. 151, 158, 159, 174, ject so diversified and various as that 36 S. W. 1041, 34 L. R. A. 725. See under the consideration of the court Chanter herein on Taxation and in this case; if the court were to at- § 182, herein, Board of ICqualization. 205 § 151 DELEGATION OF POWER BY CONGRESS CHAPTER XL DELEGATION OF POWER BY CONGRESS. § 151. Delegation to the President. § 154. Delegation to American Rail- way Association. 155. Delegation of Power to De- termine Compensation Un- der Right of Eminent Do- main Exercised by United States. 152. Delegation to Secretary of War — Bridges. 153. Delegation of Power to Inter- state Commerce Commis- sion. § 151. Delegation to the President. — Congress cannot, un- der the Constitution delegate its legislative power to the Presi- dent, although other powers not legislative in character may- be conferred upon him.^ So, it is declared that: "While it is undoubtedly true that legislative power cannot be delegated to the courts or to the executive, there are some exceptions to the rule under which it is held that Congress may leave to the President the power of determining the time when or exi- 1 Field V. Clark, 143 U. S. 649, 38 L. ed. 294, 12 Sup. Ct. 495. [In this case it is also held that the authority conferred upon the president by § 3 of the act of October 1, 1890, to re- duce the revenue and equalize duties on imports, and for other purposes, 26 Stat., c. 1244, pp. 567, 612, to suspend by proclamation the free in- troduction of sugar, molasses, coffee, tea and hides, when he is satisfied that any country producing such articles imposes duties or other ex- actions upon the agricultural or other products of the United States, which he may deem to be reciprocally un- equal or unreasonable, is not open to the objection that it unconstitution- 266 ally transfers legislative power to the president (Fuller, C. J., and Lamar, J., dissenting); but that even if it were it does not follow that other parts of the act imposing duties upon imported articles, are inoperative.] Cited and considered in Union Bridge Co. v. United States, 204 U. S. 365, 379, 385, 51 L. ed. 523, 27 Sup. Ct. — , aff'g 143 Fed. 377. Approved in Butterfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. ed. 252. Cited in Rider v. United States, 178 U. S. 250, 258, 44 L. ed. 1060, 20 Sup. Ct. 480. Cited and considered in United States v. Dastervignes, 118 Fed. 190, 201. Cited in United States V. Maid, 116 Fed. 650, 653. DELEGATION OF POWER BY CONGRESS § 152 gency upon the happening of which a certain act shall take effect." 2 § 152. Delegation to Secretary of War — Bridges.^— Un- der its power to regulate commerce, and to make all laws which shall be necessary and proper for carrying into execu- tion such power, Congress is authorized to determine what constitutes an unreasonable obstruction to navigation and to control and regulate navigation. Such power being constitu- tionally vested in Congress it is without limitation as to the means or manner in which it shall be done, and it would seem that it has the right to employ every agency necessary to the due exercise of such authority, so that, although the power to legislate is vested in Congress alone, the administrative duties in carrying out legislative powers may be delegated, and an act of Congress, which does not delegate to the Secretary of War any power to fix or make the law, but only confers on such secretary authority to determine when a law, enacted by Congress concerning obstructions by bridges to navigable waters, shall be enforced, does not unconstitutionally operate as taking property of a bridge company, whose bridge con- stitutes such an obstruction, for public use without due com- pensation, nor is it unconstitutional as being a delegation of legislative or judicial power, especially so where notice is re- quired to be given to the parties interested, and a party who considers himself aggrieved has the right of appeal, or a writ of error, to the court of highest resort.'* Under an early de- * St. Ix)uis Consolidated Coal Co. Co., 143 Fed. 377, citing, consider- V. Illinois, 185 U. S. 203, 210, 46 L. ing or quoting from State of Penn- ed. 872, 22 Sup. Ct. 616, per Brown, sylvania v. Wheeling & Belmont J., in discufssing question of delega- Bridge Co. (Wheeling Bridge Case), tion of power to mining inspector 18 How. (59 U. S.) 421, 425, 15 L. ed. and exercise by him of discretion, 435; South Carolina v. Georgia, 93 citing The Aurora, 7 Cranch (11 U. U. S. 13, 23 L. ed. 969; Gray v. Clii- S.), 382, 3 L. ed. 378; Field v. Clark, cago, 10 Wall. (77 U. S.) 454, 19 L. 143 U. S. 649, 36 L. ed. 294, 12 Sup. ed. 969; Miller v. New York, 109 Ct. 601. U. S. 393, 3 Sup. Ct. 232, 27 L. ed. 'See § 127, herein. 971; Gibbons v. Ogden, 9 Wheat. * United States v. Union Bridge (22 U. S.) 1, 6 L. ed. 23; Gilman v. 267 § 152 DELEGATION OF POWER BY CONGRESS cision it is held that an act of Congress delegating to the Sec- retary of War the power to declare a bridge an obstruction to navigation and to require it to be changed, remodeled or re- built, is unconstitutional.^ But the later enactment of 1899 ^ giving similar powers is held not unconstitutional as delegating legislative or judicial power to the Secretary of War, as the power granted is administrative, to be enforced by a judicial proceeding in court where the legality of his action could be reviewed 7 So in another case, in the Supreme Court, it is Philadelphia, 3 Wall. (70 U. S.) 713, 18 L. ed. 96; United States v. Moline (D. C), 82 Fed. 592; E. A. Chatfield Co. V. City of New Haven (C. C), 110 Fed. 792; Fletcher v. Peck, 6 Cranch (10 U. S.), 126, 3 L. ed. 162; Willson V. Blackbird Creek Marsh Co., 2 Pet. (27 U. S.) 245, 7 L. ed. 412; Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, 31 L. ed. 629; Escanaba Co. v. Chicago, 107 U. S. 683, 2 Sup. Ct. 185, 27 L. ed. 442; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Cardwell v. Ameri- can Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423, 28 L. ed. 959; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. ed. 294; Cohn v. United States, 152 U. S. 212, 14 Sup. Ct. 513, 38 L. ed. 415; Bushnel v. Leland, 164 U. S. 684, 17 Sup. Ct. 209, 41 L. ed. 598; Lake Shore & Michigan Southern Ry. Co. V. Ohio, 165 U. S. 365, 17 Sup. Ct. 357, 41 L. ed. 747; United States V. Ormsbee (D. C), 74 Fed. 207; Dastervignes v. United States, 122 Fed. 35, 58 C. C. A. 346, and distinguishing Monongahela Nav. Co. V. United States, 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463. Princi- pal case is aff'd in Union Bridge v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct. 367. In the "statement" of this case it is said: "Legislation similar in its general 268 character can be found in River and Harbor Acts passed at previous ses- sions of Congress. Act 1884, 23 Stat. 123, 148, c. 229; act of April 11th, 1888, 25 Stat. 400, 424, 425, c. 860, §§ 9, 10; and act of September 19th, 1890, 26 Stat. 426, 453, c. 907, §§ 4, 5. Finally, we have the act of March 23d, 1906, 34 Stat. 84, c. 1130, §§4, 5, which covers the same ground as the act of 1899 under which the present information was filed." ^ United States v. Keokuk & H. Bridge Co., 45 Fed. 178 (under act of Congress, August 11, 1888, 25 U. S. Stat, at L. p. 424, §§ 9, 10, River & Harbor Bill), followed in United States V. Rider (D. C), 50 Fed. 406. « Act 1899, § 18, 30 Stat. 1153. ' E. A. Chatfield Co. v. City of New Haven (C. C), 110 Fed. 788, cited in United States v. Union Bridge Co., 143 Fed. 377, 387; United States V. Matthews (D. C), 146 Fed. 306, 308. In this case the delegation to the Secretary of the Interior (trans- ferred to Secretary of Agriculture) of certain powers for the protection of forest reservations was held void as an attempted delegation of legis- lative powers to an administrative officer, cited in United States v. Keitel (D. C), 157 Fed. 396, 401; con- sidered as expressing a contrary view DELEGATIOX OF POWER BY CONGRESS § 152 determined that the provisions of the act of Congress of 1890,* conferring upon the Secretary of War authority concerning bridges over navigable water-ways, do not deprive the States of authority to bridge such streams, but simply create an addi- tional cumulative remedy to prevent such structures, although lawfully authorized, from interfering with commerce.^ It is also decided by the same court that this enactment does not embrace officers of a municipal corporation, owning or con- trolling a bridge, who had not in their hands, and, under the laws of the State, could not obtain public moneys that could be applied in execution of the order of the Secretary of War, within the time fixed by that officer to complete the alteration of such bridge. The facts of this case appear in the appended note.i" in United States v. Bale, 156 Fed. otherwise, or where there is difficulty 687, 688; cited but declared not in in passing the draw-opening of the point in United States v. Shannon draw-span of such bridge by rafts, (C. C), 151 Fed. 863, 865. steamboats or other water crafts, it Not a delegation of legislative or shall be the duty of said Secretary judicial powers to Secretary' of War. first giving the parties reasonable United States v. City of Moline (D. opportunities to be heard, to give C), 82 Fed. 592. notice to the persons or corporation *Act September 19, 1890, c. 907, owning or controlling such bridge §§ 4, 5, 7. so to alter the same as to render navi- " Lake Shore & Michigan Southern gation through or under it reason- Ry. Co. V. Ohio, 165 U. S. 365, 41 ably free, easy and unobstructed; L. ed. 747, 17 Sup. Ct. 357. and in giving such notice he shall '"The fourth and fifth sections of specify the changes to be made and the River and Harbor Act approved shall prescribe in each case a reason- September 19, 1890, provide: " § 4. able time in which to make them. That § 9 of the River and Harbor If at the end of such time the alter- Act of August nth, 1888, be amended ation has not been made, the Secre- and re-enacted so as to read as fol- tary of War shall forthwith notify lows: That whenever the Secretary the United States District Attorney of War shall have good reason to be- for the District in which such bridge lieve that any railroad or other is situated to the end that the crimi- bridge now constructed or which nal proceedings mentioned in tlie may hereafter be constructed over succeeding section may be taken, any of the navigable waterways of § 5. That § 10 of the River and the United States is an unreasonable Harbor Act of .August 11th, 1888, be obstruction to the free navigation amended and re-enacted so as to read of such waters on account of insuf- as follows: That if the persons, cor- ficient height, width, or span, or porations or associations owning or 269 § 153 DELEGATION OF POWER BY CONGRESS § 153. Delegation of Power to Interstate Commerce Commission. — The Interstate Commerce Commission is a body corporate, with legal capacity to be a party plaintiff or de- fendant in the Federal courts. In enacting the interstate com- merce acts, Congress had in view and intended to make pro- vision for commerce between States and Territories, commerce going to and coming from foreign countries, and the whole field of commerce except that wholly within a State; and it conferred upon the commission the power of determining whether, in given cases, the services rendered were like and contemporaneous, whether the respective traffic was of a like kind, and whether the transportation was under substantially similar circumstances and conditions. If the commission has power of its own motion, to promulgate general decrees or orders, which thereby become rules of action to common carriers, such exertion of power must be confined to the ob- vious purposes and directions of the statutes, since Congress has not granted to it legislative powers. It was not the pur- controlling any railroad or other missioners of Muskingum County, bridge shall, after receiving notice to Ohio, to make on or before a named that effect, as hereinbefore required, day certain alterations in a bridge from the Secretary of War, and over the Muskingum River, Ohio, at within the time prescribed by him, Taylorsville in that State. The com- willfuUy fail or refuse to remove the missioners, although having control same, or to comply with the lawful of the bridge, did not make the order of the Secretary of War in the alterations required and were indicted premises, such person, corporation under the act of Congress. It was or association shall be deemed guilty held that however broadly the act of a misdemeanor, and, on convic- of Congress may be construed it tion thereof, shall be punished by a ought not to be construed as embrac- fine not exceeding $5,000, and every ing officers of a municipal corpora- month such person, corporation or tion owning or controlling a bridge association shall remain in default who had not in their hands, and Un- as to the removal or alteration of der the laws of their State could not Buch bridge, shall be deemed a new obtain, public moneys that could be offense and subject the person, cor- applied in execution of the order of poration or association so offending the Secretary of War within the to the penalties above described." time fixed by that officer to com- 26 Stat. 426, 453, c. 907. Proceed- plete the alteration of such bridge, ing under that act the Secretary of Rider v. United States, 178 U. S. War gave notice to the county com- 251, 44 L. ed. 1060, 20 Sup. Ct, 480. 270 DELEGATION OF POWER BY CONGRESS § 153 pose of the statute to reinforce the provisions of the tariff laws ; it was the purpose of such enactment to promote and facili- tate commerce by the adoption of regulations, to make charges for transportation just and reasonable, and to forbid undue and unreasonable preferences or discriminations, and to abohsh combinations.^^ Competition is one of the most ob- vious and effective circumstances that make the conditions, under which a long and short haul is performed, substantially dissimilar, and as such must have been in the contemplation of Congress in the passage of the act to regulate commerce, this is no longer an open question. ^^ Congress has not con- ferred upon the commission the legislative power of prescrib- ing rates, either maximum, or minimum, or absolute, and, as it has not given the express power to such commission, it did not intend to secure the same result indirectly by empowering that tribunal, after having determined what, in reference to the past, are reasonable and just rates, to obtain from the courts a peremptory order that, in the future, railroad com- panies should follow the rates thus determined to have been, in the past, reasonable and just." In construing this act, it is to be presumed that Congress in so far as it adopted the lan- guage of the English Traffic Act, had in mind the construction given by the English courts to the adopted language, and in- tended to incorporate it into the statute." And as the general purpose of the statute was to facilitate commerce and prevent discrimination, it will not be construed so as to make illegal " Texas & Pacific Ry. Co. v. In- sion v. Alabama Midland Ry. Co., terstate Commerce Commission, 162 168 U. S. 144, 18 Sup. Ct. 45, 42 L. U. S. 197, 40 L. ed. 140, 16 Sup. Ct. ed. 414; Interstate Commerce Com- 666. See Interstate Commerce Com- mission v. Cincinnati, New Orleans mission v. Chicago Great Western & Tex. Pacific Ry. Co., 167 U. S. Ry. Co., 141 Fed. 1003. 479, 17 Sup. Ct. 896, 42 L. ed. 243; " Interstate Commerce Commis- Cincinnati, New Orleans & Tex. sion V. Alabama Midland Ry. Co., Pacific Ry. Co., 162 U. S. 184, 40 L 168 U. S. 144, 18 Sup. Ct. 45, 42 L. ed. 035, 16 Sup. Ct. 700. ed. 414. vSee Interstate Commerce '* Interstate Commerce Commis- Commission v. Chicago Great West- sion v. Baltimore & Ohio R. Co., 145 em Ry. Co., 141 Fed. 1003. U. S. 263, 36 L. ed. 699, 12 Sup. a. " Interstate Commerce Commis- 844. 271 §§ 154, 155 DELEGATION OF POWER BY CONGRESS a salutary rule to prevent the violation of the act in regard to obtaining rebates. ^^ § 154. Delegation to American Railway Association. — An act of Congress which vests the American Railway Asso- ciation with authority to designate the standard height of drawbars, and the maximum variation from such height, and which provides that no freight cars shall be used in interstate traffic which do not comply with such standard, is not un- constitutional as vesting such association with legislative power. The enactment vested it with authority to designate, without the power to give the designation the force or effect of the law that was derived entirely from the statute. When the designation was made the authority was exhausted, and no power to change, amend, enforce or control, existed in the association.^^ § 155. Delegation of Power to Determine Compensation Under Right of Eminent Domain Exercised by United States. — The liability to make compensation for private property taken for public uses is a constitutional limitation of the right of eminent domain. As this limitation forms no part of the power to take private property for public uses, the gov- ernment of the United States may delegate to a tribunal created under the laws of a State, the power to fix and de- termine the amount of compensation to be paid by the United States for private property taken by them in the exercise of their right of eminent domain; or it may, if it pleases, create a special tribunal for that purpose." '^ Southern Pacific Co. v. Inter- Southern Ry. Co. v. Neal, 83 Ark. state Commerce Commission, 200 U. 591, 98 S. W. 958. S. 536, 50 L. ed. 585, 26 Sup. Ct. 330, " United States v. Jones, 109 U. rev'g Interstate Commerce Commis- S. 513, 27 L. ed. 1015, 3 Sup. Ct. 346, sion V. Southern Pacific Ry., 132 citing Kohl v. United States, 91 U. S. Fed. 829. 367, 23 L. ed. 449. " St. Louis, Iron Mountain & 272 ENUMERATION OF SUBORDINATE BODIES § 156 CHAPTER XII. DELEGATION OF POWER BY STATE — ENUMERATION OF SUBORDI- NATE BODIES. § 156. Delegation to Board of Agri- tendent or Commissioner culture. of Insurance — Standard 157. Delegation to Commissioner Policy. of Banking and Insurance § 164. Delegation to Levee District. — Secretary of State. 165. Delegation to Board of Loan 158. Delegation to Commissioners Commissioners — Territory. of Bridges. 166. Delegation to Public Service 159. Delegation to Drainage Com- Commission of New York. missioners — Removal of 167. Delegation to Railroad Com- Bridge by Railway Com- missioners. pany. 168. Delegation to Railroad Com- 160. Delegation to Commission of mission — Public Utility Gas and Electricity. Law of Wisconsin. 161. Delegation to Grain and 169. Delegation to Railroad and Warehouse Commission. Warehouse Commission — 162. Delegation to Inspectors of Railroad — Carriers — In- Coal Mines. crease of Capital. 163. Delegation to Bureau of In- 170. Delegation to State Corpo- surance or to Suporin- ration Commission. § 156. Delegation of Power to Board of Agriculture. — A board of agriculture, which is a branch of thei executive de- partment, may be constitutionally empowered to regulate the transportation of cattle within state limits, and such authoriza- tion is not a delegation of legislative power. ^ And where the legislature gives a board of agriculture authority to grant or refuse a license to mine for phosphate rock on the State's i)rop- erty and to exercise its discretion for the State's best interest, such authority so vested is not a delegation of legislative power to that board nor does it constitute a violation of the fourteenth constitutional amendment.^ 'State V. Southern Ry. Co., 141 ^ State ex rel. Port Royal Mining N. C. 846, 54 S. E. 294, Laws 1901, Co. v. Hagood, 30 S. C. 519, 3 L. R. p.662,c. 479, §4, sub. "b" construed. A. 841, 9 S. E. 686. 18 273 §§ 157-159 DELEGATION OF POWER BY STATE — § 157. Delegation to Commissioner of Banking and In- surance — Secretary of State.^ — Duties in relation to insurance matters, which are administrative and neither legislative nor judicial, may be devolved upon the Secretary of State and subsequently transferred by statute to the commissioner of banking and insurance, the object being to regulate certain corporations which are subject, by the law of their creation, to regulation.^ And it is not a delegation of legislative or ju- dicial power for a statute to require the approval of the Secre- tary of State to a contract for reinsurance.^ § 158. Delegation to Commissioners of Bridges. — Where the legislature has authority under the state constitution to provide for building bridges over navigable waters and the power to charter companies for that purpose, it may exercise such authority and regulate the construction and manage- ment of bridges, and it may delegate its authority to commis- sioners to be named, and such delegation of power vests the control in them; and where such commission is abolished and its duties and powers vested in the commissioner of bridges of a city, who had the power to authorize to be operated, a railroad or railroads over the bridge, and authority to contract for such operation and to fix the fares to be paid by the directors of the company or companies so contracting, such contract does not create a franchise, and if it did, it would be illegal and void and beyond the power of the municipal officer making it.® § 159. Delegation to Drainage Commissioners — Removal of Bridge by Railway Company. — Where the proper drainage of the land in a district is impossible without the removal of a railway bridge over the natural water course into which the ' See § 163, herein. « Schinzel v. Best, 92 N. Y. Supp. * Iowa Life Ins. Co. v. East Mut. 754, 45 Misc. 455, 48 Misc. 234, aff'd Life Ins. Co., 64 N. J. L. 340, 45 Atl. 96 N. Y. Supp. 1145, 109 App. Div. 762. 917 (this was the Williamsburg * Iowa Life Ins. Co. v. Eastern bridge over the East river, New Mut. Life Ins. Co., 64 N. J. L. 340, York). 45 Atl. 762. 274 ENUMERATION OF SUBORDINATE BODIES § 160 lands drained and the construction of a bridge with a larger opening for the increased volume of water, it is the duty of the railway company, at its own expense, to remove the existing bridge, and also, unless it abandons or surrenders its right to cross the creek at or in that vicinity, to erect at its own expense and maintenance a new bridge in conformity with regulations established by the drainage commissioners under the authority of the State; and such a requirement, if enforced, will not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws.' § 160. Delegation to Commission of Gas and Electricity. — A statute may authorize the appointment by the governor of a commission to fix the maximum price to be charged for serv- ice by gas and electric light corporations where such com- mission is only intrusted with the duty of investigating the facts, and, after a public hearing, of ascertaining and deter- mining "within the limits prescribed by law" what is a reason- able maximum rate. Such a statute does not violate that provision of the Federal constitution which guarantees to every State a republican form of government, although such statute is violative of the Fourteenth Amendment of the Federal Constitution guaranteeing "equal protection of the laws" where it does not afford companies the right to petition for a new rate at the end of the term of three years or at any time thereafter.* Under the statute of 1905 ^ entitled : "An act to establish a commission of gas and electricity with power to regulate the price of gas and electric light and certain otlier electric services, and to provide for the control and super- vision of gas, electric light and other electric corporations and making an appropriation therefor," and providing for an ap- ' Chicago, Burlington &QiiincyRy. Saratoga Gas, Electric Light & Co. V. Drainage Comrs., 200 U. S. Power Co., 191 N. Y. 123, 83 N. E. 561, 50 L. ed. 59G, 2G Sup. Ct. 341, 693, rev'g 107 N. Y. Supp. 341. aff'g 212 111. 103, 72 N. E. 219. See Board of gas trustees, see § 198, § 152, herein. herein. 8 Village of Saratoga Springs v. » Laws N. Y. 1905, chap. 737. See 275 §§ 161, 162 DELEGATION OF POWER BY STATE — proval of incorporation and franchises, and a certificate of authority signed and executed by the commission, and that no municipahty shall build, maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying of gas or electricity for lighting purposes with- out a certificate of authority granted by the commission, such certificate is a prerequisite to the establishment and main- tenance by a village of a system which includes private light- ing, even though prior to the adoption of the statute, such village had by virtue of the authority of a prior statute ^^ voted for a lighting system, but no property had been acquired, no expenditures made in the construction of such system; and in such a case an action will lie by a taxpayer to restrain the trustees of the village from issuing bonds to establish such a system. ^^ § 161. Delegation to Grain and Warehouse Commis- sion. — The State may, it is held, create a grain and ware- house commission, and provide for the inspection and grading of grain in a certain city where such city stands in a distinct class by itself with reference to commerce and the grain trade, and, therefore, the law is uot unconstitutional on the ground of denying equal protection of the laws.^^ § 162. Delegation to Inspectors of Coal Mines.— A state legislature may provide for the appointment of inspectors of mines and the payment of their fees by the owners of such mines, and a law providing for the inspection of coal mines is not unconstitutional because of its limitation to mines where more than five men are employed at any one time. Where the law provides for the inspection of coal mines at least four times a year, it is not objectionable by reason of the fact that a dis- § 166, herein, as to Public Service Supp. 190, 49 Misc. 18, aff'd 98 N. Commissions Law. Y. Supp. 1113, 113 App. Div. 894. '" Laws 1897, p. 438, c. 414. " Globe Elevator Co. v. An- " Potsdam Electric Light & Power drew (U. S. S. C), 144 Fed. 871, s, c, Co. v. Village of Potsdam, 97 N. Y. 156 Fed. 664. 276 ENUMERATION OF SUBORDINATE BODIES § 163 cretion is vested in the inspectors to cause the mines to be in- spected a greater number of times a year and as often as they may deem it necessary and proper, nor is such law rendered unconstitutional by a provision fixing the maximum and mini- mum fees within the limits of which a fee may be charged for each inspection. ^^ § 163. Delegation to Bureau of Insurance or to Superin- tendent or Commissioner of Insurance — Standard Policy.^^— Independently of the constitution the legislature in Virginia has power to establish and officer a bureau of insurance, and it may appoint a commissioner of insurance, although the con- stitution declares that the state corporation commission shall have certain officers to be appointed by and be subject to re- moval by the commission. Such provision of the constitution also declares that the legislature may establish within the department, and subject to the supervision and control of the commission, a subordinate division or bureau of insurance. But the enumeration of a lower class of officers to be appointed and removed by the commission does not take away from the legislature the power and right to select the head of the bureau, the commissioner of insurance. General words following a specific enumeration should be applied to other persons or things of the class enumerated.'^ But a statute under which the insurance commissioner, or superintendent of insurance, is directed to prescribe a standard policy of insurance, for use in the State, and forbidding the use of any other form, is held unconstitutional in that it involves an unauthorized delega- tion of legislative power, but it is also decided ths^t the leg- islature may itself prescribe a form of contract of insurance. '•* '3 St. Louis Consolidated Coal Co. 72, 25 Pitts. L. J. (N. S.) 236, 35 V. Illinois, 185 U. S. 203, 46 L. ed. W. N. C. 513, 26 L. R. A. 715, 30 Atl. 877, 22 Sup. Ct. 619. 943. Examine Opinion of Justices, •* See § 157, herein. In re, 97 Me. 570, 55 Atl. 828; Busi- • •' Button V. State Corporation ness Men's League v. Waddill, 143 Commission, 105 Va. 634, 54 S. E. Mo. 495, 40 L. R. A. 501; Anderson v. 769, Manchester Fire Assur. Co., 59 Minn. " O'Neill V. Insurance Co., 166 Pa. 182, 63 N. W. 222, 241, 60 N. W. 277 §§ 164-166 DELEGATION OF POWER BY STATE — § 164. Delegation to Levee District. — Where the constitu- tion of a State expressly specifies that the legislature may delegate the taxing power to counties and incorporated towns, delegation of such power to a levee district is impliedly ex- cluded.^^ § 165. Delegation to Board of Loan Commissioners- Territory. — A Territory may pass an act establishing a board of loan commissioners for the purpose of refunding the terri- torial indebtedness. And such act may be confirmed and approved by Congress so as to be beyond the power of the legislature to repeal, even though the authority of said board is derived from the Territory and not from Congress.^* § 166. Delegation to Public Service Commission of New York. — The New York laws ^^ establish a public service commission, vesting in the governor the power of appointment, by and with the consent of the Senate, and also the power of removal for certain specified causes, and give to such commis- sion the regulation and control of certain public service corpo- rations enumerated therein. ^'^ 1025, 28 L. R. A. 609, rev'g 24 Ins. control and supervision that have L. J.; Flatley v. Phcenix Ins. Co., been sustained by Federal and 95 Wis. 618, 70 N. W. 828; Dowling state courts, and that as to many V. Lancashire Ins. Co., 92 Wis. 63, important subjects is either a re- 65 N. W. 738, 31 L. R. A. 112. enactment of existing New York law " Reelfoot Lake Levee Dist. v. or a reassignment of duties already Dawson, 97 Tenn. 151, 36 S. W. imposed upon important state com- 1041, 34 L. R. A. 725. missions. For example, the impor- *^ Murphy v. Utter, 186 U. S. 95, tant functions as to new transit lines 22 Sup. Ct. 776, 46 L. ed. 1070. in New York City heretofore exer- '» Laws 1907, chap. 429. cised by the Rapid Transit Commis- 2" See Appendix, herein. sion are transferred to the Commis- In an article in vol. 19 of The sion of the First District, and the Green Bag (1907), by Travis H. Rapid Transit Act which defines Whitney, it is said of the PubHc these functions is not changed in the Service Commissions Law, that: slightest extent. Furthermore, the " A careful examination of the meas- provisions as to gas and electrical ure discloses that it follows closely corporations are, with slight changes, the Interstate Commerce Act and is those contained in the act of 1905, founded upon principles of public creating the State Gas and Electricity 278 ENUMERATION OF SUBORDINATE BODIES § 167 § 167. Delegation to Railroad Commissioners. — Railroad companies, from the public nature of the business carried on by them and the interest which the public have in their op- eration, are subject as to their state business to state regula- tion, which may be exerted either directly by legislative au- thority or by administrative bodies endowed with power to that end.^^ So a railroad commission is an administrative Commission with jurisdiction over corporations supplying those public services. * * * The commis- sions and offices abolished and super- seded are the State Railroad Com- mission, the State Gas Commission, the State Inspector of Gas Meters, and the Rapid Transit Commission." The article then reviews the legisla- tion establishing the different con- missions from the establishment of the first Rapid Transit Commission in 1875 and its reorganization in 1891, the scope, jurisdiction and effect of the new act generally, also spe- cifically upon the points as to the "Powers of the Commissions"; "Court Proceedings and Prefer- ences"; "Immunity of Witnesses"; "Summary Proceedings"; "Power Over Rates, etc."; "Uniform Ac- counts"; "Control over Franchise"; Issue of Stocks, etc."; "Duties of Common Carriers"; "Actions for Penaltes"; "Gas and Electricity." See §§ 167-170, herein. Delegation to Board of Rapid Transit Railroad Commission, see § 190, herein. 2' Atlantic Coast Line Rd. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 19, 51 L. ed. 93.3, 27 Sup. Ct. 585. This "elementary propo- sition, is not and could not be suc- cessfully questioned in view of the long line of authorities sustaining that doctrine," per White, J., citing Chicago, Burlington & Quincy R. Co. V. Iowa, 94 U. S. 155, 24 L. ed. 94; Peck V. Chicago & North-western Ry. Co., 94 U. S. 164, 24 L. ed. 97; Chi- cago, Milwaukee & St. Paul Rd. Co. V. Ackley, 94 U. S. 179, 24 L. ed. 99; Winona & St. Peter Rd. 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. 536, 27 L. ed. 816, 2 Sup. Ct. — ; Illinois Central R. Co. v. Illinois, 108 U. S. 541, 27 L. ed. 818, 2 Sup. Ct. 839; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. 334, 348, 349, 388, 1191; Stone V. Illinois Central Rd. Co., 116 U. S. 347, 29 L. ed. 650, 6 Sup. Ct. 348, 1191; Stone v. New Orleans & Northeastern Rd. Co., 116 U. S. 352, 29 L. ed. 651, 6 Sup. Ct. 349, 391; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 8 Sup. Ct. 1028; Charlotte, Columbia & Augusta Rd. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. 255; Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339, 30 L. ed. 176, 12 Sup. Ct. 400; Pearsall v. Great Northern Ry. Co., 161 U. S. 646, 665, 40 L. ed. 838, 16 Sup. Ct. 705; Louisville & Nashville Ry. Co. V. Kentucky, 161 U. S. 677, 695, 40 L. ed. 849, 16 Sup. Ct. 714; Wisconsin, Minnesota & Pacific Rd. Co. V. Jacobson, 179 U. S. 287, 45 L. ed. 1194,21 Sup. Ct. 124; Minneapolis & St. Louis Rd. Co. v. Minnesota, 186 U. S. 2.57, 46 L. ed. 1151, 22 Sup. Ct. 900; Minnesota & St. Louis Rd. Co. 279 § 167 DELEGATION OF POWER BY STATE — body empowered to act to carry out the State's legislation in matter of public convenience, safety and health.^^ And a statute authorizing state railroad commissioners to regulate railroad corporations and other common carriers, fix rates, etc., is not unconstitutional as a delegation of legislative powers. ^^ The board of railroad commissioners of New York, when ex- ercising its authority, exercises a large discretion as to what evidence it will hear upon the question, whether public con- venience and necessity require construction of a proposed rail- road and the issuance of a certificate to that effect.^^ But the power conferred upon such board does not take away the power of New York City to enact ordinances regulating railways in its streets."^ Nor does the grant to such commissioners of the power to consent to the construction of street railroads deprive the legislature of the power to grant a franchise to street rail- roads without the commissioners' consent, or to enact a statute which operates retrospectively to cure defects arising from the commissioners' refusal to consent. ^^ In Florida the powers of railroad commissioners are limited by the express or implied provisions of the statute; it may make rates for transportation but not for particular persons, natural or artificial ;^^ and their rules and regulations are prima facie reasonable and just so that they may be enforced without being unconstitutional as taking property without due process of law, unless such V. Minnesota, 193 U. S. 53, 48 L. ed. ^* People v. Board of Railroad 614, 24 Sup. Ct. 396; Chicago, Bur- Commrs., 81 N. Y. Supp. 26, 81 App. lington & Quincy Ry. Co. v. Illinois, Div. 237. 200 U. S. 561, 584, 50 L. ed. 596, Public Service Commission Law of 26 Sup. Ct. 341; Atlantic Coast Line New York, § 166, herein, and note. Rd. Co. V. Florida, 203 U. S. 256, Board of Rapid Transit Railroad 27 Sup. Ct. 108; Seaboard Air Line Commissioners, see § 190, herein. Ry. V. Florida, 203 U. S. 261, 27 Sup. ^s New York City v. Interurban Ct. 109. St. Ry. Co., 86 N. Y. Supp. 673, 43 " Morgan's Louisiana & Texas Rd. Misc. 29. & Steamship Co. v. Railroad Com- ^^ Kittinger v. Buffalo Traction missioners, 109 La. 247, 33 So. 214. Co., 160 N. Y. 377, 54 N. E. 1081, " Chicago & N. W. Ry. Co. v. Dey, aff'g 49 N. Y. Supp. 713, 25 App. 35 Fed. 866, 4 R. R. & Corp. L. J. Div. 329. 465, 2 Interstate Comm. Rep. 325, 1 " State v. Atlantic Coast L. R. L. R. A. 744. Co. (Fla., 1906), 40 So. 875. 280 ENUMERATION OF SUBORDINATE BODIES § 167 rules and regulations are proven unreasonable.^* But whether a regulation of a state railroad commission, otherwise legal, is arbitrary and unreasonable because beyond the scope of the powers delegated to the commission, is not a Federal question.^ The commission may, subject to review thereof, maintain ac- tions for penalties in case its orders are violated, and may upon proper notice make its orders executory.^*^ The act of the legislature of Minnesota, creating a railroad commission, is not unconstitutional in assuming to establish joint through rates or tariffs, over the lines of independent connecting rail- roads, and apportioning and dividing the joint earnings. Such a commission has a clear right to pass upon the reason- ableness of contracts in which the pubhc is interested, whether such contracts be made directly with the patrons of the road or for a joint action between railroads in the transportation of persons and property in which the public is indirectly con- cerned. And whether or not connecting roads may be com- pelled to enter into contracts as between themselves, and establish joint rates, it is none the less true that where a joint tariff between two or more roads has been agreed upon, such tarilff is as much within the control of the legislature as if it related to transportation over a single line.^^ Again, as the creation of a board of railroad commissioners and the extent of its powers; what the route of railroad companies created by the State may be; and whether parallel on competing lines may consolidate, are all matters which a State may regulate by its statutes, and the state courts are the absolute interpre- tators of such statutes; a decree of a state court requiring a railroad company, which does an interstate business, to con- ^» State V. Atlantic Coast Line Co. As to appeal from "decision, de- (Fla., 1906), 41 So. 705. nial, direction or order" of municipal '» Atlantic Coast Line Rd. Co. v. authorities to railroad commissioners, North Carolina Corp. Commission, see Joyce on Elec. Law (2d ed.), 206 U. S. 1, 51 L. ed. 933, 27 Sup. § 360a. Ct. 585. " Minneapolis & St. Louis Rd. Co. '" Railroad Commission v. Kansas v. Minnesota, 186 U. S. 257, 22 Sup. City Southern Ry. Co., Ill La. 133, Ct. 900, 46 L. ed. 1151. 35 So. 487. 281 § 168 DELEGATION OF POWER BY STATE — struct its lines within the State in accordance with provisions of its charter and the directions of the state railroad commission, is not an interference with interstate commerce because com- pliance therewith entails expense or requires the exercise of eminent domain. ^^ § 168. Delegation to Railroad Commission— Public Util- ity Law of Wisconsin.— The Public Utility Law of Wisconsin of 1907, gives to the railroad commission of that State juris- diction over public utilities and provides for the regulation thereof. Its specific provisions are given elsewhere herein,^^ and its general features are those set forth in the appended note. 3'' '2 Mobile, Jackson & Kansas City Rd. Co. V. Mississippi, 210 U. S. 187. ^' See Appendix, herein. ^* In an article, by Eugene A. Gilmore, upon "The Wisconsin Pub- lic Utihties Act, " published in vol. 19, Green Bag (1907), p. 517, it is said: "By the legislation of 1905 and amendments thereto, and by the en- actment of the ' Public Utilities Bill ' at the recent session of the legis- lature, all forms of public business in Wisconsin are subject to the con- trol and supervision of a commission of three men known as the ' Railroad Commission' appointed by the gov- ernor for six years, and confirmed by the Senate. The governor may at any time remove any commissioner for cause. By the ' Railroad Act ' of 1905 this commission was first cre- ated, and all common carriers, in- cluding steam railroads, interurban electric railroads, bridge and termi- nal companies, express companies, car companies, sleeping-car com- panies and freight and freight-line companies were placed under its con- trol. The recent legislation places under this same commission, tele- graph companies, urban street rail- 282 way companies, and all public util- ity companies. * * * Xhe super- vision and control extends to the investigation and fixing of rates, tolls, and charges; the securing of adequate and equal service; prescribing regu- lations as to the conditions, adequacy and standards of service; the pre- vention of unreasonable preferences and discriminations; providing for a imiform system of books and ac- counting; and prescribing conditions for the ownership and development of public utilities. The Public Utili- ties Act is the consummation of the movement towards a more effective control of public service companies, which began two years ago with the adoption of the Railroad Rate Law, and the success of this recent meas- ure is due in large part to the confi- dence in commission control, which has been inspired by the efficient ad- ministration of the present railroad commission. * * * While mu- nicipal ownership and operation are contemplated and provided for, the tendency of the Act will be strongly towards private rather than towards municipal operation of public utili- ties. * * * The object of the ENUMEEATION OF SUBORDINATE BODIES § 169 § 169. Delegation to Railroad and Warehouse Commis- sion — Railroads — Carriers — Increase of Capital Stock. — The authority vested in a railroad and warehouse commission to determine, in the exercise of their discretion and judgment, what are equal and reasonable rates and fares for the trans- portation of persons and property by a railway company, is not a delegation of legislative power.^^ And as the regulation of the business conducted by common carriers is one over which the legislature has full power to act, ample authority can by law be conferred upon a railroad and warehouse com- mission to call for information on any carrier, whether a natural or artificial person, resident or non-resident, carrying on business within the State, where such information is ab- solutely essential for the proper conduct of the carrier and the protection of the public. And a statutory provision em- powering the courts to direct the manner of service of notice upon such common carrier, when proceeded against, does not constitute a delegation of legislative power to the judiciary. ^^ A state legislature may also pass a statute providing generally law is to secure adequate service perience of the Public Franchise from all public utilities under con- League of Massachusetts and from ditions which are fair and reasonable, the legislation in Massachusetts and not only to the public, but also to New York dealing with the same the corporations concerned, and at problem." Mr. Gilmore also con- the same time leave sufficient in- siders the following important and ducement for the improvement and characteristic features of the act, un- extension of such utilities and the der the headlines of "Valuation"; further installation and develop- "Capitalization"; "Competition"; ment of similar utilities throughout "Municipal Ownership"; "Common the State. * * * The law is not Use of Facilities"; "Accounting and wholly an experiment, but is based Publicity"; "Depreciation"; "Con- upon and follows a long line of Eng- trol of Rates and Service"; "Sliding lish legislation, dating as far back as Scale and Division of Surplus Pro- 1855, which has dealt, apparently ceeds"; and "Municipal Control." with great success, with the business ^' State v. Chicago, Milwaukee & of supplying gas for lighting and St. Paul Ry. Co., 38 Minn. 281, 37 heating. Many of the provisions of N. W. 782. the law have been suggested by the '' State ex rel. Railroad & Ware- Sheffield Gas Acts of 1855 and 1860. house Commission v. Adams Exp. The framers of the bill have also Co., 66 Minn. 271, 273, 38 L. R. A. drawn from the information and ex- 225, 68 N. W. 1085, per Collins, J. 283 § 170 DELEGATION OF POWER BY STATE — for what purposes and upon what terms, conditions and limi- tations an increase of capital stock may be made, and it may- confer upon a commission (a railroad and warehouse commis- sion) the administrative duty of supervising any proposed in- crease of stock. It may also delegate to the commission the duty of finding the facts in each particular case, and empower and require it to allow the proposed increase where the facts exist which bring the case within the statute. But the legisla- ture cannot, by any statute, authorize such commission in its judgment to allow an increase of a corporation's capital stock for such purposes and on such conditions or terms as it shall or may deem advisable, or in its discretion to refuse it, as such an attempt to confer authority would be a delegation of leg- islative power. And where the statute does delegate to a commission such legislative power, it is unconstitutional and void ; a distinction exists between the delegation of legislative powers and administrative duties; that between the delega- tion of power to make a law, which involves a discretion as to which it shall be, and the conferring an authority or discre- tion to be exercised under and in pursuance of the law.'^^ § 170. Delegation to State Corporation Commission. — As a State has inherent power to regulate and control public serv- ice corporations, operating within its limits, and to prescribe within reasonable bounds the facilities and conveniences which shall be furnished by them, it may delegate to or confer this power upon a body, such as a state corporation commission, although it possesses, to some extent, legislative, executive and judicial powers. And where such commission is, by the constitution and laws of a State, given control over common carriers of persons and goods as to matters relating to their public duties and charges, and the latter are given full op- portunity, upon notice, to be heard as to their defense and also a right of appeal to the state court, they are not, by such legislation, deprived of their property without due process 3' State V. Great Northern Ry. Co., 100 Minn. 445, 10 L. R. A. (N. S.) 250, lllN. W. 289. 284 ENUMERATION OF SUBORDINATE BODIES § 170 of law. But although this applies to the exercise of its judicial powers, still, in exercising its legislative powers the commission is not obligated to give notice to the parties to be affected thereby. Again, the subjection of common carriers to the control of such corporation commission by the state constitu- tion and laws does not deny to them the equal protection of the laws within the meaning of that provision of the Federal Constitution, The state constitution and laws apply alike in such case to all persons and companies similarly situated, and the classification is a reasonable one. Nor is the commis- sion an illegal and invalid tribunal, even though invested to a certain extent with legislative, executive and judicial powers; nor does such grant of powers conflict with the Bill of Rights, which expressly provides that, ''except as hereinafter provided, the legislative, executive and judicial departments shall be kept separate and distinct," But where a choice of either of two methods of performing a charter duty is given a corpo- ration, it should not be limited to one of them by the commis- sion, nor should the latter make any order affecting the right of a connecting carrier who has had no notice and was not a party to the proceeding,^* Again, while a State in the exer- cise of its police powers may confer authority on an adminis- trative agency to make reasonable regulations as to the place, time and manner of delivery of merchandise, moving in chan- nels of interstate commerce, such commerce, cannot be di- rectly burdened thereby, and any regulation which does so is repugnant to the Federal Constitution, and this applies to an order of a state corporation commission which requires a rail- way company to deliver cars from another State to a con- signee on a private siding beyond its own right of way as it constitutes a burden on interstate commerce; but qimre whether such an order applicable solely to state business would be repugnant to the due process clause of the Constitu- tion,^^ The state corporation commission, in determining the " Winchester & Strasburg Rd. Co. " McNeill v. Southern Ry. Co., 202 V. Commonwealth, 106 Va. 264, 55 U. S. 543, 26 Sup. Ct. 722. 50 L. ed. S, E. 692, 1142, aff'g but modifying Southern 285 § 170 DELEGATION OF POWER BY STATE liability of a corporation for a fine or forfeiture imposed by a statute which it is required to enforce, acts judicially, and may declare the act imposing such fine or forfeiture uncon- stitutional.^" Ry. Co. V. Greensboro Ice & Coal Co., As to powers of railroad commis- 134 Fed. 82. sioners on appeal see Joyce on Elec. ^ Commonwealth v. Atlantic Coast Law (2d ed.), § 360a, Line Ry. Co., 106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086. 286 DELEGATION OF POWER TO AND BY COURTS § 171 CHAPTER XIII. DELEGATION OF POWER TO AND BY COURTS, 171. Delegation to Courts — Gener- ally. 172. Delegation to Courts of Equity — Railroad Bridges Crossing Highways. 173. Delegation to Supreme Ju- dicial Court — Water Rates. 174. Delegation to Appellate Court — Reasonableness of Rates Fixed by Commission. 175. Delegation to Fiscal Court — Subdelegation to County Judge — Subscription to Stock of Railroad Com- pany. 176. Delegation to Circuit Courts — Designation of Tele- phone Route — Charter to Obstruct Highway. 177. Delegation to Federal Circuit Courts — Power to Enforce Orders of Interstate Com- merce Commission — Juris- diction — Contract Rights of Railroad. 178. Delegation to County Com- missioners' Court — Coimty Courts — Ferry Franchise — Grant of Use of Streets by Railroad or Gas Company. 179. Delegation to Probate Court — Use of Streets by Tele- phone Company. 180. Delegation to Court of Visi- tation. 181. Delegation of Power — Au- thority of Dental Board Over Colleges. 182. Delegation to Board of Equalization — Review of Action of — Federal Courts. 183. Delegation to Commissioners by Courts — Construction of Street Railroads — Ap- pointment by Circuit Judge of Commissioners of Equali- zation. 184. Delegation of Powers — Power of Courts in Relation to — Power of Over Munici- palities, Common Council, Commissioners of Water- works, Railroad Commis- sioners, and Over Other Courts, etc. — Police Power. §171. Delegation to Courts— Generally.— A duty which is not a judicial but a legislative or administrative one, such as fixing railroad transportation rates, cannot be forced upon the judiciary contrary to the state constitution.' So the estab- 1 Steenerson V. Great Northern R. K Am Co.. 69 Minn. 353, 72 N. W. 713, 559. & Eng. R. C:is. (N. S.) 287 § 171 DELEGATION OF POWER TO AND BY COURTS lishment of regulations as to the use of streets is such a legis- lative function that it cannot be assumed by a court, although it may pass upon the validity or reasonableness of such regula- tions by municipal authorities and may order the adoption by them of reasonable regulations as to such street use.^ It is held the power committed to the courts of Georgia to grant corporate powers to private companies, not being judicial, but altogether legislative, and there being no provision for the review of such action, a writ of error will not lie.^ Although the authority to grant a franchise of establishing and main- taining a toll bridge over rivers crossing public highways in that State is vested solely in the legislature, yet it may be exercised by it or be committed to such agencies as it may choose. And the statutes therein confer upon certain courts the power to establish such bridges, but not to bind the public in respect to its future necessities.'* Whether a drainage ditch proposed to be constructed pursuant to a statute ^ will be conducive to the public health, convenience or welfare, or whether the route is practicable, are questions of govern- mental or administrative policy and not of judicial cognizance, therefore jurisdiction over them by appeal or otherwise cannot be conferred by statute upon the courts.^ ' Michigan Teleph. Co. v. City of 369; City of Manistee v. Harley, 79 St. Joseph, 121 Mich. 502, 80 N. W. Mich. 238, 44 N. W. 603. Other 383, 47 L. R. A. 87, 7 Am. Elec. Cas. courts recognize the same rule. 1, 4; Grant, J., said: "It is conceded Reagan v. Trust Co., 154 U. S. 362, * * * that tliat part of the de- 14 Sup. Ct. 1047; Norwalk St. Ry., cree by which the court assumed the Appeal of, 69 Conn. 576, 37 Atl. 1080; right to estabhsh reasonable rules Nebraska Tel. Co. v. State, 55 Neb. and regulations is void. This is a 627, 76 N. W. 171. See Joyce on legislative or administrative function Electric Law (2d ed.), §§ 220, 357. and not a judicial one. The court ^ Gas Light Co. of Augusta v. West, has the power to put the proper au- 78 Ga. 318. thorities in the defendant city in * Wright v. Nagle, 101 U. S. 791, motion to adopt reasonable rules 25 L. ed. 921, and regulations, and to pass upon ^ Neb. Comp. Stat., 1903, chap. 89, the validity of such action when art. 1. taken. This is the extent of its au- ° Tyson v. Washington County thority. Houseman y. Kent, Cir- (Neb., 1907), 110 N. W. 634. See cuit Judge, 58 Mich. 364, 25 N. W. §§ 136, 147, herein. 288 DELEGATION OF POWER TO AND BY COURTS §§ 172, 173 § 172. Delegation to Courts of Equity — Railroad Bridges Crossing Highways. — The legislature may confer upon a court of equity jurisdiction to prescribe the crossing to be constructed if any railroad company shall not properly con- struct bridges or other crossings of highways as required by law, and such legislation is within the constitutional power of the legislature/ § 173. Delegation to Supreme Judicial Court — Water Rates. — As the legislature has power to require water com- panies to supply water to consumers at reasonable rates, it may give, by statute, to persons who are actual water-takers and are aggrieved, or to the selectmen of a town, the right to apply to the supreme judicial court and have two or more judges of such court determine whether the rates charged are reasonable, and also the reasonableness of rates to the extent of the interests before the court, and such statutory provision, as so construed, is not unconstitutional nor does, it require the court to exercise legislative functions.^ ' Mayor, etc., of City of Newark This statute provided, in substance, V. Erie Rd. Co. (N. J. Ch., 1907), 68 for application, by the selectmen of Atl. 413, 415, 416. The court, per a town or by any person deeming Magie, C, upon the point of consti- themselves aggrieved, to the Su- tutionaiity, said: "I think I am not preme Judicial Court to have a at liberty to deal with these ques- reasonable rate fixed and that two tions. The legislation contained in or more judges should establish such § 29 has been pronounced to be maximum rates as the court should within the constitutional power of deem proper as compared with the legislature in this court and that charges for similar services in other decision is binding on me. * * * cities and towns in the metropolitan Other legislation of similar scope and district. The statute was, however, effect has also been pronounced con- construed as above. The court cited, stitutional in this court and that de- or considered, the following cases: cision has been approved by the Smyth v. Ames, 169 U. S. 466, 18 Court of Errors." See § 200, herein, Sup. Ct. 418, 42 L. ed. 42; Reagan as to Court of Chancery and appeal v. Trust Co., 154 U. S. 362, 397, 14 from orders of highway or toll road Sup. Ct. 1047, 1054, 38 L. ed. 1014, commissioners. 1023; Budd v. New York, 143 U. S. "Janvrin, Petitioner (Janvrin v. 517, 537, 549, 552, 12 Sup. Ct. 468, Revere Water Co.), 174 Mass. 514, 36 L. ed. 247; Chicago Malone v. Williams, 118 Tenn. State, however, there is a different 390, 103 S. W. 798; the court, per rule. No authority is given in the Neil, J., said: " For the defendants it constitution for the delegation of such is insisted that it is customary every- rights to municipal corporations." where to grant such rights to munici- " Cereghino v. Oregon Short Line pal corporations. Such seems to be Rd. Co., 26 Utah, 4(57, 99 Am. St. the rule in England and in some of Rep. 843. our States. 1 Dillon on Munic. Corp. " Hindman v. Boyd, 42 Wash. 17, (3d ed.) §§114, 11.3, 110. In this 84 Pac. 609. 315 §§ 190, 191 DELEGATION OF POWER — MUNICIPAL, § 190. Delegation to Board of Rapid Transit Railroad Commissioners — Subways — City Ownership and Obliga- tions — Change of Construction Plans. — A rapid transit board may be authorized by statute to enter into contracts with any person, corporation or firm best quahfied in the board's opinion to carry out and fulfill such contract, and such enact- ment is not unconstitutional as denying the equal protection of the laws to other persons intending to construct a road on the same line.^'* Where a city, by its board of rapid transit commissioners, acting in pursuance of the law conferred upon it, entered into a contract for the construction and operation of a rapid transit railroad; said road and tunnels, under the statutes and contract, were to be paid for by the city and be its property, and the equipment was to be paid for by the contractor and be his property; the board was also authorized to make such changes as were deemed necessary and deter- mined that electricity should be the motive power used, thereby necessitating additional excavation; and it was held that the city should pay therefor, and that the property so changed should belong to it.^^ § 191. Power of Electrical Commission — Electrical Con- duits — Board of Commissioners of Electrical Subways — • Board of Electrical Control. — Where an electrical commission is established under an ordinance of a city, which has power under its charter to grant franchises or rights in the city streets, and such commission is vested with power to construct, regulate and maintain electrical conduits in such city, coupled with authority to rent space therein, under certain conditions, it may refuse a ]3ermit for the use of such conduits to a person who has not acquired a franchise to use the streets and may ^* Underground Rd. of the City of mission of New York, see § 166, New York v. New York City, 116 herein. Fed. 952, afY'd 193 U. S. 416, 48 L. ed. ^^ McDonald, In re, 80 N. Y. Supp. 733, 24 Sup. Ct. 494. 636, 80 App. Div. 210, aff'd 175 N. Y. See §§ 167-170, herein. 470 (mem.). See § 166, herein. Delegation to Public Service Com- 316 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES § 191 require a compliance with the provisions of the law.^^ An- other subordinate body was created in 1885, and was known as the board of commissioners of electrical subways in and for the city of New York,^' and in 1887, the board of electrical con- trol for said city was created and it was held to have full dis- cretionary power in reference to when, where and in what manner wires should be placed underground;^^ and it is also declared that from the proper construction it would appear that a discretionary power was intended by the enactment to be vested in the board and that such power was to be legiti- mately and fairly exercised .^^ " Pumell V. McLane, 98 Md. 589, to consent — Subways. Compare Peo- 56 Atl. 830, 8 Am. Elec. Cas. 55. pie v. Consolidated Teleg. & Electri- Commission of gas and electricity, cal Subway Co. (West Side Electric see § 160, herein. Co. v. Consolidated Telepli. Co.), 96 Delegation to Public Service Coinmis- N. Y. Supp. 609, 110 App. Div. 171, sion of New York, see § 166, herein. aff'd 187 N. Y. 58, 79 N. E. 892, where Delegation to Railroad Commission the Laws of 1848, p. 48, c. 37; Laws — Public Utility Law of Wisconsin, 1879, p. 562, c. 512, as to occupation see § 168, herein. of streets by gas and electrical com- " See People v. Ellison, 101 N. Y. panies with consent of municipal Supp. 441, 51 Misc. 413, aff'd 101 N. authorities; Laws of 1887, p. 928, ch. Y. Supp. 55, 115 App. Div. 254; Laws 716, transferring to board of electri- N. Y., 1885, chap. 499; People ex cal control the powers theretofore rel. N. Y. Elect. Lines Co. v. Squire, vested in commissioners of electrical 107 N. Y. 593. subways under Laws of 1885, p. 852, ''United States Illuminating Co. c. 499; Laws of 1890, p. 1146, c. 566, V. Hess, 3 N. Y. Supp. 777, 19 N. Y. subdv. 1. Transportation corpora- St. R. 883, 2 Am. Elec. Cas. 187; tions Law, authorizing use of streets Laws 1887, chap. 716, Am'd Laws over and under the surface by elec- 1890, chap. 550. trical corporations with consent of " Higgins V. Manhattan Elec. L. city authorities, and the New York Co. (Sup. Ct. Chambers, March, 1889), city charter prior to 1897 are all con- 3 Am. Elec. Cas, note 167, per Law- sidered, and it is held that the right rence, J. See American Rapid Tran- to lay such wires in conduits or a sub- sit Co. V. Hess, 125 N. Y. 641, 36 N. way was dependant upon consent Y. St. R. 252, 21 Am. St. Rep. 764, of board of aldermen and not upon 26 N. E. 919, 39 Am. & Eng. Corp. that of the board of electrical control. Cas. 526, 3 Am. Elec. Cas. 142, aff'g Sec Laws 1902, c. 596, amending 58 Hun, 610, 35 N. Y. St. R. 606, 12 Laws 1890, c. 566, § 61, subdv. 1. N. Y. Supp. 536; Joyce on Electric See Laws 1905, c, 210, amending Law (2d ed.), §§ 424, 425. Laws 1890, c. 665, § 82, subdv. 2; Board of aldermen and not board Laws 1906, c. 455, ameniling Laws of electrical control is profjer authority 1890, c. 566, § 82, subdv. 2. 317 § 192 DELEGATION OF POWER — MUNICIPAL, § 192. Delegation of Power — Grant of Franchises — Board of Estimate and Apportionment of New York — Transfer of Power from Another Board — Cumulative Vot- ing. — It is held in a New York case that there is no restric- tion upon the power of the legislature to take away from one body of local authorities the power to grant franchises and to transfer the same to some other city, board or department, such as the board of estimate and apportionment, as such authorities have no vested right to the continuance of any public powers or duties conferred upon them, and that what the legislature can grant it can transfer and such laws are not unconstitutional. It is held that the system of cumulative voting in the board of estimate and apportionment, authorized by the city charter, does not prevent the legislature from au- thorizing it to grant franchises because a minority of the in- dividuals composing the board, by a combination of votes, may be able to determine a question before it; since there is no constitutional limitation upon providing for such a system of voting in the board, it being a question of policy and not one of power, and under the circumstances attendant upon creating Greater New York City, it would be neither fair nor just to permit each member to vote per capita.'*'' This case is cited in a later case in the same State ^^ upon the question *° Wilcox V. McClellan, 185 N. Y. vision thereof, or appointed by such 9, 10, 77 N. E. 986, aff 'g 97 N. Y. authorities thereof, as the Legislature Supp. 311, 110 App. Div. 378, aff'g shall designate for that purpose. 95 N. Y. Supp. 941, 47 Misc. 465; * * *" (art. 8, § 1.) "Corpora- Pettit V. McClellan, 97 N. Y. Supp. tions shall be formed under general 320, 110 App. Div. 390; Laws 1905, laws, but shall not be created by spe- pp. 1533, 1548, cc. 629-631; Laws cial act, except for municipal pur- 1873, p. 517, c. 335, § 112; Greater poses, and in cases where, in the New York Charter, §§ 48, 74; Laws judgment of the Legislature, the ob- 1901, pp. 26, 38, c. 466, construed jects of the corporation cannot be with Const., art. 10, § 2, art. 8, § 1, attained under general laws. All which provide that (art. 10, § 2) general laws and special acts passed " * * * All city * * * officers, pursuant to this section may be al- whose election or appointment is not tered from time to time or repealed." provided for by this constitution, *' Reis v. City of New York, 188 shall be elected by the electors of N. Y. 58, 67, 80 N. E. 573, aff'g 99 N. such cities, * * * or of some di- Y. Supp. 291, 113 App. Div. 264. 318 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES §§ 193, 194 of the powers of the board of estimate and apportionment: "a. body which has been deemed by the legislature sufficiently representative, responsible, and trustworthy to exercise the power of granting or withholding street railroad franchises within the limits of the municipality in place and instead of the board of aldermen." •*- § 193. Dock Department no Power to Grant Franchises — Street Railway. — A dock department of a city has no power to grant franchises, and its consent or resolution permitting the construction of a street railway is not the grant of a fran- chise.'*^ § 194. Delegation to County Commissioners — Ferries — Bridges — Use of Streets — Permits — Gas and Electricity — Street Railroads — Repaying — Removal of Poles, etc. — A ferry may be established by county commissioners, and the petitioner is given a vested right subject only to reversal or modification by the Superior Court.'*'* If a statute grants a ferry franchise and makes it unlawful to establish any other ferry within a specified distance, such enactment operates as a limitation upon the general power conferred upon the county commissioners by code to "appoint and settle ferries," and precludes them from authorizing a ferry within the prohibited distance. And a constitutional provision giving the super- vision and control of roads, bridges, etc., to such commissioners, does not deprive the general assembly of the power to enact a statute authorizing the establishment of a public ferry at a certain point for a certain term of years and also i)rovi(ling that it shall be unlawful for any })ers()n to establish another ferry within a specified distance of said ferry.'*^ So county "Laws 190.5, chaps. 629-631. "Robinson v. Lamb, 129 N. C. *' Central Crosstown Ry. Co. v. 16, 39 S. E. 579. See Wilson v. Metropolitan St. Ry. Co., 44 N. Y. Gabler, 11 S. Dak. 206, 76 N. W. Supp. 752, 16 App. Div. 229. See 9'24. also Hart V. Mayor, etc., of Now York, *' Spease Ferry, In re, 138 N. C. 44 N. Y. Supp. 767, 16 App. Div. 227. 219, 50 S. E. 625. 319 § 195 DELEGATION OF POWER — MUNICIPAL, commissioners have no power to grant a ferry franchise to estabhsh a ferry between points located outside of the county even though one of said points is attached to the county for judicial purposes."*^ Such commissioners may also be author- ized to appropriate money for the purpose of constructing bridges on public highways or town roads. '^^ If a gas company is authorized by the law of its creation to lay pipes and mains under the streets and roads of any county, but it is subject to any law that may be passed by the county commissioners for the filling up and repaving of any street under which the pipes may be laid; still it is not bound by a regulation of the com- missioners providing that no water pipes or mains shall be laid within the limits of any of the highways of the county, and prohibiting the digging up of any of said highways for said purpose, without a permit, and also includes electric light, telegraph and telephone poles and wires, electric, steam and other railway tracks within the requirement as to a permit, for such regulation does not include gas mains or pipes. And this is so even though such commissioners may make reasonable regulations before such gas pipes are laid, or might prevent gas companies from making improper use of its public high- ways.^ Where county commissioners are given the custody and control of a pike or highway in the State, they may take steps to require the removal to the other side of the street of poles and wires when they, from their location and the ex- isting conditions, seriously incommode the public.^^ § 195. Delegation to Towns, Villages and Counties — Water Rates— Ferries— Heat, Light and Power Franchise and Contract, When Void — Waterworks — Hydrant Rent- als. — Where towns and villages have the right, under a ** Patterson v. Wollmann, 5 N. *^ Consolidated Gas Co. v. County- Dak. 608, 67 N. W. 1040, 33 L, R. A. Commrs. of Baltimore County, 98 536. See Green v. Ivey (Fla., 1903), Md. 689, 57 Atl. 29. 33 So. 711. "Gantz v. Ohio Postal Teleg. *'' Bayne v. Board of Commrs, of Cable Co., 140 Fed. 692, rev'g Ohio Wright County, 90 Minn. 1, 95 S. W. Postal Teleg Cable Co. v. Board of 456. * Commrs., 137 Fed. 947. 320 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES § 195 statute, as agencies of the State to exercise by delegation the State's power to secure the observance and performance of the duty of incorporated water companies to furnish water for reasonable compensation and without unjust discrimination to such public bodies, or the inhabitants thereof, such municipal corporations may, in the exercise of the governmental power so conferred by the legislature, regulate the water rates, and that power is a continuing one and is not exhausted by the first exercise thereof.^" If a town is so empowered under its charter it may, without an ordinance, grant an exclusive right or license for a ferry, and this is so held even though such ferry is across a navigable river without the territorial limits of the town.^^ But the fact that an ordinance has been submitted to and approved by vote of the electors of a village, so that it is the duty of the village board under the requirements of a statute to grant a franchise, will not aid its validity where it is void for unreasonableness in granting a franchise and making a contract with a heat, light and power company .^^ A public ferry franchise can, in Georgia, only be granted by the proper county authorities.^^ Where a village is empowered to and does by ordinance grant a franchise for the construc- tion of waterworks in said village and contracts to pay certain hydrant rentals, etc., and the plant is constructed wholly within the village limits, which village was thereafter incorpo- rated as a city, and the water company and the city continued to act under the ordinance and the contract upon the assump- tion that the city had succeeded to the rights and liabilities of the town, and thereafter, the latter exercised no rights and derived no benefit from the waterworks, it was held that the city was bound by the ordinance and contract as the successor of the town.^"* '"Danville v. Danville Water Co., "Hudspeth v. Hall, 111 Ga. 510, 180 111. 2.3.5, 54 N. E. 224. 36 S. E. 770. '» Dinner v. Humberstone, 26 Can. " Washburn Waterworks Co. v. Sup. Ct. 252. City of Washburn, 129 Wis. 73, 108 " Le Feber v. West Allis, 119 Wis. N. W. 194. 608, 97 N. W. 203, 100 Am. St. Rep. ^ 917. 21 321 §§196, 197 DELEGATION OF POWER— MUNICIPAL, § 196. Delegation to Town Council— Use of Streets.— The town council may, under New Jersey public laws, providing for the formation and government of towns, prescribe by general ordinance the manner of exercise by corporations or individuals of any privilege granted them in digging up any street, alley or highway, but every grant of such privilege need not necessarily be also by ordinance, and under a statute So empowering a town council to appoint such subordinate officers as may be deemed necessary, it is authorized to ap- point a street commissioner and prescribe that the fees to be paid for permits in the opening of streets may be fixed by him.^^ § 197. Delegation to Selectmen or to Board of Aldermen of City— Use of Streets— Location and Control of Electrical Appliances, etc.— Conditions as to Street Railway Fares.— In Connecticut the selectmen in towns are, subject to the provisions of the statute, vested with the full direction and control of the location, relocation or removal of electrical fix- tures of telephone and other electrical companies. So in Massachusetts and in Vermont certain powers have been con- ferred upon these subordinate bodies as to location, etc., of electrical appliances, and for the assessment of damages for injury by location, etc., of lines.'^^ And where a statute au- thorizes the selectmen of a town, in case they are of opinion that public necessity and convenience require the granting of a location to a street railway company, to prescribe how the tracks shall be laid and the kind of rails, they may not only prescribe the original construction but may also prescribe that the company may at its election use a cheaper rail without granite paving within the rails and for a certain space outside on condition that if not satisfactory they shall be changed, and the determination of the selectmen as to the work being satis- ^^ Stowe V. Town of Kearney, 72 awarding certain contracts. Pamph. N. J. L. 106, 59 Atl. 1058. The case Laws 1895, p. 218, § 47. here showed, however, an abuse of ^* See Joyce on Elec. Law (2d ed.), discretion by the town council in §§ 156, 226a. 322 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES § 198 factory in accordance with the condition, and with the authority conferred by statute is final, at least where no fraud exists, and cannot be transferred to or controlled by the courts, and it is immaterial that the selectmen ought to have been satis- fied.^^ Again, although a statute authorizes the board of aldermen of a city or the selectmen of a town, in granting a location to a street railway company, to prescribe the manner in which tracks shall be laid, and the kind of rails, poles, wires and other appliances which shall be used, and also to impose such other terms, conditions and obligations in addition to those applying to all street railways, under the general pro- visions of law, as the public interest may require, still, it is not within the power of such board of aldermen of a city or of selectmen of a town to impose a condition of location regu- lating" and restricting the fares to be charged by a street rail- way company, where other statutes contain other provisions as to the right of the directors of such company, primarily to fix and regulate fares, subject to revision by the railroad com- missioners under certain limitations on their powers; and in such case, as the condition of location is illegal and wrongfully imposed, the acceptance by the company of the grant of loca- tion so burdened does not constitute a contract with the grant- ing board. '^^ § lOS. Delegation to Trustees of Town — Drawbridge — Board of Gas Trustees — Gas Rates — Lighting Plant Ordi- nance Invalid. — The trustees of a town may grant by resolution, to a riparian proprietor, a franchise to construct a drawbridge over waters of a bay, the title and sovereignty to which and of the lands thereunder in such town are vested in said towp by royal charter granted in (;olonial days, as the grant of such franchise is the exercise of governmental power and a grant by resolution is as effective as a grant by deed.-'^^ But a board *' Selootmen of Ganlncr V. Temple- ''" Tni.stees of Southampton v. tfii St. Ry., 184 Mass. 294, 08 N. Je.ssup, 162 N. Y. 122, 56 N. E. 538, i:. 'Mi). rev'g 42 N. Y. Supp. 4, 10 App. Div. '* Keefe v. Lexington & Boston St. 4ry('}. Ry. Co., 185 Mass. 183, 70 N. E. 37. 323 §§ 199, 200 DELEGATION OF POWER — MUNICIPAL, of gas trustees of a city, whose authority under a statute is limited to fixing the price of gas by such rules and regulations as a town council may prescribe, cannot exceed such authority by raising the rates without action by the council as provided by the statute.^" Where a lighting plant ordinance of town trustees granting the franchise is invalid, a provision therein obligating the town to pay for a certain number of lights for the street, goes with the invalidity.®^ §199. Delegation to Board of Supervisors — Grant of Turnpike Franchise— Right to Collect Tolls.— A grant of a turnpike franchise by a board of supervisors made under au- thority conferred by the legislature, has the same force and effect in respect to its validity, the presumptions in its favor, and the mode in which it may be attacked, as a grant of any other right, privilege or thing made by any department of the government under authority of the law.®^ So the board of supervisors may, where a statute so provides, confer a license or franchise upon anyone to collect tolls over a public high- way where it complies with the prerequisites specified, such as the determination that, in its judgment, the necessary ex- pense in operating such public highway is too great to justify the county in operating and maintaining it.®^ § 200. Delegation to Highway or Toll Road Commis- '" Foster v. Findlay, 5 Ohio C. C. ground conduits, see Village of Car- 455. thage v. Central New York Teleph. Delegation to commission of gas and Co., 96 N. Y. Supp. 919, 110 App. electricity, see § 160, herein. Div. 625. " Meyer v. Town of Boonville, "^ Truckee & Tahoe Turnpike Road 162 Ind. 165, 70 N. E. 146. Co. v. Campbell, 44 Cal. 89. Power of village trustees — Tel- Electric street railway — Delegation ephone companies, see People ex to supervisors, see Joyce on Elec. rel. Monticello Teleph. Co. v. Trus- Law (2d ed.), § 155. tees, 72 N. Y. Supp. 350, 35 Misc. " Bedell v. Scott, 126 Cal. 675, 59 675; New Union Teleph. Co. v. Pac. 210, under Coimty Govern- Marsh, 89 N. Y. Supp. 79, 96 App. ment Act, § 25, subdv. 41, Stat. 1893, Div. 122. p. 359. See Prosser v. Coimty of Power of village trustees — Under- Wapello, 18 Iowa, 327; Chapin v. Crasen, 31 Wis. 209. 324 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES § 200 sioners — Public Lighting Franchise — Bridges — When Order to Cease Taking Tolls Invalid — Delegation to City OflEicials, Subway Construction. — The highway commissioners of a town which is a municipal corporation may grant a franchise to a public lighting company and may exercise their discre- tion, and the courts have no power to interfere with such municipal bodies when their discretion is to be exercised when no fraud or corruption or bad faith amounting to corruption is charged or proven. In such case the franchise may be given without a consideration therefor, even though a consideration is offered by another.^^ Commissioners of highways, may, under the highway laws, be the proper officers to jointly con- tract for building or repairing a bridge between two towns, or such power may devolve entirely upon the board of super- visors under the county laws.®^ The power to locate founda- tions and walls, in a case where a track elevation ordinance provides for the construction of a subway in a certain street, may be properly delegated by a city council to city officials. ^^ WTiere a statute confers on a highway or toll road commis- sioner authority to examine toll roads and, if he has reason to believe that they are defective, to require the toll road com- pany to repair the same within a certain time, or in default thereof, that the toll shall cease, and the statute also provides for a full and complete investigation and hearing and for an appeal to the Court of Chancery, such commissioners' powers are thereby limited and such requirement as to a hearing is a prerequisite to the validity of an order of the commissioners that such company shall cease taking tolls. Such statute is also unconstitutional in that it encroaches on the jurisdiction and powers of such chancery courts, which possessed no ap- pellate jurisdiction, and so the statute provided for no appeal «^ Craft V. Lent, 103 N. Y. Supp. ply Co., 86 N. Y. Supp. 412, 90 App. 366, 53 Misc. 584. See §§ 136, 184, Div. 548; examine Croley v. Califor- herein. nia Pac. R. Co., 134 Cal. 557, 66 Pac. « Colby V. Town of Mt. Morris, 860. 100 N. Y. Supp. 362. See Town of " People v. Grand Trunk Ry. Co., Palatine v. Canajoharie Water Sup- 232 111. 292, 83 N. E. 839. 325 § 201 DELEGATION OF POWER — MUNICIPAL, from the arbitrary decision of the commissioner who is not a judicial officer and is one upon whom judicial power cannot be conf erred. ^^ § 201. Delegation to Police Juries— Ferries, Bridges and Roads. — Police juries throughout the State of Louisiana have plenary powers with respect to the establishment of public ferries, bridges and roads, and with respect to their abandon- ment or discontinuance, and may, in their discretion, convert a free bridge or road into a toll bridge or road and vice versa, and may operate a toll bridge or road directly or through their lessees ; it may also restrain by injunction the operation of a free ferry or bridge within the prohibited distance from a public toll bridge prescribed by statute or ordinance.®* Such juries may also exercise their discretion to establish a toll road upon the site of a free road or elsewhere, and may build, maintain and operate such roads, or do so by contract with corporations or individuals, nor will the exercise of such dis- cretion be interfered with by the courts except in case it has been grossly abused. *^^ So a police jury has the power or right to offer a ferry privilege and to have it adjudicated at public auction, and irregularities or illegalities in the manner of *' Bridge Street & Allendale juries have also the power to pro- Gravel Road Co. v. Hogadone (Mich., hibit by ordinance the operation of 1908), 114 N. W. 917, 14 Det. Leg. unlicensed ferries and bridges within N. 858; Besson v. Crapo Toll Road competitive distance; nor has any Co. (Mich., 1908), 114 N. W. 924, person the legal right to construct a 14 Det. Leg. N. 858. See § 172, pontoon ferry bridge across a nav- herein. igable stream without special legis- ts Police Jury of Lafourche v. lative authority, state or Federal. Robichaux, 116 La. 286, 40 So. 705, Blanchard v. Abraham, 115 La. 989, reaffirming St. Joseph Plank Co. v. 40 So. 379, holding also that Act No. Kline, 106 La. 325, 30 So. 854; 202, p. 391 of 1902, relative to the Blanchard v. Abraham, 115 La. 989, powers of pohce juries throughout 40 So. 379. the State (the parish of Orleans ex- The police juries of the several cepted), is not a local or special law parishes are vested by statute with in the sense of article 48 of the state the exclusive right to establish, lease, constitution. and regulate ferries and bridges ""St. Joseph Plank Road Co v. within their respective limits; such Kline, 106 La. 325, 30 So. 854. 326 QUASI-MUNICIPAL AND SUBORDINATE AGENCIES §§ 202, 203 exercising the right which that body has to confer, may be ratified, or may be cured by estoppel. 70 § 202. Delegation of Power by Municipality. — A state government may delegate to a municipal corporation part of its own powers. But such powers cannot be delegated or vicariously exercised unless the authority to delegate is spe- cially granted by the legislature, nor can the municipal corpora- tion divest itself of the discretion vested by the statute .'^^ § 203. Delegation by Ordinance to Street Commissioner.— The requirement of a general ordinance requiring permission of the street commissioner for the opening of streets and pub- lic places is proper and not subject to the objection that it is a delegation of power to an ofiicer not authorized, as it does not empower the street commissioner to grant the right to open the street, but merely requires a written permit from him, otherwise such opening is forbidden.'^ '"Prince v. Police Jury of Con- 809, 11 So. 36 (a case of police regu- cordia Parish, 112 La. 257, 36 So. lation of private markets). 342. " Stowe v. Kearny, 72 N. J. L. " State V. Garibaldi, 44 La. Ann. 106, 59 Atl. 1058. 327 § 204 CONSTITUTIONAL LAW — INTERPRETATION CHAPTER XV. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF CONSTITUTIONS. 204. Interpretation or Construc- tion—Generally. 205. Construction — Intent — Effect Given to Every Part — Ordi- nary Signification of Words — Grammatical Construc- tion. 206. Context — Ordinary and Tech- nical Meaning of Words — Phrase or Word in Differ- ent Parts of Instrument. 207. Plain Language of Constitu- tion Cannot Be Ignored — Repugnant Provisions. 208. Meaning of Constitution as Understood by Its Framers — Construction . 209. Strict Construction. 210. Implied Matters a Part of Constitution. 211. Punctuation. 212. Interpretation in View of Common Law. 213. Constitutional Prohibitions — Proviso — Exception from General Words. 214. Partially Invalid Provisions. 215. Construction — Prospective — Retrospective. 216. Contemporaneous Construc- tion — Extrinsic Matters — History — Debates and Proceedings in Convention. § 217. Contemporaneous Construc- tion Continued — ■ Legisla- tive Construction. 218. Construction or Interpreta- tion Long Continued and Acquiesced in by Legisla- tive and Executive De- partments. 219. Long and Continued Usage. 220. Amendments to Constitution. 221. Title of Legislative Enact- ment Proposing Constitu- tional Amendment. 222. Revised Constitution — Re- enactment. 223. Constitution Adopted from Another State — Construc- tion. 224. Former Constitution Repealed by Implication. 225. Whether Constitutional Pro- visions Self-Executing. 226. When Constitutional Provi- sion is Self-Executing — In- stances. 227. When Constitutional Pro- vision is Not Self-Execu- ting — Instances. § 204. Interpretation or Construction— Generally. — The courts of the United States are bound to take notice of the Constitution. It is paramount to the power of the legislature. 328 OR CONSTRUCTION OF CONSTITUTIONS § 205 Every act of Congress, and every statute repugnant thereto is void from the beginning and without Hfe or operation; such act or statute cannot become a law.^ The policy of constitu- tional provisions is not a guide to the determination of consti- tutional questions, for they must rest upon the provisions them- selves of the Constitution, and the courts possess no control over matters of mere policy; the jurisdiction of the courts extends only to the construction and enforcement of the Constitution and laws as they exist. ^ Although the Federal Constitution embraces all new conditions within the scope of the powers conferred,^ still it must be construed and administered now according to its true meaning and intention when it was formed and adopted.'* It may be generally stated that such rules of construction as have been established in relation to statutes are also applicable to constitutions.^ To this rule there are, however, certain exceptions or qualifications. § 205. Construction — Intent — Effect Given to Every Part — Ordinary Signification of Words — Grammatical Con- struction.— The purpose of interpretation or construction of a constitution is, if possible, to ascertain the intent, so that the instrument may effectuate such intent.® The only proper » Marbury v. Madison, 1 Cranch 199 U. S. 437, 50 L. ed. 261, 26 Sup. (5 U. S.), 137, 2 L. ed. 60. See also Ct. — . See Kansas v. Colorado, 206 Norton v. Shelby County, 118 U. S. U. S. 46, 51 L. ed. 956, 27 Sup. Ct. 425, 30 L. ed. 178, 6 Sup. Ct. 1121; 655. Vanhome v. Dorrance, 2 Dall. [2 U. ■• Dred Scott v. Sandford, 19 How. S. (C. C.)] 304, 320, 1 L. ed. 391, (60 U. S.) 393, 15 L. ed. 691. See Fed. Cas. No. 16,8.37; Seneca Min. South Carolina v. United States, 199 Co. V. Osman, 82 Mich. 573, 47 N. W. U. S. 437, 50 L. ed. 261, 26 Sup. 25, 9 L. R. A. 770; Minnesota Sugar Ct. — . Co. V. Iverson, 90 Minn. 6, 97 N. W. * Nicholson v. Thompson, 5 Rob. 454; State, Smyth, v. Moores, 55 Neb. (La.) 367; People ex rel. Jackson v. 480, 41 L. R. A. 624, 76 N. W. 175; Potter, 47 N. Y. 375, 42 How. Hnyman, Ex parte (Tex. Cr. App.), 375. 78 S. W. 349. « People v. Leonard, 73 Cal. 230, ^ Cirand Island & Northern Wyom- 14 Pac. 853; Bourland v. Ileldreth, ing Rd. Co. v. Baker, 6 Wyo. 369, 26 Cal. 101; Hills v. City of Chicago, 378, 34 L. R. A. 835, 45 Pac. 494. 60 111. 86; Minnesota Sc Pacific Rd. ' South Carolina v. United States, Co. v. Sibley, 2 Minn. 13. 329 § 205 CONSTITUTIONAL LAW — INTERPRETATION way to construe a constitution is to consider first, the language used as being the best evidence of the intention; and the in- terpretation should, if possible, be such that force and effect shall be given to every part or provision thereof, and to each word, unless it would lead to a conclusion absurd in itself, or to one necessarily repugnant to the plain meaning of the in- strument; and such provisions and parts should be made to harmonize, if by any reasonable construction it can be done/ The evil intended to be remedied should also be considered * ' Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378; State, Chamberlin, V. Daniel, 17 Wash. Ill, 116, 49 Pac. 243. See also the following cases: Arkansas: Hawkins v. Filkins, 24 Ark. 286; State v. Ashley, 1 Pike (1 Ark.), 513. California: Marye v. Hart, 76 Cal. 291, 293, 18 Pac. 325; Miller v. Dunne, 72 Cal. 462, 14 Pac. 27; Bour- land V. Hildreth, 26 Cal. 161; Cohen V. Wright, 22 Cal. 293. Colorado: People, Livesay, v. Wright, 6 Colo. 92. Examine Denver Circle R. Co. v. Nester, 10 Colo. 403, 15 Pac. 715. Georgia: Examine Paddleford v. Savannah, 14 Ga. 438. Illinois: Beardstown v. City of Virginia, 76 111. 34. Kentucky: Louisville School Board v. King (Ky., 1908), 107 S. W. 247. Louisiana: Western Union Teleg. Co. v. Railroad Commission (La., 1908), 45 So. 598; Decklar v. Frank- enberger, 30 La. Ann. 410. Maryland: Dyer v. Bayne, 54 Md. 87, 100; Picking v. State, 26 Md. 503; Manley v. State, 7 Md. 135. Minnesota: Minnesota & Pacific Rd. Co. V. Sibley, 2 Minn. 13. Mississippi: Examine Green v. Weller, 32 Miss. 652. 330 New York : People v. Fancher, 50 N. Y. 288. Oregon: Acme Dairy Co. v. City of Astoria (Oreg., 1907), 90 Pac. 153. South Carolina: Norton v. Brad- ham, 21 S. C. 375, 382. Effect must he given to each word. Knowlton v. Moore, 178 U. S. 41, 87, 44 L. ed. 969, 20 Sup. Ct. 747, per White, J.; Holmes v. Jennison, 14 Pet. (39 U. S.) 540, 570, 10 L. ed. 579, per Taney, C. J.; Ogden v. Saimders, 12 Wheat. (25 U. S.) 213, 316, 6 L. ed. 606, per Trimble, J., in dissenting opinion. See Osbom v. United States Bank, 9 Wheat. (22 U. S.) 738, 851, 6 L. ed. 204, per Marshall, C. J. All other provisions relating to sub- ject are to be considered. Tazewell V. Herman (Va., 1908), 60 S. E. 767. Provisions are not to be segregated and considered separately, but all pro- visions are to be brought together and so interpreted as to effectuate the great purposes of the instrument. South Dakota v. North Carolina, 192 U. S. 286, 328, 48 L. ed. 448, 24 Sup. Ct. 269, per White, J., in dissenting opinion; Downes v. Bidwell, 182 U. S. 244, 312, 45 L. ed. 1088, 21 Sup. Ct. 770, per White, J. * Louisville School Board v. King (Ky., 1908), 107 S. W. 247. OR CONSTRUCTION OF CONSTITUTIONS § 205 The plain ordinary signification and usual meaning in com- mon parlance must be given to the words employed, when the language is clear and unambiguous, and the intent must be gathered therefrom.^ But a judicial construction of words \vill prevail over the popular conception of their signification, and this applies as well to constitutions as to statutes.^" The mere grammatical construction ought not, however, to control the interpretation, unless it is warranted by the general scope and object of the provision. ^^ But no uniform rule of inter- pretation can be applied to the Federal Constitution, which may not allow, even if it does not positively demand, many * Colorado : Alexander v. People, 7 Colo. 155, 2 Pac. 894. Idaho: Powell v. Spackman, 7 Idaho, 692, 54 L. R. A. 378, 65 Pac. 503. IlUnois: Law v. People, 87 III. 385. Nevada: State v. Doran, 5 Nev. 399. Pennsylvania: Monongahela Nav. Co. V. Coons, 6 Watts. & S. (Pa.) 101. South Carolina: Charleston, City of, V. OHver, 16 S. C. 47. See also the following cases: Doo- Icy V. United States, 183 U. S. 151, 173, 46 L. ed. 128, 22 Sup. Ct. 62, per Fuller, C. J., in dissenting opinion (plain language not to be construed away); McPherson v. Blacker, 146 U. S. 1, 27, 13 Sup. Ct. 3, 36 L. ed. 869, per Fuller, C. J. (framers used words in natural sense); Tennessee v. Whitworth, 117 U. S. 129, 147, 29 L. ed. 830, 6 Sup. Ct. 645 (given moaning they have in common use); Passenger Cases, 7 How. (48 U. S.) 283, 477, 12 L. ed. 702, per Taney, C. J., in dissenting opinion (momhers of convention used words in same sense as in their debates; no pre- sumption that they used ordinary words in unu.sual sense); Holmes v. Jennison, 14 Pet. (39 U. S.) 540, 571. 10 L. ed. 579, per Taney, C. J. (usual and fair import of words to be given); Craig v. Missouri, 4 Pet. (29 U. S.) 410, 454, 7 L. ed. 903, per M'Lean, J. (plain import of words to be given); Brown v. Maryland, 12 Wheat. (25 U. S.) 419, 437, 6 L. ed. 678, per Marshall, C. J. (literal meaning of words to be considered in connection with other words); Martin v. Hunter, 1 Wheat. (14 U. S.) 304, 326, 4 L. ed. 97, per Story, J. (to be given reason- able construction according to im- port of its terms, and words to be taken in their natural and obvious sense, which should not be unreason- ably restricted or enlarged); Epping V. City of Columbus, 117 Ga. 263, 43 S. E. 803 (words should ordinarily be construed according to their popular sense and meaning). If the words are clear, explicit, unambiguous and free from obscurity the courts are bound to expound the language according to the common sense and ordinary meaning of the words. Minnesota & Pacific Rd. Co. V. Sibley, 2 Minn. 13. '"Nephi Plaster & Mfg. Co. v. Juab County (Utah, 1907), 93 Pac 53, 56, per Frick, J. "Groves v. Slaughter, 15 Pet r40U. S.)449, lOL. ed. 800. 331 §§ 206, 207 CONSTITUTIONAL LAW — INTERPRETATION modifications in its actual application to particular clauses, although a safe rule is to consider the nature and objects of the particular powers, duties and rights, and to give to the words of each, just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. ^^ § 206. Context — Ordinary and Technical Meaning of Words — Phrase or Word in Different Parts of Instru- ment. — Reference should be had to the context; " and the popular meaning will prevail over a technical one, unless it is apparent therefrom, or from the nature of the subject, that the technical meaning was intended;" and, generally, unless the context makes it clearly apparent that a phrase or word used in the instrument has a meaning different from the plain and manifest sense thereof, such word or phrase should be given the same construction if used in any other part.^^ § 207. Plain Language of Constitution Cannot Be Ig- nored — Repugnant Provisions. — A construction of a consti- tution should be such as to give it force and effect in every part rather than a construction by which any part shall be rendered meaningless or destroyed ; ^^ and a constitutional provision which is clear, unambiguous, and not duplicitous, cannot be construed away; ^'' nor can the plain language of such a provision be ignored or altered even though by literal interpretation, an inconsistency with other parts of the in- strument in relation to other subjects may arise; ^* and a con- struction which raises a conflict between different parts of a constitution is not admissible, where, by any reasonable con- 12 prigg V. Pennsylvania, 16 Pet. '^ Epping v. City of Columbus, 117 (41 U. S.) 539, 10 L. ed. 1060. Ga. 263, 43 S. E. 803. *' Richardson v. Treasure Hill Min. '* State, Chamberlain, v. Daniel, 17 Co., 23 Utah, 366, 65 Pac. 74. Wash. Ill, 49 Pac. 243. See § 205, ^* Epping V. City of Columbus, 117 herein. Ga. 263, 43 S. E. 803; Hamilton Nat. " State, Robertson, v, McGough, Bank v. American Loan & Trust Co., 118 Ala. 159, 24 So. 395. 66 Neb. 67, 92 N. W. 189. " Jackson v. State, 87 Md. 191, 39 Atl. 504. 332 OR CONSTRUCTION OF CONSTITUTIONS § 208 struction, they may be made to harmonize. ^^ If, however, repugnant provisions cannot be reconciled, the order of time and local position should be considered and preference given to that which is last.^** § 208. Meaning of Constitution as Understood by Its Framers — Construction. — In interpreting the constitution re- course may be had to the position of the framers of the instru- ment, and what they must have understood to be the meaning and scope of the grants of power contained therein. ^^ But it is presumed that the framers of, and the people who adopted the constitution employed words in their natural sense and expressed what they intended, so that the last stated rule would not apply so as to control unambiguous and clearly expressed constitutional provisions; ^- and, as stated in a prior section, the only proper way to construe a constitution is to consider the language used, and, if possible, to ascertain the intent therefrom, so that the instrument may effectuate that intent ; ^^ and it is not so much what was the framers intention as what is meant by the words they have used.^^ Again, although it may not be difficult to conceive of reasons which influenced the framers of constitutional amendments in in- corporating therein certain provisions, such reasons, if true, will not control the court when called upon to construe the provisions of the constitution as they originally stood. ^^ '» People, Livesay, v. Wright, 6 199 U. S. 4.37, 26 Sup. Ct. , 50 Colo. 92, 95. See § 233, herein. L. ed. 261. ^° Quick V. White-Water Town- General intent of framers to be ship, 7 Ind. 570. " If the different considered. Tazewell v. Herman sections cannot be liquidated' and (Va., 1908), 45 S. E. 59.S. made to stand together, it is a 'rule ^' See Gibbons v. Ogden, 9 Wheat, of construction, not derived from (22 U. S.) 1, 188, 6 L. ed. 23, per positive law, but from the nature and Marshall, C. J. reason of the thing,' 'as consonant to '^ See § 205, herein, truth and propriety,' 'that the last '* Beardstown v. City of Virginia, in order of time shall be preferred to 76 111. 34; Smith v. Thursby, 28 Md. the first.' Federalist, No. 78.— 244. Spencer v. The State, 5 Ind. 41." " Norton v. Bradham, 21 S. C. Id., 578, per Perkins, J. 375, 383. " South Carolina v. United States, 333 §§ 209-212 CONSTITUTIONAL LAW— INTERPRETATION § 209. Strict Construction. — Constitutions do not come within the rule of strict construction applicable to statutes. ^^ So in the interpretation of the Federal Constitution the ex- tremes of a strict and a liberal construction should be avoided; " and in constitutions generally a meaning or interpretation be- tween a strict and liberal construction should be adopted, and technical rules avoided. ^^ § 210. Implied Matters a Part of Constitution.— That which is implied is as much a part of the constitution as that which is expressed, and amongst the implied matters is that the nation may not prevent a State from discharging the ordinary functions of government, and no State can interfere with the National government in the free exercise of the powers conferred upon it.^^ § 211. Punctuation. — Punctuation is not, as a general rule, any part of an enactment or constitutional provision and cannot be permitted to control its evident meaning or intent.^" § 212. Interpretation in View of Common Law.— A con- stitution must be interpreted in view of and with the assistance of the common law;^^ and recourse must be had thereto in " State, Chamberlain, v. Daniel, 17 Legal Tender Cases, 110 U. S. 4, 439, Wash. Ill, 116, 49 Pac. 243. See per Gray, J. Gibbons v. Ogden, 9 Wheat. (22 ^s Acme Dairy Co. v. City of U. S.) 1, 187, 6 L. ed. 23, per Mar- Astoria (Oreg., 1907), 90 Pac. 153. ghall, C. J. ^' South Carolina v. United States, " North River Steamboat Co. v. 199 U. S. 437, 50 L. ed. 261, 26 Sup. Livingston, 3 Cow. (N. Y.) 713, aff'g Ct. 123. See People v. Fleming, 10 Hopk. 149. Compare Southern Pac. Colo. 522, 16 Pac. 298. R. Co. V. Orton (C. C), 32 Fed. 457, Implied powers. See § 123, herein. 473. "The construction " of the Fed- ^ Richardson v. Treasure Hill Min. eral Constitution "is strict against Co., 23 Utah, 366, 388, 65 Pac. 74. those who claim \mder it," per '^ Mobile, City of, v. Stonewall Ins. Sawyer, J., quoting from Sharpless v. Co., 53 Ala. 570; English v. State, 31 Mayor of Philadelphia, 21 Pa. 160, Fla. 340, 12 So. 689; Durham v. per Black, C. J. State, 117 Ind. 477, 19 N. E. 327. Constitution not to be interpreted See also Baltimore & Ohio R. Co. v. with strictness of private contract. Baugh, 149 U. S. 368, 394, 37 L. ed. 334 OR CONSTRUCTION OF CONSTITUTIONS § 213 interpreting the Federal Constitution.^^ In case of conflict with the common law, either as to a right or remedy, the constitution will prevail, and thus applies where it makes pri- vate property inviolate but subservient to the welfare of the pubhc.^^ §213. Constitutional Prohibitions — Proviso — Exception from General Words. — A constitutional prohibition should receive a rational and not a technical construction; and, look- ing to the evil intended to be remedied, it should be applied to such acts of the legislature alone as are obviously within its spirit and meaning. ^^ There is a clear distinction between such prohibitions of the constitution as go to the very root of the power of Congress to act at all, irrespective of time and place, and such as are operated only throughout the United States, or among the several States. ^^ And in construing clauses of the Federal Constitution which involve conflicting powers of the government of the Union and of the respective States it is proper to consider the literal meaning of the words to be expounded, their connection with other words and of the general objects to be accomplished by the prohibitory clause or by the grant of power, but the words of the prohibition ought not to be pressed to their utmost extent. In our complex system, the object of the powers conferred on the government of the Union and the nature of the often conflicting powers which remain in the States, must always be taken into view and may aid in expounding the words of any particular clause.^^ In the absence of a clearly apparent intention to the contrary a proviso should be confined to the antecedent next preceding 772, 13 Sup. Ct. 871, per Field, J., in "Chicago & Erie Rd. Co. v. dissenting opinion; Waring v. Clarke, Keith, 67 Ohio St. 279, 65 N. E. 1020, 5 How. (46 U. S.) 441, 466, per 60 L. R. A. 1025. Catron, J. CompaTe The Huntress, ^* Phillips v. Covington & Cin- Fed. Cas. No. 6,914. cinnati Bridge Co., 2 Mete. (59 Ky.) 3' South Carolina v. United States, 219, 221, 222. 199 U. S. 437, 50 L. ed. 261, 26 Sup. '^ Downes v. Bidwell, 182 U. S. Ct. — ; United States v. Wong Kim 244, 45 L. ed. 1088, 91 Sup. Ct. 770. Ark, 169 U. S. 649, 42 L. ed. 890, 18 '' Brown v. Maryland, 12 Wlieat. Sup. Ct. 456. (25 U. S.) 419, 6 L. ed. 478. 335 §§ 214, 215 CONSTITUTIONAL LAW — INTERPRETATION it. ^ This rule of statutory construction also applies to a con- stitution.^^ If it be a rule of interpretation to which all assent that the exception of the particular thing from general words proves that in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made, there is no reason why this rule should not be as appli- cable to the constitution as to other instruments.^^ The rule, that as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated, is appli- cable to constitutional as well as to statutory pro visions. ^^ § 214. Partially Invalid Provisions. — The authority given to a railroad commission to establish rates is not rendered invalid by other invalid but separable provisions of a con- stitution which make the rates so established conclusively reasonable and just in case of controversy, and, therefore, re- pugnant to the Fourteenth Amendment of the Federal Con- stitution.^ § 215. Construction — Prospective — Retrospective. — In the absence of a contrary intention, clearly evidenced beyond reasonable question, constitutions will be construed so as to operate prospectively only."*^ So in order that a constitution should be held retrospective in its operation, such intention should unmistakably appear from the words used.^^ A con- " State V. Quayle, 26 Utah, 26, 30, *' United States: Shreveport v. 71 Pac. 1060, citing Fowler v. Tuttle, Cole, 129 U. S. 36, 9 Sup. Ct. 210, 32 24 N. H. 9; Gushing v. Warwick, L. ed. 589. 9 Gray (75 Mass.), 382; Wolf v. Colorado: Strickler v. City of Bauereis, 72 Md. 481-485, 19 Atl. Colorado Springs, 16 Colo. 61, 26 1045, 8 L. R. A. 680; Suth., Stat. Pac. 313, 25 Am. St. Rep. 245. Const. § 267; 23 Am. & Eng. Ency. of Maryland: New Central Coal Co. Law, 636. v. George's Creek Coal & Iron Co., 37 3« Brown v. Maryland, 12 Wheat. Md. 537. (25 U. S.) 419, 6 L. ed. 678. Missouri: State v. Holliday, 66 3« Western Union Teleg. Co. v. Mo. 385. Railroad Commission (La., 1908), 45 Utah: Jungk v. Holbrook, 15 So. 598. Utah, 198, 49 Pac. 305. <" Southern Pac. R. Co. v. Rail- ^^ j^ngk v. Holbrook, 15 Utah, road Commissioners (C. C), 78 Fed. 198, 49 Pac. 305; Mercer v. Gold Min. 236. & Mill. Co. V. Spry, 16 Utah, 222, 52 336 OR CONSTRUCTION OF CONSTITUTIONS § 215 stitution being prospective in operation does not affect stat- utes in force when the constitution was adopted. ^^ And a constitutional provision has no retroactive operation as to actions pending at the time of the adoption thereof, even though such provision relates to the manner of bringing such actions.'*'* So where an action is begun under a constitution, the rights of the parties are to be determined thereunder and not under a constitution which goes into effect thereafter.'*' A constitution prohibiting special charters or special laws does not repeal charters granted when the constitution took effect,"*" nor is past legislation affected thereby."*^ So where corporations are required, under a constitutional amendment, to be formed under general statutes such requirement does not affect char- ters theretofore granted, even though subsequently amended.^^ And although a constitution provides for the repeal of all laws inconsistent therewith, and prohibits the passage of special laws thereafter, still a special act whereby a taxing district is incorporated is not repealed thereby.'**' But a constitution prohibiting the passing of any local or special act may operate as a repeal to a certain extent of a bank charter granted by special act prior thereto.^" Again, a law in force when a con- stitution is adopted, may, when not inconsistent therewith, Pac. 382. See Lloyd v. Hamilton, 52 Indiana: Davidson v. Koehler, 76 La. Ann. 861, 27 So. 275. Ind. 398. "Adams v. Dendy, 82 Miss. 135, Louisiana: Pecot v. Police Jury, 33 So. 843. 41 La. Ann. 707, 6 So. 677. ** Conyers V. Commission of Roads, Missouri: Atlantic & Pacific R. 116 Ga. 101, 42 S. E. 419. Co. v. City of St. Louis, 66 Mo. 228. « McHugh V. Louisville Bridge Co., Ohio: Allbyer v. State, 10 Ohio St. 23 Ky. L. Rep. 1546, 65 S. W. 456. 588. " Ulbrecht v. City of Keokuk, 124 *^ State v. City of Bangor, 98 Me. Iowa, 1, 97 N. W. 1082. 114, 56 Atl. 589; Famsworth v. <' California: Nevada School Dist. Lime Rock Rd. Co., 83 Me. 440, 22 V. Shoecraft, 88 Cal. 372, 26 Pac. 211; Atl. 373. See Atlantic & Pacific R. Meade v. Watson, 67 Cal. 591, 8 Pac. Co. v. City of St. Louis, 66 Mo. 311, 314. 228. Colorado: People, Dean, v. Board *" Covington, City of, v. District of of County Commissioners of Grand Highlands, 24 Ky. L. Rep. 433, 68 County, 6 Colo. 202. S. W. 669. Illinois: Covington v. City of ^^ Commonwealth v. Porter, 24 Ky. East St. Ix)uis, 78 111. 548. ' L. Rep. 364, 68 S. W. 621. 22 337 § 216 CONSTITUTIONAL LAW — INTERPRETATION be continued in force by an express provision continuing in force all laws until repealed or altered. ^^ If the charter of a corporation exempts it from taxation such exemption includes assessments made before the taking effect of a constitution repealing the exemption, and also the right to exemption for taxes so assessed for the year during which the constitution took effect.^^ § 216. Contemporaneous Construction — Extrinsic Matters — History — Debates and Proceedings in Convention. — In cases of doubt as to the interpretation or construction of a provision of the constitution, its contemporaneous and prac- tical construction may be considered in aid thereof.^^ So the contemporaneous interpretation in the " Federalist " and the original judiciary act is entitled to much weight; ^"^ and the nature and objects of the particular powers, duties and rights should be considered, with all the lights and aids of contem- porary history,^^ or the history of its passage through the con- vention,^^ or of the times when it was passed or adopted,^^ and of well-known conditions then existing.^* The views or debates of the framers of the constitution cannot be con- '» State V. O'Neil Lumber Co., 170 "« Minnesota & Pacific Rd: Co. v. Mo. 7, 70 S. W. 121. Sibley, 2 Minn. 13, 19. " Newport v. Masonic Temple " Toncray v. Budge (Idaho, 1908), Assoc, 20 Ky. L. Rep. 266, 269, 45 92 Pac. 26; Funkhouser v. Spahr, 102 S. W. 881, 46 S. W. 697. Va. 306, 46 S. E. 378, quoting from ^^ Eastman v. Clackamas Coimty United States v. Trans-Missouri (C. C), 32 Fed. 24; Howell v. State, Freight Assn., 166 U. S. 318, 17 Sup. 71 Ga. 224, 51 Am. Rep. 259; Allen Ct. 550, 41 L. ed. 1007; United V. Clayton, 63 Iowa, 11, 18 N. W. States v. Union Pacif. Rd. Co., 91 663; Chesapeake & Ohio R. Co. v. U. S. 72, 23 L. ed. 224; Queen v. Miller, 19 W. Va. 408. See Cohen v. Hertford College, 3 Q. B. Div. 707, Virginia, 6 Wheat. (19 U. S.) 418, per Coleridge, Lord Chief Justice. 420, per Marshall, C. J. Compare See Maynard v. Board of Canvas- State ex rel. Chamberlain v. Daniel, sers, 84 Mich. 228, 238, 47 N. W. 17 Wash. Ill, 117, 49 Pac. 243. 756, 43 Alb. L. J. 389, 11 L. R. '* Cohens v. Virginia, 6 Wheat. A. 332; People v. Gies, 25 Mich. (19 U. S.) 264, 5 L. ed. 257. 83. " Prigg V. Pennsylvania, 16 Pet. ^s Toncray v. Budge (Idaho, 1908), (41 U. S.) .539, 10 L. ed. 1060. 92 Pac. 26. 338 OR CONSTRUCTION OF CONSTITUTIONS § 217 sidered ; ^^ nor can debates on the passage of an act be accepted as evidence of the meaning of a clause in the constitution.^" It is held, however, that debates or proceedings of a consti- tutional convention may be considered in a limited degree, although they are unsafe as a guide. ^^ It is also decided that such proceedings are valuable as an aid in ascertaining the intent of doubtful provisions, but that the terms of the con- stitution cannot be varied thereby; ^~ nor can express con- stitutional provisions be construed away by resort to the con- vention proceedings.^^ § 217. Contemporaneous Construction Continued — Legis- lative Construction. — Although the legislature has the same right as have the courts to construe a constitutional provision,^^ yet it cannot bind the courts by its interpretation ; ^^ nor will a legislative construction control unambiguous and clearly expressed provisions of the constitution.^^ But in case of a doubtful constitutional provision a legislative interpretation will be considered or availed of as an aid to construction when contemporaneous with the adoption of the constitution,^^ and such contemporaneous interpretation is a strong pre- "Funkhouser v. Spahr, 102 Va. " Stame v. People, 222 111. 189, 306, 46 S. E. 378, quoting from 78 N. E. 61. United States v. Union Pac. R. Co., "* Selma & Gulf Rd. Co., Ex parte, 91 U. S. 72, 23 L. ed. 224; United 45 Ala. 696, 6 Am. Rep. 722. States V. Trans-Missouri Freight " State, Kenner, v. Spears (Tenn. Assn., 166 U. S. 318, 41 L. ed. Ch. App., 1899), 53 S. W. 247. See 1007. State ex rel. Chamberlain v. Daniel, •"District of Columbia v. Wash- 17 Wash. Ill, 117, 49 Pac. 243. ington Market Co., 108 U. S. 243, "State, Hibbard, v. Cornell, 60 2 Sup. Ct. — , 27 L. ed. 714. Neb. 276, 83 N. W. 72. See Griflin v. «' Rasmusser v. Baker, 7 Wyo. Rhoton (Ark., 1907), 107 S. W. 380; 117, 38 L. R. A. 773, 50 Pac. 819. State, Chamberlain, v. Daniel, 17 " Epping V. City of Columbus, 117 Wash. Ill, 49 Pac. 243; Isiirbanks v. Ga. 263, 43 S. E. 803. See Wiscon- United States, 181 U. S. 283, 21 Sup. fiin Central R. Co. v. Taylor, 52 Wis. Ct. 648, 45 L. ed. 862. 37, 8N. W. &33;Wulffv. Aldrich, 124 "Board of Railroad Commrs. v. 111. 591, 16 N. E. 886. Examine Market St. Ry. Co., 132 Cal. 677, Richardson v. Treasure Hill Mining 64 Pac. 1065; People, Livesay, v. Co., 23 Utah, 367, 65 Pac. 74. Wright, 6 Colo. 92, 97; State, Hib- 339 § 218 CONSTITUTIONAL LAW — INTERPRETATION sumption in favor of the constitution; ^* it is of great force ;^^ and where the question is one in which a hberal construction may be made the legislative construction will not be con- demned unless it very clearly appears that it is wrong ;'''° it should also be followed so as to give effect to a constitutional provision if it can be done without violence to a fair interpre- tation of the words employed ; ^^ and an act, in execution of a constitutional power, passed by the first legislature after the adoption of the constitution, is a cotemporary interpretation of the latter entitled to much weight 7^ § 218. Construction or Interpretation Long Continued and Acquiesced in by Legislative and Executive Depart- ments. — A contemporaneous construction of the constitution, practiced and acquiesced in, for a period of years, fixes the construction, and the courts will not shake or control it 7^ So practical construction for a long period of time is conclu- sive of the meaning of a constitution in cases otherwise doubt- ful J"* Again, a long continued and uniform interpretation, put by the executive and legislative departments of the gov- ernment, upon a clause of the constitution should be followed by the judicial department, unless such interpretation be manifestly contrary to its letter or spirit 7^ And where the bard, v. Cornell, 60 Neb. 276, 83 " g^uart v. Laird, 1 Cranch (5 U. N. W. 72. Compare State ex rel. S.), 299, 2 L. ed. 115. Chamberlain, 17 Wash. Ill, 117, 49 '^French v. State, Harley, 141 Pac. 243. Ind. 618, 29 L. R. A. 113, 41 N. E. 2. '^ State, Guerguin, v. McAllister, See also Dred Scott v. Sandford, 19 88 Tex. 284, 28 L. R. A. 523, 31 S. W. How. (60 U. S.) 393, 616, 15 L. ed. 187. Compare Griffin v. Rhoton 691 (practical construction through (Ark., 1907), 107 S. W. 380. long years and in doubtful cases de- '° People, Mooney, v. Hutchinson, termines judicial mind); State v. 172 111. 486, 30 Chic. Leg. N. 303, Gerhardt, 145 Ind. 439, 44 N. E. 50 N. E. 599, 40 L. R. A. 770. 469, 33 L. R. A. 313 (legislative '"Selma & Gulf Rd. Co., Ex parte, practice continued and acquiesced in 45 Ala. 696, 6 Am. Rep. 722. for a long period of time controls the " State V. Tingey, 24 Utah, 225, 67 construction of a constitution in Pac. 33. cases of doubt); Faribault, City of, " Cooper Mfg. Co. V. Ferguson, 113 v. Misener, 20 Minn. 396; Moers v. U. S. 727, 28 L. ed. 1137, 5 Sup. Ct. Reading, 21 Pa. 188. 739. "Downes v. Bidwell, 182 U. S. 340 OR CONSTRUCTION OF CONSTITUTIONS § 219 legislature or officers intrusted with the duty of carrying out the provisions of a paragraph, have given, unquestioned for a long time, a construction to such paragraph such interpre- tation so acquiesced in will be of great force 7^ But a prac- tice of officials of a state penal institution is not such a con- temporaneous and practical construction as to be obligatory upon the courts 7^ Where the constitution prohibits the crea- tion of corporations by special acts the exercise of the power to regulate corporations by special acts, continued by the leg- islature and acquiesced in for a long period of time, is of force in constming such constitutional provision 7^ So great weight should be given to legislative construction, extending over a long period of time, of identical provisions in two state con- stitutions 7^ And a construction of identical clauses in two constitutions of exemption from license taxation by a legis- lative imposition of license taxes on the business of public serv- ice corporations for a number of years should be given great weight.**' § 219. Long and Continued Usage. — Prior well-known us- ages and practices are to be considered in construing constitu- tions.*^ But the rule of construction by long and continued usage should be applied to a constitutional provision only in cases of doubt.*^ 244, 21 Sup. Ct. 770, 45 L. ed. 1088. sie, 153 Ind. 460, 53 N. E. 950, 47 L. See People, Mooney, v. Hutchinson, R. A. 489, 55 N. E. 224. 172 111. 486, 30 Chic. Leg. N. 303, 50 '» Victoria Lumber Co. v. Rives, N. E. 599, 40 L. R. A. 770. 1 15 La. 996, 40 So. 382. " Epping V. City of Columbus, 117 ""State v. New Orleans Ry. & Ga. 263, 43 S. E. 803. Light Co., 116 La. 144, 40 So. 597. " Manthey v. Vincent, 145 Mich. «' Johnston v. State, Sefton, 128 327, 13 Det. L. N. 465, 108 N. W. Ind. 16, 12 L. R. A. 235, 27 N. E. 667. 422. " Indianapolis v. Navin, 151 Ind. Usages of government to be con- 1.39, 41 L. R. A. 337, 14 Nat. Corp. sidered. State v. Sorrells, 15 Ark. Rep. 774, 47 N. E. 525, 151 Ind. 156, 664. 30 Chic. Leg. N. 414,5 Dot. L. N. " Pingree v. Dix, Auditor Gcnl., No. 19, 41 L. R. A. .344, 51 N. E. 80. 120 Mich. 95, 44 L. R. A. 679, 6 Det. Compare Bank of Commerce v. Wilt- L. N. 45, 78 N. W. 1025. 341 § 220 CONSTITUTIONAL LAW — INTERPRETATION § 220. Amendments to Constitution. — An amended con- stitution should be interpreted in connection with what has preceded, and the necessity and object of the change will be considered. When new provisions are so inserted into a con- stitution regard should be had to their nature and purpose, and a fair and legitimate meaning should be given so that the ob- jects intended may be accomplished.*^ In determining the intent of a constitutional amendment reference may be had to the surrounding conditions in respect to the matter to which the amendment relates, and also to the history of general legis- lation concerning the matter.*^ A constitutional amendment will also be construed so as to reconcile provisions of the amended constitution in conflict therewith.*^ Again, a repeal of one section of a constitution is effected by an amendment which is repugnant thereto.**^ But a distinction exists between embodying a statute in a constitution by an amendment thereto and an amendment which makes constitutional and validates a statute which still remains only ordinary legis- lation. And the conditions embodied in a petition for an election, a legislative act and constitutional amendment to carry out a tax scheme, such conditions being made a part of all the proceedings, and the enactment and amendment being drafted by the promoters of the scheme, become conditions of the amendment to which the tax adopted into the constitution is subject.*^ A title insurance company, organized under a special act prior to the adoption of a constitution but there- *^ Steele v. County Commissioners, *' Bray v. Florence City Council, 83 Ala. 304, 3 So. 761; Minnesota & 62 S. C. 17, 39 S. E. 810. Pacific Rd. Co. v. Sibley, 2 Minn. 13. " State, Saunders, v. Kohnke, 109 "State, Getchell, v. O'Connor, 81 La. 838, 33 So. 793. Minn. 79, 83, 83 N. W. 498, citing The words " ratify" and " approve" Church of Holy Trinity v. United are not, in their abstract meaning, the States, 143 U. S. 457, 459, 12 Sup. equivalent of such terms as "to Ct. 511, 36 L. ed. 226; United States adopt" or "to incorporate into." V. Union Pacific R. Co., 91 U. S. 72, Hence a statute ratified and approved 79, 23 L. ed. 224; Croomers v. State, by a constitutional amendment is 40 Tex. Cr. App. 672, 51 S. W. 927. not necessarily embodied into the '* Chicago, City of, v. Reeves, 220 constitution, but may have been 111. 274, 77 N. E. 237. thereby simply vahdated, and made 342 OR CONSTRUCTION OF CONSTITUTIONS §§ 221-223 after repealed, does not, by failure to accept such later con- stitution,' become estopped to deny that it continues to ex- ercise the special privileges granted by its legislative charter and amendments thereto.*^ § 221. Title of Legislative Enactment Proposing Consti- tutional Amendment. — The title of a legislative enactment proposing an amendment of a constitution may be resorted to as an aid to the construction of that section of the constitu- tion to which it relates.*^ § 222. Revised Constitution — Re-enactment. — If a con- stitution is revised, a re-enactment in the same language will be regarded as adopting a prior construction of the preceding constitution.^" § 223. Constitution Adopted from Another State — Con- struction. — Where a constitution, or constitutional provision, has been adopted from another State it is presumed that the construction or judicial interpretation given and established there is the sense in which it was adopted, and such construc- constitutional, remaining still noth- ment. Such an amendment may be ing more than mere valid ordinary proposed to the people by joint reso- legislation. But where, in a con- lution of the legislature. Julius v. stitutional amendment, a statute is Callahan, 63 Minn. 154, 65 N. W. 267. ratified and approved, and a clause is But such title may be looked to nev- added reserving to the legislature ertheless for the purpose of ascertain- the right to amend the statute in cer- ing the intent of the law. This is a tain specified respects, then the words universal rule, and applies where no become charged with a special mean- title is required. Wilson v. Spauld- ing, and the statute does go into the ing (C. C), 19 Fed. 304; United constitution, except in so far as the States v. Carbery, 2 Cranch (C. C), right to amend is reserved to the leg- 358; Fed. Cas. No. 14,720; Clark v, islature. State, Saunders, v. Kohnke, Mayor, 29 Md. 277, 285; United ion La. 838, 33 So. 793. States v. Palmer, 3 Wheat. (16 U. S.) *" Hager v. Kentucky Title Co., 27 610, 4 L. ed. 471 ; Page v. Young, 106 Ky. L. Kep. 340, 85 S. W. 183. Mass. 313." Id., 85, per Brown, J. ** State, Getchell, V. O'Connor, 81 ""California: Lord v. Dunster, Minn. 79, 83, 85, 83 N. W. 498. "It 70 CiI. 177. 21 Par. 865. is true that no title is required to Indiana: Mcliitire v. State (Ind., a proposed constitutional amend- 1908), 83 N. W. 1005. 343 §§ 224, 225 CONSTITUTIONAL LAW — INTERPRETATION tion or interpretation should be followed .^^ It may also be assumed that the convention adopting a provision of a con- stitution from another State was conversant with a judicial construction placed thereon by the latter State previous to such adoption .^^ § 224. Former Constitution Repealed by Implication. — A former constitution is repealed by implication by a later one so far as inconsistent.^' § 225. Whether Constitutional Provisions Self-Execut- ing. — The determination of the question whether or not a constitutional provision is self-executing rests upon the inten- lowa: McGregor, Town of, v. Baylies, 19 Iowa, 43. Louisiana: State v. Board of Assessors, 35 La. Ann. 651. Missouri: Sanders v. St. Louis & New Orleans Anchor Line, 97 Mo. 26, 10 S. W. 595, 3 L. R. A. 390. Wisconsin: Attorney Genl. v. Brunst, 3 Wis. 787. If the language of a constitution is carried into a later one by re- enactment, the construction of such language as then adopted by the courts will control in the later con- stitution. Morton v. Broderick, 118 Cal. 474, 50 Pac. 644. " Colorado: Lace v. People (Colo., 1908), 95 Pac. 302. Idaho: Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246. Mississippi: Daily v. Swope, 47 Miss. 367. Nevada: State v. Parkinson, 5 Nev. 15. Wisconsin: Attorney Genl. v. Brunst, 3 Wis. 787. See Wisconsin Cent. R. Co. v. Taylor, 52 Wis. 37, 8 N. W. 833. °^ State ex rel. State Board of Equalization v. Fortune (Mont., 344 1900), 60 Pac. 1086. See People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581; Commonwealth v. Hartnett, 3 Gray (69 Mass.), 450. " State, Childs, v. Board of County Commissioners of Crow Wing, 66 Minn. 519, 68 N. W. 767. "The later adopted constitutional provi- sion will, so far as inconsistent with a former one, repeal it by implication, just as a later statute will repeal by implication a former one. Such re- peals by implication are not favored." Id., 525, per Canty, J. See also the following cases: United States: Sands v. Manis- tee River Imp. Co., 123 U. S. 288, 8 Sup. Ct. 113, 31 L. ed. 149; Escanaba & Lake Michigan Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. 185. Arkansas: State v. Cox, 3 Eng. (8 Ark.) 436. Louisiana: Sigur v. Crenshaw, 8 La. Ann. 401. New York: People v. Angle, 109 N. Y. 564, 17 N. E. 413. Oregon: Wood v. Fitzgerald, 3 Oregon, 568. Texas: Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746. OR CONSTRUCTION OF CONSTITUTIONS § 225 tion of the persons framing and adopting the constitution, and such intention is to be determined by the language used and the surrounding circumstances.^** If, therefore, a constitu- tional provision is complete in itself, and evidences an intent to prescribe in itself a rule, the application of which will put into operation, it is self-executing;^^ and it would seem that if ** Illinois Central R. Co. v. Ihlen- tered into before the decisions of the berg, 75 Fed. 873, 876, 877, 43 U. S. Supreme Court of Mississippi. An App. 726, 21 C. C. A. 546, 34 L. R. A. examination of the case of Groves v. 393. In this case it is said by the Slaughter and the reasoning of the court, per Taft, Cir. J., that: "In court leaves no doubt that the Groves v. Slaughter, 15 Pet. (40 U. question for consideration is one of S.) 449, 10 L. ed. 800, the question the intention of the persons fram- was whether the language of the con- ing and adopting the constitution, stitution of Mississippi providing that There is nothing in Groves v. Slaugh- the 'introduction of slaves into that ter, to justify the claim that a consti- State, as merchandise, or for sale, tution may not contain self-executing should be prohibited, from and after provisions. It may be conceded that the first day of May, 1833,' was self- it is usually a declaration of funda- executing, or was directed to the legislature, and required legislative action before it should become oper- ative upon contracts and persons. mental law, and that many of its pro- visions are only commands to the legislature to enact laws to carry out the purposes of the framers of the The question arose in the Supreme constitution, and that many are mere Court of the United States with ref- restrictions upon the power of the erence to its effect upon contracts legislature to pass laws; but that it made in the State, and it was, there- is entirely within the power of those fore, determined by a divided court who confirm and adopt the constitu- that the clause was not self-executing, tion to make any of its provisions Subsequently the court of errors of Mississippi in Green v. Robinson, 5 How. (Miss.) 80, in Glidewell v. Hite, Id., 110, and Brien v. William- son, 7 How. (Miss.) 14, refused to follow the decision of the Supreme Court of the United States held and that the clause was self-executing. Thereafter another case involving the effect of the clause upon con- self -executing is too clear for argu- ment. Hence it is a question always of intention to be determined by the language used and the surrounding circumstances." *5 .'\cme Dairy Co. v. City of As- toria (Oreg., 1907), 90 Pac. 153. See Davis V. Burke, 179 U. S. 399, 21 Sup. Ct. 210, 45 L. ed. 249. "A constitutional provision may be tracts made before the decision of the said to be self-executing if it supplies Supreme Court in Mississippi was a sufficient rule by means of which considered in Rowan v. Runnels, 5 the right given may be enjoyed and How. (46 U. S.) 134, 12 L. ed. 85, protected, or the duty imposed may and the Supreme Court of the United be enforced; and it is not self-execu- States refused to change its ruling ting when it merely indicates prin- with respect to those contracts en- riples, without laying down rules by 345 § 226 CONSTITUTIONAL LAW — INTERPRETATION the language of such provision obviously points to something more to be done, such as legislative action, and does not withih itself contain a governing or controlling rule for its enforce- ment, it is not self-executing,"^ although it may be self-execu- ting to a certain extent, even though it is expressly required that the legislature shall provide a penalty for a specified pro- hibited act.»7 § 226. When Constitutional Provision Is Self-Executing — Instances. — A constitutional provision is self-executing:^* where it clearly fixes the individual responsibility of a bank officer or director, who assents to a receipt of deposits after knowledge of the bank's insolvent condition, and there is no necessity for legislation, especially where a sufficient remedy by civil action is provided under the general laws;"" where it specifies the extent of the individual liability of stock- holders of a banking corporation ; ^ where the requirement is that certain books of a corporation shall be kept for public inspection, and that corporations shall keep an office in the State when they are engaged in business therein ; ^ where a pro- hibition therein as to foreign corporations doing business in a State needs no legislative action to carry it into effect;^ where certain requirements as to taxation are mandatory;^ where it means of which those principles may °° Mallon v. Hyde, 76 Fed. 388. be given the force of law." Cooley's ' Farmers' Loan & T. Co. v. Funk, Const. Lim. (7th ed.) p. 121. 49 Neb. 353, 68 N. W. 520. *° Groves v. Slaughter, 15 Pet. - State, Bourdette, v. New Orleans (40 U. S.) 449, 10 L. ed. 800; Mercur Gaslight Co., 49 La. Ann. 1556, 22 Gold Min. & Mill. Co. v. Spry, 16 So. 815. Utah, 222, 52 Pac. 382. ^ American Union Teleg. Co. v. »' Quinlan v. Smye, 21 Tex. Civ. Western Union Teleg. Co., 67 Ala. 26, App. 156, 50 S. W. 1068. 42 Am. Rep. 90. »8 Day V. Day (Idaho), 86 Pac. 531; ^Railroad & Teleph. Cos. v. Merchants' Police & Dist. Teleg. Co. Board of Equalization (C. C), 85 Fed. V. Citizens' Telephone Co., 29 Ky. L. 302, citing Hyatt v. Allen, 54 Cal. Rep. 512; Spratt v. Helena Power & 353; St. Joseph Board of Pub. Trans. Co. (Mont., 1908), 94 Pac. Schools, 62 Mo. 444; Reelfoot Lake 631. Central Iron Works v. Penn- Levee Dist. v. Dawson, 97 Tenn. sylvania R. Co., 2 Dauph. Co. Rep. 160, 34 L. R. A. 725. (Pa.) 308. 346 OR CONSTRUCTION OF CONSTITUTIONS § 227 prohibits taking or damaging private property for public use without just compensation;^ where discrimination as to re- ceiving, handhng and charging for freight, and as. to the man- ner of payment is prohibited under penalty;^ where it requires that a city shall receive bids before granting a franchise for the use of its streets ; ^ and where street railway companies are re- quired to pave their right of way, and in case of refusal the cost thereof is to be paid by levy of an assessment.* § 227. When Constitutional Provision Is Not Self-Exe- cuting — Instances. — A provision of the state constitution which declares the right of any corporation or individual to construct and maintain lines of telegraph and telephone upon the streets and highways within the State, that such lines shall be common carriers, and that the right of eminent do- main is extended to them, is not self-operative, but by its own terms imposes the duty upon the legislature of providing by general law reasonable regulations to give effect to the sec- tion, and hence confers no power to use the streets and highways other than as the legislature may provide." Nor is a constitu- tional provision self-executing, where its language is that laws shall be made to provide for the enforcement thereof j^*^ nor where the legislature is directed to make provision for a specific purpose, or to carry out a designated matter; ^^ nor where a provision amending a constitution requires that certain laws shall be enacted by the legislature and also a general election ^ Searle v. Lead, 10 S. Dak. 312, « Lincoln St. Ry. Co. v. City of 39 L. R. A. 345, 73 N. W. 101. Lincoln, 61 Neb. 109, 84 N. W. 802. ' Louisville & Nashville R. Co. v. ' State ex rel. Spokane & British Commonwealth (Ky.), 46 S. W. 702, Columbia Teleph. & Teleg. Co. v. modified, 105 Ky. 179, 20 Ky. L. City of Spokane, 24 Wash. 53, 63 Rep. 1099, 48 S. W. 416, 43 L. R. Pac. 116, 7 Am. Elec. Cas. 96. See A. 5.^)0. also State v. City of Helena (Mont., Regulation of rates, sec City of 1906), 85 Pac. 744. Tampa v. Tampa Waterworks Co. '"Chittenden v. Wurster, 152 N. (Fla., 1903), 34 So. 631. Y. 345, 46 N. E. 857, 47 N. E. 273, ' Merchants' Police & Dist. Teleg. 37 L. R. A. 809, 29 Chic. Leg. N. 298, Co. V. Citizens' Teleph. Co., 29 Ky. 300, rev'g 43 N. Y. Supp. 1035, 77 L. Rep. 512, 93 S. W. 642. N. Y. St. R. 1035. 14 App. Div. 483. " Harris v. Kill, H)S III. App. 305. ;u § 227 CONSTITUTIONAL LAW — INTERPRETATION held before it can go into full force and effect ; ^^ nor where it relates to foreign corporations having a known place of business in the State and also an authorized agent; ^^ nor where it re- quires that the legislature shall prescribe regulations and pen- alties ; ^'* nor where it gives a railroad company the right to intersect, connect with, or cross any other railroad, at least so in the sense that its charter powers cannot be ignored; ^^ nor where it prohibits discrimination by railroads, also monop- olies,. and combinations, but provides that the legislature shall enforce such provisions by laws; ^^ nor where in addition to a provision as to stockholder's individual liability as security for dues from a corporation, recourse is to be had to such other means as shall be provided by law; ^^ nor where the express requirement is that the legislature shall provide by law and prescribe regulations as to taxation; ^* nor where the mode or manner of taxation is to be that provided by law; ^^ nor where it specifies that the value of property for taxation is to be ascertained as provided by law ; ^^ nor where it requires that the legislature shall by general law exempt certain property from taxation; ^^ nor where a provision only specifies that power "may" be vested to assess and collect taxes.^^ 12 Blake v. Ada County Commrs. Chic. Leg. N. 167, 42 L. R. A. 804, (Idaho), 47 Pac. 734. 52 N. E. 346, 17 Nat. Corp. Rep. 644, " St. Louis A. R. Co. v. Fire Assoc, 10 Am. & Eng. Corp. Cas. (N. S.) 71, 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 68 Am. St. Rep. 194; Woodworth v. 83. Bowles, 61 Kan. 569, 60 Pac. 331. '* State V. Bradford (S. Dak.), 80 See Eau Claire Nat. Bank v. Benson, N. W. 143, aff'd 83 N. W. 47, citing 106 Wis. 624, 82 N. W. 604. numerous cases. '^ State Board of Tax Commrs. v. >5 Boca & L. R. Co. v. Sierra Holliday, 150 Ind. 216, 27 Ins. L. Valleys Ry. Co. (Cal. App.), 84 Pac. J. 97, 49 N. E. 14, 42 L. R. A. 298. See Denver & N. O. R. Co. v. 865. Atchison, Topeka & Santa Fe R. Co., " Mercur Gold Min. & Mill. Co. v. 15 Fed. 650, case is rev'd, Atchison, Spry, 16 Utah, 222, 52 Pac. 382. Topeka & Santa Fe R. Co. v. Denver ^^ McHenry v. Downer, 116 Cal. 20, & N. O. R. Co., 110 U. S. 667, 28 L. 47 Pac. 779, 6 Am. & Eng. Corp. Cas. ed. 291, 4 Sup. Ct. 185. (N. S.) 113, 45 L. R. A. 737. " Northwestern Warehouse Co. v. ^^ Engstad v. Grand Forks County, Oregon R. & Nav. Co., 32 Wash. 218, 10 N. Dak. 54, 84 N. W. 577. 73 Pac. 388. " State, Ross, v. Kelly, 45 S. C. 1' Bell V. Farwell, 176 111. 489, 31 457, 23 S. E. 281. 348 OR CONSTRUCTION OF STATUTES CHAPTER XVI. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF STATUTES. § 228. Constitutional Law — Inter- pretation or Construction of Statutes — Generally. 229. Judicial Authority and Duty § 242. to Determine Constitu- tional Questions. 230. Validity of Statutes— Gener- 243, ally. 231. Presumption That Legislative 244. enactment Constitutional 245. — Repugnancy Must Clearly Appear. 232. Same Subject — Exception to 246. or Qualification of Rule. 233. Conflicting Provisions— Vali- 247. dating Interpretation or Construction — Two Con- structions. 234. Partial Invalidity. 235. Same Subject — Instances. 236. Intent— Effect to Be Given to Every Part. 237. Plain and Manifest Intention. 238. Natural and Reasonable Ef- fect and Construction — 248. Ordinary or Popular Mean- 249. ing — Absurdity or Injus- tice. 239. Literal Meaning — Intention 250. and Letter of Statute. 240. General and Specific Words or 251. Clauses — General Legisla- tion. 252. 241. Construction of Special Words 253. and Clauses in fJrants of Franchises or Pri\'ileges to 254. Street Railway, Railroad, and Electric Light, etc., Companies. Construction as to Conflicting Railroad Grants — Undivid- ed Moiety. Matters incorporated by Ref- erence. Title of Statute. Same Subject Continued — Constitutional Require- ments. Title of Acts Which Amend, Revive or Repeal. Title to Statutes — Instances — Incorporation — Expro- priation — Railroads — Street Railroads — Bonds in Aid of Railroads — Lien on and Sale of Railroad — ■ Electrical Conductors — Fraudulent Elections in Corporations — Foreign Cor- porations. Punctuation. Order of Arrangement — Transposition — Alteration — Omissions — Reject ions. Construction of Proviso or Exception. Liberal Construction — Mean- ing Extended — Implication. Strict Construction. Common Law — Statutes in Derogation of. Public Grants of Franchises, 349 §§ 228, 229 CONSTITUTIONAL LAW — INTERPRETATION Privileges, etc. — Construe- phone, Canal, Water and tion Against Grantee. Turnpike Companies — § 255. Same Subject Continued — Ferry — Eminent Domain. Instances — Railroads — § 256. Same Subject — Instances Street Railroads — Subma- Continued — Public Land rine Railway — Gas, Tele- Grants — Railroad Aid. § 228. Constitutional Law — Interpretation or Construc- tion of Statutes— Generally. — The word "franchise" maybe used in its general sense so as to include franchises whether corporate or not, and may cover any special privilege having its source in the sovereign power. ^ But corporate privileges can only be held to be granted as against public rights when conferred in plain and explicit terms. ^ When the good faith of all parties is unquestionable, the courts will lean to that construction of a statute which will uphold a transaction as consummated, and this applies to transactions with a county which have resulted in the delivery of bonds of the county to a railroad company, such bonds having been issued in aid of the company and placed in escrow in the hands of a trustee who had adjudged that the conditions of delivery had been complied with and had delivered them to the company. In such case the company was held to have taken such a title that when a bond was transferred to a bona fide holder a re- covery could be had against the county even if the condition had, in fact, not been performed.^ § 229. Judicial Authority and Duty to Determine Con- stitutional Questions. — Whenever there exists a fair antag- onistic assertion of rights involving the validity of any legis- lative enactment. Federal or state, and the decision neces- sarily rests upon the power of the legislature to so enact, the court having jurisdiction in the matter must determine the > State V. Portage City Water Co., 26 Sup. Ct. 427, 50 L. ed. 801. See 107 Wis. 441, 83 N. W. 697 (a case of § 254, herein, as to construction construction of Wis. Stat., 1898, against grantee. § 3466, action for usurping, etc., ^ Provident Life & Trust Co. v. franchise). See § 9, herein. Mercer County, 170 U. S. 593, 42 2 Blair v. Chicago, 201 U. S. 400, L. ed. 1156, 18 Sup. Ct. 788. 350 OR CONSTRUCTION OF STATUTES § 229 constitutionality of the act.^ But unless a clear or absolute necessity exists for determining the question of the constitu- tionality of a statute, or the determination of such question is essential in order to properly dispose of the case it will not be considered by the court if any other clear ground exists upon which to base a decision.^ And the Supreme Court of the United States will not condemn state legislation as unconsti- tutional and void except at the suit of parties directly and certainly affected thereby.^ Thus, a state law will not be held unconstitutional in a suit coming from a state court at the instance of one whose constitutional rights are not invaded, * Chicago & Grand Trunk Ry. Co. V. Wellmann, 143 U. S. 339, 12 Sup. Ct. 400, 30 L. ed. 176. See Plumley V. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. ed. 223; Dodge v. Woolsey, 18 How. (59 U. S.) 331, 15 L. ed. 401; Cohens v. Virginia, 6 Wheat. (19 U. S.) 264, 5 L. ed. 257; Dartmouth College v. Woodward, 4 Wheat. (17 U. S.) 518, 4 L. ed. 629. Validity of statute is drawn in (}uestion when the power to enact it is fairly open to denial and is denied, but not otherwise. And on ques- tions of appeal a distinction exists between the power to enact and the judicial construction which does not question that power. Baltimore & Potomac Rd. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 837. 'Alabama: Hill v. Tarvor, 130 Ala. 592, 30 So. 499. Arkansas: Sturdivant v. Toilette (Ark.. 1907), 105 S. W. 1037. Georgia: Herring v. State, 114 Ga. 9(), 39 S. E. 866. Idaho: Mills Novelty Co. v. Dun- bar, 1 1 Idaho, 671, 83 Pac. 932; Jack V. Village of Grangevillc, 9 idalu). 291, 74 Pac. 969. Illinois: Jf)Iiet, City of, v. Alex- ander, 194 111. 457, 62 N. K. 861. Indiana: Weir v. State, 161 Ind. 435, 68 N. E. 1023; Hart v. Smith, 159 Ind. 182, 64 N. E. 661; First Nat. Bank v. Gregor, 157 Ind. 479, 62 N. E. 21. Louisiana: Succession of Bien- venu, 106 La. 595, 31 So. 193. Maine: See Weeks v. Smith, 81 Me. 538, 18 Atl. 325. Mississippi: Flora, Town of, v. American Express Co. (Miss., 1908), 45 So. 149; Hendricks v. State, 79 Miss. 368, 30 So. 708. Montana: State v. King, 28 Mont. 268, 72 Pac. 657. Nebraska: Green v. Doerwald, 69 Neb. 698, 96 N. W. 634; Morse v. City of Omaha, 67 Neb. 426, 93 N. W. 734. Nevada: State v. Curler, 26 Nev. 347, 67 Pac. 1075. Ohio: Collins v. Bingham, 22 Ohio ("ir. Ct. R. 533. South Carolina: State v. Jen- nings (S. C, 1908), 60 S. E. 967. The judiciary is a co-ordinate branch of the government and may declare a statute to be void as re- pugnant to the Constitution. Calder V. P.uli, 3 Dall. (3 U. S.) 386, 1 L. ed. (MS. "Chadwick v. Kelley, 187 U. S. 540, 47 L. ed. 293, 23 Sup. Ct. 175. 351 § 230 CONSTITUTIONAL LAW — INTERPRETATION because as against a class making no complaint it might be held unconstitutional.' § 230. Validity of Statutes— Generally. — A statute need not be contrary to an express constitutional provision in order to be held invalid; it is sufficient that the general purpose and scope of such provision inhibits it or renders it invalid.* So where there exists an irreconcilable repugnancy between the provisions of an enactment so that it cannot be enforced, it will be void.^ A statute may also be invalid for indefiniteness and uncertainty, as where it makes it unlawful for any corpo- ration to make or give any undue or unreasonable preference or advantage to any particular person or locality, or any par- ticular description of traffic in any respect whatever, in the transportation of a like kind of traffic, or to subject any par- ticular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or advantage.^" So a distinction is made between the effect of an act and its purpose, the former and not the latter being held to determine its validity." None of the pro- visions of a statute should, however, be regarded as unconsti- tutional where they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in the title. ^^ And a statute is not void for uncertainty where the powers granted thereunder ' The Winnebago (Iroquois Transp. Bolton, v. Albertson, 55 N. Y. 50; Co. V. DeLaney Forge & Iron Co.), People v. Morris, 13 Wend. (N. Y.) 205 U. S. 354, 51 L. ed. 27, 27 Sup. 325. Ct. — . * Hendricks, In re, 60 Kan. 796, ' State, Smyth, v. Moores, 55 Neb. 57 Pac. 965. 480, 41 L. R. A. 624, 76 N. W. 175, '« Commonwealth v. Louisville & citing Maynard v. Board of Can- Nashville R. Co., 20 Ky. L. Rep. 491, vassers, 84 Mich. 228, 11 L. R. A. 46 S. W. 700. 332, 47 N. W. 756; State v. Con- " Commonwealth, Cambria Coun- stantine, 42 Ohio St. 437, 51 Am. ty, v. Lloyd, 178 Pa. 308, 35 Atl. 816, Rep. 833; Cincinnati, Wilmington & aff'g 2 Pa. Super. Ct. 6, 38 W. N. C. Zanesville Rd. Co. v. Commissioners 290. of Clinton County, 1 Ohio St. 77; ^^ PhilHps v. Covington & Cin- Rathbone v. Wirth, 150 N. Y. 459, cinnati Bridge Co., 2 Mete. (59 Ky.) 45 N. E. 15, 34 L. R. A. 408; People, 219, 222. 352 OR CONSTRUCTION OF STATUTES § 231 may be clearly defined by reference to other laws.^^ Statutes have frequently been passed directing suits for specific objects to be brought by an attorney general, and regulating the pro- ceedings in them, such as quo warranto, or a bill in equity against a corporation to test its right to the exercise of its franchises, or to declare them forfeited, or, if insolvent, to wind up its business and distribute its assets; and the validity of such statutes has uniformly been recognized. ^^ §231. Presumption That Legislative Enactment Consti- tutional — Repugnancy Must Clearly Appear. — Every legisla- tive enactment will be presumed to be constitutional and valid unless its repugnancy to the Constitution is so clearly apparent that it cannot stand. Every reasonable intendment is in favor of such validity, ^^ and in certain cases the rule is '3 Land, Log & Lumber Co. v. 40 So. 205; Zeigler v. South. & N. A. Brown, 73 Wis. 294, 40 N. W. 482, R. Co., 58 Ala. 594. 3 L. R. A. 472. Arkansas: Stillwell v. Jackson, 77 >* United States v. Union Pac. R. Ark. 250, 93 S. W. 71. Co., 98 U. S. 569, 25 L. ed. 143. California: Stockton & V. R. R. '5 United States: Buttfield v. Co. v. City of Stockton, 41 Cal. 147. Stranahan, 192 U. S. 470, 24 Sup. Ct. Colorado: Prudential Ins. Co. v. "340, 48 L. ed. 252; Reid v. Colorado, Hummer, 36 Colo. 208, 84 Pac. 61. 187 U. S. 137, 47 L. ed. 108, 23 Connecticut: State v. Carroll, 38 Sup. Ct. 92, case affirms 29 Colo. 333, Conn. 449, 9 Am. Rep. 400; Hart- 68 Pac. 228; Fairbank v. United ford Bridge Co. v. Union Ferry Co., States, 181 U. S. 283, 21 Sup. Ct. 648, 29 Conn. 210. 45 L. ed. 862; Nicol v. Ames, 173 Delaware: Bailey v. Philadelphia, U. S. 509, 43 L. ed. 786, 19 Sup. Ct. W. & B. R. Co., 4 liar. (Del.) 389, 522; Brown v. Maryland, 12 Wheat. 44 Am. Dec. 593. (25 U. S.) 419, 6 L. ed. 678; Fletcher Florida: Ilolton v. State, 28 Fla. V. Peck, 6 Cranch (10 U. S.), 87, 3 303, 9 So. 716. L. ed. 162; Logan & Bryan v. Postal Georgia: Griggs v. State (Ga. Teleg. & Cable Co., 157 Fed. 570; App., 1908), 60 S. E. 364; Park v. Southern Pac. R. Co. v. Orton, 32 Candler, 113 Ga. 647, 39 S. E. 89; Fed. 457, 472, 473, per Sawyer, J.; Ivey v. State, 112 Ga. 175, 37 S. E. Farmers' Loan & Trust Co. v. Stone 398; Howell v. State, 71 Ga. 224, 51 (C. C), 20 Fed. 270. Am. Rep. 259; Botson v. Cummins, Alabama: State v. Skeggs (Ala., 16 Ga. 102, 60 Am. Dec. 717; Flint 1908), 46 So. 268; Jackson v. Bir- River Steamboat Co. v. Foster, 5 Ga. mingham Foundry & Mach. Co. (Ala., 194, 48 Am. Dec. 248. 1908), 45 So. 660; Mobile Dry Docks Illinois: People v. Rose, 203 111. 46, Co. V. City of Mobile, 146 Ala. 198, 67 N. E. 746; Chicago Union Traction 23 353 §231 CONSTITUTIONAL LAW — INTERPRETATION extended to the exclusion of reasonable doubt; ^^ and the whole burden of proof lies on him who denies the constitutionality Co. V. City of Chicago, 199 111. 484, 65 N. E. 451, 59 L. R. A. 631; Haw- thorne V. People, 109 111. 302, 50 Am. Rep. 610. Indiana: Kraus v. Lehman (Ind., 1908), 83 N. E. 714, aff'g 80 N. E. 550; State v. Denny, 118 Ind. 388, 21 N. E. 252; Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698. Iowa: McGuire v. Chicago, Bur- lington & Quincy Rd. Co., 131 Iowa, 340, 108 N. W. 902; McCormick v. Rush, 15 Iowa, 127, 83 Am. Dec. 401. Kansas: State v. Barrett, 27 Kan. 213; Leavenworth v. Miller, 7 Kan. 298. Kentucky: Commonwealth v. Barney, 24 Ky. L. Rep. 2352, 74 S. W. 181; Millay v. White, 86 Ky. 170, 5 S. W. 429; McReynolds v. Smallhouse, 8 Bush (71 Ky.), 447; Louisville, City of, v. Hyatt, 2 B. Mon. (41 Ky.) 77, 178, 36 Am. Dec. 594. Louisiana: Grinage v. Times Dem- ocrat Pub. Co., 107 La. 121, 31 So. 682; Police Jury v. McDonough 8 La. Ann. 341; Hyde v. Planters' Bank, 8 Rob. (La.) 416. Maine: Williamson v. Carlton, 51 Me. 449. Maryland: Fell v. Maryland, 42 Md. 71, 20 Am. Rep. 83; Temmick V. Owings, 70 Md. 246, 19 Md. L. J. 981, 16 Atl. 719; Harrison v. State, 22 Md. 468, 85 Am. Dec. 658. Massachusetts : Commonwealth V. People's Five Cent Sav. Bank, 5 Allen (87 Mass.), 432; Dearborn v. Ames, 8 Gray (74 Mass.), 1. Michigan: Attorney General v. Preston, 56 Mich. 177, 22 N. W. 261; Inkster v. Carver, 16 Mich. 484. Missouri: State, Judah, v. Fort (Mo., 1908), 109 S. W. 737; Wells v. Missouri Pac. R. Co., 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 847; State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125. Montana: Spratt v. Helena Power Trans. Co. (Mont., 1908), 94 Pac. 63. Nebraska: State v. Nolan, 71 Neb. 136, 98 N. W. 657; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922; State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413; Gumming v. Hyatt, 54 Neb. 635, 74 N. W. 411. Nevada: Boyce, Ex parte, 27 Nev. 299, 75 Pac. 1; State v. Hum- boldt County Commissioners, 21 Nev. . 235, 29 Pac. 974. New Hampshire: Orr v. Quimby, 54 N. H. 590, 601; Rich v. Flanders, 39 N. H. 304. New Jersey: Atlantic City Water- works Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581; Olden V. Hallet, 5 N. J. L. 466. New York: Sugden v. Partridge, 174 N. Y. 87, 66 N. E. 655, rev'g 80 N. Y. Supp. 1149, 78 App. Div. 644; People V. West, 106 N. Y. 2D3, 12 N. E. 610, 60 Am. Rep. 452; People ''United States: Nicol v. Ames, Missouri: State, Judah, v. Fort 173 U. S. 509, 43 L. ed. 786, 19 (Mo., 1908), 109 S. W. 737. Sup. Ct. 522 (applied to act of Con- gress). New York: People v. Reardon, 97 N. Y. Supp. 535, 110 App. Div. 821, Indiana: Kraus v. Lehman (Ind., aff'd 184 N. Y. 431, 77 N. E. 970. 1908), 83 N. E. 714, aff'g 80 N. E. 550. 354 South Dakota: Morrow v. Wipf (S. Dak., 1908), 115 N. W. 1121. OR CONSTRUCTION OF STATUTES § 231 of the law; ^^ nor will it be declared void until it is clearly- shown that under no state of facts can it be upheld/^ or that there is a clear usurpation of power. ^^ And where a statute V. Reardon, 97 N. Y. Supp. 535, 110 App. Div. 821, aff'd 184 N. Y. 431, 77 N. E. 970; Lexington Ave., In re, 63 How. Prac. (N. Y.) 462; People v. New York Cent. R. Co., 34 Barb. (N. Y.) 123. North Carolina: Malloy v. Fay- ettsville, 122 N. C. 480, 29 S. E. 880; McGwigan v. Wilmington & W. R. Co., 95 N. C. 428. Ohio: State v. Jones, 51 Ohio St. 492, 37 N. E. 945; Bronson v. Ober- lin, 41 Ohio St. 476, 52 Am. Rep. 90. Oregon: Crowley v. State, 11 Oreg. 512, 6 Pac. 70. Pennsylvania: Commonwealth, Cambria County, v. Lloyd, 178 Pa. 308, 35 Atl. 816, aiT'g 2 Pa. Super. Ct. 61, 38 W. N. C. 290; Pennsylvania R. Co. V. Riblet, 66 Pa. 164; Com- monwealth V. Erie Ry. Co., 62 Pa. 286, 1 Am. Rep. 399; Erie & North- East Rd. V. Casey, 26 Pa. 287; Com- monwealth V. Mentz, 19 Pa. Super. Ct. 283. South CaroUna: Feldman v. Charleston, 23 S. C. 57, 55 Am. Rep. 6; Lynch, Ex parte, 16 S. C. 32. South Dakota: Fremont, Elk- horn Grenada County Supervisors v. Brogden, 112 U. S. 261, 28 L. ed. 704, 5 Sup. Ct. 125. "^ United States: Chapman, In re, 166 U. S. 661, 17 Sup. Ct. 677, 41 L. OR CONSTRUCTION OF STATUTES § 239 § 239. Literal Meaning — Intention and Letter of Stat- ute. — A statute is to be interpreted not only by its exact words, but also by its apparent general purpose. ^^ While the primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used,®^ and although the cases are few and exceptional' in which the letter of the statute is not deemed controlling, and only arise when there are cogent reasons for believing that the letter does not fully justify and accurately disclose the intent,'^'^ still the court will restrain the meaning of an enactment within narrower limits than its words import if satisfied that the Hteral meaning of its language would extend to cases which the legislature never designed to embrace in it; ^^ and where it is perfectly evident by the whole tenor of a statute and other acts in pari materia that the legislature could not have intended the consequences of a literal construction of the language, such literal construction will not be folio wed. "^^ Again, every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of ed. 1154; Gates v. National Bank, West Virginia: Old Dominion 100 U. S. 239, 25 L. ed. 580. Bldg. & Loan Assoc, v. Sohn, 54 W. Colorado: Murray v. Hobson, 10 Va. 101, 46 S. E. 222. Colo. 66, 13 Pac. 921. " United States v. Saunders, 22 Illinois: Chudnovski v. Eckels, Wall. (89 U. S.) 492, 22 L. ed. 736. 232 111. 312, 83 N. E. 846; People, " United States v. Goldenberg, Keeney, v. Chicago, 152 111. 546, 38 168 U. S. 95, 18 Sup. Ct. 3, 42 L. ed. N. E. 744; Wabash, St. Louis & Pa- 394; Wilkinson v. Leland, 2 Pet. (27 cific Ry. Co. v. Binkert, 106 111. 298, U. S.) 627, 7 L. ed. 542. See § 236. 306, per Shelden, J.; Union County herein. Board v. Short, 77 111. App. 448. "* United States v. Goldenberg, Indiana: Haggerty v. Wagner, 168 U. S. 95, 18 Sup. Ct. 3, 42 L. ed. 148 Ind. 625, 48 N. E. 366, 39 L. R. 394. A. 384; Indianapolis v. Huegele, 115 " McKee v. United States, 164 U, Ind. 581, 18 N. E. 172; Hunt v. Lake S. 287, 17 Sup. Ct. 92, 41 L. ed. 437; Shore & M. S. R. Co., 112 Ind. 69, 13 Brewer v. Blougher, 14 Pet. (39 U. N. E. 176. S.) 178, 10 L. ed. 408. Kentucky: Sams v. Sams, 85 Ky. "'Pool v. Simmons, 134 Cal. 621, 396, 3 S. W. 503; Bailey v. Common- 66 Pac. 872 (a case of construction wealth, 11 Bush (74 Ky.), 688. of certain statutes as to ferry fran- Nebraska: Logan, County of, v. chise and sale to highest bidder; Carnahan (Neb., 1903), 95N. W. 812. river between two counties). 367 239 CONSTITUTIONAL LAW — INTERPRETATION the legislature; ^^ and such legislative intent, when clearly expressed, should not be defeated by a too rigid adherence to the mere letter of the statute,''* for the intention of the lawmaking power will prevail even against the letter of the statute; a thing may be within the letter of the statute and not within its meaning, and within its meaning though not within its letter.^^ So the letter of the statute is not to be " Wilkinson v. Leland, 2 Pet. (27 U. S.) 627, 7 L. ed. 542. 88 Gates V. National Bank, 100 U. S. 239, 25 L. ed. 580. '" United States : Hawaii v. Man- kichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. 787. Alabama: Napier v. Foster, 80 Ala. 379. Arkansas: Wilson v. Briscoe, 6 Eng. (11 Ark.) 44. Georgia: Erwin v. Moore, 15 Ga. 361. Idaho: Chandler v. Lee, 1 Idaho, 349. Illinois : Chudnovski v. Eckels, 232 111. 312, 83 N. E. 846 (different intent prevails over ordinary meaning); Springfield v. Greene, 120 111. 269, 11 N. E. 261 (intent in which word used controls its strict primary sig- nification); Wabash, St. Louis & Pa- cific Ry. Co. V. Binkert, 106 111. 298. Kentucky: Bailey v. Common- wealth, 11 Bush (74 Ky.), 688. Louisiana: Ardry v. Ardry, 16 La. 264. Maine: Gray v. Cumberland County Commrs., 83 Me. 429, 22 Atl. 376 (intent not to be defeated by ad- hering strictly to letter). Maryland: Hooper v. Creager, 84 Md. 358, 36 Atl. 359, 35 L. R. A. 210, s. c, 84 Md. 195, 35 Atl. 967, 1103, 35 L. R. A. 202 (intention should govern though contrary to letter). Massachusetts: Staniels v. Ray- mond, 4 Cush. (58 Mass.) 314, 316. 368 Mississippi: Ingraham v. Speed, 30 Miss. 410. Missouri: Kane v. Kansas City, Ft. Smith & Memphis Ry. Co., 112 Mo. 34. Nebraska: State v. Drexel (Neb., 1906), 106 N. W. 791 (intent controls literal sense of words). New Jersey: Associates of The Jersey Co. v. Davison, 29 N. J, L. 415, 424. New York : Salisbury, In re, 44 N. Y. Supp. 291, 19 Misc. 340. A constitution is as effectually violated by an act contravening its spirit and intent as by an act con- travening its letter. State, Saunders, v. Kohnke, 109 La. 838, 33 So. 793. But while the spirit is to be respected no less than the letter, the spirit is to be collected chiefly from the words used. Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. 358. Language of statute controls in- tent. Richmond v. Henries County, 83 Va. 204, 2 S. E. 26. Intent prevails over letter where latter would defeat former. Vermont Loan & Trust Co. v. Whithed, 2 N. D. 82, 49 N. W. 318. Matters within words may be not within intent and so be without pur- view of statute. Condon v. Mutual Reserve Fund, 89 Md. 99, 31 Chic. Leg. N. 273, 42 Atl. 944, 44 L. R. A. 149. A thing within the intention is as OR CONSTRUCTION OF STATUTES § 240 followed when it materially conflicts with or tends to defeat its general purpose and innovate upon the manifest policy of the law; ^" nor where it is clearly apparent that the applica- tion of the letter is so unreasonable that the result following could not have been intended ; ^^ and the intent prevails over the literal meaning of words and the strict letter of law where the ordinary signification would, if given by interpretation, lead to absurd consequences/^ § 240. General and Specific Words or Clauses — General Legislation. — It is a well-settled principle of construction that specific terms covering a given subject-matter will prevail over general language of the same or another statute which might otherwise prove controlling/^ And where the language of an enacting clause is general and followed by a provision by which it is restricted, such restriction will be strictly construed and limited in its application to objects reasonably within its terms/"* When general words follow particular words the things mentioned generally must be confined to the matters incorporated in the particular words: that is, all things that may be contained in the general words must be ejusdem gen- much within the statute as if it were Dominion Building & Loan Assoc, within the letter; and a thing within v. Sohn, 54 W. Va. 101, 46 S. E. 222. the letter is not within the statute if See § 238, herein, contrary to the intention of it. '^ Kepner v. United States, 195 People V. Utica Ins. Co., 15 Johns. U. S. 100, 24 Sup. Ct. 797, 49 L. ed. (N. Y.) 357, 8 Am. Dec. 243. 114; State v. Taylor, 7 S. Dak. 533, Evident verbal inaccuracy raises 64 N. W. 548. See Cantrell v. no difficulty of interpretation. Each Seaverns, 168 111. 165, 30 Chic. Leg. section means what the whole act N. 89, 48 N. E. 186, aff'g 64 111. App. taken together shows the legislature 273; Commonwealth v. Connecticut understood it meant. Sargent v. Valley St. Rd. Co. (Mass., 1907), 82 Union School District, 63 N. H. 528. N. E. 19. '" Webb v. Ritter, 60 W. Va. 193, Particular intention is exception 207, 54 S. E. 484. and prevails over general intention " Napier v. Foster, 80 Ala. 379. when inconsistent. Jackson v. Kittle " Wabash, St. Louis & Pacific Ry. 34 W. Va. 207, 12 S. E. 484. Co. v. Binkert, 106 111. 298, 306, per '< Southern Bell Teleph. & Teleg. Shelden, J.; Indianapolis v. Huegele, Co. v. D'Alcmberte, 39 Fla. 25, 21 115 Ind. 581, 18 N. E. 172; Sams v. So. 570. Sams, 85 Ky. 396, 3 S. W. 593; Old 24 369 § 240 CONSTITUTIONAL LAW — INTERPRETATION ens — of the same kind or class of those particularly mentioned. In addition to this general rule there is also a further restric- tion upon general words which follow particulars by which general words will not be held to include anything which is of a class superior to the class mentioned in the particular words. This rule or principle of construction is well established. The doctrine of ejusdem generis is, however, only a rule of con- struction, and, like all rules, is resorted to only as an aid to the courts in ascertaining the true intent of the lawgiver, and cannot override the fundamental principle that all words contained in a statute must, if possible, be given their ordi- nary meaning, and that the intention must be gathered from the language employed in the light of the context and of the subject-matter to which it is applied, and when such intention is clear it must prevail, notwithstanding the operation of other rules which would lead to a different conclusion or one adverse to the intention, but the ordinary meaning of words should, however, be so restricted or expanded so as not to lead to an absurdity or inflict a great injustice.'^ Again, in cases of doubt, the general state legislation relating to the subject- matter is to control in preference to a particular expression, term or word used in a statute. ^^ Where street railroad com- panies are obligated by statute to furnish pupils of ''public schools" transportation at reduced rates, and the enactment is amended by the insertion of the words "or private" after the word "public," the word "private" is held to be limited to such institutions as were ejusdem generis with the public schools previously specified, and that a private business college did not come within the provision/^ If water is supplied to a city under contract, a special statutory provision authorizing the levy of a tax to pay therefor, will be given precedence over a general provision for levying any other tax or special assess- " Nephi Plaster & Mfg. Co. v. App. 403, 11 Am. & Eng. R. Cas. Juab County (Utah, 1907), 93 Pac. (N. S.) 771. 53, 56, per Frick, J. " Commonwealth v. Connecticut " Massachusetts Loan & T. Co. Valley St. Ry. Co. (Mass., 1907), 82 V. Hamilton, 88 Fed. 588, 59 U. S. N. E. 19. 370 OR CONSTRUCTION OF STATUTES § 241 merit 7* And a general clause inserted after a specific precise clause of authority to use city streets, confers no additional authority/^ §241. Construction of Special Words and Clauses in Grants of Franchises or Privileges to Street Railway, Rail- road and Electric Light, etc., Companies. — The words "other street railways" in a statute concerning franchises and the designation of routes for "any elevated, underground or other street railway on, over or under any street" extends to surface street railways.*" The word "track" does not operate to limit the right to lay one track only where the words "track or tracks" are used in other parts of the same ordinance.*^ The term "plant" in a charter of an electric light, heat and power company includes poles and wires.*^ "Railroad," in its ordinary acceptation and enlarged sense, includes all structures which are necessary and essential to its operation.*^ "Other appliances," in an ordinance authorizing the construction of a street railroad, will cover any existing or improved devices or appliances of a like kind with those mentioned and necessary or proper for the purpose of running, moving or turning cars, but will not include a mere transfer-house erected on the street surface for shelter and to facilitate transfers.*^ In the construc- tion for land grant acts in aid to railroads, "granted lands" are those falling within the limits specially designated, the title to which attaches as of the date of the act of Congress, when the lands are located by an approved or accepted survey of the line of the road filed in the Land Department: but "in- demnity lands" are lands selected in lieu of parcels lost by previous disposition or reservation for other purposes, the " State, City Water Co., V. Kearney, "Brown v. Gerald, 100 Me. 351, 49 Neb. 325, 68 N. W. 533, aff'g 49 70 L. R. A. 472, 61 Atl. 785. Neb. 337, 70 N. W. 255. " United States v. Denver & Rio '» Chicago, D. & V. R. Co. v. Chi- Grand R. Co., 150 U. S. 1, 37 L. ed. cago, 121 111. 176, 11 N. E. 907. 975, 14 Sup. Ct. 11. *« Ruckert v. Grand Ave. Ry. Co., " Hamilton & L. E. T. Co. v. Ham- 163 Mo. 260, 63 S. W. 814. ilton, 1 Ohio N. P. 366. "' Workman v. Southern Pac. R. Co., 129 Cal. 536. 62 Pac. 185. 371 § 241 CONSTITUTIONAL LAW — INTERPRETATION title to which accrues only from the time of their selection.^^ Where a statute provides that a railroad company shall "for its government be entitled to all the powers and privileges, and be subject to all the restrictions and' liabilities imposed" upon another railroad company, the words "for its govern- ment" are held to imply for its regulation and control.**^ If a statute authorizes the construction of a telegraph line along "any railroad" in such a manner as not to incommode the public use thereof, such railroad right of way may be acquired by the telegraph company by condemnation 5 But the right to condemn a railroad right of way is not conferred by a stat- ute authorizing the construction and maintenance of telegraph lines ''along and parallel" to railroads, and which provides for contracts for said right of way and for the mode of com- pensation in case of disagreement.^^ "Public use," in an emi- nent domain statute, includes the use of land for the purpose of a telegraph line.*'' Electric railways may be permitted to maintain their lines in highways under a statute authorizing a like permission to be granted by cities to "horse and steam railroads." ^° A franchise subject to the paramount control of the streets by a city, is only granted by a statute authoriz- ing corporations to transact "any business in which electricity over or through wires may be applied to any useful purpose;" so that the municipality may refuse a permit to lay under- «5 Barney v. Winona & St. Peter 14 N. E. 803, 4 Am. Elec. Cas. 225. Rd. Co., 117 U. S. 228, 29 L. ed. 858, See s. c. 87 Va. 349. 6 Sup. Ct. 654, explaining Winona & «» New Orleans, Mobile & T. R. Co. St. Peter Rd. Co. v. Barney, 113 v. Southern & Atl. Teleg. Co., 53 Atl. U. S. 618, 5 Sup. Ct. 606, 28 L. ed. 211, 1 Am. Elec. Cas. 190. 1109. As to construction of words "tak- '* Tennessee v. Whitworth, 117 U. ing"and " taken " under act entitled: S. 139, 6 Sup. Ct. 649, 29 L. ed. " An act to provide for the expropria- 833. tion of lands for railroads and other " St. Louis & C. R. Co. V. Postal works of public utility," see Amet v. Teleg. Co., 173 111. 508, 51 N. E. 382, Texas & Pacific Ry. Co., 117 La. 454, distinguishing Postal Teleg. Cable 41 So. 721. Co. V. Norfolk & Western R. Co., 88 »» Buckner v. Hart, 52 Fed. 835, Va. 920, 14 S. E. 803. aff'd 54 Fed. 925. See Blair v. City »« Postal Teleg. Cable Co. v. Nor- of Chicago, 201 U. S. 400, 26 Sup. folk & Western R. Co., 88 Va. 920, Ct. 427, 50 L. ed. 801. 372 OR CONSTRUCTION OF STATUTES §§ 242, 243 ground conduits.®^ An ordinance which imposes a charge upon telephone poles as a "consideration for the privilege" of using the streets, is not a tax either on property or as a license.^^ In the Chicago street railway cases the principle was applied that corporate privileges can only be held to be granted as against public rights, when conferred in plain and expHcit terms, and an ambiguous phrase, "during the life hereof," in the statute there under consideration, was held not to operate to extend existing contracts for the term of ninety-nine years or to limit the right of the city to make future contracts with the companies covering shorter periods .^^ § 242. Construction as to Conflicting Railroad Grants — Undivided Moiety. — The settled rule of construction is that where by the same act, or by acts of the same date, grants of land are made to two separate companies, in so far as the limits of their grants conflict by crossing or lapping, each company takes an equal undivided moiety of the lands within the conflict, and neither acquires all by priority or location or construction.^'* § 243. Matters Incorporated by Reference. — Requirements contained in another statute or document may be incorporated in a charter by generic or specific reference and, if clearly identified, the charter has the same effect as if it itself contained the restrictive words, and the question of the constitutionality of the statute referred to is immaterial .^^ A code provision which is not a part of the public law of the State at the time a charter or franchise is granted does not enter into and consti- tute a part of the contract of the State with such corporation.*^^ " Edison Elect. Ilium. Co. of B. v. '* Southern Pac. R. Co. v. United Hooper, 85 Md. 110, 36 Atl. 113, 6 States, 183 U. S. 519, 46 L. ed. 307, Am. Elec. Cas. 8. 22 Sup. Ct. 154. °^ New Orleans v. Great Southern "'^ Interstate Consolidated Street Teleph. & Teleg. Co., 40 La. Ann. Ry. Co. v. Commonwealth of Mass- 41, 3 So. 533, 8 Am. St. Rep. 502, 2 achusetts, 207 U. S. 79, aff'g 187 Am. Elec. Cas. 122. Mass. 436. " Blair v. Chicago (1905), 201 U. "" Central Rd. & Banking Co. v. S. 400, 50 L. ed. 801, 20 Sup. Ct. 427. State of Georgia, 54 Ga. 401. 373 § 244 CONSTITUTIONAL LAW — INTERPRETATION But a city ordinance becomes a part of a charter of a corpo- ration where it is subject to such ordinance under the stat- ute of incorporation.^^ And a reference to a plat will operate to embody it in a grant of a right to a railroad to construct its line in a certain street according to such plat.*** So an ordinance will be construed in accordance with a plat filed, where such plat is referred to as the basis of construction of a switch from a street railway track to a warehouse under a grant of a franchise thereof. ^^ If the time for the construc- tion of a certain railroad is extended, a reference in the statute to its act of incorporation as of a certain date or year, though stated incorrectly, will refer to its original charter where there is but one act in that year which relates to such corporation.^ § 244. Title of Statute.— The title is no part of a statute,^ and it cannot be used to control, extend or restrain the positive provisions or plain and express words in the body of tne act or the obvious meaning of the statute itself, for where the intent is plain nothing is left to construction. In cases, how- ever, of doubt and ambiguity resort may be had to the title as an aid to construction.^ «' Philadelphia v. Ridge Ave. Pass. 5 Wall. (72 U. S.) 107, 18 L. ed. 518; R. Co., 143 Pa. 444, 48 Phila. Leg. Postmaster General v. Early, 12 Int. 414, 28 W. N. C. 388, 22 Atl. Wheat. (25 U. S.) 136, 6 L. ed. 577; 695. United States v. Union Pacific R. 98 Murray Hill Land Co. v. Mil- Co., 37 Fed. 551, 2 Denver Leg. N. waukee Light, Heat & Traction Co., 83. 110 Wis. 555, 86 N. W. 199. Illinois: South Park Commis- "9 Dulaney v. United Rys. & Elec- sioners v. First Nat. Bank, 177 111. trie Co., 104 Md. 423, 65 Atl. 45. 234, 52 N. E. 365, 31 Chic. Leg. N. ' Lowell V. Washington County 166. Rd. Co., 90 Me. 80, 37 Atl. 869, 9 Am. Indiana: Rushville v. Rushville & Eng. R. Cas. (N. S.) 115. National Gas Co., 132 Ind. 575, 15 2 Patterson v. Bark Eudora, 190 L. R. A. 321, 28 N. E. 853. U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Michigan: Stevens v. Lake George 821. & M. R. Co., 82 Mich. 426, 46 N. W. 3 United States: Cornell v. Coyne, 730. 192 U. S. 418, 24 Sup. Ct. 383, Missouri: State, Judah, v. Fost 48 L. ed. 504; Patterson v. Bark (Mo., 1908), 109 S. W. 737 (title is Eudora, 190 U. S. 169, 47 L. ed. 1002, valuable aid in determining scope, 23 Sup. Ct. 821; Hadden v. Collector, etc., of statute). 374 OR CONSTRUCTION OF STATUTES § 245 § 245. Same Subject Continued — Constitutional Require- ments. — The object of a constitutional provision that no law shall embrace more than one subject, which shall be ex- New Jersey: See O'Hara v. National Biscuit Co., 69 N. J. L. 198, 5-4 Atl. 241. New York: Rosin v. Lidger- wood Mfg. Co., 86 N. Y. Supp. 49, 89 App. Div. 245. Oklahoma: Choctaw, O. & G. R. Co. V. Alexander, 7 Okla. 579, 52 Pac. 944, aff'd 7 Okla. 591, 54 Pac. 421. Pennsylvania: Commonwealth, Cambria County, v. Lloyd, 178 Pa. 308, 35 Atl. 816. South CaroUna: Garrick v. Florida, C. & P. R. Co., 53 S. C. 448, 31 S. E. 334, 13 Am. & Eng. R. Cas. (N. S.) 541. " While express provisions in the body of an act cannot be controlled or restrained by the title or pre- amble, the latter may be referred to when ascertaining the meaning of a statute which is susceptible of differ- ent constructions. In United States V. Fisher, 2 Cranch (6 U. S.), 358, 386, 2 L. ed. 304, Chief Justice Marshall said: 'neither party con- tends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to con- struction. When the mind labors to discover the design of the legislature it seizes everything from which aid can be derived; and in such case the ti- tle claims a degree of notice, and will have its due share of consideration.' United States v. Palmer, 3 Wheat. (16 U. S.) 610, 631, 4 L. ed. 471. This rule is especially applicable in States whose constitutions, * * * provide that 'every act or resolution, having the force of law, shall relate to but one subject, and that shall be expressed in the title.' Meyer v. Car Co., 102 U. S. 1, 11, 12, 26 L. ed. 59. So, in Beard v. Rowan, 9 Pet. (34 U. S.) 301, 317, 9 L. ed. 135. 'The preamble in the act may be resorted to, to aid in the construction of the enacting clause, when any ambiguity exists.' The ambiguity here referred to is not simply that arising from the meaning of particular words, but such as may arise, in respect to the general scope and meaning of a stat- ute, when all its provisions are ex- amined." Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 563, 36 L. ed. 537, 12 Sup. Ct. 689, per Harlan, J. (a case of construction of a grant conferring an exclusive min- ing right, franchise or privilege for a period of years). "Title of an act, especially in con- gressional legislation, furnishes httle aid in the construction of it, because the body of the act in so many cases, has no reference to the matter spec- ified in the title." United States v. Union Pacific Rd. Co., 91 U. S. 72, 82, 23 L. ed. 224, per Davis, J. (in considering the "act to aid in the construction of a railroad and tel- egraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other pur- popf's"). "Act to incorporate" — Status of foreign railroad corporation. It is hold that the Louisville and Nash- ville Railroad Company is a corpo- ration of Kentucky, and not of 375 § 245 CONSTITUTIONAL LAW— INTERPRETATION pressed in its title, is to prevent matters which sustain no re- lation to each other, but are incongruous, from being united ; ^ and the form in which the title of an act shall be expressed is a matter of legislative discretion, as such constitutional re- quirement is a matter merely of substance.^ So a title which fairly expresses the scope and purpose of the enactment is sufficient to make a law constitutional.*^ The language of the title should also be liberally construed under the above con- stitutional provision;' and the subject to be considered is that expressed in the title, but if it does not embrace the sub- ject of the provision or is not properly connected therewith such provision will not be sustained, although every reasonable doubt should be resolved in favor of validity.* A title to an enactment need not be and ought not to be a complete index to or an abstract of its contents ; ^ nor is it necessary that the Tennessee, having from the latter adopt one of another State, in such State only a license to construct a form as to establish the same rela- railroad within its limits, between tions in the law, between the latter certain points, and to exert there corporation and the State of Tennes- some of its corporate powers, see, as would exist in the case of one "Some stress is laid upon the title created by that State." Goodlett v, of that act," namely "an act to Louisville Rd., 122 U. S. 391, 408, incorporate the Louisville and Nash- 409, 30 L. ed. 1230, 7 Sup. Ct. 1254, ville Railroad Company," "as in- per Harlan, J. dicating a purpose to create a cor- * Baltimore & Ohio R. Co. v. poration, and not simply to recognize Jefferson County (C. C), 29 Fed. an existing one of another State, 305. Examine Knight, Ex parte and invest it with authority to exert (Fla. 1906), 41 So. 786. fimctions within the State of Tennes- ' Union Pac. Co. v. Sprague, 69 see. While the title of a statute Neb. 48, 95 N. W. 46. should not be entirely ignored in ' State, Wheeler, v. Stuht, 52 Neb. determining the legislative intent, 209, 71 N. W. 941. it cannot be used 'to extend or ' State v. Coffin (Idaho, 1903), 74 restrain any positive provisions con- Pac. 962. tained in the body of the act,' and ' Knight, Ex parte (Fla., 1906), 41 is of little weight even when the So. 736. meaning of such provisions is doubt- ° Commonwealth v. Broad St. ful. Hadden v. Collector, 5 Wall. Rapid Transit Co., 219 Pa. 11, 67 Atl. (72 U. S.) 107, 110, 18 L. ed. 518. 958. See also Skinner v. Garnett Looking, then, at the body of the Gold Mining Co., 96 Fed. 735. Tennessee act * * * we find no Rule applies to title of municipal language clearly evincing a purpose ordinance. Commonwealth v. La to create a new corporation, or to Bar (Pa.), 5 Lack. L. News, 229, 376 OR CONSTRUCTION OF STATUTES § 245 title set forth every purpose where the several objects of the enactment are connected with the chief object expressed, or are merely subdivisions of and referable to such expressed purpose.^'' Again, the above constitutional provision is satis- fied if the law has but one general object, and that is expressed in the title and the body of the act is germane to the title; " and when the title of a statute of a State clearly and distinctly expresses the whole object of the legislature in the enactment, and there is nothing in the body of the act which is not germane to what is there expressed, the act sufficiently complies with a requirement in the constitution of the State that no law "shall relate to more than one subject, and that shall be ex- pressed in the title," although some details in the execution of the purpose of the legislature may not be expressed in the title. ^^ The generality of the title of a state statute does not invalidate it under a provision of the constitution of the State that private and local laws shall only embrace one subject, which shall be expressed in the title, so long as the title is com- prehensive enough to reasonably include within the general subject or the subordinate branches thereof, the several ob- jects which the statute seeks to effect, and does not cover legislation incongruous in itself and which by no fair intend- ment can be included as having any necessary and proper connection. ^^ If a statute contain two objects, only one of which is mentioned in the title, the entire act is not unconsti- tutional, but only that part not provided for in the title. ^"^ Examine City of Topeka v. Raynor, sufficient. Dallas v. Redman, 10 61 Kan. 10, 58 Pac. 557. Colo. 297, 15 Pac. 397. >" Baltimore & Ohio Rd. Co. v. Jef- '^ Carter County v. Sinton, 120 U. ferson County (C. C), 29 Fed. 305; S. 517, 30 L. ed. 701, 7 Sup. Ct. 650. Excelsior Planting & Mfg. Co. v. '^ Blair v. Chicago, 201 U. S. 400, Green, 39 La. Ann. 455, 1 So. 873. 26 Sup. Ct. 427, 50 L. ed. 801, rev'g "Mahomet v. Quackenbush, 117 132 Fed. 848, citing Montclair v. U. S. 508, 29 L. ed. 982, 6 Sup. Ct. Ramsdell, 107 U. S. 147, 27 L. ed. 858. See also Skinner v. Garnett 431, 2 Sup. Ct. 311. Gold Mining Co., 90 Fed. 735. '* State, Saunders, v. Kohnko, 109 If by reasonable construction the La. 838, 33 So. 793. See Hickman subject-matter of an act is fairly v. State (N. J., 1899), 44 Atl. 1099, germane to the expressed title it is aff'g 62 N. J. L. 499, 41 Atl. 942; 377 §245 CONSTITUTION A L LA W — INTERPRETATION It is held that courts cannot ignore a plain mandatory provision of the constitution as to the titles of acts/^ and that such Golden Star Fraternity v. Martin, 59 N. J. L. 207, 35 Atl. 908; St. Louis Southwestern Ry. Co. v. Gentry (Tex. Civ. App., 1906), 95 S. W. 74. As to sufficiency of title and con- stitutionality of statute thereunder, examine the following decisions: United States : City of Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 46 L. ed. 392, 22 Sup. Ct. 410 (entitled: " An act to provide for the formation of street railways; em- braces provisions of act, making it applicable to like corporations or- ganized and in existence); United States V. Trans-Missouri Freight Assoc, 166 U. S. 290, 327, 41 L. ed. 1007, 17 Sup. Ct. 540 (resort to title in this case declared to create no doubt. A case of monopolies " pool- ing contracts," between corpora- tions); Holy Trinity Church v. United States, 143 U. S. 451, 36 L. ed. 226, 12 Sup. Ct. 511, 45 Alb. L. J. 372; San Antonio v. Mehaffey, 96 U. S. 312, 24 L. ed. 816, 18 Sup. Ct. 423 (an act entitled; "An act to incorporate the San Antonio Railway Company, " which authorizes the city of San Antonio to subscribe for the stock of said company, and issue bonds to pay for the same is not repugnant to state constitutional provision requiring that " every law enacted by the legis- lature shall contain but one object and that shall be expressed in the title"); Montgomery Amusement Co. V. Montgomery Traction Co. (C. C), 139 Fed. 353, aff'd Montgomery Traction Co. v. Montgomery Amuse- ment Co., 140 Fed. 988, 72 C. C. A. 682 (title to act amending code not defective as violating constitution, providing what the style of law of the State should be; such provision of the constitution is mandatory); Crowther v. Fidelity Ins. T. & S. D. Co. (C. C), 85 Fed. 41, 29 C. C. A. 1, 42 U. S. App. 701, 3 Va. Law Reg. 867 (liens against mining and manu- facturing companies not embraced in title and held unconstitutional); Brooks V. Roberts, 78 Fed. 411, 45 U. S. App. 395, 24 C. C. A. 158 (an act to authorize construction of dock and wharf embraces provisions granting right to individuals to erect and main- tain a dock and collect wharfage with title to certain benefits); Tabor V. Commercial National Bank, 62 Fed. 383, 10 C. C. A. 429 (provisions as to liability of directors for debts on failure to file reports embraced in title of act for formation of corpora- tions; act valid); State, Hunt, v. Il- linois Cent. R. Co. (C. C), 33 Fed. 721 (title "relating to a portion of " cer- tain submerged lands and statute dis- posing of fee in part to city and in part to a railroad company with right to wharfs; title sufficiently expresses subject). Alabama: Rayford V. Faulk (Ala., 1908), 45 So. 714 (act to regu- late business of insurance, embraces as cognate, provision permitting person to insure own life for benefit of estate and exempting proceeds from creditors; and act is valid); Mobile Dry Docks Co. v. City of Mobile, 146 Ala. 198, 40 So. 205 (act unconstitutional as embracing more than the subject); Mobile, City of, v. Louisville & k. R. Co., 124 Ala. 132, 26 So. 902 (an act to amend certain 15 Wade V. Atlantic Lumber Co. (Fla., 1906), 41 So. 72. 378 OR CONSTRUCTION OF STATUTES § 245 constitutional provisions as those which are considered under this section are mandatory. ^^ A statute which embraces more sections of an act to incorporate a certain railroad and to "add addi- tional sections thereto;" constitu- tional provision that act shall em- brace but one subject to be expressed in title violated added section con- ferring rights and powers on a city or village to grant railroads certain rights); Birmingham N. R. Co. v. Elyton Land Co., 114 Ala. 70, 21 So. 314 (constitution providing that no law shall be revived, amended or provisions extended by reference to title only; right of railroad com- panies to acquire real estate by gift, purchase or conmendation); Mont- gomery V. National Bldg. & Loan Assoc, 108 Ala. 336, 18 So. 816 (an act to regulate the business of build- ing and loan associations with sub- title as to state license fee; suffi- ciently expressed in title). California: Francais v. Somps, 92 Cal. 503, 28 Pac. 592 (requirement of itemized balance sheet from di- rectors covered by title of act to pro- tect stockholders in corporations for mining business; act valid). Colorado: Burton v. Snyder, 22 Colo. 173, 43 Pac. 1004 (an act re- lating to life and casualty insurance on the assessment plan; sufficiently expressed in title). Florida: Wade v. Atlantic Lum- ber Co. (Fla. 1906), 41 So. 72 (act containing land grant held not within title to incorporate a railroad company). Georgia: Central of Ga. R. Co. V. State, 104 G. 831, 31 S. E. 518, 42 L. R. A. 518 (constitutional provision limiting statute to one subject-matter expressed in title; not violated by statute approving an adopting code). Illinois: People v. People's Gas- light & Coke Co., 205 111. 482, 68 N. E. 950 (title relating to gas com- panies; act not invalid which author- izes consolidation and merger, as such authority is germane to general subject); Hutchinson v. Self, 153 111. 542, 39 N. E. 27 (provisions as to mimicipal subscriptions to stock, the issue of bonds and modes of exercising such power embraced in title of act to incorporate railroad company; act valid). Indiana: State v. Commercial Ins. Co., 158 Ind. 680, 64 N. E. 466 (entitled an act to require in- surance companies organized by special act to file annual reports; does not embrace matters not prop- erly connected therewith as re- quired by the constitution where the act requires the state auditor to ex- amine into details, etc., of business); Maule Coal Co. of Princeton v. Partenheimer (Ind., 1899), 55 N. E. 751 (held not unconstitutional, as title embraced only one general sub- ject sufficiently expressed; title re- lated to mines and regulation thereof, protection of employees and right of action for death. Act March 2, 1891, acts 1891, p. 57, Burns, Rev. St. 1894, §§7461 et seg.); Pittsburg, C. C. & St. Louis R. Co. V. Montgomery, 152 Ind. 1, 49 N. E. 582, 9 Am. & Eng. R. •• Weaver v. Lapsley, 43 Ala. 224; State V. Miller, 45 Mo. 495; State v. McCann, 4 Lea (72 Tcnn.), 1; State V. McCrackon, 42 Tex. 383. But compare Boston Min. & Milling Co., In re, 51 Cal. 624; Weil v. State, 46 Ohio St. 450, 21 N. E. 643. 379 §245 CONSTITUTIONAL LAW — INTERPRETATION than one subject which is enacted before a constitutional pro- hibition as to such acts is not within the prohibition." Cas. (N. S.) 792, 69 L. R. A. 875 (title as to regulating liability of rail- roads and other corporations to em- ployees for injury; embraces prohibi- tion of contracts releasing corpora- tions from liability, also provisions creating new liability); Central Union Teleph. Co. v. Fehring, 146 Ind. 189, 45 N. E. 64 (act regulating and prescribing duties of telegraph and telephone companies and providing for penalties; not unconstitutional). Iowa: Youngerman v. Murphy, 107 Iowa, 686, 76 N. W. 648 (con- stitutional requirement that tax and object be stated; not violated by act authorizing tax to be imposed for anticipated purchase or construction of waterworks). Kansas: Manley v. Mayer, 68 Kan. 377, 75 Pac. 550 (relating to dis- solution of corporations; act not un- constitutional as not within title). Kentucky: Conly v. Common- wealth, 98 Ky. 125, 17 Ky. L. Rep. 678, 32 S. W. 285 (title was cor- porations — Private — and art. en- titled railroads; statute constitu- tional; title not embracing more than one subject). Louisiana: Standard Cotton Seed Oil Co. V. Matheson, 48 La. Ann. 1321, 20 So. 713 (authorizing certain companies to become surety on bonds required to be furnished by law; title sufficient). Maryland: State v. Schultz Gas Fixture & A. M. Co., 83 Md. 58, 34 Atl. 243 (title relating to taxes on newly incorporated corporation; law unconstitutional). Michigan: Bird v. Amott (Mich., 1906), 108 N. W. 646, 13 Det. Leg. N. 531 (title held sufficiently broad to embrace a provision imposing tax on capital stock of corporations organized under act authorizing formation of corporations for water power purposes); Blades v. Board of Water Commrs. of City of De- troit, 122 Mich. 366, 81 N. W. 271 (act, including provision for changing system of supporting water works, held violative of constitu- tional provision that law shall not embrace more than one subject to be expressed in title); Burrows v. Delta Transp. Co., 106 Mich. 582, 29 L. R. A. 468, 2 Det. L. N. 503, 64 N. W. 501 (act to compel steam vessels to pro- vide fire screens and to provide pen- alty for violation; subject sufficiently expressed in title); Ripley v. Evans, 87 Mich. 217, 49 N. W. 504, 10 Ry. & Corp. L. J. 250, 36 Am. & Eng. Corp. Cas. 188 (act not unconstitutional as embracing more than one object in title where it provides for stock- holders' individual liability for corpo- rate debts for materials, and title is an act for organization of telephone companies); Fort St. Union Depot Co. V. Morton, 83 Mich. 265, 47 N. W. 228, 47 Am. & Eng. R. Cas. 41 (title sufficient to justify authority granted to acquire land by condem- nation). Minnesota: First National Bank V. How, 65 Minn. 187, 47 N. W. 994 (exemption from execution of life in- surance money paid by co-operative or assessment companies). Missouri: State v. Murlin, 137 Mo. 297, 38 S. W. 923 (regulating '' Choctaw, O. & G. R. Co. aff'd 7 Okla. 591, 54 Pac. 421. 380 V. Alexander, 7 Okla. 579, 52 Pac. 944, OR CONSTRUCTION OF STATUTES § 246 §246. Title of Acts Which Amend, Revive or Repeal. — The title to an amendatory act which contains provisions blasting in mines and keeping of ex- plosives; constitution not violated); Ward V. Gentry County Board of Equalization, 135 Mo. 309, 36 S. W. 648 (act entitled the assessment and collection of revenue; not unconsti- tutional as to requirement for of- ficers of banks to list shares for tax- ation, etc.)- Montana: State v. Bemheim, 19 Mont. 512, 49 Pac. 441 (title of act to regulate sales and redemption of transportation tickets of carriers; embraces a provision for penalties. Nebraska: West Point Water Power & L. I. Co. v. State, 49 Neb. 223, 68 N. W. 507, rev'g 49 Neb. 218, 66 N. W. 6 (subject not within title); State, Farmers' Mut. Ins. Co., v. Moore, 48 Neb. 870, 67 N. W. 876 (one subject only in an act to author- ize the organization of mutual in- surance companies; valid); Western Union Teleg. Co. v. Lowrey, 32 Neb. 732, 49 N. ^Y. 707, 10 Ry. Corp. L. J. 377 (an act to prohibit extortion and discrimination in transmission of telegrams; statute not unconstitu- tional as not expressing in title sub- ject-matter providing against relief from liability by reason of conditions in printed blanks). New Jersey: Hickman v. State (N. J. 1899), 44 Atl. 1099, aff'g 62 N. J. L. 499, 41 Atl. 942 (act to provide for incorporation and regu- lation of insurance companies; sep- arable provision as to insurance by individuals does not invalidate as to insurance by corporations; and reg- ulation of foreign companies is em- braced in scope of title); American Surety Co. v. The Great White Spirit Co., 58 N. J. Eq. 526, 43 Atl. 579 (act supplemental to act not im- constitutional mider provision re- quiring object of law to be expressed in title, where the title of the act supplemented relating to the taxation of corporations is accurately set forth in the title, even though the date of approval is erroneously stated); Schenck v. State, 60 N. J. L. 381, 37 Atl. 724 (the business of indi- vidual insurers is not expressed as ob- ject of act to provide for a regula- tion and incorporation of insurance companies); Golden Star Fraternity v. Martin, 59 N. J. L. 207, 35 Atl. 908 (an act to incorporate benevolent and charitable institutions; held unconstitutional in certain respects and constitutional in other respects); Newark v. Mount Pleasant Cemetery Co., 58 N. J. L. 168, 33 Atl. 396 (au- thorizing incorporation of rural cem- etery associations and to regulate cemeteries; constitution satisfied). New York: Parfitt v. Furguson, 159 N. Y. Ill, 53 N. E. 707, aff'g 38 N. Y. Supp. 466, 3 App. Div. 176, which affirms 33 N. Y. Supp. 1111, 12 Misc. 278 (act ratifying and con- firming lighting contracts in a cer- tain town; held not embraced in scope of title). Pennsylvania: Rodenbaugh v. Philadelphia Traction Co., 190 Pa. 358, 42 Atl. 953, 44 W. N. C. 105, 30 Pitts. L. J. (N. S.) 24 (docs not em- brace two subjects in violation of constitution where provision is for survival of action for personal in- juries and limiting time for bringing suit where injuries do not result in death). South Carolina: Bacot, Ex parte, 36 S. C. 125, 15 S. E. 204, 50 381 § 247 CONSTITUTIONAL LAW— INTERPRETATION germane to the original statute, is sufficient if it designates itself as an amending act and refers to the section of the code to be amended without stating the substance of the proposed amendment. ^^ A constitutional provision that all acts which repeal, revive or amend former laws shall recite in their cap- tion, or otherwise, the title or substance of the law repealed, revived or amended, does not apply to an act which does not expressly purport to repeal, revive or amend but only repeals or amends by necessary implication, and is a new and sub- stantive act conferring additional powers on railroad companies incorporated under general laws.^» The title of an enactment need not set forth the intention to repeal inconsistent laws.^" § 247. Title to Statutes— Instances— Incorporation— Ex- propriation— Railroads— Street Railroads— Bonds in Aid of Railroads— Lien on and Sale of Railroad— Electrical Conductors— Fraudulent Elections in Corporations— For- eign Corporations.'!- The ^^^le to an act of incorporation of a Am. & Eng. R. Cas. 597, 16 L. R. A. mode by which unpaid subscription 586 (powers given to corporations are to joint-stock companies may be re- within title of acts to promote certain covered by said companies, their re- corporations under general laws). ceivers or assignees, does not embrace Tennessee: Samuelson v. State, mode for recovery; title insufficient); 116 Tenn. 470, 95 S. W. 1012 Powell v. Brunswick County Super- (acts to prohibit traffic in non- visors, 88 Va. 707, 16 Va. L. J. 129, transferable signature tickets issued 14 S. E. 543, .36 Am. & Eng. Corp. by common carriers, and to require Cas. 625 (provisions for subscriptions such carriers to redeem unused or and mode of taking same, germane to partly used tickets, and to provide object expressed in title generally pro- punishment for violation; is not un- viding for incorporation of railroad constitutional as embracing more companies, and not vmconstitutional than one subject in title). as embracing more than one object. Texas : St. Louis Southwestern Ry. '^ McGuire v. Chicago, Burlington Co. V. Gentry (Tex. Civ. App., 1906) & Quincy Rd. Co., 131 Iowa, 340, 108 95 S. W. 74 (constitutional provision N. W. 902. that only so much of statute the sub- '» Memphis & State Line Rd. Co. v. ject of which is not expressed in title Union Ry. Co., 116 Tenn. 500, 95 shall be void). S. W. 1019. Virginia: Martin v. South Salem ^o Union Pac. Ry. Co. v. Sprague, Land Co., 94 Va. 28, 2 Va. Law Reg. 69 Neb. 48, 95 N. W. 46. 743, .26 S. E. 941, 6 Am. & Eng. Corp. ^^ See extended note under § 245, Cas. (N. S.) 312 (act to prescribe herein. 382 OR CONSTRUCTION OF STATUTES § 247 private corporation need not enumerate the powers and privi- leges wiiich it is intended by the charter to confer.^- And the provisions of a general law may by reference in the title to a special act of incorporation of a railroad company be made applicable thereto where no constitutional provision to the contrary exists. ^^ If the title of a charter expresses a purpose to expropriate property it will embrace the method of such expropriation set forth in the body of the instrument; and the purpose to incorporate a main line will include a right to construct a short branch line of railroad.^'* But where the title to an act of incorporation of a railroad company docs not show that it includes a land grant it is void.^^ The title, how- ever, embraces but one object and sufficiently indicates it when it shows that it was intended to apply to certain lands of a railroad company .^'^ A declaration in the title of state statutes that they concern horse railways, where it is apparent that these terms were intended to indicate street railways as distinguished from steam railways, will not, because of a con- stitutional provision that the object of the statute must be expressed in the title, prevent the city from exercising its powders under the statute in such manner as to authorize the use of other power, such as cable or electricity.^'' And a statute legalizing elections held by the voters of a county on the ques- tion of issuing negotiable bonds of the county, in aid of certain railroad companies, and authorizing, on conditions named therein, all the townships in counties where the township organization had been adopted, lying on or near the line of a *' Crease v. Babcock, 23 Pick. (40 Sup. Ct. — (title was "to enable the Mass.) 334, 34 .^m. Dec. 61. united companies to improve lands " Quinlan v. Houston & T. C. R. under water at Kill von KuU and Co., 89 Tex. 3.')6, .34 S. W. 738 (dona- other places." Supplemental to act lions of land to railroatl companies), entitled "to ascertain the rights of '* Morgan's Louisiana & T. R. & the State and of riparian owners in S. S. Co. V. Barton, 51 La. Ann. 1338, lands lying under waters of the Bay 26 So. 271. of New York, and elsewhere in this " Wade V. Atlantic Lumber Co. State"). (Fla.), 41 So. 72. " j^i^^j. ^ Chic.igo, 201 U. S. 400, 2' Hnboken v. Pennsylvania R. 26 Sup. Ct. 427, 50 L. ed. 801, rev'g Co., 124 U. S. 656, 31 L. ed. 543, 8 132 Fed. 848. 383 § 247 CONSTITUTIONAL LAW — INTERPRETATION specified railroad, to subscribe to the stock of the railroad com- pany, and issue negotiable bonds therefor, is a public act, and, as such act, it does not conflict with a constitutional provision that no private or local law, which may be passed by the Gen- eral Assembly, shall embrace more than one subject, and that shall be expressed in the title.^* But an act entitled an act to "Incorporate" a named railroad company cannot be held to authorize a county to make a subscription and issue bonds in payment thereof to the company.^'' A statute of Illinois, however, which was entitled: "An act to amend the articles of the association of the Danville, etc., Railroad Company, and to extend the powers of and confer a charter upon the same," and which, in the body of the act, authorized incorpo- rated townships along the route to subscribe to its capital stock on an assenting vote of a majority of the legal voters, and further legalized assents of voters of certain townships given at meetings held previous to the passage of the act, complied with the requirement of the constitution of that State that, "no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title." ^'^ Where an act was entitled: "An act for the sale of the Pacific railroad, and to foreclose the State's lien thereon, and to amend its charter,''* it was held that after certain sections providing for the sale, a section providing that in certain contingencies no sale should be made, was not a violation of a constitutional provision, "that no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in its title;" such provision is not violated by any act having various de- tails, provided they all relate to one general subject.'^ A statute is also constitutionally entitled where the title is: "An act providing for placing electrical conductors under- 28 Unity V. Burrage, 103 U. S. 447, U. S. 508, 29 L. ed. 982, 6 Sup. Ct. 26 L. ed. 405. 858. =" People, Standerfer, v. Hamill, ^^ Woodson v. Murdock, 22 Wall. 125 111. 600, 17 N. E. 799. (89 U. S.) 351, 22 L. ed. 716. ^"Mahomet v. Quackenbush, 117 384 OR CONSTRUCTION OF STATUTES § 248 ground in cities, and for commissioners of electrical subways." ^^ The title of a statute is, where the constitution so provides, not only an indication of the legislative mtent, but is also a limitation upon the enacting part of the law. It can have no effect with respect to any object that is not expressed in the title. This applies to a statutory provision enacted under the title of "an act to" prevent fraudulent elections in incorpo- rated companies and to facilitate proceedings against them," notwithstanding its re-enactment in subsequent revisions of the law under the title of ''an act concerning corporations," and so, irrespective of the generality of its language, does not extend to the right of a stockholder to examine corporate books beyond that accorded to him at common law, or entitle him to the remedy by mandamus, save as a discretionary writ.^^ If the title is of an act to regulate the business of foreign corporations it does not invalidate the enactment because it fails to set forth that its purpose is to punish those who violate the law.^"* § 248. Punctuation. —It is well settled that punctuation of a statute is not decisive of its meaning,^^ and so little is it a part of an enactment that it will be disregarded by the courts '^ People, New York Elect. Lines originally passed will continue to be Co., V. Squire, 107 N. Y. 593, 14 impressed with such limitation, not- N. E. 820, 12 N. Y. St. R. 832, 28 withstanding its re-enactment in sub- Wkly. Dig. 175, rev'g 6 N. Y. St. R. sequent revisions of the law under a 281. See Hanson v. Wm. A. Hunter title which imports no such limita- Electric Light Co. (Iowa), 48 N. W. tion." Id., 202. 1005, 10 R. & Corp. L. J. 103, 34 '4 Hartford Fire Ins. Co. v. Corn- Am. & Eng. Corp. Cas. 83. Exam- missioner of Insurance, 70 Mich. 485, ine Morrow Title Illuminating Co. v. 38 N. W. 474. Village of Mt. Gilead, 10 Ohio S. & ^s Yard v. Delta & Pine Land Co., C. P. Dec. 235 (ordinance held to vio- 1G4 U. S. 662, 17 Sup. Ct. 230, 41 late statute that contained only one L. ed. 590 (a case of exemption of subject, etc.). railroad company from taxation; as- '' O'Hara v. National Biscuit Co., scssments for local improvements; 69 N. J. L. 198, .54 Atl. 241. The rule tax sales; recitals in deeds), established is "that a legislative en- Punctuation will not affect or con- actment limited in its operation by trol legislative intent. Murray v. force of the title under which it was State, 21 Tex. App. 620. 25 385 § 249 CONSTITUTIONAL LAW— INTERPRETATION or changed and read with such stops as to give effect to the whole. ^^ §249. Order of Arrangement— Transposition— Altera- tion — Omissions— Rejections.— Ordinarily the order of ar- rangement is of itself entitled to no consideration,^^ and words may be transposed or inserted;^* so clerical errors and omis- sions may be rectified in order to arrive at the intent or to supply the obvious sense. »» But where the language, read in the order of clauses as passed, presents no ambiguity, courts will not attempt, by transposition of clauses, and from what it can be ingeniously argued was a general intent, to qualify by construction the meaning.^*^ Nor will an ambiguous stat- ute be rewritten to make it constitutional, and words will not be written into a statute where they would operate to destroy it in an important particular, or where the qualifying words would but add to its provisions in order to save it in one aspect and thereby destroy it in another.^^ But words may be re- " United States: Crawford v. 621, 64 N. E. 574. Examine Orvil Burke, 195 U. S. 176, 49 L. ed. 147, Township v. Woodcliff, 61 N. J. L. 25 Sup. Ct. 9; Hammock v. Loan & 107, 38 Atl. 685, and cases cited be- Trust Co., 105 U. S. 77, 26 L. ed. low in this section. 1111; Gwathmay V. Clisby (C C), ^9 Western Invest. Bkg. Co. v. 31 Fed. 220, 24 Blatchf. 398. Murray (Ariz.), 56 Pac. 728, 16 Alabama: Cook v. State, 110 Ala. Bkg. L. J. 349. See Landrum v. 40, 20 So. 360. Flannigan, 60 Kan. 436, 56 Pac. 753; Maryland: Munger v. Board of McKee Land & Improv. Co. v. State Medical Examiners, 90 Md. Swikehard, 51 N. Y. Supp. 399, 23 659, 45 Atl. 891. Misc. 21, aiT'd 71 N. Y. Supp. 1141, Ohio: AUbright v. Payne, 43 Ohio 63 App. Div. 553; Murray v. State, St. 8. 21 Tex. App. 620. Oregon: State v. Banfield, 43 Oreg. ^° Doe v. Considine, 6 Wall. (73 287, 72 Pac. 1093; State, Baker, v. U. S.) 458, 18 L. ed. 869. Payne, 22 Oreg. 335, 29 Pac. 787. '^ Employers' Liability Cases South Carolina: Archer v. Ellison, (Howard v. Illinois Cent. Rd. Co.), 28 S. C. 238. 207 U. S. 463, 501, 28 Sup. Ct. 141, Texas: Murray v. State, 21 Tex. 52 L. ed. — (an act addressed to App. 620. common carriers engaged in inter- " National Bank of The Republic state commerce imposing liability as V. St. Joseph (C. C), 31 Fed. 216, to employees— regulation by Congress 24 Blatchf. 436. of relation of master and servant 3' Slinguff V. Weaver, 66 Ohio St. confined to interstate commerce). 386 OR CONSTRUCTION OF STATUTES § 250 jected where they cannot be given any effect consistent with the plain intent."*^ § 250. Construction of Proviso or Exception. —The general purpose or office of a proviso in a statute is to car^'e exceptions out of the body of the act; to qualify the operation of the act or of some part of it; to except something from the enacting clause, or to qualify its gerferality, or to exclude some possible ground of misinterpretation of its extending to cases not in- tended by the legislature to be brought within its purview/^ In the absence of an apparent intention to the contrary, a proviso or an exception has reference only to the immediately preceding paragraph or clause, or the section to which it is attached and is to be strictly construed. But these rules are not absolute and the proviso is often used in other senses than those above stated; it will not be used to defeat the grant or the obvious intent of the statute ; the entire enactment may be considered, and if from the context and the subject-matter it is obvious that its meaning should be extended beyond what it technically imports it may be so construed.'*^ So a proviso in See Hilbum v. St. Paul, M. & M. Ry. 128 U. S. 174, 32 L. ed. 377, 9 Sup. Co., 23 Mont. 229, 58 Pac. 811, 551 Ct. 47, 16 Wash. L. Rep. 749; Ryan (citing numerous cases); State v. v. Carter, 93 U. S. 78, 83, 84, 23 L. Reneau (Neb., 1905), 106 N. W. 451. ed. 807; Minis v. United States, 15 Words cannot be inserted by court Pet. (40 U. S.) 423, 10 L. ed. 791; when not used by legislature. Steere Deitch v. Staub, 115 Fed. 309; V. Brownell, 124 111. 27, 15 N. E. Wartensblen v._ Haithcock, 80 Ala. 26. 565; Chicago v. Phoenix Ins. Co., 126 Words cannot be imported into a 111. 276, 18 N. E. 668; Traders' Nat. statute. Baker v. Payne, 22 Oreg. Bank v. Lawrence Mfg. Co., 96 N. C. 335, 29 Pac. 787. 298. Nothing should be added to ex- ^< United States: Georgia R. & tend the words beyond their plain Bkg. Co. v. Smith, 128 U. S. 174, 32 import. McCarthy v. McCarthy, 20 L. ed. 377, 9 Sup. Ct. 47, 16 Wash. L. App. D. C. 195. Rep. 749; Carter, Webster & Co. v. « Ivcavitt V. Loverin, 64 N. II. 007, United States, 137 Fed. 978, aff'd 143 1 L. R. A. 58, 15 Atl. 414. See Jack- Fed. 256; Detroit Citizens' St. R. son. Ex parte, 140 Fed. 266, rev'd Co. v. Detroit, 64 Fed. 628, 12 C. C. Ignited States v. Jackson, 143 Fed. A. 365 26 L. R. A. 667, 1 Am. & 783. See also cases cited under third Eng. R. Cas. (N; S.) 71. preceding note herein. Alabama: Wartensblen v. Haith- " Georgia R. & Bkg. Co. v. Smith, cock, 80 Ala. 565. 387 § 251 CONSTITUTIONAL LAW — INTERPRETATION an act incorporating a railroad company may be used in other senses than that of its technical meaning, so that the statute will not exempt the corporation created by it, or its successors, from the duty of submitting to reasonable requirements con- cerning transportation rates made by a railroad commission created by the State.^^ Nor will a proviso be permitted technically to operate so as to defeat the grant of a franchise, the purpose of which is the performance of a public duty.^® Again, although not in accord with its technical meaning, or its office when properly used, a frequent use of the proviso in Federal legislation is to introduce new matter extending, rather than limiting or explaining, that which has gone before.'*^ Those who set up any such exception must establish it as being within the words as well as the reason thereof. No known rule of law, however, requires its interpretation according to its literal import, when its evident intent is different.'** Mere convenience will not justify the introduction of exceptions not suggested by the language used.^^ §251. Liberal Construction— Meaning Extended— Impli- cation. — ^Although a liberal construction of a statute may be proper and desirable, yet the fair meaning of the language used must not be unduly stretched for the purpose of reaching any particular case which, while it might appeal to the court, would plainly be beyond the limitations contained in the statute.^" An act to regulate commerce should receive a lib- Illinois: Huddleston v. Francis, sylvania Joint Lumber & Land Co., 124 111. 195, 16 N. E. 243. 121 Pa. 143, 22 W. N. C. 303, 15 North Carolina: Traders' Nat. Atl. 509, 6 Am. St. Rep. 766. Bank v. Lawrence Mfg. Co., 96 *^ Interstate Commerce Commis- N. C. 298. sion v. Baird, 194 U. S. 25, 24 Sup. Oklahoma: Leader Printing Co. Ct. 563, 48 L. ed. 860. V. Nichols, 6 Okla. 302, 50 Pac. 1001. " Ryan v. Carter, 93 U. S. 78, 83, See Southern Pacific Rd. Co. v. 84, 23 L. ed. 807, per Davis, J. Orton, 32 Fed. 457, 472, 473, per ^» Morris Coal Co. v. Donley, 73 Sawyer, J. Ohio St. 298, 76 N. E. 945. *^ Georgia R. & Bkg. Co. v. Smith, ^^ United States v. St. Anthony 128 U. S. 174, 32 L. ed. 377, 9 Sup. Rd. Co., 192 U. S. 524, 24 Sup. Ct Ct. 47, 16 Wash. L. Rep. 749. 333, 48 L. ed. 548 (grants in aid of " West Branch Boom Co. v. Penn- railroads). 388 OR CONSTRUCTION OF STATUTES § 252 eral construction in favor of its purpose, although where a common carrier seeks rehef it must be clearly apparent that the claimed right has been conferred or forbidden, and equity will not by a strained construction extend the meaning in favor of a complaining carrier whose position is such as not to demand favorable consideration.^^ While a legislature may prescribe regulations for the management of business of a public nature, even though carried on by private corporations, with private capital, and for private benefit, the language of such regulations will not be broadened by implication. ^^ gu^ a statute restraining any person from doing certain acts, ap- plies equally to corporations, or bodies politic, although not mentioned.^' An implication created by construction from subsequent words will not, unless such implication is very necessary and clear, restrain prior explicit provisions embrac- ing in terms an entire class of cases. ^"^ The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legisla- ture proceeded, from the end in view, or the purpose which was designed; the limitation of the rule being that to extend the meaning to any case, not included within the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not a like reason.^^ § 252. Strict Construction. — ^Tho rule of strict construction applies to statutes creating a new Hability; ^^ to a statute au- thorizing the levy of a tax by a municipality; " to statutes as to eminent domain which grant power to i)rivate corporations; ^' 5' Kentucky & I. Bridge Co. v. v. St. Joseph (C. C), 31 Fed. 216, 24 Louisville & N. R. Co. (C. C), 37 Blatchf. 436. Fed. 567, 2 L. R. A. 289, 2 Inters. " United States v. Freeman, 3 Comm. Rep. 3.')1. How. (44 U. S.) 556, 11 L. ed. 724. " Chesapeake & P. Tel. Co. v. '» Hunt v. Bums, 95 N. W. 1 1 10. Manning, 186 U. S. 238, 46 L. cd. " Drummer v. Cox, 165 111. 648, 1144, 22 Sup. Ct. 881. 46 N. E. 716. " People V. Utica Ins. Co., 15 " Poughkeepsie Bridge Co., In re, Johns. (N. Y.) 357, 8 Am. Dec. 243. 108 N. Y. 4S3, 15 N. E. 681. Com- '* National Bank of The Republic pare Chesapeake & Ohio Canal Co. 389 § 253 CONSTITUTIONAL LAW — INTERPRETATION to enactments taking away or changing fundamental rights; ^^ to every statute derogatory of rights of property or which takes away the rights of a citizen ; ^^ to enactments penal in character as in case of one making trustees of a corporation personally hable in certain cases; ^^ or one prohibiting com- binations and requiring reasonable transportation facilities; ^^ or one allowing recovery for wrongful death caused by officers, etc., of a corporation ; ^3 or one relating to false representa- tions as to capital stock and accumulation, made by insurance companies.®'* § 253. Common Law — Statutes in Derogation of. — Strict construction is to be given statutes;''^ or statutory authority in derogation of common law.®® So the intent to change a rule of common law should be clearly shown in the statute; ®^ for common law rights are not to be taken away by doubtful implications and affirmative words.® Again, where a well- established rule of that law is attempted to be modified or abrogated by statute the plain import of the words used should limit the interpretation if thereby they can give reason- able effect to the statute.®^ Statutes in derogation of the com- mon law and penal statutes are not to be construed so strictly as to defeat the obvious intention of Congress as found in the language actually used, according to its true and obvious mean- V. Key, 3 Cranch (U. S. C. C), 599, Flouring Mills Co., 77 Minn. 256, 79 603-609, Fed. Cas. No. 2,649. N. W. 974. '' Crowder v. Fletcher, 80 Ala. *^ Butte Hardware Co. v. Sullivan, 219. 7 Mont. 307, 16 Pac. 588. *" Vanhorne v. Dorrance, 2 Dall. *" Ramsey v. Hommel, 68 Wis. 304. 12, 31N. W. 271. " Park Bank v. Remsen, 158 U. S. *' Rasin v. Lidgerwood Mfg. Co., 337, 29 L. ed. 1008, 15 Sup. Ct. 891; 86 N. Y. Supp. 49, 89 App. Div. 245. Chase V.Curtis, 113 U. S. 452, 5 Sup. «« Ryalls v. Mechanics Mills, 150 Ct. — , 28 L. ed. 1038. Mass. 190, 194, 5 L. R. A. 667, 22 N. . *^ Clark V. American Express Co., E. 766. 130 Iowa, 254, 106 N. W. 642. «» Felix v. Griffiths, 56 Ohio St. " Casey v. St. Louis Transit Co., 39, 45 N. E. 1092, 37 Ohio L. J. 139. 116 Mo. App. 235, 91 S. W. 419. See McCarthy v. McCarthy, 20 App. "Langworthy v. C. C. Washburn D. C. 195. 390 OR CONSTRUCTION OF STATUTES § 254 ing.™ Where the charter of a state bank provides for addi- tiona liability of the shareholders as sureties to the creditors of the bank for all contracts and debts to the extent of their stock therein, at the par value thereof, at the time the debt was created a shareholder is not liable for a debt created after he has actually parted with his stock and the transfer has been regularly entered on the books of the bank. The additional liability of shareholders of corporations depends on the terms of the statutes creat'ng it, and as such a statute is in derogation of the common laws it cannot be extended be- yond the words used 7^ In the Charles River Bridge case the following decision was rendered : The grant to the bridge com- pany is of certain franchises, by the public, to a private corpo- ration; in a matter where the public interest is concerned, there is nothing in the local situation of this country, or in the nature of our political institutions, which should lead this court to depart from the rules of construction of statutes, adopted under the system of jurisprudence which we have de- rived from the English law; no good reason can be assigned, for introducing a new and adverse rule of construction in favor of corporations, while we adopt and adhere to the rules of construction known to the English common law in every other case, without exception 7^ §254. Public Grants of Franchises, Privileges, etc. — Construction Against Grantee. — Public grants of franchises, powers, rights, privileges or property in which the government Common law changed by statute L. Rep. 1220, 71 S. W. 1, 69 S. W. is modified only to extent clearly 1095. warranted by the language used. Statutes in derogation of common John.son v. Southern Pacif. Co., 117 law to be liberally construed where Fed. 462, 54 C. C. A. 508. statute so provides. Gans' Estate, '» Johnson v. Southern Pacific Co., In re (Utah, 1906), 86 Pac. 757. 196 U. S. 1, 49 L. ed. 872, 25 Sup. Ct. " Brunswick Terminal Co. v. Nat. 158. Bk. of Bait., 192 U. S. 386, 48 L. ed. Rule that statutes in derogation of 491, 24 Sup. Ct. — . common law are to be strictly con- " Charles River Bridge v. Warren Btrued is held not to apply to a re- Bridge, 11 Pet. (36 U. S.) 420, 9 L. vision which is to be liberally con- ed. 773. See Rice v. Railroad Co., Btrued. Dillehay v. Ilickey, 24 Ky. 1 Black (66 U. S.), 358, 17 L. ed. 147; 391 § 254 CONSTITUTIONAL LAW — INTERPRETATION or public has an interest must be construed in favor of the grantor and strictly against the grantee; whatever is not clearly, plainly and unequivocally granted is withheld; nothing passes by implication except it be necessary to carry into effect the obvious intent of the grant. This rule applies in cases of doubt or ambiguity in the meaning or interpretation of language used or where the grant is susceptible of two constructions, for if the meaning is plain and clear and the intention obvious there is no room for construction. Private corporations and indi- viduals are within the above rulCj^^* which also applies to arti- Peterson v. Gittings, 107 Iowa, 306, Eng. R. Gas. 607, 9 Ry. & Corp. L. J. 77 N. W. 1056, rev'g 72 N. W. 662. 342, 43 Alb. L. J. 328 (corporate con- " United States: Cleveland Elec- tract; alienation of franchise; ultra trie Ry. Co. V. Cleveland, 204 U. S. vires agreement; breach of duty to 116, 130, 51 L. ed. — , 27 Sup. Ct. public); Slidell v. Grandjean, 111 U. —;' Cornell v. Coyne, 192 U. S. 418, S. 412, 4 Sup. Ct. 475, 28 L. ed. 321; 24 Sup. Ct. 383, 48 L. ed. 504; Long Turnpike Co. v. State, 3 Wall. (70 Island Water Supply Co. v. Brook- U. S.) 210, 18 L. ed. 180 (grant of lyn, 166 U. S. 685, 696, 41 L. ed. franchi.se; exclusive privilege; un- 1165, 17 Sup. Ct. 718, per Brewer, J. lawful charter to rival); Jefferson (condemnation of water supply; Bank v. Skelly, 1 Black (66 U. S.), water companies; exclusive privi- 436, 17 L. ed. 173 (bank charters; leges; statutes and contracts; legis- exemption from taxation; franchise lative powers; municipal powers); grant construed; waiver of sover- Pearsall v. Great Northern R. Co., eignty); Ohio Life Ins. & Trust Co. 161 U. S. 646, 16 Sup. Ct. 705, 40 L. v. Debolt, 16 How. (57 U. S.) 416, 14 ed. 838, rev'g 73 Fed. 933 (consoli- L. ed. 997 (statutes as to insurance dation of railroads; parallel and com- company; exemption from taxation; peting hues; statutes; powers not di- obligation of contract); Charles River rectly contemplated; subsequent leg- Bridge v. Warren Bridge, 11 Pet. (36 islative restriction); Hamilton Gas U. S.) 420, 9 L. ed. 773; United Light & Coke Co. v. Hamilton City, States v. Arredondo, 6 Pet. (31 U. S.) 146 U. S. 258, 13 Sup. Ct. 90, 36 L. ed. 691, 736, 8 L. ed. 547, 564; Helena, 963 (grant to corporation of special City of, v. Helena Water Works Co., privileges; obligation of contract; 122 Fed. 1; Omaha Horse R. Co. v. municipal powers; contract for gas Cable Tramway Co. (C. C), 30 Fed. supply; exclusive privilege); Stein v. 324. Bienville Water Supply Co., 141 U. Georgia: Macon & W. R. v. Davis, S. 67, 35 L. ed. 622, 11 Sup. Ct. 892 13 Ga. 68. (grant of water franchise; exclusive Illinois: Mills v. County of St. right; obhgation of contract); Cen- Clair, 7 111. 197. tral Transportation Co. v. Pullman's Louisiana: State of Louisiana v. Palace Car Co., 139 U. S. 24, 35 L. Morgan, 28 La. Ann. 482. ed. 55, 11 Sup. Ct. 478, 45 Am. & Maine: Rockland Water Co. v. 392 OR CONSTRUCTION OF STATUTES § 254 cles of association organizing a corporation under general laws which are a substitute for a charter from the legislative Camden & R. Water Co., 80 Me. 544, 15 Atl. 785, 1 L. R. A. 388. Minnesota: State v. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380. Nebraska: Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 110, 84 N. W. 802. New Jersey: Millville Gaslight Co. V. Vineland Light & Power Co. (N. J., 1906), 65 Atl. 504; Jersey City v. North Jersey St. Ry. Co., 72 N. J. L. 383, 61 Atl. 95. Texas: East Line & R. R. Co. v. Rushing, 69 Tex. 306, 6 S. W. 834. Grants of franchises should be in plain language, and certain and defi- nite in their nature, and should be free from ambiguity in their terms. The legislative mind should be dis- tinctly impressed with the unequivo- cal form of expression contained in the grant. They will also be strictly construed against the grantee. Cleve- land Electric Ry. Co. v. Cleveland, 204 U. S. 116, 130, 51 L. ed. — , 27 Sup. Ct. — . One asserting private rights in public property under grants of fran- chises must show that they have been conferred in pkun terms, for nothing passes by the grant except it be clearly stated or necessarily im- plied. Legislative grants of fran- chises which are in any way am- biguous as to whether granted for a longer or a shorter period are to be construed strictly against the grantee. Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801, 26 Sup. Ct. 427 (street railroads). Only that which is granted in clear and explicit terms passes by a grant of property, franchises or privihiges in which the government or the pub- lic has an interest. Statutory grants of that character are to be construed strictly in favor of the public;. what- ever is not unequivocally granted is withheld; and nothing passes by im- plication. Knoxville Water Co. v. Knoxville, 200 U. S. 22, 50 L. ed. 353, 26 Sup. Ct. 224 (contract to sup- ply water; corporations; due process and obligation of contracts). Statutes granting privileges or re- linquishing rights of the public are to be strictly construed against the grantee. Wisconsin Cent. R. Co. v. United States, 164 U. S. 190, 41 L. ed. 399, 17 Sup. Ct 45 (pubhc lands; subsidized railroad). Legislative grants must be inter- preted so as to effect the intention of the grantor; but if the words are ambiguous, the true rule is to con- strue them most strongly against the grantee. Wherever privileges are granted to a corporation and the grant comes under revision in the courts, it is to be construed strictly against the corporation and in favor of the public, and nothing passes ex- cept what is given in clear and ex- plicit terms. Rice v. Railroad Co., 1 Black (66 U. S.), 358, 17 L. ed. 147 (railroad aid; land grants; vested rights; conditions as to construction of railroad). When tlu^re is any doubt as to the proper construction of a statute granting a privilege, that construc- tion should be adopted which is most advantageous to the interests of the government, the grantor. ILinni- bal & St. Joseph R. Co. v. Missouri River Packet Co., 125 U. S. 260, 31 L. ed. 731, 8 Sup. Ct. 874 (interstate bridge; unlawful structure; act of Congress). 393 § 254 CONSTITUTIONAL LAW — INTERPRETATION body.'-* Such rule also differs from that as to ordinary grants/' and one of the reasons for strict construction against the When a statute makes a grant of 122, 127, 56 N. E. 538, per Vann, J., property, powers or franchises to a case reverses 10 App. Div. 456. private corporation or to a private Grants of franchises by the same individual, the construction of the State are to be so strictly construed grant in doubtful points should al- as to operate as a surrender of the ways be against the grantee, and in sovereignty no further than is ex- favor of the government. Oregon pressly declared by the terms of the Railway & Navigation Co. v. Orego- grant. The grantee takes nothing nian Ry. Co., 130 U. S. 1, 32 L. ed. in that respect by inference. Syra- 837, 9 Sup. Ct. 409, 5 R. R. & Corp. cuse Water Co. v. City of Syracuse, L. J. 364 (railroads; grants to; cor- 116 N. Y. 167, 26 N. Y. St. R. 364, porate charters and powers). 22 N. E. 381. Every statute which takes away The rule that public grants are to from a legislature its power will al- be construed strictly against the ways be construed most strongly in grantee means that nothing shall favor of the State. This is an ele- pass by implication except it be mentary principle. Wright v. Nagle, necessary to carry into effect the 101 U. S. 791, 796, 25 L. ed. 921, per obvious intent of the grant. People Waite, C. J. (toll-bridge franchise; ex rel. Woodhaven Gas Co. v. Dee- obligation of contract; legislative han, 153 N. Y. 528, 47 N. E. 787, power). rev'g 11 App. Div. 175. In construing a franchise the " If there be anything well settled principle should be applied that a in the law relating to corporations, grant from the public, so far as it is it is, that their charters, being grants ambiguous, is to be construed in the of power or authority, in derogation interest of the public, that is, in favor of the natural rights and equality of of the grantor, and not, as in the or- men, must be construed favorable dinary sense, in favor of the grantee, to the public, and strictly as against This principle, however, is to be ap- the corporation, in whose favor plied only when doubt arises, since nothing can be claimed by implica- if the meaning is clear there is no tion." Bank of Toledo v. City of room for construction. Trustees of Toledo (Toledo Bank v. Bond), 1 Southampton v. Jessup, 162 N. Y. Ohio St. 622, 636, per Bartley, C. J. '< Oregon Railway & Navigation words be doubtful, is, that they Co. V. Oregonian Ry. Co., 130 U. S. shall be taken most strongly against 1, 32 L. ed. 837, 9 Sup. Ct. 409, 5 Rd. the grantor. An opposite rule pre- & Corp. L. J. 364. See also Central vails in cases of grants made by a Transp. Co. v. Pullman's Palace Car sovereign power. Mills v. County of Co., 139 U. S. 24, 35 L. ed. 55, 11 St. Clair, 7 111. 197. Sup. Ct. 478, 9 Rd. & Corp. L. J. 342, Generally, dubious words ought to 43 Alb. L. J. 328, 45 Am. & Eng. R. be taken most strongly against the Cas. 607. lawmaker. United States v. Heth, " The rule of construction of pri- 3 Cranch (7 U. S.), 399, 413, 2 L. ed. vate grants, if the meaning of the 479. 394 i OR CONSTRUCTION OF STATUTES § 255 grantee is that such grants are usually prepared by those interested in them and submitted to the legislatures with a view to obtain from such bodies the most liberal grant of privi- leges which they are willing to give 7^ The rule or principle must, however, be applied with reference to the subject-matter as a whole, and not in such a manner as to defeat the general intent of the legislature,'^^ as the obvious intention of the par- ties, when expressed in plain and unequivocal language, can- not be ignored in a public any more than in a private grant 7* §255. Same Subject Continued — ^Instances — ^Railroads — Street Railroads — Submarine Railway — Gas, Telephone, Where there is a doubt as to the said; and words of equivocal import meaning of the terms of a grant of are so easily inserted by mistake or public interests or uncertainty as to fraud, that every consideration of its general purpose, that construction justice and policy requires that they must be adopted which will support should be treated as nugatory, when the claim of the State rather than they do find their way into the enact- that of the individual or corporation, ments of the legislature. In the con- Shdell v. Grandjean, 111 U. S. 412. struction of a charter, to be in doubt Grants which confer exclusive privi- is to be resolved; and every resolu- leges affecting great public interests tion which springs from doubt is must be construed strictly against against the corporation. This is the the grantee. Emerson v. Common- rule sustained by all the courts in wealth, 108 Pa. 111. this country and in England. No "Corporate powers can never be other has ever received the sanction created by implication nor extended of any authority to which we owe by construction. No privilege is much deference. This court has as- granted unless it be expressed in serted it times without number." plain and unequivocal words, testi- Pennsylvania Ry. Co. v. Canal Com- fying the intention of the legislature missioners, 21 Pa. 9, 22, per Black, in a manner too plain to be mi.sun- C. J. derstood. When the State means Acts of incorporation and other to clothe a corporate body with a statutes granting special privileges portion of her own sovereignty, and are to be construed strictly, and to disarm herself to that extent of whatever is not given in unequivocal the powers which belong to her, it is terms is withheld. Moran v. Miami 80 easy to say so that we will never County, 2 Black (67 U. S.), 722, 17 believe it to be meant when it is not L. ed. 342. ^•Cleveland Electric Ry. Co. v. "People, Woodhaven Gas Co., v. Cleveland, 204 U. S. 116, 130, ol L. Deehan, 153 N. Y. 528, 47 N. E. 187, ed. — , 27 Sup. Ct. -— . rev'g 42 N. Y. Supp. 1071, 17 App. " Moran v. Miami Co(mty, 2 Black Div. 175, 76 N. Y. St. R. 1071. (67 U. S.), 722, 17 L. ed. 342. 395 § 255 CONSTITUTIONAL LAW — INTERPRETATION Canal, Water and Turnpike Companies— Ferry— Eminent Domain. — ^I'he rule of liberal construction in favor of the public and strict construction against the grantee has been applied to legislative grants of franchises to railroads/^ including the right of such companies to exercise the power of eminent domain,*" and the privilege of occupying the public streets with its tracks; ^^ to the charter and the right or privilege of a street railway to construct, maintain and operate its road in the public streets of a city/' to the grantee of land under water for a submarine railway;*^ and to the right to use the streets of a city for pipes to supply it and the inhabitants with gas.*^ So in case exceptional privileges and powers, which interfere to an important extent with a municipality's control over its streets, are conferred by ordinance upon a telephone company to its benefit and advantage, such contract should be strictly construed, and if it contains words suscep- tible of various meanings that interpretation should be given by which the public interests will be conserved.*^ But a char- ter of a corporation should be so construed as to carry into effect the will of the legislature, and a power given to a canal company to take private property for public use upon just compensation is not a power in derogation of common right, necessitating, as against the company, the strictest construc- tion of particular words at variance with a reasonable construc- tion drawn from the whole context of the instrument which will " State V. St. Paul, M. & M. Ry. v. Africa, 100 Tenn. 26, 53, 42 S. W. Co. (Minn., 1906), 108 N. W. 261; 485, 878; Hamilton & L. E. T. Co. v. Norfolk & W. Ry. Co. v. Lynchburg Hamilton, 1 Ohio N. P. 366. Cotton Mill Co., 106 Va. 376, 56 «^ De Lancey v. Hawkins, 49 N. Y. S. E. 146; Norfolk & W. Ry. Co. v. Supp. 469, 23 App. Div. 8, aff'd 163 Schein, 106 Va. 382, 56 S. E. 148. N. Y. 587, 53 N. E. 1108. *° Norfolk & W. Ry. Co. v. Lynch- ^* Pensacola Gas Co. v. Pensacola, burg Cotton Mill Co., 106 Va. 376, 33 Fla. 322, 14 So. 826. See also 56 S. E. 146; Norfolk & W. Ry. Co. v. Hamilton Gas Light Co. v. Hamilton Schein, 106 Va. 382, 56 S. E. 148. City, 146 U. S. 258, 36 L. ed. 963, 13 «' Chicago, D. & V. Ry. Co. v. Sup. Ct. 90. Chicago, 121 111. 176, 11 N. E. 907. s^ Bai^jj^ore City v. Chesapeake & 8=' Blocki V. People, 220 111. 444, Potomac Teleph. Co., 92 Md. 692, 48 77 N. E. 172: Citizens' Street R. Co. Atl. 465. 396 OR CONSTRUCTION OF STATUTES § 255 best carry out the legislative intent.^^ In a case where a con- tract was made with a municipality granting the right to supply a city with water for a certain number of years it was held that such contract being susceptible of two meanings, the one restricting and the other extending the powers of the municipal corporation, that construction was to be adopted which worked the least harm to the State." This last rule has also been applied in the case of a contract by a turnpike com- pany with a State concerning the exercise of franchises.** But in another case it appeared that in 1819, the legislature of Illinois authorized an individual, his heirs and assigns, to establish a ferry on the east bank of the River Mississippi, near the town of Illinois, and to run the sanie from lands "that they may belong to him," provided that the ferry should be put into actual operation within eighteen months. At this time he had no land, but within the eighteen months acquired an interest in a tract of one hundred acres. In 1821, another act was passed, authorizing him to remove the ferry "on any land may belong to him" on the said Mississippi River, under the same privileges as were prescribed by the former act. It was held that the words of this act, "on any land that may belong to him," must be construed to apply to the lands which then belonged to him, and not to such as he obtained after the passage of the act, viz., in 1822. The following rules for con- struing statutes were applied to the case, viz., First. That in a grant, designed by the sovereign power making it to be a general benefit and accommoflation to the public, if the mean- ing of the words be doubtful, they shall be taken most strongly against the grantee and for the government; and, therefore, should not be extended by implication in favor of t\w. grantee beyond the natural and obvious meaning of the words cm- ployed; and jf these do not support the right claimed, it must ""Chesapeake & Ohio Canal Co. v. Co., Ml U. S. 67, 35 L. ed. G22, 11 Key, 3 Cranch (U. S. C. C), 599, Sup. Ct. 892. 603-609, Fed. Cas. No. 2,649. "" Covington & Lex. Tump. Co. v. "Stein V. Bienville Water Supply Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. cd. 560. 397 § 255 CONSTITUTIONAL LAW— INTERPRETATION fall. Secondly. If the grant admits of two interpretations, one of which is more extended, and the other more restricted, so that a choice is fairly open, and either may be adopted without any apparent violation of the apparent objects of the grant, if in such case one interpretation could render the grant inoperative and the other would give it force and effect, the latter, if within a reasonable construction of the terms em- ployed, should be adopted.*'' Under still another decision it appeared that a water company was a corporation organized under the general statute of Illinois, as was also a municipality. In June 1882, the government of the city gave the water com- pany an exclusive right to supply the city with water for thirty years, reserving the right of purchasing the works erected for that purpose, and if this right were not exercised, the rights of the company were to be extended for a further term. Pro- vision was made for the erection of hydrants by the company for which fixed rentals were to be charged, and the city was given rights in a part of them. Further provisions were made for the payment of water rates by consumers. In 1896 an ordinance was passed by the city reducing the rentals of the hydrants and rates to consumers, to take effect from the date of its passage. At the time when the grant of 1882 was made, a statute passed in 1872 was in force in Illinois, authorizing cities and villages to contract with incorporated companies for a supply of water for a public use, for a period not exceed- ing thirty years. It was held that the power so conferred by the statute of 1872 in force in 1882 could, without straining, be construed as distributive ; that the city council was author- ized to contract with any person or corporation to construct and maintain waterworks at such rates as might be fixed by ordinance and for a period not exceeding thirty years; that the words "fixed by ordinance" might be construed to mean by ordinance once for all to endure during the whole period of thirty years, or by ordinance from time to time as might be «» Mills V. St. Clair Co., 8 How. (49 U. S.) 569, 12 L. ed. 1201, 7 111. 197. 398 OR CONSTRUCTION OF STATUTES § 256 deemed necessary; and that of the two constructions, that must be adopted which was most favorable to the pubhc, not that one which would so tie the hands of the council that the rates could not be adjusted as justice to both parties might require at a particular time.^" §256. Same Subject — Instances Continued — Public Land Grants — ^Railroad Aid. — Land grant statutes should receive a strict construction, and one which supports the construction of the government rather than that of the individual, the sovereign rather than the grantee; nothing passes by impli- cation.^^ But while it is well settled that public grants are to be construed strictly against the grantees, they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given. General legislation, offering advan- tages in the public lands to individuals or corporations as the inducement to the accomplishment of enterprises of a quasi- public character through undeveloped public domain should receive a more liberal construction than is given to an ordi- nary private grant .^^ Every act of Congress making a grant of public land is to be treated both as a law and a grant, and the intent of Congress when ascertained is to control in the interpretation of the law; and when Congress makes a grant of a specific quantity of public land in aid of any internal improvement, it must be assumed that it intends the benefi- ciary to receive such amount of land, and when it designates what land shall be received it is equally clear that the intent is, if poissible, that the exact land thus particularly designated shall be received .^^ Property rights of owners will, however, be favored by a construction of railroad aid laws.'''* Whore the '" Freeport Water Co. v. Frcoport *' United States v. Denver & Rio City, 180 U. S. 587, 45 L. ed. G79, 21 Grande Hy. Co., 150 U. S. 1, 14 Sup. Sup. Ct. 493. Ct. 11, .37 L. ed. 975. »' Northern Pacific Ry. Co. v. " Wisconsin Cent. R. Co. V. Soderberg, 188 U. S. 526, 23 Sup. Forsythe, 159 U. S. 46, 15 Sup. Ct. Ct. 365, 47 L. ed. 575 (public lands; 1020, 40 L. ed. 71. grants in aid of railroads; reservations ** Dcmaree v. Johnson, 150 Ind. and exceptions; mineral lands). 419, 49 N. E. 1062, 50 N. E. 376. 390 § 256 CONSTITUTIONAL LAW — INTERPRETATION charter of a railroad company authorizes the counties " through which it may pass" to subscribe to its stock, a county lying between the two termini of the road may subscribe without waiting until the route is actually located. "It is true, when a charter is given for franchises or property to a corporation, which is to be brought into existence by some future acts of the corporators, that such franchises or property are in abey- ance until such acts shall have been done, and then they in- stantly attach. But not to distinguish the acts enjoined or permitted, to give to the corporation its intended purpose and object, is to confound the franchises with such acts, and would nullify the means by which the franchises are to be produced;" and if the evident intent, to be ascertained from the charter conditions, there being no express limitation as to the time of making such subscription, is that it is optional with those who could do so to make it when most convenient or advantageous to themselves, it may be made before actual location of the road.^^ " Woods V. Lawrence County, 1 Black (66 U. S.) 386, 409, 17 L, ed. 122. 400 OR CONSTRUCTION OF STATUTES CONTINUED CHAPTER XVII. CONSTITUTIONAL LAW — INTERPRETATION OR CONSTRUCTION OF STATUTES CONTINUED. 257. Grant of Exclusive Fran- chises, Rights or Privileges — Strict Construction. 258. Separate Grants of Fran- chises — Rule of Construc- tion. 259. Settled Judicial Construction. 260. Practical Construction by- Parties. 261. Effect of Interpretation — Beneficial Reasons — Natu- ral Justice and Equity — Inconvenience — Injury or Hardship. 262. Contemporaneous Construc- tion — Extraneous Matters — History — Debates, etc. Policy of Government, of Legislative Body or of Law — Public Policy — General Principles of Law. Remedial Statutes. Statutes in Pari Materia. 266. Statutes in Pari Materia Continued. 267. Statutes in Pari Materia Con- tinued — Exception to or Qualification of Rule. 268. Words or Provisions of Prior Statutes Adopted in Later Act. 269. Derivative Statutes — Con- struction of Statutes Adopted from Foreign State or Country. 270. Re-enactment:— Consolidation 26 263. 264. 265. — Revised Statutes — Codes. § 271. Construction by State of Its Statutes— How Far Re- spected in Courts of Other States. 272. Construction of State Con- stitutions and Statutes by State Courts — How Far Respected by Federal Courts. 273. Same Subject Continued. 274. Same Subject Continued — Exceptions to or Qualifica- tions of Rule. 275. Same Subject Continued — Instances — Incorporation Acts — Eminent Domain — Corporate Powers. 276. Same Subject — Instances Continued — Common Car- riers — Railroads. 277. Same Subject — Instances Continued — Revenue — Taxation. 278. Same Subject — Instances Continued — Exemptions from Taxation — Impair- ment of Obligation of Con- tract as to Taxation. 279. Same Subject — Instances Continued — Impairment of Obligation of Contract — Fourteenth Amendment. 280. Same Subject — Instances Continued — Statutes Tenal 401 § 257 CONSTITUTIONAL LAW — INTERPRETATION in Nature — Trustees of Corporations — Anti-Trust Laws. 281. Same Subject — Instances Continued — Foreign Corpo- rations. 282. Repeal or Amendment of Statutes. 283. Same Subject Continued. 284. Same Subject Continued — Instances. 285. Same Subject — Instances Continued — Taxation and Assessment. 286. Construction of Statutes, Charters and Ordinances — Miscellaneous Cases. 287. Prospective and Retrospec- tive Operation. 288. Validating Statutes — Waiver or Correction of Defect or Irregularity. § 257. Grant of Exclusive Franchises, Rights or Privi- leges — Street Construction. — Grants of exclusive franchises, rights or privileges to corporations or individuals do not pass except by plain and express words or necessary implication, and are to be strictly construed. If the terms of such contract between the corporation or individual and the State are am- biguous such ambiguity must operate in favor of the public or State ; exclusive rights or privileges under public franchises are not favored.^ A special franchise to be exclusive ought to be ' United States : Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 696, 17 Sup. Ct. 718, 41 L. ed. 1165; Wright v. Nagle, 101 U. S. 791, 796, 25 L. ed. 921, per Waite, C. J.; Citizens' Street R. Co. v. Jones (C. C), 34 Fed. 579. District of Columbia: United States Elec. L. Co. v. Ross, 9 App. D. C. 558, 24 Wash. L. Rep. 775, appeal denied, 24 Wash. L. Rep. 838. Georgia: McLeod v. Burroughs, 9 Ga. 213. Maryland: North Baltimore Pass. Ry. Co. V. North Ave. Ry. Co., 75 Md. 233, 4 Am. Elec. Cas. 1, 9, 29 Atl. 466, per Alvey, C. J. Pennsylvania: West Manayunk Gas Light Co. v. New Gas Light Co., 21 Pa. Co. Ct. Rep. 379. Texas : Victoria County v. Victoria Bridge, 68 Tex. 62, 4 S. W. 140. Examine Blair v. City of Chicago, 201 U. S. 400, 50 L. ed. 801, 26 Sup. 402 Ct. 427, rev'g 132 Fed. 848; Vincennes V. Citizens' Gaslight Co., 132 Ind. 114, 16 L. R. A. 485, 31 N. E. 573; Hamilton & L. E. T. Co. v. Hamilton, 1 Ohio N. P. 366. See §§ 22-24, herein, also chapter herein as to ex- clusive franchises. Charles River bridge ; powers ex- pressly granted ; exclusive privileges not regarded ; implications as to. The act of incorporation of the pro- prietors of the Charles River bridge, is in the usual form, and the privi- leges such as are commonly given to corporations of that kind; it confers on them the ordinary faculties of a corporation, for the purpose of build- ing the bridge, and establishes cer- tain rates of toll which the company are authorized to take. This is the whole grant; there is no exclusive privilege given to them over the waters of Charles River, above or below their bridge; no right to erect OR CONSTRUCTION OF STATUTES CONTINUED § 258 free from ambiguity, and the precise territorial limitations of a charter should not be uncertain and incapable of accurate determination so that the grantee may elect to exercise its rights in one district one year and abandon that locality the next. 2 So where an exclusive right is granted to a corporation for a period of years that interpretation will govern which is most favorable to the State, and the right will be held to ex- pire at the termination of the period specified, even though under another statute such grant might be construed as for an unlimited period.^ But it is held that the rule requiring all gratuitous grants by the sovereign of exclusive privileges and franchises to be construed strictly, and that any ambiguity therein must operate against the grantee, is not in its strict- ness fully applicable to the grant of a ferry franchise. Such a grant being never without a consitlcration, as it imposes upon the grantee the obligation of maintaining a ferry with suitable accommodations for the convenience of the public.'* § 258. Separate Grants of Franchises— Rule of Construc- tion. — If the franchise of a ferry and that of a bridge are different in their nature and are each established by separate grants which have no words to connect the privileges of the one with the privileges of the other, there is no rule of legal interpretation, which will authorize a court to associate such another bridge themselves, nor to must be impHed simply from the prevent other persons from erecting nature of the grant, antl cannot be in- one; no engagement from the State, ferred from the words by which the that another shall not be erected; grant is made. Charles River Bridge and no undertaking not to sanction v. Warren Bridge, 11 Pet. (36 U. S.) competition, nor to make improve- 420, 9 L. ed. 773. ments that may diminish the amount ' West Manayunk Gas Light Co. v. of its income. Upon all these sub- New Gas Light Co., 21 Pa. Co. Ct. jects, the charter is silent, and noth- Rep. 379. ing is said in it about a linn of travel, ' Coosaw Mining Co. v. South BO much insisted on in the argument, Carolina, 144 U. S. 550, 3G L. ed. 537, in which they are to have exclusive 12 Sup. Ct. 689. privileges; no words are used, from ^ Mayor, etc., of New York v. which an intention to grant any of Starin, 106 N. Y. 1, 8 N. Y. St. R. these rights can be inferred; if the 655, 27 Wkly. Dig. 124, 12 N. E. plaintiffs are entitled to them, it 631. 403 §§ 259, 260 CONSTITUTIONAL LAW — INTERPRETATION grants together, and to infer that any privilege was intended to be given to the bridge company merely because it had been conferred upon the other; the charter being a written instru- ment it must speak for itself and be interpreted by its own terms .^ § 259. Settled Judicial Construction. — It is a well-settled principle of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legisla- tive body.^ And if the courts of a State have, when an agree- ment is made, construed their constitution and laws so as to give the agreement force and vitality, the same courts cannot, by a subsequent and contrary construction, render it invalid,' for the settled judicial construction of a statute, so far as con- tract rights are acquired thereunder, is as much a part of the statute as the text itself, and a change of decision is the same in effect on pre-existing contracts as a repeal or amendment by legislative enactment.* But the construction placed by a state court upon one statute implies no obligation on its part to put the same construction upon a different statute though the language of the two may be similar.^ § 260. Practical Construction by Parties. — ^The practical interpretation or construction of ambiguous language of a charter of a corporation or of a grant of a franchise or privi- lege, by the subsequent acts of the parties, and continued uniformly for a number of years and acquiesced in by the pub- lic or officials charged with the duty to object in the premises, is, in case where such construction is permissible, entitled to ' Charles River Bridge v. Warren County, 128 U. S. 526, 9 Sup. Ct. 159, Bridge, 11 Pet. (36 U. S.) 420, 9 32 L. ed. 519 (a case of county bonds; L. ed. 773. railroad aid; conditions precedent; " Kepner V. United States, 195 U. S. invalidity; innocent holders); Doug- 100, 49 L. ed. 114, 24 Sup. Ct. 797. lass v. County of Pike, 101 U. S. 677, ' Thomson v. Lee County, 3 Wall. 25 L. ed. 968. (70 U. S.) 327, 18 L. ed. 177. » Wood v. Brady, 150 U. S. 18, 37 « German Sav. Bank v. Franklin L. ed. 981, 14 Sup. Ct. — . 404 OR CONSTRUCTION OF STATUTES CONTINUED § 261 great weight as evidencing the right interpretation, but if such acts, conduct or acquiescence have not been uniform, and indicate conflicting views, they furnish no aid in arriving at the meaning. ^*^ The omission, however, of a city to assert its rights, or its passive submission to the invasion thereof is held to have but little bearing in the construction of a grant, al- though the acts of a city in asserting and exercising its rights from time to time, claiming an exclusive franchise, conclu- sively shows its understanding under the charter.^^ Practical construction by a common carrier and officials to whom passes have been given cannot operate to modify a law clearly pro- hibiting transportation of favored passengers. ^^ §261. Effect of Interpretation— Beneficial Reasons — Natural Justice and Equity — ^Inconvenience —Injury or Hardship. — ^Effect of interpretation may be considered to ascertain intent. ^^ If two laws interfere in their application to particular facts that interpretation should be followed which is recommended by the most beneficial reasons. ^^ In case of ambiguity a statute should be so construed as to be consistent with natural justice if not contrary to settled legal principles,^^ and, keeping in view the object or purpose of the act, it may be construed according to its equity.^^ But if Congress, or a state legislature, pass a law within the general >»Port of Mobile v. Louisville & '^ State v. Southern R. Co., 122 Nashville R. Co., 84 Ala. 115, 4 So. N. C. 1052, 30 S. E. 133, 41 L. R. A. 106, 5 Am. St. Rep. 342; Clark's Run 246, 11 Am. & Eng. R. Cas. (N. S.) & S. R. Turnpike Road Co. v. Com- 228. monwealth, 16 Ky. L. Rep. 681, 29 '^ Bowers v. Smith, 111 Mo. 45, 16 S. W. 360; Mayor, etc., of New York L. R. A. 754, 35 Cent. L. J. 305, 46 V. Starin, 106 N. Y. 1, 8 N. Y. St. R. Alb. L. J. 204. 655, 27 Wkly. Dig. 124, 12 N. E. 631; '^ Kane v. Kansas City, Ft. Smith Jones v. Erie & W. V. R. Co., 169 Pa. & Memphis Ry. Co., 112 Mo. 34, 39, 333, 32 Atl. 535, 36 W. N. C. 441 citing Rutherforth's Inst. (2d Am. (construction of railroad and occupa- ed.), p. 432. lion of city streets as interpretation "^ Plum v. Kansas City, 101 Mo. of grant). 525, 14 S. W. 6.57, 10 L. R. A. "Mayor, etc., of New York v. 371. Starin, 106 N. Y. 1, 8 N. Y. St. R. '« Harri.son v. Commonwealth, 83 655, 27 Wkly. Dig. 124, 12 N. E. 631. Ky. 162. 405 § 261 CONSTITUTIONAL LAW — INTERPRETATION scope of their constitutional power, the courts cannot pronounce it void, merely because, in their judgment, it is contrary to the principles of natural justice; ^' and natural equity will not control in case of uncertainty, although where there is ambiguity the presumption exists that the legislature intended to do equity.^* So constitutional restrictions and not natural justice and equity are the test of the validity of statutes. ^^ And where a particular construction of a statute will occasion great inconvenience, or produce inequality and injustice, that view is not to be favored if another and more reasonable in- terpretation is present in the statute. ^'^ So in case the legis- lature has the constitutional power to enact a given law, and it properly frames an act clearly expressing its legal intent, it is the duty of the court to construe that act so as to effectuate its terms. The argument based on the inconvenience which may result is out of place under such circumstances. ^^ Again, that different sections of the statute may subject different classes of corporations to control and result in some incon- venience is not a sufficient reason for departure from the plain intent evidenced by the language used ; ^' but there is a pre- sumption against a construction which would render a statute ineffective or inefficient, or which would cause grave public injury or even inconvenience.^^ An act of Congress otherwise valid is not unconstitutional because the motive in enacting it was to secure certain advantages for conditions of labor not " Calder v. Bull, 3 Dall. (3 U. S.) Where the argument of impossibil- 386, I L. ed. 648, per Irdell, J. ity of applying a law to a particular '* Lake Shore & M. S. R. Co. v. matter amounts to no more than that Cincinnati, W. & M. R. Co., 116 Ind. it would result in an inconvenience 578, 19 N. E. 440. which may readily be avoided, and " Viemeister v. White, 84 N. Y. the intention of the legislature is Supp. 712, 88 App. Div. 44. reasonably clear under the statute, ^^ Knowlton v. Moore, 178 U. S. such argument is rather a matter for 41, 20 Sup. Ct. 747, 44 L. ed. 969. the legislative body than for the ^' State v. Rat Portage Lumber court. Ellis v. United States, 206 Co. (Minn., 1908), 115 N. W. 162. U. S. 246, 266, 267, per Moody, J., '^ Home Building & Loan Assoc, dissenting. v. Nolan, 21 Mont. 205, 53 Pac. " Bird v. United States, 187 U. S. 738. 118, 47 L. ed. 100, 23 Sup. Ct. 42. 406 OR CONSTRUCTION OF STATUTES CONTINUED § 262 subject to the general control of Congress. ^^ And in testing the constitutionality of an act of Congress the court will confine itself to the power of Congress to pass the act and may not consider any real or imaginary evils arising from its execu- tion; ^^ nor will additions be made by construction to prevent apparent hardships;'^ and although the state of the statute law may operate injuriously at times the situation cannot be changed by the courts, but only by legislation.^^ Again, the court will not limit the power of the State by declaring that because the judgment exercised by the legislature is unwise it amounts to a denial of the equal protection of the laws or deprivation of property or liberty without due process of law.'^ § 262. Contemporaneous Construction — Extraneous Mat- ters — ^History — Debates, etc. — ^The general rule is perfectly well settled that, where a statute is of doubtful meaning and susceptible upon its face of two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be reme- died, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine the proper construction. But where the act is clear upon its face, and when standing alone it is fairly susceptible of but one construction, that construction must be given to it.^^ Not only will the lawmaking body be presumed to know that which is commonly known " Ellis V. United States, 206 U. S. County, 15 Colo. 320, 25 Pac. 246, 51 L. ed. — , 27 Sup. Ct. — . 508. " Employers' Liability Cases, 207 " Caledonia Coal Co. v. Baker, 196 U. S. 463. U. S. 432, 49 L. ed. 540, 25 Sup. Ct. Consequences should not be con- 375. sidered. State, Harris, v. Scarboro, '' Heath & Milligan Mfg. Co. v. 110 N. C. 232, 14 S. E. 737. Worst, 207 U. S. 338. That a failure of corporations to ^ Hamilton v. Rathbone, 175 U. S. make annual reports is made by 414, 419, 421, 44 L. ed. 219, 20 Sup. statute is made evidence of non-user Ct. 1.55; Ruggles v. Illinoi.s, 108 U. S. when otherwise it would have been 526, 27 L. ed. 812, 2 Sup. Ct. 832; inadmissii)le evidence, does not in- Piatt v. Union Pac. R. Co., 99 U. S. validate the enactment. People v. 48, 25 L. ed. 424. See Siemens v. Rose, 207 111. 352, 69 N. E. 762. Sellers, 123 U. S. 276, 8 Sup. Ct. 117, "Cheyenne County v. Bent 31 L. ed. 1.53. 407 § 262 CONSTITUTIONAL LAW — INTERPRETATION among men, but it will be presumed to have investigated and advised itself respecting the conditions made by it the sub- ject of legislative enactment.^" It is also a familiar rule of interpretation that in the case of a doubtful or ambiguous law the contemporaneous construction of those charged with its execution, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for cogent reasons, or unless it is clear that such con- struction is erroneous. ^^ The doctrine of contemporaneous legislative construction will also be considered in cases of doubt. ^^ And acquiescence by the people or governmental departments for a long period of time ought to settle the con- ^^ Eckerson v. City of Des Moines (Iowa, 1908), 115 N. W. 177, 187, per Bishop, J. "United States: United States V. Finnell, 185 U. S. 236, 46 L. ed. 890, 22 Sup. Ct. 633; Pennoyer v. McConnaiigliy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. 699, aff'g 14 Sawy. 584, 595, 43 Fed. 196, 339; Heath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380, 34 L. ed. 1083; Meritt v. Cam- eron, 137 U. S. 42, 11 Sup. Ct. 174, 34 L. ed. 772; United States v. Johnston, 124 U. S. 236, 31 L. ed. 389, 8 Sup. Ct. 446; Brown v. United States, 113 U. S. 568, 28 L. ed. 1079, 5 Sup. Ct. 648; United States v. Pugh, 99 U. S. 265, 25 L. ed. 322; Smythe v. Fiske, 23 Wall. (90 U. S.) 374, 23 L. ed. 47; Northern Pac. R. Co. V. Sanders, 47 Fed. 604, aff'd 49 Fed. 129, 7 U. S. App. 47, 1 C. C. A. 192. Arizona: See Copper Queen Con- sol. Min. Co. V. Board of Equalization (Ariz., 1906), 84 Pac. 511. District of Columbia: United States V. Bliss, 12 App. D. C. 485, 26 Wash. L. Rep. 293. Illinois: People, Neil, v. Knopf, 171 111. 191, 49N. E. 424. 408 Kentucky: Harrison v. Common- wealth, 83 Ky. 162. Minnesota: O'Connor v. Gertgens, 85 Minn. 481, 89 N. W. 866. New York: People v. City of Buffalo, 84 N. Y. Supp. 434. Washington: Mississippi Valley Trust Co. V. Hofins, 20 Wash. 272, 55 Pac. 54. West Virginia: State v. Davis (W. Va., 1908), 60 S. E. 584. Contemporaneous construction is a rule of interpretation, but it is not an absolute one and does not pre- clude an inquiry by the courts as to the original correctness of such con- struction. A custom of the govern- ment, however long continued by successive officers, must yield to the positive language of the statute. Houghton V. Payne, 194 U. S. 88, 48 L. ed. 888, 24 Sup. Ct. 590. " California: Burgoyne v. Super- visors, 5 Cal. 23. Kentucky: Collins v. Henderson, 11 Bush (74 Ky.), 74. Nevada: State v. Parkinson, 5 Nev. 17. Pennsylvania: Commonwealth v. Paine, 207 Pa. 45, 56 Atl. 317. Wisconsin: Travelers' Ins. Co. v. OR CONSTRUCTION OF STATUTES CONTINUED § 262 stitutionality of an act.^^ But a construction by the legis- lative or executive departments will not be followed where it would override the obviously plain meaning of the enactment. '■* The history of the statute or of the times may be consid- ered, if necessary,^^ but debates in Congress are not appropriate sources of information from which to discover the meaning of a congressional enactment, ^^ although resort has been had to journals ^^ and reports of committees in charge.^ A legis- lative exposition of a doubtful law, is the exercise of a judicial power, and if it interferes with no vested rights, impairs the obligation of no contract, and is not in conflict with the pri- mary principles of our social compact, it is in itself harmless, and may be admitted to retroactive efficiency; but if rights have grown up under a law of somewhat ambiguous meaning, then it cannot interfere with them. The construction of the law belongs to the courts. ^^ ^Vhen the executive department charged with the execution of a statute gives a construction Fricke, 94 Wis. 258, 68 N. W. v. Reynolds, 94 Mo. App. 578, 68 S. 958. W. 588 " People, Neil, V. Knopf, 171 111. Ohio: Slinguff v. Weaver, 66 191, 49 N. E. 424; Wallace v. Board Ohio St. 621, 64 N. E. 574. of Equalization (Oreg., 1906), 86 Pac. Washington: Scouten v. City of 365. See Warren v. Board of Regis- Whatcom, 33 Wash. 273, 74 Pac. tration, 72 Mich. 398, 2 L. R. A. 203, 389. 40 N. W. 553. Wisconsin: Brown v. Phillips, 71 " State, Pearson, v. Cornell, 54 Wis. 239, 36 N. W. 242. Neb. 647, 75 N. W. 25. See Downes '' United States v. Trans-Missouri V. Bidwe'll, 182 U. S. 244, 45 L. ed. Freight Assoc, 166 U. S. 290, 41 L. 1088, 21 Sup. Ct. 770. ed. 1007, 17 Sup. Ct. 540 (a case of "United States: District of Co- railroads and contracts in restraint of lumbia v. Washington Market Co., trade). See Aldridge v. Williams, 3 108 U. S. 243, 27 L. ed. 714, 2 Sup. How. (44 U. S.) 9, 11 L. ed. 469; Ct. — ; United States v. Union Pac. United States v. Oregon & C. R. Co., Rd. Co., 91 U. S. 72, 23 L. ed. 224; 57 Fed. 426. Aldridge v. Williams, 3 How. (44 U. " Blake v. National Banks, 23 S.) 9, 11 L. ed. 469; United States v. Wall. (90 U. S.) 307, 32 L. ed. 119. Colorado & N. W. R. Co., 157 Fed. " United States v. Colorado & N. 321. W. R. Co., 157 I'^ed. 321. Georgia: Western & A. R. Co. v. '» McLeod v. Burroughs, 9 Ga. 213. State ((Ja.), 14 L. R. A. 438. See also Spokane Fall & Northern Missouri: Helton, Ex parte, 117 Ry. Co. v. Stevens (Wash., 1908), 93 Mo. App. 609, 93 S.W. 913; Grimes Pac. 927; Northern Ry. Co. v. 409 § 263 CONSTITUTIONAL LAW — INTERPRETATION to it, and acts upon that construction for a series of years, the court looks with (Hsfavor upon a change whereby parties who have contracted with the government on the faith of the old construction may be injured; especially when it is attempted to make the change retroactive, and to require from the con- tractor repayment of moneys paid to him under the former construction.'*" A construction placed by the Attorney Gen- eral upon a prohibitory statute as to trusts and combinations, giving it an extraterritorial effect, will not be adopted merely because thereafter the legislature rejected a proposed amend- ment limiting the operation to combinations within the State. ^^ § 263. Policy of Government, of Legislative Body or of Law— Public Policy— General Principles of Law.— What is termed the policy of the government with reference to any particular legislation is too unstable a ground upon which to rest the judgment of the court in the interpretation of statutes.^^ And where legislative grants of land for railroad aid are made and the statute is free from all ambiguity, the letter of it is not to be disregarded in favor of a presumption as to the policy of the government.''^ Nor will the policy of legislation be con- sidered, as the question is one of the legislative power to enact.^'' But it is held that some weight may be given to general con- siderations of public policy supposed to have influenced the legislature where the meaning is uncertain from the language used. ^5 And when the language of a statute is plain and unam- biguous, a refusal to recognize its natural and obvious mean- ing may be justly regarded as indicating a purpose to change the law by judicial action, based upon some supposed pohcy Snohomish County (Wash., 1908), 93 « Hadden v. Collector, 5 Wall. Pac. 924. (72 U. S.) 107, 18 L. ed. 518. *" United States v. Alabama Great " St. Paul, M. & M. Ry. Co. v. Southern R. Co., 142 U. S. 615, 35 L. Phelps, 137 U. S. 528, 11 Sup. Ct. ed. 1134, 12 Sup. Ct. 306. 168, 34 L. ed. 767. ^' State V. Lancashire F. Ins. Co., ^^ Eckerson v. City of Des Moines 66 Ark. 466, 51 S. W. 633, 45 L. R. A. (Iowa, 1908), 115 N. W. 177. 348, 28 Ins. L. J. 605 " Glass v. Cedar Rapids, 68 Iowa, 207. 410 OR CONSTRUCTION OF STATUTES CONTINUED § 264 of Congress/^ Again, an intention to surrender the right to demand the carriage of mails over subsidized raih'oads at rea- sonable rates, assumed in construing a statute of the United States, is opposed to the estabhshed policy of Congress.'*^ Courts will not impute to the legislature an intention to obstruct or impede the operation of constitutional provisions or to inno- vate upon the settled policy of the law.'^^ And a construction should be given so as to be in harmony rather than in conflict with the general principles of law where the meaning of the statute is doubtful. ^^ § 264. Remedial Statutes. — ^Remedial statutes should be liberally construed so as to effectuate the purpose intended, advance the remedy and prevent the mischief or evil,'''' and the precise words of a remedial statute will be extended to effect the purpose clearly manifested. ^^ So a statute is a reme- dial one which provided for a state board of transportation with certain powers as to inspection and superintending railroads, and it should not be strictly construed .^^ ^^ Bate Refrigerating Co. v. Sulz- New Jersey: Camden & A. R. berger, 157 U. S. 1, 39 L. ed. 601, 15 Tninsi). Co. v. Briggs, 22 N. J. L. Sup. Ct. 508. 628. ^' Wisconsin Cent. R. Co. v. United North Carolina: Morris v. Staton, States, 164 U. S. 190, 17 Sup. Ct. 45, 44 N. C. 464. 41 L. ed. 399. Oregon: Tucker v. Constable, 16 « Webb V. Ritler, 60 W. Va. 193, Oreg. 407, 19 Pac. 13. 54 S. E. 484. West Virginia: Janesville Hay « Building & Loan Assoc, v. Tool Co. v. ]5oyd, 35 W. Va. 240, 13 Sohn, 54 W. Va. 101, 46 S. E. 222. S. Iv 381. '"Illinois: Harrison v. National Wisconsin: Kendall v. Hynes Bank, 108 111. App. 493, case aff'd Lumber Co., 96 Wis. 659, 71 N. W. 207 111. 630, 69 N. E. 871. 1039. Indiana: Connecticut Mut. Life See Rawson v. State, 19 Conn. Ins. Co. V. Talbot, 113 Ind. 373, 14 292; Trandt v. Hagerman, 27 Ind. N. E. 586. App. 150, 60 N. E. 1011; Carey v. Missouri: Easley v. Bone, 39 Mo. Giles, 9 Ga. 253. App. :',HH. " Gray v. Cumberland County Nebraska: Williams v. Miles, 62 Commrs., 83 Me. 429, 22 Atl. 376. Neb ')()(], H7 N. W. 315; Mclnto.sh " (..^^.^^ Transportation Board, v. V. Johnson, 51 Neb. 33, 70 N. W. Fremont E. & M. V. R. Co., 22 Neb. 522. 313, 35 N. W. 118. 4n § 265 CONSTITUTIONAL LAW — INTERPRETATION § 265. Statutes in Pari Materia. — Statutes are in pari ma- teria which relate to the same thing or general subject-matter whether passed by the same legislature, or about the same time, or whenever passed, and even though they do not refer to each other, are to be construed together as one system in order to determine the legislative purpose and arrive at the true intent. ^^ If a thing contained in a subsequent statute be "United States: Cooper Man- County 24 Fla. 390, 5 So. 1; O'Don- ufacturing Co. v. Ferguson, 113 U. ovan, Ex parte, 24 Fla. 281, 4 So. 789. S. 727, 28 L. ed. 1137 (a case of Illinois: Chudnovski v. Eckels, state right to control foreign cor- 232 111. 312, 83 N. E. 846; Hunt v. porations; what is and is not do- Chicago Horse & Dummy Co., 121 ing business in State; interstate 111. 638, 644, 13 N. E. 176 (right of commerce); Ryan v. Carter, 93 U. street railway company to use city S. 78, 84, 23 L. ed. 807; Harring- streets); Meyer v. Hazelwood, 116 ton V. United States, 11 Wall. (78 111. 319, 323, 6 N. E. 480. U. S.) 356, 365, 20 L.ed. 167; United Indiana: Noerr v. Schmidt, 151 States V. Babbit, 1 Black (66 U. S.), Ind. 579, 583, 51 N. E. 332; Conn v. 55, 60, 17 L. ed. 94; United States Cass County Commrs., 151 Ind. 517, V. Walker, 22 How. (63 U. S.) 299, 51 N. E. 1062; State, Michener, v. 312, 16 L. ed. — ; Converse v. Uni- Harrison, 116 Ind. 300, 19 N. E. 146. ted States, 21 How. (62 U. S.) 463, Iowa: Eckerson v. City of Des 467, 16 L. ed. — ; United States v. Moines (Iowa, 1908), 115 N. W. 177. Freeman, 3 How. (44 U. S.) 556, 11 Kansas: Hall, In re, 38 Kan. 670, L. ed. 724; Patterson v. Winn, 11 17 Pac. 649. Wheat. (24 U. S.) 380, 385, 386, 6 I.. Louisiana: Richardson v. Richard- ed. 500; United States v. Trans-Mis- son, 38 La. Ann. 641. souri Freight Assoc, 58 Fed. 58, 67, Maine: French v. Cowan, 79 Me. 19 U. S. App. 36, 24 L. R. A. 73 426, 10 Atl. 335; Merrill v. Crossman, (interstate commerce; monopolies; 68 Me. 412. "pooling contracts" between com- Michigan: Simpkins v. Ward, 45 peting corporations, see same case, Mich. 559, 8 N. W. 507. 166 U. S. 290; United States v. Ben- Missouri: State, Brown, v. Klein, son, 31 Fed. 896. 116 Mo. 259, 22 S. W. 693; Stump Alabama: State v. Sloss, 83 Ala. v. Ho-rnback, 94 Mo. 26, 6 S. W. 326; 93, 3 So. 745 (a case of taxation of' Gibbins . v. Brittenum, 56 Mo. 251; gross receipts of business of corpora- Grimes v. Reynolds, 94 Mo. App. 578, tion). ' 68 S. W. 588. Colorado: People v. Raymond, 18 Nebraska: State v. Royse, 71 Neb. Colo. 242, 248, 19 L. R. A. 649, 32 1, 3, 97 N. W. 473, 98 N. W. 459; Pac. 429. State, Berry, v. Babcock, 21 Neb. 599. District of Columbia: United Nevada: State, Hallock, v. Don- States, Koechlin, v. Marljlc, 2 Mackey nelly, 20 Nev. 214, 19 Pac. 680. (D. C), 12. New Jersey: Gartner v. Cohen, Florida: Ferrari v. Escambia 51 N. J. L. 125, 16 Atl. 684. 412 OR CONSTRUCTION OF STATUTES CONTINUED § 265 within the reason of a former statute, it shall be taken to be within the meaning of that statute. And if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.^^ So a chapter of a certain enactment extending the power, jurisdiction and control of a court of visitation over telegraph companies and telegraphic service within a State will bB held in pari materia with another chapter of the statutes passed the same year creating a court of visitation and attempting to extend its power, jurisdiction and control over the railways of the State, and it must be construed in connection with that statute the same as though both chapters constituted one enactment. ^^ New York: Syracuse Water Co. v. cerning the same subject-matter, be- City of Syracuse, 116 N. Y. 167, ing in pari materia, are to be taken 179, 22 N. E. 381, 26 N. Y. St. R. and considered together to determine 364, 5 L. R. A. 546; Kilboume v. the legislative purpose and arrive at Supervisor of Sullivan F. St. R., 62 the true intent. Western Union Hun (N. Y), 210, 217, 41 N. E. 838, Teleg. Co. v. Austin, 67 Kan. 208, aff'g 137 N. Y. 170, 50 N. Y. St. R. 212, 72 Pac. 850. 376, 33 N. E. 159. Laws passed at the same session North Carolina: Wortham v. Bas- of the legislature and relating to the ket, 99 N. C. 70, 5 S. E. 401. same subject are in pari materia and Ohio: State, Attorney General, v. are to be construed together as one. Cincinnati Central R. Co., 37 Ohio Blackwell v. First National Bank, 10 St. 157, 170. N. M. 555, 63 Pac. 43. See also Gar- Pennsylvania: White V. Mead- ri.son v. Richardson (Tex. Civ. App., viUe, 177 Pa. 643, 34 L. R. A. 567, 1908), 107 S. W. 861. 27 Pitts. L. J. (N. S.) 97, 39 N. F. Other statutes are to be considered 102, 35 Atl. 695. even though not in force where mean- Tennessee: Graham v. Dunn, 3 ing doubtful. State, Michener, v. Pick. (87 Tenn.) 458, 462. Harrison, 116 Ind. 300, 19 N. E. 146; Texas: Garrison v. Richards (Tex. Stedman v. Merchants' & P. Bank, Civ. App., 1908), 107 S. W. 861. 69 Tex. 50, 6 S. W. 675. Statutes are in pari materia which. Antecedent and subsequent legis- whenever passed, relate to the same lation to be considered. Clray v. thing or general subject-matter, and Cumljerland County Commissioners, are to be construed together. State 83 Me. 429, 22 Atl. 370. V Gerhardt, 145 Ind. 439, 44 N. E. ''* United States v. Freeman, 3 469, 33 L. R. A. 313. How. (44 U. S.) 556, 11 L. ed. 724. Laws enacted by the same legisla- ''•' Western Union Teleg. Co. v. turc about the same time and con- Austin, 67 Kan. 208, 212, 72 Pac. 850. 413 §§ 266, 267 CONSTITUTIONAL LAW— INTERPRETATION §266. Statutes in Pari Materia Continued. —The whole system of which a statute forms a part should be considered and construed as one system and be read in pari materia.^^ So a clause in controversy may be construed in connection with previous acts upon the same subject, with other provi- sions of the same act and with a provisions of a statute upon which the subject-matter is dependent for its enforcement and with which as a system the statute in question forms a part." And where by the constitution of a State the subjects of land titles and taxation are, to some extent, united in one scheme or plan, all statutes relating to either and affecting the sub- ject-matter of the provisions of the article of the constitution in which they are set forth must be construed and interpreted in the light thereof and made to harmonize with and conform to said constitutional plan.^» The same principle has been applied in a Federal case where a statute and a clause of the constitution of a State imposing certain conditions upon for- eign corporations as prerequisites to their transacting business there were construed together as relating to the same subject- matter.^^ § 267. Statutes in Pari Materia Continued— Exception to or Qualification of Rule. — ^The rule in pari materia, that the similar terms of like statutes should receive like interpretations, does not apply where the provisions of the statute relative to the question in controversy are plain and explicit, as the rule is applicable only in case of ambiguity or doubt and because the objects intended to be accomplished, the evils to be reme- died, and the provisions necessary to attain them, are radi- cally different. It is decided, therefore, that the rule in pari materia is inapplicable to the Interstate Commerce Act and the Safety Appliance Act where the provisions of the latter are plain and explicit in relation to the question before the court.^" '^ Brace V. Solner, 1 Alaska, 361. ^^ Cooper Manufacturing Co. v. "Wabash, St. Louis & Pacific Ry. Ferguson, 11.3 U. S. 727, 28 L. ed. Co. V. Binhert, 106 111. 298, 306. 1137, 5 Sup. Ct. 739. ^8 Webb V. Ritter, 60 W. Va. 193, "" United States v. Colorado & 54 S. E. 484. Northwestern Rd. Co. (C. C. A.), 157 414 OR CONSTRUCTION OF STATUTES CONTINUED § 268 In the case in which this decision was rendered the court, per Sanborn, Cir. J., said: ''It is true that each act was a regula- tion of interstate commerce, but so are the Sherman Anti-Trust Act, the Employers' Liability Act, the various acts relating to the inspection of steamboats, and the navigation of the in- land rivers, lakes and bays, and many other acts, too numerous to mention or review. It does not follow from the facts that the Interstate Commerce Act was first passed, and that it regu- lates commerce among the States, and declares that its provi- sions shall apply to the members of a certain class of carriers engaged therein, that the Sherman Anti-Trust Act, the Safety Appliance Acts, and other subsequent acts regulating commerce apply to the members of that class only, in the face of the positive declarations of the later acts that they shall govern other parties and other branches of commerce. The subject of the first act was the contracts, the rates of transportation of articles of interstate commerce; the subject of the Safety Appliance Acts was the construction of the vehicles, the cars and engines which carry that commerce. The evils the for- mer was passed to remedy were discrimination and favoritism in contracts and rates of carriage; the evils the latter was en- acted to diminish were injuries to employees of carriers by the use of dangerous cars and engines. The remedy for the mis- chiefs which induced the passage of the former act was equality of contracts and rates of transportation; the remedy for the evils at which the latter act was leveled was the equipment of cars and engines with automatic couplers. Neither in their subjects, in the mischiefs they were enacted to remove, in the remedies required, nor in the remedies provided, do these acts relate to similar matters, and the rule that the words or terms of acts in pari materia should have similar interpretations ought not to govern their construction." ®^ § 268. Words or Provisions of Prior Statute Adopted in Fed. 321, .330, citing Endlich on Northwostom Rd. Co. (C. C. A.), 157 Intorp. of Stat. § .'53, p. 67. Fed. 321, 330. " United States v. Colorado & 415 § 269 CONSTITUTIONAL LAW — INTERPRETATION Later Act. — Words in a subsequent act are presumed to be used in the same sense as in a prior act under which they have acquired, through judicial interpretation, a definite meaning, unless a contrary intent appears.^' So the construc- tion of a subsequent statute will follow that of a previous one from which it is derived where the same words are em- ployed in the same connection. ^^ And where the Federal Supreme Court has given a construction to relative provisions in different parts of a statute, and Congress then makes a new enactment respecting the same subject-matter, with provi- sions in different sections bearing like relations to each other, and without indicating a purpose to vary from that construction, the court is bound to construe the two provisions in the differ- ent sections of the new statute in the same sense which, in previous statutes, had uniformly been given to them, and not invent a new application and relation of the two classes.^^ § 269. Derivative Statutes — Construction of Statutes Adopted from Foreign State or Country. — ^The known ad- judged construction of a statute by the highest court of a foreign State or country where it was enacted is generally to be given to it when such enactment is thereafter adopted by another State or country, unless such interpretation is contrary to the spirit and policy of the adopting State, or country, or unless circumstances are so different as to necessitate a dif- ferent rule.'^'^ So if Congress adopts a state statute it adopts 8=' The Abbotsford, 98 U. S. 440, 25 v. Rathbone, 175 U. S. 414, 20 Sup. L. ed. 168. Ct. 155, 44 L. ed. 219, case reverses '^ Guggenheim Smelting Co., In re, 9 App. D. C. 48. 121 Fed. 153; Cooper V. Yoakum, 94. '*CIaflin v. Commonwealth Ins. Tex. 391, 43 S. W. 871 (words of later Co., 110 U. S. 81, 28 L. ed. 76, 3 Sup. statute adopted from earlier one, Ct. 507. adopts construction); Sanders v. '^ United States : James v. Appel, Bridges, 67 Tex. 93, 2 S. W. 663 (stat- 192 U. S. 129, 24 Sup. Ct. 224, 48 ute adopting language of prior enact- L. ed. 328 (a statute copied from a ment adopts its construction by high- similar statute of a foreign State or est tribunal. country is generally presumed to be Prior acts may be cited to solve but adopted with the construction which not to create an amhiguiUj. Hamilton it already has received); Henrietta 416 OR CONSTRUCTION OF STATUTES CONTINUED § 269 its construction.^® But the rule that the known and settled construction of the statute of one State will be regarded as Mining & Milling Co. v. Gardner, 173 with the company by a city; limita- U. S. 123, 43 L. ed. 637, 19 Sup. Ct. tion of indebtedness of municipality). 327; Boise City Artesian Hot & Cold Kansas: Missouri Pac. Ry. Co. Water Co. v. Boise City, 123 Fed. v. Haley, 25 Kan. 35, 53 (Comp. 232; Coulter v. Stafford (C. C), 48 Laws, 1879, chap. 84, § 29, adopted Fed. 266. from another State, making railroad Arizona: Costello v. Muheim companies hable for damages to (Ariz., 1906), 84 Pac. 906. Compare employee by negligence of its agents, Copper Queen Consol. Mining Co. v. etc.). Compare State v. Campbell Territorial Board of Equahzation (Kansas, 1906), 85 Pac. 784. (Ariz., 1906), 84 Pac. 511. Massachusetts: Ryalls v. Me- Arkansas: McNutt v. McNutt chanics Mills, 150 Mass. 190, 191- (Ark., 1906), 95 S. W. 778. 193, 5 L. R. A. 667, 22 N. E. 766 Florida: Atlantic Coast Line Rd. (Employers' Liability Act, Stat. Co. V. Beazley (Fla., 1908), 45 So. 1887, c. 270, copied verbatim with 761 (imless contrary to the spirit and same variations of detail from the poHcy of the laws of the adopting Enghsh Stat., 43 & 44 Vict., c. 42); State; a case of liability of railroad Pratt v. American Bell Teleph. Co., company; fellow servant). 141 Mass. 225, 227, 5 N. E. 307, 55 Colorado: Chilcott v. Hartm, 23 Am. St. Rep. 465 (Stock Jobbing Colo. 40, 45 Pac. 391, 35 L. R. A. 41; Act, Pub. Stat., c. 78, § 6). Omaha & G. Smelting & Refining Co. Minnesota: Nicolet National Bank v. Tabor, 13 Colo. 41, 5 L. R. A. 226, v. City Bank, 38 Minn. 85, 8 Am. 21 Pac. 925, 2 Denver Leg. N. 281. St. Rep. 643, 35 N. W. 577. Connecticut: See West Hartford Missouri: Bowers v. Smith, 111 V. Hartford Water Commrs., 68 Conn. Mo. 45, 20 S. W. 101, 16 L. R. A. 323, 36 Atl. 786. 754, 35 Cent. L. J. 305, 46 Alb. L. Dakota: White v. Chicago, M. & Jour. 204, aff'g 17 S. W. 76 (statutes St. Paul R. Co., 5 Dak. 508, 41 N. from other States construed in sub- ■y^ 730. ordination to their constitution and District of Columbia: Strasburger laws), v. Dodge, 12 App. D. C. 37, 26 Montana: Oleson v. Wilson, 20 Wash. L. Rep. 8 (adopted without Mont. 544, 52 Pac. 372, 63 Am. St. material change, carries construe- Rep. 639; First National Bank v. tion). Bell Silver & Copper Mining Co., 8 Idaho: Stein v. Morrison, 9 Idaho, Mont. 32, 19 Pac. 403. Compare 426 75 Pac. 246. Ancient Order of Hibernians v. Indiana: Laporte, City of, v. Sparrow, 29 Mont. 132, 74 Pac. 197, Gamewcll Fire Alarm Teleg. Co., 64 L. R. A. 128. 146 Ind. 466, 469, 45 N. E. 588, 35 Nebraska: Forester v. Kearney L. R. A. 686, 58 Am. St. Rep. 359 National Bank, 49 Neb. 655, 68 N. W. (contract for fire alarm system made 1059. " Willis v. Eastern Trust & Ct. 347, 42 L. ed. 752, 26 Wash. L. Banking Co., 169 U. S. 295, 18 Sup. Rep. 166. 27 417 § 269 CONSTITUTIONAL LAW — INTERPRETATION accompanying its adoption by another is not applicable where that construction had not been announced when the statute was adopted; nor when the statute is changed in the adop- tion.^'' Nor is such construction absolutely binding where it is subsequently overruled in the State of original enactment.^* And where a statute of one State has been substantially adopted in another and as enacted in the latter is adopted in still another State and the second adopting State had declined to follow the construction of the State of its original enactment, and a case arose in the third adopting State, the court was held at liberty to follow its own judgment in the interpretation of the statute and was not obliged to follow the construction given such enactment by the second adopting State. ^'^ Again, subsequent additions and modifications of adopted statutes are not adopted where there is not an expressed or strongly implied intent so to do.™ Where English statutes have been New Jersey: State, Anderson, v. Utah: State v. Mortensen, 26 Camden, 58 N. J. L. 515, 33 Atl. 846. Utah, 312, 73 Pac. 562, 633; Dixon North Carolina: Bridgers v. Tay- v. Ricketts, 26 Utah, 215, 72 Pac. lor, 102 N. C. 86, 8 S. E. 893, 3 947; People v. Ritchie, 12 Utah, 180, L. R. A. 376. 42 Pac. 209. Oklahoma: National Live Stock Wisconsin: State, Rogers, v. Commission Co. v. Taliaferro (Okla., Wheeler, 97 Wis. 96, 72 N. W. 225; 1908), 93 Pac. 983. Milwaukee County v. Sheboygan, 94 South Dakota: Yankton Sav. Wis. 58, 68 N. W. 387; Pomeroy v. Bank v. Gutterson, 15 S. Dak. 486, Pomeroy, 93 Wis. 262, 67 N. W. 430, 90 N. W. 144; Adams v. Grand Such construction must have been by Island & W. C. R. Co., 10 S. Dak. highest court and so long established as 239, 72 N. W. 577. to raise presumption that legislature Tennessee: Compare Smith v. adopting it knew of such construc- Dayton Coal & Iron Co., 115 Tenn. tion. Smith v. Baker, 5 Okla. 326, 543. 49 Pac. 61. «' Stutsman County v. Wallace, & Rio Grande R. Co., 25 Colo. 177, 142 U. S. 293, 35 L. ed. 1018, 12 53 Pac. 454, 30 Chic. Leg. N. 427, Sup. Ct. 227 (taxation; sales for 10 Am. & Eng. R. Cas. (N. S.) 708. taxes; railroads; lands). "' Oleson v. Wilson, 20 Mont. 544, Statute adopted from another 52 Pac. 372, 63 Am. St. Rep. 639. State; rule as to adoption of con- *' Coulam v. Doull, 133 U. S. 216, struction and presumption that legis- 33 L. ed. 596, 10 Sup. Ct. 253. lature had such construction in mind ™ Postal Teleg. Cable Co. v. South- does not apply to decisions rendered em R. Co. (C. C), 89 Fed. 190; after such adoption. Olin v. Denver Andrews v. People, 173 111. 123, 50 418 OR CONSTRUCTION OF STATUTES CONTINUED § 270 adopted into our own legislation, the known and settled con- struction of those statutes by courts of law, has been con- sidered as silently incorporated into the acts, or has been re- ceived with all the weight of authorityJ^ When a British stat- ute is adopted by Congress by reference, such adoption always refers to the law existing at the time of adoption only and no subsequent British legislation affects itJ^ § 270. Re-enactment — Consolidation — Revised Statutes — Codes. — Where the language of a statute which has re- ceived a construction by the highest court is adopted by re- enactment, or by a revision or consolidation of statutes or codes, it carries with it the construction given it before such adoption, unless it is clearly manifest that the legislature intended that it should, as adopted, receive a different interpre- tation/^ The presumption is, in such case, that the legisla- N. E. 335; Court of Insolvency v. The construction which British Meldon, 69 Vt. 110, 38 Atl. 167. statutes had received in England, at "McDonald v. Hovey, 110 U. S. the time of their adoption in this 619, 28 L. ed. 269, 4 Sup. Ct. 142. country, indeed, to the time of the The rule uniformly observed by separation of this country from the the Federal Supreme Court, in con- British empire, may very properly st ruing statutes is to adopt the con- be considered as accompanying the struction made by the courts of the statutes themselves, and forming an country, by whose legislature the integral part of them; but however statute was enacted. This rule may subsequent decisions may be re- be susceptible of some modification spected, and they are entitled to when applied to British statutes great respect, their absolute authority which are adopted in any of the is not admitted; if the English courts States; by adopting them they be- vary their construction of a statute come our own, as entirely as if they which is common to both countries, had been enacted by the legislature the Federal Supreme Court asserts of the State. Cathcart v. Robinson, that it does not hold itself bound to 5 Pet. (30 U. S.) 264, 8 L. ed. 120. fluctuate with them. Cathcart v. See Brown v. Walker, 161 U. S. 591, Robinson, 5 Pet. (30 U. S.) 264, 8 600, 40 L. ed. 819, 16 Sup. Ct. 644, L. ed. 120. per Brown, J. ''^ United States: Sessions v. Ro- Statutes adopted from England; madka, 145 U. S. 29, 36 L. ed. 609, construction there will be of force. 12 Sup. Ct. 799 (where the Revised Jarvis v. Hitch, 161 Ind. 217, 67 Statutes adopt language of a previous N. E. 1057, citing numerous cases. statute, Congress must be considered " Kendall v. United States, 12 Pet. as a(l()i)ting that construction). (37 XI. S.) 524, 9 L. ed. 1181. Alabama: Potter v. State, 92 419 § 270 CONSTITUTIONAL LAW — INTERPRETATION ture had in mind a linown judicial construction /'« And where the language of the revision is fairly consistent with that of a prior statute it will be presumed that the revisers have not changed the law 7^ If the United States Supreme Court has construed relative provisions in different parts of a statute and Congress then makes a new enactment on the same subject- matter, with provisions bearing like relations, they must be construed in the same way 7^ But an act included in a code by the codifier is not a part of such code when the latter was adopted before the passage of the act, and the enactment should be construed in the form in which it was enacted, in- dependently of the code;^' and a statute is not given greater efficacy by embodying it in a statutory revision.'* If the meaning is plain the courts cannot look to the statutes codi- fied in the Revised Statutes, and repealed with their enactment, to see if Congress erred in that revision, but may do so when necessary to interpret obscure and ambiguous phrases in the revision or to construe doubtful language used in expressing the meaning of Congress.'^ Again, upon a revision of statutes Ala. 37, 9 So. 402; Snider v. Barks, Co., 110 U. S. 81, 28 L. ed. 76, 3 Sup. 84 Ala. 53, 4 So. 225; Woolsey v. Ct. 507. Cade, 54 Ala. 378, 25 Am. Rep. 711. " Rayford v. Faulk (Ala., 1908), Indiana: Hilliker v. Citizens' St. 45 So. 714 (an act to regulate insur- Ry. Co., 152 Ind. 86, 52 N. E. ance business). 607. " Knight v. Ocean County, 49 Nebraska: State, Pearson, v. Cor- N. J. L. 485, 12 Atl. 625. nell, 54 Neb. 647, 75 N. W. 25. '' Bate Refrigerating Co. v. Sulz- Texas: Hussey v. Moser, 70 Tex. berger, 157 U. S. 1, 15 Sup. Ct. 508, 42, 7 S. W. 606. 39 L. ed. 601 ; Dwight v. Merritt, 140 Wisconsin: State, Rochester, v. U. S. 213, 11 Sup. Ct. 568, 35 L. ed. Racine County, 70 Wis. 543, 36 450. N. W. 399. The Revised Statutes of the '♦ Woolsey v. Cade, 54 Ala. 378, United States must be accepted as 25 Am. Rep. 711. See White v. law on the subjects they embrace, as State, 134 Ala. 197, 32 So. 320; it existed December 1, 1873. When Camp V. Wabash R. Co., 94 Mo. App. their meaning is plain the court can- 272, 68 S. W. 96. not recur to the original statutes to " Dufiield v. Pike, 71 Conn. 521, 42 see if errors were committed in revis- Atl. 641; Bartram v. Hopkins, 71 ing them, but may do so when neces- Conn. 505, 42 Atl. 645. sary to interpret or construe doubtful '"Claflin V. Commonwealth Ins. language. United States v. Bowen, 420 OR CONSTRUCTION OF STATUTES CONTINUED § 270 a different meaning is not to be given to them without some substantial change of phraseology other than what may have been necessary to abbreviate the form of law.*" But a change in the phraseology creates a presumption of change of intent of the legislative body from that expressed in the former statute.*^ And when the purpose of a prior law is continued, its words usually are so that an omission of the words implies an omission of the purpose;*^ that is, if the same subject- matter is covered by the Revised Statutes of a State, the failure to include the provisions of an earlier statute on the subject operates as a repeal thereof.* So a code revision, repealing all acts relating to the subject codified, repeals provisions omitted therefrom under corresponding sections.*"* A statute revising the whole subject-matter of a prior one impliedly repeals it.*^ So a statutory revision of the entire law as to the fire insurance business, including the right of foreign insurance corporations to transact business in the State, repeals prior statutes relating to foreign insurance companies doing business 100 U. S. 508, 25 L. ed. 631, followed Where statutes are consolidated in Bate Refrigerating Co. v. Sulz- reference may be had to the intcr- berger, 157 U. S. 1, 39 L. ed. 601, pretation of original acts so con- 15 Sup. Ct. 508 (which is cited in sohdated. Hooper v. Creager, 84 Hamilton v. Rathbone, 175 U. S. Md. 358, 36 Atl. 359, 35 L. R. A. 210, 414, 421, 44 L. ed. 219, 20 Sup. Ct. denying rehearing of 84 Md. 195, 35 155, which cites United States v. Atl. 967, 1103, 35 L. R. A. 202. Lacher, 134 U. S. 624, 10 Sup. Ct. Compare Gaines v. Marye, 94 Va. 625, 33 L. ed. 1080; United States v. 225, 26 S. E. 511. Averill, 130 U. S. 335, 32 L. ed. 977, «" McDonald v. Hovey, 110 U. S. 9 Sup. Ct. — ; Cambria Iron Co. v. 619, 28 L. ed. 269, 4 Sup. Ct. 142. Ashbum, 118U. S. 54, 6Sup. Ct. 929, "Crawford v. Burke, 195 U. S. SOL.ed. 60;Deffebackv. Hawke, 115 176, 25 Sup. Ct. 9, 49 L. ed. U. S. 392, 6 Sup. Ct. 95, 29 L. ed. 147. 423), approved in Arthur v. Dodge, " Price v. Chicago Title & Trust 101 U. S. 34, 29 L. ed. 948. Co., 182 U. S. 438, 45 L. ed. 1171, 21 Original statutes examined in con- Sup. Ct. 906. struing code, to give effect originally " National Bank v. Williams, 38 intended. Gunter v. State, 83 Ala. Fla. 305, 20 So. 931. 96, 3 So. 600. ^* Packett v. Ducktown Sulphur In case of compiled codes resort C. & I. Co., 97 Tenn. 090, 37 S. W. may be had to original for construe- 698. tion. Runnels v. State (Tex. Civ. " Keese v. Denver, 10 Colo. 112, App., 1903), 77 S. W. 458. 15 Pac. 825. 421 § 271 CONSTITUTIONAL LAW — INTERPRETATION in the State. *^ Substantial provisions of an old statute enacted into a new one with slight modifications make the new statute to operate as a continuation of the old one with the added modifications.*^ But the re-enactment continues the statute in force and does not repeal and re-enact.** § 271. Construction by a State of Its Statutes— How Far Respected in Courts of Other States.— The interpretation of the statutes of a State by its highest judicial tribunal will ordinarily be followed by the courts of other States as an au- thoritative exposition of the construction of the statute, even though a different construction might have been given to the same language by the court which follows such interpretation. But it is held that the rule does not apply to questions under general or common law.*^ Illinois: Van Matre v. Sankey, 148 111. 536, 39 Am. St. Rep. 196, 36 N. E. 628, 23 L. R. A. 665 (will ordinarily be accepted although dif- ferent construction might have been given to same language by court construing same). Iowa: Franklin v. Twogood, 25 Iowa, 520, 96 Am. Dec. 73 (will be followed, but rule does not apply to questions under general or common law). Kansas: Hamilton v. Hannibal & St. Joseph Rd. Co., 39 Kan. 56, 18 Pac. 57 (action for damages for per- son killed brought in Kansas under Missouri statute). New Jersey: Watson v. Lane, 52 N. J. L. 550, 10 L. R. A. 784, 20 Atl. 894 (will be accepted as conclusive). New York: Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491 (will be controlling; action by personal representative for death from injury received in an- other State). North Carolina: Watson v. Orr, 14 N. C. 161. '^ Continental Ins. Co. v. Riggen, 31 Oreg. 336, 48 Pac. 476, 26 Ins. L. J. 590. '^ Bear Lake & River Waterworks & Irrig. Co. v. Garland, 164 U. S. 1, 17 Sup. Ct. 7, 41 L. ed. 327. See Matter of Prime, 136 N. Y. 347, 49 N. Y. St. R. 658, 32 N. E. 1091, aff'g 64 Hun, 50, 18 N. Y. Supp. 603, 45 N. Y. St. R. 832; McAvoy v. City of New York, 52 N. Y. App. Div. 485, 488; Marsh v. Kaye, 44 N. Y. App. Div. 68, 74; Roddy v. Brooklyn Heights R. Co., 23 'Misc. 373; Taylor v. Empire State Sav. Bank, 66 Hun, 540; N. Y. Stat. Const. Law (L. 1892, chap. 677), § 32. 8^ State V. Kibhng, 63 Vt. 636, 22 Atl. 613. ^' United States: Bate Refrigerat- ing Co. V. Gillett (C. C), 20 Fed. 192. Alabama: Bloodgood v. Grasey, 31 Ala. 575. Compare Nelson v. Goree, 34 Ala. 565. Georgia: Clark v. Turner, 73 Ga. 1 (judgment court of State where cor- poration chartered, construing char- ter will be followed). 422 OR CONSTRUCTION OF STATUTES CONTINUED § 272 § 272. Construction of State Constitutions and Statutes by State Courts— How Far Respected by Federal Courts.— It is a well-recognized general rule that the construction or interpretation by the highest court of a State of its own con- stitution and statutes are binding upon and will be followed by the Federal courts,''^ however much they may doubt the Pennsylvania: Grant v. Henry Covington v. Kentucky, 173 U. S. Clay Coal Co., 80 Pa. 208; Merrimac 231, 19 Sup. Ct. 383, 43 L. ed. 679; Mining Co. v. Levy, 54 Pa. 227, 93 Backus v. Fort St. Union Depot Co., Am. Dec. 697 (charter of another 169 U. S. 557, 42 L. ed. 853, 18 Sup. State; rights and duties of stock- Ct. 445; Stutsman County v. Wal- holders thereunder). lace, 142 U. S. 293, 35 L. ed. 1018, 12 Texas:Powellv. DeBlane, 23Tex. Sup. Ct. 227; Norton v. Shelby 66 (binding as to rights of property County, 118 U. S. 425, 6 Sup. Ct. and of action depending on these 1121, 30 L. ed. 178; State Railroad laws). Tax Cases, 92 U. S. 575, 23 L. ed. Vermont: Blaine v. Curtis, 59 Vt. 663; Nesmith v. Sheldon, 7 How. 120, 59 Am. Rep. 702, 7 Atl. 708. (48 U. S.) 812, 12 L. ed. 925. Washington: Whitman v. Mast, If the state statute as construed by Buford & Burwell Co., 11 Wash. 318, its highest court is valid under the 39 Pac. 649, 48 Am. St. Rep. 874 Federal Constitution, the Federal Su- (assignment, and effect on property preme Court is bound by that con- elsewhere), struction. New York Central & West Virginia: Mimick v. Ming Hudson River Rd. Co. v. Miller, 202 Iron Works Co., 25 W. Va. 184 (lia- U. S. 584, 50 L. ed. — , 26 Sup. Ct. bility of stockholders). — ; Minnesota Iron Co. v. Kline, 199 "> Strickley v. Highland Boy Gold U. S. 593, 26 Sup. Ct. 159, 50 L. ed. Min. Co., 200 U. S. 527, 50 L. ed. 581, 322. 26 Sup. Ct. 301 (following Clark v. In a matter of local and non- Nash, 198 U. S. 361, 25 Sup. Ct. 676, Federal concern where no Federal 49 L. ed. 1081); West v. Louisiana, question is involved the Federal Su- 194 U. S. 258, 48 L. ed. 965, 24 Sup. preme Court adopts and follows the Ct. 650; (^arstairs v. Cochran, 193 construction uniformly given to the U. S. 10, 24 Sup. Ct. 318, 48 L. ed. constitution and laws of a State by 596; American Steel & Wire Co. v. its highest court. Board of Liquida- Speed, 192 U. S. 500, 24 Sup. Ct. tion of New Orleans v. Louisiana, 179 365, 48 L. ed. 538; People's National U. S. 622, 45 L. ed. 347, 21 Sup. Ct. Bk. V. Marye, 191 U. S. 272, 48 L. ed. — ; Fairfield v. County of Gallatin, 180, 24 Sup. Ct. 68; Schaefer v. 100 U. S. 47, 25 L. ed. 544. Werling, 188 U. S. 516, 47 L. ed. State court construction conclusive 570, 23 Sup. Ct. 449; Iowa Life Ins. in a case not involving any question Co. V. Lewis, 187 U. S. 335, 23 Sup. re-examinable in the Federal Su- Ct. 126, 47 L. ed. 204; Louisville & preme Court under the twenty-fiftli N. R. Co. V. Kentucky, 183 U. S. section of the Judiciary Act. Provi- 603, 46 L. ed. 298, 22 Sup. Ct. 95; dent Institution v. Massachusetts, 6 423 § 272 CONSTITUTIONAL LAW— INTERPRETATION soundness of the interpretation,"! and even though the state Supreme Court may have determined the meaning and scope of the statute by pursuing a rule of construction different from that recognized by the Federal court.''' The words of Chief Justice Marshall are pertinent, they are as follows: "This court has uniformly professed its disposition, in cases depending upon the laws of a particular State, to adopt the construction which the courts of the State have given to those laws. This course is founded on the principle, supposed to be universally recognized, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus no court in the universe, which professed to be governed by prin- ciple, would, we presume, undertake to say, that the courts of Great Britain, or of France, or of any other nation, had mis- understood their own statutes, and therefore erect itself into a tribunal which should correct such misundertanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute. On this principle, the construction given Wall. (73 U. S.) 611, 18 L. ed. Black (67 U. S.) 599, 17 L. ed. 261, 907. and numerous other judgments so Federal Supreme Court bound by decided all concede this." Talcott decision of highest state court that a v. Township of Pine Grove, 1 Flipp. state statute does not violate any (U. S. C. C.) 120, 123, Fed. Cas. provision of the state constitution No. 13,735, per Emmons, Cir. J., case and is valid so far as that instrument aff'd Township of Pine Grove v. is concerned. Jack v. Kansas, 199 Talcott, 19 Wall. (86 U. S.) 666, 22 U. S. 372, 50 L. ed. 234, 26 Sup. Ct. L. ed. 227. The decision in the Cir- 73; People's National Bank v. Marye, cuit Court in this case specifies when 191 U. S. 272, 24 Sup. Ct. 68, 48 the decisions of the state court will L. ed. 180; Carstairs v. Cochran, 193 not be followed and in the opinion U. S. 10, 24 Sup. Ct. 318, 48 L. ed. cites a series of cases decided in 596. twenty-six States. "As a general rule, to which there " Covington v. Kentucky, 173 are rare exceptions, the United States U. S. 231, 43 L. ed. 679, 19 Sup. Ct. courts will, in the construction of 383. state statutes or constitutions, follow '^ Smiley v. Kansas, 196 U. S. 447, the decisions of the highest courts of 49 L. ed. 546, 25 Sup. Ct. 276. the State, Leffingwell v. Warren, 2 424 OR CONSTRUCTION OF STATUTES CONTINUED § 273 by this court to the Constitution and laws of the United States is received by all as the true construction; and on the same principle, the construction given by the courts of the several States to the legislative acts of those States, is received as true, unless they come into conflict with the Constitution, laws or treaties of the United States." ^^ § 273. Same Subject Continued. — ^A suggested construc- «3 Elmendorf v. Taylor, 10 Wheat. (23 U. S.) 152, 159, 6 L. ed. 289, per Marshall, C. J., cited in Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U. S. 91, 100, 44 L. ed. 84, 20 Sup. Ct. 33 (to point questions of public policy, as aflfecting the habihty for acts done, or upon contracts made and to be performed, within one of the States of the Union — when not controlled by the Constitution, laws or treaties of the United States, or by the princi- ples of the commercial or mercantile law or of general jurisprudence, of national or universal appUcation — are governed by the law of the State, as expressed in its own constitutions and statutes, or declared by its high- est courts); quoted in Hilton v. Guyot, 159 U. S. 113, 194, 40 L. ed. 95, 16 Sup. Ct. 139; cited to same point in McArthur v. Scott, 113 U. S. 340, 391, 28 L. ed. 1015, 5 Sup. Ct. 652; cited and principle considered in Burgess v. Seligman, 107 U. S. 20, 32-34, 2 Sup. Ct. 10, 27 L. ed. 359 (but court said it did not consider itself bound to follow the decision of the state court in that case); cited in Fairfield v. Coimty of Gallatin, 100 U. S. 47, 52, 25 L. ed. 544 (rule recognized but subject to "some ex- ceptions"); cited in Gelpcke v. City of Dubuque, 1 Wall. (68 U. S.) 175, 210, 17 L. ed. 520, in di.s.senting opinion, per Miller, J. (principle well settled but applicability to that case considered); cited and explained in Luther v. Borden, 7 How. (48 U. S.) 1, 58, 12 L. ed. 581; cited in Foxcroft v. Mallett, 4 How. (45 U. S.) 353, 11 L. ed. 1008 (but held not apphcable); cited in Beals v. Hale, 4 How. (45 U. S.) 37, 54, 11 L. ed. 865 (principle controlling, but judgment in this case not by highest state court); quoted in part and followed in Zeiger v. Penn- sylvania R. Co., 158 Fed. 809, 811; quoted in part in Kessler v. Arm- strong Cork Co., 158 Fed. 744, 753, per Noyes, Cir. J., in dissenting opin- ion; explained and followed, with qualifications, in same case. Id., 750; quoted in part and followed in York V. Washburn, 129 Fed. 564, 567 ("it is a cardinal rule"); cited in Parker v. Moore, 115 Fed. 799, 802 (to point that contracts valid in State or country where made will be enforced in another State except where contrary to good morals, etc.); cited and followed in Thompson v. M'Connell, 107 Fed. 33, 36 (such decisions are binding); cited and fol- lowed in Ijouisville & Nashville Rd. Co. v. Lansford, 102 Fed. 62, 66 (binding on courts of United States, as a rule of decision); cited and fol- lowed in Williams v. Gold Hill Min. Co., 96 Fed. 454, 465. 425 § 273 CONSTITUTIONAL LAW — INTERPRETATION tion of a state statute which would lead to a manifest absurdity and which has not, and is not likely to receive judicial sanc- tion, will not be accepted by the United States Supreme Court as the basis of declaring the statute unconstitutional when the courts of the State have given it a construction which is the only one consistent with its purposes and under which it is constitutional.^^ And in the case of an appeal from the judg- ment of the Supreme Court of a Territory, which was admitted as a State after the appeal was taken, a subsequent judgment of the highest court of the State upon the construction of a territorial law involved in the appeal is entitled to be followed by the Federal Supreme Court, in preference to its construction by the Supreme Court of the Territory .^^ While the Supreme Court of the United States does not take judicial notice of the decisions of the courts of one State in a case coming from the courts of another State, it may properly refer to the opinion of the highest court of a State as to the construction of a stat- ute of that State, when such statute is involved in the case before the Federal court; and this applies to a decision ren- dered after the judgment appealed from was rendered.^® If the courts of one State fully consider the statute of another State and the decisions of the courts of that State construing it, and the case turns upon the construction of the statute and not upon its validity, due faith and credit is not denied by one State to the statute of another State, and the manner in which the statute is construed is not necessarily a Federal question."^ Again, although the state court may refer to and uphold a statute, the constitutionality of which is attacked, if it does so after stating the rule at common law and that the statute is merely declaratory thereof the judgment is based on the common-law rule and no Federal question exists that the " Adams v. New York, 192 U. S. the highest courts of two States of a 585, 48 L. ed. 575, 24 Sup. Ct. 372. statute of one of the States held to "5 Stutsman County v. Wallace, commend itself to the Federal court 142 U. S. 293. as a correct construction). " Eastern Bldg. & Loan Assn. v. *' Johnson v. New York Life Ins. Williamson, 189 U. S. 122, 47 L. ed. Co., 187 U. S. 491, 47 L. ed. 273, 23 735, 23 Sup. Ct. 527 (construction by Sup. Ct. 194. 426 OR CONSTRUCTION OF STATUTES CONTINUED § 274 Federal court can review.''* So the limit of interference by the Federal Supreme Court with the judgments of state courts is reached when it appears that no fundamental rights have been disregarded by the state tribunals .^^ And whether the proceedings in the enactment of a state statute conform with the state constitution is to be determined by the state court, and its judgment is final. ^ § 274. Same Subject Continued — ^Exceptions to or Quali- fications of Rule. — The general rule that the construction or interpretation given by the highest state courts to state laws and constitutions is binding and conclusive on the Federal courts is not applicable where they conflict with or impair some principle of the Federal Constitution, or of a Federal statute, or a rule of commercial or general law, or the treaties of the United States.^ Nor does the rule extend to cases in which the Federal Supreme Court is called on to interpret the contracts of States, though they have been made in the form of laws or by functionaries of the State in pursuance of state laws. Fidelity to the Constitution of the United States makes it necessary, that in such a matter that court should not follow the construction of a state court with whose opinion it cannot concur, and it makes no difference in the obligation whether the contract is in the shape of a law or a covenant by the State's agents.^ So where the decisions of the highest court of a State show that it regarded the construction and appli- cation of a statute as open for review if another case arose, its prior determination of the questions does not necessarily •'Arkansas Southern Ry. Co. v. ^ Norton v. Shelby County, 118 German National Bank, 207 U. S. U. S. 425, 30 L. ed. 178, 6 Sup. Ct. 270, 271. 1121; Elemendorf v. Taylor, 10 »« Backus V. Fort St. Union Depot Wheat. (23 U. S.) 152, 159, 6 L. ed. Co., 169 U. S. 557, 42 L. ed. 853, 18 289. Sup. Ct. 445. ' Jeffer-son Bank v. Skelly, 1 Black ' Smith V. Jennings, 206 U. S. 276, (66 U. S.), 436, 17 L. ed. 173 (fran- 29 Sup. Ct. — , 51 L. ed. — . See chisc grants; construction; waiver also Wilkes County v. Coler, 180 of sovereignty; bank charters; tax U. S. 506, 21 Sup. Ct. 458, 45 L. ed. exemption irrevocable; subsequent 642. constitutional provision). 427 § 275 CONSTITUTIONAL LAW — INTERPRETATION have to be adopted and applied by the Federal courts in cases where the cause of action arose prior to any of the adjudica- tions by the state court. ^ And where the law has not been definitely settled, it is the right and duty of the Federal courts to exercise their own judgments.^ §275. Same Subject Continued — Instances— Incorpora- tion Acts— Eminent Domain— Corporate Powers.— Where the Constitution of a State prohibits the legislature from "passing any act of incorporation unless with the assent of at least two-thirds of each house," the judgment of the legis- lature is required to be exercised upon the propriety of creat- ing each particular corporation, and two-thirds of each house must sanction and approve each individual charter; and the Supreme Court of the State having so construed its constitu- tion such construction will be adopted by the Federal Supreme Court.® And whether the statutes of a State authorize the incorporation of a bridge company to construct a bridge over a navigable river separating it from another State; whether such statutes confer the right of eminent domain on a corpo- ration of another State, and whether such corporation can exercise therein powers other than those conferred by the State of its creation, are all questions of state law, involving no Federal questions, and the rulings of the highest court of the State are final and conclusive upon the Supreme Court of the United States .'' So the Federal courts will follow the con- struction of the highest court of a State that its statute is constitutional ; and there is nothing in the Fourteenth Amend- ment which prevents a State in carrying out its declared pub- * Brunswick Terminal Co. v. Na- ' Nesrnith v. Sheldon, 7 How. (48 tional Bank of Baltimore, 192 U. S. U. S.) 812, 12 L. ed. 925. See Wilkes 386, 48 L. ed. 491, 24 Sup. Ct. — (lia- County v. Coler, 180 U. S. 506, 45 L. bility of stockholders; construction ed. 642, 21 Sup. Ct. 458. of statute; banks; transfer of stock). ' Stone v. Southern Illinois & ' Stanley County v. Coler, 190 Missouri Bridge Co., 206 U. S. 267, U. S. 437, 23 Sup. Ct. 811, 47 L. ed. 27 Sup. Ct. — 51 L. ed. — , aff'g 1126 (counties; bonds in aid of rail- 194 Mo. 175. roads; validity). 428 OR CONSTRUCTION OF STATUTES CONTINUED § 276 lie policy from requiring individuals to make to each other, on due compensation, such concessions as the public welfare demands; and a state statute providing that eminent domain may be exercised for railways and other means to facilitate the working of mines is not unconstitutional.* And, gen- erally, the settled rule of the Federal Supreme Court in cases for the determination of the amount of damages to be paid for private property condemned and taken for public use, is that it accepts the construction placed by the Supreme Court of the State upon its own constitution and statutes.^ But the Federal Supreme Court has no jurisdiction under the twenty-fifth section of the Judiciary Act of 1789 whether or not a law of a State is in opposition to the constitution of that State. Therefore, where it is alleged that the constitu- tion of a State declares that private property shall not be taken, and that the highest court of the State has sustained the validity of a law which violates this constitutional pro- vision, that court has no power to review that decision.^" §276. Same Subject — Instances Continued — Common Carriers — Railroads. — When the highest court of a State holds that a statute fixing the liability of common carriers applies to shipments made to points without the State, the Federal Supreme Court must accept that construction of the statute." So all questions arising under the constitution and laws of a State are foreclosed by the decisions of the state courts for the purposes of a cause concerning the duties of receivers of railroads, the right of a municipality to regulate the speed of railroad trains within its limits, and to make exceptions in relation thereto, even though such trains are interstate trains, in the absence of congressional action on » Strickley v. Highland Boy Gold Co., 169 U. S. 557, 42 L. cd. 85.3, 18 Mining Co., 200 U. S. 527, 50 L. cd. Sup. Ct. 445. 581, 26 Sup. Ct. 301, following Clark '"Withers v. Buckley, 20 How. V. Nash, 198 U. S. 361, 25 Sup. Ct. (61 U. S.) 84, 15 L. ed. 810. 676, 49 L. ed. 1085. " Central of Georgia Ry. Co. v. • Backus V. Fort St. Union Depot Murphey, 196 U. S. 194, 49 L. ed. 444, 25 Sup. Ct. 218. 429 § 276 CONSTITUTIONAL LAW — ^INTERPRETATION the subject. ^^ So a state statute,^^ providing that the liabiUty of raih'oad companies for damages to employees shall not be diminished by reason of the accident occurring through the negligence of fellow servants, and excepting from its provisions damages sustained by employees engaged in construction of new and unopened railroads, does not, as interpreted by the highest court of the State enacting such law, discriminate against any class of railroads or deny to such class the equal protection of the laws; the exception merely marks the time when the statute takes effect. There is no objection under the Fourteenth Amendment to legislation confined to a pe- culiar and well-defined class of perils, and it is not necessary that they are shared by the public if they concern the body of citizens engaged in a particular work; and freedom of con- tract may be limited by a state statute where there are visible reasons of public policy for the limitation. ^^ So the rule ap- plies, and the United States Supreme Court must accept the meaning of state enactments to be that found in them by the state courts, and although the question of the validity of the constitution and laws of a State under which the proceedings were had is properly before the Federal court, still the con- sideration of that court must be restricted to its Federal aspect, as in the case of common carriers, and the regulation of rates where a railroad corporation voluntary formed but not pro- tected by a valid contract, cannot successfully invoke the in- terposition of the Federal court in respect to long and short haul clauses in a state constitution, simply on the ground that the railroad is property. ^^ But in case a railroad company has fulfilled certain conditions upon which a grant of unsettled public lands was agreed to be made, under a contract with a county, and has, therefore, become entitled to a conveyance of the lands, then, in so far as the state court may be regarded 12 Erb V. Marsh, 177 U. S. 584, 44 199 U. S. 593, 26 Sup. Ct. 159, 50 L. L. ed. 897, 20 Sup. Ct. 819. ed. 322. '3 Minn. G. S., 1894, § 2701. '^ Louisville & N. R. Co. v. Ken- '^ Minnesota Iron Co. v. Kline, tucky, 183 U. S. 503, 22 Sup. Ct. 95, 46 L. ed. 298. 430 OR CONSTRUCTION OF STATUTES CONTINUED § 276 as having held to the contrary, the courts of the United States are not bound to follow its decision as applied to a corporation created by an act of Congress, for national purposes, and for interstate commerce. ^^ And where the state court has sus- tained a result which cannot be reached except on what the Federal Supreme Court deems a wrong construction of the charter without relying on unconstitutional legislation, that court cannot decline jurisdiction on writ of error because the state court apparently relied more on the untenable con- struction than on the unconstitutional statute. ^^ So the Fed- eral Supreme Court has jurisdiction over a decision of a state court that a statute of the State, compelling the removal of grade crossings on a railroad, is constitutional, and a judg- ment in accordance therewith enforcing the provisions of the statute. ^^ Again, under the exception, above noted, that where the law has not been definitely settled in a State it is the right and duty of Federal courts to exercise their own judgment, county bonds issued under state statutes and sec- tions of its code which permit bonds to be issued to aid in the completion of any railroad in which citizens of the county have an interest, are valid notwithstanding the Supreme Court of the State had decided in another action that such bonds were invalid. ^^ But in Fairfield v. County of Gallatin,^" the court accepted as binding the decision of the Supreme Court of Illinois ^' and subsequent cases, construing a section of the constitution of that State,^^ which provided that "no county, city, town, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private cor- poration, or make any donation to, or loan its credit in aid of, " Roberts v. Northern Pacific R. '» New York & N. E. R. Co. v. Co., 158 U. S. 1, 39 L. ed. 873, 15 Sup. Bristol, 151 U. S. 556, 38 L. ed. 2G9, Ct. 756. 14 Sup. Ct. 437. " Terre Haute & Indianapolis R. " Stanley County v. Coler, 190 U. Co. V. Ketcham, 194 U. S. 579, 48 S. 437, 23 Sup. Ct. 811, 47 L. ed. 1126. L. ed. 1124, 24 Sup. Ct. 767 (a case '» 100 U. S. 47, 25 L. ed. 544. of railroads; control and regulation ^' Chicago & Iowa Rd. Co. v. by a State; new charter; operation Pinckney, 74 111. 277. and effect of). " j^ for^e July 2, 1870. 431 § 277 CONSTITUTIONAL LAW — INTERPRETATION such corporation: Provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption," and hold- ing that such previous donations, if sanctioned by a popular vote, under pre-existing laws, were not forbidden, but were, in like manner as subscriptions, excepted by the proviso from the general prohibitory terms of the section. §277. Same Subject— Instances Continued— Revenue- Taxation.— Whether a statute of a State is or is not a revenue measure and how rights thereunder are affected by a repealing statute depends upon the construction of the statutes, and where no Federal question exists the Federal Supreme Court will lean to an agreement with the state court.^^ Nor will that court interfere with the conclusion expressed by the highest court of a State that under the provision of the state constitution a tax is uniform when it is equal upon all per- sons belonging to the described class upon which it is imposed ; and the decision of the highest court of a State that a hcense tax imposed on certain corporations was exacted from a for- eign corporation doing both interstate and domestic business only by virtue of the latter, will not be reviewed in the Fed- eral Supreme Court.^^ Nor will that court review a judgment of the highest court of a State refusing to restrain the collec- tion of a tax, the imposition of which is not authorized by any law of such State. ^^ So the rule, that if the state statute as construed by its highest court is valid under the Federal Con- stitution the Federal courts are bound by that construction, has been applied in a case wherein the question of the taxa- tion of cars under the New York franchise tax law, and the " Flanigan v. Sierra County, 196 ^' Savannah, T. & I. of H. Ry. v. U. S. 553, 49 L. ed. 597, 25 Sup. Ct. Savannah, 198 U. S. 392, 49 L. ed. 314. 1097, 25 Sup. Ct. 690. ^* Armour Packing Co. v. Lacy, '' New York Central & Hudson 200 U. S. 226, 26 Sup. Ct. 232, 50 L. River Rd. Co. v. Miller, 202 U. S. ed. 451. 584, 50 L. ed. — , 26 Sup. Ct. — . 432 OR CONSTRUCTION OF STATUTES CONTINUED § 278 situs of personal property was passed upon.^^ And in the State Railroad Tax cases, ^^ the Supreme Court of the United States adopted the decision of the Supreme Court of the State of Illinois which had construed her statute and had de- cided that the law complained of in those cases was valid under her constitution. So the decision of a state Supreme Court that a statute in respect to the taxation of national banks does not conflict with the constitution of such State is conclusive upon the Federal Supreme Court. ^* But where it appears from the agreed statement of facts in a case that, under the laws of a State, as construed by the highest court of such State, all the elements of value which are embraced in the assessment of shares of stock in national banks are not included in assessing the value of property of state banks and other moneyed corporations, there is discrimination against the shares of national banks, and the state law taxing such shares as so construed violates and is void under that provision of the Revised Statutes which authorizes the taxation by the States of shares of stock of national banks, but exacts that the tax when levied shall be at no greater rate than that imposed on other moneyed capital. ^^ § 278. Same Subject— Instances Continued— Exemptions from Taxation— Impairment of Obligation of Contract as to Taxation. — The construction by the Supreme Court of a State of its constitution as authorizing exemptions from " 92 U. S. 575, 2.3 L. ed. 663. follow the ruling of the highest court ^ Merchants' & Mfrs. Bank v. of a State when it was held that a Pennsylvania, 167 U. S. 461, 42 L. state statute does not violate the ed. 236, 17 Sup. Ct. 829. See cita- constitution of that state); Jefferson tions in next following note. Bank v. Skelly, 1 Black (66 U. S.), "San Francisco Nat. Bank v. 436, 17 L. ed. 173 (franchise grants; Dodge, 197 U. S. 70, 49 L. ed. — , construction; waiver of sovereignty; 25 Sup. Ct. — . Examine People's bank charters; tax exemption irrev- Nat. Bank v. Marye, 191 U. S. 272, ocable; subsequent constitutional 24 Sup. Ct. 68, 48 L. ed. 180 (a case provision; rule as to following state of taxation; bank stock; deductions; construction not extended to cases state laws. In this case it was held where I'ederal courts called on to in- that the Federal Supreme Court will terpret contracts of States). 28 43.S § 278 CONSTITUTIONAL LAW — INTERPRETATION taxation, but declaring that such exemptions are repealable, binds the Federal Supreme Court, and therefore a railroad company, incorporated after such decision of the state court, is precluded from claiming an irrepealable exemption in its charter, and being so repealable the question whether it had in fact been repealed is a local and not a Federal question. =*'^ So, following the decisions of the Supreme Court of North Dakota as to the tax laws of Dakota Territory the Supreme Court of the United States holds that an erroneous decision of an as- sessor of taxes under those laws in the matter of exemptions does not deprive the tax proceedings of jurisdiction, and, that until such erroneous decision is modified or set aside by the proper tribunal, all officers with subsequent functions may safely act thereon; and that the rule of caveat emptor applies to a purchaser at a tax sale thereunder. It was also held that the county treasurer in making a sale under those laws for the non-payment of taxes acted ministerially and was protected as long as he acted within the statute. It was further decided that, in the case of lands granted to the Northern Pacific Railroad Company, on which the costs of survey had not been paid and for which no patents had been issued, it was his duty to proceed to sell notwithstanding those facts ; and that when the title of the purchaser at the tax sale failed, by reason of the lands not being subject to taxation, the county was not liable for the purchase money.^^ A State may, through its legisla- ture, make a valid contract as to taxation with a corporation which the latter can enforce; and the Supreme Court of the 3" Gulf & S. I. R. Co. V. Hewes, 183 231, 43 L. ed. 679, 19 Sup. Ct. 383 (a U. S. 66, 22 Sup. Ct. 26, 46 L. ed. case of exemption of " the said reser- 86. voir or reservoirs, machinery, pipes, The Supreme Court of the United mains and appurtenances, with the States is bound by the construction land on which they were situated" put by the highest court of the State which the city of Covington was by of Kentucky upon its statutes, re- that act authorized to acquire and lating to exemptions from taxation construct; also a question of repeal, of property used for "public pur- of contract and charter rights), poses," however much it may doubt ^' Stutsman County v. Wallace, the soundness of the interpretation. 142 U. S. 293, 12 Sup. Ct. 227, 35 L. Covington v. Kentucky, 173 U. S. ed. 1018. 434 OR CONSTRUCTION OF STATUTES CONTINUED § 279 United States is not, under the rule generally applicable as to the binding effect of decisions of the Supreme Court of the State construing its statutes, concluded by the decisions of that court as to whether such a contract exists, the extent of its terms and whether any subsequent law has impaired its obligation. But where the Supreme Court of the State sus- tains the validity of the statute from which a contract is claimed, the Federal Supreme Court follows that decision and deter- mines what the contract is.^^ When a contract is asserted and the Constitution of the United States is invoked to protect it, all of the elements which are claimed to constitute it are open to examination and review by the Federal Supreme Court; and also all that which is claimed to have taken it away, and the writ of error will not be dismissed.^^ § 279. Same Subject— Instances Continued— Impairment of Obligation of Contract— Fourteenth Amendment.— While the Federal Supreme Court is not bound by the construction placed by the state court upon statutes of that State when the impairment of the contract clause of the Constitution is invoked, yet when the true construction of a particular statute is not free from doubt considering former legislation of the State upon the same subject, the Federal court has deter- mined that it will best perform its duty in such case by following the decisions of the state court upon the precise question, although doubts as to its correctness may have been uttered by the same court in some subsequent case.^-* It is also decided that although decisions of the highest court of a State are not binding on the Federal Supreme Court in deter- mining whether a contract was made by legislative action of that State which is entitled to protection under the im- pairment of obligation clause of the Federal constitution, it " Powers V. Detroit, Grand Haven 181 (taxation; banks; exemption; & M. Ry. Co., 201 U. S. 543, 26 Sup. construction; license taxes; obliga- Ct. 556, 50 L. ed. 860. tion of contracts). "Citizens' Bank v. Parker, 192 '< Waggoner v. Flack, 188 U. S. U. S. 73, 48 L. ed. 346, 24 Sup. Ct. 595, 47 L. ed. 609, 23 Sup. Ct. 345. 435 § 279 CONSTITUTIONAL LAW — INTERPRETATION will consider decisions of that court on the point in question."^ Again, it is determined that the Federal court possesses para- mount authority when reviewing the final judgment of a state court upholding a state enactment alleged to be in viola- tion of the contract clause of the Federal Constitution, to deter- mine for itself the existence or non-existence of the contract set up, and whether its obligation has been impaired by the state enactment.^^ But no jurisdiction exists in the Federal Supreme Court, under the twenty-fifth section of the Judiciary Act, to review a decision of the highest court of a State, main- taining the validity of a law which it has been set up "impairs the obligation of a contract," when the law set up as having this effect was in existence when the alleged contract was made, and the highest state court has only decided that there was no contract in the case.^^ A state statute directing the state treasurer to write certain bonds off the books in his office and no longer to carry them as a debt of the State does not impair any existing obligation of the State to pay the bonds nor affect the remedy to recover upon them; and where the state court has so construed the act, in refusing to enjoin the treasurer from making the entries required thereby, at the suit of one claiming to own the bonds, no Federal right of the plaintiff is denied, obstructed, impaired or affected and the writ of error will be dismissed. This decision was rendered in a case wherein the State of South Carolina had issued bonds due in twenty years in aid of a railroad company. A state bank came to be the owner of some of these bonds. Subsequently the assets of the bank, including the bonds, were seized and carried away by soldiers of the Federal army. Some of the bonds were recov- ered from time to time by the bank and were paid or funded by the State, but some of them remained outstanding and 35 Blair v. Chicago, 201 U. S. 400, Wall. (77 U. S.) 511, 19 L. ed. 997 50 L. ed. 801, 26 Sup. Ct. 427. (in this case a state constitution was 3' New Orleans Waterworks Co. v. admitted to be a "law" within the Louisiana Sugar Ref. Co., 125 U. S. meaning of the obligation of con- 18, 31 L. ed. 607, 8 Sup. Ct. 741. tracts clause). "Railroad Co. v. McClure, 10 436 OR CONSTRUCTION OF STATUTES CONTINUED § 280 nothing was known of them when a statute was enacted di- recting that no coupon bond of the State payable to bearer should be funded or paid by the state treasurer after the ex- piration of twenty years from the date of its maturity, and the receiver of the bank, which had been in liquidation for many years, brought in the state Supreme Court a petition for an injunction to restrain the treasurer from obeying the requirement of the statute.^* Where the allowance of an at- torney's fee to be taxed as costs in case of a judgment against an insurance company for a total loss under the provisions of a state statute is the basis of the Federal right asserted, and it appears that one of the assignments of error relied upon be- fore, and considered and expressly decided by, the highest court of the State, was that the statute was unconstitutional and void and in conflict with the Fourteenth Amendment for the want of mutuality and deprived the plaintiff in error of the equal protection of the law, the motion to be dismissed will be denied. ^^ § 280. Same Subject — Instances Continued — Statutes Penal in Nature —Trustees of Corporations— Anti-Trust Laws. — The rulings of the highest court of a State, unani- mously made, upon a question dependent altogether upon a statute of that State, relating to acts of a trustee of a cor- poration and liability thereunder, penal in its character, ought to be recognized in every court as, at least, most persuasive, although the case in which the ruling was made has not yet gone to final judgment.'*'^ So the Federal Supreme Court will follow a state court in holding that under the laws of such State, as they exist, combinations described in the anti-trust laws are forbidden and penalized, whether by agriculturists, organized laborers or others, and, therefore, there is no dis- " Smith V. Jennings, 206 U. S. 8G N. W. 1070. See Cleveland C. C. 276, 51 L. ed. — , 27 Sup. Ct. — . & St. L. Ry. Co. v. Hamilton, 200 111. "Farmers' & Merchants' Ins. Co. 6.3.3, 66 N. E. 389. V. Dobney, 189 H. S. .301, 2.3 Sup. Ct. *" Park Bank v. Remsen, 158 U. S. 565, 47 L. ed. 821, aff'g 62 Neb. 213, 337, 29 L. ed. 1008, 15 Sup. Ct. 891. 437 §§ 281, 282 CONSTITUTIONAL LAW — INTERPRETATION crimination against oil companies, and the latter are not de- prived of the equal protection of the laws.^^ Again, where the highest court of a State has held that the acts of a person convicted of violating a state statute defining and prohibiting trusts were clearly within both the statute and the police power of the State, and that the statute can be sustained as a prohibition of these acts irrespective of the question whether its language was broad enough to include acts beyond legis- lative control, the Federal Supreme Court will accept such construction although the state court may have ascertained the meaning, scope and validity of the statute by pursuing a rule of construction different from that recognized by the Federal Court. ^- §281. Same Subject — Instances Continued — Foreign Corporations. — Where the Supreme Court of a State has construed its constitution and statutes to the effect that a foreign corporation had no existence as a corporation in the State, and could acquire, therefore, no rights as such, and that an individual connected with the corporation had no in- dependent rights in the premises, these conclusions do not involve the decision of Federal questions, but only the mean- ing and effect of local statutes and a finding of fact, neither of which is reviewable in the Federal Supreme Court. "^^ §282. Repeal or Amendment of Statutes. — ^Repeals by implication are not favored and will not be admitted unless there is such a repugnancy as to preclude the statutes being reconciled.'*'* Implied repeals are not limited to police reg- ulations, but the rule has been applied to all classes of legisla- ^1 National Cotton Oil Co. v. Texas, 205 U. S. 275, 51 L. ed. — , 27 Sup. 197 U. S. 115, 25 Sup. Ct. 379, 49 L. Ct. — , aff'g 140 Mich. 344, N. W. ed. 689. "United States: Petri v. F. " Smiley v. Kansas, 196 U. S. 447, E. Creehman Lumber Co., 199 U. S. 49 L. ed. 546, 25 Sup. Ct. 276. 487, 50 L. ed. 281, 26 Sup. Ct. 133; ^^Telluride Power Trans. Co. v. Gibson v. United States, 194 U. S. Rio Grande Western Ry. Co., 187 U. 182, 48 L. ed. 926, 24 Sup. Ct. 613; S. 569, 23 Sup. Ct. 178, 47 L. ed. 307. Tracy v. Tuffly, 134 U. S. 206, 33 See Swing v. Western Lumber Co., L. ed. 879, 10 Sup. Ct. 527; Chew 438 OR CONSTRUCTION OF STATUTES CONTINUED § 282. tion.^^ And if laws are repealed by necessary implication they need not be referred to in a statute. ^^ Nor is a recital in a statute, that a prior act is repealed or superseded, conclu- sive, as the question whether an act has been so repealed or superseded is a judicial and not a legislative one/' Statutes which impliedly repeal are not within a constitutional pro- Heong V. United States, 112 U. S. 536, 5 Sup. Ct. 255, 28 L. ed. 770; Arthur v. Homer, 96 U. S. 137, 24 L. ed. 811; Furman v. Nichol, 8 Wall. (75 U. S.) 44, 19 L. ed. 370; Beals v. Hale, 4 How. (45 U. S.) 37, 11 L. ed. 865. Arkansas: Chamberlain v. State, 50 Ark. 132, 6 S. W. 524. California: Cerf v. Reichert, 73 Cal. 360, 15 Pac. 10. See Hell- man V. Shoulters, 114 Cal. 136, 141, 44 Pac. 915, 1057. Colorado: Saguache Coimty v. Decker, 10 Colo. 149, 14 Pac. 123. Georgia: First M. E. Church v. Atlanta, 76 Ga. 181. Illinois: Kenaga v. Kerr, 123 111. 659, 14 N. E. 671; Hunt v. Chicago, H. & D. R. Co., 121 111. 638, 13 N. E. 176. Indiana: Shea v. Muncie, 148 Ind. 14, 46 N. E. 138; Robinson v. Rippey, 111 Ind. 112, 12 N. E. 141; Collins Coal Co. v. Hadley (Ind. App., 1906), 78 N. E. 353, 75 N. E. 382. Iowa: Eckerson v. City of Des Moines (Iowa, 1908), 115 N. W. 177, 191; Snell v. Dubuque & S. C. R. Co., 78 Iowa, 88, 42 N. W. 588. Michigan: Michigan Teleph. Co. V. City of Benton Harbor, 121 Mich. 512, 80 N. W. 386; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751, 6 Rd. & Corp. L. J. 192, 40 Alb. L. J. 246; People v. Grand Rapids & W. PI. Road Co., 67 Mich. 5, 34 N. W. 250. Mississippi: Owens v. Yazoo & Miss. Valley R. Co., 74 Miss. 821, 21 So. 244. Missouri: Hanker v. Faulhaber, 94 Mo. 430, 6 S. W. 372. Nebraska: Dawson County v. Clark, 58 Neb. 756, 79 N. W. 822; See Omaha Real Estate & T. Co. v. Kragscow, 47 Neb. 592, 66 N. W. 658. New Jersey: Hotel Registry Re- alty Corp. V. Stafford, 70 N. J. L. 528, 57 Atl. 145; Plum v. Lugar, 49 N. J. L. 557, 9 Atl. 779; Atlantic City Waterworks Co. v. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581. North Carolina: State v. Sutton, 100 N. C. 474, 6 S. E. 687. South Carolina: State v. Mc- Coomcr (S. C, 1908), 60 S. E. 237. Tennessee : Memphis & State Line Rd. Co. V. Union Ry. Co., 116Tenn. 500, 95 S. W. 1019; McCampbell v. State, 116 Tenn. 98, 93 S. W. 100. Vermont: State v. Martin, 68 Vt. 93, 34 Atl. 40. Virginia: Justice v. Common- wealth, SI Va. 209. Wisconsin: Hay v. City of Bara- boo, 127 Wis. 1, 105 N. W. 654. *^ Memphis & State Line Rd. Co. V. Union Ry. Co., 116 Tenn. 500, 95 S. W. 1019. <« Henley v. State, 98 Tenn. 665, 41 S. W. 352, 1104, 39 L. R. A. 126. " United States v. Claflin, 97 U. S. 546, 24 L. ed. 1082. 439 § 282 CONSTITUTIONAL LAW — INTERPRETATION vision requiring amending or repealing acts to recite in their title the substance of the law repealed etc** If it is intended to amend a certain section of a statute it should be repealed to validate the amendment."^ And an unconstitutional re- pealing statute can have no effect. ^^ That the intent to repeal by implication did not exist may be evidenced by a still later amendment to the first act.^^ If a later statute has reference to the building of branch lines and an earlier enactment pro- vides for the changing of the terminus of a railroad which has not been finally located there exists no such repugnancy be- tween the two enactments as to work an implied repeal .^^^ So an enactment providing for the liability of directors for debts for failing to make annual reports as to financial condition of a corporation is not repealed by an amendment permitting re- ports to be filed at a time specified in the amended act or dur- ing the next month. ^^ But a proviso to an existing act is held to have been repealed by an act which "amended" the former act, " by striking out all after the enacting clause and inserting in heu thereof, the following: " this "following" being in part an iteration of the words of the section amended, and in part new enactments.^"* And a proviso repealed may still be con- sidered in construing remaining sections. ^^ Provisions of a *^ Memphis & State Line Rd. Co. American School Fum. Co., 31 Ind. V. Union Ry. Co., 116 Tenn. 500, 95 App. 405, 68 N. E. 301. S. W. 1019. Examine St. Louis, I. " Memphis & State Line Rd. Co. M. & S. R. Co. V. Paul, 64 Ark. 83, 40 v. Union Ry. Co., 116 Tenn. 500, 95 S. W. 705, 37 L. R. A. 504, 7 Am. & S. W. 1019. Eng. Corp. Cas. (N. S.) 772; Parker- " Bank of Saginaw v. Peirson, 112 Washington Co. v. Kansas City Mich. 410, 4 Det. Leg. N. 59, 70 (Kan., 1906), 85 Pac. 781; Palatine N. W. 701. Examine Van Pelt v. Ins. Co.. Ltd., V. Northern Pac. Ry. Gardner, 54 Neb. 701, 75 N. W. 874, Co. (Mont., 1906), 85 Pac. 1032; 74 N. W. 1083. State, City Water Co., v. Kearney, ^^ Steamboat Co. v. Collector, 18 49 Neb. 325, 68 N. W. 533, aff'd 49 Wall. (85 U. S.) 478, 21 L. ed. 769 (a Neb. 337, 70 N. W. 255. case of statute in relation to tax on *" Grand Island & W. C. R. Co. v. steamboat receipts). Swinbank, 51 Neb. 521, 71 N. W. 48. " Bank for Savings v. Collector, '"Porter v. Kingfisher County, 6 3 Wall. (70 U. S.) 495, 18 L. ed. 207 Okla. 550, 51 Pac. 741. (a case of taxation of banks). " Lincoln School Township v. 440 OR CONSTRUCTION OF STATUTES CONTINUED § 283 statute repealed and re-enacted continue in force without in- termission.^^ The statutory construction law of New York limiting the effect of repealing statutes is not limited to acts reported by the statutory revision committee, but applies to all subsequent legislation.^^ §283. Same Subject Continued. — If two acts cannot be harmonized the later act prevails to the extent of the repug- nancy; they should, however, be reconciled if possible on any reasonable basis,*^^ or effect be given to both.^'' Without ex- press words of repeal a previous statute will also be held modi- fied or repealed by a subsequent one if the later is plainly in- tended to supersede the earlier act and to cover the whole subject embraced by both, and to prescribe the only rules, in '' Gull River Lumber Co v. Lee, 7 N. Dak. 135, 73 N. W. 430. See also Steamship Co. v. Joliffe, 2 Wall. (69 U. S.) 450, 17 L. ed. 805. " Village of Champlain v. McCrea, 165 N. Y. 264; People, City of Niagara Falls, V. New York Cent. & Hudson Riv. R. Co., 158 N. Y. 410; People, City of Buffalo, v. New York Cent. & Hudson Riv. R. Co., 156 N. Y. 570, 51 N. E. 312, rev'g 50 N. Y. Supp. 1132, 25 App. Div. 632. ''United States: Gibson v. United States, 194 U. S. 182, 48 L. ed. 926, 24 Sup. Ct. 613; United States V. Lee Yen Tai, 185 U. S. 213, 22 Sup. Ct. 629, 46 L. ed. 878; Chicago, M. & St. P. R. Co. v. Uni- ted States, 127 U. S. 406, 8 Sup. Ct. 1194, 32 L. ed. 180; Deals v. Hale, 4 How. (45 U. S.) .37, 11 L. ed. 865. Arkansas: Porter v. Waterman, 77 Ark. HKi, 91 S. W. 574. Illinois: Kenaga v. Kerr, 123 111. 659, 14 N. E. 671; Hunt v. Chicago, H. & D. R. Co., 121 111. 638, 13 N. E. 176. See Bastian v. Modem Wood- men of America, 166 111. 595, 46 N. E. 1090, rev'g 68 App. 111. 378. Indiana: State, Hudspeth, v. Cooper, 114 Ind. 1, 16 N. E. 518; Pennsylvania Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403. Iowa: Straight v. Crawford, 73 Iowa, 676, 35 N. W. 920. Kentucky: Weddell v. Common- wealth, 84 Ky. 276, 1 S. W. 480. New Jersey: Plum v. Lugar, 49 N. J. 557, 9 Atl. 779. Tennessee: McCampbell v. State, 116 Tenn. 98, 93 S. W. 100. '° Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal the earlier is expressed or clearly indicated, the court will, if possible, give effect to both. Frost v. Wenie, 157 U. S. 46, 39 L. ed. 614, 15 Sup. Ct. 532. ' In the absence of any repealing clause, it is necessary to the implica- tion of a repeal that the objects of the two statutes are the same. If they are not, both statutes will stand, thougli they refer to the same sub- ject. United States v. Claflin, 97 U. S. 546, 24 L. ed. 1082. 441 § 283 CONSTITUTIONAL LAW — INTERPRETATION respect to that subject, which are to govern.'^" But a statute will not operate to repeal a prior statute merely because it repeats some of the provisions of the prior act, and omits others, or adds new provisions ; but in such cases the later en- actment operates as a repeal of the former one only when it plainly appears that it was intended as a substitute for the first act.®^ If a state statute and a Federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the Federal statute is one within the com- petency of Congress to enact, the state statute must give aw^ay.^^ As a rule of construction a statute amended is to be understood in the same sense exactly as if it had read from the beginning as it does amend ed.^^ An amendatory or ad- ditional act which is germane to the original act is to be con- strued in conjunction with such original enactment unless an intent clearly appears to the contrary; '^'^ and this appHes to an act of incorporation, being in pari materia.^^ ' ""United States: Tracy v. Tuffly, ^^GuU, Colorado & Santa Fe Ry. 134 U. S. 206, 33 L. ed. 879, 10 Co. v. Hefley, 158 U. S. 98, 39 L. ed. Supp. Ct. 527; Davies v. Fairbairn, 910, 15 Sup. Ct. 802. 3 How. (44 U. S.) 636, 11 L. ed. " Bkir v. Chicago, 201 U. S. 400, 760. 50 L. ed. 801, 26 Sup. Ct. 427; Peters California: Cerf v. Reichert, 73 v. Vawter, 10 Mont. 201, 25 Pac. 438. Cal. 360, 15 Pac. 10. See also McGuire v. Chicago, Burling- lowa: State v. Courtney, 73 ton &Quincy Rd. Co., 131 Iowa, 340, Iowa, 619, 35 N. W. 685. 108 N. W. 902. Examine Building Kentucky: Millay v. White, 86 & Loan Assoc, v. Solin, 54 W. Va. Ky. 170, 5 S. W. 429. 101, 46 S. E. 222. Nebraska: State v. Omaha Eleva- "McGuire v. Chicago, Burlington tor Co. (Neb.. 1906), 106 N. W. 979. & Quincy Rd. Co., 131 Iowa, 340, New Jersey: Hotel Registry 108 N. W. 902; Woodall v. Boston Realty Corp. v. Stafford, 70 N. J. L. Elevated Ry. Co. (Mass., 1906), 78 528, 57 Atl. 145. N. E. 446; People v. Michigan Cent. Tennessee: Terrell v. State, 86 Rd. Co. (Mich., 1906), 108 N. W. Tenn. 523, 8 S. W. 212. 772, 13 Det. Leg. N. 552; Village of See last preceding note herein. Portchester, In re Locust Ave., 97 N. "' Chicago, M. & St. P. Ry. Co. v. Y. Supp. 508, 110 App. Div. 774, case United States, 127 U. S. 406, 32 L. aff'd and modified 185 N. Y. 115, 77 ed. 180, 8 Sup. Ct. 1194; Red Rock v. N. E. 1012. Henry, 106 U. S. 596, 27 L. ed. 251, 1 «' Meyer v. Johnston, 53 Ala. 237, Sup. Ct. 434. 321. 442 OR CONSTRUCTION OF STATUTES CONTINUED § 284 §284. Same Subject Continued — ^Instances. — ^Renewals of charters granted after an enactment providing for repeal or amendment of all charters are subject to the statute though it expressly provides that it shall only apply to charters to be subsequently granted. *^^ And a statute which grants to all corporations the right to obtain amendments to their charters in a certain way docs not conflict with a prior statute, granting to railroad companies the right to change their termini at any time before final location of the road, so as to repeal it by implication.^' A constitutional requirement that an act or section amended shall be re-enacted and published at length does not apply to a special act of incorporation of a railroad company granting it all the privileges, immunities, etc., of a certain general railroad law, as such special act is neither a revision or amendment.^* If an act authorizing the organiza- tion of mutual insurance companies is so complete in itself as to repeal even impliedly all prior inconsistent laws, a con- stitutional provision requiring the section or sections amended to be contained in the new enactment does not apply .^^ An act amending "an act to facilitate the construction of rail- roads" is not repealed by the failure of the legislature to in- corporate it in a revision of the statutes.'^*' Where a statute is a public act a subsequent act which is amendatory and supple- mentary is also a public one.'='^ A statute which regulates passenger and freight rates docs not impliedly repeal prior laws on the subject when not irreconcilably repugnant thereto or where it is not apparent that such later enactment was in- tended to comprehend the entire subject and so supersede the prior laws. '2 The liability of a railroad company for death «« Northern Bank v. Stone (C. C), '" Cape Girardeau Co. Court v. 88 Fed. 413. Hill, 118 U. S. 68, 80 L. ed. 78, 6 Sup. " Memphis & State Line Rd. Co. Ct. — . V. Union Ry. Co., 116 Tenn. 500, 95 " Unity v. Burrage, 103 U. S. 447, S. W. 1019. 26 L. ed. 405 (railroad aid bonds of «« Quinlan v. Houston & T. C. R. county). Co., 89 Tex. .356, 34 S. W. 738. " Southern Ry. Co. v. McNeill, 155 " Farmers' Mut. Ins. Co. v. Moore, Fed. 756. 48 Neb. 870, 67 N. W. 876. 443 § 285 CONSTITUTIONAL LAW — INTERPRETATION by negligence arising before repeal of a statute providing therefor is not affected by such repeal.'^ The operation of a statute providing for an indictment for unlawful discrimination in transportation of passengers is merely suspended for one day where such enactment is repealed on a day certain and it is re-enacted verbatim to take effect on the next following day/'* §285. Same Subject — Instances Continued — Taxation and Assessment. — ^A statute covering the subject-matter of all acts as to assessment and taxation and containing a repealing clause and provisions inconsistent with a prior act as to the power of *cities to tax and assess property, repeals such incon- sistent statute 7^ But a special act as to the power to tax to pay bridge bonds of a county is not repealed by a general law limiting the power of counties as to taxation.'^ And a general statute taxing every railroad company will not operate to repeal a charter exemption of a corporation 7^ A statute, how- ever, which provides a general scheme for assessing and taxing the property of railroad and telegraph companies as a whole, and for distributing it ratably among the different counties, and their several precincts, townships and districts, according to the number of miles of line in each, repeals, as to such prop- erty, a power conferred upon the authorities of a city to make provisions for the assessment of the taxes which they were au- thorized by other provisions of the city charter to assess and collect/^ Again, a provision of an act relating to a situs of stock of foreign corporations for taxation is not repealed by im- plication by omission of such provision from a compiled code7^ " Culpepper v. International & G. " State, Ross, v. Kelly, 45 S. C. N. R. Co., 90 Tex. 627, 40 S. W. 386, 457, 23 S. E. 281. aff'g 38 S. W. 818; Albrecht v. Mil- '» Burnett v. Maloney, 97 Tenn. waukee & S. R. Co., 94 Wis. 397, 69 697, 37 S. W. 689, 34 L. R. A. 541. N. W. 63. See State v. Maine C. R. " Commonwealth v. Richmond & Co., 90 Me. 267, 38 Atl. 158 (repeal; P. R. Co., 81 Va. 355. remedy by indictment for death '* Union Pacific Ry. Co. v. Chey- caused by negligence superseded by enne, 113 U. S. 516, 5 Sup. Ct. 601, civil remedy). 28 L. ed. 1098. ^< State V. Southern Ry. Co. (N. C, " Georgia Railroad & Banking Co. 1899), 34 S. E. 527. v. Wright, 124 Ga. 596, 53 S. E. 251, 444 OR CONSTRUCTION OF STATUTES CONTINUED § 286 § 286. Construction of Statutes, Charters and Ordinances — ^Miscellaneous Cases. — Where the legislature has classified suburban and interurban railroads with street railroads, the laws governing the latter will govern as to the former.*" If a corporation chartered prior to the existing constitution of a State is wound up and all of its property, contracts and ob- ligations transferred by ordinance to a new corporation, the ordinance must be construed in connection with the consti- tution and such provisions for further control as are therein contained.*^ Although the language of a statute provides for the renewal of a street railway franchise upon the expiration thereof, such grants may be extended before their expiration, and in construing municipal ordinances relating to such ex- tensions it may be reasonably presumed that no provision escaped attention or was misunderstood .^^ The generally in- clusive terms of the Bush Act are to be interpreted with reference to the State's plenary power over its purely internal commerce, and over foreign corporations seeking to engage in such commerce; and, so interpreted, the law applies to all foreign corporations not engaged in interstate commerce, or business for the Federal government, and to all foreign cor- porations engaged in interstate commerce or business for the Federal government to the extent that they must comply with its requirements in order to engage in non-governmental interstate business .''•■' A provision in an act of Congress in- corporating a bank which requires that the capital stock shall consist of a certain number of shares of a certain amount each is not a condition precedent.*'* A clause in a charter that it case reversed in Central of Georgia Altgelt, 200 U. S. 304, 26 Sup. Ct. Ry. Co. V. Wright, 207 U. S. 127, 261, 50 L. ed. 491. upon the point that, duo process of " Cleveland Electric Ry. Co. v. law requires an opportunity to be City of Cleveland, 135 Fed. 368, aff'd heard, as to the validity of a tax and Cleveland v. Cleveland Electric Ry. the amount of assessment, to be given Co., 201 U. S. 529, 50 L. ed. 854. a taxpayer. ^^ State v. Western Union Teleg. »» Cincinnati & H. E. St. Ry. Co. v. Co. (Kan., 1907), 90 Pac. 299. Cincinnati, H. & I. R. Co., 12 Ohio «* Minor v. Mechanics' Bank, 1 Pet. C. D. 113. (26 U. S.) 46, 7 L. ed. 47. " San .\ntonio Traction Co. v. 445 § 287 CONSTITUTIONAL LAW — INTERPRETATION shall not be lawful for any person or persons to erect a bridge within a certain distance of the bridge in question means, not only that no person or association of persons shall erect such a bridge without legislative authority, but that the leg- islature itself will not make it lawful for any person or asso- ciation of persons to do so by giving them authority .^^ A clause of forfeiture in a law is to be construed differently from a similar clause in an engagement between individuals. A legislature can impose it as a punishment, but individuals can only make it a matter of contract. Being a penalty imposed by law the legislature has the right to remit it.»*^ Where un- der an ordinance a street railway company has the right by a written acceptance thereof to designate the streets on which its railway will be constructed and operated, and has also the right to occupy such other streets as may be thereafter desig- nated by resolution of the city council, a permission so granted to occupy another street does not operate as a new franchise, and the designation by the company of streets relates only to the minimum of mileage.*^ A corporate charter by which a corporation, with a grant from another State, obtains all the rights and privileges possessed under the foreign grant, does not confer privileges which conflict with the constitution of the foreign State where such original charter was granted, even though such privileges do not violate the constitution of the other State.** §287. Prospective and Retrospective Operation. — ^A stat- ute operates prospectively only unless a contrary intent very clearly appears.*^ There is a presumption against retrospec- "The Binghamton Bridge, 3 ^9 United States: City R. Co. v. Wall. (70 U. S.) 51, 18 L. ed. 137. Citizens' St. Ry. Co., 16G U. S. 557, «« Maryland v. Baltimore & O. R. 41 L. ed. 1114, 17 Sup. Ct. 653 Co., 3 How. (44 U. S.) 534, 11 L. ed. United States v. Trans-Missouri 714. Freight Assoc., 166 U. S. 290, 41 L «' Thurston v. Huston, 123 Iowa, ed. 1007, 17 Sup. Ct. 540, 14 Nat 157, 98 N. W. 637. Corp. Rep. 116, 148; Chicago & N »' Johnston v. State, 91 Ala. 70, W. R. Co. v. United States, 104 U 9 So. 71. S. 680, 26 L. ed. 891; Harvey v 446 OR CONSTRUCTION OF STATUTES CONTINUED § 287 tive legislation; it is not favored, and words in a statute will not be construed as retroactive unless they clearly can be given no other effect and the legislative intent cannot be other- wise satisfied; in this respect the use in the statute of the future tense must be given weight .^'^ The Fourteenth Amend- Tyler, 2 Wall. (69 U. S.) 328, 17 L. ed. 871; United Mines Co. v. Hatcher (C. C.),- 79 Fed. 517, 49 U. S. App. 139, aff'g and partly rev'g 75 Fed. 368. See Wright v. Southern R. Co. (C. C), 80 Fed. 260. Illinois: Voigt v. Kersten, 164 111. 314, 45 N. E. 543. See Halpin v. Prosperity Loan & Bldg. Assoc., 108 III. App. 316. Maine: Knight v. Bumham, 90 Me. 294, 38 Atl. 168. Massachusetts: Wild v. Boston & M. R. Co., 171 Mass. 245, 50 N. E. 533. Minnesota: Powers v. St. Paul, 36 Minn. 87, 30 N. W. 433. Mississippi: Capital State Bank v. Lewis, 64 Miss. 727, 2 So. 243. Nebraska: Mcintosh v. Jolinson, 51 Neb. 33, 70 N. W^ 522; State, City Water Co., v. Kearney, 49 Neb. 325, 68 N. W. 533. South CaroUna: Turner v. Inter- state lildg. & Loan Assoc, 51 S. C. 33, 27 S. E. 947, 7 Am. & Eng. Corp. Cas. (N. S.) 228. Utah: Mercur Gold Min. & Mill. Co. V. Spry, 16 Utah, 222, 52 Pac. 382. West Virginia: Stewart v. Van- dervort, 'Ai W. Va. 524, 12 S. E. 736, 12 L. R. A. 50. See Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. ed. 801 (rev'g 132 Fed. 848, where certain statutes were held not unconstitutional under the constitution in force when they wore pas.sed); Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447. Compare State, Jones, v. Landis, 50 N. J. L. 374, 13 Atl. 251; State, Essex Public Road Board, v. Skinkle, 49 N. J. L. 641, 10 Atl. 379; Fitz- gerald V. Phelps & B. Windmill Co., 42 W. Va. 570, 26 S. E. 315. Only laws in existence or prospec- tive laws, and not those then re- pealed, are within the terms of the statutory construction law of New York. People v. Potter, 82 N. Y. Supp. 649, 40 Misc. 485. A statute operates prospectively so that it does not cure prior misuser of franchise as a ground of forfeiture of a charter. State, Walker, v. Equitable Loan & I. Assoc, 142 Mo. 325, 41 S. W. 916. Unless on its face the contrary in- tention is manifest beyond reasonable question a statute is construed to operate prospectively only. Shot- well V. Moore, 129 U. S. 590, 32 L. ed. 827, 9 Sup. Ct. — . »" United States : United States v American Sugar Ref. Co., 202 U. S 563, 50 L. ed. 1149, 26 Sup. Ct. 717 White V. United States, 191 U. S 545, 24 Sup.'Ct. 171, 48 L. ed. 301 Chew Heong V. United States, 112 U S. 536, 28 L. ed. 770, 5 Sup. Ct. 255; United States v. Ileth, 3 Cranch (7 U. S.), 399, 2 L. ed. 479; United States V. Atchison, Topeka & Santa Fe Ry. Co., 142 Fed. 176. Alabama: State v. Gloss, 83 Ala. 93, 3 So. 745. Arkansas: St. Louis, A. & T. R. Co. V. Pliila. F. Assoc, 55 Ark. 163, 18 S. W. 43. California: Webber v. Clarke, 74 Cal. 11, 15 Pac. 431. 447 § 288 CONSTITUTIONAL LAW — INTERPRETATION ment, however, contains no prohibition of retrospective leg- islation as such, and, therefore, the mere fact that a statute is retroactive in its operation does not make it repugnant to the Federal Constitution.''^ Where the measure of damages under a statute for destruction of property for fire negligently caused by railroad companies is limited by a deduction of the amount of insurance received for such loss, the enactment does not operate retrospectively as to loss of property oc- casioned before passage of the statute.''^ And a statute which limits the liability of a railroad company for fires applies to an insurance policy taken out prior thereto, where the loss is occasioned subsequent to such enactment, and the difference between the amount of the insurance and of the loss is the measure of liability fixed by such statute.^^ § 288. Validating Statutes— Waiver or Correction of De- fect or Irregularity. — ^An unconstitutional statute is not a law; it confers no rights; it imposes no duties; it affords no Colorado : City of Colorado Springs Pennsylvania: Horn & Brannan V. Weirlle (Colo., 1908), 93 Pac. 1096. Mfg. Co. v. Steelman, 215 Pa. 187, Illinois: Cleary v. Hoobler, 207 III. 64 Atl. 409. 97, 69 N. E. 967. Texas: Rockwell County v. Kauf- indiana:Nicklausv. Conkling, 118 man County, 69 Tex. 172, 6 S. W. Ind. 289, 20 N. E. 797. 431. Montana: State v. Northern Pac. Virginia: Crabtree v. Old Do- Ry. Co. (Mont., 1908), 93 Pac. 945; minion Bldg. & Loan Assoc, 95 Va. Chicago Title & Trust Co. v. O'Marr, 670, 4 Va. Law Reg. 12, 64 Am. St. 18 Mont. 568, 46 Pac. 809, 47 Pac. 4. Rep. 818, 29 S. E. 741; Richmond v. Nebraska: Commercial Bk. v. Henrico County, 83 Va. 204, 2 S. E. Eastern Bkg. Co., 51 Neb. 766, 71 26. N. W. 1024. Wisconsin: Strike v. Wisconsin New Jersey: Roxbury Ix)dge v. Odd Fellows Mut. L. Ins. Co., 95 Wis. Hocking, 60 N. J. L. 439, 38 Atl. 693, 583, 70 N. W. 819. 64 Am. St. Rep. 596. *' League v. Texas, 184 U. S. 156, New York: Union College, In re, 46 L. ed. 478, 22 Sup. Ct. 475. See 129 N. Y. 308, 4 N. Y. St. R. 640, 29 Watson v. Mercer, 8 Pet. (33 U. S.) N. E. 460; People v. O'Brien, 111 N. 88, 8 L. ed. 876. Y. 1, 19 N. Y. St. R. 173, 18 N. E. "^ wjij y Boston & M. R. Co., 171 692, 7 Am. St. Rep. 684, 2 L. R. A. Mass. 245, 50 N. E. 533. 255. *' Leavitt v. Canadian Pacific R. Oregon: State, German Sav. & Co., 90 Me. 153, 37 Atl. 886, 38 L. R. Loan Soc, v. Sears, 29 Oreg. 580, 46 A. 152. Pac. 785> rev'g 43 Pac. 482. 448 OR CONSTRUCTION OF STATUTES CONTINUED § 288 protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed ; ^"^ and it can- not be validated by the legislature,^" nor under an amended constitution.^^ If, however, an act might have been legally- authorized in the first instance it may thereafter be confirmed when not prohibited by the constitution.^^ And if a statute would be otherwise invalid as for w^ant of the proper signatures it may be ratified by express reference thereto in an accom- panying chapter containing supplemental provisions in rela- tion to the same subject-matter.^® So the legislature may waive and correct any want of regularity in the proceedings of a county in a contract between it and a railroad company for the construction of its road therein on a designated line with a terminus, and upon the fulfillment of those conditions to convey to it certain of its unsettled public lands, such power to contract having been conferred by statute .^^ Again, al- though certain rights, such as the authority of a street car company to become a carrier of freight, have been conferred without legislative power or in violation of law, still such powers as have been lawfully granted will not be affected, and the legislature may by general law affirm and validate such void grants so that the acceptance by such company of the provisions of the validating act makes it a de jure corporation possessed with all the authority and powers vested under the charter.^ If the legislature possesses the power to authorize '* Norton v. Shelby County, 118 770. Compare Sweet v. Syracuse, U. S. 425, 30 L. eel. 178, 6 Sup. Ct. 129 N. Y. 337, 41 N. Y. St. Rep. 649, 1121; Minnesota Sugar Co. v. Iver- 29 N. E. 289. son, 90 Minn. 6, 97 N. W. 454. " Steele County v. Erskine, 98 " State, Charleston, Cincinnati, Fed. 215. & Chicago Rd. Co., V. Whitesides, 30 »' Wrought-Iron Range Co. v. S. C. 579, 3 L. R. A. 777, 9 S. E. Carver, 118 N. C. 328, 24 S. E. 352. 661. See Cedar Rapids Water »» Roberts v. Northern Pacific R. Co. V. City of Cedar Rapids, 118 Co., 158 U. S. 1, 39 L. ed. 873, 15 Iowa, 234, 91 N. W. 1031. Compare Sup. Ct. 756. See also Steele v. Sweet V. Syracuse, 129 N. Y. 337, 41 County of Erskine, 98 Fed. 215. N. Y. St. R. 649, 29 N. E. 289. ' Brown v. Atlanta R. & Power Co., ••Seneca Min. Co. v. Osman, 82 113 Ga. 462, 39 S. E. 462, 39 S. E. Mich. 573, 47 N. W. 25, 9 L. R. A. 71. 29 449 § 288 CONSTITUTIONAL LAW — INTERPRETATION an act to be done, it can by retrospective act cure the evils which existed, because the power thus conferred has been irregularly executed.^ A municipal subscription to the stock of a railroad company, or in aid of the construction of a rail- road, made without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. ^ If the power of the legislature to legalize, by cura- tive enactments, matters or proceedings which are defective under a former statute, is taken away by a constitutional amendment before passing such curative act, such remedial act is void."* ^ Thomas v. Lee County, 3 Wall. * Kimball v. Town of Rosendale, (70 U. S.) 327, 18 L. ed. 177. 42 Wis. 407, 24 Am. Rep. 421 (act Amendment may cure a defective confirming irregular assessment of statute. State, McLorinan, v. Ryno, taxes; constitutional amendment 49 N. J. L. 603, 10 Atl. 189. prohibited enactment of special laws ^ Grenada County Supervisors v. for assessment or collection of taxes). Brogden, 112 U. S. 261, 28 L. ed. 704, 5 Sup. Ct. 125. 450 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 289 CHAPTER XVIII. CONSTITUTIONAL LAW — FEDERAL CONSTITUTION. { 289. Constitution — Grant and Lim- itation on Powers of Gov- ernments — Express and Implied Powers — Construc- tion. Same Subject Continued. Privileges and Immunities of Citizens in the Several States. Same Subject Continued — Discrimination — Tax Law — Deduction of Debts — Creditors in Different States. 290. 291. 292. 293. Same Subject — Actions — Statute of Limitations. 294. The Fourteenth Amendment — Generally. 295. Same Subject — -Police Power. 296. Privileges and Immunities of Citizens of the United States. 297. Due Process of Law. 298. Same Subject Continued. 299. Same Subject Continued. 300. Equal Protection of the Laws. §289. Constitution — Grant and Limitation on Powers of Governments — ^Express and Implied Powers — Construc- tion. — We have considered the question of national and state powers generally/ and also the distinction between the grant, by the constitution, of powers to the Federal ^ and lim- itations on the state governments ; ' and it may also be stated • See § 120, herein. ' See § 121, herein. See the following cases: United States: Spooner v. Mc- Connell, 1 McLean (C. C), 337, Fed. Cas. No. 13,245. Arkansas: Hawkins v. Filkins, 24 Ark. 286; State v. Ashley, 1 Pike (Ark.), 513. Connecticut: Pratt v. Allen, 13 Conn. 119. Florida: Gotten v. County Com- mi-ssioners, 6 Fla. 610. Iowa: Purczell v. Smidt, 21 Iowa, 540. Louisiana: State v. Nathan, 121 Rob. (La.) 332. Nebraska: State v. Moore, 40 Neb, 854, 59 N. W. 755. Pennsylvania: Page v. Allen, 58. Pa. 338, 98 Am. Dec. 272. Utah: State v. Holden, 14 Utah, 71, 37 L. R. A. 103, 46 Pac. 756. ' See §§ 121, 137, herein. See the following cases: United States: Trezza v. Brush, 142 U. S. 160, 12 Sup. Ct. 158, 35 L. ed. 974; McElvaine v. Brush, 142 U. S. 155. 35 L. ed. 971, 12 Sup. Ct. 156. Alabama: State v. Skeggs (Ala., 451 § 289 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION here that the settled rule of eonstruction of state constitutions is that they are not special grants of power to legislative bodies, like the Constitution of the United States, but general grants of all the usually recognized powers of legislation not actually prohibited or expressly excepted. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears either by express terms or by necessary implication. The Federal Constitution con- fers powers expressly enumerated; that of the State confers 1908), 46 So. 268; Dorsey, In re, 7 Nebraska: State v. Moore, 40 Port. (Ala.) 293. Neb. 854, 59 N. W. 755. See State, Arkansas: State v. Sorrels, 15 Smyth, v. Moores, 55 Neb. 480, 76 N. Ark. 664. W. 175, 41 L. R. A. 624. California: Beals v. Amador New York: People v. Flagg, 46 County, 35 Cal. 624; Hobart V. Butte N. Y. 401; Bank of Chenango v. County, 17 Cal. 23; Ross v. Whit- Brown, 26 N. Y. 467. See Sage v. man, 6 Cal. 361. New York, 154 N. Y. 61, 38 L. R. A. Colorado: People v. Fleming, 10 603, 47 N. E. 1096, 30 Chic. Leg. N. Colo. 552, 16 Pac. 298. 1089, aff'g 41 N. Y. Supp. 938, 10 Connecticut: Booth v. Town of App. Div. 294. Woodbury, 32 Conn. 118; Lowrey v. Ohio: Bonebrake v. Wall (Ohio Gridley, 30 Conn. 450. C. P.) 24 Ohio L. J. 175. Florida: Cotter v. Ponder, 6 Fla. Pennsylvania: Lewis' Appeal, 610. 67 Pa. 153; Page v. Allen, 58 Pa. Illinois: Hawthorne v. People, 109 338, 98 Am. Dec. 272; Philadelphia, 111. 302, 50 Am. Rep. 610. City of, v. Field, 58 Pa. 320. Indiana: Ho vey V. State, 119 Ind. Tennessee: Stratton v. Morris, 395, 21 N. E. 21. 5 Pick. (89 Tenn.) 497, 15 S. W. 87, Iowa: Eckerson v. City of Des 12 L. R. A. 70. Moines (Iowa, 1908), 115 N.W. 177; Utah: State v. Holden, 14 Utah, McMillen v. County Judge & Treas. 71, 46 Pac. 756, 37 L. R. A. 103. of Lee County, 6 Iowa, 391. Vermont: Thorpe v. Rutland, Kansas : Ratcliff V. Wichita Union & Burlington Rd. Co., 27 Vt. 140, Stockyards Co., 74 Kan. 1, 86 Pac. 62 Am. Dec. 625. 150. Virginia: Whitlock v. Hawkins, Kentucky: Griswold v. Hep- 105 Va. 242, 53 S. E. 401. burn, 2 Div. (63 Ky.) 20. Washington: State v. Clark, 30 Louisiana: Hughes v. Murdock, Wash. 439, 71 Pac. 20. 45 La. Ann. 935, 13 So. 182. West Virginia: Bridges v. Shell- Michigan: Attorney Genl. v. cross, 6 W. Va. 562. Preston, 56 Mich. 177, 22 N. W. 261. Wisconsin: Bushnell v. Beloit, 10 Missouri: State ex rel. Henson Wis. 195. V. Sheppard, 192 Mo. 497, 91 S. W. Enumeration of powers— Bill of 477. Rights of Nebraska constitution. 452 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 289 a general grant of all powers not excepted.'* So the constitu- tion itself and not the general body of the law must be re- sorted to in order to determine the limitations on the powers of the legislature;^ That the government of the United States is one of enumerated powers is constantly asserted; it has no inherent powers of sovereignty; the enumeration of the powers granted is to be found in the Constitution of the United States and in that alone; the manifest purpose of the Tenth Amend- ment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and if in the future further powers ought to be possessed by Congress they must be obtained by a new grant from the people.^ The Federal Constitution is, however, a written instrument, and, as such, its meaning does not alter. Its language, as a grant of power to. the national government, is general, and as changes come in social and political life, it embraces all new conditions within scope of the powers conferred.' Again, the Constitution was ordained and established by the people of the United States for themselves: for their own government; and not for the government of individual States. Each State established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests; the powers they conferred on this government were to be exer- cised by itself; and the limitations on power, if expressed in See State, Smyth, v. Moores, 55 Neb. * Erie & North-East Rd. v. Casey, 480, 76 N. W. 175, 41 L. R. A. 624. 26 Pa. 287. ♦ Southern Pacific Rd. Co. v. « Kansas v. Colorado, 206 U. S. 46, Orton, 32 Fed. 4.57, 472, 473, per 51 L. ed. 956, 27 Sup. Ct. 655. See Sawyer, J., citing or quoting Bour- citations in second preceding note to land V. Hildreth, 26 Cal. 183, 215, this section. 225; People v. Sasswitch, 29 Cal. 482; ' South Carolina v. United States, Stockton & Visalia Rd. Co. v. Stock- 199 U. S. 437, 50 L. ed. — , 26 Sup. ton, 41 Cal. 147, 161, 162; Sharpless Ct. — . See Dred Scott v. Sandford, V. Mayor of Philadelphia, 21 Pa. 160. 19 How. (60 U. S.) 393, 15 L. ed. 191. 453 § 200 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION general terms, are naturally and necessarily applicable to the government created by the instrument; they are limitations of power granted in the instrument itself; not of distinct gov- ernments framed by different persons and for different pur- poses * And although the government of the United States is, within the scope of its powers, supreme and beyond the States, it can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States." But it is held that the reservation to the States does not limit the power of Congress to legislate for the Territories.^" § 290. Same Subject Continued. —The Federal government is not restricted to the powers expressly granted in the Con- stitution; it has all the powers necessarily implied from the powers gran ted. ^^ The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implica- tion from that instrument. Even then, when an act of any department is challenged, because not warranted by the Con- stitution, the existence of the authority is to be ascertained by determining whether the power has been conferred by the Constitution, either in express terms or by lawful implication, to be drawn from the express authority conferred or deduced as an attribute which legitimately inheres in the nature of the powers given, and which flows from the character of the gov- ernment established by the Constitution. In other words, whilst confined to its constitutional orbit the government of the United States is supreme within its lawful sphere. Every function of the government being thus derived from the Con- stitution, it follows that that instrument is everywhere and » Barron v. Baltimore, 7 Pet. (32 '» Downes v. Parshall, 3 Wyo. 425, U. S.) 243, 8 L. ed. 672. 26 Pac. 994. » United States v. Cruikshanks, 92 " Gibbons v. Ogden, 9 Wheat. (22 U. S. 542, 23 L. ed. 548, 190 Sup. Ct. U. S.) 1, 6 L. ed. 23. 136. 454 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 291 at all times potential in so far as its provisions are applicable. Hence it is that wherever a power is given by the Constitution and there is a limitation imposed on the authority, such re- striction operates upon and confines every action on the sub- ject within its constitutional limits. Consequently, it is im- possible to conceive that where conditions are brought about to which any particular provisions of the Constitution applies, its controlling influence may be frustrated by the action of any or all the departments of the government. Those depart- ments, when discharging, within the limits of their consti- tutional power, the duties which rest on them, may of course deal with the subjects committed to them in such a way as to cause the matter dealt with to come under the control of pro- visions of the Constitution which may not have been previously applicable. But this does not conflict with the doctrine just stated, or presuppose that the Constitution may or may not be applicable at the election of any agency of thegovernment.^^ If the Constitution in its grant of powers is to be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the powers of Congress, that prohibition or limitation should be enforced in its spirit and to its entiretj''.^^ §201. Privileges and Immunities of Citizens in the Sev- eral States. — Corporations are not citizens within the meaning of that clause of the Constitution of the United States which provides that citizens of each State shall be entitled to privi- leges and immunities of citizens in the several States. ^^ Corpo- >' Downes v. Bldwell, 182 U. S. 168, 19 L. cd. 357. See § 67, herein. 244, 45 L. ed. 1088, 21 Sup. Ct. Compare Pittsburg, Cincinnati, Chi- 770. cago & St. Louis Ry. Co. v. Mont- "Fairbank v. United States, 181. gomery, 152 Ind. 1, 49 N. E. 582, 9 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Am. & Eng. R. Cas. (N. S.) 792, 69 648. L. R. A. 875. "Const. U. S., Art. IV, § 2, Corporation aggregate cannot be a subdv. 1; Blake v. McClung, 172 U. citizen; and can only litigate in Federal S. 2.39, 43 L. ed. 4.32, 19 Sup. Ct. 165, courts in consequence of the charac- 9 Am. & Eng. Corp. Cas. (N. S.) 385; ter of the indivitiuals who compose Paul V. Virginia, 8 WaU. (75 U. S.) the body pohtic; which character 455 § 291 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION rations are creatures of local law ; and the privileges and im- munities secured to citizens of each State in the several States by this clause, are those privileges and immunities which are common to the citizens of the latter States under their con- stitutions and laws by virtue of their being citizens. Spec- ial privileges enjoyed by citizens in their own States are not secured by it in other States.^'' A state statute is not incon- sistent with this provision where its purpose is to protect the State's industries and the property of its people, and the means employed to that end do not go beyond the necessities of the case or unreasonably burden the exercise of constitu- tional privileges, even though the subject of legislative action is a branch of interstate commerce; provided that Congress has not acted in the matter as involved in such commerce.^^ So a specific tax may, under a general tax law, be imposed upon a foreign corporation or manufacturing company, doing busi- ness by itself or its agents in a State, where such statute em- braces all like corporations, associations, companies, etc., in such State, even though no domestic corporation with a like business exists in that State. ^^ And a statute which provides for the assessment of capital stock of a corporation of another State may, in so far as it operates as a discrimination against such corporation, constitute merely an incident to the accept- ance of the franchises of such corporation, and come within must appear by the proper aver- by each of the States whose legisla- ments upon the record. Hope In- tive grants they accept as domestic surance Co. v. Boardman, 5 Cranch corporations. St. Louis & San Fran- (9U. S.), 57, 3 L. ed. 36. cisco Ry. Co. v. James, 161 U. S. The presumption that a corporation 545, 40 L. ed. 802, 16 Sup. Ct. 621. is composed of citizens of the State See § 67, herein, which created it accompanies such '^ Paul v. Virginia, 8 Wall. (75 U. corporation when it does business in S.) 168, 19 L. ed. 357. another State, and it may sue or be '« Reid v. Colorado, 187 U. S. 137, sued in the Federal courts in such 23 Sup. Ct. 92, 47 L. ed. 108, aff'g other State as a citizen of the State 29 Colo. 333, 68 Pac. 228 (a case of its original creation. That pre- of transportation of cattle — diseased sumption of citizenship is one of law, live stock. Col. Sess. Laws 1885, p. not to be defeated by allegation or 335, § 2). evidence to the contrary. And rail- " Singer Manufacturing Co. v. road corporations may be treated Wright, 33 Fed. 121. 456 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 292 the power of the State to prescribe the conditions of the en- joyment of its corporate privileges and so not confiict with the above constitutional provision. ^^ Again, a State cannot im- pose upon a foreign insurance company as a property condi- tion, a requirement that it shall be possessed of a certain amount of capital stock invested in a specified manner where no such condition is imposed upon domestic unincorporated associations, firms or individuals.^^ § 292. Same Subject Continued — ^Discrimination — ^Tax Law — ^Deduction of Debts — Creditors in Different States. — A tax law of a State may operate as a denial of constitutional rights under this clause as to privileges and immunities where it discriminates between residents and non-residents in allowing a deduction of debts to the former.'*^ And when the general property and assets of a private corporation, lawfully doing business in a State, are in the course of administration in its courts, creditors, who are citizens of other States, are en- titled, under the Federal Constitution, to stand in all respects upon the same plane with creditors of like class who are citizens of such State, and cannot be denied equality of right merely because they do not reside in that State, but are citi- zens residing in other States.^^ In another case in the Federal " State V. Travelers' Ins. Co., 73 business, and purchase, hold and Conn. 255, 47 Atl. 299. convey real and personal property in " State, Hoadley, v. Florida Ins. this State, " provided that corpora- Commrs., 37 Fla. 564, 20 So. 772, 33 tions organized under the laws of L. R. A. 288. other States and countries, for pur- ^° Sprague v. Fletcher, 69 Vt. 69, poses named in the act, might carry 37 Atl. 239, 37 L. R. A. 840. on within that State the business ^' Blake v. McClung, 176 U. S. 59, authorized by their respective char- 20 Sup. Ct. 307, 44 L. ed. 371; Blako ters, but that "creditors who may be v. McClung, 172 U. S. 239, 43 L. ed. residents of this State shall have a 432, 19 Sup. Ct. 165, 9 Am. & I'>ng. priority in the distribution of assets, Corp. Cas. (N. S.) 385. This case was or subjection of the same, or any as follows: Chapter 31, acts Tennessee part thereof, to the payment of debts 1877, entitled: "An act to declare the over all simple contract creditors, terms on which foreign corporations being residents of any other country organized for mining or manufac- or countries, and also over mort- turing purposes may carry on their gage or judgment creditors, for all 457 § 292 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION Supreme Court bills were filed in Tennessee by the American National Bank and others against the Carnegie Land Com- pany, a Virginia corporation, doing business in Tennessee under the provisions of the enactment upon which the above ruling was made ; ^^ and also against various creditors of that company. The prayer of the bill was that it might be taken as a general creditors' bill; and it was alleged that the company was insolvent, having a large amount of property in the State, which it had assigned for the benefit of its creditors, without preferences, which was in disregard of the statute of the State, that a receiver should be appointed, the assets marshaled and the creditors paid according to law. The company answered denying that it was insolvent and claimed that the assign- ment should be held valid, and the trust administered by the assignees. During the pendency of the suit, S. and C, New York creditors, filed a bill, setting up that nearly all the as- debts, engagements and contracts upon which foreign corporations may which were made or owing by the enter its territory for purposes of said corporations previous to the business. It was also held that there filing and registration of such valid was no denial of equal protection of mortgages, or the rendition of such the laws. valid judgments." It was held, in "A local rule of law, which has addition to the point above stated in been maintained by the courts of a the text, that as the litigation pro- State, to the effect that a foreign ceeded on the theory that plaintiffs assignment by an insolvent will not in error were citizens of Ohio, where operate on property in the State, so they resided, did business and had as to defeat an attachment made by a offices, that question could not now resident, is expressly annulled by be considered; and as the manifest Blake v. McClung, 172 U. S. 239, 19 purpose of the act was to give to all Sup. Ct. 165, 43 L. ed. 432, 9 Am. & Tennessee creditors priority over all Eng. Corp. Cas. (N. S.) 385, in so far creditors residing out of that State, as it discriminates against citizens of without reference to the question other States, and it cannot be pre- whether they were citizens or only sumed that the rule, as necessarily residents of some other State or limited by Blake v. McClung, would country, the act must be held to in- be reaffirmed by local courts. There- fringe rights secured to the plaintiffs fore it is held that it can no longer be in error, citizens of Ohio, by the pro- accepted in any part." Syllabus to visions of the Constitution stated in Belfast Savings Bk. v. Stowe, 92 the text in this section, although, Fed. 102, 103, 104. generally speaking, the State has " See last preceding note herein, power to prescribe the conditions 458 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 292 sets, if not all of them in the hands of the assignees of the com- pany, and sought to be impounded by the bill filed by the bank, were covered and conveyed to S., as trustee, and that C, was entitled to priority over all other creditors of the defendant in the appropriation of the assets covered by the deed of trust to S. They asked for leave to file that bill as a general bill against the land company, or, if that could not be done, that they might file it in the case of the bank against the land company, as a petition in the nature of a cross bill against that company. Other proceedings took place which are set forth in detail in the statement of the case. They ended in the consolidation of the various proceedings into one action and a reference to a master to take proof of all the facts. The master made his re- port, upon which a final decree was entered. It was decreed that the land company, by its deed of general assignment, of June 3, 1893, in making disposition therein for the payment of its creditors, without any preferences, attempted to defeat the preferences given by law to creditors residents of Tennessee, over non-resident creditors and mortgagees, whose mortgages were made subsequent to the creation of the debts due resident creditors, and that such deed was fraudulent in law, and void; that the making of the deed was an act of insolvency by the land company, and that the bill filed by the bank was properly filed, and should be sustained as a general creditors' bill, and that the assets of the company under the jurisdiction of the court were subject to distribution under the law relating to foreign corporations doing business in Tennessee, and as such should be decreed in the action then pending. The decree further adjudged that C. was a bona fide holder of the bonds mentioned in his bill and that he was entitled to recover thereon as provided for in the decree, but subject to the pay- ment of debts due residents of Tennessee prior to the regis- tration of such mortgage. It was also decreed that the Trav- elers' Insurance Company by its mortgage acquired a valid lien upon the property covered by it, subordinate, however, to debts due residents of Tennessee contracted prior to the registration thereof, and also subject to some other liabilities 459 § 293 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION of the land company. The case was taken to the Court of Chancery Appeals, which modified in some particulars the decree of the chancellor, and after such modification it was affirmed. Upon writ of error from the Supreme Court the case was there heard, and that court held that the statute in question, providing for the distribution of assets of foreign corporations doing business in that State, was constitutional, and was not in contravention of any provision of the Consti- tution of the United States. The decree of the Court of Appeals Vvas, after modifying it in some respects, affirmed. The case was then brought up on writ of error. It was held, that on an appeal from a state court the plaintiff in error in the Federal court must show that he himself raised the question in the state court which he argues there, and it would not aid him to show that someone else had raised it in the state court, while he failed to do so ; but if he raised it in the Supreme Court of the State, it was sufficient. It was also decided that the allegation, in the case of C, that he was a resident of New York was a sufficient allegation of citizenship, no question having been made on that point in the courts below. It was further de- termined that a Tennessee general creditor had the same right of preference as against a resident mortgagee that he had against a non-resident, and the same burden that was placed upon non-resident mortgagees and judgment creditors was by the statute placed upon resident mortgagees and judgment creditors; and that there was no foundation for the claim made, on behalf of C, that section five of the Tennessee act of 1877, violated section one of the Fourteenth Amendment of the Constitution of the United States in that it deprived the non-resident mortgagee of his property.^^ §293. Same Subject — ^Actions — Statute of Limitations. — The right to sue and defend in the courts of the States is one of the privileges and immunities comprehended by section 2 " Sully V. American Nat. Bk., 178 184 U. S. 334, 339, 46 L. ed. 573, 22 U. S. 289, 44 L. ed. 1072, 20 Sup. Ct. Sup. Ct. 391. 935, cited in Rothschild v. Knight, 460 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 294 of article IV of the Constitution of the United States, and equality of treatment in regard thereto does not depend upon comity between the States, but is granted and protected by that provision in the Constitution; subject, however, to the restrictions of that instrument that the limitations imposed by a State must operate in the same way on its own citizens and on those of other States. The State's own policy may determine the jurisdiction of its courts and the character of its controversies which shall be heard therein. A statute, therefore, providing that no action can be maintained in the courts of a State for wrongful death occurring in another State except where the deceased was a citizen of the former State, the restriction operating equally upon representatives of the deceased whether they are citizens of the State where the statute was enacted or of other States, does not violate the privilege and immunity provision of the Federal Constitu- tion.^'* A statute has also been held constitutional even though it prohibits certain actions between foreign corpora- tions; ^'^ although a non-resident's right to maintain an action in a state court is not one of the privileges guaranteed by this provision of the Federal Constitution. ^^ But a provision in a statute to the effect that when the defendant is out of the State, the statute of limitations shall not run against the plaintiff, if the latter resides in the State, but shall if he re- sides out of the State, is not repugnant to this constitutional provision as to privileges and immunities of citizens in the several States. ^^ § 294. The Fourteenth Amendment — Generally. —The Fourteenth Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for "Chambers v. Baltimore & Ohio 741, 16 C. P. 225, 19 N. E. 625, 2 Ry. Co., 207 U. S. 142, aff'g 73 L. R. A. 636, aff'g 1 N. Y. Supp. 418, Ohio, 1. 15 C. P. 88, 56 Sup. Ct. 108, 16 " Anglo-American Provision Co. v. N. Y. St. R. 583, which reverses 16 Davis Provision Co., 63 N. Y. Supp. N. Y. St. R. 871. See §§ 66, 67, 987, 50 App. Div. 273. herein. " RoVjinson v. Oceanic Steam Nav. " Chemung Canal Bank v. Lowery, Co., 112 N. Y. 315, 20 N. Y. St. R. 93 U. S. 72, 23 L. ed. 806. 461 § 294 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION enforcing it is not direct legislation on the matter respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts.^* The prohibitions of this amendment refer to all the instrumentalities of the State, to its legislative, executive and judicial authorities, and who- ever, by virtue of a public position under a state government, deprives another of any right protected by that amendment against deprivation by the State, violates the constitutional inhibition ; and as he acts in the State's name and is clothed with the State's power, his act is that of the State.^ The mere '' Civil Rights Cases, 109 U. S. 3, that, in passing upon the validity of 27 L. ed. 835, 3 Sup. Ct. 18. state legislation under it, this court "It is well settled that the pro- has not failed to recognize the fact visions of the Fourteenth Amend- that the law is, to a certain extent, a ment which prohibit a State from progressive science; that in some depriving any person of life, liberty States methods of procedure which, or property without due process of at the time the Constitution was law, or from denying to any person adopted, were deemed essential to within its jurisdiction the equal pro- the protection and safety of the peo- tection of the laws, add nothing to pie, or to the liberty of the citizens the rights of one citizen as against have been found to be no longer nec- another, but are limitations upon the essary; that restrictions which had, powers of the State, and guaranty formerly been laid upon the conduct immunity from state law and state of individuals or classes had proved acts invading the privileges and detrimental to their interests; and rights stated in the amendment ; that other classes of persons, particularly while the government of the United those engaged in dangerous or un- States is, within the scope of its healthy employments, have been powers, supreme, it can neither grant found to be in need of additional pro- nor secure to its citizens rights or tection; but this power of change is privileges which are not expressly or limited by the fimdamental principles by implication placed under its juris- laid down in the Constitution, to diction by the Constitution of the which each member of the Union is United States; and that rights and bound to accede as a condition of its privileges not so placed within its admission as a State. Holden v. jurisdiction are left to the exclusive Hardy, 169 U. S. 366, 42 L. ed. 780, protection of the States." Green v. 18 Sup. Ct. 383. Elbert, 63 Fed. 309. '* Chicago, Burlington & Quincy Ths cases arising under the Four- Rd. Co. v. Chicago, 166 U. S. 226, 41 teenth Amendment are examined in L. ed. 979, 17 Sup. Ct. 581. detail, and are held to demonstrate 462 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 295 fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and in all cases it must not only appear that a classification has been made, but also that it is based upon some reasonable ground, something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary se- lection. ^° Again, due process of law and the equal protection of the laws are secured if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government; ^^ nor is there any unjust discrimination, or any denial of the equal protection of the laws, in regulations regarding railroads, which are applicable to all alike. ^^ And requiring the burden of a public service by a corporation, in consequence of its existence and of the exercise of privileges obtained at its request, to be borne by it, is neither denying to it the equal protection of the laws, nor making any unjust discrimination against it.^^ Corporations are persons within the meaning of the clauses in the Fourteenth Amendment to the constitution concerning the deprivation of property, and concerning the equal protection of the laws, and are not to be denied any of the rights therein guaranteed.^"* §295. Same Subject — ^Police Power. — It is elementary that the Fourteenth Amendment does not deprive the States of their police power over subjects within their jurisdiction.'* 50 Gulf, Colorado & Santa Fe Ry. 585, 9 Sup. Ct. 207; McGuire v. Co. V. Ellis, 165 U. S. 150, 41 L. ed. Chicago, Burlington & Quincy R. 666, 17 Sup. Ct. 255. Co., 131 Iowa, 340, 350, 108 N. W. " Duncan v. Missouri, 152 U. S. 902. See § 66, herein. 377, 38 L. ed. 485, 14 Sup. Ct. 570. " Cummings v. Reading School " New York & New England Rd. District, 198 U. S. 458, 49 L. Co. V. Bristol, 151 U. S. 556, 14 Sup. ed. 1125, 25 Sup. Ct. 721; New Or- Ct. 437, 38 L. ed. 269. leans Gas Light Co. v. Drainage " Charlotte, Columbia & Augusta Commissioners, 197 U. S. 453, 25 Rd. Co. V. Gibbes, 142 U. S. 386, 12 Sup. Ct. 471, 49 L. ed. 831; Fischer v. Sup. Ct. 255, 35 L. ed. 1051. See St. Louis, 194 U. S. 361, 24 Sup. Ct. New York v. Squire, 145 U. S. 175, 673, 48 L. ed. 1018; Powell v. Penn- 36 L. ed. 666, 12 Sup. Ct. 880. sylvania, 127 U. S. 678, 32 L. ed. 253, '♦ Minneapolis & St. Louis Ry. Co. 8 Sup. Ct. 992; Barbier v. Connolly, V. Beckwith, 129 U. S. 26, 32 L. ed. 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. 463 § 295 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION So a State has power to regulate grain warehouses ; ^^ grain elevators; " the consolidation of common carrier corpora- tions; ^* the recovery of damages against a railroad for killing live stock; ^^ to provide for the extinction of grade crossings as a menace to public safety; ^" for the regulation of carriers of electricity, or electrical conductors; ^^ for the regulation of slaughter houses of a corporation; ^^ and in general a State has the same undeniable and unlimited jurisdiction over all persons and things, within its te-rritorial limits, a's any foreign nation, when that jurisdiction is not surrendered, or restrained by the Constitution of the United States; and all those powers which relate to merely municipal legislation, or which may more properly be called internal police, are not restrained, so that in relation to these the authority of a State is complete, unqualified and exclusive.''^ Again, it is an appropriate ex- ercise of the police power of the State to regulate the use and enjoyment of mining properties, and mine owners are not de- prived of their property, privileges or immunities without due process of law or denied the equal protection of the laws by the Illinois mining statute of 1899, which requires the em- ployment of only licensed mine managers and mine examiners, and imposes upon the mine owners liability for the willful failure of the manager and examiner to furnish a reasonably safe place for the workmen. It is also within the power of the State to change or modify, in accord with its conceptions of public policy, the principles of the common law in regard to the relation of master and servant; and, in cases within the 357. See Sprigg v. Garrett Park, 89 ^^ Minneapolis & St. Louis R. Co. v. Md. 406, 43 Atl. 813; State v. Jack- Beckwith, 129 U. S. 26, 32 L. ed. 585, man, 69 N. H. 318, 41 Atl. 347, 42 9 Sup. Ct. 207. L. R. A. 438, 3 Chic. L. J. Wkly. 551. *" New York & New England Rd. See § 149, herein. Co. v. Bristol, 151 U. S. 556, 14 Sup. 36 Brass v. Stoeser, 153 U. S. 391, Ct. 437, 38 L. ed. 269. 38 L. ed. — , 14 Sup. Ct. — . *' New York v. Squire, 145 U. S. " Budd V. New York, 143 U. S. 175, 12 Sup. Ct. 880, 36 L. ed. 666. 517, 36 L. ed. 247, 12 Sup. Ct. 468. " Slaughter-House Cases, 16 Wall. 38 Louisville & Nashville Rd. Co. v. (83 U. S.) 36, 21 L. ed. 394. Kentucky, 161 U. S. 677, 40 L. ed. "^ New York v. Milne, 11 Pet. (36 849, 16 Sup. Ct. 714. U. S.) 102, 9 L. ed. 648. 464 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION §§ 296, 297 proper scope of the police power, to impose upon the master liabihty for the willful act of his employee/'* But none of the large police powers of a State can be exercised to such an ex- tent as to work a practical assumption of the powers conferred by the Constitution on Congress, and since the range of the State's police power comes very near to the field committed by the Constitution to Congress, the courts should guard vigilantly against any needless intrusion.''^ § 296. Privileges and Immunities of Citizens of the Uni- ted States. — The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution or its laws and treaties made in pursuance thereof and it is these which are placed under the protection of Congress by this amendment.'*'^ These privileges or immuni- ties are not abridged by a state enactment prohibiting monopo- lies, etc., for certain purposes upon penalty of a revocation of a foreign corporation's certificate of authority in case of a violation of the statute. ^^ Nor does a statute violate this clause as to privileges and immunities where it imposes a liability upon railroad companies for injuries by fire communi- cated from its right of way.'** A corporation is not a citizen within the meaning of this clause and has not the privileges and immunities secured to citizens against state legislation.'*^ § 297. Due Process of Law. — Due process of law within the meaning of the Constitution, is secured when the laws operate "Wilmington Star Mining Co. v. 991, 106 N. W. 868. But compare Fulton, 205 U. S. 60, 51 L. ed. — , Gage v. State, 24 Ohio Cir. Ct. R. 724. 27 Sup. Ct. — . *^ Brown v. Carolina Midland Ry. « Railroad Co. v. Husen, 95 U. S. Co., 67 S. C. 481, 46 S. E. 283; Code 465, 24 L. ed. 527. Laws 1902, § 2135. " Slaughter-House Cases, 10 Wall. *^ Western Turf Association v. (77 U. S.) 273, 19 L. ed. 915; Duncan Greenberg, 204 U. S. 359, 51 L. ed. V. Missouri, 152 U. S. 377, 14 Sup. Ct. — , 27 Sup. Ct. — ; Orient Ins. Co. 570, 38 L. ed. 485. v. Daggs, 172 U. S. 557, 19 Sup. Ct. «' Attorney General v. A. Booth & 281, 43 L. ed. 552, 28 Ins. L. J. 97, Co., 143 Mich. 89, 12 Det. Leg. N. aff'g 136 Mo. 382, 35 L. R. A. 227, 30 465 § 297 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION upon all alike, and no one is subject to partial or arbitrary exercise of powers of government.^" Rights of property, and to a reasonable compensation for its use, created by the com- mon law, cannot be taken away without due process; but the law itself, as a rule of conduct, may, unless constitutional limitations forbid, be changed at the will of the legislature. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. But down to the time of the adop- tion of the Fourteenth Amendment it was not supposed that statutes regulating the use of, or even the price of the use, of private property necessarily deprived the owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such deprivation.^^ In a Federal case, the court suggests the difficulty and danger of attempting an authoritative definition of what it is for a State to deprive a person of life, liberty or property without due process of law, within the meaning of the Fourteenth Amendment; and holds that the annunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition. In this case, the court holds that it is due process of law, within the meaning of the Constitution, when the stat- ute requires that such a burden as the fixing of a tax or assess- ment before it becomes effectual, must be submitted to a court of justice, with notice to the owners of the property, all of whom have the right to appear and contest the assessment. But by prior decisions due process of law does not in all cases 38 S. W. 85, 26 Ins. L. J. 67. See cases upon the construction of the § 67, herein. due process of law phrase). See also " Caldwell v. Texas, 137 U. S. 692, Davidson v. New Orleans, 96 U. S. 34 L. ed. 816, 11 Sup. Ct. 224. 97, 24 L. ed. 616, as to the origin and Examine Bartlett v. Wilson, 59 Vt. history of this provision. 23, 8 Atl. 321, 4 N. Eng. Rep. 119. " Munn v. Illinois, 94 U. S. 113, See Marchant v. Pennsylvania R. 24 L. ed. 77. Examine State v. Co., 153 U. S. 380, 38 L. ed. 751, 14 Sponangle, 45 W. Va. 415, 43 L. R. A. Sup. Ct. 894 (for review of leading 727, 32 S. E. 283. 466 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 298 require a resort to a court of justice to assert the rights of the public against the individual, or to impose burdens upon his property for the public use.*^^ And neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the state authorities are controlled by the Federal Constitution.^^ In order, however, to constitute a violation of the constitutional provision against depriving a person of his own property without due process of law, it should appear that such person has a property in the particu- lar thing of which he is alleged to have been deprived.^'* Again, restraints upon the proper exercise of the police power of the States are not imposed by this clause of the Federal Constitu- tion." §298. Same Subject Continued. — Regulations of public stockyards and their charges, when not unreasonable and unjust as depriving their owners of a reasonable return on the money invested, do not constitute a taking of private property without due process of law or just compensation.^^ So gas rates may be regulated without infringing upon the due process of law provision of the Constitution where such rates, so fixed, allow a reasonable profit on the actual value of the investment.'^ " Davidson v. New Orleans, 96 " Sprigg v. Garrett Park, 89 Md. U. S. 97, 24 L. ed. 616, citing Mur- 406, 411, 43 Atl. 813. See § 138, ray's Lessee et al. v. Hoboken Land herein. & Improvement Co., 18 How. (59 " Ratcliff v. Wichita Union Stock- U. S.) 272, 15 L. ed. 372; McMillan yards Co., 74 Kan. 1, 86 Pac. 150; V. Anderson, 95 U. S. 37, 24 L. ed. Laws 1903, p. 735, c. 487. 335. " Richman v. Consolidated Gas "Davidson v. New Orleans, 96 Co. of N. Y., 100 N. Y. Supp. 81, 114 U. S. 97, 24 L. ed. 616. App. Div. 216, 78 N. E. 871, aff'd 180 ** New Orleans v. New Orleans N. Y. 209; Grossman v. Same, 100 Water Works Co., 142 U. S. 79, 35 N. Y. Supp. 100, 114 App. Div. 242, L. ed. 943. 12 Sup. Ct. 142. aff'd 186 N. Y. 541 (mem.). 467 § 298 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION Nor is a person deprived of property without due process of . law by a statute which makes water rates a charge upon lands in a municipality prior to the lien of all incumbrances.^* Nor is the exaction of tolls for the use of an improved water- way within such prohibition of the Constitution.^^ The repeal of a statute providing that a municipal government may set off the taxes of a water company against the company's rates for water, and the substitution of a different scheme of pay- ment in its place, does not deprive the municipality of its property without due process of law, in the sense in which the word "property" is used in the Constitution of the United States.*'" Nor does a state statute, reducing the rate of in- terest upon all judgments obtained within the courts of the State, when applied to one obtained previous to its passage, deprive the judgment creditor of his property without due process of law, in violation of the provisions of section one of the Fourteenth Amendment.'*^ Again, the right of a railroad company to maintain a tunnel under a navigable river is sub- ject to the paramount public right of navigation, and where it has been constructed under municipal ordinance and a state law that it shall not interrupt navigation, the duty of not obstructing navigation is a continuing one; and, if the in- creased demands of navigation at any time require a deeper channel than when the tunnel was originally constructed, it is within the power of the municipality to compel the railroad companj% at the latter's own expense, to either remove the tunnel or lower it to conform with the necessities of commerce and to a rule established by act of Congress; and such action of the municipality is not unconstitutional, and does not amount either to taking the property for public use without compen- sation, or depriving the company of its property without due ^* Provident Inst, for Savings v. '" New Orleans v. New Orleans Jersey City, 113 U. S. 506, 28 L. ed. Water Works Co., 142 U. S. 79, 12 — , 5 Sup. Ct. — . Sup. Ct. 142, 35 L. ed. 943. ** Sands v. Manistee River Imp. " Morley v. Lake Shore & M. S. Ry. Co., 123 U. S. 288, 8 Sup. Ct. 113, 31 Co., 146 U. S. 162, 36 L. ed, 925, 13 L. ed. 149. Sup. Ct. 54. 468 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 298 process of law.^^ Nor does such a deprivation of property arise under a statute empowering a city to require the removal of telephone wires to underground conduits, as the enactment is within the police power of the State. ®^ But a municipal corporation with charter authority to permit the use of its streets, to control them, and to regulate the construction of railroad tracks thereon acts, in resuming control of such streets, as agent of the State within the above constitutional pro- vision that no State shall deprive any person of property with- out due process of law.^^ The construction, however, and maintenance by a city of its own waterworks plant does not « West Chicago Street Railroad 39 Am. & Eng. Corp. Cas. 526, 3 Am. Co. V. Illinois, 2U1 U. S. 506, 50 L. ed. Elec. Cas. 142, aff'g 58 Hun, 610, 35 845, 26 Sup. Ct. 518, aff'g 214 111. 9, N. Y. St. R. 606, 12 N. Y. Supp. 536; 73 N. E. 393, following Chicago, Bur- People v. King, 110 N. Y. 418, 423, lington & Quincy Ry. Co. v. Drainage 18 N. E. 245, 1 L. R. A. 293, 18 N. Y, Commrs., 200 U. S. 561, 26 Sup. Ct. St. R. 353, aff'g 42 Hun, 186, 5 N. Y. 341, 50 L. ed. 596. In this case a St. R. 138. 25 Wkly. D. 212; People railroad company was required to v. Squire, 107 N. Y. 593, 12 N. Y. St. remove a bridge, unless it abandoned R. 832, 28 Wkly. D. 175, 14 N. E. or surrendered its right to a crossing 823, 2 Am. Elec. Cas. 176, aff'd 145 at that point, and to erect at its own U. S. 175, 36 L. ed. 666, 12 Sup. Ct. expense and maintain a new bridge 880, 4 Am. Elec. Cas. 122. See Joyce in conformity with regulations estab- on Electric Law (2ded.), §§420 et seq. lished by drainage, commissioners un- '* Iron Mountain R. Co. v. Mem- dev authority of the State, and it phis, 96 Fed. 113, 37 C. C. A. 410, was held that such requirement, if citing Smyth v. Ames, 169 U. S. 466, enforced, would not amount to a 42 L. ed. 819, 18 Sup. Ct. 418; Chi- taking of private property for public cago, Burlington & Quincy R. Co. v. use within the meaning of the Con- Chicago, 166 U. S. 226, 17 Sup. Ct. stitution, nor to a denial of the equal 581, 41 L. ed. 979; Mis.souri Pac. R. protection of the laws. See Bristol Co. v. Nebraska, 164 U. S. 403, 41 County, In re, 193 Mass. 257, 79 N. E. L. ed. 489, 17 Sup. Ct. 130; Reagan 339; Stat. 1900, p. 411, c. 439, § 6. v. Farmers' Loan & T. Co., 154 U. " City of Geneva V. Geneva Teleph. S. 362, 14 Sup. Ct. 1047, 38 L. ed, Co., 62 N. Y. Supp. 172, 30 Misc. 1014, 4 Inters. Comm. Rep. 575; 236 (Laws 1897, c. 360, § 58, as am'd Scott v. McNeal, 154 U. S. 34, 38 L. by Laws 1899, c. 405), citing Stone ed. 896, 14 Sup. Ct. 1108; Yick Wo V. Mississippi, 101 U. S. 814, 25 L. v. Hopkins, 118 U. S. 356, — Sup. ed. 1079; Western Union Tcleg. Co. Ct. — , 30 L. ed. 220; Civil Rights v. City of New York, 3S Fed. 552; Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 American Rapid Teleg. Co. v. Hess, L. ed. 835; Neal v. Delaware, 103 U. 125 N. Y. 641, .36 N. Y. St. R. 252, S. 370, 26 L. ed. 567. See Joyce on 21 Am. St. Rep. 764, 26 N. E. 919, Electric Law (2d ed.), § 229. 469 § 29S CONSTITUTIONAL LAW — FEDERAL CONSTITUTION constitute such a taking of the property of a corporation op- erating its works under a franchise granted by that city.*"^ Nor is a railroad deprived of its property without due process of law or denied the equal protection of the laws by a statute which provides that every railroad company organized and doing business in the State of the statutory enactment shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employees, to any person sustaining such damage. ®® Again, due process of law is " Mayor, etc., of City of Meridian V. Farmers' Loan & Trust Co., 143 Fed 67, rev'g Farmers' Loan & Trust Co. V. City of Meridian, 139 Fed. 673; Revere Water Co. v. Town of Win- throp, 192 Mass. 455, 78 N. E. 497; Stat. 1905, p. 488, c. 477. *' Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. 1161. See also Tullis v. Lake Erie & Western R. Co., 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. 136; Chicago, Kansas & Western Rd. Co. V. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. ed. 675. Eight-hour law regulating period of employment by corporations of workingmen in mines, smelters and other institutions for the reduction or refining of ores or metals, except in certain cases of emergency, is valid exercise of police power of State and does not violate the provi- sions of the Fourteenth Amend- ment by abridging the privileges or immunities of citizens of the United States, or by depriving them of their property, or by denying them the equal protection of the laws. Holden V. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. 383. See Atkin v. State of Kansas, 191 U. S. 207, 48 L. ed. 148, 24 Sup. Ct. 124, afT'g State v. Atkin, 64 Kan. 174, 67 Pac. 519; 470 Boyce, Ex parte, 27 Nev. 299, 75 Pac. 1; People v. Orange County Road Const. Co., 175 N. Y. 84, 67 N. E. 129, rev'g 77 N. Y. Supp. 16, 73 App. Div. 580, citing Connolly & Dee V. Union Sewer Pipe Co., 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. 431; Cotting v. Kansas City Stock- yards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. ed. 92; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666; Pell's Estate, Matter of, 171 N. Y. 48, 63 N. E. 789, 89 Am. St. Rep. 791, 57 L. R. A. 540; People ex rel. Tyroler V. Warden, 157 N. Y. 116, 51 N. E 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763; Colon v. Link, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302. Examine Ellis v. United States, 206 U. S. 246, 51 L. ed. — , 27 Sup. Ct. — . Statute providing for payment monthly of employees of corporations and giving lien for wages with pref- erence over other liens, with certain exceptions, and allowing a reason- able attorney's fee in case of action brought does not violate a state constitutional provision as to depri- vation of property without due process of law, nor interfere with the liberty to contract. Skinner v. Gar- nett Gold Min. Co., 96 Fed. 735; Stat. Cal. 1897, p. 231, §§ 1, 2. CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 299 not denied by the imposition of a tax on transfers of stock in domestic and foreign corporations.''^ Nor is this provision as to due process of law violated by a mechanic's lien law which specifies the form of contract requisite to obtain a lien but which does not preclude any other form of contract. "^^ And this clause of the Constitution is held to be sufficiently satisfied by the provisions of the Massachusetts Mill Act which gives damages or compensation within a certain period for the harm actually done to lands overflowed or otherwise injured, the right of the lower owner only becoming complete when the land is flowed, and then being only a right to maintain a dam, subject to payment to the upper . owners, as above stated, for the injury sustained .^^ § 299. Same Subject Continued. — ^A statute prohibiting effecting insurance on property in the State, by any person therein, in any marine insurance company which has not complied in all respects with the laws of the State of enactment, and providing a fine for noncompliance with such act, violates the due process clause of the Constitution when applied to a contract of insurance made in another State with an insurance company there, where the premiums and losses were to be paid there.'" So compelling the acceptance of the arbitrary " People V. Reardon, 184 N. Y. of the Federal Supreme Court might 431, 77 N. E. 970, aff' g 97 N. Y. Supp. depend upon the interpretation of 535, 110 App. Div. 821; Laws 1905, the act by the state court, it was pp. 474, 477, c. 241, §§ 315, 324. held that the bill should be dismissed •* Chicago Lumber Co. v. New- without prejudice, or retained until comb, 19 Colo. App. 265, 74 Pac. plaintiff's rights should be deter- 786. mined in an action for damages under " Otis Co. V. Ludlow Mfg. Co., 186 the statute pending in the state Mass. 89, 70 N. E. 1009, 104 Am. St. courts. Otis Co. v. Ludlow Mfg. Co., Rep. 5G3. Modified as follows: In a 201 U. S. 140, 26 Sup. Ct. 353, 50 L. suit at equity brought by the upper ed. 696. owner to restrain the lower owner " Allgeyer v. Louisiana, 165 V. S. from building a dam, the state court 578, 41 L. ed. 832, 17 Sup. Ct. 427. having decided generally that the Distinguishing Hooper v. California, MiU Act is valid, but not having 155 U. S. 648, 39 L. ed. 297, 15 Sup. definitely expressed itself as to its Ct. 207. constitutionality, and as the opinion 471 § 299 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION decision of a statutory umpire as to the weight of grain and precluding the showing of any error by him violates the due process of law clause.'^ Property is also taken without due process of law by the requirement of an ordinance that street railroads accept transfers from other companies with which it has no connection and which thereby necessitates carrying passengers without charge, and this is so even though a re- ciprocal obligation is imposed upon such other companies and an increase of business results therefrom/^ And a statute which attempts to change the ownership of private property without due process of law is unconstitutional 7^ Again, a law operates to deprive railroad companies of property with- out due process of law, and denies to them the equal protec- tion of the law, where it singles them out of all citizens and corporations and requires them to pay, in certain cases, at- torneys' fees to the parties successfully suing them, while it gives to them no like or corresponding benefit.'^ But the Nebraska statute of 1899,"^^ by which the court upon rendering judgment for a total loss sued for against an insurance com- pany upon any policy of insurance against loss on real prop- erty by fire, tornado or lightning shall allow the plaintiff a reasonable attorney's fee to be taxed as costs, is not repug- nant to the equality clause of the Fourteenth Amendment either because it arbitrarily subjects insurance companies to a liability for such fees when other defendants in other cases are not subjected to such burden, or because the fee is to be " Vega Steamship Co. v. Con- April 5, 1889. The claims under this Bolidated Elevator Co., 75 Minn, statute were those for " personal serv- 308, 77 N. W. 973, 43 L. R. A. 843. ices rendered or for labor done, or for " Chicago City Ry. Co. v. Chicago, damages, or for overcharges on 142 Fed. 844. freight, or claims for stock killed or "People V. O'Brien, 111 N. Y. 1, injured by the train of any railway 18 N. E. 692, 19 N. Y. St. R. 173, company, provided that such claim rev'g 45 Hun, 519, 10 N. Y. St. R. for stock killed or injured shall be 596, 27 Wkly. D. 365, Laws N. Y. presented to the agent," etc. See 1886, c. 271. Joliffe v. Brown, 14 Wash. 155, 44 ">* Gulf, Colorado & Santa Fe Ry. Pac. 149, 3 Am. & Eng. R. Cas. (N. Co. v. Ellis, 165 U. S. 650, 41 L. ed. S.) 254. — , 17 Sup. Ct. — , act of Texas, " Laws 1899, chap. 48, §§ 43-45. 472 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 300 imposed on the insurance companies but not on the insured when the suit is successfully defended, or because the statute arbitrarily distinguished between different classes of policies allowing the fee in certain cases and not in others.^* § 300. Equal Protection of the Laws. — ^There cannot be an exact exclusion or inclusion of persons and things in a classification for governmental purposes, and a general classi- fication, otherwise proper, will not be rendered invalid because certain imaginary and unforeseen cases have been overlooked. In such a case there is no substantial denial of the equal pro- tection of the laws within the meaning of the Fourteenth Amendment;'^ and a state constitutional provision declaring that protection to persons and property shall be impartial and complete is the equivalent to a declaration that the equal protection of the laws shall not be denied to any person.'* So it is not in the power of one State, when establishing regu- lations for the conduct of private business of a particular kind, to give its own citizens essential privileges, connected with that business, which it denies to citizens of other States 7*^ A state statute may, however, without violating the equal protection clause of the Fourteenth Amendment, put into one class all engaged in business of a special and public character, and require them to perform a duty which they can do better and more quickly than others and impose a not exorbitant penalty for the non-performance thereof .*° And the peculiar '* Farmers' & Merchants' Ins. Co. upon point that due process of law V. Dobney, 189 U. S. 301, 23 Sup. Ct. acquires opportunity to be heard as 565, 47 L. ed. 821, aff'g 02 Neb. 213, to vaHdity of tax and amount of as- 86 N. W. 1070. See Iowa Life Ins. sessment, in 207 U. S. 127. See Co. V. Lewis, 187 U. S. 335, 23 Sup. Walston v. Nevins, 128 U. S. 578, 32 Ct. 126, 47 L. ed. — . L. ed. 544, 9 Sup. Ct. 192. "Oxan Lumber Co. v. Union '» Blake v. McClung, 172 U. S. 239, County National Bank of Liberty, 43 L. ed. 432, 19 Sup. Ct. 165. 207 U. S. 251. ""Seaboard Air Line Ry. v. See- " Georgia R. & Banking Co. v. gaers, 207 U. S. 73, aff'g 73 S. C. 71. Wright, 125 Ga. 589, 54 S. E. 52; Examine Ritchie v. People, 155 111. Central of Georgia Ry. Co. v. Same, 98, 40 N. E. 454, 27 Chic. Leg. N. 125 Ga. 617, 54 S. E. 64, both rev'd, 270, 29 L. R. A. 79. 473 .82 § 300 CONSTITUTIONAL LAW— FEDERAL CONSTITUTION character of the business in which a class of corporations is engaged may warrant the imposition upon that class of cer- tain duties and liabilities without infringing upon this clause as to the equal protection of the laws.^^ So legislation imposing upon railway companies special restrictions, obligations, and liabilities not generally applicable to other persons or corpo rations is not a denial of the equal protection of the laws;" nor does the enforcement against railroad companies of reason- able rules and regulations deny such protection ; ^^ nor is it denied by a statute which imposes a liability upon railroad companies for injuries by fire communicated by its right of way; ^^ nor is such protection of the law denied by a judgment in favor of an abutting owner of land against a railroad com- pany for damages arising from the temporary construction and use of tracks in a street while reconstructing a crossing under authority of a state statute; *^ nor does a statute provid- ing for the taxation of national banks deny to the banks as taxpayers the equal protection of the laws «^ Such equal pro- tection of the laws is not denied under a state constitution avoiding sales on margin of corporate shares of stock, or on future delivery .»^ And the courts requiring a bond of a party before issuing an injunction in condemnation proceeding, does not deny such protection of the laws, even though no bond is required of the opposing party; »» nor is it denied by a statute which allows damages not exceeding a certain per 81 St. Louis, Iron Mountain & '^ Knapp & Cowles Mfg. Co. v. Southern Ry. Co. v. Paul, 64 Ark. New York, New Haven & Hartford 83, 40 S. W. 705, 37 L. R. A. 504, 7 Ry. Co., 76 Conn. 311, 56 Atl. 512. Arn. & Eng. Corp. Cas. (N. S.) 772. «« Bank of Redemption v. Boston, 82 McGuire v. Chicago, BurHngton 125 U. S. 60, 31 L. ed. — , 8 Sup. & Quincy R. Co., 131 Iowa, 340, 352, Ct. — ; Mass. Pub. Stats., chap. 13, 108 N. W. 902. §§ 8, 9, 10. 83 State V. Atlantic Coast Line R. " Qtis v. Parker, 187 U. S. 606, Co. (Fla.), 41 So. 705. 23 Sup. Ct. 168, 47 L. ed. — , aff'g " Brown v. Carolina Midland Ry. Parker v. Otis, 130 Cal. 322, 62 Pac. Co., 67 S. C. 481, 46 S. C. 283; Code, 571, 927. Laws 1902, § 2135. See also St. ^s Columbia Water Power Co. v. Louis & San Francisco Ry. Co. v. Nunamaker, 73 S. C. 550, 53 S. E. Mathews, 165 U. S. 1, 17 Sup. Ct. 996. 243, 41L. ed. 611. 474 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION § 300 cent and a reasonable attorney's fee to plaintiff in an action to recover for a loss against an insurance company which has vexatiously refused to pay such loss.*^ But a statute cannot constitutionally discriminate against corporations and so deny them the equal protection of the law by imposing upon them restrictions as to liability of damages to employees without regard to differences consequent upon the nature of the busi- ness not imposed on natural persons. ^° A statute does not, however, deny the equal protection of the laws where it makes all railroad companies liable for injuries to an employee al- though caused by a fellow servant's negligence irrespective of insurance or other benefits or other contracts of indemnity .^^ ^ Williamson v. Liverpool & Lon- Consol. Gold Mining Co. v. First- don & Globe Ins. Co., 141 Fed. 54, 72 brook, 36 Colo. 498, 86 Pac. 313. C. C. A. 542; Rev. Stat. Mo., 1899, The following provisions in the § 8012. first section of the act of the legis- See also the following cases: lature of Indiana approved by the United States: Merchants' Life governor of that State on the fourth Assn. of United States v. Yoakum, day of March, 1893, viz.: "That 98 Fed. 251, . every railroad or other corporation, Florida: Tillis V. Liverpool & Lon- except municipal, operating in this dpn & Globe Ins. Co. (Fla., 1903), 35 State, shall be liable for damages for So. 171. personal injury suffered by any em- Missouri: Keller v. Home Life Ins. ployee while in its service, the em- Co., 198 Mo. 440, 95 S. W. 903. ployee so injured being in the exercise Tennessee: Continental Fire Ins. of due care and diligence, in the fol- Co. V. Whitaker & Dillard, 112 Tenn. lowing cases: First. When such injury 151, 79 S. W. 119. is suffered by reason of any defect in Texas: Sun Life' Ins. Co. v. Phil- the condition of ways, works, plant, lips (Tex. Civ. App.), 70 S. W. 603. tools and machinery connected with, Washington: Joliffe v. Brown, 14 or in use in the business of such cor- Wash. 155, 44 Pac. 149, 3 Am. & poration, when such defect was the Eng. R. Cas. (N. S.) 254. result of negligence on the part of the '" Ballard v. Mississippi Cotton Oil corporation, or some person intrusted Co., 81 Miss. 507, 34 So. 533; Acts by it with the duty of keeping such 1898, §1, Laws 1898, p. 85, c. 66. way, works, plant, tools or machinery Compare Callahan v. St. Louis in proper condition; Second. Where Merchants' Bridge Terminal Co., 170 such injury resulted from the negli- Mo. 473, 71 S. W. 208, 00 L. R. A. gence of any person in the service of 249; Froelich v. Toledo & Ohio Cen- such corporation, to whose order or tral Ry. Co., 24 Ohio Cir. Ct. R. 359. direction the injured employee at the •' McGuire v. Chicago, Burlington time of the injury was bound to con- & Quincy Rd. Co., 131 Iowa, 340, form, and did conform: T/jm/. Where 108 N. W. 902. See also Vindicator such injury resulted from the act or 475 § 300 CONSTITUTIONAL LAW — FEDERAL CONSTITUTION But this constitutional provision is violated by a stock-killing act against railroads which ignores the fencing of railways and the question of negligence.^^ A statute prohibiting agree- ments among insurance companies regulating agent's commis- sions, and also the manner of transacting the fire insurance intrastate business, violates this clause as to equal protection of the laws.^^ A private corporation is a person within this clause. ^^ omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instruc- tions given by any person delegated with the authority of the corporation in that behalf; Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine or train upon a railway or where such injury was caused by the negligence of any person, coemployee or fellow servant engaged in the same common service in any of the several depart- ments of the service of any such cor- poration, the said person, coemployee or fellow servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or con- forming to the order of some superior at the time of such injury, having the authority to direct; that nothing herein shall be construed to abridge the liability of the corporation under existing laws," as they are construed and applied by the Supreme Court of that State, are not invalid, and do ;iot violate the Fourteenth Amend- ment to the Constitution of the United States. Tullis v. Lake Erie & Western R. Co., 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. 1.36. *^ Sweetland v. Atchison, Topeka & Santa Fe R. Co., 22 Colo. 220, 43 Pac. 1006. Payment of employees — Lien for wages on corporate property— Reason- able attorneys' fees to enforce lien. Statute as to does not deny equal pro- tection of the laws. Skinner v. Gar- nett Gold Mining Co., 96 Fed. 735. "^ Greenwich Ins. Co. v. Carroll, 125 Fed. 121. "* Johnson v. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304. See §§ 64- 66, herein. Although corporations are entitled to the equal protection of the laws, still "this does not mean that cor- porations and natural persons stand in the same relation to the power which inheres in the State to regulate their conduct or methods of business. The distinction between them is fundamental and ineradicable. The natural person has certain inalienable rights, for which he is not indebted to organized society. + * * The corporate person has no rights except those with which it is endowed by the lawmaking power, and the power of creation necessarily implies the power of regulation * * * 'the police power of the State may, within well defined limitations, extend over cor- porations outside and regardless of the power to amend charters.' " McGuire v. Chicago, Burlington & Quincy R. Co., 131 Iowa, 340, 367, 368, 108 N. W. 902, per Weaver, J. 476 OBLIGATION OF CONTRACTS § 301 CHAPTER XIX. OBLIGATION OF CONTRACTS. § 301. Impairment of Obligation of § 312 Contract — Generally. 302. States — Civil Institutions of — Constitutional Restraints — Obligation of Contracts. 303. Obligation of Contract — Existence of Legal Con- tract — Impairment — State Statutes. 304. Obligation of Contracts — Fed- eral Question — Status of Party Plaintiff. 305. Impairment of Obligation of Contracts — What Are "Laws" — Application. 306. Same Subject-^Judicial Acts — Vested Rights. 307. Vested Rights — Amendment to Effect Purposes of Char- ter — Modifying or Enlarg- ing Powers. 308. Charter Powers not Contem- plated and Unexecuted — Treated as License and Revocable. 309. Obligation of Contracts — Change of Remedy. 310. Obligation of Contracts — Mu- nicipal Corporations. 311. Charter or Franchise as a Contract — Impairment of Obligation of Contract. § 301. Impairment of Obligation of Contract— Gener- ally. — ^Thc provision in the Constitution of the United States that no State shall pass any law impairing the obligation of contracts * does not extend to any state law enacted before 313. 314. 315. 316. 317. 318. 319. 320. Same Subject — The Dart- mouth College Case. Obligation of Contract— Stat- utes — Ordinances — Dele- gated Authority — Ease- ments in Streets. Same Subject. What Is not a Contract — Obligation of Contract — When not Impaired — In- stances. Same Subject — Instances Continued — Railroad Char- ter — Subscriptions in Aid of Railroad. Reservation of Power to Alter, Amend or Repeal Grant of Franchise or Char- ter. Reservation of Power to Alter, etc., Is Part of Char- ter or Contract. Reservation of Power to Alter, etc., and Limitations Thereon. Reservation of Power to Alter, etc. — Fourteenth Amendment — Equal Pro- tection of the Law— Dep- rivation of Property — Railroad Employees. Art. 1, § 10, cl. 1. 477 §§ 302, 303 OBLIGATION OF CONTRACTS the first Wednesday in March, 1789, and operating upon rights of property vested before that time which was the date when the Constitution of the United States commenced its operation. ^ Said provision also necessarily refers to the law made after the particular contract in suit,^ and applies as well to implied as to express contracts.'* But a statute does not necessarily impair the obligation of a contract because it may affect it restrospec- tively, or because it enhances the difficulty of performance to one party or diminishes the value of the performance to the other, provided that it leaves the obligation of the performance in full force. ^ § 302. States— Civil Institutions of — Constitutional Re- straints — Obligation of Contracts. — The Federal Constitu- tion is not to be construed as intended to restrict the States in the regulation of their civil institutions adopted for internal government, and the constitutional provision forbidding the States from impairing the obligation of contracts is not to be understood to embrace other contracts than those which respect property or some other object of value and confer rights which may be asserted in a court of justice.^ § 303. Obligation of Contract — Existence of Legal Con- tract — Impairment — State Statutes. — Before the Federal Su- preme Court can be asked to determine whether a statute has impaired the obligation of a contract, it must be made to appear that there was a legal contract subject to impairment, and some ground to believe that it has been impaired.''' And whether an alleged contract arises from state legislation, or by ^Owings V. Speed, 5 Wheat. (18 ' Curtis v. Whitney, 13 Wall. (80 U. S.) 420, 5 L. ed. 124. U. S.) 68, 20 L. ed. 513. ^ Oshkosh Water Works Co. v. ' Dartmouth College v. Wood- Oshkosh, 187 U. S. 437, 47 L. ed. ward, 4 Wheat. (17 U. S.) 518, 4 L. 249, 23 Sup. Ct. — ; Lehigh Water ed. 629, per the court. Co. V. Easton, 121 U. S. 388, 30 L. ed. ' New Orleans v. New Orleans 1059, 7 Sup. Ct. 916. Water Works Co., 142 U. S. 79, 35 * Fisk V. Jefferson Police Jury, 116 L. ed. 943, 12 Sup. Ct. 142. U. S. 131, 29 L. ed. 587. 478 OBLIGATION OF CONTRACTS §§ 304, 305 agreement with the agents of a State, by its authority, or by stipulation between individuals exclusively, the Federal Su- preme Court will upon its own judgment and independently of the adjudication of the state court, decide whether there exists a contract within the protection of the Constitution of the United States.* § 304. Obligation of Contracts — Federal Question — Status of Party Plaintiff. — One who has contracted to deliver gas machinery to a gas and fuel company has no standing in a court of equity to restrain a city from enforcing an ordinance pro- hibiting the erection of gas works within a portion of the city in which the erection of gas works was not prohibited when the contract was made, on the ground that such ordinances are repugnant to the Federal Constitution as impairing the obliga- tion of a contract, it not appearing that the plaintiff has any contract with the city or that the gas and fuel company would not, or could not, by reason of insolvency, respond to its claim under the contract.^ § 305. Impairment of Obligation of Contracts — What Are " Laws " — Application. — The prohibition in the Constitution of the United States against the passage of laws impairing the obligation of contracts applies only to legislative enactments of the States; ^" although it is also held to apply to the consti- tution as well as to the laws of each State. ^^ And an ordinance ' Louisville Gas Co. v. Citizens' has been affirmed in numerous other Gas Co., 115 U. S. 683, 29 L. cd. 510, cases." Douglass v. Kentucky, 168 6 Sup. Ct. 265. U. S. 488, 502, 42 L. cd. 553, 18 Sup. "The doctrine that this court pos- Ct. 199. sesses paramount authority when re- ' Davis & Farnum Manufg. Co. v. viewing the final judgment of a state Los Angeles, 189 U. S. 207, 23 Sup. court upholding a state enactment Ct. 538, 47 L. ed. 858. alleged to be in violation of the con- '"Weber v. Ilogan, 188 V. S. 10, tract clause of the Constitution, to 47 L. ed. 363, 23 Sup. Ct. 203. determine for itself the existence or " New Orleans Gas Co. v. Louis- non-existence of the contract set up, iana Light Co., 115 U. S. 650, 29 L. and whether its obligation has been ed. 516, 6 Sup. Ct. 252. See also impaired by the state enactment, Ilanford v. Davies, 163 U. S. 273, 41 479 § 306 OBLIGATION OF CONTRACTS adopted as part of a state constitution levying a tax on the gross receipts of a railroad company, within two years after it was completed and put in operation, in order to pay debts of the State, in order to help build the road, and which as be- tween itself and the State the railroad company was primarily bound to pay, impaired the obligation of contract and was void.^^ But it is also determined that if the decision of a state court is based upon a constitutional or legislativie enactment, passed after the contract in question was made, the Federal Supreme Court has jurisdiction to inquire whether such legisla- tion does not impair the obligation of the contract, and thereby violate the Federal Constitution.^^ A municipal ordinance, however, not passed under legislative authority, is not a law of the State within the meaning of this constitutional prohibi- tion against state laws impairing the obligation of contracts.^'* § 306. Same Subject— Judicial Acts— Vested Rights.— This constitutional inhibition against the impairment of con- tracts does not apply to the judicial decisions or acts of the state tribunals or officers, under statutes in force at the time of the making of the contract the obligation of which is alleged to have been impaired. ^^ So this clause of the constitution can- not be invoked against what is merely a change of decision in the state court, but only by reason of a statute enacted subse- quent to the alleged contract and which has been upheld or L. ed. 157, 16 Sup. Ct. 1051; Railroad " Delmas v. Insurance Co., 14 Co. V. McClure, 10 Wall. (77 U. S.) Wall. (81 U. S.) 661, 20 L. ed. 757. 511, 19 L. ed. 997 (a constitution of '« Hamilton Gas Light & C. Co. v. a State is in this case admitted to be a Hamilton City, 146 U. S. 258, 36 L. "law" within the inhibition). ed. 963, 13 Sup. Ct. 90. A state constitution is not a con- '^ Weber v. Rogan, 188 U. S. 10, tract within the inhibition. Church 47 L. ed. 363, 23 Sup. Ct. 263; Han- V. Kelsey, 121 U. S. 282, 30 L. ed. ford v. Davies, 163 U. S. 273, 41 L. 960. ed. 157, 16 Sup. Ct. 1051. See last 1^ Pacific Rd. Co. v. Maguire, 20 preceding section herein. Wall. (87 U. S.) 36, 22 L. ed. 282. The provision of the Constitution Examine Oakland Paving Co. v. of the United States, which declares Barstow, 79 Cal. 45, 21 Pac. 544; that no State shall pass any law im- Nelson v. Haywood County, 87 Tenn. pairing the obligation of contracts, is 781, 11 S. W, 885. aimed at the legislative power of the 480 OBLIGATION OF CONTRACTS § 306 effect given to it by the state court. ^^ But it is also held that where the highest court of a State has upheld the power of a railroad company to lease its road, and such decision stands unquestioned, when a lease is entered into it becomes embodied in the contract the obligation of which cannot be subsequently impaired. ^^ And the doctrine has been asserted and reasserted by the United States Supreme Court that if a contract when made was valid by the laws of the State, as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the State, or de- cision of its courts altering the construction of the law.^* So a railroad company may, under the Rapid Transit Act of New York, acquire upon organization such a vested franchise and right to use land upon prescribed routes, that, even though it has not undertaken to acquire ownership, a subsequent statute giving the lands to a public park will not operate to divest the company's rights. ^^ And statutes regulating irrigation and water rights do not affect pre-existing rights. '° If a legislative grant is only a mere gratuity, is not an act of incorporation, State, and not at decisions of its Coffin v. Rich, 45 Me. 507, 71 Am. courts, or acts of executive or ad- Dec. 559; Bronson v. City of New ministrative boards or officers, or York, 10 Barb. (N. Y.) 223; Morris doings of corporations or individuals, v. State, 62 Tex. 728. See also New Orleans Water Works Co. v. §§282-285, herein. Louisiana Sugar Ref. Co., 125 U. S. A state law is not in violation of 18, 31 L. ed. 607, 8 Sup. Ct. 741. any part of the Federal Constitution " National Mut. B. & L. Assn. v. because it divests rights vested by Brahan, 193 U. S. 635, 48 L. ed. 823, law in an individual if not impairing 24 Sup. Ct. 532. the obligation of a contract. Satter- " Southern R. Co. v. North Caro- lee v. Matthewson, 2 Pet. (27 U. S.) linaR. Co. (C. C.),81 Fed. 595. 380,7 L. ed. 458, distinguishing '«01cott V. Supervi.sors, 16 Wall. Fletcher v. Peck, 6 Cranch (10 U. (83 U. S.) 678, 21 L. ed. 382; Have- S.), 87, 3 L. ed. 162. meyer v. Iowa County, 3 Wall. (70 " Suburban Rapid Transit Co. v. U. S.) 294, 18 L. ed. 38; Ohio Life, New York, 128 N. Y. 510, 40 N. Y. etc., Co. v. Debolt, 16 How. (57 U. S.) St. R. 498, 28 N. E. 525, 10 Ry. & 416, 14 L. ed. 997, per the court. Corp. L. J. 494. See Memphis v. United States, 97 '"Benton v. Johncox, 17 Wash. U. S. 293, 24 L. ed. 920; Steamship 277, 49 Pac. 495, 39 L. R. A. 107, 61 Co. V. Joliffe, 2 Wall. (69 U. S.) 4.')0; Am. St. Rep. 912. 31 481 § 307 OBLIGATION OF CONTRACTS confers no chartered rights and does not amount to a contract, the legislature has power to repeal the grant where no rights have been acquired under the statutory grant nor any liabil- ity incurred in consequence of its passage. But where vested rights have been acquired under the grant before the passage of the repealing law, then, to the extent of such rights, such repealing law is unconstitutional and inoperative.^^ Again, a statute annulling conveyances is unconstitutional as im- pairing the obligation of contracts.^' The repeal of a state statute authorizing every street railway to be operated by such animal, electric or other power as the municipal authorities may have granted will not destroy its effect to ratify contracts in existence when it was passed. ^^ Nor are franchises of exist- ing corporations destroyed or materially impaired by an au- thority under a statute to empower street railway companies, by contract, to use city streets. ^^^ And where a statute is held constitutional, but that decision is overruled by the highest state court, the obligation of a contract entered into in the period between the two decisions is not thereby impaired. ^^ An amendment to the general corporation law whereby a foreign corporation is prohibited from suing on a claim to the assignee, where it has not complied with the statute, does not apply to a suit on a prior contract where by such application there would be an impairment of the obligation of contract. ^^ § 307. Vested Rights — Amendment to Effect Purposes of Charter — Modifying or Enlarging Powers. — The charter of a private corporation may vest rights in the corporators and stockholders which no -subsequent legislation can impair or diminish. But a charter may be amended in so far as it is ^' Gregory v. Trustees of Shelby Govin v. City of Chicago, 132 Fed. College, 2 Mete. (59 Ky.) 589 (a case 848. of a lottery privilege). "Citizens' St. Ry. Co. v. City R. "Fletcher v. Peck, 6 Cranch (10 Co. (C. C), 64 Fed. 647. U. S.), 87, 3 L. ed. 162. ^^ Storrie v. Cortes, 90 Tex. 283, " Blair v. Chicago, 201 U. S. 400, 38 S. W. 154, 35 L. R. A. 666. 26 Sup. Ct. 427, 50 L. ed. 801, rev'g ^e M^Namara v. Keene, 98 N. Y. Supp. 860, 49 Misc. 452. 482 OBLIGATION OF CONTRACTS §§ 308, 309 necessary to carry into effect or accomplish the purposes for which it was obtained.-^ So the provision of a constitution, which declares that, "the General Assembly shall have no power to grant corporate powers and privileges to private com- panies" (with certain exceptions), "but it shall prescribe by law the manner in which such powers shall be exercised by the courts," does not take avv'ay from the General Assembly the power to amend the charters of existing corporations by modi- fying or enlarging their powers,'* especially so where the modi- fication of the charter is consented to by the corporation ; ''^ and the whole charter is not necessarily revoked by the withdrawal of a single right or privilege where the legislature is authorized to incorporate with a reserved power of revocation.^'' § 308. Charter Powers not Contemplated and Unexecuted — Treated as License and Revocable. — Where a charter au- thorizes a company in sweeping terms to do certain things which are unnecessary to the main object of the grant, and not directly and immediately v/ithin the contemplation of the par- ties thereto, the power so conferred, so long as it is unexecuted, is within the control of the legislature and may be treated as a license, and may be revoked, if a possible exercise of such power is found to conflict with the interests of the public.^^ § 309. Obligation of Contracts — Change of Remedy. — The remedy subsisting in a State when and where a contract is male, and is to be performed, is a part of its obligation; and any subsetjuent law of the State, which so affects that remedy as substantially to impair and lessen the value of the contract, is forl)idden by the Constitution of the United States, and, " City of Covington v. Covington Wilmington & B. S. Ry. Co. (Del. & Cincinnati Bridge Co., 10 Bush Ch., 1900), 46 Atl. 12, citing numcr- (73 Ky.), 69. ous cases. See also City of Wilming- 2' Jones V. Habersham, 107 IT. S. ton v. Addicks (Del., 1901), 47 Atl. 174, 27 L. ed. 401; Const. Ga., 180S. 3r,6. » O'Phinney v. Sheppard & Enoch " Poarsall v. Great Northern R. Pratt Hospital, 88 Md. 033, 42 Atl. 58. Co., 161 U. S. 646, 40 L. ed. 838, 16 '"Wilmington City Ry. Co. v. Sup. Ct. 705. See §§ 7, 48, herein. 483 § 310 OBLIGATION OF CONTRACTS therefore, is void.^^ So "it is well settled by the adjudications of this court, that the obligation of a contract is impaired, in the sense of the Constitution, by any act which prevents its enforcement, or materially abridges the remedy for enforcing it, which existed at the time it was contracted, and does not apply an alternative remedy equally adequate and effica- cious." ^^ If a statute provides that existing remedies for previously incurred liabilities against a corporation, its directors or officers, shall not be impaired by repealing the charter, it constitutes a contract within the protection of the Constitution of the United States. ^^ § 310. Obligation of Contracts— Municipal Corporations. — ^There are many ways in which the legislature has absolute power to make and change subordinate municipalities.^^ Municipal corporations are political subdivisions of the State, created by it and at all times wholly under its legislative con- trol; their charters, and the laws conferring powers on them, do not constitute contracts within the contract clause of the Federal Constitution. ^^ But the power of the State to alter or ^^ Edwards v. Kearzey, 96 U. S. Federal Constitution, but the private 595, 24 L. ed. 793. See Memphis v. contracts and property rights of such United States, 97 U. S. 293, 24 L. ed. corporations are protected. Dart- 920. mouth College v. Woodward, 4 33 McGahey v. Virginia, 135 U. S. Wheat. (17 U. S.) 518, 4 L. ed. 629. 662, 694, 34 L. ed. 304, 10 Sup. Ct. A municipal corporation is a public 972, per Bradley, J. instrumentality, established to aid 3* People V. O'Brien, 111 N. Y. 1, in the administration of affairs of the 19 N. Y. St. R. 173, 2 L. R. A. 255, State, and neither its charters, nor 7 Am. St. Rep. 684, 18 N. E. 692. any legislative act regulating the use 3' Laramie County v. Albany of property held by it for govem- County, 92 U. S. 307, 23 L. ed. 552; mental or public purposes, is a con- Kies v. Lowrey, 199 U. S. 233, 50 L. tract within the meaning of the Con- ed. 167, 26 Sup. Ct. 27. stitution of the United States. Cov- 3« Hunter v. City of Pittsburg, 207 ington v. Kentucky, 173 U. S. 231, U. S. 161. 43 L. ed. 679, 19 Sup. Ct. 383. Corporations for mere public gov- A municipal corporation, being emment, such as towns, cities and a mere agent of the State, stands in counties, are subject to legislative its governmental or public character, control and their charters are not in no contract relation with its sover- contracts within the meaning of the eign, at whose pleasure its charter 484 OBLIGATION OF CONTRACTS § 311 destroy its municipal corporations is not, so far as the impair- ment of the obUgation clause of the Federal Constitution is concerned, greater than the power to repeal its legislation; and the alteration or destruction of subordinate governmental di- visions is not the proper exercise of legislative power when it impairs the obligations of contracts previously entered into. Courts cannot permit themselves to be deceived; and while they will not inquire too closely into the motives of the State they will not ignore the effect of its action; and will not permit the obligation of a contract to be impaired by the abolition or change of the boundaries of a municipality. Where a tax has been provided for and there are officers to collect it the court will direct those officers to lay the tax and collect it from the property within the boundaries of the territory that constituted the municipality.^^ The fact that the council of a city has passed a resolution providing for payment of a pending bill of a water company claiming a franchise, with a saving clause against the city, being estopped from denying the existence of contract right, does not give the Circuit Court jurisdiction to maintain an action in equity to enjoin the city from appropri- ating money in the water fund to the payment of any indebted- ness other than the complainant on the ground that such reso- lution is a law impairing the obligation of a contract within the purview of the Federal Constitution.^^ § 311. Charter or Franchise as a Contract — Impairment of Obligation of Contract. — We have considered under preceding sections the nature of franchises and the question whether a distinction exists between a charter and a franchise, as well as other distinctions,'*' and it may be stated here that may be amended, changed or re- 142 U. S. 79, 35 L. ed. 943, 12 Sup. voked, without the impairment of Ct. 142. any constitutional obligation; but ^'Graham v. Folsom, 200 U. S. such a corporation in respect of its 248, 50 L. ed. — , 26 Sup. Ct. — . private or constitutional rights and ^* Defiance Water Co. v. Defiance, interests, may be entitled to con- 191 U. S. 184, 48 L. ed. 140, 24 Sup. Btitutional protection. New Orleans Ct. 63. V. New Orleans Water Works Co., " See §§ 22-48, herein. 485 § 311 OBLIGATION OF CONTRACTS an accepted act of incorporation of a private corporation con- stitutes such a contract between the State and the corporation that the latter cannot, by a subsequent act of the legislature or of a subordinate legislative body, be deprived of vested rights, privileges and franchises acquired under that charter. That grant cannot, against the consent of the corporation, be de- stroyed or the obligation of contract be impaired by legislative amendments or repeal, or changed in any respect material to corporate rights, in the absence of a power reserved to alter, amend or repeal such charter or franchise rights, and even the extent to which this reserved power may be exercised remains a question not fully settled .'*° A corporation although organ- ^^ United States: Georgia Rd. & Arkansas; State v. Real Estate Bkg. Co. V. Smith, 128 U. S. 174, 32 Bank, 5 Pike (5 Ark.), 595, 599, 41 L. ed. 377, 9 Sup. Ct. 47, 16 Wash. Am. Dec. 509. L. Rep. 749; Louisville Gas Co. v. California: Billings v. Hall, 7 Citizens' Gas Co., 115 U. S. 683, 29 Cal. 1. L. ed. 510, 6 Sup. Ct. 265; New Connecticut: Hartford Bridge Co. Orleans Gas Co. v. Louisiana Light v. Union Ferry Co., 29 Conn. 210; Co., 115 U. S. 650, 29 L. ed. 615, 6 Derby Turnpike Co. v. Parks, 10 Sup. Ct. 252; Binghamton Bridge, Conn. 522, 27 Am. Dec. 700. The, 3 Wall. (70 U. S.) 51, 18 L. ed. Delaware: Philadelphia, W. & 137; Providence Bank v. Billings, 4 B. Co. v. Bowers, 4 Houst. (Del.) Pet. (29 U. S.) 514, 7 L. ed. 939; 506. Fletcher v. Peck, 6 Cranch (10 U. S.), Georgia: Goldsmith v. Augusta & 87, 3 L. ed. 162; Old Colony Trust S. R. Co., 62 Ga. 468; Branch v. Co. V. City of Wichita, 123 Fed. 762; Baker, 53 Ga. 502. City of Morristown v. East Tennes- Illinois: Dobbins v. First Nat. see Teleph. Co., 115 Fed. 304; Abbott Bank, 112 111. 553; Ruggles v. People, v. City of Duluth, 104 Fed. 833; 91 111. 256; Bruffett v. Great Western Central Trust Co. v. Citizens' St. R. R. Co., 25 III. 353. See People v. Co. (C. C.),82 Fed. 1,83 Fed. 529, 29 Central Union Tel. Co., 192 111. 307, Chic. Leg. News, 417, 14 Nat. Corp. 61 N. E. 428; People's Gaslight & R. 770, 15 Nat. Corp. R. 529; Louis- Coke Co. v. Hale, 94 111. App. 406. ville Trust Co. v. Cincinnati, 76 Fed. Indiana: Smead v. Indianapolis 296, 22 C. C. A. 334, 47 U. S. App. 36. P. & C. R. Co., 11 Ind. 104. Alabama: State v. Alabama Bible Kansas: Baxter Springs, City of, Soc, 134 Ala. 632, 32 So. 1011; v. Baxter Springs Light & Power Co., Birmingham & P. M. S. R. Co. v. 64 Kan. 591, 68 Pac. 63, 8 Am. Elec. Birmingham S. R. Co., 79 Ala. 465; Cas. 125. Alabama & F. R. Co. v. Burkett, 46 Kentucky: Hamilton v. Keith, Ala. 569; Aldridge v. Tuscumbia P. 5 Bush (68 Ky.), 458; Griffin v. Ken- & D. R. Co., 2 Stew. & P. (Ala.) 199, tucky Ins. Co., 3 Bush (66 Ky.), 592, 23 Am. Dec. 307. 96 Am. Dec. 259. See Gregory v. 486 OBLIGATION OF CONTRACTS § 311 ized under a general statute may nevertheless thereby enter into and obtain a contract from the State which may be of such a Trustees of Shelby College, 2 Mete. Am. Dec. 243; People v. Albany & (59 Ky.) 589. V. R. Co., 37 Barb. (N. Y.) 216. Louisiana: New Orleans v. Great North Carolina: Attorney Genl. v. Southern Teleph. & Teleg. Go., 40 Bank of Charlotte, 57 N. C. 2S7; La. Ann. 41, 3 So. 533; Montpelier Houston v. Bogle, 32 N. C. 496. Academy v. George, 14 La. 395, 33 Ohio: See City of Toledo v. North- Am. Dec. 585. western Ohio Natural Gas Co., 6 Maine:Statev. Noyes,47Me. 189; Ohio N. P. 531, 8 Ohio S. & C. P. Coffin V. Rich, 45 Me. 507, 71 Am. Dec. 277. Dec. 559; Yarmouth v. North Yar- Pennsylvania: Pennsylvania R. mouth, 34 Me. 411, 56 Am. Dec. 666. Co. v. Duncan, 111 Pa. 352, 5 Atl. Maryland: State v. Northern Cent. 742; Chincleelamouche Lumber, etc., R. Co., 44 Md. 162; Chesapeake & O. Co. v. Commonwealth, 100 Pa. 444; Canal Co. v. Baltimore & Ohio R. Dillon v. Dougherty, 2 Grant's Cas. Co.,4Gill& J. (Md.) 1. 99. See Pennsylvania R. Co. v. Michigan: Mahan v. Michigan Bowers, 124 Pa. 183, 2 L. R. A. 621, Teleph. Co., 132 Mich. 242, 93 N. W. 16 Atl. 836, 23 Wkly. N. of Cas. 257. 639, 8 Am. Elec. Cas. 38, 9 Det. Leg. Tennessee: Woodfork v. Union News, 597. Bank, 3 Cold. (43 Tenn.) 488. Minnesota: Duluth, City of, v. Texas: Houston & T. Cent. R. Co. Duluth Teleph. Co., 84 Minn. 486, v. Texas & Pac. R. Co., 70 Tex. 649, 87 N. W. 1128, 8 Am. Elec. Cas. 136. 8 S. W. 498; State v. Southern Pac. Mississippi: New Orleans, J. & G. R. Co., 24 Tex. 80. N. R. Co. V. Harris, 5 Cushm. (27 Wisconsin: State v. Chicago & N. Miss.) 517; Payne v. Baldwin, 3 W. Ry. Co., 128 Wis. 449, 108 N. W. Smedes & M. (11 Miss.) 661. 594; State v. Atwood, 11 Wis. 422, Missouri: State, Morris, v. Board See Pratt v. Brown, 3 Wis. 603. of Trustees of Westminister College, Examine the following cases: 175 Mo. 52, 74 S. W. 990. United States: Long Island Water Nebraska: State, City Water Co., Supply Co. v. Brookljm, 166 U. S. v. Kearney, 49 Neb. 325, 68 N. W. 685, 17 Sup. Ct. 718, 41 L. ed. 1165; 533, aff'd 49 Neb. 337, 70 N. W. 255. Pearsall v. Great Northern Ry. Co., New Hampshire: Pi.scataqua 161 U. S. 648, 40 L. ed. 838, 16 Sup. Bridge v. New Hampshire Bridge, 7 Ct. 705; Rundle v. Delaware & R. N. H. 35, 68. Canal Co., 14 How. (55 U. S.) 80, 14 New Jersey: Zabriskie v. Hacken- L. ed. 335; Charles River Bridge v. sack & N. Y. R. Co., 18 N. J. Eq. Warren Bridge, 11 Pet. (36 U. S.) 178, 90 Am. Dec. 617. 420, 9 L. ed. 773. New York: Trustees of Free- Georgia: Central R. Co. v. Collins, holders, etc., of Southport v. Jessup, 40 Ga. 582. 162 N. Y. 122, 126, 56 N. E. 538; Maine: Farrington v. Putnam, 90 Thompson v. People, 23 Wend. (N. Mo. 405, 37 Atl. 652, 38 L. R. A. Y.) 537, 57S; People v. LHica Ins. 339. Co., 15 Johns. (N. Y.) 358, 387, 8 Massachusetts: Boston Glass 487 § 311 OBLIGATION OF CONTRACTS nature that it can only be altered in case the power to alter was, prior thereto, provided for in the constitution or legisla- Manufactory v. Langdon, 24 Pick. (41 Mass.) 49, 53, 35 Am. Dec. 292. North Carolina; Trustees of Davidson College v. Chambers, 56 N. C. 253. Ohio: Exchange Bank of Colum- bus V. Hines, 3 Ohio St. 1; Bank of Toledo V. City of Toledo (Toledo Bank v. Bond), 1 Ohio St. 622, 642- 652; Mechanics' & Traders' Bank v. Debolt, 1 Ohio St. 591, rev'd in 18 How. (59 U. S.) 380. "Every grant of a franchise is, so far as that grant extends, necessarily exclusive; and cannot be resumed, or interfered with. All the learned judges in the state court admitted, that the Charles River bridge, what- ever it be, could not be resumed or interfered with. The legislature could not recall its grant, or destroy it. It is a contract, whose obligation cannot be constitutionally impaired. In this respect it does not differ from a grant of lands. In each case, the particular land, or the particular franchise, is withdrawn from the legislative operation. The identical land, or the identical franchise, can- not be regranted, or avoided by a new grant. But the legislative power remains unrestricted. The subject-matter only (I repeat it) has passed from the hands of the gov- ernment. * * * The authorities are abundant to establish, that the king cannot make any second grant which shall prejudice the profits of the first grant. And why not? Be- cause the grant imposes public bur- dens on the grantee, and subjects him to public charges, and the profits constitute his only means of re- muneration; and the crown shall not 488 be at liberty to impair, much less to destroy the whole value and objects of its grant. * * * xf the public exigencies and interests require that the franchise of Charles River bridge should be taken away, or impaired, it may lawfully be done upon making due compensation to the proprietors. 'Whenever,' says the constitution of Massachusetts, 'the public exi- gencies require that the property of any individual should be appropri- ated to public uses, he shall receive a reasonable compensation therefor:' and this franchise is property; is fixed, determinate property. * * * That franchise, so far as it reaches, is private property; and so far as it is injured, it is the taking away of private property. * * * jf the sovereign power grants any fran- chise, it is good and irrevocable within the limits granted, whatever they may be; or else, in every case, the grant will be held only during pleasure; and the identical franchise may be granted to any other person or may be revoked at the will of the sovereign. This latter doctrine is not pretended; and, indeed, is un- maintainable in our systems of free government. * * * gy the grant of a particular franchise the legislature does not surrender its power to grant franchises, but merely parts with its power to grant the same franchise; for it cannot grant that which it has already parted with. Its power remains the same; but the thing on which it can alone oper- ate, is disposed of. It may, indeed, take it again for public uses, upon paying a compensation. But it can- not resume it, or grant it to another OBLIGATION OF CONTRACTS § 312 tion of the State/^ And a grant in the constitution of a State of a privilege to a corporation is not subject to a repeal or change by the legislature of the State. "^^ But a limitation in a charter of the time for bringing suits against a railroad corpo- ration may be repealed by the legislature.'*^ § 312. Same Subject — The Dartmouth College Case. — In this well-known case it was decided that the charter granted by the British Crown to the trustees of Dartmouth College in New Hampshire, in the year 1769, was a contract within the meaning of art. 1, sec. 10, of the Constitution of the United States, which declares that no State shall make any law im- pairing the obligation of contracts; that the charter was not dissolved by the Revolution; and that an act of the state legis- lature of New Hampshire, altering the charter, without the consent of the corporation, in a material respect, was an act impairing the obligation of the charter and was unconstitu- tional and void. It was also declared that a charter of incorpo- ration is a contract. A contract is a compact between two or more persons and is either executory or executed. An exec- utory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed, and this differs in person; under any other circum- dissenting in part; State v. Real Es- stances, or for any other purposes." tate Bank, 5 Pike (5 Ark.), 595, 599, Charles River Bridge v. Warren 41 Am. Dec, per Lacy, J. Bridge, 11 Pet. (36 II. S.) 420, 604, '' Stanislaus Co. v. San Joaquin & 618, 637, 6.38, 643, 645, 9 L. ed. 773, King's River Canal & Irrig. Co., 192 per Story, J., in dissenting opinion. U. S. 201, 48 L. ed. 406, 24 Sup. Ct. Franchises spring from contracts 234. with the sovereign power. Some of "New Orleans v. Houston, 119 them are presumed to be founded on U. S. 265, 30 L. ed. 411. a valuable consideration and to be " Louisville & N. R. Co. v. Wil- exclusive. The government cannot liams, 20 Ky. L. Rep. 77, 45 S. W. resume them at pleasure or do any 229, 11 Am. & Eng. R. Cas. (N. S.) act to impair the grant without a 338, rev'g 41 S. W. 287, 7 Am. & Eng. breach of contract. Kent's Com. Corp. Cas. (N. S.) 774. See Chicago (14th ed.) bottom p. 723, *p. 458, Life Ins. Co. v. Needles, 113 U. S. quoted from in Horst, Mayor, etc., v. 580, 28 L. ed. 1087. Moses, 48 Ala. 146, per Peters, J., 489 § 312 OBLIGATION OF CONTRACTS nothing from a grant. A contract executed, as well as one that is executory, contains obligations binding on the parties. A grant in its own nature amounts to an extinguishment of the right of the grantor and implies a contract not to reassert that right. A party is always estopped by his own grant. The grant of a State is a contract, within the above constitutional clause, and implies a contract not to reassume the rights granted. A fortiori, the doctrine applies to a charter or grant from the king. A grant of corporate franchises, although voluntary and without a valuable consideration, is irrevocable and constitutes such a contract as is within the protection of the Federal Con- stitution. It was further asserted that any act of a legislature which takes away any powers or franchises vested by its charter in a private corporation, or which restrains or controls their legitimate exercise, or transfers them to other persons without corporate assent, is a violation of the obligations of the corpo- rate charter, and if the legislature means to retain such au- thority it must be reserved in the grant. The charter of Dart- mouth College contained no such reservation therefore; the acts of the legislature of New Hampshire in question were held as above stated to impair the obligations of the charter and to be unconstitutional and void. It was also said that by the Revolution, the duties as well as the powers of government devolved on the people of New Hampshire. It is admitted, that among the latter was comprehended the transcendent power of Parliament, as well as that of the executive depart- ment. It is too clear to require the support of argument, that all contracts and rights, respecting property, remained un- changed by the Revolution. The obligations, then, which were created by the charter to Dartmouth College, were the same in the new that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present Constitution of the United States, would have been an extraordinary and un- precedented act of power, but one which could have been con- tested only by the restrictions upon the legislature, to be found in the constitution of the State. But the Constitution of the 490 OBLIGATION OF CONTRACTS § 313 United States has imposed this additional Hmitation, that the legislature of a State shall pass no act "impairing the obligation of contracts." It was further declared that the Federal Con- stitution provides that no State shall by legislation impair the obligation of contracts. It is more than possible that the pres- ervation of rights, such as those contended for in this case, was not particularly in the view of the framers of the Constitution when the clause under consideration was introduced into that instrument, but a case being within the words of the rule must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or re- pugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception.^'* § 313. Obligation of Contract — Statutes — Ordinances — Delegated Authority — Easements in Streets. — The rule that the accepted grant of a corporation or franchise constitutes a contract is peculiarly and emphatically applicable in the case of railroad corporations which are created upon public consider- ations and clothed wdth extensive and extraordinary powers and are bound to the discharge of public duties.'*^ So a contract exists between the State and a railroad corporation organized under a general incorporation law ; '^^ and an exercise by a city, through the proper authority, of its power to grant franchises becomes a law of the State so as to prohibit it from passing any law impairing the obligation of the contract."*^ A railroad "Dartmouth College v. Wood- Noyes, 47 Me. 189; Houston & T. ward, 4 Wheat. (17 U. S.) 518, 4 L. Cent.R. Co. v. Texas & Pac. R. Co., ed. G29, commentpd on and explained 70 Tex. 649, 8 S. W. 498; Attorney in Stone v. Mississippi, 101 U. S. 814, Genl. v. Chicago & Northwestern Rd. 2.5 L. ed. 1079, distinguished in Wat- Co., 35 Wis. 425. son Seminary v. Pike County, 149 ^' Central Trust Co. v. Citizens' St. Mo. 57, 50 S. W. 880, 45 L. R. A. Rd. Co. (C. C.) 82 Fed. 1, 83 Fed. 675. 529, 14 Nat. Corp. Rep. 770, 15 Nat. « Pierce v. Emery, 32 N. H. 484, Corp. Rep. 529. See §§ 147 et seq., 508, per Perley, C. J. See also State herein. of Minnesota v. Duluth & I. R. Co., *' Citizens' St. Ry. Co. v. City Ry. 97 Fed. 353; Smcad v. Indianapolis, Co., 56 Fed. 746. See §§ 185 el scq., P. & C. R. Co., 11 Ind. 104; State v. herein. 491 § 313 OBLIGATION OF CONTRACTS company's right to use city streets may also rest upon statute or indirectly upon legislative grant through delegated power and constitute an unimpairable contract.^ So the right to sup- ply gas or water through pipes and mains laid in city streets is, after acceptance of the grant, a contract which is protected by the Constitution of the United States.^^ And where a telephone company accepts and acts upon a grant, under an ordinance permitting it to place its lines and poles in the streets, and com- plies with all the conditions specified and constructs an ex- pensive plant, such rights so granted and acted upon constitute a contract which cannot be impaired by subsequent legislation or unless the grantee consents; especially where the grant is without limitation as to time, nor can the city impose new and " Louisville Trust Co. v. Cincin- nati, 76 Fed. 296, 22 C. C. A. 334; Birmingham & P. M. S. R. Co. v. Birmingham, S. R. Co., 79 Ala. 465. See Mercantile Trust & Deposit Co. of Bait. V. Collins Park & B. R. Co., 99 Fed. 812. See §§ 147 et seq., herein. ^' "This court has too often de- cided for the rule to be now ques- tioned, that the grant of a right to supply gas or water to a municipality and its inhabitants through pipes and mains laid in the streets, upon condi- tion of the performance of its service, by the grantee, is the grant of a fran- chise vested in the State, in con- sideration of the performance of a public service, and after performance by the grantee is a contract protected by the Constitution of the United States against state legislation to im- pair it. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 660, 29 L. ed. 615, 6 Sup. Ct. 252; New Orleans Water Works v. Rivers, 115 U. S. 674, 29 L. ed. 525, 6 Sup. Ct. 273; St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, 7 Sup. Ct. 405, 30 L. ed. 563; 492 Crescent City Gas Light Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138, 147. It is true that in these cases the franchise was granted di- rectly by the state legislature, but it is equally clear that such franchises may be bestowed upon corporations by the municipal authorities, pro- vided the right to do so is given by their charters. State legislatures may not only exercise their sovereignty directly, but may delegate such por- tions of it to inferior legislative bodies as, in their judgment, is de- sirable for local purposes. As was said by the Supreme Court of Ohio in State V. Cincinnati Gas Light and Coke Co., 18 Ohio St. 262, 293: 'And assuming that such a power' (grant- ing franchises to establish gas works) ' may be exercised directly, we are not disposed to doubt that it may also be exercised indirectly, through the agency of a municipal corporation, clearly invested, for police purposes, with the necessary authority.' This case is directly in line with those above cited. See also Wright v. Nagle, 101 U. S. 791, 25 L. ed. 921; OBLIGATION OF CONTRACTS § 314 burdensome conditions. ^° If no term is specified, but the laws of the State place a limitation upon the duration of the grant, then during such period there can be no impairment of the contract obligation unless the right is reserved to the city to nullify the grant.^^ Again, the right to erect poles and lines in the streets may be derived directly from the legislature and the city's powers be limited, being such only as are delegated and subject to such direct control as the legislature may deem proper to exercise. And the acceptance of a special act giving a tele- phone company the exclusive right to the use of the streets for its purposes for a term of years does not operate to divest the company of its vested rights under a general statute to exercise its franchises after its exclusive grant has terminated, nor can it be deprived thereof by legislative action of the State or city.^^ Unless a municipality is expressly authorized to grant a perma- nent easement in its streets a license or grant by it to a railroad company to use such streets for tracks and the operation of its road will not constitute a permanent easement. ^^ Nor does a gas and electric company obtain an irrevocable and indefeasible right to a particular location for each pole because of the origi- nal location by the permission of a municipality under a grant of franchise to use the city streets.^'* § 314. Same Subject. — It may be further stated generally, that where a city, vested with the proper authority, grants by a valid legislative enactment authority to a railroad, telephone, electric light or other private corporation to use its streets, and Hamilton Gas Light and Coke Co. v. Tcleph. & Teleg. Co., 40 La. Ann. HanTilton, 146 U. S. 258, 266, 36 41, 3 So. 533. L. ed. 963, 13 Sup. Ct. 90; Bacon v. " Old Colony Trust Co. v. City of Texas, 163 U. S. 207, 216, 41 L. ed. Wichita, 123 Fed. 762, 132 Fed. 641. 132, 16 Sup. Ct. 1023; New Orleans, " Abbott v. City of Duluth, 104 etc., Co. V. New Orleans, 164 U. S. Fed. 833, aff'd 117 Fed. 137. See 471, 41 L. ed. 518, 17 Sup. Ct. 161." §§ 185 et seq., herein. Walla Walla City v. Walla Walla " State v. Atlantic & N. C. R. Co. Water Co., 172 U. S. 1, 9; 43 L. ed. (N. C, 1906), 53 S. E. 290. 341, 19 Sup. Ct. 77, per Brown, J. '♦Merced Falls Gas & Electric Co. See §§ 147 e< seq., herein. v. Turner, 2 Cal. App. 720, 84 Pac. " New Orleans v. Great Southern 238. See Joyce on Electric Law (2d ed.), §§229a-229d 493 § 314 OBLIGATION OF CONTRACTS such grant or franchise is accepted and the company proceeds thereunder and obtains vested rights, and there exists no ques- tions of pohce power or regulation, or of reservations in the grant, the city cannot arbitrarily repeal or change materially such ordinance in any material matter so as to impair the obli- gation of the contract. ^^ So in a case of a telegraph company, which occupies an independent post road of the United States, its franchise cannot be destroyed by state legislation.^^ If the exclusive right of occupation of city streets is granted, on cer- tain conditions, to an electric light plant, by a city ordinance, as where it is not obligated to furnish light until it can make a certain per cent profit, the grantee must begin preparations for erecting such plant before it can avail itself of the protection against the impairment of obligation of contract provision of the Constitution.^^ But there may be a valid grant by a city or town to an intended corporation, of a franchise to use its streets for the public use of electricity, though at its date the corporation is not chartered, but is later chartered and accepts the grant.^* If a town council has no power, either under its "United States: Levis v. New- Phillipsburgh, 66 N. J. L. 505, 49 ton (C. C), 75 Fed. 884. Atl. 445, 8 Am. Elec. Cas. 449. Alabama: Port of Mobile v. Louis- Texas: Houston v. Houston City ville & Nashville R. Co., 84 Ala. St. R. Co. (Tex.), 19 S. W. 127. 116, 4 So. 106, 5 Am. St. Rep. 342. Washington: Commercial Electric Illinois: Village of London Mills Light & P. Co. v. Tacoma, 17 Wash. V. Fairview-London Teleph. Circuit, 661, 50 Pac. 592. 105 111. App. 146, aff'd in Village of West Virginia: Clarksburg Elec- London Mills v. White, 208 111. 289, trie Light Co. v. City of Clarksburg, 70 N. E. 289. 47 W. Va. 739, 50 L. R. A. 142, 35 Michigan: Mahan v. Michigan S. E. 994, 7 Am. Elec. Cas. 25. Teleph. Co., 132 Mich. 242, 93 N. W. "Western Union Teleg. Co. v. 629, 8 Am. Elec. Cas. 38. New York (C. C), 38 Fed. 552, 3 Minnesota: Northwestern Teleph. L. R. A. 449, 2 Inters. Comm. Rep. Exch. Co. V. City of Minneapolis, 81 533, 6 Rd. & Corp. L. J. 105. See Minn. 140, 83 N. W. 527, 7 Am. Joyce on Electric Law (2d ed.), Elec. Cas. 168, 86 N. W. 69, 53 §§62-67. L. R. A. 175; Duluth, City of, v. " c^pit^l City Light & Fuel Co. v. Duluth Teleph. Co., 84 Minn. 486, 87 City of Tallahassee, 42 Fla. 462, 28 N. W. 1128, 8 Am. Elec. Cas. 136. So. 810. New Jersey: Phillipsburg Elec- ^' Clarksburg Electric Light Co. v. trio Lighting. Heating & Power Co. v. (Jity of Clarksburg, 47 W. Va. 739, 50 494 OBLIGATION OF CONTRACTS § 315 charter or under the general statute law governing towns and cities, to grant an exclusive franchise for a term of years to a private corporation to use its streets for the conveyance of electricity for public use in the city, such exclusive grant is void and not a valid contract protected by the provisions of the Constitution forbidding the passage of any law impairing the obHgation of contracts; and such exclusive grant does not prevent the town from granting to another corporation within the term the privilege to occupy its streets for the same pur- pose. ^^ The mayor and city council may be vested exclusively with the power over franchises, and still another statute may vest the right to amend charters in the people through their votes thereon, and such authorization may embrace an amend- ment to empower the people to grant franchises in the city.^° § 315. What Is not a Contract — Obligation of Contract — "When not Impaired — Instances. — An executive agency, created by the statute of a State for the purpose of improving public highways, and empowered to assess the cost of its im- provements upon adjoining lands, and to put up for sale and buy in for a term of years for its own use any such lands delin- quent in the payment of the assessment, does not, by such a purchase, acquire a contract right in the land so bought which the State cannot modify without violating the provisions of the Constitution of the United States. Such a transaction is matter of law and not of contract, and as such is not open to constitu- tional objections. Even as to third parties an assessment is not a contract in the sense in which that word is used in the Federal Constitution.^^ A contract between a city and a waterworks company which is void as being ultra vires, and which the city has repudiated, cannot be set up by it as impaired by subsequent L. R. A. 142, 3.5 S. E. 994, 7 Am. •"Hindman v. Boyd (Wash., 1906), Elec. Cas. 2.5. 84 Pac. 609. " Clarksburg Electric Light Co. v. «' Essex Public Road Board v. City of Clarksburg, 47 W. Va. 739, .50 Skinkle, 140 U. S. 334, 11 Sup. Ct. L. R. A. 142, 35 S. E. 994, 7 Am. 790, 3.5 L. ed. 446. Elec. Cas. 25. 495 § 315 OBLIGATION OF CONTRACTS state legislation, as such contract cannot be protected against state legislation by the Constitution of the United States. ^^ If there is a defective acknowledgment of a corporate charter a curative statute affecting the personal liability of the incorpo- rators on the company's contract does not operate so as to im- pair the contract obligation of the other party to the contract.®^ So a charter may be amended although it contains a grant of perpetual succession where rights of property have not vested, as such grant is held not to be a contract.®"* Nor is the obliga- tion of contract impaired by a statute amending the Indian law in relation to the erection of poles and wires on the Tonawanda reservation.®^ Nor are contract rights, arising from an ex- clusive right to supply gas to a city and its inhabitants, im- paired by charges against the gas company occasioned by a necessary public improvement, such as a drainage system un- dertaken by a municipality under statutory authority.®® And a general statute which empowers a telegraph company to con- struct, operate and maintain its lines along and over the public highways and streets of the cities and towns of the State, or across and under the waters and over any public works belong- ing to the State, does not create such a contract between the State and the company as to create an immunity from rental charges imposed by a city for the use and occupation of its streets under a prior statute giving control of such streets, especially so where by the later enactment the State does not resume the control of the streets given by the earlier statute.®^ If gas street lamp-posts are directed by ordinance to be re- moved, because of the use of electricity to light the streets and "New Orleans v. New Orleans 95 N. Y. Supp. 1137, 109 App. Div. Water Works Co., 142 U. S. 79, 35 911, aff'd 186 N. Y. 493, 79 N. E. L. ed. 943, 12 Sup. Ct. 142. 728. «3 Shields v. Clifton Hill Land Co., *" New Orleans Gas Light Co. v. 94 Tenn. 123, 28 S. W. 668, 26 Drainage Commission, 111 La. 838, L. R. A. 509. 35 So. 929, case aff'd 197 U. S. 453, «^ So held in Cumberland & O. R. 49 L. ed. 831, 25 Sup. Ct. 471. Co. V. Barren County Court, 10 " City of Memphis v. Postal Teleg.- Bush (73 Ky.), 604, 613. Cable Co., 145 Fed. 602, rev'g in "^Jennison v. Bell Telephone Co., part 139 Fed. 707. 496 OBLIGATIOX OF CONTRACTS § 316 consequent uselessness of such posts, and the city refuses to pay interest for the use thereof, there is no impairment of the obhgation of contract under which the posts were erected and interest was agreed to be paid by the city; and in such case where no legislative act is shown to exist, from the enforcement of which an impairment of the obligation of such a contract did or could result, it follows that solely an interpretation of the contract is involved and upon this ground no controversy being presented within the jurisdiction of the Federal Supreme Court the writ of error was dismissed.^* Again, a statute, which au- thorizes a mode by ordinance and application . to a Court of Chancery to compel railroad companies to erect gates at cross- ings, will not impair the obligation of contract based on charter rights, under which the company is operating by lease granting the right of grade crossings upon constructing passages so as not to prevent the passage of vehicles. ^^ § 316. Same Subject — Instances Continued — Railroad Charter — Subscriptions in Aid of Railroad. — None of the es- sential elements of a contract exists merely because a railroad company is authorized by its charter to receive subscriptions from municipalities, no consideration being given and there being no attempted exercise of power.'" So in a case in the Federal Supreme Court it appeared that the charter of the Ohio and Mississippi Railroad company, passed by the legis- lature of Indiana in 1848, and a supplement in 1849, authorized the county commissioners of a county through which the road passed to subscribe for stock and issue bonds, provided a ma- jority of the qualified voters of the county voted, on the first of March, 1849, that this should be done. The election was held on the appointed day, and a majority of the voters voted that the subscription should be made. But before the subscription " St. Paul Gas Light Co. V. City of Ch.), .50 Atl. 369. See Pittsburg, St. Paul, 181 U. S. 142, 45 L. ed. Ft. W. & C. R. Co. v. Chicago (Cook 788, 21 Sup. Ct. 57,5, writ of error County Super. Ct.), 27 Chicago Leg. dismissed 78 Minn. 39, 80 N. W. 877. News, 242. •» Palmyra To\vn.ship, Inhabitants '" Wilkes County v. Call, 123 N. C. of, V. Pennsylvania R. Co. (N. J. 308, 31 S. E. 481, 44 L. R. A. 252. 32 497 § 317 OBLIGATION OF CONTRACTS was made the State adopted a new constitution, which went into effect the first day of November, 1851. One of the articles prohibited such subscriptions, unless paid for in cash, and pro- hibited also a county from loaning its credit or borrowing money to pay such subscriptions. In 1852 the county commissioners of Daviess county subscribed for stock in the railroad company and issued their bonds for the amount. It was held that the provisions of the railroad charter, authorizing the commis- sioners to subscribe, conferred a power upon a public cor- poration or civil institution of government, which could be modified, changed, enlarged or restrained, by the legislative au- thority, the charter not importing a contract, within the mean- ing of the clause of the Constitution prohibiting a State from passing a law impairing the obligation of contracts. It was also held that the mere vote to subscribe did not, of itself, form such a contract with the railroad company, as could be protected by the tenth section of the first article of the Constitution of the United States, for until the subscription was actually made the contract was unexecuted ; and the bonds, having been issued in violation of the constitution of Indiana, were void.''^ § 317. Reservation of Power to Alter, Amend or Repeal Grant of Franchise or Charter. — Although a grant of a fran- chise is in the nature of a contract, yet if the right to amend, alter or repeal the grant be reserved to the sovereign it may be exercised ; ^^ and the legislative power to alter, amend and re- peal charters is equally effectual whether it be reserved in the original act of incorporation, the articles of association under a general law, or in the constitution of the State in force when the incorporation under a general law is made.'^^ Where a pri- '' Aspinwall v. County of Daviess, '' Polk v. Mutual Reserve Fund 22 How. (63 U. S.) 364, 16 L. ed. 296, Life Assoc, of New York, 207 U. S. ruling reaffirmed and applied in 310, 52 L. ed. — , 28 Sup. Ct. — . Wadsworth v. Eau Claire County Power to alter, amend or repeal Supervisors, 102 U. S. 534, 26 L. ed. exists when reserved by state con- 221. stitution. Attorney Genl. v. Chicago "Jersey City Gas Light Co. v. & Northwestern Rd. Co., 35 Wis. 425. United Gas Improvement Co., 46 If the constitution of the State pro- Fed. 264, 266, case aff'd 58 Fed. 323. vides that the legislature may alter, 498 OBLIGATION OF CONTRACTS § 317 vate corporation was chartered under an act of incorporation which was by its terms subject to the provisions of the Revised Statutes, one section of which provided that "all acts of in- corporation hereafter granted may be amended or repealed at the will of the General Assembly, unless express provision be made therein to the contrary," it was held that a legislative enactment which operated as an amendment of the company's charter was not unconstitutional'' Some constitutional pro- visions authorize a repeal only when the charter is injurious to the citizens of the commonwealth,^^ and then only in such manner that no injustice shall be done to the incorporators;'^ and in the latter case the provision is not a restriction upon the power but only upon the manner of its application." Where a constitution provides that no special privileges shall be granted that may not be altered or revoked, the General As- sembly will be thereby authorized to determine a privilege or franchise, even though perpetual as to duration, granted to a street railway company to construct and operate its line.'* revoke or amend the charter of any therefore, by referring to one of incorporation an amendment of a them: Citizens' Savings Bank v. charter may be made by the legisla- Owensboro, 173 U. S. 636, 641, 43 ture in accordance with the terms L. ed. 840, 19 Sup. Ct. 530." North- of the constitutional provision. St. ern Central Ry. Co. v. Maryland, 187 Loujs, Iron Mountain & Southern U. S. 258, 267, 268, 47 L. ed. 167, 23 Ry. Co. v. Paul, 64 Ark. 83, 37 Sup. Ct. 60, per White, J. L. R. A. 504, 40 S. W. 705, 62 Am. '< State v. Brown & Sharpe Mfg. St. Rep. 154. Co., 18 R. I. 16, 25 Atl. 246, 17 "It is elementary that where the L. R. A. 856. constitution of a State reserves the '^ Williamsport Passenger R. Co.'s right to repeal, alter or amend, all Appeal, 120 Pa. 1, 13 Atl. 496, 21 charters granted by the legislature W. N. C. 309. See Platte & D. Canal are subject to such provision, and & M. Co. v. Dowell, 17 Colo. 376, 30 therefore are wanting in that attri- Pac. 68; Northern Central R. Co. v. bute of irrevocability which is es- Holland, 117 Pa. 613, 20 W. N. C. sential to bring them within the 428, 12 Atl. 575. intendment of the clause of the Con- " Platte & D. Canal & M. Co. v. stitution of the United States pro- Dowell, 17 Colo. 376, 30 Pac. 68. tecting contracts from impairment. " Consolidated Gas Co. v. Mitchell The cases supporting this doctrine (Pa. C. P.), 1 Dauph. Co. Rep. 71. are so numerous that they need not " State v. Columbus Ry. Co., 24 be cited. We content ourselves, Ohio Cir. Ct. R. 609. 499 § 318 OBLIGATION OF CONTRACTS Again, a grant by the legislature or by a municipality, when authorized by legislative enactment, may be such a special privilege as to become a contract between the State and the corporators, vested and irrevocable in its nature, and one which is protected from impairment. The state constitution may, however, prohibit the grant of special, irrevocable privileges or franchises/^ § 318. Reservation of Power to Alter, etc., is Part of Charter or Contract. — A right reserved by a constitution or statute or by the charter itself, to alter or amend a charter or grant of a franchise, enters, as a term, stipulation or condition, into and becomes a part of the contract between the State or grantor and the corporation or grantee.*" So Code provisions that a franchise is held subject to the power in a State to with- draw it, and subject to be changed, modified or destroyed at the will of its grantor or creator become in substance a part of the charter. "It is quite too narrow a definition of the word 'franchise,' as used in this statute, to hold it as meaning only the right to be a corporation. The word is generic, covering all the rights granted by the legislature. As the greater power includes every less power which is a part of it, the right to withdraw a franchise must authorize a withdrawal of any right or privilege which is a part of the franchise." ®^ In other words, if a company accepts the grant of a right, privilege or franchise upon condition that the State may withdraw it whenever the public interest may so require, the reservation of such right is a part of the contract with the State, and its '« Port of Mobile v. Louisiana & L. ed. 989; Wilmington City Ry. Co. Nashville R. Co., 84 Ala. 115, 5 Am. v. Wilmington & B. S. Ry. Co. (Del. St. Rep. 342, 4 So. 106. Ch., 1900), 46 Atl. 12 (citing numer- *" St. Louis, Iron Mountain, etc., ous cases); O'Phinney v. Sheppard & Ry. Co. V. Paul, 173 U. S. 404, 408, Enoch Pratt Hospital, 88 Md. 633, 19 Sup. Ct. 419, 43 L. ed. 746, per 42 Atl. 58; State v. Chicago & N. W. Fuller, C. J. (noted under §320, Ry. Co., 128 Wis. 449, 108 N. W. herein); Greenwood v. Freight Co., 504. 105 U. S. 13, 26 L. ed. 961; Beer Co. "■ Railroad Co. v. Georgia, 98 U. S. V. Massachusetts, 97 U. S. 25, 24 359, 365, 25 L. ed. 185. 500 OBLIGATION OF CONTRACTS § 318 exercise by the State does not impair the obligation of the contract as prohibited by the constitution, but if such right is not reserved the franchise cannot be withdrawn without im- pairing the obhgation of contract.*^ So although a legislative grant to a corporation of special privileges may be a contract, when the language of the statute is so explicit as to require such a construction, yet if one of the conditions of the grant be that the legislature may alter or revoke it, a law altering or revoking the exclusive character of the granted privileges cannot be regarded as one impairing the obligation of the contract .^^ Where, by a state statute, the charter of a street railroad company was repealed, and its franchises and tracks were transferred to another, and the company refused to seek a remedy, a stockholder who asked an injunction on the ground that the statute impaired the obligation of a contract was given a standing in a court of equity. Such a statute impairs the obligation of a contract, unless the legislature reserved the right to repeal the statute conferring the charter. In Massa- chusetts such a reservation becomes a part of every act of in- corporation, by virtue of the General Statutes,^"* which de- clare, "Every act of incorporation passed after the eleventh day of March, in the year one thousand eight hundred and thirty-one, shall be subject to amendment, alteration or re- peal, at the pleasure of the legislature." Similar clauses of reservation exist in the statutes of various States. By the exercise of the repealing power reserved by such a clause the charter no longer exists, and whatever validity trans- actions entered into and authorized by it while it was in force may possess, there can be no new transactions depend- ent on the special power conferred by the charter. Such power is abrogated when the law granting it is repealed. Neither the rights of the shareholders to the real and personal property of the corporation, nor rights of contract, or choses in action, are destroyed by such repeal ; and if the legislature has 82 Central Rd. & Banking Co. v. Hamilton, 146 U. S. 258, 36 L. cd. State of Georgia, 54 Ga. 401, 409. 963, 13 Sup. Ct. 90. 83 Hamilton Gas Light & C. Co. v. 84 Sec. 41, chap. 68. 501 § 319 OBLIGATION OF CONTRACTS provided no specific mode of enforcing and protecting such rights, the courts will do so by the means within their power .*^ § 319. Reservation of Power to Alter, etc., and Limita- tions Thereon. — Even though the power to amend or repeal may be properly exercised, yet such power is not without limit; the alterations must be reasonably made, in good faith, and consistent with the scope and object of the act of incorpo- ration so that under the guise of amendment and alteration sheer oppression and wrong cannot be inflicted; and beyond the sphere of the reserved powers the vested rights of property in corporations in such cases is surrounded by the same sanc- tion and are as unvoidable as in other cases .^^ So a power reserved by a statute of a State to its legislature, to alter, amend or repeal a charter of a railroad corporation, authorizes the legislature to make any alteration or amendment of a charter granted subject to that power, which will not defeat or substantially impair the object of the grant or any rights vested under it,*' and which the legislature may deem necessary *^ Greenwood v. Freight Co., 105 power to add to, alter, amend or re- U. S. 13, 26 L. ed. 961. peal a charter authorizes the proper ^' Stanislaus County v. San Joa- legislative body to make any addi- quin & Kings River Canal & Irriga- tion, alteration or amendment which tion Co., 192 U. S. 201, 213, 24 Sup. does not substantially impair vested Ct. 241, 48 L. ed. 406, per Peck- rights or directly impede the accom- ham, J. (after reviewing a number of plishment of the purposes of the cases). grant, and which the legislative body " New York & N. E. R. Co. v. deems proper to secure the best in- Bristol, 151 U. S. 556, 14 Sup. Ct. terests of the public." Union Pac. 437, 38 L. ed. 269; Holyoke Co. v. Rd. Co. v. Mason City & Ft. Dodge Lyman, 15 Wall. (82 U. S.) 500, 21 R. Co., 128 Fed. 230, 238, 64 C. C. A. L. ed. 133. See also McKee v. 348 (case affirms 124 Fed. 409), cit- Chautauqua Assembly, 130 Fed. 536, ing New York & N. E. Rd. Co. v. 124 Fed. 808; Smith v. Atchison, Bristol, 151 U. S. 556, 14 Sup. Ct. Topeka & Santa Fe R. Co. (C. C), 437, 38 L. ed. 269; Sinking Fund 64 Fed. 272; People v. O'Brien, 111 Cases (Union Pac. R. Co. v. United N. Y. 1,19N. Y. St. R. 173, 18N. E. States and Central Pac. R. Co. v. 692, 2 L. R. A. 255, 7 Am. St. Rep. Gallatin), 99 U. S. 700, 720, 721, 684. See next following section 25 L. ed. 496. Principal case is aff'd herein. 199 U. S. 160, 50 L. ed. 134, 26 Sup. The reservation in a charter "of a Ct. 19. 502 OBLIGATION OF CONTRACTS § 320 to secure either that object or other pubHc or private riglits.** So the reservation, in a charter of a raih-oad company, of the power to add to, alter, amend or repeal includes the reserva- tion of power to condition the title to a bridge and to terminal facilities with the provision that the joint use of them shall be allowed to other railroad companies for reasonable compensa- tion, provided that this use does not deprive the holder of the property of the use of it requisite to the handling of its own engines and trains, to the conduct of its own business, and to the discharge of its corporate duty to the government and to the public.*^ If the constitution of a State forbids the passage of any law impairing the obligation of contracts such pro- vision is held to limit the power reserved in the same constitu- tion to alter or repeal general laws for the organization of corporations, so that the legislature cannot impair or destroy contract obligations of third parties with a corporation.^'' § 320. Reservation of Power to Alter, etc. — Fourteenth Amendment — Equal Protection of the Law — Deprivation of Property — Railroad Employees. — An act of a state legislature entitled " An act to provide for the protection of servants and employees of railroads," is not in conflict with the provisions of the Constitution of the United States. "The contention is that as to railroad corporations organized prior to its passage, the act was void because in violation of the Fourteenth Amend- ment. Corporations arc the creations of the State, endowed with such faculties as the State bestows and subject to such conditions as the State imposes, and if the power to modify their charters is reserved, that reservation is a part of the con- tract, and no change within the legitimate exercise of the power can be said to impair its obligations; and as this amendment rested on reasons deduced from the peculiar character of the business of the corporations affected and the public nature of «»Holyoke Co. v. Lyman, 15 Wall. 409, and aff'd in 199 U. S. 160, 50 (82 U. S.) 500, 21 L. ed. 133. L. od. 134, 26 Sup. Ct. 19. "Union Pac. Rd. Co. v. Mason »" Omaha Water Co. v. City of City & Fort Dodge R. Co., 128 Fed. Omaha, 147 Fed. 1, 77 C. C. A. 230, 64 C. C. A. 348, aff'g 124 Fed. 267. 503 § 320 OBLIGATION OF CONTRACTS their functions, and applied to all alike, the equal protection of the law was not denied.**^ The question, then, is whether the amendment should have been held unauthorized because amounting to a deprivation of property forbidden by the Federal Constitution. The power to amend 'cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits ac- tually reduced to possession of contracts lawfully made,' ^^ but any alteration or amendment may be made ' that will not defeat or substantially impair the object of the grant, or any rights which have vested under it, and that the legislature may deem necessary to secure either that object or other public or private rights.' ^^ This act was purely prospective in its operation. It did not interfere with vested rights or existing contracts, or destroy or sensibly encroach upon, the right to contract, although it did impose a duty in reference to the payment of wages actually earned, which restricted future contracts in the particular named. In view of the fact that these corporations were clothed with a public trust, and dis- charged duties of public consequence, affecting the community at large, the Supreme Court held the regulation, as promoting the public interest in the protection of employees to the limited extent stated, to be properly within the power to amend re- served under the state constitution. Inasmuch as the right to contract is not absolute, but may be subjected to the re- straints demanded by the safety and welfare of the State, we do not think that conclusion in its application to the power to amend can be disputed on the ground of infraction of the Fourteenth Amendment." ^^ '' Citing Missouri Pacific Ry. v. per Gray, J.; Greenwood v. Freight Mackey, 127 U. S. 205, 32 L. ed. 107, Co., 105 U. S. 13, 26 L. ed. 961; 8 Sup. Ct. 1161. Spring Valley Water Works v. »2 Citing Sinking Fund Cases Schottler, 110 U. S. 347, 28 L. ed. (Union Pacific R. Co. v. United 173, 4 Sup. Ct. 48. States), 99 U. S. 700, 25 L. ed. 496, ^* St. Louis, Iron Mountain, etc., per Waite, C. J. Ry. Co. v. Paul, 173 U. S. 404, 408, " Citing Commissioners v. Holyoke 19 Sup. Ct. 419, 43 L. ed. 746, per Water Power Co., 104 Mass. 446, 451, Fuller, C. J. 504 OBLIGATION OF CONTRACTS CONTINUED CHAPTER XX. OBLIGATION OF CONTRACTS CONTINUED. 321. Reserved Powers of Congress § 330. — Amendment of Charter of Subsidized Railroad — Railroad and Telegraph Company — Cemetery Com- pany. 322. Obligation of Contract — 331. Vested Rights — Conditions as Affecting — Reserved Power of Congress — Rail- road Grants. 332. 323. Implied Reservation in Favor of Sovereign Power. 333. 324. Obligation of Contract— 334. General and Special Laws — Reservation of Power to Alter or Repeal— Quo War- 335. ranto. 325. Reservation of Right to Re- 336. peal — Exemption from Legislative Repeal — Im- pairment of Obligation of Contracts. 337. 326. Exemption from Execution — Corporation Grantee of Municipal Waterworks — Obligation of Contract. 338. 327. Exemption — Eminent Do- main — Future Legislation — Obligation of Contract. 339. 328. Reservation of Power to Amend Charters — Supple- mentary Charter. 329. Obligation of Contract — — Mortgaged Franchise or 340. Property — Purchaser — Re- organization of Corpora- tion. Obligation of Contract — Franchises Expiring at Different Times — Exten- sion of Franchise — Reser- vation of Power to Amend or Repeal. Obligation of Contract not Impaired — Consolidation of Corporations — Reservation of Power to Alter or Repeal. Eminent Domain— Obligation of Contracts. Same Subject — Instances. Constitution Subsequently Adopted — Obligation of Contract. Obligation of Contracts — Po- lice Powers — Regulations. Obligation of Contracts — Conditions — Regulations — Reserved Power to Alter etc. Obligation of Contracts — Street Paving by Street Railways — Conditions and Regulations. Same Subject — Exemption from Assessment for Street Paving — Consolidation. Impairment of Obligation of Contracts — Illustrative De- cisions — Insurance — Banks —Rate of Interest— Pull- man Cars. Impairment of Obligation of Contracts — Illustrative De- cisions Continued — Tunnel — Ferries — Bridges — Canal 505 § 321 OBLIGATION OF CONTRACTS CONTINUED § 321. Reserved Powers of Congress— Amendment of Charter of Subsidized Railroad— Railroad and Telegraph Company — Cemetery Company. — The objects which Congress sought to accompHsh by the act of July 1, 1862/ granting a subsidy to aid in the construction of both a raihoad and a telegraph line from the Missouri River to the Pacific Ocean, and by the act of July 2, 1864,^ amendatory thereof, were the con- struction, the maintenance and the operation of both a railroad and a telegraph line between those two points; the govern- mental aid was extended for the purpose of accomplishing all these important results, nor is there anything in subsequent legislation to indicate a change of this purpose. The provisions in those acts permitting the railroad company to arrange with certain telegraph companies for placing their lines upon and along the route of the railroad and its branches, did not affect the authority of Congress, under its reserved power, to require the maintenance and operation by the railroad company itself, through its own officers and employees, of a telegraph line over and along its main line and branches. An arrangement between the railroad company and the telegraph company, such as was permitted under the acts of 1862 and 1864,^ could have no other effect than to relieve the railroad com- pany from any present duty itself to construct a telegraph line to be used under the franchises granted and for the pur- poses indicated by Congress. No arrangement of the charac- ter indicated by Congress could have been made except in view of the possibility of the exercise by Congress of the power re- served to add to, alter or amend the act that permitted such arrangement. It was not competent for Congress under its reserved power to add to, alter or amend these acts, to impose upon the railroad companies duties wholly foreign to the objects for which it was created or for which governmental aid was given, nor, by alteration or amendment of those acts, destroy rights actually vested, nor disturb transactions fully 1 Chap. 120, 12 Stat. 489. act July 2, 1864, chap. 220, known as ^Chap. 216, 13 Stat. 356. the Idaho Act. 3 Sec. 19, act July 118, 62, and §4, 506 OBLIGATION OF CONTRACTS CONTINUED § 321 consummated. The provisions of the act of 1888/ requiring all railroad and telegraph companies to which the United States have granted subsidies, to "forthwith and hence- forward, by and through their own respective corporate officers and employees, maintain and operate, for railroad, governmental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph fran- chises conferred upon them and obligations assumed by them under the acts making the grants," is a valid exercise of the power reserved by Congress.^ In the Sinking-Fund Cases the legislation of Congress in relation to the Central Pacific Rail- road Company and the Western Pacific Railroad Company — the latter being by consolidation a part of the former — was considered, and it was held, 1. That, to the extent of the powers, rights, privileges and immunities thereby granted. Congress retained the right of amendment, and by exercising it could, in a manner not inconsistent with the original charter granted by California, as modified by the act of that State passed in 1864, accepting what had been done by Congress, regulate the administration of the affairs of the company in reference to the debts created by it under authority of such legislation. 2. That the establishment of the sinking-fund by the act of May 7, 1878, did not conflict with anything in said charter. It was also decided that the establishment of the fund was a reasonable regulation of the administration of the affairs of the companies, promotive alike of the inter- ests of the public and of the corporators, and was warranted under the authority which Congress had, by way of amend- ment, to change or modify the rights, i)rivilcges and immuni- ties granted by it. The right of amendment, alteration or repeal reserved by Congress in said acts of 1862 and 1864 was also considered.* In another case it appeared that a cemetery *Act Aug. 7, 1888, chap. 772, 2.5 190. See United States v. Western Stat. 382. Union Teleg. Co., 50 Fed. 28. » United States v. T^^nion Pacific ' Sinking Fund Cases (Union Par. Ry. Co. & Western Un. Trleg. Co., R. Co. v. U^nited States), 99 U. S. 160 U. S. 1, 40 L. ed. 319, 16 Sup. Ct. 700, 25 L. ed. 496. 507 § 321 OBLIGATION OF CONTRACTS CONTINUED company was incorporated in 1854 by an act of Congress which authorized it to purchase and hold ninety acres of land in the District of Columbia, and to receive gifts and bequests for the purpose of ornamenting and improving the cemetery; enacted that its affairs should be conducted by a president and three other managers, to be elected annually by the votes of the proprietors, and to have power to lay out and ornament the grounds, to sell or dispose of burial lots, and to make by-laws for the conduct of its affairs and the government of lot-holders and visitors; fixed the amount of capital stock to be divided among the proprietors according to their respective interests; and provided that the land dedicated to the purposes of a cemetery should not be subject to taxation of any kind, and no highways should be opened through it, and that it should be lawful for Congress thereafter to alter, amend, modify or repeal the act. Presently afterward thirty of the ninety acres were laid out as a cemetery, the cemetery was dedicated by public religious services, and a pamphlet was published, con- taining a copy of the charter, a list of the officers, an account of the proceedings at the dedication, describing the cemetery as "altogether comprising ninety acres, thirty of which are now fully prepared for interments," and the by-laws of the corpo- ration, which declared that all lots should be held in pursuance of the charter. No stock was ever issued, but the owner of the whole tract, named in the charter as one of the original associates, and in the list published in the pamphlet as the president and manager of the corporation, knowing all the above facts, and never objecting to the appropriation of the property as appearing thereby, for more than twenty years managed the cemetery, sold about two thousand burial lots, and gave to each purchaser a copy of the pamphlet, and a deed of the lot, signed by himself as president, bearing the seal of the corporation, and having the by-laws printed thereon. In 1877 Congress passed an act, amending the charter of the corporation providing that its property and affairs should be managed, so as to secure the equitable rights of all persons having any vested interest in the cemetery by a board of five 508 OBLIGATION OF CONTRACTS CONTINUED § 322 trustees to be elected annually, three by the proprietors of lots owned in good faith upon which a burial had been made, and two by the original proprietors; and that of the gross receipts arising from the future sale of lots one-fourth should be annually paid by the trustees to the original proprietors and the rest be devoted to the improvement and maintenance of the cemetery. It was held that the act of 1877 w^as a constitutional exercise of the power of amendment reserved in the act of 1854; that the owner of the land was estopped to deny the existence of the corporation, the setting apart of the whole ninety acres as a cemetery, the right of the lot-holders to elect a majority of the trustees; and that he was in equity bound to convey the whole tract to the corporation in fee, and to account to the corporation for three-fourths of the sums received by him from sales of lots since the act of 1877; and the corporation to pay him one-fourth of the gross receipts from future sales of lots.' §322. Obligation of Contract— Vested Rights— Condi- tions as Affecting — Reserved Power of Congress — Railroad Grants. — ^\^lere a statute authorizes railway companies to build across and upon city streets but makes the city's assent a prerequisite, if such consent in due form is secured the com- pany's right, in so far as the designated streets are concerned; to build its tracks, is complete. If the company accepts the privilege the right becomes vested, fixed and certain, the city's 'consent cannot be recalled, and the right so vested can only be revoked in an action, brought under the State's authority, to forfeit it.* And when an act granting public lands to aid 'Close V. Glenwood Cemetery, 107 Bristol, 151 U. S. 556, 567, 38 L. cd. U. S. 466, 27 L. ed. 789, 3 Sup. Ct. 10, 269, 14 Sup. Ct. 437; Louisville cited in Citizens' Savings Bank v. Water Co. v. Clark, 143 U. S. 1, 14, Owensboro, 173 U. S. 636, 647, 43 L. 12 Sup. Ct. 346, 36 L. ed. 55; Ciibbs ed. 840, 19 Sup. Ct. 530; Covington v. Consol. Gas Co. of Baltimore, 130 V. Kentucky, 173 U. S. 231, 239, 19 U. S. 396, 408, 32 L. ed. 979, 9 Sup. Sup. Ct. 383, 43 L. ed. 679; United Ct. 553. States V. Union Pacific Ry. Co., 160 « Denniston & Sherman Ry. Co. v. U. S. 1, 37, 40 L. ed. 319, 16 Sup. Ct. St. Louis Southwestern Ry. Co., 30 190; New York & N. E. R. Co. v. Tex. Civ. App. 474,476, 72 S. W. 201. 509 §§ 323, 324 OBLIGATION OF CONTRACTS CONTINUED in the construction of a railroad provides that patents shall issue from time to time, as sections of the road are completed, but reserves to Congress the right at any time "to add to, alter, amend, or repeal this act," Congress may, without violating the Constitution of the United States, by subsequent act passed before any of the road is constructed, or any of the land earned, require the cost of surveying, selecting and conveying the land to be paid into the treasury of the United States be- fore the conveyance of the granted lands to any party entitled thereto.^ § 323. Implied Reservation in Favor of Sovereign Power. — When a grant has once been made by legislative authority, to the extent of the rights conferred the power which made it is expended, and it cannot be taken back or transferred to another, until the public interests and welfare shall demand its resumption, and provision shall have been made for just compensation to the owner in the manner required by law. This rests upon an implied reservation to that effect or extent in favor of the sovereign power. ^° So the right to lay tracks in city streets is held to be taken subject to the implied power of the State to modify ordinances of the city so that the latter may be empowered to forbid construction of tracks, etc., without compensation to owners of abutting property, and such enact- ment will not be unconstitutional.^^ There may also be an implied reservation of power, in a charter to a railroad com- pany, to incorporate companies to transport other than pas- sengers.^^ § 324. Obligation of Contract — General and Special Laws — Reservation of Power to Alter or Repeal — Quo Warranto. — Where a state constitution provides that corporations may » Northern Pac. R. R. Co. v. Traill R. Co., 57 Iowa, 393, 10 N. W. County, 115 U. S. 600, 29 L. ed. 477, 754. 6 Sup. Ct. 201. '2 Richmond, F. & P. R. Co. v. '"Mills V. County of St. Clair, 7 Louisa. R. Co., 13 How. (54 U. S.) 111. 197, 227. 71, 14 L. ed. 55, considered more " Drady v. Des Moines & Ft. D. fully under § 333, herein. 510 OBLIGATION OF CONTRACTS CONTINUED § 324 be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the objects of the corporation can- not be attained under general laws, and reserves the power to alter or repeal from time to time all general laws and special acts passed in pursuance of such provision ; a special act may be passed taxing the receipts of a corporation." The legislature may also by special act impose restrictions or other burdens upon a railroad ; " but it cannot deprive a corporation of its property or annul or interfere with its contracts with third persons; ^^ and it is also held that the charter of a corporation cannot be amended thereunder. ^^ In a case in the Federal Supreme Court it appeared that the constitution of New York, made in 1826, ordained that "corporations may be formed under general laws, but shall not be created by special act except in certain cases;" and also "that all general laws and special acts, passed pursuant to this section, may be altered from time to time or repealed." A statute of New York, passed in 1828, enacted, "that the charter of every corporation that shall be thereafter granted by the legislature shall be subject to alteration, suspension and repeal, in the discretion of the legislature." In this state of things, a general railroad law was passed in 1850, authorizing the formation of railroad corporations with thirteen directors. The formation of a com- pany under this general law being subsequently contemplated, with a capital of $800,000, to build a road fifty miles long, the legislature authorized the city of Rochester to subscribe $300,000 to it, and enacted that if the company accepted the »» Mayor v. Twenty-Third St. R. Co., 113 N. Y. 311, 22 N. Y. St. R. Co., 113 N. Y. 311, 22 N. Y. St. R. 958, 21 N. E. 60, aff'g 48 Hun, 552, 958, 21 X. E. 60, aff'g 48 Hun, 552, 16 N. Y. St. R. 137, 1 N. Y. Supp. 16 N. Y. St. R. 137, 1 N. Y. Supp. 295; People v. O'Brien, 111 N. Y. 1, 295. 19 N. Y. St. R. 173, 18 N. E. 692, '« People, Kimball, v. Boston & rev'g 45 Hun, 519, 10 N. Y. St. R. Albany R. Co., 70 N. Y. 569. Ex- 596, 27 W. D. 365; People, Gage, v. amine Barnes v. Arnold, 45 N. Y. Lolinas, 54 Hun, 604. App. Div. 314. "Lord v. Equitable Life Assu-. " Mayor v. T-.enty-Third St. R. Soc, 94 N. Y. Supp. 65, 47 Misc. 187. 511 § 324 OBLIGATION OF CONTRACTS CONTINUED subscription, the city should appoint one director for every $75,000 subscribed by it, that is to say, should appoint four directors out of the thirteen contemplated; the other stock- holders, of course, appointing the remaining nine. The com- pany did accept the subscription, and the stockholders other than the city subscribed $677,500, but paid up only, $255,000. Then the enterprise for all but eighteen miles of the road was abandoned. The city had paid its $300,000 subscribed. In 1867 the legislature passed another act giving the city power to appoint one director for every $42,855.57 of stock owned by the city; in other words, establishing the same ratio that existed among the subscribers for the stock at the time the original subscription was made. The effect was to give the city seven directors and to leave the other stockholders but six. These last stockholders regarding the act of 1850 as making a contract that they should have nine directors and the city but four, and that the act of 1867 violated that con- tract, elected their old nine. It was held, on a quo warranto, that the act of 1867 did not, in view of the state constitution and the act of 1828 making charters subject to alteration, suspension and repeal, make such a contract, and that the act of 1867 was constitutional.^^ If the life of a corporation is by special charter to continue for sixty years and is not sub- ject to alteration or amendment until after the period of thirty years except in case of a violation of the charter, the expiration of the period of thirty years limits the time before which any amendment or alteration of the charter can be made, even though a general law adopted by the special charter would have permitted an alteration before that period had elapsed; this especially applies where the legislature had not attempted to forfeit or alter said charter within the thirty years.^^ If the constitution pro\ides for the alteration or repeal of all general laws and special acts, a railroad corporation whether incorporated under either law is subject to the constitu- tional provision and cannot claim an impairment of the obli- 1' Miller V. State, 15 Wall. (82 U. '' Tripp v. Pontiac & L. Plank S.) 478, 21 L. ed. 98. Road Co., 66 Mich. 1. 32 N. W. 907. 512 OBLIGATION OF CONTRACTS CONTINUED § 325 gation of contract in case of an alteration or repeal of its charter, ^^ § 325. Reservation of Right to Repeal — Exemption from Legislative Repeal — Impairment of Obligation of Con- tracts. — Statutory reservations of the right to repeal, unlike similar constitutional provisions, are only binding on a suc- ceeding legislature so far as it chooses to conform to them; and, if it so intends, an irrepealable legislative contract may- be made. It is, therefore, in every case a question whether the legislature making the contract intended that the former provision for repeal or amendment should by implication be- come a part of the new contract.^*^ In a Federal case it appeared that on February 14, 1856, the legislature of Kentucky enacted: "That all charters and grants of and to corporations or amend- ments thereof, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein expressed." By an act passed January 22, 1869, amending the charter of a gas company which was subject to that pro- vision in the act of 1856, it was enacted: "That said gas company shall have the exclusive privilege of erecting and estab- lishing gas works in the city of Louisville during the contin- uance of this charter, and of vending coal gas lights, and sup- plying the city and citizens with gas by means of pubhc works," etc.; it was held that the latter act contained a clear expression of the legislative intent, that the company should continue to enjoy the franchise then possessed by it for the term named in that act without being subject to have its charter in that respect amended or repealed at the will of the legislature.^^ The rule, that a special statutory exemption does not pass to a new corporation succeeding others by consolidation or pur- chase in the absence of express direction to that effect in the statute, is applicable where the constituent companies arc " Matthew.? v. Board of Corpo- " Louisville Gas Co. v. Citizens' ration Commrs. of N. C, 97 Fed. 400. Gas Co., 115 U. S. 683, 29 L. ed. 510, '"New Jersey v. Yard, 95 U. S. G Sup. Ct. 265. 104, 24 L. ed. 352. 33 518 §§ 326, 327 OBLIGATION OF CONTRACTS CONTINUED held and operated by one of thcni, under authority of the legislature. And where a contract which is claimed to have been impaired was made with one of several corporations merged into the complainant, and concededly affects only the property and franchises originally belonging to such constituent company, divisional relief cannot be granted affecting only such property, when the bill is not framed in that aspect but prays for a suspension of the impairing ordinance as to all of complainant's property.^^ 326. Exemption from Execution— Corporation Grantee of Municipal Waterworks— Obligation of Contract.^"— Where a municipality which owned waterworks conveyed them to a corporation, formed for the purpose of maintaining and en- larging them, and received therefor shares of stock, which the statute authorizing the conveyance declared should not be liable for the debts of the city, but should be reserved for the benefit of the holders of the bonds that had been issued by the city to raise the means wherewith to construct the works, such statute does not, by thus exempting those shares from seizure, impair the obligation of any contract, as they merely represent the city's ownership in the waterworks which was, before the enactment of the statute, exempt from seizure and sale under execution.^"* § 327. Exemption— Eminent Domain— Future Legisla- tion — Obligation of Contract.'^ — There exists no such contract between the State and a railroad company as exempts the latter from the operation of a state constitutional provision, requiring that corporations invested w4th the privilege of tak- ing private property for public use shall make compensation for property injured or destroyed by the construction or en- " People's Gas Light & Coke Co. 600, 26 L. ed. 1184. See Myers v. V. Chicago, 194 U. S. 1, 48 L. ed. Moran, 99 N. Y. Supp. 269, 113 App. 851, 24 Sup. Ct. 520. Div. 427. " See § 20, herein as to an exemp- " See § 20, herein, as to an exemp- tion being a franchise. tion being a franchise. ^^ New Orleans v. Morris, 105 U. S. 514 OBLIGATION OF CONTRACTS CONTINUED §§ 328, 329 largement of their works, highways or improvements, where neither the charter of the company nor supplementary acts of the legislature contain such a contract; nor does the consti- tutional provision, as applied to the company, in respect to cases afterward arising, impair the obligation of any contract between it and the State. Since there was in such case no prior contract with the company exempting it from liability from future legislation in respect to the subject-matter in- volved, the company took its original charter subject to the general law of the State, and to such changes as might be made in that general law, and subject to future constitutional provisions and future general legislation. Exemption from future general legislation either by a constitutional provision or by an act of the legislature, cannot be admitted to exist, unless it is expressly given, or unless it follows by an impli- cation equally clear with express words.^® § 328. Reservation of Power to Amend Charters — Sup- plementary Charter. — A statute of a State, which declares that all charters of corporations granted after its passage may be altered, amended or repealed by the legislature, does not necessarily apply to supplements to an existing charter which were enacted subsequently to the statute. Nor docs a pro- vision which declares that "this supplement, and the charter to which it is a supplement, may be altered or amended by the legislature," a[)ply to a contract with the corporation made in a supi)lement thereafter passed.'^ § 329. Obligation of Contract — Mortgaged Franchise or Property — Purchaser — Reorganization of Corporation. — Where a new corporation is organized to operate a road, by a mortgagee, who has purchased the franchise to take tolls, the legislature has no power over the franchise so purchased *' Pennsylvania R. R. Co. v. Miller, " New Jersey v. Yard, 9.5 U. S. 132 U. S. 75, 10 Sup. Ct. .34, 33 L. cd. 104, 24 L. ed. 352. Examine Pha^nix 267, cited on the last point in Pearsall v. Trustees of Columbia College, 84 V. Great Northern Ry. Co., IGl U.S. N. Y. Supp. 897, 87 App. Div. 646, 40 L. cd. 838, IG Sup. Ct. 705. 438. 515 § 330 OBLIGATION OF CONTRACTS CONTINUED even though the new corporation's charter is made subject to legislative changes. ^^ But provisions in the railway law of Michigan of 1873, for the creation of a new corporation upon the reorganization of a railroad by the purchaser at a fore- closure sale, are held not to constitute a contract within the impairment clause of the Constitution of the United States.^^ So the authority conferred by acts of the legislature of New York ^° upon purchasers at a foreclosure sale of a railroad, to organize a corporation to receive and hold the purchased property, creates no contract with the State. The imposition under the provisions of the act of the legislature of New York of 1886,^^ of a tax upon a corporation so organized after the passage of that act by purchasers who purchased at a fore- closure sale made before its passage, for the privilege of be- coming a corporation, violates no contract of the State and is no violation of the Constitution of the United States.^^ A provision in an act for the reorganization of an embarrassed corporation, which provides that all holders of its mortgage bonds who do not, within a given time named in the act, ex- pressly dissent from the plan of reorganization, shall be deemed to have assented to it, and which provides for reasonable no- tice to all bondholders, does not impair the obligation of a contract, and is valid. ^^ § 330. Obligation of Contract— Franchises Expiring at Different Times — Extension of Franchise — Reservation of Power to Amend or Repeal. — Ordinances granting an exten- sion to a consolidated street railway corporation, possessing franchises expiring at different times, on conditions involving great expense to the corporation and resulting in substantial benefits to the public as to transfers for single fares and re- 2« Ball V. Rutland R. Co. (C. C), p. 547, as amended by act June 2, 93 Fed. 513. 1876, chap. 446, p. 480. 2" Grand Rapids & Ind. Ry. Co. v. ^' Act April 16, 1886, chap. 143. Osbom, 193 U. S. 17, 48 L. ed. 598, '^ Schurz v. Cook, 148 U. S. 397, 13 24 Sup. Ct. 310. Sup. Ct. 645, 37 L. ed. 498. 3° Act May 11, 1874, chap. 430, ^3 Gjifillan v. Union Canal Co., 109 U. S. 401,27L. ed. 977. 516 OBLIGATION OF CONTRACTS CONTINUED § 330 lating to the entire system as well as the extensions granted, and provided that the right granted terminate with the then existing grants of the main Hne at a specified date later than that of termination of some of the franchises, amount, on the acceptance by the company and compliance with the condi- tions, to a contract within the protection of the impairment clause of the constitution extending the various franchises to that date; the period, in this case of four years, not being an unreasonable one in view of the substantial benefits accruing to the public. ^^ Under another decision it appeared that the Citizens' Street Railway Company of Indianapolis was organ- ized in 1864 under an act of the legislature of Indiana of 1861, authorizing such a company to be "a body politic and corpora- tion in perpetuity." January 18, 1864, the common council of that city passed an ordinance authorizing the company to lay tracks upon designated streets, and providing that "the right to operate said railways shall extend to the full time of thirty years," during which time the city authorities were not to ex- tend to other companies privileges which would impair or destroy the rights so granted. In April, 1880, the common council amended the original grant " so as to read thirty-seven years where the same now reads thirty years." The company, desiring to issue bonds to run for a longer period than the thirty years, had, for that purpose, petitioned the common council for an extension to forty-five years. The city govern- ment was willing to extend to thirty-seven years, and this was accepted by the company as a compromise. On the 23d of April, 1888, the road and franchises were sold and conveyed to the Citizens' Street Railroad Company, which sale and transfer were duly approved by the city government. De- cember 18, 1889, a further ordinance authorized the use of electric power by the company, and provided how it should be applied. In accordance with its provisions the company, at great expense, built a power house, and changed its plant to an electric system. In April, 1893, the city council, claim- '* Cleveland v. Cleveland Electric 8.54. 2G Sup. Ct. 513, aff'g 13.5 Fed. Ry. Co., 201 U. S. .529, .50 L. ed. 368. 517 § 330 OBLIGATION OF CONTRACTS CONTINUED ing that the rights of the company would expire in thirty years from January 18, 1864, granted to another corporation called the City Railway Company the right to lay tracks to be operated by electricity in a large number of streets then occupied by the tracks of the Citizens' Street Railroad Com- pany, whereupon a bill was filed in the Circuit Court of the United States by the street railway company, to enjoin it from interrupting or disturbing the railroad company in the main- tenance and operation of its car system, alleging that the action of the city council sought to impair, annul and destroy the obligation of the city's contract with the plaintiff. It was held that the Circuit Court had jurisdiction, although both parties were corporations and citizens of Indiana; that the right of repeal reserved to the legislature in the act of 1861 was not delegated to the city government; that the circum- stances connected with the passage of the amended ordinance of April 7, 1880, operated to estop the city from denying that the charter was extended to thirty-seven years; that the con- tinued operation of the road was a sufficient consideration for the extension of the franchise; that the citizens' company had a valid contract with the city which would not expire until January 18, 1901, and that the contract of April 24, 1893, with the City Railway Company was invalid. But no opinion was expressed whether complainant was entitled to a perpetual franchise from the city.^^ In another case, however, it is de- termined that where the legislature grants to a city compre- hensive power to contract with street railroad companies with regard to the use of its streets and length of time, not exceed- ing twenty-five years, for which such franchise may be granted, the action of the city council of such city, and the acceptance by a street railway company of various ordinances adopted by the council do not amount to a contract between the city and the company extending the time of the franchise, and a 35 City Ry. Co. v. Citizens' Street 400, .50 L. ed. 801, 26 Sup. Ct. 427, R. R. Co., 166 U. S. 5.57, 41 L. ed. rev'g Covin v. City of Chicago, 132 1114, 17 Sup. Ct. 653. Examine Fed. 848. Blair v. City of Chicago, 201 U. S. 518 OBLIGATION OF CONTRACTS CONTINUED § 331 later ordinance affecting that franchise after its expiration as originally granted is not void under the impairment clause of the Federal Constitution.^^ But even though an ordinance ex- tending a franchise may be construed as a contract it is still subject to the control of the legislature if the constitution of the State then in force provides that no irrevocable or uncon- trollable grant of privileges shall be made and that all privi- leges granted by the legislature, or under its authority, shall be subject to its control; nor is the legislature deprived of this control because the contract was not made by it but by a municipal corporatio;i, as the latter is for such purpose merely an agency of the State. ^^ If a statute reserves the power to amend or repeal charters or grants, unless a contrary intent therein is plainly expressed such provision embraces extensions of original charters or grants as well as those granted after such enactment.^* § 331. Obligation of Contract not Impaired — Consolida- tion of Corporations — Reservation of Power to Alter or Repeal. — In the Pennsylvania College Cases ^* it appeared that the legislature of Pennsylvania chartered a college "at Can- nonsburg," by name of the Jefferson College, "in Cannons- burg," giving to it a constitution and declaring that the same should "be and remain the inviolable constitution of the said college forever" and should not be "altered or alterable by an " Cleveland Electric Ry. Co. v. tucky and the members of the state Cleveland, 204 U. S. IIG, 51 L. ed. board of valuation restraining the — , 27 Sup. Ct. — . collection of taxes of that county as " San Antonio Traction Co. v. impairing the obligation of a con- Altgelt, 200 r. S. 304, .TO L. ed. 491, tract created by a law of the State 26 Sup. Ct. 261. and within the protection of the " Northern liank of Kentucky v. Federal Constitution is not, because Stone, 88 Fed. 413, aff'd Stone v. such state officers were parties, res Bank of Kentucky, 174 U. S. 799, 43 judicata to the validity of taxes im- L. ed. 1187, 19 Sup. Ct. 881, by a di- posed by another county, nor is such vided court, and cited in Bank of other county privy to the judg' Kentucky v. Kentucky, 207 U. S. ment. 2.58, 266, 267, which holds that a '» 13 Wall. (80 U. S.) 190, 20 L. ed. judgment against a county of Ken- 550. 510 § 331 OBLIGATION OF CONTRACTS CONTINUED ordinance or law of the said trustees or in any other manner than by an act of the legislature" of Pennsylvania. The college becoming in need of funds put into operation a plan of endowment whereby in virtue of different specific sums named, different sorts of scholarships were created; one, ex. gr., by which on paying $400 a subscriber became entitled to a per- petual scholarship, capable of being sold or bequeathed; and another by which on payment of $1,200 he became entitled to a perpetual scholarship, entitling a student to tuition, room rent and boarding; this sort of scholarship being capable, by the terms of the subscription, of being disposed of as other property. But nothing was specified in this plan as to where this education, under the scholarships, was to be. On payment of the different subscriptions, certificates were issued by the college, certifying that A. B. had paid $ , which entitled him " to a scholarship as specified in plan of endowment adopted by the trustees of Jefferson College, Cannonsburg," etc. An act of the legislature, in 1865, by consent of the trustees of the college at Cannonsburg and of the trustees of another college at Washington, Pennsylvania, seven miles from Can- nonsburg, created a new corporation, consolidating the two corporations, vesting the funds of each in the new one, and in their separate form making them to cease, but providing that all the several liabilities of each, including the scholarships, should be assumed and discharged without diminution or abatement by the new corporation. Notwithstanding the act of assembly, the collegiate buildings, etc., of Jefferson College were left at Cannonsburg, and certain parts of the collegiate course were still pursued there; the residue being pursued at Washington College, Washington. Subsequently, in 1869 — the then existing constitution of Pennsylvania (one adopted in 1857, allowing the legislature of the State "to alter, revoke, or annul any charter of incorporation thereafter granted, whenever in their opinion it may be injurious to the citi- zens * * * in such manner, however, that no injustice shall be done to the corporators") being in force — a supple- ment to this act of 1865 was passed, "closely uniting" the 520 OBLIGATION OF CONTRACTS CONTINUED § 331 several departments of the new college created by the act of 1865, and authorizing the trustees of it to locate them either at Cannonsburg, Washington, or some other suitable place within the commonwealth; they giving to whichever of the two towns named had the college taken away from it, or to both if It was taken away from both, an academy, normal school, or other institution of a grade lower than a college, with some property of the college for its use. It was held that the legislature of Pennsylvania, by its act of 1869, had not passed any law violating the obligation of a contract. "^^ This de- cision was followed in another case under the following cir- cumstances, viz. : The citizens of Millersburg, Kentucky, raised a fund for the purpose of establishing a collegiate institute in that place or its vicinity, and invited the Kentucky Annual Conference of the Methodist Episcopal Church, South, to take charge of it when established. The invitation was accepted, and the legislature of the State incorporated the Institute by an act, one provision in w^hich was a reservation to the legis- lature of the right to amend or repeal it. Large additions were then made to the fund from other sources, and in 1860 another act was passed incorporating the Board of Education of that Conference of the Methodist Church. In this act, after reciting the raising of the money, and the establishment of the institu- tion at Millersburg, the control of the college and the dis- position of the sums raised were placed in the hands of the Conference. This act, also, was passed subject to the right of the legislature to amend or repeal. In 1861, the legislature passed another act, in which, as construed by the courts, power was conf(>rred upon the Conference to remove the college from Millersl)urg to any other place within the bounds of Kentucky Annual Conference. It was decided that the latter act did not ^This case is cited in New York 540, 25 L. ed. 912; Railroad Co. v. & N. E. R. Co. V. Bristol, 151 U. S. Georgia, 98 U. S. 359, 366, 25 L. ed. 556, 567, 38 L. od. 209, 14 Sup. Ct. 185; Holyokc Co. v. Lyman, 15 Wall. 437; Greenwood v. Freight Co., 105 (82 U. S.) 500, 511, 522, 21 L. ed. U. S. 13, 18, 26 L. ed. 901; Railway 133; Miller v. State, 15 Wall. (82 U. Co. V. Philadelphia, 101 U. S. 528, S.) 478, 488, 495, 497, 21 L. ed. 98. 521 § 332 OBLIGATION OF CONTRACTS CONTINUED impair any contract created by the former statutes and pro- ceedings,^^ § 332. Eminent Domain— Obligation of Contracts. — The Constitution of the United States cannot be so construed as to take away the right of eminent domain from the States. Nor does the exercise of this right interfere with the inviola- bility of contracts. All property is held by tenure from the State, and all contracts are made subject to the right of eminent domain. No contract is, therefore, violated by the exercise of the right. The Constitution of the United States intended to prohibit all such laws impairing the obligation of contracts as interpolate some new term or condition, foreign to the original agreement.^^ Nor in the proceeding to condemn property for public use, is there anything in the nature of a contract between the owner and the State, or the corporation which the State in virtue of her right of eminent domain au- thorizes to take the property; all that the constitution of the State or of the United States or justice require in such cases is that a just compensation shall be made to the owner, his property can then be taken without his consent.'*^ Again, while the legislative power to amend or repeal a statute cannot be availed of to take away property already acquired, or to deprive a corporation of fruits of contracts lawfully made, already reduced to possession, the capacity to acquire land by condemnation for the construction of a railroad attends the franchise to be a railroad corporation, and, when unexecuted, cannot be held to be in itself a vested right surviving the ex- istence of the franchise, or an authorized circumscription of its scope.'*'* Nor is the right to proceed in a certain prescribed *'■ Bryan v. Board of Education, See Baltimore & F. Turnpike Road Kentucky Conference, 151 U. S. 639, v. Baltimore, C. & E. M. P. R. Co., 38 L. ed. 297, 14 Sup. Ct. — , cited in 81 Md. 247, 31 Atl. 854. Mobile & Ohio Rd. v. Tennessee, 153 " Garrison v. New York, 21 Wall. U. S. 486, 495, 14 Sup. Ct. 968, 38 (88 U. S.) 196, 22 L. ed. 612. L. ed. 793. ** Adirondack Ry. Co. v. New "West River Bridge Co. v. Dix, 6 York, 176 U. S. 335, 20 Sup. Ct. 460, How. (47 U. S.) 507, 12 L. ed. 535. 44 L. ed. — , 20 Sup. Ct. 460, aff'g 522 OBLIGATION OF CONTRACTS CONTINUED § 333 manner a vested right, under a charter authorizing a corpora- tion to acquire real estate under the exercise of the power of eminent domain, and such right may be repealed by the leg- islature notwithstanding there is no reservation of power to alter or repeal. ^^ It is also within the power of a State to pro- vide for condemnation of minority shares of stock in railroad and other corporations where the majority of the shares are held by another railroad corporation, if public interest de- mands; and the improvement of the railroad owning the ma- jority of stock of another corporation may be a public use if the state court so declare, and the condemnation under the Public Laws of Connecticut ^^ of such minority shares of a corporation is not void under the impairment clause of the constitution either because it impairs the obligation of a lease made by the corporation to the corporation obtaining the shares by condemnation, or because it impairs the contract rights of the stockholder/^ Where the highest court of a State held that there was no property in a naked railroad route in such State which the State was obliged to pay for when it needed the land covered by that route for a great public use, and its officers were by appropriate legislation authorized to act, the Federal Supreme Court accepted the views of the state court, and accordingly held that the pro- ceedings on the part of the State which were complained of in the case, impaired the obligation of no contract between it and the railroad comj)any.''* § 333. Same Subject — Instances. — The use of a team track and delivery space of a railroad company is not so essential as People V. Adirondack Ry. Co., 100 Ry. Co., 203 U. S. .372, .51 L. ed. 231, N. Y. 22.5, .54 N. E. 689, cited in 27 Sup. Ct. 72, aff'g 78 Conn. 1, Underpround Rd. v. City of Now 60 Atl. 740. York, 193 U. S. 416, 428, 48 L. cd. ■'"Adirondack Ry. Co. v. New 733, 24 Sup. Ct. 494. York, 176 U. S. 335, 44 L. ed. 492, «Chattaroi R. Co. v. Kinner, 81 20 Sup. Ct. 460, aff's People v. Ky. 281, 5 Ky. Law Rep. 33. Adirondack Ry. Co., 160 N. Y. 225, " Sees. 3694, 3695. .54 N. E. 689. « Offield V. New York, N. H. & H. 523 § 333 OBLIGATION OF CONTRACTS CONTINUED to result in impairing the franchise and use of a raihoad com- pany in case another railroad is permitted to use three feet for clearance space, which clearance does not interfere with the running of defendant's trains, nor to an irremediable ex- tent with the use of defendant's team track and delivery space. A railroad corporation having secured a franchise and right of way for the purpose of constructing its tracks upon a locus puhlicus of a city has the right to expropriate from another railroad corporation sufficient clearance space to enable it to pass its trains free of obstructions and hindrances from the latter, if the use thereof be not of such a character as to be indispensable to the movement of its own trains or its other business. ^^ In another case it appeared that the legislature of Virginia incorporatetl the stockholders of the Richmond, Fredericksl^urg and Potomac railroad company, and in the charter pledged itself not to allow any other railroad to be constructed between those places, or any portion of that dis- tance; the probable effect would be to diminish the number of passengers travelling between the one city and the other upon the railroad authorized by that act, or to compel the said company, in order to retain such passengers, to reduce the passage money. Afterwards the legislature incorporated the Louisa Railroad Company, whose road came from the West and struck the first named company's track nearly at right angles, at some distance from Richmond; and the legislature authorized the Louisa Railroad Company to cross the track of the other, and continue their road to Richmond. In this latter grant, the obligation of the contract with the first com- pany was held not to be impaired within the meaning of the Constitution of the United States. It was also decided that in the first charter there was an implied reservation of the power to incorporate companies to transport other than passengers; and if the Louisa Railroad Company should infringe upon the rights of the Richmond Company, there would be a remedy at law, but that the apprehension of it would not justify an '^ Shreveport & R. R. V. R. Co. v. St. Louis S. W. R. Co., 51 La. Ann. 814, 25 So. 424. 524 OBLIGATION OF CONTRACTS CONTINUED § 333 injunction to prevent them from building their road; and that the obhgation of the contract was not impaired by crossing the road, since a franchise may be condemned in the same manner as individual property.^*' In Baltimore & Susque- hanna R. Co. V. Nesbit,^^ the State of Maryland granted a charter to a railroad company, in which provision was made for the condemnation of land to the following effect : namely, that a jury should be summoned to assess the damages, which award should be confirmed by the county court, unless cause to the contrary was shown. The charter further provided, that the payment, or tender of payment, of such valuation should entitle the company to the estate as fully as if it had been conveyed. In 1836 there was an inquisition by a jury, condemning certain lands, which was ratified and confirmed by the county court. In 1841, the legislature passed an act directing the county court to set aside the inquisition and order a new one. On the 18th of April, 1844, the railroad company tendered the amount of the damages, with interest, to the owner of the land, which offer was refused; and on the 26th of April, 1844, the owner applied to the county court to set aside the inquisition, and order a new one, which the court directed to be done. It was decided that the law of 1841 was not a law impairing the obligation of a contract; it neither changed the contract between the company and the State, nor did it divest the company of a vested title to the land. The charter provided that, upon tendering the damages to the owner, the title to the land should become vested in the company. There having been no such tender when the act of 1841 was passed, five years after the inquisition, that act only left the parties in the situation whore the charter placed lhom, and no title was divested out of the company, because they had none. It was further hold that the States have a right to direct a rehearing of cases decided in their own courts. The only limit upon the power to pass retrospective laws is, »o Richmond, F. & P. R. Co. v. 'i iq How. (51 U. S.) 395, 13 L. cd. Louisa. R. R. Co., 13 How. (.54 U. S.) 4G9. 71, 14 L. ed. 55. 525 § 334 OBLIGATION OF CONTRACTS CONTINUED that the Constitution of the United States forbids their passing ex post facto laws, which are retrospective penal laws. But a law merely divesting antecedent vested rights of property, where there is no contract, is not inconsistent with the Federal Constitution. § 334. Constitution Subsequently Adopted— Obligation of Contract. — If a charter from the legislature is amended so as to confer upon a city or village the power to grant and it does grant a franchise to a railroad company of certain rights or privileges in a business street, such franchise is irrevocable to the extent that it is protected from impairment by the consti- tution and it is not affected by the terms of a new constitution prohibiting grants of special privileges of such a nature. ^^ So a distinction is made between grants of land, repealed by the operation of a state constitution prohibiting grants, where the grants were made to aid in the construction of lines of railway not authorized until after such provision of the con- stitution took effect,^^ and a case where the grants which were claimed to be affected by it were made prior to the adop- tion of that constitution, for the purpose of aiding in the con- struction of the road, since in the latter case the enforcement of that constitution against the accepted grant and vested rights will impair the obligation of the contract between the State and the railway company and cannot be sustained. ^^ Where the State of Ohio chartered a bank in 1845, in which *^ Port of Mobile v. Louisville & the successor of the Buffalo, Bayou Nashville R. Co., 84 Ala. 115, 4 So. Brazos and Colorado Railway Com- 106, 5 Am. St. Rep. 342. pany, which had received grants of '^ Galveston, Harrisburg & San land under previous legislation to en- Antonio Ry. Co. v. Texas, 170 U. S. courage the construction of railroads 226, 18 Sup. Ct. 603, 42 L. ed. 1017 in that State, was held to involve no (provision in the constitution of infraction of the Federal Constitu- Texas of 1869, that the legislature tion). should not thereafter grant lands to ''' Houston-Texas Central Ry. Co. any person or persons, as enforced v. Texas, 170 U. S. 243, 42 L. ed. against the Galveston, Harrisburg 1023, 18 Sup. Ct. 610. and San Antonio Railway Company, 526 OBLIGATION OF CONTRACTS CONTINUED § 334 charter was stipulated the amount of the tax which the bank should pay, in lieu of all taxes to which said company or the stockholders thereof, on account of stock owned therein would otherwise be subject, and in 1852, the legislature passed an act levying taxes upon the bank to a greater amount and founded upon a different principle, said act was held to be in conflict with the Constitution of the United States, as im- pairing the obligation of a contract, and therefore void. The fact that the people of the State had, in 1851, adopted a new constitution, in which it was declared that taxes should be imposed upon banks in the mode which the act of 1852 pur- ported to carry out, could not, it was decided, release the State from the obligations and duties imposed upon it by the Con- stitution of the United States. ^^ Where the constitution of a State makes each stockholder in a corporation "individually liable for its debts, over and above the stock owned by him," in a further sum at least equal in amount to such stock, and the corporation incurs debts and is then authorized to obtain sub- scriptions for new stock, but does not then obtain them, and the constitution of the State is afterwards amended and de- clares that, "in no case shall any stockholder be individually liable in any amount over or above the amount of stock owned by him," and the corporation then, for the first time, issues the new stock, the holders of such new stock are not personally liable under the first constitution. The amended constitution does not impair the obligation of the contract betw^een the " Dodge V. Woolsey, 18 How. Tennessee, 95 U. S. 679, 090, 24 L. ed. (59 U. S.) 331, 15 L. ed. 401, cited in 558; Erie Ry. Co. v. Penn.sylvania, 21 Grand Lodge, F. & A. Ma.sons, Wall. (88 U. S.) 492, 498, 22 L. ed. Louisiana, v. New Orleans, 166 U. S. 595; Salt Co. v. East Saginaw, 13 143, 146, 41 L. ed. 951, 17 Sup. Ct. Wall. (80 I'. S.) 373, 376, 20 L. ed. 523; Pearsall v. Great Northern Ry. 611; Home of The Friendless v. Co., 161 U. S. 646, 662, 16 Sup. Ct. Rouse, 8 Wall. (75 U. S.) 430, 19 705, 40 L. ed. 838; Shelby County v. L. ed. 495; Von Hoffman v. City of I^nion & P. Bank, 161 U. S. 149, 1.56, Quincy, 4 Wall. (71 U. S.) 535, 554, 40 L. ed. 650, 16 Sup. Ct. 558; 18 L. ed. 403; Wright v. Sill, 2 Black Louisiana v. Jumel, 107 U. S. 711, (67 U. S.), 544, 545, 17 L. ed. 333; 760, 27 L. ed. 44.H, 2 Sup. Ct. 128, Franklin Bank v. Ohio, 1 Black (66 in dissenting opinion; Farrington v. U. S.), 474, 475, 17 L. ed. ISO. 527 § 335 OBLIGATION OF CONTRACTS CONTINUED corporation and its debtor made under the first constitu- tion.-'^^ §335. Obligation of Contracts— Police Powers— Regu- lations. — Legislative power to create corporations implies power to thereafter prescribe reasonable regulations even though the right to repeal or amend the charter is not reserved by the State. ^^ So the exemption of a company from require- ments inconsistent with its charter cannot operate to relieve it from submitting itself to such police regulations as the city may lawfully impose; and until it has complied, or offered to comply, to regulations to which it is bound to conform, it is not in a position to assert that its charter rights are in- vaded because of other regulations, which, though applicable to other companies, it contends will be invalid if applied to it.^* Again, in granting the exclusive franchise to supply gas to a municipality and its inhabitants, a state legislature does not part with the police power and duty of protecting the public health, the public morals and the public safety, as one or the other may be affected by the exercise of that franchise by the grantee.^^ The railroad law of New York of 1850 ^° required the consent of a municipality to the construction of a surface railroad through its streets. Whatever may have been the effect of conditions attached to such consent by the munici- pality it had no powder to contract away or limit the taxing or police powers of the legislature. A consent, however, not- withstanding unauthorized conditions, became effective and '"Ochiltree v. Railroad Co., 21 Department of Public Health of Wall. (88 U. vS.) 249, 22 L. ed. 546. N. Y., 67 N. Y. Supp. 324, 32 Misc. " McGuire v. Chicago, Burlington 377, 70 N. Y. Supp. 510, 61 App. Div. & Quincy Rd. Co., 131 Iowa, 340, 108 106. N. W. 902. See Platte & D. Canal '» Laclede Gas Light Co. v. Mur- & M. Co. V. Dowell, 17 Colo. 376, 30 phy, 170 U. S. 78, 42 L. ed. 955, 18 Pac. 68; Westport, City of, v. Mul- Sup. Ct. 505. hoUand, 159 Mo. 86, 60 S. W. 77; '» New Orleans Gas Co. v. Louisi- Martin v. Remington-Martin Co., 88 ana Light Co., 115 U. S. 650, 29 N. Y. Supp. 573, 95 App. Div. 18; L. ed. 615, 6 Sup. Ct. 252. New York Sanitary Utilization Co. v. *" Laws 1850, chap. 140. 528 OBLIGATION OF CONTRACTS CONTINUED § 336 conferred a valid franchise." The law of New York of 1885 transferred the reserved police power of the State from one set of functionaries to another and required companies intend- ing to operate electrical conductors to submit their plans and specifications to the commissioners of electrical suj^ways, who would determine whether they were in accordance with the terms of the ordinance giving to them the right to enter and dig up the streets of the city; and, being so construed, it vio- lated no contract rights of companies which might grow out of the permission granted by the municipality.^' § 336. Obligation of Contracts — Conditions — Regulations — Reserved Power to Alter, etc. — Laws requiring gas com- panies, water companies, and other corporations of like char- acter to supply their customers at prices fixed by the mu- nicipal authorities of the locality, are within the scope of legislative power unless prohibited by constitutional limitation or valid contract obligation. Where the constitution of a State provided that corporations might be formed under gen- eral laws, and should not be created by special act, except for municipal purposes, and that all laws, general and special, passed pursuant to that provision might be from time to time altered and repealed, and a general law was enacted by the legislature for the formation of corporations for supplying cities, counties and towns with water, which provided that the rates to be charged for water should be fixed by a board of commissioners to be appointed in part by the corporations and in part by municipal authorities ; and the constitution and laws of the State were subsequently changed so as to take away from corporations, which had been organized and put into operation under the old constitution and laws, the power to name members of the boards of commissioners, so as to place in municipal authorities the sole power of fixing rates " City of Rochester v. Rochester '^ New York v. Squire, 145 U. S. Ry. Co., 182 N. Y. 99, case aff'd 17.5, 12 Sup. Ct. 880, 36 L. ed. Rochester Railway Co. v. Rochester, 666. 205 U. S. 230, 27 Sup. Ct. 469. 34 529 § 337 OBLIGATION OF CONTRACTS CONTINUED for water. It was held, that these changes violated no pro- vision of the Constitution of the United States. ^^ If require- ments are exacted or duties imposed by ordinances, which, if enforced, would impair the obligation of a gas and electric light company's contract, nevertheless the company is not thereby relieved from offering to do those things which it is lawfully bound to do.®"* And a license of a street railway com- pany may be revoked because of non-compliance with con- ditions to which the franchise was made subject, especially where such right to revoke is reserved. ^^ And where a statute authorizes any city to grant by resolution or ordinance, under such restrictions as the common council may deem proper, to any person or corporation, the right to erect and maintain, in the streets, alleys and other public places of such city, poles, wires and other necessary appliances for the purpose of supplying electric or other light, the discretion of the com- mon council is not confined to the mere restriction of methods of use, but extends to restriction of time and the statutory authority conferred carries with it an unreserved discretion and the right to impose any terms on the grant not forbidden by law, and a statutory authority to revoke such license may be given to such city and it may be exercised by it.^^ But, contract rights may be given by an act of incorporation to a navigation company, in consideration of the performance of certain conditions, which obligation cannot be impaired by a subsequent attempt to repeal in part such prior statute of in- corporation.*^^ § 337. Obligation of Contracts — Street Paving by Street Railways — Conditions and Regulations. — A subsequent ordi- " Spring Valley Water Works v. Co., 152 111. 171, 26 L. R. A. 681, 38 Schottler, 1 10 U. S. 347, 28 L. ed. N. E. 584. 173, 4 Sup. Ct. 48. °8 Coverdale v. Edwards, 155 Ind. "Laclede Gas Light Co. v. Mur- 374, 58 N. E. 495, 7 Am. Elect. Cas. phy, 170 U. S. 78, 42 L. ed. 955, 18 15. Sup. Ct. 505. " Commissioners' Sinking Fund v. " Belleville v. Citizens' Horse R. Green & Barren River Nav. Co., 79 Ky. 73. 530 OBLIGATION OF CONTRACTS CONTINUED § 337 nance requiring additional paving impairs the obligation of the contract and is not such an exercise of the police power as will be upheld.^* So a city ordinance which contains by- agreement as to its stipulations a contract by the city with a street railway company to pave certain portions of the street cannot be thereafter so altered by the legislature as to impose additional obligations upon the company in the matter of paving, even though the Code of the State reserves to it the power to control the company's rights, privileges and immuni- ties and to withdraw the franchise. ^^ If, however, a power be '8 State ex rel. City of Kansas 186 Mass. 115, 71 N. E. 118; Worces- City V. Corrigan Consol. St. Ry. Co., ter v. Worcester Consol. St. Ry. Co., 85 Mo. 263, 55 Am. Rep. 361. 182 Mass. 49, 64 N. E. 581; Spring- «' Coast-Line R. Co. v. Savannah, field v. Springfield St. Ry. Co., 182 30 Fed. 646. Mass. 41, 64 N. E. 577; Boston v. Examine the following cases as to Union Freight R. Co., 181 Mass. 205, street paving and repairing by street 63 N. E. 412. railroad companies: Michigan: Detroit v. Detroit Ry., Alabama: Montgomery St. Ry. Co. 134 Mich. 11, 11 Det. Leg. N. 86, 99 V. Smith (Ala.), 39 So. 757; Mobile N. W. 411; Detroit v. Detroit United V. Mobile Light & Ry. Co., 141 Ala. Ry., 133 Mich. 608, 10 Det. Leg. N. 442, 38 So. 127. 320, 95 N. W. 736; Lansing v. Lan- Connecticut: Hartford v. Hart- sing City Elec. R. Co., 109 Mich. 123, ford St. liy. Co., 75 Conn. 471, 53 66 N. W. 949, 3 Det. L. News, 41. Atl. 1010; Fair Haven & W. R. Co. Nebraska: Lincoln, City of, v. V. City of New Haven, 75 Conn. 442, Lincoln St. Ry. Co., 67 Neb. 469, 93 53 Atl. 960, aff'd in 203 U. S. 379, 27 N. W. 766, 84 N. W. 802. Sup. Ct. 74, 51 L. ed. 239. New Jersey: Cook v. North Ber- Illinois: Chicago v. Chicago Union gen. Township (N. J.), 59 Atl. 1035 Traction Co., 199 111. 259, 65 N. E. Fielders v. North Jersey St. Ry. Co. 243, 59 L. R. A. 666; Danville St. 68 N. J. L. 434, 54 Atl. 822, 53 Atl Ry. & Light Co. v. Mater, 116 111. 404, rev'g 67 N. J. L. 76, 50 Atl. 533 App. 519. Fielders v. North Jersey St. Ry. Co. Iowa: Marslialltown Light, P. & 68 N. J. L. 343, 53 Atl. 404, 13 Am Ry. Co. V. Manshalltown, 127 Iowa, Ncg. Rep. 156. 637, 10:5 X. W. 1005. New York: People v. Geneva, W. Louisiana: Shrcveport v. Shrevc- S. F. & C. L. Traction Co., 98 N. Y. port Belt Ry. Co., 107 La. 785, 32 Supp. 719, 112 App. Div. 581; New So. 189; State, New Orleans, v. New York City v. Harlem Bridge, M. & Orleans Tract. Co., 48 La. Ann. 567, F. Ry. Co., 91 N. Y. Supp. 557, 100 19 So. 565. App. Div. 257; Mechanicville v. Massachusetts: Dunbar v. Old Stillwater & M. St. Ry. Co., 71 N. Y, Colony St. Ry. (V)., ISS Ma.ss. 180, Supp. 1102, 35 Misc. 513; Bing- 74 N. E. 352; Ilydc v. City of Boston, hamton v, Binghamton Sioux City St. Ry. Co. v. Sioux V. Hestonville, M. & F. Pass. Ry. Co., City, 78 Iowa, 367, 43 N. W. 224, 39 203 Pa. 38, 52 Atl. 184; Reading, N. W. 498. City of, V. United Traction Co., 202 '^ Union St. Rd. Co. v. Snow, 113 Pa. 571, 52 Atl. 106; Reeves v. Mich. 694, 4 Det. L. N. 455, 71 N. W. Philadelphia Traction Co., 152 Pi. 1073. 153, 4 Am. Elec. Cas. 27, 25 Atl. " Sioux City R. Co. v. Sioux City, 516; Philadelphia v. Ridge Ave. Pass. 138 U. S. 98, 34 L. ed. 898, 11 Sup. Ct. Ry. Co., 143 Pa. St. 444, 22 Atl. 695. 226, 9 Ry. & Corp. L. J. 251, 46 Am. 532 OBLIGATION OF CONTRACTS CONTINUED § 338 Again, the act of the legislature of Louisiana^'' authorizing the enforcement by mandamus without a jury of contracts by corporations with municipal corporations in that State wdth reference to the paving, grading, repairing, etc., of streets, highways, bridges, etc., simply gives an additional remedy to the party entitled to the performance, without impairing any substantial right of the other party, and does not impair the obligation of the contract sought to be enforced, and is not in conflict with the Constitution of the United States.''* The statute of Massachusetts of 1898'^ providing for taxation of street railway companies is held not void, as violating the im- pairment of obligation clause of the Federal Constitution, because it relieved a railroad company from the obligation to pave and repair streets under the terms and conditions of cer- tain municipal ordinances which the company had duly ac- cepted.'^ § 338. Same Subject — Exemption from Assessment for Street Paving — Consolidation^' — Although the obligations of a legislative contract granting immunity from the exercise of governmental authority are protected by the Federal Con- stitution from immunity by the State, the contract itself is not property which can be transferred by the owner to another, but is personal to him with whom it is made and incapable of assignment, unless by the same or a subsequent law the State authorizes or directs such transfer; and this applies to a con- tract of exemption with a street railway company from assess- ments for paving between its tracks. A legislative authority to transfer the estate, property, rights, privileges and fran- chises of a corporation to another corporation does not au- thorize the transfer of a legislative contract of immunity from assessment. And where a corporation incorporates under a & Eng. R. Cas. 169, aff'g 78 Iowa, " Laws 1898, chap. 578. 367, 4.3 N. W. 224. " City of Worcester v. Worcester "Act July 12, 1888, No. 133. Con. St. Ry. Co., 196 U. S. 539, 49 '♦ New Orleans, C. & L. R. Co. v. L. cd. 591, 25 Sup. Ct. 327. New Orleans, 157 U. S. 219, 39 L. ed. " See § 20, herein. 679, 15 Sup. Ct. 581. 533 § 338 OBLIGATION OF CONTRACTS CONTINUED general act which creates certain obhgations and regulations, it cannot receive by transfer from another corporation an ex- emption which is inconsistent with its own charter or with the constitution or laws of the State then applicable, even though under legislative authority the exemption is transferred by words which clearly include it. Again, although two corpo- rations may be so united by one of them holding the stock and franchises of the other, that the latter may continue to exist and also to hold an exemption under legislative contract, that is not the case where its stock is exchanged for that of the former and by operation of law it is left without stock, officers, property or franchises, but under such circumstances it is dissolved by operation of the law which brings this condition into existence.^* In the state court in this case the following decision was rendered : the immunity from contribution to the expense of new pavements in the city of Rochester, conferred by chapter 34 of the Laws of 1869 upon the Rochester City and Brighton Railroad Company, a street surface railroad incorporated in 1868 under the Railroad Law of 1850, which, by purchase at foreclosure sale, had acquired the franchises of a prior company organized under the same act, and which had constructed the road, was not a contract right of which the company could not be deprived by subsequent legislation. The fact that the conditions attached to the original consent were modified by the city, they being deemed too onerous for the company, by an ordinance passed prior to the act, which exempted it from the expense of new pavements for five years, and also provided that the fare for children between twelve and five years should be reduced, and that both parties united in submitting it to the legislature which enacted the law in question, except as to the five year limitation, and that after its passage the company extended its lines into other streets, as permitted by the statute, does not render it an irrevocable agreement by the State to exempt the company from such expense as to those streets. The statute did not recite that '8 Rochester Railway Co. v. Roch- Sup. Ct. 469, aff'g 182 N. Y. 99, ester, 205 U. S. 236, 51 L. ed. — , 27 116. 534 OBLIGATION OF CONTRACTS CONTINUED § 339 application was made to the legislature by either party for the adoption of any contract between the city and the com- pany. It did not ratify or assume to ratify any contract. It did not grant a franchise, since that had already been acquired. It did not amend or assume to amend the charter of the com- pany, and if it had, the charter would have been subject to repeal. No acceptance by the railroad company was requisite, and, therefore, the fact that it continued to operate its road and to construct lines in other streets, in alleged reliance upon perpetual exemption as to such streets, cannot be regarded as furnishing a consideration therefor. The statute did give an exemption, but being without a consideration, a mere gratuity or privilege was conferred which was revocable at the pleasure of the legislature. When, therefore, by section 9 of chapter 250 of the Laws of 1884, the provisions of which were re-enacted in the General Railroad Law,^^ the cost of repavement as specified was imposed upon all street surface railroads operat- ing in cities, a contention by the lessee of such railroad com- pany that it did not apply to streets in which the lessor had constructed and operated its lines before its enactment, and that as to these a contract of exemption existed, the obligation of which could not be impaired by subsequent legislation, is untenable. Assuming, however, that the statute constituted a contract, exemptions from taxation or from the exercise of the police power are to be construed strictissimi juris; they are against common right and must be held to be personal and limited to the grantee unless a contrary intention clearly ap- pears. The right to exemption, therefore, did not pass to the lessee, the language being personal and not attached to the property, the statute enacting that ''said company," not "said company, its successors and assigns," shall not be re- quired to bear any part of the expense of repaying the streets.*" § 339. Impairment of Obligation of Contracts — Illus- " L. 1890, chap. 5G5, § 98. Ry. Co. v. Rochester, 205 U. S. 236, ^ City of Rochester v. Rochester 27 Sup. Ct. 469. Ry. Co., 182 N. Y. 99, aff'd Rochester 535 § 339 OBLIGATION OF CONTRACTS CONTINUED trative Decisions — Insurance — Banks — Rate of Interest — Pullman Cars. — Where there is a reserved power in the legis- lature to alter, amend or repeal charters, a law permitting mutual life associations to reincorporate as regular life in- surance companies is not unconstitutional as impairing the obligation of the contracts existing between such associa- tions and their policy holders, or as depriving such policy holders of their property without due process of law. Under the power to alter, amend and repeal charters reserved in the constitution of 1846 of New York, chapter 722 of the Laws of 1901 does not impair the obligation of contracts existing be- tween mutual life associations and their policy holders, nor in this case did the reincorporation of such an association as a regular life insurance company deprive its policy holders of their property without due process of law.^^ The act of the legislature of Kentucky of February 14, 1856, and the act of May 12, 1884, c. 1412, incorporating the Citizens' Savings Bank of Owensboro, and the act of May 17, 1886, commonly known as the Hewitt Act, and other acts referred to, did not create an irrevocable contract on the part of the State, pro- tecting the bank from other taxation, and therefore the tax- ing law of Kentucky of November 11, 1892, c. 108, did not violate the contract clause of the Constitution of the United States.*^ The provision in section 10 of article 1, of the Con- " Polk V. Mutual Reserve Fund privileges, constituted a valid and Life Association of New York, 207 binding contract. Commonwealth U. S. 310; Wright v. Minnesota Life to use of Franklin Co. v. Farmers' Ins. Co., 193 U. S. 657, 48 L. ed. 832, Bank of Kentucky et al., 97 Ken- 24 Sup. Ct. 549. tucky, 590. In a later case the Court " Citizens' Savings Bank of Owens- of Appeals of Kentucky held the law boro V. Owensboro, 173 U. S. 636, 43 not to constitute an inviolable con- L. ed. 840, 19 Sup. Ct. 530. tract. Deposit Bank of Owensboro "The so-called Hewitt law, * * * y, Daviess Co., 102 Kentucky, 174. has given rise to much litigation in When the law was before this court, the courts of Kentucky, as well as in the same conclusion was reached, those of the United States. At one Citizens' Savings Bank of Owensboro time it was held by the Court of Ap- v. Owensboro, 173 U. S. 636, 43 L. peals of Kentucky that its pro- ed. 840, 19 Sup. Ct. 530. It may be visions, when complied with by the now regarded as the settled law that bank seeking to avail itself of its this enactment did not constitute a 536 OBLIGATION OF CONTRACTS CONTINUED § 339 stitution of the United States that ''no State shall 'pass any' law impairing the obligation of contracts," does not forbid a State from legislating, within its discretion, to reduce the rate of interest upon judgments previously obtained in its courts; as the judgment creditor has no contract whatever in that respect with the judgment debtor, and as the former's right to receive, and the latter's obligation to pay exists only as to such an amount of interest as the State chooses to prescribe as a penalty or liquidated damages for the nonpayment of the judgment.*^ The Pullman company, a corporation of the State of Illinois, contracted with the railway companies op- erating lines of interstate railroads in Kansas to furnish them a sufficient number of Pullman cars to meet the demands of the travelling public for that kind of service, to equip such cars for use, to provide conductors and porters for them, and to supply Pullman accommodations to railway passengers holding proper tickets without discrimination between such passengers, reserving the right to charge and collect from passengers demanding the service compensation therefor. Subsequently the legislature enacted a law requiring foreign corporations to comply with certain conditions, including the payment of charter fees for the privilege of transacting inter- state business, to which law the Pullman company refused to submit. It was held, that a judgment ousting it from the franchise of charging and collecting compensation for Pullman accommodations furnished to passengers taken up and set down within the limits of the State did not violate the obli- gation of its contracts with the railway companies.*^ contract between the State and the criticism of the Dartmouth College banks as to taxation, but is subject v. Woodward, 4 Wheat. (17 U. S.) to modification and repeal by subse- 518, 4 L. ed. 629, see Knoup v. Piqua quent laws of the State undertaking Bank, 1 Ohio St. 603, 608, 609, per to tax bank property." Deposit Corwin, J. Bank v. Frankfort, 191 U. S. 499, 48 " Morley v. Lake Shore & M. S. Ry. L. ed. 229, 24 Sup. Ct. 107, per Day, Co., 146 U. S. 162, 36 L. ed. 925, 13 J. Sup. Ct. 47. As to corporations for banking "■* State v. Pullman Co. (Kan., purposes not being a contract and 1907), 90 Pac. 319. 537 § 340 OBLIGATION OF CONTRACTS CONTINUED § 340. Impairment of Obligation of Contracts — Illus- trative Decisions Continued — Tunnel — Ferries — Bridges — Canal. — A municipal ordinance giving permission to a street railroad company to construct a tunnel under a navigable stream, the law of the State providing that railways shall not be constructed so as to interrupt the navigation of any water in the State, docs not amount to a contract under the con- tract clause of the constitution, so that the city could not subsequently require the company to lower the tunnel so as not to interfere with the increased demands of navigation; nor, in the absence of any provision to that effect, would it be construed as containing an implied covenant that the municipality would bear the expense of such alterations re- quired by subsequent ordinances. In a navigable stream the public right is paramount, and the owner of the soil under the bed can only use it so far as consistent with the public right; and a municipality, through which a navigable stream flows, cannot grant a right to obstruct the navigation thereof nor bind itself to permit the continuance of an obstruction; and the rule is not affected by the fact that the person claiming a right to continue such an obstruction is the owner in fee of the bed of the stream.*^ A ferry connecting Wheeling with Wheel- ing Island was licensed at an early day in Virginia. Subse- quently a general law of that State prohibited the courts of the different counties from licensing a ferry within a half a mile in a direct line from an established ferry. In 1847 the defendant purchased the ferry and its rights. It was held (1) that the general law of Virginia had in it nothing in the nature of a contract ; (2) that the transfer of the existing rights from the vendor to the vendee added nothing to them.®* From the year 1681 to 1783, a franchise on the ferry over the Connecticut River belonged to the town of Hartford, situated on the west bank of the river. In 1783, the legislature incor- porated the town of East Hartford, and granted to it one-half '' West Chicago Street Railroad *° Wheeling & Belmont Bridge Co. Co. V. Chicago, 201 U. S. 506, 50 L. v. Wheeling Bridge Co., 138 U. S. ed. 845, 26 Sup. Ct. 518. 287, 11 Sup. Ct. 301, 34 L. ed. 967. 538 OBLIGATION OF CONTRACTS CONTINUED § 340 of the ferry during the pleasure of the General Assembly. In 1808 a company was incorporated to build a bridge across the river, which, being erected, was injured and rebuilt in 1818, when the legislature resolved that the ferry should be discontinued. This act, discontinuing the ferry, was held not inconsistent with that part of the Constitution of the Uni- ted States which forbids the States from passing any law im- pairing the obligation of contracts. It was also decided that there was no contract between the State and the town of East Hartford, by which the latter could claim a permanent right to the ferry. The nature of the subject-matter of the grant, and the character of the parties to it, both show that it is not such a contract as is beyond the interference of the legislature. Besides, the town of East Hartford only held the ferry right during the pleasure of the General Assembly, and in 1818 the latter expressed its pleasure that the ferry should cease. After the year 1818, the legislature passed several acts contradic- tory to each other, alternately restoring and discontinuing the ferry. Those which restored the ferry were declared to be unconstitutional by the state courts, upon the ground that the act of 1818 had been passed to encourage the bridge company to rebuild their bridge, which had been washed away. But these decisions were not properly before the Federal Supreme Court in this case for revision. The town of East Hartford, having no right to exercise the ferry privilege, may have been correctly restrained, by injunction, from doing so, by the state court.*^ But a grant of a ferry franchise by the legislature is held a contract within the meaning of that provision of the Constitution prohibiting the passage of laws impairing the obligation of contracts.^^ An enactment by a State, in incorpo- rating a company to build a toll bridge and take tolls fixed by the act, that it should not be lawful for any person or persons to erect any bridge within two miles either above or below the "East Hartford v. Hartford «« McRoberts v. Washburnc, 10 Bridge Co., 10 How. (51 U. S.) 511, Minn. 23. 13 L. ed. 518, aflf'd 10 How. (51 U. S.) 541, 13 L. cd. 531. 539 § 340 OBLIGATION OF CONTRACTS CONTINUED bridge authorizcxl, was held to be a contract inviolable even though the charter of the company was without limit as to the duration of its existence.^'' The statute of the legislature of New Jersey, passed a. d. 1790, by which that State gave power to certain commissioners to contract with any persons for the building of a bridge over the Hackensack River; and by the same statute enacted that the ''said contract should be valid on the parties contracting as well as on the State of , New Jersey;" and that it should not be "lawful" for any person or persons whatsover to erect " any other bridge over or across the said river for ninety-nine years," — is a contract, w^hose obligation the State can pass no law to impair.''" A rail- way viaduct, if nothing but a structure made so as to lay iron rails thereon, upon which engines and cars may be moved and propelled by steam, not to be connected with the shore on either side of said river except by a piece of timber under each rail, and in such a manner, as near as may be, so as to make it impossible for man or beast to cross said river upon said struc- ture, except in railway cars (the only roadway between said shores and said structure being two or more iron rails, two and a quarter inches wide, four and a half inches high, laid and fastened upon said timber four feet ten inches asunder), is not a "bridge" within the meaning of the said act of New Jersey, of 1790; and the Act of Assembly of that same State, passed A. D. 1860, authorizing a company to build a railway, with the necessary viaduct, over the Hackensack, does not impair the obligation of the contract made by the aforesaid act of 1790.^^ Congress cannot abolish or so limit tolls as to impair vested rights of bondholders of a canal company."- «« Binghamton Bridge, The, 3 " Bridge Proprietors v. Hoboken Wall. (70 U. S.) 51, 18 L. ed. 137, Company, 1 Wall. (68 U. S.) 116, 17 following Dartmouth College v. L. ed. 571, Catron, J., dissenting. Woodward, 4 Wheat. (17 U. S.) 518, "United States v. Louisville & 625, 4 L. ed. 629. Portland Canal Co., 1 Flipp. (U. S. «» Bridge Proprietors v. Hoboken G. C.) 260, Fed. Cas. No. 15,633, 1 Company, 1 Wall. (68 U. S.) 116, 17 Cent. L. J. 101. L. ed. 571. )40 CONDITIONS IMPOSED — GRANT OF FRANCHISE CHAPTER XXI. CONDITIONS IMPOSED — GRANT OF FRANCHISE. 341. Conditions Imposed by Con- gress. 342. Conditions Imposed by Legis- lature. 343. Municipal Powers — Gener- ally. 344. Municipal Control Over Streets— Franchise Rights of Corporations. 345. Same Subject. 346. Implied Conditions — Rail- road Company — City Streets — New Streets and Crossings — Police Power. 347. Conditions — Payment of Ex- penses or Percentage — Ar- bitration — Submission to Electors. 348. Conditions — Acceptance. 349. Same Subject. 350. Same Subject— Implied Ac- ceptance — Presumption — Evidence. 351. Foreign Corporation — Situs of — Interstate Comity. 352. Power of State to Impose Conditions Upon Foreign Corporations. 353. Same Subject — Instances — Certificate — Designation of Corporate Agent, etc. — Service of Process. 354. Same Subject — Instances Continued — Interstate Commerce — Insurance, Railroad and Other Cor- porations. 355. Power of State to Impose Conditions Upon Foreign Corporations — Agreement not to Remove Suit to Federal Court — Waiver of Right. 356. Condition as to License, Privilege, Business or Oc- cupation Charge,^ Rental, Fee or Tax — Interstate Commerce — Equal Pro- tection of Law. 357. Condition as to License, etc., Fee or Tax Continued — Constitutional Law — In- surance Companies — De- cisions. 358. Condition as to License, etc., Fee, or Tax Continued — Interstate Commerce — Ex- press Companies — Deci- sions. 359. Condition as to License, etc., Fee or Tax Continued — Constitutional Law — Rail- roads — Consolidated Rail- roads — Street Railroads — Decisions. 360. Condition as to License, etc., Fee or Tax Continued — Telegraph Companies. 361. Condition as to License, etc., Fee or Tax Continued — Constitutional Law — Gas Franchise — Brewing Com- pany — Packing Houses — Decisions. 362. Imposing New Conditions — Police Power. 363. Conditions Subsequent — Construction of — Perform- ance. 541 § 341 CONDITIONS IMPOSED — § 341. Conditions Imposed by Congress. — In a railroad land grant Congress may impose conditions, such as for the transportation of property or troops of the United States and that the land shall remain and be a public highway for the use of the government, although this does not entitle it to free transportation of such property or troops.^ So conditions for forfeiture of a railroad land grant to aid in construction of the road may be imposed by an act of Congress if the road is not completed within a certain number of years, but such con- dition subsequent can only be enforced by the United States. ^ But where an act of Congress appropriates money to be paid to railroad companies to carry out a scheme of public improve- ments in the District of Columbia and such enactment also re- quires those companies to eliminate grade crossings and erect a union station, and recognizes and provides for the surren- der of existing rights, it is an act appropriating money for governmental purposes, and not for the private use of those companies, and the statutes^ for thus eliminating grade crossings, etc., are not unconstitutional on the ground that they appropriate moneys to be paid railway com- panies for their exclusive use, nor is the property of a tax- payer taken without due process of law by reason of the taxes imposed under such statutes.'' If special conditions are imposed by Congress under a special act of Congress incorpo- rating a railroad company, and such conditions are a prere- quisite to the acceptance of certain benefits, and particular interests are also protected under such grant, if the conditions are accepted and the special interests have determined, the ' Lake Superior & Miss. R. Co. v. July 2, 1864, non-completion of the United States, 93 U. S. 442, 23 L. ed. railroad within the time limited did 965. See Joyce on Electric Law (2d not operate as a forfeiture); United ed.), §§ 31, 37a, 38. States v. Tenn. & C. R. Co., 176 U. = Lake Superior S. C. Iron Co. v. S. 242, 44 L. ed. 452, 20 Sup. Ct.— . Cunningham, 155 U. S. 354, 15 Sup. ^ Acts Cong. Feb. 12, 1901, 31 Stat! Ct. 103, 39 L. ed. 183. Compare 767, 774, and of Feb. 28, 1903, 32 United States v. Northern Pac. R. Stat. 909. Co., 177 U. S. 435, 44 L. ed. 836, 20 * Millard v. Roberts, 202 U. S. 429, Sup. Ct. 706 (where under the act of 50 L. ed. 1090, 26 Sup. Ct. 674. 542 GRANT OF FRANCHISE §§ 342, 343 corporation is not precluded from availing itself of the general railway law.^ § 342. Conditions Imposed by Legislature. — As we have stated substantially elsewhere, the legislature has authority to determine and direct the conditions upon which a corporation organized for a public purpose and enjoying a public franchise shall exercise the right conferred upon it; ^ that is, the State may prescribe upon what conditions the rights and privileges granted by it shall be held and enjoyed/ So it is declared that it has never been doubted that the legislative authority, in making a grant of a corporate franchise, can prescribe such terms and such conditions for its acceptance and for its enjoy- ment as it shall deem best, not inconsistent with constitutional limitations. The manner of enjoying the franchise, its life, its scope, are all subject to legislative control.^ It is also asserted that: "There is no doubt, that among the powers so delegated to the legislature, is the power to grant the franchises of bridges and ferries, and others of a like nature. The power to grant is not limited by any restrictive terms in the Constitution, and it is of course general and unlimited as to the terms, the manner, and the extent of granting franchises. These are matters rest- ing in its sound discretion; and having the right to grant, its grantees have the right to hold, according to the terms of their grant, and to the extent of the exclusive privileges conferred thereby."^ § 343. Municipal Powers — Generally. — Municipal corpora- tions, in the exercise of their duties, are a department of the State; they are in every essential only auxiliaries of the State 5 Unitotl States, Search, v. Choc- " Jersey City Gas Light Co. v. taw, O. & G. R. Co., 3 Okla. 404, 41 United Gas Improvement Co., 46 Pac. 729. Fed. 204, 2G6, per Greene, J., case ' Sec § 96, herein, and cases cited aff'd 58 Fed. 323. at pp. 189, 190. 'Charles River Bridge v. Warren ' Delaware, L. & W. R. Co. v. Cen- Bridge, 11 Pet. (36 U. S.) 420, 644, tral Stock Yard & T. Co., 43 N. J. 645, 9 L. ed. 773, per Story, J., in Eq. 71, 10 Atl. 490. dissenting opinion. 543 § 343 CONDITIONS IMPOSED — for the purposes of local government; they are simply political subdivisions of the State existing by virtue of the exercise of the power of the State through its legislative department ; they may be created, or, having been created, may be destroyed, or their powers may be restricted, enlarged or withdrawn at the will of the legislature, subject only to the fundamental con- dition that the collective and individual rights of the people of the municipality shall not thereby be destroyed.^" These corporations, being created only to aid the state government in the legislation and administration of local affairs, possess only such powers as are expressly granted, or as may be im- plied because essential to carry into effect those which are ex- pressly granted. ^^ If a municipahty is not authorized by its charter or other act of the legislature so to do it has no power " Worcester, City of, v. Worcester rey, 108 U. S. 110, 27 L. ed. 669, Con. St. Ry. Co., 196 U. S. 539, 49 2 Sup. Ct. — . L. ed. 591, 25 Sup. Ct. 327; Atkin v. Alaska: Ketchikan Co. v. Citi- Kansas, 191 U. S. 207, 48 L. ed. 148, zens' Co., 2 Alaska, 120. 24 Sup. Ct. 124. Iowa: Borough v. City of Cher- A municipal corporation, in the okee (Iowa, 1906), 109 N. W. exercise of its duties, is a department 876. of the State. Its powers may be Missouri: Joplin, City of, v. large or small; they may be increased Leckie, 78 Mo. App. 8, 2 Mo. App. or diminished from time to time at Repr. 123. the pleasure of the State, or the South Carolina: Germania Sav. State may itself directly exercise in Bank v. Darlington, 50 S. C. 337, 27 any locality all the powers usually S. C. 846. conferred upon such a corporation. Texas: Waters-Pierce Oil Co. v. Such changes do not alter its funda- McElroy (Tex. Civ. App.), 47 S. W. mental character. Barnes v. Dis- 272. trict of Columbia, 91 U. S. 540, 23 L. Municipal corporations must act ed. 440. within the scope of their powers ex- "The term 'municipality,' when pressly conferred or within such as used in this act, includes a city, are necessary to the exercise thereof, village, town or lighting district, Ogden v. Bear Lake & River Water organized as provided by gen- Works & Irrig. Co., 16 Utah, 440, 41 eral or special act." Public Serv- L. R. A. 305, 52 Pac. 697. ice Commissions Law of N. Y., No corporation, municipal or other- Laws 1907, p. 892, chap. 429, art. wise, possesses any powers, except 1, §2. such as have been granted to it. "United States: Ottawa v. Ca- State v. Mayor, etc., of New York, 3 Duer (N. Y.), 119. 544 GRANT OF FRANCHISE § 343 or authority to enter upon or take the land of a citizen for the purpose of digging or laying a sewer thereon; especially so where no mode is prescribed for the condemnation of such property for public use, for without a grant of such power no municipal corporation can exercise it. To justify such an authority claimed by a city there would have to be a necessity for the taking and the payment of just and adequate com- pensation before taking.^- Again, in the absence of any pro- vision to that effect in the original franchise, the city granting a franchise to a street railway company, cannot on the ex- piration of the franchise, take possession of the rails, poles and operating appliances; they are property belonging to the original owner, and an ordinance granting that property to another company on payment to the owner of a sum to be ad- judicated as its value is void as depriving the owner of its property without due process of law.^^ Municipal corpora- tions, as in case of county boards of police, when authorized by statute to do acts which otherwise they would have no power to do, such as subscribe to a railroad incorporated and be- ginning ui another State and passing through their own State, cannot modify or alter the subscription as authorized by the statute, and a compromise by such board with a railroad com- pany which does so alter or modify the subscription is ac- cordingly void.^"* " Butler V. Mayor, etc., of Thorn- v. Michigan Cent. R. Co., Ill U. S. asville, 74 Ga. 570. 228, 28 L. ed. 410, 4 Sup. Ct. 369; "Cleveland Electric Ry. Co. v. Otoe County v. Baldwin, 111 U. S. Cleveland, 204 U. S. 116, 51 L. ed. 1, 28 L. ed. 331, 4 Sup. Ct. 265; Hoff —,27 Sup. Ct. — . V. Jasper County, 110 U. S. 53, 28 '*Bell V. Railroad Co., 4 Wall. L. ed. 68, 3 Sup. Ct. — ; Lewis v. (71 U. S.) 598, 18 L. ed. 338. Ex- Shreveport, 108 U. S. 282, 27 L. ed. amine Hedges v. Dixon County, 150 728, 2 Sup. Ct. 634; Jarrolt v. Mo- U. S. 182, 191, 37 L. ed. 1044, 14 Sup. bcrly, 103 U. S. 580, 26 L. ed. 492; Ct. 71; Brennan v. German-Amer- Buchanan v. Litchfield, 102 U. S. ican Bank, 144 U. S. 173, 36 L. ed. 278, 26 L. ed. 138; Chicago, City of, 390, 12 Sup. Ct. 559; Doon Town- v. Galpin, 183 111. 399, 55 N. E. 731. ship V. Commins, 142 U. S. 366, 374, Compare Board of Liquidation v. 35 L. ed. 1044, 12 Sup. Ct. 220; Louisville & Nashville R. Co., 109 Litchfield V. Ballou, 114 U. S. 190, U. S. 221, 27 L. ed, 916, 3 Sup. Ct. 29 L. ed. 132, 5 Sup. Ct. 820; Hayes 144. 35 545 § 344 CONDITIONS IMPOSED — § 344. Municipal Control Over Streets— Franchise Rights of Corporations. — Public sidewalks and streets are for use by- all on equal terms for proper purposes, subject to valid regu- lations prescribed by the constituted authorities.^^ Under a Virginia decision, public highways, whether in the country or a city, belong entirely to the public at large, and the supreme control over them is vested in the legislature. The power and authority of a city is contained in its charter and limited thereby and it has no other or different control of its streets than is prescribed in its charter or the general statutes of the State. '^ Under the law of Illinois municipal corporations have a fee simple in, and exclusive control over, the streets, and the municipal authorities may do anything with, or allow any use of, the streets not incompatible with the ends for which streets are established, and it is a legitimate use of a street to allow a street railroad track to be laid down in it.^^ Under a New York decision the authority to use the public streets of a municipality for railroad purposes is a franchise which pro- ceeds from the State and a municipality has no power in re- spect thereto, except such as is expressly given by statute, and then only upon the conditions prescribed.^* In a Maryland ^5 Donovan v. Pennsylvania Co., Supp. 789, 93 App. Div. .310, aff'd 199 U. S. 279, 50 L. ed. 192, 26 Sup. in 179 N. Y. 569, 72 N. E. 1150. Ct. 91. See Scovel V. City of Detroit, "The power of the legislature to 146 Mich. 93, 13 Det. Leg. N. 681, authorize the construction of a street 109 N. W. 20. railroad upon the streets of a city is '° Richmond, City of, v. Smith, plenary except as * * * limited 101 Va. 161, 165, 43 S. E. 345. by the constitution." Adee v. Nas- " Blair v. Chicago, 201 U. S. 400, sau Elec. Rd. Co., 76 N. Y. Supp. 50 L. ed. 801, 26 Sup. Ct. 427. 589, 72 App. Div. 404, 407, per Good- '* Village of Phoenix v. Gannon, rich, P. J., case aff'd in 177 N. Y. 108 N. Y. Supp. 255, 123 App. Div. 548. 93 (case reverses 106 N. Y. Supp. Franchise in streets to railroad 927, 55 Misc. 606, Spring and Robin- company. See the following cases: son, JJ., dissenting), citing and United States: Louisville Trust quoting from Beekman v. Third Ave. Co. v. Cincinnati, 76 Fed. 296, 22 C. R. R. Co., 153 N. Y. 144, 152, 47 N. C. A. 334, 47 U. S. App. 36. E. 277, 278; Potter v. Collis, 156 N. California: Areata & M. R. Co., Y. 16, 30, 50 N. E. 413, 415. See 92 Cal. 639, 28 Pac. 676. Rhinehart v. Redfield, 87 N. Y. Florida: State, Jacksonville, v. 546 GRANT OF FRANCHISE § 345 case it is said that: "The rule must be cons'dered settled, that no person can acquire the right to make especial or exceptional use of the public highway, not common to all the citizens of the State, except by grant from the sovereign power. The right to use the public streets of a city for the purpose of laying gas pipes therein, is a privilege which the State alone can con- fer." ^^ It is declared in a case in Utah that: ''The pubhc streets of a city are dedicated and held in trust for the use of the public, and, * * * jg ^ypU settled b}' the great weight of authority that a city council has no power to grant a fran- chise or a permit to an individual or corporation authorizing such person or corporation to make a permanent use of a public street for exclusively private purposes, to the detriment of the public and damage to private property abutting upon such street," and such council cannot authorize a railroad company to construct a permanent switch track, for the company's sole and exclusive use, from its main line along a street and across a sidewalk to a warehouse of another corporation for the ac- commodation of the business transacted at the warehouse.^" § 345. Same Subject. — It is a proper exercise of the city's authority to permit an electric light company to use the streets for lighting purposes, but the public cannot be deprived of its right to have the streets free from material obstructions to Jacksonville St. R. Co. (Fla.), 10 So. Texas: Texarkana & Ft. S. Ry. 590, 50 Am. & Eng. R. Cas. 179. Co. v. Texas & N. O. R. Co. (Tex. Illinois: Chester, City of, v. Wa- Civ. App.), 67 S. W. 525. bash, C. & W. R. Co., 182 111. 382, 55 Wisconsin: Allen v. Clausen, 114 N. E. 524. Wi.s. 244, 90 N. W. 181. Missouri: Wostport, City of, v. See §§ 48, 132 et seq., 185 et seq., Miilhollaiid, 84 Mo. App. 319. herein. New York: Beekman v. Third "Jersey City Gas Co. v. Dwiglit, Ave. R. Co., 153 N. Y. 144, 47 N. E. 29 N. J. Eq. 242, quoted in Purnell 277, aff'g 14 App. Div. 629, 43 N. Y. v. McLane, 98 Md. 589, 593, 56 Atl. Supp. 1 1 50. 830, per Pearce, J. Pennsylvania: Pliil.ulclphia v. ^"Cereghino v. Oregon Short Lino Empire Pass. R. Co., 177 Pa. :382, Rd. Co., 26 I^tah, 407, 99 Am. St. 35 Atl. 721; McHale v. Easton & B. Rep. 843. Examine Schwedc v. Transit Co., 109 Pa. 416, 37 W. N. C. Hemrieh Bros. Brewing Co. (Wash.), 14, 32 Atl. 461. 69 Pac. 362. 547 § 345 CONDITIONS IMPOSED — their necessary use.^^ Though a city may grant a right of way over a batture it has no power to cut the pubhc off entirely from all communication with a navigable stream, but it can so con- trol and administer the batture as to enable the public to go to and return from the navigable stream, and at the same time so regulate things as to enable the grantee of the right of way to use and enjoy the way gran ted. ^^ Where a public service corporation obtains its grant to construct a steam conduit in a city street, subject to the right of the municipal authorities to place other local improvements in the street, even though the construction thereof should require it to take additional pre- cautions for the protection of its property in the street, or sub- ject to greater expense in the maintenance of its property in changing the location thereof, its rights are not, by reason of its public service nature and its prior license, superior to those acquired by the owner of adjacent property to whom vault permits are gran ted. ^^ But while a city, so authorized by its act of incorporation, has jurisdiction over a turnpike road, constructed within the limits of the city, for the purpose of regulating, grading and paving it; still it has no right to regu- 21 Aurora Electric Light & Power Transit Co., 116 Mo. App. 12, 91 Co. V. McWethy, 104 111. App. 479, S. W. 962; Burnes v. City of St. Jo- aff'd in McWethy v. Aurora Electric seph, 91 Mo. App. 489. Light & Power Co., 202 111. 218, 67 New York: Interborough Rapid N. E. 9. See also, as to last point in Transit Co. v. Gallagher, 90 N. Y, text, the following cases: Supp. 104, 44 Misc. 536. United States: Baltimore v. Bal- Texas: Houston v. Houston timore Trust & Guar. Co., 166 U. S. City St. Rd. Co., 83 Tex. 548, 19 S. 673, 41 L. ed. 1160, 17 Sup. Ct. 696; W. 127, 50 Am. & Eng. R. Cas. Railroad Co. v. Richmond, 96 U. S. 380. 521,24L. ed. 734. Virginia: Richmond, City of, Illinois: People v. Harris, 203 v. Smith (Va.), 43 S. E. 345. 111. 272, 67 N. E. 785. See §§ 48, 132 et seq., 185 et seq., Indiana: Town of Newcastle v. herein. Lake Erie & W. R. Co., 155 Ind. 18, "City of Shreveport v. St. Louis 57 N. E. 516. Southwestern R. Co., 115 La. 885, 40 Iowa: Bennett v. Town of Mt. So. 298. Vernon (Iowa), 100 N. W. 349. " New York Steam Co. v. Foun- Maryland: Brauer v. Baltimore dation Co., 108 N. Y. Supp. 84, 123 Refrigerating Co. (Md.), 58 Atl. 21. App. Div. 254, McLaughlin and Missouri: Morie v. St. Louis Houghton, JJ., dissenting. 548 GRANT OF FRANCHISE § 346 late and grade the street so as to injure the turnpike company or interfere with their chartered rights; for poUce purposes, however, it has authority to make such municipal regulations as it may deem expedient.^"* § 346. Implied Conditions — Railroad Company — City Streets — New Streets and Crossings — Police Power. — Where a railroad has laid its tracks within the limits of a city it is held that it must be deemed to have done so and to have received its franchise subject to the conditions, not expressed but necessarily implied, that new streets of the city might be established, opened and extended from time to time across its tracks and right of way as the public convenience and neces- sity required and under such restrictions as might be pre- scribed by statute. ^^ When a city seeks by condemnation proceedings to open a street across the tracks of a railroad within its corporate limits, it is not bound to obtain and pay for the fee in the land over which the street is opened, leaving untouched the right of the company to cross the street with its tracks, nor is it bound to pay the expenses that will be in- curred by the railroad company in the way of constructing gates, placing flagmen, etc., caused by the opening of the street across its tracks. The railroad company must be held, as a matter of law, to have had in contemplation when its charter was granted, and is also bound to assume all burdens incident to new as well as existing crossings, and is obligated to construct and maintain at its own expense suitable crossings at new streets and highways to the same extent as required by common law at streets and highways when the railroad was constructed. 2*^ It is also decided that the expenses that will be incurred by such company in erecting gates, planking the crossing and maintaining flagmen, in order that its road may '♦State V. City of New Bruns- Ry. Co., 98 Minn. 380, 398, 108 N. wick, 30 N. J. L. 395. W. 2G1. " Chicago, Burlington & Quincy '' State v. St. Paul, Minneapolis R. Co. V. Chicago, lOG U. S. 22G, 41 & Manitoba Ry. Co., 98 Minn. 380, L. cd. 979, 17 Sup. Ct. 581; State v. 398, 108 N. W. 261. St. Paul, Minneapolis & Manitoba 549 § 347 CONDITIONS IMPOSED — be safely operated, if all that should be required, necessarily result from the maintenance of a public highway, under legis- lative sanction. Such expenses must be regarded as incidental to the exercise of the police powers of the State and must be borne by the company.^^ But it is declared that "The au- thorities are not fully agreed upon the question whether the State may, in the exercise of the poHce power, compel a rail- road company without compensation, to construct and main- tain suitable crossings at streets extended over the right of way subsequent to the construction of the railroad. Our examin- ation of the books, however, leads to the conclusion that the great weight of authority sustains the affirmative of that proposition. The right of the State so to act is maintained in the States of Maine, Connecticut, Illinois, New York, Tennes- see, Indiana, Texas, Mississippi, Ohio, Nebraska, New Jersey, Vermont, Wisconsin, and by the Supreme Court of the United States. * * * 7\^ contrary doctrine may be said to be the law in the States of Kansas, Louisiana and Michigan." ^^ § 347. Conditions — Payment of Expenses or Percent- age — Arbitration — Submission to Electors. — Conditions may be imposed requiring a railroad company, to which a right of location in a borough has been granted, to pay certain inci- dental expenses of the ordinance conferring the privilege and also a reasonable sum for counsel fees.^^ A certain percentage of receipts or earnings may also be required to be paid to a municipality for the privilege or franchise right to use the public streets by telephone, street railroad or other corpo- rations.^" And if an electric company accepts a franchise sub- " Chicago, Burlington & Quincy 643, aff'g 62 N. J. L. 450, 45 Atl. R. Co. V. Chicago, 166 U. S. 226, 41 L. 1092. ed. 979, 17 Sup. Ct. 581. ^^ Lancaster, City of, v. Briggs 2« State V. St. Paul, Minneapolis & (Mo., 1906), 96 S. W. 314; California, Manitoba Ry. Co., 98 Minn. 380, 398, City of, v. Bunceton Teleph. Co., 108 N. W. 261, per Brown, J., cit- 112 Mo. App. 722, 87 S. W. 604; ing and considering numerous deci- Carlisle v. Cumberland Valley Elect, sions. Pass. R. Co., 22 Pa. Co. Ct. 221. See ^ State, Hutchinson, v. Belmar Kuhn v. Knight, 101 N. Y. Supp. Borough, 61 N. J. L. 443, 39 Atl. 1, 115 App. Div. 837. 550 GRANT OF FRANCHISE § 348 ject to an agreement for the use of its poles by other corpo- rations upon a consideration of payment therefor, coupled with a condition for arbitration, and, in case of failure to agree, the amount of compensation to be determined by the city elec- trician, such company is obligated thereby .^^ So a street rail- way franchise may be made subject to a condition that efficient provisions for the compulsory arbitration of all disputes con- cerning any matter of employment or wages between the com- pany and its employees shall be embodied in a grant of a fran- chise.^^ And the legislature may require that the grant of a franchise for the use of streets shall depend upon the consent of a majority of the voters at a general or special election.^^ And a city may reserve a right to purchase the privileges, property or works of a corporation upon conditions or at the termination of a certain period of time.^'* § 348. Conditions — Acceptance. — It requires the accept- ance of the charter to create a corporate body, for the govern- ment cannot compel persons to become an incorporated body without their consent ; *^ and such acceptance is necessary to bind the stockholders.^^ But in case of a grant by a city or Percentage, how graduated. Pay- Consumers' Gas Trust Co., 144 Fed. ment by railroad company to State 640; Stein v. McGrath, 128 Ala. 175, has reference to time of completion 30 So. 792. Examine Blair v. City of certain number of miles of own of Chicago, 201 U. S. 400, 50 L. ed. line. State V. Northern Pac. R. Co., 801, 26 Sup. Ct. 427. 36 Minn. 207, 30 N. W. 663. '^ Franklin Bridge Co. v. Young 31 Montgomery Light & Water Wood, 14 Ga. 80,86, per Lumpkin, J.; Co. V. Citizens' Light, Heat & Power Chicago Teleph. Co. v. Northwestern Co. (Ala., 1906), 40 So. 981. See Teleph. Co., 199 111. 324, 65 N. E. 329, Kuhn V. Knight, 101 N. Y. Supp. 1, 8 Am. Elec. Cas. 81, aff'g 100 111. 115 App. Div. 837. App. 57; Quinlan v. Houston & T. C. 32 Wood V. City of Seattle, 23 R. Co., 89 Tex. 356, 34 S. 738. Wash 1,62 Pac. 135,52 L. R. A. 369. ^^ Maine: Lincoln & Kennebec 33 Hanson v. Wm. A. Hunter Bank v. Richardson, 1 Greenlf. Electric Light Co. (Iowa), 48 N. W. (1 Me.) 81, 10 Am. Dec. 34. 1005, 34 Am. & Eng. Corp. Cas. 83, Massachusetts: Ellis v. Marshall, 10 Ry. & Corp. L. J. 103. Question 2 Mass. 269, 3 Am. Dec. 49. also whethi.T city ordinance was Kentucky: Atkinson v. Tennill, within the statute. 14 Ky. L. Rep. 922. 34 See Indianapolis, City of, v. Maryland: State v. Baltimore & 551 § 348 CONDITIONS IMPOSED — town to a corporation to use its streets the company need not be necessarily incorporated and fully organized when the or- dinance is originally presented for passage as it may become chartered at a later date and accept the ordinance at the time of its passage, and being then accepted and acted upon it be- comes a contract between the city and the corporation.^^ As was said by the court in an early case in Georgia this acceptance or "consent, either express or implied, is generally subsequent in point of time to the creation of the charter. And yet, no charter, that we are aware of, has been adjudged invalid, be- cause the law creating it and previously defining its powers, rights, capacities and liabilities, did not take effect until the acceptance of the corporate body, or at least a majority of them, was signified." ^* If a city grants a franchise to a corpo- ration for a term authorized by law, and the conditions thereof are accepted, the same constitutes a contract between the par- ties, the violation of which is the subject of litigation in an ordinary proceeding. ^^ And where, by the terms of a resolution of a township board, a franchise is to be absolutely void unless the company accepts the same, such acceptance of the resolu- tion constitutes an irrevocable franchise.'**^ Conditions prec- edent must be strictly complied with before there can be an acceptance; or, in other words, acceptance must be strictly in conformity with conditions precedent.^^ So an acceptance of a condition obligates the grantee to perform it, as in the case of the maintenance of a passageway in connection with a bridge franchise. ^^ Where a corporation accepts the benefits of a franchise, with knowledge of its termination, it cannot com- Ohio R. Co., 12 Gill & J. (Md.) 399, Wood, 14 Ga. 80, 86, per Lump- 38 Am. Dec. 319. kin, J. New York: Thomas v. Dakin, '' Cedar Rapids Water Co. v. City 20 Wend. (N. Y.) 9. of Cedar Rapids, 118 Iowa, 234, 91 "Chicago Teleph. Co. v. North- N. W. 1031. western Teleph. Co., 199 111. 324, 65 ^» Hamtramck, Township of, v. N. E. 329, 8 Am. Elec. Cas. 81; Rapid Ry. Co. (Mich.), 81 N. W. 337. Clarksburg Electric Light Co. v. City *^ Lyons v. Orange, A. & M. R. Co., of Clarksburg, 47 W. Va. 739, 35 S. 32 Md. 98. See also Atkinson v. E. 994, .50 L. R. A. 147. Tennill, 14 Ky. L. Rep. 922. 38 Franklin Bridge Co. v. Young *^ Boston v. Crowley, 38 Fed. 602. 552 GRANT OF FRANCHISE § 349 plain, when the grantor insists that the termination of the franchise be observed, that such termination may affect the value of its property .^^ § 349. Same Subject. — A modification of an exemption in a charter should be accepted to be effectual; ^^ but a consent to an ordinance modifying certain provisions may make a subsequent acceptance unnecessary/^ If additional powers are conferred, to take effect from the passage of a statute granting them they should be duly accepted and conditions necessary to give the statute effect should be complied with.^^ Grants of new franchises should be accepted to be operative/' But, although, in case of a statute authorizing consolidation of certain companies, there has been no acceptance in the form or manner required, still a corporation cannot for that reason be held a trespasser on public lands under a land grant .^ If a county subscription is granted on terms and conditions and it is accepted; such acceptance is burdened with such terms and conditions and the company will be estopped from asserting that they are unreasonable or void/^ Nor can a street railroad company accept a franchise and thereafter set up formalities as to the publication of the ordinance in order to relieve itself of its obligations/" A charter created by special act, but not accepted before a new constitution prohibiting creation of corporations by special act, confers no rights as against the prohibition/^ Again, where a city attempts by ordinance to « Cedar Rapids Water Co. v. City *^ State v. New Orleans, C. & L. R. of Cedar Rapids, 118 Iowa, 234, 91 N. Co., 104 La. 685, 29 So. 312. W. 1031. "West Virginia & P. R. Co. v. "Stevens County v. St. Paul, M. Harrison County Court (W. Va.), & M. R. Co., 36 Minn. 407, 31 N. W. 34 S. E. 786. See also Topping Avc- 942. nuc, In re, 187 Mo. 146, 86 S. W. 190. *^ City R. Co. V. Citizens' St. R. ^^ Hattersley v. Village of Water- Co., 166 U. S. 557, 41 L. ed. 1114, 17 ville, 26 Ohio Cir. Ct. R. 226. Sup. Ct. 653. ^' State v. Dawson, 16 Ind. 40; <6 Hartford & C. W. R. Co. v. Gillespie v. Fort Wayne & S. R. Co., Wagner, 73 Conn. 506, 48 Atl. 218. 17 Ind. 443. Compare Atlanta, City « Lyons v. Orange, A. & M. R. of, v. Gate City Gaslight Co., 71 Ga. Co., 32 Md. 98. 106. 553 § 350 CONDITIONS IMPOSED — confer upon a corporation a right which it has no power to grant, the acceptance and use by the corporation of the privi- leges attempted to be conferred will not constitute a color of right which the city may not deny in an ordinary action; nor will the acceptance by the corporation of such privileges so illegally granted constitute a waiver by the city of its rights.^^ Corporations may by an express or implied acceptance of cura- tive statutes become de jure corporations possessed of all the powers granted under their charters. ^^ Formal acceptance may not be necessary under an offer, by statute, to any person to organize a railroad company under the authority of named commissioners ; there must, however, in such case be an organi- zation. °^ § 350. Same Subject — Implied Acceptance — Presumption — Evidence. — Where express acceptance is not required it may be implied from acts showing the intent to accept, as in case of organizing and exercising the franchise, ^^ or corporate rights, development of the corporate property, election annu- ally of directors, issuing stock, etc.,^® and, generally, accept- ance may be evidenced by acts of the stockholders or officers. ^^ While formal acceptance need not appear from the records of "Cedar Rapids Water Co. v. City New York; Williams v. Bank, 7 of Cedar Rapids, 118 Iowa, 234, 91 Wend. (N. Y.) 540. N. W. 1031. North Carolina: Benbow v. Cook, " Brown v. Atlanta Ry. & Power 115 N. C. 324, 22 S. E. 453, 44 Am. Co., 113 Ga. 462, 39 S. E. 71. St. Rep. 454. **Quinlan v. Houston & T. C. C. Texas: Quinlan v. Houston & T. R. Co., 89 Tex. 356, 34 S. W. 738. C. R. Co., 89 Tex. 356, 34 S. W. " Logan V. McAllister, 2 Del. Ch. 758. 176; Middlesex Husbandmen v. Vermont: Scarsburgh Turnpike Davis, 3 Mete. (44 Mass.) 133. Co. v. Cutler, 6 Vt. 315. ^° Glymont Improv. & Excursion Wisconsin: Heath v. Silverthom Co., 80 Md. 278, 30 Atl. 651. Lead Min. & Smelting Co., 39 Wis. "Connecticut: Danbury & Nor- 146. walk R. Co. V. Wilson, 22 Conn. 435. See United States Bank v. Dan- Indiana: State V. Dawson, 22 bridge, 12 Wheat. (25 U. S.) 64, 6 L. Ind. 272. ed. 552. Massachusetts: Blandford Third Acceptance when presumed. See School Dist. V. Gibbs, 2 Cush. (56 Attorney Genl. v. Chicago & North- Mass.) 39. western Rd. Co., 35 Wis. 425. 554 GRANT OF FRANCHISE § 350 the corporation,^® still where a corporation is organized under a general law providing for signing, acknowledging and record- ing a certificate the acceptance is proved by the recording thereof.^^ But an agreement by a street railway company to hold a city harmless from damages occasioned from non- compliance with the terms of an ordinance requiring vigilance from conductors and motormen and the stopping of cars quickly to avoid injury to pedestrians does not evidence an acceptance of the terms and conditions of such ordinance, as the city would not be responsible for the company's neglect to comply with the ordinance. ^° 'Nor is a toll road franchise between certain points accepted by entering upon and into the possession of a highway between such points which the taxpayers have con- structed.^^ In an early case in Alabama the court says: "It is pressed upon the court, that to constitute a corporation, under said acts, it was necessary that the identical persons named in said acts, or a majority of them, should have accepted the provisions of said acts; opened books for subscription to the capital stock of said companies; obtained the subscriptions of stock required and organized, by electing directors and a president, as required by said acts. But, we hold that these acts, by their own vigor, made the persons named in each a body politic and corporate. After naming the persons, each act declares that they, ' and such others as may hereafter be- come associated with them for that purpose and their succes- sors, arc hereby declared and created a body politic and corpo- rate.' They therefore become corporations immediately on the passage of said acts; but to exercise the privileges, it was necessary for them to organize by obtaining stock, etc., and electing a board of directors and a president. These acts are altogether unlike acts that authorize persons to become a cor- poration, liy doing certain things; in such cases, the things to be done are conditions that must be complied with before they "Trott V. Warren, 2 Fairf. (11 "o Murphy v. Lindell Ry. Co. Me.) 227. (Mo.), .04 S. W. 442. "Glymont Improv. & Excursion "'Welsh v. Plumas County, 94 Co. V. Toller, 80 Md. 278, 30 Atl. 651. Cal. 308, 29 Pac. 720. 555 § 351 CONDITIONS IMPOSED — can become a body corporate. As a general proposition, it is true that the charter of a corporation must be accepted, but in cases of private corporations, Uke these under consideration, created for individual benefit, the presumption is, that they are created at the instance and on the request of the parties to be benefited thereby, and, consequently, are accepted by them. If, therefore, they are found exercising the privileges granted it will be almost conclusive evidence of the fact of acceptance. This view disposes of the fifth and sixth charges asked by the defendant and denied by the court." ®^ § 351. Foreign Corporation — Situs of — Interstate Comity. — A corporation can have no legal existence out of the sov- ereignty by which it is created, as it exists only in contempla- tion of law, and by force of the law, and when that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, ^^ and cannot migrate to another sovereignty; but although it must live and have its being in that State only, yet it does not follow that its existence there will not be recognized in other places; and its residence in one State creates no insuperable objection to its power of contracting in another. The corpo- ration must show that the law of its creation gave it authority to make such contracts ; yet as in the case of a natural person, it is not necessary that it should actually exist in the sover- eignty in which the contract is made; it is sufficient, that its existence as an artificial person, in the State of its creation, is acknowledged and recognized by the State or Nation where the dealing takes place, and that it is permitted by the laws of that place to exercise the powers with which it is endowed. Every power, however, which a corporation exercises in an- other State, depends for its validity upon the laws of the sov- ereignty in which it is exercised; a corporation can make no valid contract, without the sanction, express or implied, of «2 Talladega Ins. Co. v. Landers, 1 Black (66 U. S.), 286, 17 L. ed. 130; 43 Ala. 115, 136, per Peck, C. J. Runyan v. Coster, 14 Pet. (39 U. S.) " Ohio & Miss. Rd. Co. v. Wheeler. 122, 10 L. ed. 382. 556 GRANT OF FRANCHISE § 352 such sovereignty unless a case should be presented in which the right claimed by the corporation appears to be secured by the Constitution of the United States. ^^ By the general comity, however, which, in the absence of positive direction to the contrary, obtains through the States and Territories of the United States, corporations created in one State or Territory are permitted to carry on lawful business in another, and to acquire, hold, and transfer property there equally as indi- viduals.^^ If foreign corporations have, as a matter of comity, been permitted to enter a State, or a Territory which after- wards becomes a State, without restriction, they have no vested right to remain there unlicensed, and must secure an express exemption, or exemption by imphcation equally clear with ex- press words, or they will be subject to all subsequent regu- lations which the State may see fit to adopt in the exercise of its poHce power.^^ § 352. Power of State to Impose Conditions Upon Foreign Corporations. — Since a corporation created by one State can transact business in another State only with the consent of the latter, such latter State may accompany its consent with such conditions as it thinks proper to impose, provided that they are not repugnant to the Constitution and laws of the United States, or inconsistent either with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or those principles of natural justice which forbid condemnation without opportunity for defense .^^ These limitations upon the power of the State to ** Runyan v. Coster, 14 Pet. (39 U. Co., 191 U. S. 288, 24 Sup. Ct. 74, 48 S.) 122, 10 L. ed. 382. See also L. ed. 188; Waters-Pierce Oil Co. v. Christian Union v. Yount, 101 U. S. Texas, 177 U. S. 28, 20 Sup. Ct. 518, 3.52, 25 L. ed. 888; State v. Topeka 44 L. ed. 657; New York v. Roberts, Water Co., 61 Kan. 547, 60 Pac. 171 U. S. 658, 43 L. ed. 345, 19 Sup. 337. Ct. 235; Horn Silver Min. Co. v. "Cowell V. Springs Co., 100 U. S. New York, 143 U. S. 305, 36 L. ed. 55, 25 L. ed. 547. 164, 12 Sup. Ct. 403, 11 Ry. & Corp. "State V. Western Union Teleg. L. J. 182; Doyle v. Continental Co. (Kan., 1907), 90 Pac. 299. Ins. Co., 94 U. S. 535, 24 L. ed. 148; " Cable V. United States Life Ins. State, Hadley, v. Standard Oil Co,, 557 § 352 CONDITIONS IMPOSED — impose conditions also prohibit an interference with interstate or foreign commerce or other governmental functions of the Federal government.^® But it is held that the only limitation upon the power of a State to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the Federal government, or where its busi- ness is strictly commerce, interstate or foreign.^^ The State may, however, within the above limitations, not only prescribe the terms and conditions upon which foreign corporations may enter its limits, but may also prohibit them from doing business therein.™ Again, the provisions in the Fourteenth Amend- ment to the Federal Constitution, that no State shall deny to any person within its jurisdiction the equal protection of the laws, do not prohibit a State from requiring, for the admission within its limits of a corporation of another State, such con- ditions as it chooses.'^ But while a State may impose these terms there should not be an unjust discrimination against 194 Mo. 124, 91 S. W. 1062. See «' New York v. Roberts, 171 U. S. § 13, herein. 658, 19 Sup. Ct. 235, 43 L. ed. 345; If a corporation does business in State, Hadley, v. Standard Oil Co., a State it must do so subject to such 194 Mo. 124, 91 S. W. 1062. vahd regulations as the State may "* Pembina, C. S. M. & M. Co. v. adopt, and it may adopt such pohcy Pennsylvania, 125 U. S. 181, 8 Sup. as it thinks best, provided it does Ct. 737, 31 L. ed. 650. not in so doing come into conflict '" Swing v. Western Lumber Co., with the Federal Constitution, and, 205 U. S. 275, 51 L. ed. — , 27 Sup. if constitutional, the legislative will Ct. — , aff'g 140 Mich. 344; Security must be respected even though the Mutual Life Ins. Co. v. Prewitt, Ins. courts be of opinion that the statute Comr., 202 U. S. 246, 50 L. ed. 1013, is unwise. Whitfield v. ^tna Life 26 Sup. Ct. 619; Waters-Pierce Oil Ins. Co. of Hartford, 205 U. S. 489, Co. v. Texas, 177 U. S. 28, 20 Sup. applied to an insurance company. Ct. 518, 44 L. ed. 657, aff'g 19 Tex. It is well settled that a State has Civ. App. 1, 44 S. W. 936; Doyle v. the power to impose such conditions Continental Ins. Co., 94 U. S. 535, as it pleases upon foreign corpora- 24 L. ed. 148. tions seeking to do business within it. "Pembina, C. S. M. & M. Co. v. Waters-Pierce Oil Co. v. Texas, 177 U. Pennsylvania, 125 U. S. 181, 31 L. S. 28, 44 L. ed. 657, 20 Sup.Ct. 518, ed. 650, 8 Sup. Ct. 737. afT'g 19 Tex. Civ. App, 1, 44 S.W. 936. 558 GRANT OF FRANCHISE § 353 foreign corporations ; ^^ and the validity of the contracts of such a corporation, made with its citizens, must be governed by hke rules with those which apply to the same contracts be- tween domestic corporations and the citizens of such State 7^ And foreign corporations who have accepted or compHed with the prescribed conditions under the statutes are within the same rules as apply to domestic corporations under other sec- tions of the code relating to the occupancy of the public roads by telephone companies.'"* §353. Same Subject — Instances — Certificate — Designa- tion of Corporate Agent, etc. — Service of Process. — For- eign corporations may, as conditions to doing business in a State, be required to file certificates; '^ instruments designating an agent and place of business ; '^ stipulations for the service " Mutual Fire Ins. Co. v. Ham- Federal courts sitting in the State of mond (Ky.), 51 S. W. 151. Arkansas, brought by a citizen of the " Security Savings & Loan Assoc. State of its origin. St. Louis & S. F. V. Elbert (Ind., 1899), 54 N. E. 753. Ry. Co. v. James, 161 U. S. 545, 40 '< State V. City of Red Lodge, 30 L. ed. 802, 16 Sup. Ct. 621, cited in Mont. 388, 76 Pac. 758. Louisville, N. A. & C. Ry. Co. v. "Goodwin v. Colorado Mortgage Louisville Trust Co., 174 U. S. 552, Co., 110 U. S. 1, 28 L. ed. 47; Key- 576, 43 L. ed. 1081, 19 Sup. Ct. — ; stone Driller Co. v. Superior Court, St. Joseph & Grand Island Rd. Co. 138 Cal. 738, 72 Pac. 198. v. Steele, 167 U. S. 659, 664, 42 L. Railroad corporation — Filing cer- ed. 315, 17 Sup. Ct. 925; Louisville tificate — Citizenship — Jurisdiction. Trust Co. v. Louisville, N. A. & C. R. The provision in the Arkansas stat- Co., 75 Fed. 440. utes of March 13, 1889, that a rail- " Chattanooga Nat. B. & L. road corporation of another State Assn. v. Denson, 189 U. S. 408, 47 L. which had leased or purchased a rail- ed. 870, 23 Sup. Ct. 630. In this case road in Arkansas and filed with the it appeared that the highest court Secretary of State of that State, as of Alabama had decided that under provided by the act, a certified the constitutional and statutory pro- copy of the articles of incorpora- visions of that State any act in the tion, should become a corporation of exercise of its corporate functions Arkansas, does not avail to create was forbidden to a foreign corpora- an Arkansas corporation out of a tion which had not complied with foreign corporation complying with the constitution and statute in regard those provisions in such a sense as to to filing an instrument designating make it a citizen of Arkansas within agent and place of business, and that the meaning of the Federal Consti- contracts resulting from such acts tution, and subject it to a suit in the were illegal and could not be enforced 559 § 353 CONDITIONS IMPOSED — of process ; '^ and to comply with a condition that service of process upon the agent of such corporation shall be considered as service upon the corporation itself; and, it is held, that when the company sends its agent into the State it must be pre- sumed to have assented to the condition/* But it is pertinent in this connection to state that foreign corporations can be served with process in a State only when doing business therein, and such service must be upon an agent who represents the corporation in such business 7^ And while in case of diverse citizenship a suit may be brought in the Circuit Court for the district of the residence of either party, there must be service within the district; and if the defendant is a non-resident corpo- ration, service can only be made upon it if it is doing business in that district in such a manner, and to such an extent, as to warrant the inference that it is present there through its agent; and a railroad company which has no tracks within the district is not doing business therein in the sense that liabiUty in the courts. It was held that this the business shall be carried on in the applied to a building and loan asso- State of Colorado shall be at Denver, ciation of Tennessee making a loan in the county of Arapahoe, in said in Tennessee secured by certain State, and that the general manager shares of its own stock and also by of said corporation, residing at the mortgage on certain real estate in said principal place of business, is Alabama, and that although the the agent upon whom process may association had complied with cer- be served in all suits that may be tain provisions of the law, the fact commenced against said corpora- that it had not designated an agent tion," is a sufficient compliance with as required by the constitution and the requirements of the constitution statutes was a bar to the foreclosure and laws of Colorado in that respect, of the mortgage in the courts of Goodwin v. Colorado Mortgage Co., Alabama, cited in National Mut. B. 110 U. S. 1, 28 L. ed. 47. & L. Assn. V. Brahan, 193 U. S. 635, " St. Louis, I. M. & S. Ry. Co. v. 650, 48 L. ed. 823, 24 Sup. Ct. 532. Commercial Union Ins. Co., 139 U. What is sufficient compliance as to S. 223, 35 L. ed. 154, 11 Sup. Ct. 554. certificate. A certificate signed and '* Lafayette Ins. Co. v. French, acknowledged by the president and 18 How. (59 U. S.) 404, 15 L. ed. secretary of a foreign corporation, 451. and filed with the Secretary of State " Peterson v. Chicago, Rock Island and in the office of the recorder of & Pacific Ry. Co., 205 U. S. 364, 51 deeds for the county in which it is L. ed. 841, 27 Sup. Ct. 513. See next proposed to carry on business, stat- following citation of this case under ing that, "the principal place where this section. 560 GRANT OF FRANCHISE § 354 for service is incurred because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic.**^ Nor is a railroad company doing busi- ness in a State simply because another railroad company, of which it owns practically the entire capital stock, does do busi- ness therein, nor is the latter company or its officers and em- ployees agents of the former company for the purpose of service of process even though such agents may at times also represent that company as to business done in other States. There is no partnership liability under such circumstances by which the company owning or controlling the capital stock of the other can be brought into court to respond for a tort by serving the latter company with process .^^ § 354. Same Subject — Instances Continued — Interstate Commerce — Insurance, Railroad and Other Corporations. — If a corporation of one State enters into a contract with a citizen of another State concerning a transaction which is interstate commerce, such act does not constitute a carrying on of business in the State where the contract work is to be completed so as to necessitate the performance by the foreign corporation of con- ditions precedent, such as registering its charter before doing business in the State.*' But that section of the penal code of CaUfomia *^ which makes it a misdemeanor for a person in that "' Green v. Chicago, Burlington & agents served with process in that Quincy Ry. Co., 205 U. S. 530, 51 L. State duly authorized as such and ed.916,27Sup.Ct. 594,afT'gl47Fed. competent to be thus served? The 767. See next following note herein, point as to partnership as noted in *' Peterson v. Chicago, Rock Island the text was also decided. Sayles, & Pac. Ry. Co., 205 U. S. 364, 51 L. Civ. Stat., art. 1194, § 25, and art. ed. 841, 27 Sup. Ct. 513. Neither in 1223, also the act of March 13, 1905, this case nor in the Green case cited Gen. Laws Tex., 1905, p. 30, §§ 2, 5, under the last preceding note, was were the statutes considered. In the the question of the right to impose Green case the question was whether conditions before the court. In the the service upon the agent was suffi- Pcterson case the question of juris- cient, as set forth in the above text, diction rested upon fact, divided into *^ Davis v. Rankin Bldg. & Mfg. two propositions viz.: 1. Was the rail- Co. v. Caiglo (Tenn. Ch. App., 1899), road company doing business in the 53 S. W. 240. State of Texas? 2. Were the alleged "' § 439. 36 561 § 354 CONDITIONS IMPOSED — State to procure insurance for a resident in the State from an insurance company not incorporated under its laws and whicli had not filed the bond required by the laws of the State relative to insurance, is not a regulation of commerce, and does not con- flict with the Constitution of the United States, when enforced against the agent of a New York firm in California who. through his principals, procured for a resident in California applying for it there, marine insurance on an ocean steamer, from an in- surance company incorporated under the laws of Massachusetts, and which had not filed the bond required by the laws of Cali- fornia.*'^ The State may require that life insurance companies shall pay losses within a certain time, and the requirement may be validly applied to foreign corporations under the legislative power to prescribe conditions upon w^hich such foreign com- panies may transact business wthin the State .^'^ Where a state Supreme Court held that a foreign mutual insurance company, which had not been authorized to carry on business in such State as provided by its statutes, could not maintain a suit to collect assessments due on a policy issued by one of its agents in another State on request of an insurance broker of the State rendering the decision, who was unable to place the whole line in his own authorized companies, it was held that such State could prohibit foreign insurance companies from doing business within its limits or allow them to carr}'" on business under such conditions as it might choose to prescribe; and that the state court. having decided, as above stated, no Federal question was involved, and a request to find that the state statute could not prevent the insured from going without the State and obtaining insurance on property within the State did not raise a Federal question where the fact was otherwise; and the writ of error was dismissed.*^ If a state statute requires insurance com- ^* Hooper v. California, 155 U. S. Louisiana, 165 U. S. 578, 583, 17 G48, 39 L. ed. 297, 15 Sup. Ct. 207, Sup. Ct. 427, 41 L. ed. 832; Noble v. cited in Waters-Pierce Oil Co. v. Mitchell, 164 U. S. 367, 370, 17 Sup. Texas, 177 U. S. 28, 46, 44 L. ed. 657, Ct. 110, 41 L. ed. 472. 20 Sup. Ct. 518; Hopkins v. United '^ Merchants' Life Assoc, of U. S. v. States, 171 U. S. 578, 602, 19 Sup. Yoakum (C. C. A.), 98 Fed. 251. Ct. 40, 43 L. ed. 290; Allgeyer v. «« Swing v. Weston Lumber Co., 562 GRANT OF FRANCHISE § 355 panies to make full and specified returns to the proper state officers of their business condition, habilities, losses, premiums, taxes, dividends, expenses, etc., such enactment is an exercise of the police power of the State, and may be enforced against a company organized under a special charter from the state legislature, which does not in terms require it to make such re- turn, without thereby depriving it of any of its rights under the Federal Constitution.^^ Foreign railroad corporations may be required by statute to become resident corporations as a con- dition to the operation of a part of its road within a State, and such requirement does not deny the equal protection of the laws.** A foreign railroad, insurance or other corporation can- not be unjustly discriminated against as to the right of appeal, as where a certain per cent damages are by statute to be added to money judgments against corporations created in other States whether the appeal be affirmed or dismissed.*^ § 355. Power of State to Impose Conditions Upon For- eign Corporations — Agreement not to Remove Suit to Federal Court— Waiver of Right.— A statute is repugnant to the Federal Constitution and the laws in pursuance thereof and is illegal and void where it provides: ''That any fire insur- ance company, association, or partnership, incorporated by or organized under the laws of any other State of the United States, desiring to transact any such business as aforesaid by any agent or agents, in this State, shall first appoint an at- torney in this State on whom process of law can be served, con- taining an agreement that such company will not remove the 205 U. S. 27.5, 51 L. ed. — , 27 Sup. "'Commonwealth v. Mobile & O. Ct. — , aff'g 140 Mich. 344, citing R. Co., 23 Ky. L. Rep. 784, G4 S. W. Chicago, Indianapolis & Louisville 451, 54 L. R. A. 916. Ry. Co. V. McGuire, 196 U. S. 128, "» Mutual Fire Ins. Co. v. Ilam- 132, 49 L. ed. 413, 25 Sup. Ct. 200; mond (Ky.), 51 S. W. 151. See also Allen V. Allegheny County, 196 U. S. Blake v. McClung, 172 U. S. 239, 43 458, 49 L. ed. 551, 25 Sup. Ct. 311, L. ed. 486, 19 Sup. Ct. 226. Examine to last point. §§ 299, 300, herein. " Eagle Ins. Co. v. Ohio, 153 U. S. 446, 38 L. ed. 773, 14 Sup. Ct. — . 563 § 355 CONDITIONS IMPOSED — suit for trial into the United States Circuit Court, or Federal courts, and file in the office of the Secretary of State a written instrument, duly signed and sealed, certifying such appoint- ment, which shall continue until another attorney be sub- stituted." The agreement filed by the insurance company in pursuance of such enactment derives no support from a statute thus unconstitutional and is as void as it would be had the statute not been passed. The statute obstructs the absolute right, which the Constitution of the United States secures to citizens of another State than that in which the suit is brought, to remove their cases into the Federal court under the pro- visions of the Judiciary Act.^" The doctrine of this case was reaffirmed under a decision holding that an agreement to ab- stain in all cases from resorting to the Federal courts was void as against public policy, and a statute requiring such an agree- ment was unconstitutional; but this same case also holds that as the State has the right to exclude a foreign corporation, the means by which she causes such exclusion or the motives of her action are not the subject of judicial inquiry. Thus, where a state legislature enacted that if any foreign insurance com- pany transferred a suit brought against it from the state courts to the Federal courts, the Secretary of State should revoke and cancel its license to do business within the State, it was held that an injunction to restrain him from so doing, because such a transfer was made, could not be sustained; that the suggestion that the intent of the legislature was to accomplish an illegal purpose, by preventing a resort to the Federal court, was not accurate, therefore, the company must forego such resort or cease its business in the State .^^ This decision is, however, "o Insurance Co. v. Morse, 20 Wall. Ohio Rd. Co., 151 U. S. 673, 684, 14 (87 U. S.) 445, 22 L. ed. 365, cited Sup. Ct. 533, 38 L. ed. 311; Southern in Blake v. McClung, 172 U. S. 239, Pacific Co. v. Denton, 146 U. S. 202, 256, 43 L. ed. 432, 19 Sup. Ct. 165; 207, 13 Sup. Ct. 44, 36 L. ed. 942; Barrow Steamship Co. v. Kane, 170 United States Life Ins. Co. v. Cable, U. S. 100, 111, 42 L. ed. 964, 18 Sup. 98 Fed. 767; Reimers v. Seatco Mfg. Ct. 526; Goldey v. Morning News, Co., 70 Fed. 575. 156 U. S. 518, 523, 15 Sup. Ct. 559, »' Doyle v. Continental Ins. Co., 94 39 L. ed. 517; Martin v. Baltimore & U. S. 535, 24 L. ed. 14& 564 GRANT OF FRANCHISE § 3o6 explained in another case in the same court, whicli also ap- proves the doctrine of the principal case.^^ But under a still later decision it is held that since a State has power to prevent a foreign corporation from doing business at all within its borders, unless such prohibition is so conditioned as to violate the Federal Constitution, a state statute which, without re- quiring a foreign insurance company to enter into any agree- ment not to remove into the Federal courts cases commenced against it in the state court, provides that if the company does so remove such a case its license to do business within the State shall thereupon be revoked, is not unconstitutional.*^^ § 356. Condition as to License, Privilege, Business or Oc- cupation Charge, Rental, Fee or Tax — Interstate Commerce — Equal Protection of Law. — Various names have been given to the charges imposed upon the franchise right of corpo- rations to carry on their business within a State. Some of the cases variously hold that such charges are a license, not a li- cense, a rental, a tax, not a tax, taxes for the privilege of exer- cising corporate franchises, a privilege tax, occupation tax, taxes on corporate franchises, tax on business, or merely a charge on business; other decisions avoid a discussion as to the nature or character of the charges imposed, but sustain the en- actment or ordinance. By whatever name called, however, the vahdity of such legislative act of the State or a municipality is as a rule sustained in favor of the municipality or State, and the exceptions to the rule will be found to rest upon some spe- cial conditions or facts in the case, or upon the fact that the license, privilege, business or occupation tax, rental, or license fee is so excessive as to be prohibitive or grossly unjust or un- reasonable .''^ So it must be regarded as finally settled in the Federal Supreme Court by frequent decisions that, subject to "Barron v. Bumside, 121 U. S. S. 535 (above cited), followed, and 186, 7 Sup. Ct. 931 , 30 L. ed. 915. held not to be overruled by Barron v. " Security Mutual Life Ins. Co. v. Burnside, 121 U. S. 186 (above Prewitt, Ins. Commr. , 202 U. S. 246, cited), or by any other decision. 50 L. ed. 1013, 26 Sup. Ct. 619; »* See Joyce on Electric Law (2d Doyle v. Continental Ins. Co., 94 U. ed.), §§ 97-113a, 186b, 937-939. 565 § 353 CONDITIONS IMPOSED — certain limitations as respects interstate or foreign commerce, a State may, under the rule which permits it to impose con- ditions upon foreign corporations desiring to carry on business within its limits, make the grant or privilege dependent upon the payment of a specific license tax, or a sum proportioned to the amount of its capital used within the State .^^ And while a State may not impose a tax which is in any way a burden upon interstate commerce, it may impose a privilege tax upon corporations engaged in interstate commerce for carrying on that part of their business which is wholly within the taxing State and which tax does not affect their interstate business or their right to carry it on in that State ; ^^ nor does the exac- tion of a license fee deny the equal protection of the laws to a foreign corporation.^^ The legislature may also impose a privi- lege tax upon foreign or domestic corporations.^* So a license fee or tax may be exacted as a franchise tax from domestic corporations transacting foreign business .^^ While, however, a corporation may be engaged in interstate commerce, a dis- tinction is made between taxation of its property and taxation of interstate commerce ; ^ but an annual license fee, or a tax in the nature of a hcense fee, is not a tax on property, and such a tax is not unconstitutional. ^ And in determining the amount "5 New York v. Roberts, 171 U. S. Borough of New Hope, 187 U. S. 419, 658, 43 L. ed. 345, 19 Sup. Ct. 235. 47 L. ed. 240, 23 Sup. Ct. 204 (cited °' Allen V. Pullman's Palace Car in Atlantic & Pacific Teleg. Co. v. Co., 191 U. S. 171, 48 L. ed. 134, 24 Philadelphia, 190 U. S. 160, 164, 47 L. Sup. Ct. 39. ed. 995, 23 Sup. Ct. 817, which is cited °' State V. Hammond Packing Co. in Pabst Brewing Co. v. Crenshaw, (La.),34Pac. 368. 198 U. S. 17, 37, 49 L. ed. 925, 25 *' Clarkesdale Ins. Agency v. Cole, Sup. Ct. 552 in dissenting opinion; 87 Miss. 637, 40 So. 228. Postal Telegraph Cable Co. v. Tay- «« Honduras Commercial Co. v. lor, 192 U. S, 64, 69, 70, 24 Sup. Ct. State Bd. of Assessors (N. J. Sup.), 23 208, 48 L. ed. 342; Postal Telegraph Atl. 668. Cable Co. v. New Hope, 192 U. S. ' Indianapolis & V. R. Co. v. 55, 60, 63, 24 Sup. Ct. 204, 48 L. ed. Backus, 133 Ind. 609, 33 N. E. 443; 338); St. Louis v. Western Union Cleveland, C. C. & St. L. Ry. Co. v. Teleg. Co., 148 U. S. 92, 37 L. ed. 380, Backus, 133 Ind. 513. See citations 13 Sup. Ct. 485, 4 Am. Elec. Cas. 102 under next following note herein. [s. c. 149 U. S. 465, 37 L. ed. 810, 13 2 Western Union Teleg. Co. v. Sup. Ct. 990, 4 Am. Elec. Cas. 115; 566 GRANT OF FRANCHISE § 357 of a license fee or tax such amount should not be based upon the corporate stock. ^ In a Kansas case it is held that the act of the legislature of 1898, commonly known as the " Bush Act, "•* requiring foreign corporations to comply with certain condi- tions, including the payment of charter fees computed upon the amount of their authorized capital stock for the privilege of exercising their franchises within the State, was enacted pri- marily to protect the people of the State from imposition, de- ception, fraud, and wrong arising from the abuse of corporate privileges and the mismanagement of corporate affairs, and is a measure which the State had authority to adopt under the police power reserved to it. It is also held that it was the in- tention of the legislature that the law should apply to foreign corporations transacting business in the State at the time such enactment took effect. It is further decided that the "require- ment of that law that a charter fee be paid fixes one of the con- ditions precedent to the granting of permission to a foreign corporation to transact its business within the State: that it levies no tax upon property or franchises, is not an attempt to extend the taxing power of the State to subjects outside of its jurisdiction, and does not affect the character of the enactment as a police regulation, although some revenue may be produced therefrom.^ § 357. Condition as to License, etc., Fee or Tax Con- tinued — Constitutional Law — Insurance Companies — De- cisions.® — In a case where a foreign joint-stock association was held to be a corporation it was held that such corporation 8. c. (C. C), 63 Fed. G8, 5 Am. Elcc. Telcg. Co., 40 La. Ann. 41, 3 So. 533, Cas. 43]; North Jersey St. Ry. Co. v. 2 Am. Elcc. Cas. 122, 8 Am. St. Rep. Jersey City (N. J., 1906), 63 Atl. 833. 502. See Newport Ilium. Co. v. Tax As- ' Knickerbocker Importation Co. sessors, Newport, 19 R. I. 632, 36 v. State Board of Assessors (N. J., Atl. 426, 36 L. R. A. 266, 6 Am. 1905), 62 Atl. 266. Elec. Cas. 659, 666, 667,- per Tilling- ^ Laws 1898, p. 27, chap. 10. hast, J.; Postal Telegraph Cable Co. ^ State v. Western Union Telcg. V. City of Norfolk, 101 Va. 125, 43 Co. (Kan., 1907), 90 Pac. 299. S. E. 207. Examine New Orleans, « See § 87, herein. City of, V. Great Southern Teleph. & 567 I 357 CONDITIONS IMPOSED — might be taxed in another State than that of its incorporation for the privilege or right of conducting its corporate business within the latter State.' Such imposition of taxes as a con- dition precedent to transacting business in a State is not within a constitutional prohibition against the passage of local or special laws for the collection of taxes; and although, in re- quiring the tax as such condition, the statute discriminates against foreign corporations, by exacting higher taxes from them than from domestic corporations, it is not unconstitu- tional as granting to any citizen or class of citizens privileges which, upon the same terms, shall not be open to all.^ Where an insurance company conformed to the requirements of the act of the legislature of Georgia, and received from the comp- troller general a certificate authorizing it to transact business in that State for one year from January 1, 1874, such act does not, expressly or by imphcation, limit or restrain the exercise of the taxing power of the State, or of any municipality; and where an ordinance of the city council of Augusta, passed January 5, 1874, imposed from that date an annual hcense tax ''on each and every fire, marine, or accident insurance com- pany located, having an office or doing business within' that city, it was held, that the ordinance was not in violation of that clause of the Constitution of the United States which declares " that no State shall pass any law impairing the obligation of contracts." ^ In another case a State by certain statutes authorized the state officers to grant to foreign insurance com- panies, upon complying with certain terms, a hcense to transact its business within the State, and then, by other statutes in- corporating cities, made it obligatory on such foreign com- panies transacting business within those cities to pay them a pro rata on all their premiums, and, declaring it unlawful in the companies to otherwise do business in them, authorized ' Liverpool Ins. Co. v. Massachu- ^ Scottish Union & National Ins. setts, 10 Wall. (77 U. S.) 566, 19 L. Co. of Edinburg v. Harriott (Iowa), ed. 1029, aff'g Oliver v. Liverpool & 80 N. W. 665. London Life & Fire Ins. Co., 100 " Home Ins. Co. v. Augusta, 93 U. Mass. 531. S. 116, 23 L. ed. 825. 568 GEANT OF FRANCHISE § 357 such cities to sue and recover it for the use of the city, the court followed a prior decision holding that the statutory require- ment was not unconstitutional. 1° A Pennsylvania fire insurance corporation began doing business in New York in 1872, and continued it afterwards till 1882, receiving from year to year certificates of authority from the proper officer, under a statute of New York passed in 1883. A statute of New York ^^ pro- vided that whenever the laws of any other State should require from a New York fire insurance company a greater license fee than the laws of New York should then require from the fire insurance companies of such other State, all such companies of such other State should pay in New York a license fee equal to that imposed by such other State on New York companies. In 1873, Pennsylvania passed a law requiring from every in- surance company of another State, as a prerequisite to a certifi- cate of authority, a yearly tax of three per cent on the premiums received by it in Pennsylvania during the preceding year. In 1882, the insurance officer of New York required the Pennsyl- vania corporation to pay, as a license fee, a tax of three per cent on the premiums received by it in New York in 1881. In a suit against such corporation, in a court of New York, to re- cover such tax, it was set up as a defense, that the tax was unlawful, because the corporation was a "person" within the "jurisdiction" of New York and "the equal protection of the laws " had been denied to it, in violation of a clause in the Four- teenth Amendment to the Constitution of the United States. On a writ of error to review the judgment of the highest court of New York, overruling such defense, it was held, that such clause had no application, because, the defendant being a for- eign corporation, was not within the jurisdiction of New York, until admitted by the State on compliance with the condi- tion of admission imposed, namely, the payment of the tax required as a license fee; and that the business carried on by '» Ducat V. Chicago, 10 Wall. (77 U. " Chap. 694, Laws N. Y. 1865, as S.) 410, 19 L. ed. 972, following am 'd by chap. 60, Laws 1875. Paul V. Virginia, 8 Wall. (75 U. S.) 168, 19 L. ed. 357. 569 § 358 CONDITIONS IMPOSED — the corporation in New York was not a transaction of com- merce. ^^ § 358. Condition as to License, etc., Fee or Tax Con- tinued — Interstate Commerce — Express Companies — De- cisions.^^ — The license tax imposed upon express companies doing business in Florida by the statute of that State/^ as con- strued by the Supreme Court of that State, applies solely to business of the company within the States, and does not apply to or affect its business which is interstate in its character; and, being so construed, the statute does not, in any manner, violate the Federal Constitution.^^ In another case the State of Georgia chartered a company to transact a general forward- ing and express business. The company had a business office at Mobile, in Alabama,, and there did an express business which extended within and beyond the limits of Alabama; or, rather, there made contracts for transportation of that sort. An ordi- nance of the city of Mobile was then in force requiring that every express company or railroad company doing business in that city, and having a business extending beyond the limits of the State, should pay an annual license of $500, which should he deemed a first-grade license; that every express or railroad company doing business within the limits of the State should take out a license called a second-grade license, and pay therefor $100; and that every such company doing business within the city should take out a third-grade license, paying therefor $50. And it subjected any person or incorporated company who should violate any of its provisions to a fine not exceeding $50 for each day of such violation. It was held that the ordinance, in requiring payment for a license to transact in Mobile a busi- ness extending beyond the limits of the State of Alabama, was not repugnant to the provision of the Constitution, vesting in '^ Philadelphia Fire Association v. "" Osborne v. Florida, 164 U. S. New York, 119 U. S. 110, 30 L. ed. 650, 41 L. ed. 586, 17 Sup. Ct. 214. 342, 7 Sup. Ct. 108. Examine Adams Express Co. v. '^ See § 79, herein. Ohio, 166 U. S. 185, 41 L. ed. 965, 17 ^* Sec. 9 of act approved June 2, Sup. Ct. 604, 165 U. S. 194, 41 L. ed 1893, chap. 4115. 683, 17 Sup. Ct. 305. 570 GRAXT OF FRANCHISE § 359 the Congress of the United States the power "to regulate com- merce among the several States." ^^ But it is also decided that the requirement that agents of foreign express companies shall obtain a license as a condition precedent to doing business in a State, or, in case of failure so to do, be subject to a fine, is unconstitutional in so far as it constitutes an interference with interstate commerce.^'' § 359. Condition as to License, etc., Fee or Tax Con- tinued — Constitutional Law — Railroads — Consolidated Railroads — Street Railroads — Decisions.'* — Foreign corpora- tions running freight cars from places within to places out- side of a State may be taxed. '^ In a Federal case it appeared that a company incorporated by the Pennsylvania statute of 1864, was authorized to construct a railroad on certain streets of Philadelphia, subject to the ordinances of the city regulating the running of passenger railway cars. The charter required, among other things, that the ''company shall also pay such license for each car run by said company as is now paid by other passenger railway companies" in said city. That Hcense was $30 for each car. An ordinance passed in 1867 increased the license charge to $50, and in 1868, by a general statute, the legislature provided that the passenger railway corporations of Philadelphia should pay annually to the city $50 as required by their charters for each car intended to run on their roads during the year, and that the city should have no power to regulate such corporations unless authorized by the laws of the " Osborne v. Mobile, 16 Wall. (8.3 " Crutcher v. Kentucky, 141 U. S. U. S.) 479, 21 L. ed. 470. Exam- 47, 11 Sup. Ct. 851, 35 L. ed. 649, ine Postal Telegraph Cable Co. v. rcv'g 89 Ky. 6, 12 S. W. 141. Charleston, 153 U. S. 692, 38 L. ed. '« See §§97-107, 111, 112, herein. 871, 14 Sup. Ct. 1094. Compare "Fargo v. Auditor General, 57 Fargo V. Hart, 193 U. S. 490, 48 L. Mich. .598, 24 N. W. 538. Examine ed. 761, 24 Sup. Ct. 498; Western Fargo v. Hart, 193 U. S. 490, 48 L. Union Teleg. Co. v. Alabama, 132 ed. 761, 24 Sup. Ct. 498; Maine v. U. S. 472, 10 Sup. Ct. 161, .33 L. ed. Grand Trunk Ry. Co., 142 U. S. 217, 409; Leloup v. Port of Mobile, 127 li Sup. Ct. 121, 35 L. ed. 994. U. S. 640, 644, 647, .32 L. ed. 311, 8 Sup. Ct. 1380. 571 § 359 CONDITIONS IMPOSED — State expressly in terms relating to those corporations. The company paid the increased charge until 1875. On its refusing to pay it thereafter a suit was brought. It was held that the charter did not amount to a contract that the company should never be required to pay a license fee greater than that re- quired of such companies at the date when the company was incorporated; and in their widest sense, the words employed in the charter meant that the company should not then be re- quired by the city to pay any greater charge as license than that paid by other companies possessing the same privilege. Quare, without further legislation, could a greater sum have been exacted from the company? Semble that even if the charter were sufficient to import a contract, the legislature, under the constitutional provision then in force touching the alteration, revocation, or annulment of any charter in such manner that no injustice be done to the corporators, had ample power to pass the act raising the license fee from $30 to $50."" If a railroad is a link in a through line of road by which passen- gers and freight are carried into a State from other States and from that State to other States, it is engaged in the business of interstate commerce ; and a tax imposed by such State upon the corporation owning such road for the privilege of keeping an office in the State, for the use of its officers, stockholders, agents and employees, it being a corporation created by another State, is a tax upon commerce among the States, and as such is repugnant to the Constitution of the United States. ^^ So an agency of a line of railroad between Chicago and New York, established in San Francisco for the purpose of inducing pas- sengers going from San Francisco to New York to take that line at Chicago, but not engaged in selling tickets for the route, or receiving or paying out money on account of it, is an agency engaged in interstate commerce; and a license tax imposed upon the agent for the privilege of doing business in San Fran- cisco is a tax upon interstate commerce, and is unconstitu- '" Railway Company v. Philadel- sylvania, 136 U. S. 114, 34 L. ed. phia, 101 U. S. 528, 25 L. ed. 912. 394, 10 Sup. Ct. 958. =" Norfolk & W. R. R. Co. v. Penn- 572 GRANT OF FRANCHISE § 359 tional.^^ If several railroad corporations each existing under the laws of separate States consolidate into one corporation, a statute of one of the States, imposing a charge upon the new consolidated company of a percentage on its entire authorized stock as the fee to the State for the filing of the articles of con- solidation in the office of Secretary of State, without which fifing it could not possess the powers, immunities and privileges which pertain to a corporation in that State, is not a tax on in- terstate commerce, or the right to carry on the same, or the instruments thereof; and its enforcement involves no attempt on the part of the State to extend its taxing power beyond its territorial limits. ^^ In case a statute so authorizes a city may impose a mileage tax as a condition to the privilege granted a street railway to use city streets.^'* An ordinance of a city, imposing, pursuant to a statute of the State, a license tax, for the business of running any horse or steam railroad for the transportation of passengers, does not impair the obligation of a contract, made before the passage of a statute, by which the city sold to a railroad company for a large price the right of way and franchise for twenty-five years to run a railroad "McCall V. California, 136 U. S. Pennsylvania, 136 U. S. 114, 118, 34 104, 34 L. ed. 391, 10 Sup. Ct. 881. L. ed. 394, 10 Sup. Ct. 958. Distinguished in Hopkins v. United " Ashley v. Ryan, 153 U. S. 436, States, 171 U. S. 578, 600, 43 L. ed. 14 Sup. Ct. 865, 38 L. ed. 773. 290, 19 Sup. Ct. 40. Cited in Adams ^4 Chicago General R. Co. v. Chi- Express Co. v. Ohio, 165 U. S. 194, cago, 176 111. 253, 52 N. E. 880, 66 235, 41 L. ed. 683, 17 Sup. Ct. 235 L. R. A. 959, 68 Am. St. Rep. 188. (in dissenting opinion); Hooper v. Examine further as to right to im- Califomia, 155 U. S. 648, 6.53, 15 pose license or privilege fee or tax Sup. Ct. 207, 39 L. ed. 297; Brennan upon street railway companies the V. Titusville, 153 U. S. 289, 305, 14 following cases: Byrne v. Chicago Sup. Ct. 829, 38 L. ed. 719; Ficklen G. R. Co., 169 111. 75, 48 N. E. 703, 7 V. Shelby County, 145 U. S. 1, 22 Am. & Eng. Corp. Cas. (N. S.) 768, (also at p. 27 in dissenting opinion), Aff'g 63 111. App. 438; Cape May, 12 Sup. Ct. 810, 36 L. ed. 801; Pa- City of, v. Cape May Transp. Co. cific Express Co. v. Seibert, 142 U. (N. J. Sup.), 44 Atl. 948; McKeesport S. 3.39, 349, 35 L. ed. 1035, 12 Sup. v. McKeesport & R. Pass. Co., 2 Pa. Ct. 250; Crutcher v. Kentucky, 141 Super. Ct. 242; Newport News & O. U. S. 47, 58, 1 1 Sup. Ct. 851 , 35 L. ed. P. Ry. & Electric Co. v. City of New- 649 (this case reverses 89 Ky. 6, 12 port News (Va.), 4 Va. Sup. Ct. Rep. S. W. 141); Norfolk & W. R. R. Co. v. 31, 40 S. E. 645. 573 § 360 CONDITIONS IMPOSED — over certain streets and according to certain regulations, and the company agreed to pay to the city annually a real estate tax, and the city bound itself not to grant during the same period, a right of way to any other railroad company over the same streets.^^ § 360. Condition as to License, etc., Fee or Tax Con- tinued — Telegraph Companies. — In a case in the Federal Su- preme Court it appeared that the Western Union Telegraph Company established an office in the city of Mobile, Alabama, and was required to pay a hcense tax under a city ordinance, which imposed an annual license tax of $225, on all telegraph companies, and the agent of the company was fined for the non- payment of this tax; in an action to recover the fine, he pleaded the charter and nature of occupation of the company, and its acceptance of the act of Congress of July 24, 1866, and the fact that its business consisted in transmitting messages to all parts of the United States, as well as in Alabama : it was held a good defense. It was also decided that 1. A general license tax on a telegraph company affects its entire business, interstate as well as domestic or internal, and is unconstitutional. The property of a telegraph company, situated within a State, may be taxed by the State as all other property is taxed; but its business of an interstate character cannot be thus taxed. 2. Where a telegraph company is doing the business of transmit- ting messages between different States, and has accepted and is acting under the telegraph law passed by Congress July 24, 1866, no State within which it sees fit to establish an office can impose upon it a license tax, or require it to take out a license for the transaction of such business. 3. Telegraphic com- munications are commerce, as well as in the nature of postal service, and if carried on between different States, they are in- terstate commerce, and within the power of regulation con- ferred upon Congress, free from the control of the state regu- lations, except such as are strictly of a police character; and 36 L. ed. 121, 12 Sup. Ct. 25 New Orleans City & L. R. R. 192, Co. V. New Orleans, 143 U. S. 406. 574 GRANT OF FRANCHISE § 361 any state regulations by way of tax on the occupation or busi- ness, or requiring a license to transact such business, are un- constitutional and void.^® In another case in the same court it is determined that a municipal charge for the use of the streets of the municipality by a telegraph company, erecting its poles therein, is not a privilege or license tax; and that a telegraph company has no right, under the act of July 24, 1865, c. 230, 14 Stat. 221, to occupy the public streets of a city with- out compensation. Whether such tax is reasonable is a ques- tion for the court.'' And where telegraph companies, engaged in interstate commerce, carry on their business so as to justify pohce supervision, the municipaUty is not obhged to furnish such supervision for nothing, but it may, in addition to ordinary property taxation, subject the corporation to reasonable charges for the expense thereof. The reasonableness of such charges will depend upon all the circumstances involved in the par- ticular case, and, if in a case tried before a jury the evidence in regard thereto is not such as to exclude every conclusion ex- cept one, the question of reasonableness should be submitted to the jury.^* The city of St. Louis is authorized by the con- stitution and laws of Missouri, to impose upon a telegraph com- pany putting its poles in the streets of the city, a charge in the nature of rental for the exclusive use of the parts so used.^^ §361. Condition as to License, etc., Fee or Tax Con- tinued — Constitutional Law — Gas Franchise — Brewing Company — Packing Houses — Decisions. — A legislative grant " Leloup V. Port of Mobile, 127 U. Union Teleg. Co. v. City of Fremont, S. 640, 32 L. ed. 311, 8 Sup. Ct. 1380, 43 Neb. 499, 61 N. W. 724, 26 L. 11. aff'd in Asher v. Texas, 128 U. S. A. 706, aff'g 39 Neb. 692, 58 N. W. 129, 32 L. ed. 368, 9 Sup. Ct. 1. 41.5; Philadelphia, City of, v. Postal " St. Louis V. Western Union Telegraph Cable Co., 21 N. Y. Supp. Teleg. Co., 148 U. S. 92, 37 L. ed. 556, 67 Hun, 21,66 Hun, 633; Kit- 380, 13 Sup. Ct. 485. tanning Electric Light, H. & P. Co. '"Atlantic and Pacific Telegraph v. Kittanning, 11 Pa. Super. Ct. 31; Co. V. Philadelphia, 190 U. S. 160, Western Union Teleg. Co. v. Harris 47L. ed. 995,23Sup. Ct. 817. (Tcnn. Ch. App.), 52 S. W. 748; " St. Louis V. Western Union Teleg. Joyce on Electric Law (2d ed.), Co., 149 U. S. 465, 37 L. ed. 810, 13 §§ 97-11.3a. Sup. Ct. 990. Examine Western 575 § 382 CONDITIONS IMPOSED — of a privilege to erect, establish and construct gas works, and make and vend gas in a municipality for a term of years does not exempt the grantees from the imposition of a license tax for the use of the privilege conferred. ^° And a brewing com- pany may be liable to a corporation privilege tax notwithstand- ing it is liable for a brewer's Hcense tax.^^ Nor was the Four- teenth Amendment to the Constitution of the United States intended to prevent a State from adjusting its system of tax- ation in all proper and reasonable ways, or through its un- doubted power to impose different taxes upon different trades and professions ; and imposing a license tax upon meat packing houses is not an arbitrary and unreasonable classification in- validating the tax as denying the equal protection of the law; nor is it such a denial because the tax is not imposed on persons not doing a meat packing house business but selling products thereof, or because it is not imposed on persons engaged in packing articles of food other than meat.^^ § 362. Imposing New Conditions — Police Power. — Where the grant of a franchise to an electric railway company author- izes its construction, subject to the consent of certain city councils and of the judges of certain county courts and of coun- ties, with the power delegated to such bodies to subsequently impose conditions and limitations concerning the exercise of the privileges conferred, the company will be bound by subse- quent conditions to the same extent as if they had been origi- nally a part of the grant. ^^ And where a city grants consent to the use of its streets by a telephone company and reserves the right to regulate the manner of occupation, there is included in such reservation the power to compel the adoption of such reasonable and accepted improvements as may tend to increase the public safety or convenience, or which will decrease the 5» Memphis Gas Co. v. Shelby 200 U. S. 226, 26 Sup. Ct. 232, 50 L. County, 109 U. S. 398, 27 L. ed. 976, ed. 451. 3 Sup. Ct. 205. " Richmond, R. & E. Co. v, 31 Spira V. State (Ala., 1906), 41 So; Brown, 97 Va. 26, 32 S. E. 775, 1 Va. 465. S. C. Rep. 213. 3' Armour Packing Co. v. Lacy, 576 GRANT OF FRANCHISE § 333 obstruction to the city streets incident to the telephone corpo- ration's use thereof; but the city cannot, after acceptance of the franchise and the erection of works, ordinarily impose new con- ditions.^^ So where the sole authority of a municipality is by the proper exercise of its poHce power, inherent in it, to protect the public from unnecessary obstructions, inconveniences, and dangers, and to determine where and in what manner a tele- phone company may erect its poles and stretch its wires so as to accomplish that result it cannot impose other or new con- ditions.^^ §363. Conditions Subsequent — Construction of— Per- formance. — Conditions subsequent which work a forfeiture are to be construed liberally, but still the grantee is bound to a substantial performance. If the estate has once vested, it is sufficient if the substance of the condition be performed, and if the condition subsequent be impossible to be performed, or performance be prevented by the act of God, the grantee is excused. ^^ Where the consent of a city is one of the conditions precedent upon which the State grants a franchise for the use of the streets of a municipality to a railroad company and' such consent is obtained, the city cannot impose a condition subse- ciuent which will bind the company to the extent of forfeiting its right in case of non-compliance therewith .^^ '* Commercial Bell Teleph. Co. v. ^o gt,ate v. Real Estate Bank, 5 Wanvick, 18.5 Pa. 623, 40 Atl. 93. Pike (.5 Ark.), 59,5, 41 Am. Dec. As to use of safety appliances and 509. improvements, -see Joyce on Electric " Galveston & W. R. Co. v. Gal- Law (2d ed.), §§ 460, 476, 477. veston, 91 Tex. 17, 39 S. W. 920, 35 Michigan Teleph. Co. v. City of 36 L. R. A. 44, 90 Tex. 398, 39 S. W. Benton Harbor, 121 Mich. 512, 80 96, 36 L. R. A. 33, 7 Am. & Eng. N. W. 386, 7 Am. Elec. Cas. 9, 14, R. Cas. (N. S.) 72, which reverses 73 per Grant, C. J. S. W. 27. 37 577 § 364 REGULATION AND CONTROL CHAPTER XXII. REGULATION AND CONTROL. < 364. Regulation and Control — General Statement. 365. Regulation and Control — Generally. 366. Regulation and Control — Po- lice Power — Generally. 367. Foreign and Interstate Com- merce Defined — Power to Regulate. 368. Same Subject. 369. Regulation of Commerce — State Control of Business Within Jurisdiction. 370. Regulation of Commerce- Transportation of Persons or Property — Generally. 371. Regulation of Commerce — Transportation of Railroad Cars — Transportation Over River — Distinction as to Ferries — Police Power. 372. Regulation of Commerce — Transportation of Cattle — - Inspection Law — Police Power. 373. Same Subject. , 374. Regulation of Commerce — Transportation of Natural Gas. 375. Regulation of Commerce — Stopping Interstate Trains. 376. Regulation of Commerce — Telegraph Messages — Po- lice Power. 377. Regulation of Commerce — Examination and License of Locomotive Engineers — Color Blindness — Due Proc- ess of Law. § 378. Regulation of Commerce — Tracing Lost Freight. 379. Regulation and Control — Re- quiring Governmental Con- sent. 380. Same Subject. 381. Regulation of Railroads — Delegation to Commission- ers — Constitutional Law — Discrimination — Generally. 382. Regulation of Railroads — Protection Against Injury to Persons and Property. 383. Regulation of Railroads — Providing Stations or Wait- ing Rooms — Police Power. 384. Regulation of Railroads — Sunday Trains — Interstate Commerce — Police Power. 385. Regulation of Railroads — Safety Appliances and De- vices — Heating Cars. 386. Regulation of Railroads — General Decisions — Extra Trains for Connections — Removal of Tracks — Keep- ing Open Ticket Offices — Limitation of Liability — Adjusting Damage Claims — Separate Cars. 387. Regulation of Street Railroad Companies — Police Power. § 364. Regulation and Control — General Statement. — The right of a corporation to exercise its lawful franchises 578 REGULATION AND CONTROL § 365 Of privileges is essential to its very existence, and courts will protect such franchises or privileges and prevent their being unlawfully or unconstitutionally impaired or destroyed, and this protection will be extended to prevent the enforcement against corporations of unlawful and unconstitutional govern- mental regulations and rules which would, if not thus subject to lawful restriction and supervision, deprive corporations of their franchises and property rights either in part or wholly. But the courts will also exercise equal vigilance to enforce all lawful and constitutional regulations and rules intended, without injury or loss to franchise rights or privileges, to safeguard the public by the proper control of corporations. These principles are sustained throughout all the decisions. The following words of the court in a Federal case are pertinent here; they are: "It must be borne in mind that a court may not, under the guise of protecting private property, extend its authority to a subject of regulation not within its com- petency, but is confined to ascertaining whether the particular assertion of the legislative power to regulate has been exer- cised to so unwarranted a degree as in substance and effect to exceed regulation, and be equivalent to a taking of property without due process of law, or a denial of the equal protection of the laws." ^ § 365. Regulation and Control — Generally. — While we have considered this subject elsewhere we may substantially restate here the following propositions: A State may adopt such public policy as it deems best, provided that it does not in so doing come into conflict with the Federal Constitution; and if constitutional the legislative will must be respected, even though the courts be of opinion that the statute is un- ^ Atlantic Coast Line Rd. Co. v. Ohliqation of contracts — Conditions North Carolina Corp. Commission, — Regulations — Reserved power to alter 206 U. S. 1 , 20, .51 L. vd. 933, 27 Sup. etc. Soe § 336, herein. Ct. .58.5, per White, J. Obligation of contracts — Street pav- Obligation of contracts — Police pow- ing by street railways — Conditions and ers — Regulations. See § 33.5, herein, regulations. See §§ 337, 338, herein. 579 § 365 REGULATION AND CONTROL wise.' So a corporation is subject to such reasonable regula- tions as the legislature may from time to time prescribe, as to the general conduct of its affairs, serving only to secure the ends for which it was created and not materially inter- fering with the privileges granted to it.^ And state legislation which regulates business may well make distinctions depend upon the degrees of evil without being arbitrary and unrea- sonable.^ It is declared in a case in the Federal Circuit Court that the right of a State to regulate by law the business of common carriers, so far as that business is impressed with a public use, does not depend upon the fact as to whether the company received its charter or right to do business from that State, or whether it is incorporated or not; nor does it depend upon the state constitution; but that such right to regulate, in so far as that business affects the public, has its foundation and source in the right of the State to protect its commerce, and that laws which regulate the relation of the carrier to the public, and provide against discriminations and abuses, do not interfere with the private business of the com- mon carrier.^ Again, in another Federal case where the power of the State to control public service corporations was before the court, it is said that: "There are certain principles involved in the consideration of the questions arising in this case which have been so clearly and definitely settled that it is unneces- sary to review the various decisions of the courts supporting 2 Whitfield v. ^tna Life Ins. Co., v. Milligan Mfg. Co. v. Worst, 207 205 U. S. 489, 51 L. ed. — 27 Sup. Ct. U. S. 338, 356. The first of these — , rev'g 144 Fed. 356. See Munn v. cases, however, relates only to the Illinois, 94 U. S. 113, 24 L. ed. 77; power of the States to legislate; Western Union Teleg. Co. v. Myatt, classification for governmental pur- 98 Fed. 335; McGuire v. Chicago, poses; equal protection of the laws; B. & Q. R. Co., 131 Iowa, 340, 108 notes for patented articles; and the N. W. 902. point stated in the text. The second ' Chicago Life Ins. Co. v. Needles, case relates principally to the adul- 113 U. S. 574, 5 Sup. Ct. 681, 28 L. teration of articles and is important ed. 1084. here only as stating the point set * Ozan Lumber Co. v. Union forth in the above text. County National Bank of Liberty, ^ pia,tt v. LeCocq, 150 Fed. 391. 207 U. S. 251, followed in Heath 580 REGULATION AND CONTROL § 366 them. They relate to the nature and extent of pubhc control over property affected with a public interest, and the char- acter and limitations of the functions employed in and about the exercise of such control. Whenever special privileges, not generally possessed by private persons, are conferred by law upon corporations to enable them to carry out the ob- jects of their organization, and their business and source of profit consists wholly or partly in the service and patronage of the public, their property dedicated to such employment becomes clothed with a public interest, and, to the extent of such interest, is subject to pubhc control. The doctrine of governmental control of property and employments devoted to public use is particularly applicable to what are commonly termed 'public service corporations,' — such as railway and telegraph companies, — although it is also applied, though probably in a much more modified degree, to the property of private persons, which by reason of its use, has ceased to be jus privati. So long as property is so employed, the power of control by the public through their proper representatives exists; and such control may embrace not only provisions for the safety, security and convenience of the public, but also restrictions against unreasonable or extortionate charges and unjust discriminations. This power of control, however, is not absolute, but is subject to certain constitutional limita- tions, designed for the protection of the owner against op- pressive action on the part of the State amounting to a dep- rivation of his property without compensation, or without due process of law, or amounting to a denial of the equal pro- tection of the law." "^ § 366. Control and Regulation — Police Power —Generally/ — Each State has the i)ower, never surrend(>red to the govern- ment of the Union, to guard and promote the public interests by reasonable police regulations that do not violate the Con- " Western Union Teleg. Co. v. 'See §§149, 295, herein. Myatt, 98 Fed. 335, 341, per Hook, Dist. J. 581 § 366 REGULATION AND CONTROL stitution of the United States or the constitution of the State.^ The poUce power is not above the express or necessarily im- * Chicago, Burlington & Quincy trains; commerce); Allgeyer v. Lou- Ry. Co. V. Drainage Commrs., 200 isiana, 165 U. S. 578, 17 Sup. Ct. U. S. 561, 584, 50 L. ed. 596, 26 427, 41 L. ed. 832 (foreign insurance; Sup. Ct. 341 (case affirms 212 111. extent to which power may be ex- 103, 72 N. E. 219), per Harlan, J., ercised to be determined in each citing New York, New Haven & case); Western Union Teleg. Co. v. Hfd. Rd. Co. V. New York, 165 U. S. James, 162 U. S. 650, 40 L. ed. 1105, 628, 631, 41 L. ed. 853, 17 Sup. Ct. 16 Sup. Ct. 934 (telegraph com- 418; Hennington v. Georgia, 163 panies); Louisville & N. R. Co. v. U. S. 299, 308, 309, 16 Sup. Ct. 1086, Kentucky, 161 U. S. 677, 40 L. ed. 41 L. ed. 166; Morgan v. Louisiana, 849, 16 Sup. Ct. 714 (legislative dis- 118 U. S. 455, 464, 6 Sup. Ct. 1114, cretion as to exercise of such power); 30 L. ed. 237; Patterson v. Ken- Eagle Insurance Co. v. Ohio, 153 tucky, 97 U. S. 501, 503, 24 L. ed. U. S. 446, 38 L. ed. 778, 14 Sup. Ct. 1115; Railroad Co. v. Husen, 95 — (returns by insurance companies); U. S. 465, 472, 24 L. ed. 527; Gib- Brass v. Stoeser, 153 U. S. 391, 38 bons V. Ogden, 9 Wheat. (22 U. S.) 1, L. ed. 757, 14 Sup. Ct. — (grain ware- 6 L. ed. 23. house act); New York & N. E. R. Extent, nature, and definition of Co. v. Bristol, 151 U. S. 556, 38 police power. See the following cases: L. ed. 269, 14 Sup. Ct. 437 (railroad United States: Houston & Texas grade crossings); New York v. Central R. Co. v. Mayes, 201 U. S. Squires, 145 U. S. 175, 36 L. ed. 663, 321, 50 L. ed. 772, 26 Sup. Ct. 491 12 Sup. Ct. 880 (regulation of car- (regulation of railroads; commerce); riers of electricity); Budd v. New Chicago, Burlington & Quincy Ry. York, 143 U. S. 517, 12 Sup. Ct. 468, Co. V. Drainage Commrs., 200 U. S. 36 L. ed. 247 (grain elevator acts; 561, 26 Sup. Ct. 341, 50 L. ed. 596, state legislation); Minneapolis & St. aff'g 212 111. 103, 72 N. E. 219 L. R. Co., v. Beckwith, 129 U. S. 26, (removal of bridge); Manigault v. 32 L. ed. 585, 9 Sup. Ct. 207 (Four- Springs, 199 U. S. 473, 50 L. ed. 274, teenth Amendment does not limit); 26 Sup. Ct. 127 (navigable rivers; Smith v. Alabama, 124 U. S. 465, dams); Cunnius v. Reading School 31 L. ed. 508, 8 Sup. Ct. 564 (re- District, 198 U. S. 458, 25 Sup. Ct. served powers of States in connection 721, 49 L. ed. 1125 (Fourteenth with); Mugler v. Kansas, 123 U. S. Amendment does not deprive); Ja- 623, 31 L. ed. 205, 8 Sup. Ct. 273 cobson V. Massachusetts, 197 U. S. 11, (legislation as to use of private prop- 25 Sup. Ct. 358, 49 L. ed. 643 (scope erty as affecting; eminent domain); and extent of power; reasonable Western Union Teleg. Co. v. Pendle- regulation); Smiley v. Kansas, 196 ton, 122 U. S. 347, 30 L. ed. 1187, U. S. 447, 49 L. ed. 546, 25 Sup. Ct. 7 Sup. Ct. 1126 (telegraph com- 276 (freedom to contract; trusts; panies); Robbins v. Shelby Tax monopolies); Gladson v. Minnesota, District, 120 U. S. 489, 30 L. ed. 166 U. S. 427, 17 Sup. Ct. 627, 41 694, 7 Sup. Ct. 592 (inspection laws; L. ed. 1064 (stopping of passenger commerce); Railroad Company v. 582 REGULATION AND CONTROL § 366 plied constitutional prohibitions;^ and all rights are held subject to the pohce power of a State, and, if the public safety Fuller, 17 Wall. (84 U. S.) 560, 21 215, 8 Am. St. Rep. 544, per Ber- L. ed. 710 (regulation of rates; com- mudez, C. J. merce); New York v. Miln, 11 Pet. Maryland: Deems v. Mayor & (36 U. S.) 102, 9 L. ed. 648 (internal City Council of Baltimore, 80 Md. police powers of States unrestrained 173, 45 Am. St. Rep. 339, 30 Atl. and exclusive); Brown v. Maryland, 648, 26 L. R. A. 541, per Robinson, 12 Wheat. (25 U. S.) 419, 6 L. ed. C. J. 678 (reservation by States). Massachusetts: Commonwealth Alabama: Birmingham Mineral v. Alger, 7 Cush. (Mass.) 53, 84, per R. Co. v. Parsons, 100 Ala. 662, 13 Shaw, C. J. So. 602, 46 Am. St. Rep. 92; Van Minnesota: State v. St. Paul, M. Hook V. City of Selma, 70 Ala. 361, & M. Ry. Co. (Minn., 1906), 108 45 Am. Rep. 85; American Union N. W. 261 (safety devices at railway Teleg. Co. v. Western Union Teleg. crossings). Co., 67 Ala. 26, 42 Am. Rep. 90. Mississippi: Macon, Town of, v. Arkansas: Dabbs v. State, 39 Patty, 57 Miss. 378, 407, 34 Am. Ark. 353, 43 Am. Rep. 275. Rep. 451, per George, C. J. Connecticut: Clark, In re, 65 Missouri: State, Star Pub. Co., v. Conn. 17, 40, 31 Atl. 522, 28 L. R. Associated Press, 159 Mo. 410, 60 A. 242, per Hammersley, J.; Wood- S. W. 91, 81 Am. St. Rep. 368, 51 ruff v. New York & N. E. R. Co., L. R. A. 151, per Sherwood, J.; 59 Conn. 63, 20 Atl. 17. State v. Searey, 20 Mo. 489. Illinois: Price v. People, 193 111. New Hampshire: State v. Griffin, 114, 117, 118, 86 Am. St. Rep. 306, 69 N. H. 1, 76 Am. St. Rep. 139, 39 61 N, E. 844, per Boggs, J.; Harmon Atl. 260, 41 L. R. A. 177, per Car- v. City of Chicago, 110 111. 400, 51 penter, C. J. Am. Rep. 698; Toledo, W. & W. Ry. New York: People v. King, 110 Co. V. City of Jacksonville, 67 111. N. Y. 418, 423, 18 N. E. 245, 6 Am. 37, 16 Am. Rep. 611. St. Rep. 389, 1 L. R. A. 293, per Indiana: State v. Richcreek (Ind., Andrews, J. 1906), 77 N. E. 1085 (banks and North Carolina: State v. Moore, banking); Champer v. City of Green- 104 N. C. 714, 10 S. E. 143, 17 Am. castle, 138 Ind. 339, 351, 35 N. E. St. Hop. 696, per Avery, J. 14, 24 L. R. A. 768, 46 Am. St. Rep. Pennsylvania: Northumberland 390, per McCabe, C. J. County v. Zininierman, 75 Pa. 26. Kansas: Ratcliff v. Wichita Union Rhode Island: State v. Dalton, Stockyards Co. (Kan., 1906), 86 Pac. 22 R. I. 77, 80, 84 Am. St. Rep. 818, 150 (stockyards; regulation of rates); 48 L. R. A. 775, 46 Atl. 234, per Meffert v. State Board of Medical Tillinghast, J.; State v. Fitzpatrick, Reg. & Exam., 66 Kan. 710, 72 Pac. 16 R. I. 1, 54, 11 Atl. 767, per Dur- 247, per Greene, J. fee, J. Louisiana: New Orleans Gas Light Washington: Seattle, City of, v. Co. V. Hart, 40 La. Ann. 474, 4 So. Clark, 2S Wash. 717, 69 Pac. 407, » State V. Chittenden, 127 Wis. 468, 107 N. W. 500. 583 § 366 REGULATION AND CONTROL or the public morals require the discontinuance of any manu- facture or traffic, the legislature may provide for its discon- tinuance, notwithstanding individuals or corporations may thereby suffer inconvenience.^" As we have stated elsewhere, the police power cannot be exercised over interstate trans- portation of subjects of commerce, ^^ and it is hmited to the extent that the exercise thereof must be reasonable both as to the regulation itself and the subjects to be regulated; ^^ nor should there be an arbitrary invasion of personal rights or of private property; nor should such burdens be imposed upon property rights that the owner will thereby be unlaw- fully deprived of the same; ^^ nor can a State contract away its police power. ^^ "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 fives, health and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot by any mere contract divest itself of the power to provide for these objects. They belong em- phaticafiy to that class of objects which demand the applica- tion 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 itself." ^^ per White, J.; Karasek v. Peier, "Railroad Company v. Husen, 22 Wash. 419, 61 Pac. 33, 50 L. R. 95 U. S. 465, 24 L. ed. 527. A. 345, per Anders, J. ^^ State v. Chittenden, 127 Wis. Wisconsin: Madison, City of, v. 468, 107 N. W. 500. Madison Gas & Electric Co. (Wis., " Chicago, B. & Q. R. Co. v. State, 1906), 108 N. W. 65 (gas rates); 47 Neb. 549, 66 N. W. 624. Huber V. Merkel, 117 Wis. 355, 366, "Beer Co. v. Massachusetts, 97 94 N. W. 354, 62 L. R. A. 589, per U. S. 25, 24 L. ed. 989; State v. St. Winslow, J.; State v. Krentzberg, Paul, M. & M. Ry. Co. (Minn., 1906), 114 Wis. 530, 537, 91 Am. St. Rep. 108 N. W. 261. 934, 58 L. R. A. 748, 90 N. W. 1098, '^ St. Louis & S. F. Ry. Co. v. per Dodge, J. Matthews, 165 U. S. 1, 123, 41 L. "•Beer Co. v. Massachusetts, 97 ed. 611, 17 Sup. Ct. 243. A case U. S. 25, 24 L. ed. 989. of constitutional law and liability of 584 REGULATION AND CONTROL § 367 § 367. Foreign and Interstate Commerce Defined — Power to Regulate. — Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the trans- portation and transit of persons and property, as well as the purchase, sale and exchange of commodities. To regu- late it as thus defined there must be only one system of rules applicable alike to the whole country, which Congress alone can prescribe. ^^ As to such commerce the following doctrines have been asserted in the Federal courts. Thus in Oilman v. Philadelphia ^"^ it is held that the power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those on which they lie; and includes, necessarily, the power to keep them open and free from any obstruction to their navigation, inter- posed by the States or otherwise; that it is for Congress to de- termine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided; that some of the subjects of this power, however, covering as it does a wide field, and embracing a great variety of subjects, will call for uniform rules and national legislation; while others can be best regulated by rules and provisions suggested by the varying circumstances of differing places, and limited in their operation to such places respectively; and to the extent required by these last cases, the power to regulate commerce may be exercised by the States. In another case it is held that the power conferred upon Congress by the commerce clause of the Constitution is exclusive, so far as it relates to matters within its purview which are national in their char- railroads under state statutes for U. S. 190, 29 L. ed. 158, 5 Sup. Ct. fire communicated by locomotives. 826; United States v. Cassidy (D. '8 Mobile, County of, v. Kimball, C), 67 Fed. 698; Charge to Grand 102 U. S. 691, 26 L. ed. 238. See Jury, In k (D. C), 62 Fed. 840, 4 also Addyston Pipe & Steel Co. v. Inters. (Jomm. Rep. 784. United States, 175 U. S. 211, 44 "3 Wall. (70 U. S.) 713, 18 L. L. ed. 136, 20 Sup. Ct. 96; Gloucester ed. 96. Ferry Co. v. Pennsylvania, 114 585 § 368 REGULATION AND CONTROL actcr, and admit or require uniformity of regulation affecting all the States; and that that clause was adopted in order to secure such uniformity against discriminating state legislation.^^ It is also decided that (1) The power to regulate commerce, interstate and foreign, vested in Congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free and when subject to duties or other exac- tions. (2) Such commerce is a subject of national character and requires uniformity of regulation. (3) Interstate com- merce by corporations is entitled to the same protection against state exactions which is given in such commerce when carried on by individuals. (4) As to those subjects of com- merce which are local or limited in their nature or sphere of operation, the State may prescribe regulations until Congress assumes control of them. And (5) As to such as are national in their character, and require uniformity of regulation, the power of Congress is exclusive; and until Congress acts, such com- merce is entitled to be free from state exaction and burdens.^'* § 368. Same Subject. — The question whether, when Con- gress fails to provide a regulation by law as to any particular subject of commerce among the States, it is conclusive of its intention that that subject shall be free from positive regula- tion, or that, until Congress intervenes, it shall be left to be dealt with by the States, is one to be determined by the cir- cumstances of each case as it arises.^'' Again, a state act which imposes limitations upon the power of a corporation, created under the laws of another State, to make contracts within the State for carrying on commerce between the States, vio- lates that clause of the Federal Constitution which confers upon Congress the exclusive right to regulate that commerce. ^^ 18 Mobile, County of, v. Kimball, Ry. Co., 125 U. S. 465,31 L. ed. 700, 102 U. S. 691, 26 L. ed. 238. 8 Sup. Ct. 689, 1062. "Gloucester Ferry Co. v. Penn- ^' Cooper Mfg. Co. v. Ferguson, 113 sylvania, 114 U. S. 196, 29 L. ed. U. S. 727, 28 L. ed. 1137, 5 Sup. Ct. 158, 5 Sup. Ct. 826. 739. '" Bowman v. Chicago & N. W. 586 REGULATION AND CONTROL § 369 But, under its power to regulate commerce, Congress may- enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corpora- tions where the natural and direct effect of such a contract shall be, when carried out, to directly and not as a mere inci- dent to other and innocent purposes, regulate to any extent interstate or foreign commerce; that the provision in the Con- stitution regarding the liberty of the citizen is to some extent limited by this commerce clause, and the power of Congress comprises the right to enact a law under this clause prohibit- ing a citizen from entering into those private contracts which directly and substantially and not merely indirectly, remotely, incidentally and collaterally, regulate to a greater or less de- gree, commerce among the States.^' So parties subject them- selves to the power of Congress to enact subsequent laws where they engage in interstate commerce.'^ Again, the power of Congress to regulate foreign commerce, being an enumer- ated power, is complete in itself, acknowledging no limitations other than those prescribed in the Constitution.''* The gov- ernment of the United States may, in the exercise of its pow- ers, remove everything put upon the highways, natural or artificial, to obstruct the passage of interstate commerce, or it may invoke the jurisdiction of the civil courts in this respect.^^ § 300. Regulation of Commerce — State Control of Busi- ness Within Jurisdiction.-'' — While one engaging in interstate comnuTce does not therel)y submit all his business to the regulating i)ower of Congress, ^^ still the fact that a corpora- tion is engaged in interstate commerce does not deprive the "Addyston Pipe & Steel Co. v. S. 470, 24 Sup. Ct. 349, 48 L. ed. United States, 175 U. S. 211, 20 252. Sup. Ct. 96, 44 L. cd. 136, modifying " Debs, In re, 158 U. S. 564, 39 85 Fed. 271, 29 C. C. A. 141, a case L. ed. 1092, 15 Sup. Ct. 900. as to combinations in restraint of -° See § 365, herein, trade and onhancomont of prices. " Employers' Liability Cases ^•■'Fitzgerald v. Grand Trunk R. (Il(nvar(l v. Illinois Central Rd. Co Co., 63 Vt. 169, 22 .\tl. 76. and Brooks v. Southern Pacific Co.), '^ Buttfield V. Stranahan, 192 U. 207 U. S. 463. 587 § 369 REGULATION AND CONTROL State of power to exercise reasonal)le control over its business done wliolly within the State. ^^ So it is said in a case in the Federal Supreme Court: "In our opinion the power, whether called police, governmental or legislative, exists in each State, by appropriate enactments not forbidden by its own con- stitution or by the Constitution of the United States, to regu- late the relative rights and duties of all persons and corpora- tions within its jurisdiction, and therefore to provide for the public convenience and the public good. This power of the States is entirely distinct from any power granted to the general government, although when exercised it may some- times reach subjects over which national legislation can be constitutionally extended. When Congress acts with refer- ence to a matter confided to it by the Constitution, then its statutes displace all conflicting local regulations touching that matter, although such regulations may have been estab- lished in pursuance of a power not surrendered by the States to the general government." '^ ^' McGuire v. Chicago, Burlington be brought within the borders of a & Quincy Rd. Co., 131 Iowa, 340, State; a bridge may at the same 369, 108 N. W. 902. time interrupt the navigation of the ^' Lake Shore & Michigan Southern river and serve as a continuation of Ry. Co. V. Ohio, 173 U. S. 285, 298, the highways of the State; a man, 43 L. ed. 702, 19 Sup. Ct. 451, per while the agent through which the Harlan, J. transaction of interstate commerce "Where, as in the case of our dual is conducted, is at the same time government, the same territories one of the population, permanent or and the same individuals are sub- transient, of a State, and subject to ject to two governments, each su- its general laws. There is no con- preme within its sphere, both gov- flict in powers, though there may be emments by virtue of distinct powers conflict in legislation, referable to may legislate for the same ends, different powers. In such a case The exercise of the rightful authority under our system the law of the of the Nation and the State, though State enacted by virtue of its un- it proceeds from different govern- doubted powers must yield to the mental powers, may reach and con- national law enacted in pursuance trol the same subject. This result of the powers conferred by the Con- arises from the different relations stitution. There is no necessity in to the community the subject may this case to disturb the troublesome sustain: a drove of cattle may be at question when, if ever, even when once interstate freight and the ve- Congress is silent, the States may ex- hicle by which infectious disease may ercise any direct power over interstate 588 ■ REGULATION AND CONTROL § 370 § 370. Regulation of Commerce — Transportation of Per- sons or Property — Generally. — While a State cannot regulate foreign commerce, still it may do many things which more or less affect it. But, on the other hand, it is not left to the dis- cretion of each State in the Union either to refuse a right of passage to persons or property through her territory or to exact a duty for permission to exercise it, for Congress has willed that intercourse between the several States shall be free and has so regulated such commerce that this result shall be accomplished.^" And a shipment which is received for the and foreign commerce. * * * 'If all such laws, so far as they affect a State,' said Chief Justice Marshall such commerce, must yield to the in Gibbons v. Ogden, 9 Wheat. (22 superior authority of the laws of U. S.) 1, 204, 6 L. ed. 23, 72, 'in Congress, is, I think, conclusively passing laws on subjects acknowl- shown by the following cases: Sher- edged to be within its control, and, lock v. Ailing, 93 U. S. 99, 23 L. ed. with a view to those subjects, shall 819; Smith v. Alabama, 124 U. S. adopt a measure of the same char- 465, 8 Sup. Ct. 564, 31 L. ed. 508; acter with one which Congress may Nashville, C. & St. L. Ry. Co. v. adopt, it does not derive its author- Alabama, 128 U. S. 96, 32 L. ed. ity from the particular power which 352, 9 Sup. Ct. 28; Hennington v. has been granted, but from some Georgia, 163 U. S. 299, 41 L. ed. 166, other, which remains with the State 16 Sup. Ct. 1086; New York, N. H. & and may be executed by the same H. R. Co. v. New York, 165 U. S. means. All experience shows that 628, 17 Sup. Ct. 418, 41 L. ed. 453; the same measure or measures, Chicago, M. & St. P. R. Co. v. scarcely distinguishable from each Solan, 169 U. S. 133, 42 L. ed. 688, other, may flow from distinct powers; 18 Sup. Ct. 340; Pennsylvania Rail- but this does not prove that the road v. Hughes, 191 U. S. 477, 24 powers themselves are identical.' Sup. Ct. 132, 48 L. ed. 268; Martin v. That the States may by their laws Pittsburg, etc.. Railroad, 203 U. S. fix the rcjative rights, duties, obli- 284, 51 L. ed. 184, 27 Sup. Ct. 100; gations and liabilities of all persons Peirce v. Van Dusen, 78 Fed. 693." or corporations within their terri- Employers' Liability Cases (Howjird torial jurisdictions, and thus con- v. Illinois Central Rd. Co. and Brooks trol in that respect those who are v. Southern Pacific Co.), 207 U. S. engaged in interstate and foreign 463, 534, 535, per Moody, J., in dis- commerce; that such laws do not senting opinion. proceed from any power to regulate '" Passenger Cases, 7 How. (48 such commerce, though incidentally U. S.) 283, 12 L. ed. 702. See Em- and indirectly they do regulate it, ploycrs' Liability Cases (Howard v. but are to be referred to their gen- Illinois CVnl ral R. Co. and Brooks v. eral power over persons and things Southern Pacific Co.), 207 U. S. 463, within their territories, and that 535, dissenting opinion of Moody, J. 589 § 370 REGULATION AND CONTROL purpose of transportation between different States is not governed by state enactments, as it constitutes an interstate shipment. ^^ But where a state statute appUes to both intra- state and interstate shipments, but the shipment involved is wholly intrastate, the Federal Supreme Court will not con- sider the validity of the statute when applied to interstate shipments. ^^ It was decided by the Federal Supreme Court, in 1887, that so far as the will of Congress respecting com- merce among the States by means of railroads can be deter- mined from its enactment of the provisions of the law found in the Revised Statutes, ^^ they are an indication that the transportation of such commodities between the States shall be free except when restricted by Congress, or by a State with the express permission of Congress; and that a State can- not for the purpose of protecting its people against the evils of intemperance, enact laws which regulate commerce between its people and those of other States of the Union unless the consent of Congress, express or implied, be first obtained. ^^ An absolute requirement that a railroad engaged in interstate commerce shall furnish a certain number of cars on a specified day, to transport merchandise to another State, regardless of every other consideration except strikes and other public calam- ities, transcends the police power of the States and amounts to a burden upon interstate commerce ; and articles of the Re- vised Statutes of a State which exact such a service, are, when ^' Berry Coal & Coke Co. v. point in Vance v. W. A. Vandercook Chicago, P. & St. L. Ry. Co., 116 Co., 170 U. S. 438, 4.57, 18 Sup. Ct. Mo. App. 214, 92 S. W. 714. 674, 42 L. ed. 1100; Rhodes v. Iowa, " Seaboard Airhne Ry. v. Seegens, 170 U. S. 412, 414, 429, 42 L. ed. 207 U. S. 73, aff'g 73 S. C. 71. 1088, 18 Sup. Ct. 664; O'Neil v. " Rev. Stat. § 5258, chap. 6, tit. 48; Vermont, 144 U. S. 323, 3.35, 355, §§ 4252-4289. 36 L. ed. 450, 12 Sup. Ct. 693; Rah- 3< Bowman v. Chicago & N. W. rer. In re, 140 U. S. 545, 35 L. ed. Ry. Co., 125 U. S. 465, 31 L. ed. 700, 572, 11 Sup. Ct. 865; Lyng v. Michi- 8 Sup. Ct. 689, 1062. Cited on first gan, 135 U. S. 161, 166, 34 L. ed. 130, point in Addyston Pipe & Steel Co. 10 Sup. Ct. 725; Leisy v. Hardin, V. United States, 175 U. S. 211, 231, 135 U. S. 100, 111, 124, 155, 34 L. 44 L. ed. 136, 20 Sup. Ct. 96; Minor, ed. 128, 10 Sup. Ct. 681. In re, 69 Fed. 235. Cited on second 590 REGULATION AND CONTROL § 371 applied to interstate commerce shipments, void as a violation of the commerce clause of the Federal Constitution. Such a regulation cannot be sustained as to interstate commerce ship- ments as an exercise of the police power of the State. ^^ § 371. Regulation of Commerce — Transportation of Rail- road Cars — Transportation Over River — Distinction as to Ferries — Police Power. — The interstate transportation of cars from another State which have not been delivered to the con- signee, but remain on the track of a railway company in the condition in which they were originally brought into the State, is not completed and they are still within the protection of the. commerce clause of the Constitution and are not subject to an order of a State Corporation Commission requiring a railway company to deliver cars from another State to the consignee on a private siding beyond its own right of way, and therefore such an order is a burden on interstate commerce and is void. QucEre, whether such an order applicable solely to state business would be repugnant to the due process clause of the Constitution. The principle was applied in this case that while a State in the exercise of its police power may con- fer power on an administrative agency to make reasonable regulations as to the place, time and manner of delivery of merchandise moving in channels of interstate commerce, any regulation which directly burdens interstate commerce is a regulation thereof and repugnant to the Federal Constitu- tion.^® There is an essential distinction between a ferry in the restricted and legal signification of the term, and the transportation of railroad cars across a boundary river between two States, constituting interstate commerce, and such trans- portation cannot be subjected to conditions imposed by a State which are direct burdens upon interstate commerce. And it is held that conceding, arguendo, that the police power of a State extends to the establishment, regulation or licensing 3* Houston ction law of 1905, ])roliibiting the transportation of cattle into that State subject to certain "Missouri, K. & T. R. Co. v. Ilahcr, 109 II. S. 613, 42 L. ed. 878, 18 Sup. Ct. 488. 595 § 373 REGULATION AND CONTROL conditions, was held not unconstitutional as a direct regula- tion of interstate commerce and not in conflict with certain acts of Congress. The court reasserted certain propositions as follows: (1) While the State may not legislate for the direct control of interstate commerce, a proper police regulation which does not conflict with congressional legislation on the subject involved is not necessarily unconstitutional because it may have an indirect effect upon interstate commerce. (2) Until Congress acts on the subject a State may, in the exer- cise of its police power, enact laws for the inspection of cattle coming from other States. (3) Congress has not enacted any legislation destroying the right of a State to provide for the inspection of cattle and prohibiting the bringing within its borders of diseased cattle not inspected and passed as healthy either by the proper state or national ofl[icials. (4) A State may not, under the pretense of protecting the public health, exclude the products or merchandise of other States, and this court will determine for itself whether it is a genuine exercise of the police power or really and substantially a regulation of interstate commerce. ^^ *^ Asbell V. Kansas, 209 U. S. 251, the verdict of a jury. The convic- aff'g 60 Kan. 51. The opinion of tion was affirmed by the Supreme the court is important, was dehv- Court of the State, and the case is ered per Moody, J., and is as fol- now here on a writ of error, allowed lows: "A statute of the State of by the chief justice of that court. Kansas makes it a misdemeanor. The only Federal question insisted punishable by fine or imprisonment, upon in argument is whether the or both, for any person to transport statute was a restriction of inter- into the State cattle from any point state commerce which was not south of the south line of the State, within the power of a State to im- except for immediate slaughter, with- pose. The obvious purpose of the out having first caused them to be law was to guard against the intro- inspected and passed as healthy by duction into the State of cattle in- the proper state officials or by the fected with a communicable disease. Bureau of Animal Industry of the It undoubtedly restricts the absolute Interior Department of the United freedom of interstate commerce in States. Sec. 27, chap. 495, Session cattle, but only to the extent that Laws of 1905. The plaintiff in error all cattle coming to cross the guarded was duly charged by information boundary are subjected to inspection in the state court with a violation to ascertain whether or not they of this statute, and found guilty by are diseased. If healthy they are 596 REGULATION AND CONTROL § 374 § 374. Regulation of Commerce — Transportation of Natu- ral Gas. — State laws prohibiting the transportation of natural admitted, if diseased they are ex- cluded. The vahdity of such a re- striction for such purposes has been frequently considered by this court, and the principles applicable to the settlement of the question have been clearly defined. The governmental power over the commerce which is interstate is vested exclusively in the Congress by the commerce clause of the Constitution, and therefore is withdrawn from the States. It is not now necessarj' to cite the many cases supporting this proposition, or to consider some expressions in the books somewhat qualifying its gen- erality, because in carefully chosen words it has recently been affirmed by us. At this term, Mr. Justice Peckham, speaking for the court, said: 'That any exercise of state authority, in whatever form mani- fested, which directly regulates inter- state commerce, is repugnant to the commerce clause of the Constitu- tion is obvious.' Atlantic Coast Line V. Wharton, 207 U. S. 328, 334. But though it may not legislate for the direct control of interstate commerce, the State may exercise any part of the legislative power which was not withdrawn from it expressly or by implication by the scheme of government put into operation by the Federal Constitution. It may sometimes happen that a law passed in pursuance of the acknowledged power of the State will have an in- direct effect upon interstate com- merce. Such a law, though it is essential to its validity that authority be found in a govfrnmontal power entirely distinct from the power to regulate interstate commerce, may reach and indirectly control that sub- ject. It was at an early day ob- served by Chief Justice Marshall that legislation referable to entirely dif- ferent legislative powers might affect the same subject. He said in Gib- bons V. Ogden, 9 Wheat. (22 U. S.) 194, 204, 6 L. ed. 23: 'So, if a State, in passing laws on subjects acknowl- edged to be within its control, and with a view to those subjects shall adopt a measure of the same char- acter with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other, which remains with the State and may be executed by the same means. All experience shows, that the same measures, or measures scarcely dis- tinguishable from each other, may flow from distinct powers; but this does not prove that the powers them- selves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality. In our complex sys- tem, presenting the rare and diffi- cult scheme of one general govern- ment, whose action extends over the whole, but which possesses only cer- tain enumerated powers; and of numerous state governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers, would often be of the same descrip- tion, and might, sometimes, interfere. This, however, does not prove that the one is exercising, or has a right 597 § 374 REGULATION AND CONTROL gas from the State are invalid where they interfere with inter- state commerce ;^^ otherwise such enactments may be vaUd.^^ to exercise, the powers of the other.' 465, 24 L. ed. 527, nor under the pre- Foreseeing cases where national and tense of protecting the pubHc health, state legislation based upon different employ inspection laws to exclude powers might, in their application, from its borders the products or be brought into conflict, he, in the merchandise of other States; and this same case (p. 211), declared that court will assume the duty of de- then 'the law of the State, though termining for itself whether the enacted in the exercise of powers not statute before it is a genuine exercise controverted, must yield,' a rule of an acknowledged state power, or which has constantly been applied whether, on the other hand, under by this court. These general prin- the guise of an inspection law it is ciples control the decision of the really and substantially a regulation case at bar. Cattle, while in the of foreign or interstate commerce course of transportation from one which the Constitution has conferred State to another, and in that respect exclusively upon the Congress. Min- under the exclusive control of the nesota v. Barber, 136 U. S. 313, 34 law of the National Government, L. ed. 455, 10 Sup. Ct. 862; Brimmer may at the same time be the con- v. Rebman, 138 U. S. 78, 11 Sup. veyance by which disease is brought Ct. 213, 34 L. ed. 862; Patapsco within the State to which they are Guano Co. v. North Carolina, 171 destined, and in that respect sub- U. S. 345, 43 L. ed. 191, 18 Sup. Ct. ject to the power of the State ex- 862. Tested by these principles, ercised in good faith to protect the the statute before us is an inspection health of its own animals and its own law and nothing else; it excludes people. In the execution of that only cattle found to be diseased, and power the State may enact laws for in the absence of controlling legis- the inspection of animals coming lation by Congress it is clearly within from other States with the purpose the authority of the State, even of excluding those which are diseased though it may have an incidental and admitting those which are and indirect effect upon commerce be- healthy. Reid v. Colorado, 187 U. S. tween the States. The cause, how- 137, 47 L. ed. 108, 23 Sup. Ct. 92. ever, cannot be disposed of without The State may not, however, for this inquiring whether there was at the purpose exclude all animals, whether time of the offense any legislation of diseased or not, coming from other Congress conflicting with the state States, Railroad v. Husen, 95 U. S. law. If such legislation were in ex- *' State V. Indiana & O. Oil, Gas Benedict v. Columbus Const. Co., & Mining Co., 120 Ind. 575, 22 N. E. 49 N. J. Eq. 23, 23 Atl. 485. 778, 6 L. R. A. 579; Avery v. In- ■" Jamieson v. Indiana Natural diana & O. Oil, Gas & Mining Co., Gas & Oil Co., 128 Ind. 555, 12 L. 120 Ind. 600, 22 N. E. 781. See also R. A. 652, 28 N. E. 76. Examine, as Manufacturers' Gas & Oil Co. v. to principle, Leisy v. Harding, 135 Indiana Natural Gas & Oil Co., 155 U. S. 100, 10 Sup. Ct. 681, 34 L. ed. Ind. 545, 58 N. E. 706. Examine 128. 598 REGULATION AND CONTROL § 375 § 375. Regulation of Commerce — Stopping Interstate Trains. — The rule that any exercise of state authority, whether istence the state law, so far as it tary of Agriculture by the act of affected interstate commerce, would February 2, 1903, 32 Stat. 791, and be compelled to yield to its superior the act of March 3, 1905, 33 Stat, authority. This question was con- 1204. The provisions of these acts sidered and the national legislation need not be fully stated. The only carefully examined in Reid v. Colo- part of them which seems relevant rado, supra, and the conclusion to this case and the question under reached that Congress had not then consideration which arises in it is taken any action which had the effect contained in the law of 1903. In of destroying the right of the State that law it is enacted that when an to act on the subject. It was there inspector of the Bureau of Animal said, p. 148: 'It did not undertake Industry has issued a certificate that to invest any officer or agent of the he has inspected cattle or live stock Department with authority to go and found them free from infectious, into a State, and, without its assent, contagious or communicable disease, take charge of the work of suppres- 'such animals so inspected and certi- sing or extirpating contagious, in- fied may be shipped, driven, or trans- fectious or communicable diseases ported * * * into * * * ^ny there prevailing, and which endan- State or Territory * * * with- gered the health of domestic ani- out further inspection or the exaction mals. Nor did Congress give the of fees of any kind, except such as Department authority, by its officers may at any time be ordered or ex- or agents, to inspect cattle within acted by the Secretary of Agricul- the limits of a State and give a ture.' There can be no doubt that certificate that should be of superior this is the supreme law, and if the authority in that or other States, or state law conflicts with it the state which should entitle the owner to law must yield. But the law of carry his cattle into or through an- Kansas now before us recognizes the other State without reference to the supremacy of the national law and reasonable and valid regulations conforms to it. The state law admits which the latter State may have cattle inspected and certified by an adopted for the protection of its own inspector of the Bureau of Animal domestic animals. It should never Industry of the United States, thus be held that Congress intends to avoiding a conflict with the national supersede or by its legislation suspend law. Rule 13, issued by the Secre- the exercise of the police powers of tary of Agriculture under the au- the States, even when it may do so, thority of the statute, is brought to unless its purpose to effect that re- our attention by the plaintiff in suit is clearly manifested.' There error. It is enough to say now that has, however, been later national the rule is directed to transportation legislation which needs to be noticed, of cattle from quarantined States, Large powers to control the interstate which is not this case, and that in movement of cattle liable to be af- terms it recognizes restrictions im- flicted with a communicable di.sease posed by the State of destination, have been conferred upon the Secre- Our attention is called to no other 599 § 375 REGULATION AND CONTROL inatlo directly or through the instrumentality of a commission, which directly regulates interstate commerce is repugnant to the commerce clause of the Federal Constitution, applies to the stopping of interstate trains at stations within the State already adequately supplied with transportation facilities. But whether an order stopping interstate trains at specified stations is a direct regulation of interstate commerce depends on the local facilities at those stations, and while the suffi- ciency of such facilities is not in itself a Federal question, it may be considered by the Supreme Court for the purpose of determining whether the order does or does not regulate inter- state commerce, and if it appears that the local facilities are adequate, the order is void. And inability of fast interstate trains to make schedule, their loss of patronage and compensa- tion for carrying the mails, and the inability of such trains to pay expenses if additional trips are required are all matters to be considered in determining whether adequate facilities have been furnished to the stations at which the company is ordered by state authority to stop such trains.'^* So where a state statute required all regular passenger trains to stop a sufficient length of time at county seats to receive and let off passengers with safety, and it appeared that the defendant company furnished four regular passenger trains a day each way, which were sufficient to accommodate all the local and through business, and that all such trains stopped at county seats, the act was held to be invalid as applied to an express train intended only for through passengers from St. Louis to New York. It was also decided that while railways are bound provision of national law which con- and we have discovered none. Judg- flicts with the state law before us, ment affirmed." *' Atlantic Coast Line Ry. Co. v. settled beyond question." Em- Wharton, 207 U. S. 328, rev'g Rail- ployers' Liability Cases (Howard v. road Commrs. v. Atlantic Coast Illinois Central Rd. Co. and Brooks Line R. Co., 74 S. C. 80, 53 S. E. 290. v. Southern Pacific Co.), 207 U. S. "The want of power in a State to 463, 496, per White, J., citing princi- interfere with an interstate commerce pal case and also Mississippi R. Co. train, if thereby a burden is im- v. Illinois Cent. R. Co., 203 U. S. posed upon interstate commerce is 335, 343, 51 L. ed. 209, 27 Sup. Ct. 90. 600 REGULATION AND CONTROL § 375 to provide primarily and adequately for the accommodation of those to whom they are directly tributary, they have the legal right, after all these local conditions have been met, to adopt special provisions for through traffic, and legislative interference therewith is an infringement upon the clause of the Constitution which requires that commerce between the States shall be free and unobstructed."*^ In another case it appeared that an act of Congress ^" granted a right of way, and sections of the public lands, to the State of Illinois, and to States south of the Ohio River, to aid in the construction of a railroad connecting the waters of the Great Lakes with those of the Gulf of Mexico, and over which the mails of the United States should be carried. The State of Illinois accepted the act, and incorporated the Illinois Central Railroad Com- pany, for the purpose of constructing a railroad with a south- ern terminus described as ''a point at the city of Cairo." The company accordingly constructed and maintained its railroad to a station in Cairo, very near the junction of the Ohio and Mississippi Rivers; but afterwards, in accordance with statutes of the United States and of the State of Illinois, connected its railroad with a railroad bridge built across the Ohio River opposite a part of Cairo farther from the mouth of that river; and put on a fast mail train carrying interstate passengers and the United States mail from Chicago to New Orleans, which train ran through the city of Cairo, but did not go to the station in that city, and could not have done so without leaving the through route at a point three and a half miles from the station and coming back to the same point; but the company made adequate accommodations by other trains for interstate passengers to and from Cairo. Cairo was the county seat. It was held that a statute of Illinois, requir- ing railroad companies to stop their trains at county seats long enough to receive and let off passengers with safety, which was construed by the Supreme Court of the State to « Cleveland, C. C. & St. L. Ry. '^"Act of September 20, 1850, c. Co. V. Illinois, 177 U. S. 514, 20 Sup. 61. Ct. 122, 44 L. etl. 8G8 601 § 375 REGULATION AND CONTROL require the fast mail train of this company to be run to and stopped at the station at Cairo, was, to that extent, an un- constitutional hindrance and obstruction of interstate com- merce, and of the passage of the mails of the United States. ^^ But it is also held that a statute of a State requiring every railroad corporation to stop all regular passenger trains, run- ning wholly within the State, at its stations at all county seats long enough to take on and discharge passengers with safety, is a reasonable exercise of the police power of the State, and does not take property of the company without due process of law; nor does it, as applied to a train connecting with a train of the same company running into another State, and carrying some interstate passengers and the United States mail, unconstitutionally interfere with interstate commerce, or with the transportation of the mails of the United States. ^^ Again, where the statute of Ohio relating to railroad com- panies, in that State, provided that, "Each company shall cause three, each way, of its regular trains carrying passengers, if so many are run daily, Sundays excepted, to stop at a station, city or village, containing over three thousand inhabitants, for a time sufficient to receive and let off passengers; if a com- pany, or any agent or employee thereof, violate, or cause or permit to be violated, this provision, such company, agent or employee shall be liable to a forfeiture of not more than one hundred nor less than twenty-five dollars, to be recovered in an action in the name of the State, upon the complaint of any person, before a justice of the peace of the county in which the violation occurs, for the benefit of the general fund " Illinois Cent. R. Co. v. Illinois, 328, 4 Det. L. N. 662, 8 Am. & Eng. 173 U. S. 142, 41 L. ed. 107, 16 Sup. R. Cas. (N. S.) 496]; Lake Shore & Ct. 1096. Cited in Cleveland, C. C. M. .S. Ry. Co. v. Ohio, 173 U. S. & St. L. Ry. Co. V. Illinois, 177 U. S. 285, 303, 306 (and at p. 321, in dis- 514, 518, 519, 20 Sup. Ct. 722, 44 senting opinion), 43 L. ed. 702, 19 L. ed. 868; Lake Shore & M. S. Ry. Sup. Ct. 465. Distinguished in Glad- Co. V. Smith, 173 U. S. 684, 688, 19 son v. Minnesota, 166 U. S. 427, Sup. Ct. 565, 43 L. ed. 858 [which 431, 41 L. ed. 1064, 17 Sup. Ct. 627. reverses Smith v. Lake Shore & M. " Gladson v. Minnesota, 166 U. S. S. R. Co., 114 Mich. 460, 72 N. W. 427, 41 L. ed. 1064, 17 Sup. Ct. 627. 602 REGULATION AND CONTROL § 376 of the county; and in all cases in which a forfeiture occurs under the provisions of this section, the company whose agent or employee caused or permitted such violation shall be liable for the amount of the forfeiture, and the conductor in charge of such train shall be held, prima facie, to have caused the vio- lation," it was decided that such statute was not, in the ab- sence of legislation by Congress on the subject, repugnant to the Constitution of the United States, when applied to inter- state trains, carrying interstate commerce through the State of Ohio on the Lake Shore and Michigan Southern Railway .^^ § 376. Regulation of Commerce — Telegraph Messages — Police Power. — A state statute, requiring every telegraph com- pany with a line of wires wholly or partly within that State to receive dispatches and, on payment of the usual charges, to transmit and deliver them with due diligence, under a cer- tain penalty, is a valid exercise of the power of the State in relation to messages by telegi*aph from points outside of and directed to some point within the State. ^^ But where a statute requires telegraph companies to deliver dispatches by mes- senger to the persons to whom the same are addressed or to their agents, provided the}^ reside within one mile of the tele- graph station, or within the city or town in which such station is, such enactment is in conflict with the commerce "Lake Shore & M. S. Ry. Co. v. Missouri: Connell v. Western Ohio, 173 U. S. 285, 43 L. ed. 702, Union Teleg. Co., 108 Mo. 459, 18 19 Sup. Ct. 465. S. W. 883, 39 Am. & Eng. Corp. 5< Western Union Teleg. Co. v. Cas. 594, 4 Am. Elec. Cas. 743. James, 162 U. S. 6.50, 40 L. ed. 1105, Tennessee: Western Union Teleg. 16 Sup. Ct. 934, 6 Am. Elec. Cas. 858, Co. v. Mellon, 100 Tcnn. 429, 45 S. Shiras, J., and White, J., dissenting. W. 443. Examine the following cases: Virginia: Western Union Teleg. Georgia: Western Union Teleg. Co. v. Tyler, 90 Va. 297, 18 S. E. Co. V. Lark, 95 Ga. 806,23 8. E. 118. 280, 4 Am. Elec. Cas. 816. See Iowa: Taylor v. Western Union Western Union Teleg. Co. v. Tyler, Teleg. Co., 95 Iowa, 740, 64 N. W. 94 Va. 268, 26 S. E. 828, 6 Am. Elec. 660. Cas. 853, where the court relied upon Mississippi: Marshall v. Western the principal case although the mes- Union Teleg. Co., 79 Miss. 154, 161, sage was a domestic one. 162, 27 So. 614, 89 Am. St. Rep. 585. 603 § 377 REGULATION AND CONTROL clause of the Federal Constitution in so far as it attempts to regulate the delivery of such dispatches at places situated in other States. The authority of Congress over the subject of commerce by telegraph with foreign countries or among the States being supreme, no State can impose an impediment to its freedom by attempting to regulate the delivery in other States of messages received within its own borders. The re- served police power of a State under the Constitution, although difficult to define, docs not extend to the regulation of the delivery at points without the State of telegraphic messages received within the State; but the State may, within the reservation that it does not encroach upon the free exercise of the powers vested in Congress, make all necessary provisions in respect of the buildings, poles and wires of telegraph com- panies within its jurisdiction which the comfort and con- venience of the community may require. ^^ § 377. Regulation of Commerce — Examination and Li- cense of Locomotive Engineers — Color Blindness — Due Process of Law. — The legislature of Alabama enacted a law entitled: ''An act to require locomotive engineers in this State to be examined and licensed by a board to be appointed for that purpose," in which it was provided that it should be "unlawful for the engineer of any railroad train in this State to drive or operate or engineer any train of cars or engine upon the main line or roadbed of any railroad in this State which is used for the transportation of persons, passengers or freight, without first undergoing an examination and obtaining a li- cense as hereinafter provided." The statute then provided for the creation of a board of examiners and prescribed their duties, and authorized them to issue licenses and imposed a license fee, and then enacted, "that any engineer violating the provisions of this act shall be guilty of a misdemeanor, and, " Western Union Teleg. Co. v. rev'g 95 Ind. 12, 8 Am. & Eng. Corp. Pendleton, 122 U. S. 347, 7 Sup. Ct. Cas. 56, 48 Am. Rep. 692, 1 Am. 1126, 30 L. ed. 1187, 18 Am. & Eng. Elec. Cas. 632. See Joyce on Elec- Corp. Cas. 18, 2 Am. Elec. Cas. 49, trie Law (2d ed.), §§ 125-128. 604 REGULATION AND CONTROL § 377 upon conviction, shall be fined not less than fifty nor more than five hundred dollars, and may also be sentenced to hard labor for the county for not more than six months." Plain- tiff in error was an engineer in the service of the Mobile and Ohio Railroad Company, His duty was to "drive, operate and engineer" a locomotive engine drawing a passenger train on that road, regularly plying in one continuous trip between Mobile and Alabama and Corinth in Mississippi, and vice versa, sixty miles of which trip was in Alabama, and two hundred and sixty-five in Mississippi. He never ''drove, operated or engineered" a locomotive engine hauling cars from one point to another point exclusively within the State of Alabama. After the statute of Alabama took effect, he continued to per- form such regular duties without taking out the license re- quired by that act. He was proceeded against for a violation of the statute, and was committed to jail to answer the charge. He petitioned the state court for a writ of habeas corpus upon the ground that he was employed in interstate commerce, and that the statute, so far as it applied to him, was a regulation of commerce among the States, and repugnant to the Consti- tution of the United States. The writ was refused, and the Supreme Court of the State of Alabama on appeal affirmed that judgment. It was held, (1) that the statute of Alabama was not, in its nature, a regulation of commerce, even when applied to such a case as this; (2) that it was an act of legis- lation within the scope of the powers reserved for the States, to regulate the relative rights and duties of persons within their respective territorial jurisdictions, being intended to operate so as to secure safety of persons and property for the public ; (3) that so far as it affected transactions of commerce among the States, it did so only indirectly, incidentally and remotely, and not so as to burden or impede them, and that, in the particulars in which it touched those transactions at all, it was not in conflict with any express enactment of Con- gress on the subject, nor contrary to any intention of Congress to be presumed from its silence; (4) that so far as it was alleged to contravene the Constitution of the United States the statute 605 § 378 REGULATION AND CONTROL was a valid law.'^^ So a state statute which requires loco- motive engineers and other persons, employed by a railroad company in a capacity which calls for the ability to distin- guish and discriminate between color signals, to be examined in this respect from time to time by a tribunal established for the purpose, and which exacts a fee from the company for the service of examination, docs not deprive the company of its property without due process of law, and, so far as it affects interstate commerce, is within the competency of the State to enact, until Congress legislates on the subject.^' § 378. Regulation of Commerce — Tracing Lost Freight. — The imposition, by a state statute, upon the initial or any connecting carrier, of the duty of tracing the freight and informing the shipper, in writing, when, where, how and by which carrier the freight was lost, damaged or destroyed, and of giving the names of the parties and their official position, if any, by whom the truth of the facts set out in the information can be established, is, when applied to interstate commerce, a violation of the commerce clause of the Federal Constitution; and a code which imposes such a duty on common carriers is void as to shipments made from points in the State enacting such statutory provision to other States."* The court in giving this decision distinguishes it from an earlier case, wherein it was held that a state statute enacting that: "When a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing, signed by the owner or his agent; and although there be such contract in writing, 5« Smith V. Alabama, 124 U. S. =« Central of Georgia Ry. Co. v. 465, 31 L. ed. 508, 8 Sup. Ct. 564. Murphy, 196 U. S. 194, 49 L. ed. 444, " Nashville, C. & St. L. Ry. v. 25 Sup. Ct. 218. Alabama, 128 U. S. 96, 32 L. ed. 352, 9 Sup. Ct. 28. 606 REGULATION AND CONTROL § 379 if such thing be lost or injured, such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge," does not attempt to substantially regulate or control contracts as to interstate shipments, but simply establishes a rule of evidence, ordaining the character of proof by which a carrier may show that, although it received goods for trans- portation beyond its own line, nevertheless, by agreement, its liability was limited to its own line; and it does not conflict with the provisions of the Constitution of the United States, touching interstate commerce.^^ § 379. Regulation and Control — Requiring Governmental Consent. — Within its power to control and regulate the exer- cise by a corporation of its franchises or privileges, a State or other governmental agency generally requires its consent as a prerequisite or condition precedent to the use of the public streets or highways, or to the valid exercise of a fran- chise. We have, however, treated this subject throughout this work and it will be only briefly considered here.®" Con- " Richmond & Alleghany R. Co. V. Postal Teleg. Cable Co., 140 Fed. R. A. Patterson Tobacco Co., 169 692, 72 C. C. A. 186, rev'g Ohio Pos- U. S. 311, 42 L. ed. 759, 18 Sup. Ct. tal Teleg. Cable Co. v. Board of Com- 335. Cited in Cleveland, C. C. & St. missioners, 137 Fed. 947 (control by L. Ry. Co. V. Illinois, 177 U. S. 514, States, counties, etc., notwithstand- 517, 20 Sup. Ct. 722, 44 L. ed. 868; ing right under Post Roads Act); Missouri, K. & T. Ry. Co. v. Mc- Detroit Citizens' St. R. Co. v. De- Cann, 174 U. S. 580, 587, 588, 590, troit, 64 Fed. 628, 12 C. C. A. 365, 43 L. ed. 1093, 19 Sup. Ct. 755; Lake 26 L. R. A. 667, 1 Am. & Eng. R. Shore & M. S. Ry. Co. v. Ohio, 173 Cas. (N. S.) 71 (express power given U. S. 285, 324, 19 Sup. Ct. 465, 43 city to grant irrevocable consent; L. ed. 702, in dissenting opinion; street railways); Baltimore Trust & Missouri, K. & T. Ry. Co. v. Haber, G. Co. v. Baltimore (C. C), 64 Fed. 169 U. S. 613, 627, 42 L. ed. 878, 18 153 (right to withdraw consent; lay- Sup. Ct. 488. ing of double tracks). '" Pliiladelphia v. Lombard & S. California: Western Union Teleg. St. Pass. R. Co., 4 Brewst. (Pa.) Co. v. City of Visalia, 149 Cal. 744, 14. 87 Pac. 1023 (effect of attempted See the following ca.sos: grant by ordinance; telegraph corn- United States: (Janz v. Ohio pany); Eisenhuth v. Ackerson, 105 607 § 379 REGULATION AND CONTROL sent may be evidenced by the act of a city's common council in passing a resolution whereby the lighting of certain parts Cal. 87, 38 Pac. 530 (code requiring nent domain may be exercised there- vote of city or town for use of streets; for), veto power of mayor). Kentucky: East Tennessee Teleph. Florida: Florida Cent. & P. R. Co. Co. v. Russellville, 106 Ky. 667, 21 V. Ocala St. & S. R. Co., 39 Fla. 306, Ky. L. Rep. 305, 51 S. W. 308 22 So. 692, 7 Am. & Eng. R. Cas. (privilege to erect telephone line not (N. S.) 696 (statute conferring upon a charter requiring consent under cities control over streets; no power the constitution. See § 44, herein); to consent to exclusive use of all Louisville v. Louisville Water Co., streets by street railway company). 20 Ky. L. Rep. 1529, 49 S. W. 766 Georgia: Almand v. Atlanta Con- (water company using streets for sol. St. Ry. Co., 108 Ga. 417, 34 S. thirty years unquestioned and with- E. 6; Augusta & S. R. Co. v. City out consent; consent unnecessary). Council of Augusta, 100 Ga. 701, 28 Massachusetts: Blodgett v. Wor- S. E. 126. cester Consol. St. Ry. Co. (Mass., Illinois: Independent Teleph. & 1906), 78 N. E. 222 (statute au- Teleg. Co. v. Town of Towanda, 221 thorizing board of aldermen to 111. 299, 77 N. E. 456 (statute re- grant locations subject to "restric- quires notice to highway commis- tions" means "conditions"), sioners, who shall specify what part Michigan: Monroe, City of, v. De- of highway may be used, and where troit, M. & T. Short Line R. Co., 143 they fail to so specify company lo- Mich. 315, 106 N. W. 704 (when cates them at its peril); Chicago statute does not authorize making Teleph. Co. v. Northwestern Teleph. connections with other roads or- Co., 100 111. App. 57, aff'd 65 N. E. ganized under general statute re- 329 (requirement that permit in quiring city's consent with right to writing be obtained; failure to ob- impose conditions). tain concerns city only). Missouri: Lawrence v. Hennessy, Indiana: City R. Co. v. Citizens' 165 Mo. 659, 65 S. W. 717 (city em- St. Ry. Co. (Ind.), 52 N. E. 157, 1 powered by statute to give consent Repr. 376 (consent necessary); Eich- for exclusive privilege; erection, etc., els V. Ry. Co., 78 Ind. 261. of gas works; consent of people un- Kansas: Wichita, City of, v. necessary); State, Crow, v. Lindell Missouri & K. Teleph. Co., 70 Kan. R. Co., 151 Mo. 162, 52 S. W. 248 441, 78 Pac. 886 (cities of first class (power over St. Louis' streets is in may determine and designate streets city and its consent necessary to and alleys which may be occupied enable State to authorize construc- and used by telegraph and telephone tion, etc., of street railway), companies); La Harpe, City of, v. Nebraska: Lincoln St. Ry. Co. v. Elm Township Gaslight, Fuel & City of Lincoln (Neb.), 84 N. W. Power Co., 69 Kan. 97, 76 Pac. 448 802 (ordinance giving consent does (consent to lay pipes to distribute not determine street railway com- natural gas not required in cities of pany's rights; they are based upon second or third class; right of emi- the general law). 608 REGULATION AND CONTROL § 379 of a city, under contract with a gas lighting corporation, is intended and provided for.^^ The term "municipal author- New Jersey: Suburban Electric Light & Power Co. v. Inhabitants of East Orange, 59 N. J. Eq. 563, 44 Atl. 628, 7 Am. Elec. Cas. 37 (per- mission to erect poles for electric light wires required in incorporated cities and towns; permission may be given by resolution as well as by ordinance; permission for poles given, whether further permission for wires required); Consolidated Traction Co. V. East Orange Township, 63 N. J. L. 669, 44 Atl. 1099, aff'g 61 N. J. L. 202, 38 Atl. 803 (ordinance regu- lating the running of electric light wires and requiring permission to trim, cut, etc., trees on public street or highway and penalty for violation of same); State, Hutchinson, v. Bel- mar, 61 N. J. L. 443, 39 Atl. 643, aff'd 62 N. J. L. 450 (consent valid, though proviso attached that street railroad be constructed to certain point at specified time); Saddle River To\vnship v. Garfield Water Co. (N. J. Ch.), 32 Atl. 978 (laying waterpipes in unincorporated vil- lage; consent of proper authorities necessary); Bergen Traction Co. v. Ridgefield Township Committee (N. J. Ch.), 32 Atl. 754 (consent of body governing township or of township committee and of road board ex- clusively controlling highways, nec- essary to enable street car company to construct road; under P. L. 1893, p. 302, § 1; Act May 16, 1894 (P. L. 374); Avon-by-the-Sea Land & I. Co. v. Neptune City (N. J.), 32 Atl. 220 (notice and consent to lo- cate street railway under P. L. 1890, p. 113; P. L. 1886, p. 185, § 8); State, Kennelly, v. Jersey City, 57 N. J. L. 293, 26 L. R. A. 281, 30 Atl. 531 (knowledge by municipal board of particular tracks intended to be laid is necessary before giving consent); State, Theberath, v. Newark (N. J.), 30 Atl. 528 (municipality and not company to determine location, etc., of tracks in granting consent; un- der Act March 14, 1893, P. L. 1893, p. 302). New York: Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 54 N. E. 1081, aff'g 49 N. Y. Supp. 713, 25 App. Div. 329 (consent of board of railroad commissioners required un- der gen.eral railroad law for construc- tion of street railways; legislature has power in first instance to au- thorize without consent and may pass curative act where defect from non-consent of commissioners exists); Colonial City Traction Co. v. King- ston City R. Co., 153 N. Y. 540, 47 N. E. 810, 4 Det. L. N., No. 31, 30 Chicago Leg. News 73, aff'g 44 N. Y. Supp. 732, 15 App. Div. 195, re- hearing denied in 154 N. Y. 493, 43 N. E. 900 (consent of local authori- ties and of one-half in value of prop- erty of abutting owners to entitle street railroad company to use an- other company's line; under N. Y. Const., art. 3, § 18; N. Y. Railroad Law, § 91; this section and § 102 con- strued); New York & L. I. R. Co. v. O'Brien, 100 N. Y. Supp. 316, 50 Misc. 13 (consent obtained for build- ing railroad and tunnel vnider streets of New York, and conhrmed Laws N. Y., 1892, p. 1450, c. 702, amending Laws 1890, p. 1089, c. 565, § 16; not "People V. Littleton, 96 N. Y. 39 Supp. 444, 110 App. Div. 728, aff'd 185 N. Y. 605, 78 N. E. 1109. 609 §379 REGULATION AND CONTROL itics," in a statute providing for the consent of such authorities for the laying of gas mains in a street, is held to mean, in New necessary to sell franchises at pub- lic auction as Railroad Law, Laws 1890, p. 1082, c. 565, repealed Laws 1886, p. 919, c. 642); Carthage, Vil- lage of, V. Central New York Teleph. & Teleg. Co., 96 N. Y. Supp. 917, 48 Misc. 423, rev'd 96 N. Y. Supp. 919, 110 App. Div. 625, rev'd 185 N. Y. 448, 78 N. E. 165 (requiring wires to be placed underground; authority of village trustees) ; Trans- portation Corp. Law, Laws 1890, p. 1152, c. 566, § 102; Village Law, Laws 1897, p. 455, c. 414, § 340, § 89, subdiv. 9, p. 394, § 141, p. 414; West Side Electric Co. v. Consolidated Teleg. & Elec. Subway Co., 96 N. Y. Supp. 609, 110 App. Div. 171 (con- sent of board of aldermen of city of New York necessary prior to charter of 1897, to laying of electric wires in subway; Laws 1879, p. 562, c. 512, § 2; Laws 1887, c. 716, p. 929; Laws 1885, p. 852, c. 499; Transpor- tation Corp. Law, Laws 1890, p. 1146, c. 566, art. 6, § 61, subd. 2); People v. Littleton, 96 N. Y. Supp. 444, 110 App. Div. 728 (requisite consent to gas lighting corporation given by common council of city); Beekman v. Third Ave. R. Co., 43 N. Y. Supp. 174, 13 App. Div. 279 (consent of common council to construction or extension of street railway com- pany regulated by railroad law); Case v. Cayuga County, 34 N. Y. Supp. 595, 68 N. Y. St. Rep. 632, 88 Hun, 59 (board of county super- visors may give consent directly where county property abuts on street on which street railroad is to be laid); McDermott v. Nassau Elec. R. Co., 32 N. Y. Supp. 884, 66 N. Y. St. Rep. 202, 85 Hun, 422 (consent of property owners where street 610 raib'oad bounded on one side by pub- lic park; Laws 1890, chap. 565, § 91, repealed Laws 1894, chap. 723, §91). Ohio: Cincinnati Inclined Plane R. Co. V. Cincinnati, 52 Ohio St. 609, 44 N. E. 327 (consent of one of two city boards; concurrent action; no implied renewal, Stats. 1885, 1888); Reynolds v. City of Cleveland, 24 Ohio Cir. Ct. R. 609 (statute must expressly confer power on municipal corporations to control and regulate construction, etc., of street railways); State v. Columbus Ry. Co., 24 Ohio Cir. Ct. R. 609 (city's consent necessary to con- struct, etc., street railway; so prior to act May 14, 1878, 75 Ohio Laws, p. 359); State v. Dayton Traction Co., 18 Ohio Cir. Ct. R. 490, 10 Ohio C. D. 212 (city may not impose as condition to its consent which pre- vents the corporation from exercising one of its corporate powers); Mor- row County Illuminating Co. v. Village of Mt. Gilead, 10 Ohio S. & C. P. Dec. 235 (council's consent necessary to grant by city of electric light franchise). Pennsylvania: Coatesville & D. St. Ry. Co. V. West Chester St. Ry. Co., 206 Pa. 40, 55 Atl. 844 [consent of local authorities required to be obtained in two years under statute (act June 7, 1901, P. L. 516); com- pany organized thereunder has rights in streets in which it cannot be dis- turbed for two years]; Plymouth Township v. Chestnut Hill & N. R. Co., 168 Pa. 181, 36 W. N. C. 317, 32 Atl. 19, rev'g 4 Pa. Dist. R. 8, 15 Pa. Co. Ct. 442, 12 Lane. L. Rev. 36 (consent may be burdened with such condition that non-compliance REGULATION AND CONTROL § 379 York City, the municipal assembly; but a subsequent permit from the commissioner of public buildings, lighting and the department of highways, is required to allow the corporation to exercise such rights in order that the public convenience may be subserved.^- The Electrical Subway Company has no power to refuse an application for space in its conduits merely because the commissioner of water supply, gas and electricity of the city of New' York has not first given his consent, although under the rules of said commissioner such consent is required before electric conductors can be placed in the space assigned after appUcation made therefor .^^ The individual right of an electrical corporation, organized before therewith will authorize forfeiture); fourth class to construct electric Tamaqua & L. St. R. Co. v. Inter- light and power plants). County St. R. Co., 167 Pa. 91, 36 Wisconsin: Malone v. Waukesha W. N. C. 166, 31 Atl. 473, aff'g 4 Electric Light Co., 120 Wis. 485, 98 Pa. Dist. Pi. 20 (formalities in grant- N. W. 247 (use of streets was granted ing consent to street railway; when electric light company by ordinance, township not bound); Rahn Town- subject to direction, etc., of board of ship V. Tamaqua & L. St. R. Co., public works, which failed to desig- 167 Pa. 84, 36 W. N. C. 165, 31 Atl. nate the particular places for the 472, aff'g 4 Pa. Dist. R. 29 (line in poles; abutting owner's consent nec- eeveral boroughs, consent of all essary, especially where trimming of necessary to building line in any shade trees necessitated to place one); Lehigh Coal & Nav. Co. v. poles. Inter-County St. R. Co., 167 Pa. See §§44, 48, 187, herein; also 75, 36 W. N. C. 160, 31 Atl. 471, Joyce on Electric Law (2d ed.), rev'g 15 Pa. Co. Ct. 293, 12 Lane. §§ 155, 186a, 353-376. L. Rev. 181 (consent to street rail- '^ Ghee v. Northern Union Gas way by supervisors void where con- Co., 158 N. Y. 510, 53 N. E. 692, sideration is a condition benefiting rev'g 56 N. Y. Supp. 450, 34 App. the township officer). Div. 551, Transp. Corp. Act., Laws Virginia: Petersburg, City of, v. 1890, c. 566, § 61, Greater New York Petersburg Afiueduct Co., 102 Va. Charter, Laws 1897, c. 378, §§ 49 654, 47 S. E. 848 (in.solvent water (subdiv. 4), 416, 525, 573. See § 191, company cannot dig up city's streets herein. without hitter's consent, even though . " Long Acre Electric & Power it be conceded that such consent is Co., In re, 101 N. Y. Supp. 460, 51 unnecessary under its cliirter if it Mi.sc. 407, aff'd in 102 N. Y. Supp. wore solvent). 242, 117 App. Div. 80, aff'd in 188 Washington: State v. Taylor. 36 N. Y. 361, 80 N. E. 1101. See Wash. 607, 79 Pac. 286 (franchises § 101 . herein, may be granted by cities of the 61] § 380 REGULATION AND CONTROL the enactment of the laws of New York of 1885, creating a board of commissioners of electrical subways, to the use of the streets to enable them to lay in their, own conduits their electrical conductors, was lost by said statute as all operators of such conductors were obligated to use the subways devised by said board, where plans submitted to the board should fail; and mandamus in this case, to compel the commissioner of water supply, gas and electricity to grant the electrical corporation permission to construct their subway, was denied.''^ § 380. Same Subject. — In New Jersey a township may properly, in the exercise of its powers to regulate and keep in repair streets and highways, require persons desiring to excavate the streets to obtain a permit from the township committee and a deposit for security for the restoration of the street to its natural condition ; and an ordinance requiring such a permit and security is applicable to and binding upon an electric lighting company previously authorized by statute and ordinance to erect poles in the highways and streets. ^^ While it is true, in a strict sense, that, under the system of laws in New Jersey, no corporations of that State can exercise any municipal franchise, still, many franchises are granted by the legislature upon the condition that they shall not be exercised without the consent of the authorities of a city within whose Umits such franchise is intended to be exercised; so that, under a statute exempting from taxation ''any cor- poration" which had not or might not "exercise any municipal franchise," those corporations were intended whose right to exercise their franchises were dependent upon municipal '* People V. Ellison, 101 N. Y. and the statute giving the right to Supp. 441, 51 Misc. 413, aff'd in 101 use the highways for the company's N. Y. Supp. 55, 115 App. Div. 254. purposes required the consent, in See § 191, herein. writing, of the owners of the soil, *^ Cook V. Township of North Ber- which was obtained. Such power gen, 72 N. J. L. 119, 59 Atl. 1035. to regulate streets was also declared There was also in this case a contract to be a branch of the police powder between the township and the light- and that the requirement of a per- ing company for lighting the streets, mit was reasonable. 612 REGULATION AND CONTROL § 380 consent.^® Where there is no restriction on the legislative control of streets and highways contained in a state constitu- tion which declares the right of individuals and corporations to maintain lines of telegraph and telephone within the State, a provision in a statute passed pursuant to such constitutional declaration "that where the right of way, as herein contem- plated, is within the corporate limits of any incorporated city, the consent of the city council thereof shall be first obtained before such telegraph or telephone line can be erected thereon" is valid, and amounts to an authorization to the council to refuse, as well as consent, to such use of the streets, and is not intended as an authorization of power merely to prescribe reasonable and proper regulations for the construction and operation of such lines, the power of regulation and control being amply conferred by other statutory provisions .^^ But a city cannot, by withholding its consent, defeat the exercise of the right of eminent domain possessed by a railroad com- pany in locating its line of road through a city, but at the most the only power of the municipality would be to regulate the location and construction of the road; nor is the objection available, by a landowner in proceedings for condemnation, that no city franchise has been granted for the operation of such road in the city or to cross the streets and alleys thereof.*^* Provisions for obtaining the consent of a majority of the electors of a city before a street railway company is author- ized to construct and operate a street railway over the streets of such city do not empower the city to grant a charter to, or enter into a contract in respect thereto with, such street railway company .^^ An ordinance which prohibits the laying " Board of Assessors v. Plainfield giving city power to grant or refuse Water Supply Co., 67 N. J. L. 357, consent. 52 Atl. 230. «" Memphis & State Line Rd. Co. " State (ex rcl. Spokane & British v. Union Ry. Co., 116 Tenn. 500, 95 Columbia Teleph. & Teleg. Co.) v. S. W. 1019. City of Spokane, 24 Wash. 53, 63 " Lincoln St. Ry. Co. v. City of Pac. 1116, 7 Am. Elec. Cas. 96. See Lincoln, 61 Neb. 109, 110, 84 N. W. State V. Frost (Neb., 1907), 110 N. 808. W. 986, as to validity of ordinance 613 § 381 REGULATION AND CONTROL of any pipe in a public street "without having first obtained from the board of trustees of said city the franchise or privi- lege of using such public street * * * for that purpose," does not import to be a regulation of the manner of doing work. It assumes to require a franchise or privilege as a condition precedent to the occupation of the soil at all7° §381. Regulation of Railroads — Delegation to Commis- sioners — Constitutional Law — Discrimination — Generally.^^ — Railroad corporations are subject to such legislative con- trol as may be necessary to protect the public against danger, injustice or oppression, and this control may be exercised through a board of commissioners.'^ "The elementary proposi- tion that railroads from the public nature of the business by them carried on and the interest which the public have in their operation are subject, as to their state business, to state regu- lation, which may be exerted either directly by the legislative authority or by administrative bodies endowed with power to that end, is not and could not be successfully questioned in view of the long line of authorities sustaining that doc- trine." '^ The public power to regulate railroads and the private right of ownership of such property coexist and do '" Colegrove Water Supply Co. v. Citing Seaboard Air Line v. Florida, City of Hollywood (Cal., 1907), 90 203 U. S. 261, 51 L. ed. 175, 27 Sup. Pac. 1053, 1056, per Sloss, J. (a case Ct. 109; Atlantic Coast Line v. where a water company sought to Florida, 203 U. S. 256, 27 Sup. Ct. enjoin the city from interfering with 108, 51 L. ed. 174; Chicago, B. & the company's rights to lay pipes Q. R. Co. v. Illinois, 200 U. S. 561, across city streets. Judgment for 584, 26 Sup. Ct. 341, 50 L. ed. 596; plaintiff was affirmed; the case Minnesota & St. L. R. Co. v. Minne- turned, however, upon plaintiff's sota, 193 U. S. 53, 48 L. ed. 614, right as owner or licensee of owner 24 Sup. Ct. 396; Minneapolis & St. of fee). L. R. Co. v. Minnesota, 186 U. S. 257, " See §§ 166-170, herein. 22 Sup. Ct. 900, 46 L. ed. 1151; Wis- " New York & N. E. R. Co. v. consin, M. & P. R. Co. v. Jacobson, Bristol, 151 U. S. 556, 14 Sup. Ct. 179 U. S. 287, 45 L. ed. 1194, 21 Sup. 437, 38 L. ed. 269. Ct. 124; Louisville & N. R. Co. v. "Atlantic Coast Line Rd. Co. v. Kentucky, 161 U. S. 677, 695, 40 L. North Carolina Corporation Com- ed. 849, 16 Sup. Ct. 714; Pearsall v. mission, 206 U. S. 1, 19, 51 L. ed. Great Northern R. Co., 161 U. S. 933, 27 Sup. Ct. 585, per White, J. 646, 665, 40 L. ed. 838, 16 Sup. a. 614 REGULATION AND CONTROL § 381 not the one destroy the other; and where the power to regu- late is so arbitrarily and unreasonably exerted as to cause it to be in effect not a regulation, but an infringement upon the right of o\Miership, such exertion is void because repugnant to the due process and equal protection clause of the Four- teenth Amendment/^ A regulation may impose no greater obligation upon a railroad company than the common law would have imposed upon it. This is illustrated by a state constitutional provision that: "All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this State, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freight or passengers within the State, and no railroad company, nor any lessee, manager, 705; Chicago & Grand Trunk R. Co. mission, 206 U. S. 1, 51 L. ed. 933, V. Wellman, 143 U. S. 339, 12 Sup. 27 Sup. Ct. 585. Citing Chicago, B. Ct. 400, 30 L. ed. 176; Charlotte, C. & Q. R. Co. v. Illinois, 200 U. S. 561, & A. R. Co. V. Gibbes, 142 U. S. 386, 592, 50 L. ed. 596, 26 Sup. Ct. 341; 35 L. ed. 1051, 12 Sup. Ct. 255; Dow Minneapolis & St. Louis R. Co. v. V. Beidelman, 125 U. S. 680, 31 L. Minnesota, 186 U. S. 257, 22 Sup. ed. 841, 8 Sup. Ct. 1028; Stone v. Ct. 900, 46 L. ed. 1151; Chicago, New Orleans & Northeastern R. Co., M. & St. P. R. Co. v. Tompkins, 176 116 U. S. 352, 6 Sup. Ct. 349, 29 U. S. 167, 172, 20 Sup. Ct. 336, 44 L. ed. 651; Stone v. Illinois Central L. ed. 417; Smyth v. Ames, 169 U. S. R. Co., 116 U. S. 347, 29 L. ed. 650, 6 466, 512, 42 L. ed. 819, 18 Sup. Ct. Sup. Ct. 348, 1191; Stone V. Farmers' 418; Chicago, B. & Q. R. Co. v. Loan & Trust Co., 116 U. S. 307, 29 Chicago, 166 U. S. 226, 241, 41 L. L. ed. 636, 6 Sup. Ct. 334; Illinois ed. 979, 17 Sup. Ct. 581; St. Louis Central Rd. Co. v. Illinois, 108 U. S. & San Francisco R. Co. v. Gill, 156 541, 27 L. ed. 818, 2 Sup. Ct. 839; U. S. 649, 657, 39 L. ed. 567, 15 Ruggles V. Illinois, 108 U. S. 526, Sup. Ct. 484; Reagan v. Farmers' 536, 2 Sup. Ct. 832, 27 L. ed. 812; Loan & Trust Co. (No. 1), 154 U. S. Stone V. Wisconsin, 94 U. S. 181, 24 362, 399, 38 L. ed. 1014, 14 Sup. Ct. L. ed. 102; Winona & St. Peter R. 1047; Chicago & Grand Trunk R. Co. V. Blake, 94 U. S. 180, 24 L. ed. Co. v. Wellman, 143 U. S. 339, 12 99; Chicago, M. & St. P. R. Co. v. Sup. Ct. 400, 30 L. ed. 176; Chicago, Ackley, 94 U. S. 179, 24 L. ed. 99; M. & St. P. R. Co. v. Minnesota, 134 Peik V. Chicago & N. W. R. Co., 94 U. S. 418, 455, 10 Sup. Ct. 462, 33 U. S. 164, 24 L. ed. 97; Chicago, B. L. ed. 970; Stone v. Farmers' Loan & Q. R. Co. V. Iowa, 94 U. S. 155, 24 & Trust Co., 116 U. S. 307, 331, 6 L. ed. 94. Sup. Ct. 334, 29 L. ed. 636. '♦Atlantic Cf)ast Line Rd. Co. v. See §§ 166-170, herein. North Carolina Corporation Com- 615 § 3S2 REGULATION AND CONTROL or employee thereof, shall give any preference to individuals, associations or corporations in furnishing cars or motix'e power." ^^ An order of the Interstate Commerce Commis- sion is not a lawful order and enforceable where its enforce- ment will deprive a carrier of its business at a particular place, as in case of an order to discontinue a custom of furnishing cartage/^ § 382. Regulation of Railroads — Protection Against In- jury to Persons and Property. — A statute authorizing a mu- nicipal corporation to require railroad companies to provide protection against injury to persons and property confers plenary power in those respects over the railroads within the corporate limits.'^ So a city, when authorized by the legis- lature, may regulate the speed of trains within its limits, and this extends to interstate trains in the absence of con- gressional action on the subject. The Interstate Transit Railway is a railway connecting Kansas City, Missouri, with Kansas City, Kansas, and the exception of its trains from the general provision in the city ordinance respecting the speed of trains in the city was an exception entirely within the power of the legislature to make.^* And it is not an un- reasonable requirement that a railroad company light its line "Atchison, T. & S. F. R. Co. v. press accommodation; and they need Denver & N. O. R. Co., 110 U. S. not, in the absence of a statute, fur- 667, 28 L. ed. 291, 4 Sup. Ct. 185 nish to all independent express com- (case reverses 15 Fed. 650), cited in panics equal facilities for doing an Express Cases, 117 U. S. 1, 29, 6 express business upon their pas- Sup. Ct. 542, 628, 29 L. ed. 791, senger trains. which holds that railroad companies Examine Nelson's Interstate Com- are not required by usage, or by the merce Commission, pp. 48 et seq. common law, to transport the traffic '° Detroit, G. H. & M. Ry. Co. v. of independent express companies Interstate Commerce Commission, 7 over their lines in the manner in Fed. 803, 21 C. C. A. 103, 43 U. S. which such traffic is usually carried App. 308. and handled. Railroad companies " Hayes v. Michigan Central R. R. are not obliged either by the com- Co., Ill U. S. 228, 28 L. ed. 410, mon law or by usage to do more as 4 Sup. Ct. 369. express carriers than to provide the '' Erb v. Morasch, 177 U. S. 584, public at large with reasonable ex- 44 L. ed. 897, 20 Sup. Ct. 788. 616 REGULATION AND CONTROL § 382 by electricity within a certain time after notice of the passage of the ordinance so providingJ** Again, a state statute di- rected to the extinction of railway grade crossings as a menace to public safety, is a proper exercise of the police power of the State.*" So a statute is constitutional which places a part of the burden of expense necessary to improve a bridge, upon a railroad company benefited thereby, as where the bridge, instead of crossing at grade, spans the railroad, and two abutments on the old way are provided for, although there is no technical abandonment of such way *^ A grant of a right of way over a tract of land to a railroad company by a municipal corporation, by an ordinance which provides that the company shall erect suitable fences on the line of the road and maintain gates at street crossings, is not a mere contract, but is an exercise of the right of municipal legisla- tion, and has the force of law within the corporate limits.*^ So" a State may constitutionally provide by statute, by a general law of uniform operation for the indictment of rail- road companies for neglect or failure to furnish pure drinking water for passengers.*^ If railroad commissioners have au- thority under a state statute to investigate the cause of rail- road accidents upon notice, and the enactment empowers them to order, after notice and an investigation and hearing, "St. Mary v. Lake Erie & W. R. M. R. Co., 73 N. H. 597, 64 Atl. Co. (Ohio), 53 N. E. 595. 202. '^ New York & N. E. R. Co. v. ^' Bristol County, In re, 193 Mass. Bristol, 151 U. S. 556, 38 L. ed. 269, 257, 79 N. E. 339. See Charlotte, 14 Sup. Ct. 437. Cited in Chicago, Columbia & Atlanta Rd. Co. v. B. & Q. R. Co. V. Nebraska, 170 Gibbes, 142 U. S. 386, 35 L. ed. 1051, U. S. 57, 74, 42 L. ed. 948, 18 Sup. 12 Sup. Ct. 255, 45 Am. & Eng. R. Ct. 513; Wabash R. Co. v. Defiance, Cas. 595; Nashville, C. & St. L. Ry. 167 U. S. 88, 99, 17 Sup. Ct. 748, 42 v. Alabama, 128 U. S. 96, 32 L. ed. L. ed. 87; Louisville & Nashville Rd. 352, 9 Sup. Ct. 28. V. Kentucky, 161 U. S. 677, 696, 40 " Hayes v. Michigan Central R. R. L. ed. 849, 16 Sup. Ct. 714. See Co., Ill U. S. 228, 4 Sup. Ct. 369, New York, N. H. & H. R. Co. v. 28 L. ed. 410. See Chicago, L & L. Wheeler (Conn.), 45 Atl. 14; New Ry. Co. v. Irons (Ind. App., 1906), Haven Steam Sawmill Co. v. City 78 N. E. 207. of New Haven, 72 Conn. 276, 44 "Southern Ry. Co. v. State, 125 Atl. 229 See Blake v Concord & Ga. 287, 54 S. E. 160. G17 § 383 REGULATION AND CONTROL such change in the manner of operation of the road as shall be reasonable and expedient to facilitate public safety, an order made, requiring a change in the mode of operation, is void and without jurisdiction where proper notice of the statutory proceeding required is not given.*'* The power of a State to create railway corporations, and such creation being for public purposes, embodies the right of the legislature to enact statutes regulating the increase of their capital stock. In the exercise of this right the legislature may enact a statute providing generally for what purposes and upon what terms, conditions and limitations an increase of capital stock may be made. Such regulations tend to prevent secrecy of opera- tion and accounts by such public agencies, and the issue and sale of fictitious or watered stock. *^ § 383. Regulation of Railroads — Providing Stations or Waiting Rooms — Police Power. — It is the proper duty of a railroad company to establish stations at proper places, and it is within the power of the States to make it prima facie a duty of the companies to establish them at all villages and boroughs on their respective lines. And a general law of State, requiring the erection and maintenance of depots by railroad companies on the order of the Railroad and Ware- house Commission under certain conditions specified in the statute, does not deny the railroad company the right to reasonably manage or control property or arbitrarily take its property without its consent, or without compensation or due process of law, and is not repugnant to the Constitution of the United States.*^ It is a proper exercise of the police power to require waiting rooms and stations to be erected at railroad crossings ; *^ and also suitable and convenient waiting rooms kept and maintained in decent order and repair and fit for the accommodation of the public and subject in these '^Rutland R. Co., In re (Vt., »« Minneapolis & St. L. R. Co. v. 1906), 64 Atl. 233. Minnesota, 193 U. S. 53, 24 Sup. Ct. «5 State V. Great Northern Ry. Co., 396, 48 L. ed. 614. 100 Minn. 445, 10 L. R. A. (N. S.) "State v. Kansas City, Ft. S. & 250, 111 N. W. 289. G. R. Co. (C. C), 32 Fed. 722. 618 REGULATION AND CONTROL § 384 respects to a certain degree of supervision or regulation by the Railroad Commission.** But a railroad company cannot be required to provide two detached depots, one for passen- gers and another for freight, in one town, even though a Railroad Commission is empowered by statute to provide sufficient station facilities and to locate new depots where the railroad company has selected an inconvenient site *^ § 384. Regulation of Railroads — Sunday Trains — Inter- state Commerce — Police Power. — A statute forbidding the running of freight trains on any railroad in the State on Sun- day, and providing for the trial and punishment on convic- tion of the superintendent of a railroad company violating that provision, although it affects interstate commerce in a limited degree, is not, for that reason, a needless intrusion upon the domain of Federal jurisdiction, nor strictly a regula- tion of interstate commerce, but is an ordinary police regu- lation designed to secure the well-being and to promote the general welfare of the people within the State, and is not invahd by force alone of the Constitution of the United States ; but is to be respected in the courts of the Union until super- seded and displaced by some act of Congress, passed in execu- tion of the power granted it by the Constitution. This is especially so where there is nothing in such state legislation that suggests that it was enacted with the purpose to regulate interstate commerce, or with any other purpose than to pre- scribe a rule of civil duty for all who on the Sabbath day, are within the territorial jurisdiction of the State .®° 88 Illinois Cent. R. Co. v. Common- 89 State v. Yazoo & M. V. R. Co., wealth (Ky.), 52 S. W. 818. As to 87 Miss. 679, 40 So. 263. abandonment of stations, authority "o Hennington v. Georgia, 163 U. S. of railroad commissioners to consent 299, 41 L. ed. 166, 16 Sup. Ct. 1086. or refuse to consent thereto in regard Cited in Employers' Liability Cases to existing stations, and their in- (Howard v. Illinois Central Rd. Co, ability to contract so as to bind the and Brooks v. Southern Pacific Co.), State concerning the establishment 207 U. S. 463, 535 (in dissenting of stations, see Railroad Company V. opinion of Moody, J.); Cleveland, Hammersley, 104 U. S. 1, 26 L. ed. C. C. & St. L. R. Co. v. Illinois, 177 629. U. S. 514, 517, 20 Sup. Ct. 722, 44 619 § 385 REGULATION AND CONTROL § 385. Regulation of Railroads— Safety Appliances and Devices — Heating Cars, — The object of the provisions of the Safety Appliance Acts of 1893 and 1896,^^ declaring it to be unlawful for any common carrier engaged in interstate com- merce to haul or permit to be hauled or used on its line any car used in moving interstate commerce not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, was to protect the lives and limbs of railroad employees by rendering it unnecessary for men operating the couplers to go between the ends of the cars, and the words "used in moving interstate traffic" occurring therein are not to be taken in a narrow sense .^^ The statute also includes a car of another company hauled over the lines of a railroad and employed in moving interstate traffic; so a car is used in such traffic where, although belonging to another company, it is received by a railroad from the latter and taken from its yards with the intention of making part of a train and moving it to its destination in another State, and if it is not equipped as provided for by the statute as to safety appliances the railroad company so employing the car in transportation is liable for the penalty imposed by the enactment.''^ The statute also relates to all kinds of cars running on the rails, including locomotives and steam shovel cars.^^ And in holding that locomotive engines are included I., ed. 868; Petit v. Minnesota, 177 '* Schlemmer v. Buffalo, Rochester U. S. 164, 44 L. ed. 716, 20 Sup. Ct. & Pittsburg Ry. Co., 205 U. S. 1, 57 666; Lake Shore & Mich. South. Ry. L. ed. 681, 27 Sup. Ct. 407, rev'g Co. V. Ohio, 173 U. S. 285, 289, 43 207 Pa. 198. L. ed. 702, 19 Sup. Ct. 465 (in dis- " United States v. Chicago, P. & senting opinion); Missouri, K. & T. St. L. Ry. Co., 143 Fed. 353. See Ry. Co. V. Haber, 169 U. S. 613, United States v. Great Northern Ry. 627, 18 Sup. Ct. 488, 42 L. ed. 878; Co., 145 Fed. 438; United States v. Gladson v. Missouri, 166 U. S. 427, Northern Pacific Terminal Co., 144 430, 41 L. ed. 1064, 17 Sup. Ct. Fed. 861. 627; Pierce v. Van Dusen, 78 Fed. '* Schlemmer v. Buffalo, Rochester 699. & Pittsburg Ry. Co., 205 U. S. 1, 57 "Act of Cong. March 2, 1893, §2, L. ed. 681, 27 Sup. Ct. 407, rev'g as am'd April 1 , 1896. 207 Pa. 198. 620 REGULATION AND CONTROL § 385 by the words "any car" contained in the second section of the act of 1893^^ requiring cars engaged in interstate com- merce to be equipped with automatic couplers, it is further decided that although they were also required by the first section of the act to be equipped with power driving-wheel brakes, the rule that the expression of one thing excludes others does not apply, inasmuch as there was a special reason for that requirement and in addition the same necessity for automatic couplers existed as to them as in respect to other cars. A dining car regularly engaged in interstate traffic does not cease to be so when waiting for the train to make the next trip. The equipment of cars with automatic couplers which will not automatically couple with each other so as to render it unnecessary for men to go between the cars to couple and uncouple is not a compliance with the law.^^ Under the laws of the State of Michigan the commissioner of railroads has power to compel a street railroad to install safety appliances in accordance with law, the cost to be shared between it and a steam railroad occupying the same street, notwithstanding that the steam road is the junior occupier of the street.^'' And a statute does not unconstitutionally take private prop- The Safety Appliance Acts are, to rely thereon, the burden is upon according to the title, intended to it to bring itself within the terms of promote the safety of employees and the exception; those who set up travellers upon railroads by com- such an exception must establish it. pelling common carriers engaged in Schlemmer v. Buffalo, Rochester & interstate commerce to equip their Pittsburg Ry. Co., 205 U. S. 1, 57 cars with automatic couplers and L. ed. 681, 27 Sup. Ct. 407, rev'g continuous brakes and their locomo- 207 Pa. 198. lives with driving wheel brakes, and "^ Act of Cong. March 2, 1893, 27 for other purposes: for this act, see Stat. 531, c. 196. Nelson's Interstate Commerce Com- '"Johnson v. Southern Pac. Co., mission, pp. 125 et seq. 196 U. S. 1, 49 L. ed. 872, 25 Sup. Ct. Pleading and proof. In a suit 158. The act of March 2, 1903, 32 based upon the Safety Appliance Act Stat. 943, c. 976, was held to re- ef March 2, 1893, as amended April 1, iterate the view above expressed and 1896, the plaintiff is not called upon to be declaratory thereof, to negative the proviso of § 6 of said " Detroit, Fort Wayne, Belle Isle act, either in his pleadings or proofs. Ry. v. Osbom, 189 U. S. 383, 47 L. Such proviso merely creates an ex- ed. 860,23 Sup. Ct. — , aff'g 127 Mich, ception, and if the defendant wishes 219, 86 N. W. 842. 621 § 386 REGULATION AND CONTROL erty for public use without compensation by requiring rail- road companies to maintain such safety devices at crossings as shall be reasonably necessary for public protection.^* The statutes of New York regulating the heating of steam pas- senger cars, and directing guards and guard posts to be placed on railroad bridges and trestles and the approaches thereto ^^ were passed in the exercise of powers resting in the State in the absence of action by Congress, and, when applied to interstate commerce, do not violate the Constitution of the United States.^ § 386. Regulation of Railroads— General Decisions- Extra Trains for Connections — Removal of Tracks — Keep- ing Open Ticket Offices — Limitation of Liability — Adjusting Damage Claims — Separate Cars. — It is within the power of a State Railroad Commission to compel a railroad company to make reasonable connections with other roads so as to pro- mote the convenience of the travelling public, and an order requiring the running of an additional train for that purpose, if otherwise just and reasonable, is not inherently unjust and unreasonable because the running of such train will impose some pecuniary loss on the company.^ A city, having author- ity under its charter to change its streets by widening or straightening them, etc., and also being empowered to enact governmental regulations and ordinances under a general welfare clause, may, when the act is not unreasonable or ar- bitrary, compel a railroad company to remove its tracks to another street than the one on which they are laid.^ And the removal of a spur which has been constructed may be pre- »« State V. St. Paul, M. & M. Ry. S. 1, 51 L. ed. 933, 27 Sup. Ct. 585. Co. (Minn., 1906), 108 N. W. 261. See Jacobson v. Wisconsin, M. & P. »» Laws N. Y. 1887, c. 616, Laws R. Co., 71 Minn. 519, 40 L. R. A. 1888, c. 189. 389, 74 N. W. 893, aff'cl Wisconsin, 1 New York, N. H. & H. R. Co. v. M. & P. R. Co. v. Jacobson, 179 New York, 165 U. S. 628, 17 Sup. Ct. U. S. 287, 45 L. ed. 194, 21 Sup. Ct. 418, 41 L. ed. 853. 115. ' Atlantic Coast Line Ry. Co. v. ^ Atlantic & B. Ry. Co. v. City of North Carolina Commission, 206 U. Cordele, 125 Ga. 373, 54 S. E. 155. 622 REGULATION AND CONTROL § 386 vented by a Railroad Commission.'* The requirement that ticliet offices shall be kept open for half an hour prior to the departure of each train should also be complied with.^ While Congress under its power may provide for contracts for inter- state commerce permitting the carrier to limit its liability to a stipulated valuation, it does not appear that Congress has, up to the present time, sanctioned contracts of this nature; and, in the absence of Congressional Icpislation on the subject, a State may require common carriers, although in the execution of interstate business, to be liable for the whole loss resulting from their own negligence, a contract to the contrary notwithstanding. There is no difference in the application of a principle based on the manner in which a State requires a degree of care and responsibility, whether enacted into a statute or resulting from the rules of law en- forced in its courts.^ The statute of South Carolina of 1903, imposing a penalty of fifty dollars on all common carriers for failure to adjust damage claims within forty days is not, as to interstate shipments, unconstitutional as violative of the Fourteenth Amendment, neither the classification, the amount of the penalty or the time of adjustment being beyond the power of the State to determine. And this applies in the matter of a small claim, as small shipments are the ones which especially need the protection of penal statutes of this nature .'' The statute of the State of Mississippi of 1888, requiring all railroads carrying passengers in that State (other than street railroads) to provide equal, but separate, accommodations for the white and colored races, having been construed by the Supreme Court of the State to apply solely to commerce within the State, does no violation to the commerce clause of the Constitution of the United States.* And in another case ♦ Railroad Commission of La. v. 132, 48 L. ed. 268, aff 'g 202 Pa. 222, Kansas City Southern Ry. Co., Ill .51 Atl. 990. Decided in 1903. La. 1.33, .3.5 So. 487. ' Seaboard Airline Ry. v. Seegers, 5 Gulf, C. & S. F. Ry. Co. v. Dyer 207 U. S. 73, aff'g 73 S. C. 71. (Tex. Civ. App.), 95 S. W. 12. » Louisville, N. O. & T. R. Co. v. •Pennsylvania R. R. Co. v. Mississippi, 133 U. S. 587, 33 L. ed. Hughes, 191 U. S. 477, 24 Sup. Ct. 730, 10 Sup. Ct. 365. 623 § 387 REGULATION AND CONTROL it is held that the provisions of the statute of Louisiana are not in conflict with either the Thirteenth or the Fourteenth Amendment of the Federal Constitution. Said enactment required railway companies carrying passengers in their coaches in that State, to provide equal, but separate, ac- commodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; and providing that no per- son shall be permitted to occupy seats in coaches other than the ones assigned to them, on account of the race they belong to; and requiring the officers of the passenger trains to assign each passenger to the coach or compartment assigned for the race to which he or she belongs; and imposing fines or im- prisonment upon passengers insisting upon going into a coach or compartment other than the one set aside for the race to which he or she belongs; and conferring upon officers of the trains power to refuse to carry on the train passengers refus- ing to occupy the coach or compartment assigned to them, and exempting the railway company from liability for such refusal.^ § 387. Regulation of Street Railroad Companies — Police Power. — A municipality under its right to make reasonable regulations concerning the use of its streets by a street rail- road company ^^ may limit the speed of its cars,^^ or the length ' Plessy V. Ferguson, 163 U. S. 537, "State, Cape May, D. B. & S. 16 Sup. Ct. 1138, 41 L. ed. 256. P. R. Co. v. Cape May, 59 N. J. L. i» Baltimore v. Baltimore Trust & 393, 36 Atl. 679, 36 L. R. A. 656, 9 Guar. Co., 168 U. S. 673, 17 Sup. Ct. Am. & Eng. R. Cas. (N. S.) 507, 696, 41 L. ed. 1160, 3 Va. Law Reg. 6 Am. Elec. Cas. 42; Choquette 189; Joyce on Electric Law (2d ed.), v. Southern Elec. R. Co. (Mo.), 53 § 147. See People v. Geneva, W. S. W. 897; Joyce on Electric Law S. F. & C. L. Traction Co., 98 N. Y. (2d ed.), §§ 463, 464. Supp. 719, 112 App. Div. 581, aff'd Examine the following cases: 186 N. Y. 516, 78 N. E. 1109; City Alabama: Montgomery St. Ry. of New York v. Interurban Street Co. v. Lewis (Ala., 1906), 41 So. 736. Railway Co., 86 N. Y. Supp. 673, Delaware: Licznerski v. Wil- 43 Misc. 29; also § 63 (and note at mington City Ry. Co. (Del. Super.), p. 155), herein. 62 Atl. 1057. 624 REGULATION AND CONTROL § 387 of time of service or of running cars on certain streets; ^^ require the tracks to be watered so as to effectually lay the dust; ^^ provide for the equipment of cars; ^"^ require the em- ployment of a conductor as well as a motorman; ^^ prohibit the use of salt on the tracks, except at certain places; ^^ and make other lawful regulations in the exercise of the police power. The right of the legislature to require street railway companies in cities of a certain class to pave the part of the streets occupied by their tracks so as to conform with the im- provements made in the remainder of the streets, or, in case they fail or neglect to perform such duty, to authorize the municipal authorities to make such improvements, and by the levy of a special assessment, charge the cost and expense thereof against such street railway company, which shall be a lien on its property, is a reasonable exercise of the reserve power vested in the legislature and in no wise violates or impairs the obligation of a contract with respect to the charter of such street railway company. ^^ But it is held that a city Georgia: Hill v. Rome St. R. Co., 97 N. W. 36; State of Minnesota v. 99 Ga. 103, 24 S. E. 866, 3 Am. Neg. Smith, 58 Minn. 35, 5 Am. Elec. Cas. Rep. 353. 614, 59 N. W. 545. Examine State Missouri: Campbell v. St. Louis v. Whitaker, 160 Mo. 59, 60 S. W. & S. Ry. Co., 175 Mo. 161, 75 S. W. 1068; Brooklyn v. Nassau Elec. R. 86. Co., 56 N. Y. Supp. 609, 38 App. New Hampshire: Bly v. Nassau Div. 365; Yonkers, City of, v. St. R. Co., 67 N. H. 474, 30 L. R. A. Yonkers' R. Co., 64 N. Y. Supp. 303, 32 Atl. 764. 955, 51 App. Div. 271; Henderson v. New York: Union Traction Co. V. Durham Traction Co., 132 N. C. City of Watervliet, 71 N. Y. Supp. 779, 44 S. E. 598. Compare Buente v. 977, 35 Misc. 392. Pittsburg, A. & M. Tract. Co., 2 Pa. Ohio: Lewis v. Cincinnati St. Ry. Super. Ct. 185. Co., 10 Ohio S. & C. P. Dec. 53. '^ Danville St. Car Co. v. Wood- '^ People V. Detroit Citizens' Ry. ing (Danville, Va., C. C), 2 Va. L. Co., 116 Mich. 132, 74 N. W. 520, Reg. 244. 4 Det. L. N. 1198, 16 Nat. Corp. Rep. '"State, Consol. Tract. Co., v. 436, 11 Am. & Eng. R. Cas. (N. S.) EUzabeth, 58 N. J. L. 619, 32 L. R. A. 798. 170, 34 Atl. 146, 3 Am. & Eng. R. "State V. Canal & C. R. Co., 50 Cas. (N. S.) 614. La. Ann. 1189, 24 So. 265. " Lincoln St. Ry. Co. v. City of '* People v. Detroit United Rail- Lincoln, 61 Neb. 109, 110, 84 N. W. way (Mich.), 10 Dot. L. New.s, 648, 80S. See Amsterdam, City of, v. 40 625 § 387 REGULATION AND CONTROL has no right under its pohce powers to adopt an ordinance requiring a motorman to "keep a vigilant watch for all vehicles on the track or moving towards it, and on the first appear- ance of danger to such vehicle, to stop the car in the shortest time and space possible." To make such an ordinance bind- ing it should appear that the railroad company on accepting its franchise from the city and in consideration thereof under- took and agreed to obey the provisions of such ordinance. Such an agreement would create a contractual liability on its part, which did not exist at common law, but which was necessary to bind it. Laws controlling the liability of citizens inter se, must emanate from the legislature, in whom alone such power is vested by the Constitution.^^ Again a municipal Fonda, J. & Y. R. Co., 101 N. Y. lice regulations control the citizen in Supp. 694, 51 Misc. 438, aff'd 104 respect to his relations to the city, N. Y. Supp. 411; Weed v. City of representing the public at large, Binghamton, 71 N. Y. Supp. 282, and for this reason are enforcible by 62 App. Div. 525; also §§337 (and fine and imprisonment, but laws con- note 69), 338, herein. trolling the liability of the citizens '* Sanders v. Southern Elec. Ry. inter esse, must emanate from the Co., 147 Mo. 411, 48 S. W. 855. legislature in whom alone such The court (at pp. 425-427), per power is vested by the constitution Marshall, J., said: "This precise or- [Norton v. City of St. Louis, 97 Mo. dinance regulation underwent ad- 537, 11 S. W. 242; City of St. Louis v. judication by this court in Fath v. Connecticut Mut. Life Ins. Co., 107 Tower Grove & Lafayette Ry. Co., Mo. 92, 17 S. W. 637; Heeney v. 105 Mo. 537, and Sherwood, J., Sprague, 11 R. I. 456; Railroad Co. said: 'Proceeding then to inquire v. Ervin, 89 Pa. 71; Vandyke v. into the validity of the ordinance. City of Cincinnati, 1 Disn. 532; it may be admitted at the outset, Flynn v. Canton Co., 40 Md. 312; that it is beyond the power of a Jenks v. Williams, 115 Mass. 217; municipal corporation by its leg- Kirby v. Association, 14 Gray (Mass.), islative action directly to create a 249.] A provision of the charter of "civil duty, enforcible at common a city, whether the charter be law;" for this is an exercise of power granted by an act of the legislature, of sovereignty belonging to the or be adopted by the people of the State.' * * * The legislature city pursuant to the power conferred may delegate a part of the police by art. 9 of the constitution which power of the State to a municipality, takes the place and has the force of a but it cannot delegate the legislative legislative act, stands on a totally functions of making laws that will be different plane from an ordinance of binding upon citizens between them- a city passed under its police power. selves in civil proceedings. The po- The latter creates no new right or 626 REGULATION AND CONTROL § 387 ordinance regulating the speed of cars used upon a street railroad is within the city's police power and applies not only to all territory within the corporate limits but also to sub- sequently acquired territory and affords a sufficient basis for an action for a personal injury due to its breach. ^^ remedy between citizens; is enforcible only by quasi civil-criminal pro- ceedings, and creates a municipal misdemeanor. The former is as much a law of the State as if it had been enacted by the legislature. The legislature under its reserve powers in the constitution may repeal or amend it, but until it does so, the provision of the organic law is a valid regulation and is binding upon citizens, both in their relation to the city and among themselves. The reason is that the people — the source of all power — conferred the right, by the constitution, upon the city to so legislate by its organic law, just as they granted the legislative power generally to the General Assembly, or the judicial power to the courts." But compare Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106, 12 Am. Neg. Rep. 604; Meyers v. St. Louis Transit Co. (Mo. App.), 73 S. W. 379; Gebhart V. St. Louis Transit Co. (Mo. App.), 71 S. W. 448; J. F. Conrad Grocer Co. V. St. Louis & M. R. R. Co., 89 Mo. App. 391. i» Deneen v. Houghton County St. Ry. Co., 150 Mich. 235, 14 Det. Leg. News, 670, 113 N. W. 1126. 627 REGULATION AND CONTROL CONTINUED — CHAPTER XXIII. REGULATION AND CONTROL CONTINUED — RATES AND CHARGES. 388. Regulation of Gas and Natu- ral Gas Companies — Police Power. 389. Regulation of National Banks. 390. Regulation of Rates — Gen- eral Rules. 391. Regulation of Public Ware- houses and Their Charges — Munn V. Illinois. 392. Regulation of Gas Rates — Method of Valuation — Penalty — Equity — Injunc- tion. 393. Regulation of Water Rates — Obligation of Contracts — Due Process of Law — Equal Protection of Laws — Reservation of Power to Amend. 394. Regulation of Water Rates Continued — Obligation of Contracts — Defense That Franchise Has Expired. 395. Regulation of Water Rates C o n t i n u ed — Illustrative Decisions. 396. Regulation of Ferry Fares and Tolls. 397. Regulation of Rates or Tolls of Turnpike Companies — Due Process of Law — Power of Courts. 398. Regulation of Fares — Street Railways — Obhgation of Contract. 628 § 399. Regulation of Fares — Street Railways Continued — Con- stitutional Law — Contract with Company — Altera- tion. 400. Regulation of Rates — Rail- , roads. 401. Regulation of Rates — Rail- roads — Power of Railroad and Like Commissioners. 402. Railroads — Regulation of Rates by Congress — Reser- vation of Right to Alter or Amend. 403. Object of Interstate Com- merce Act — Powers and Jurisdiction of Interstate Commerce Commission. 404. Regulation of Rates — Rail- roads — Interstate Com- merce — ^Taxation of Freight or Passengers. 405. Regulation of Rates — Rail- roads — Non-user of Legis- lative Power — Lessee. 406. Regulation of Rates — Rail- roads — Reasonableness of Rates — Confiscatory Rates — Due Process of Law — Equal Protection of Laws. 407. Railroad s — Unreasonable Rate Regulation — Judicial Inquiry — Due Process of Law — Equal Protection of the Laws. RATES AND CHARGES § 388 § 408. Railroad— Rates Fixed by —To What Extent Legis- Legislative Action Pre- lative Power Affected sumed Reasonable — Rail- Thereby — Exemptions — road Commission — Due Right to Create Railroad Process of Law. Commission — Power to 409. Railroads — Test of Reason- Amend, etc., Successor ableness of Rates Pre- Company — Obligation of scribed by State — Practice Contracts. —Findings. § 41.3. Right of Carrier to Fix Rates 410. Regulation of Rates— Rail- — Basis Upon Which Fixed. road in Two or More States 414. Right of Carrier to Fix Rates — Continuous Line — Con- in Competition — Long and soUdation — Test of Rea- Short Hauls— Discrimina- sonableness of Rate — Pen- tion. alties — Defense. 415. Right of Carrier to Fix Rates 411. Railroad — Arbitrary Regula- in Competition Continued tion of Rates — Mileage — Interstate Commerce — Tickets — Discrimination — Presumption of Good Faith Due Process of Law^ — — Discrimination. Equal Protection of the 416. Railroad Rates — Excessive Laws. Penalties — Equal Protec- 412. Right of Carrier to Fix Rates tion of Law. § 388. Regulation of Gas and Water Companies— Police Powef.^ — In granting the exclusive franchise to supply gas to a municipality and its inhabitants, a state legislature does not part with the police power and duty of protecting the public health, the public morals and the public safety, as one or the other may be affected by the exercise of that franchise by the grantee.2 And it constitutes a proper exercise by the legisla- ture of the police power to regulate the pressure of natural gas in pipes although such exercise of power should not amount to oppression.^ So where a court has jurisdiction over such mat- ters it may direct a company to lay its pipes for natural gas below the surface of the ground.'' Where a state statute pro- ' See §§ 16, 82-84, 160, 186, 194, 28 N. E. 76, 10 Ry. & Corp. L. J. 163, 198, 374, herein, as to franchises, etc., 44 Alb. L. J. 14.5. Examine as to of gas and natural gas companies. principle involved Consolidated Gas * New Orleans Gas Co. v. Louisiana Co. v. City of New York (C. C), 157 Light Co., 115 U. S. 650, 29 L. ed: Fed. 849, considered under § 392, 516, 6 Sup. Ct. 252. herein, and note as to regulation of ' Jamieson v. Indiana Nat. Gas. & pressure of gas. 0. Co., 128 Ind. 555, 12 L. R. A. 652, ♦ Kiskiminetas Township v. Conc- 629 § 389 REGULATION AND CONTROL CONTINUED — vided: "That it shall be unlawful for any person, firm or corpo- ration having possession or control of any natural gas or oil well, whether as a contractor, owner, lessee, agent or manager, to allow or permit the flow of gas or oil from any such well to escape into the open air without being confined within such well or proper pipes, or other safe receptacle, for a longer period than two days next after gas or oil shall have been struck in such well; and thereafter all such gas or oil shall be safely and securely confined in such well, pipes or other safe and proper receptacles," it was held that such enactment did not violate the Federal Constitution; and its enforcement as to persons whose obedience to its commands were coerced by injunction, did not constitute a taking of private property without ade- quate compensation, and did not amount to a denial of due process of law, contrary to the provisions of the Fourteenth Amendment of the Constitution, but was only a regulation by the State of a subject especially within its lawful authority.^ A State may also limit the right of eminent domain to such gas and oil corporations as are doing business with and fur- nishing supplies to customers within that State, and such exer- cise of power does not constitute an interference with interstate commerce.^ But a State may not interfere with interstate com- merce by enactments which substantially prevent the trans- portation of natural gas beyond the state limits where such legislation is not a police regulation/ § 389. Regulation of National Banks.* — Congress having power to create a system of national banks, is the judge as to the extent of the powers which should be conferred upon such banks, and has the sole power to regulate and control the ex- maugh Gas Co., 14 Pa. Super. Ct. 67. Earless, 131 Ind. 446, 29 N. E. 1062, See §§ 171 et seq., herein. 15 L. R. A. 505. ^ Ohio Oil Co. V. Indiana (No. 1), ' Benedict v. Columbus Construc- 177 U. S. 190, 44 L. ed. 429, 20 tion Co. (N. J. Ch.), 23 Atl. 485, 35 Sup. Ct. 576; Ind. Act, March 4, Am. & Eng. Corp. Cas. 637. 1893. 8 See §§ 18, 69, 126, herein, as to 'Consumers' Gas Trust Co. v. franchises, etc., of banks. 630 RATES AND CHARGES § 389 ercise of their operations.^ States have no power to enact leg- islation contravening Federal laws for the control of national banks, but such banks are, for actions against them in law or in equity, deemed citizens of the State in which they are lo- cated, and the Federal courts have such jurisdiction only as they have in cases between individual citizens of the same States.^" Again, while a State has the legitimate power to de- fine and punish crimes by general laws applicable to all per- sons within its jurisdiction, and it may declare, by special laws, certain acts to be criminal offenses when committed by officers and agents of its own banks and institutions, it is without lawful power to make such special laws applicable to banks organized and operated under the laws of the United States. So Congress having dealt directly with the insolvency of national banks by giving control to the Secretary of the Treas- ury and the Comptroller of the Currency, who are authorized to suspend the operations of the banks and appoint receivers thereof when they become insolvent, or when they fail to make good any impairment of capital, and full and adequate provision having been made for the protection of creditors of national banks by requiring frequent reports to be made of their condition, and by the power of visitation of Federal officers, it is not competent for state legislatures to interfere, whether with hostile or friendly intentions, with national banks or their officers in the exercise of the powers bestowed upon them by the general government. ^^ The doctrine, how- ever, which exempts the instrumentalities of the Federal gov- ernment from the influence of state legislation, is not founded on any express provision of the Constitution, l)ut in the implied necessity for the use of such instruments by the Federal gov- ernment. It is, therefore, limited by the principle that state legislation, which does not impair the usefulness or capability •Easton v. Iowa, 188 U. S. 220, " Easton v. Iowa, 188 U. S. 220, 23 Sup. Ct. 288, 47 L. ed. 452. 47 L. ed. 452, 23 Sup. Ct. 288. "•Guthrie V. Harkness, 199 U. S. Examine Farmers' Deposit Nat. 148, 50 L. ed. — , 26 Sup. Ct. — . Bank v. Western Pennsylvania Fuel As to "citizens" see § 67, herein. Co., 215 Pa. 115, 64 Atl. 374. 631 § 390 REGULATION AND CONTROL CONTINUED — of such instruments to serve that government, is not within the rule of prohibition. And a state law requiring the national banks to pay a tax which is rightfully laid on the shares of its stock is valid under this limitation of the doctrine. ^^ But the proposition that it is only when a state law incapacitates a national bank from discharging its duties to the government that it becomes unconstitutional, and the other proposition that national banks are instrumentalities of the Federal gov- ernment, created for a public purpose, and as such necessarily subject to the paramount authority of the United States, although distinct propositions, are nevertheless harmonious. ^^ § 390. Regulation of Rates— General Rules.^'*— We have seen that the state legislature has power to regulate public service corporations within constitutional limitations, and it may be stated here that the rates to be charged by such cor- porations may, within such limitations, be prescribed by the legislature either directly or by delegation of the power to proper subordinate bodies or appropriate agencies, provided that the rates so fixed are such as to afford a reasonable com- pensation for the service rendered; property must not be con- fiscated by an unreasonable rate regulation; what constitutes a reasonable compensation or rate is, however, a question which must be decided in each particular case as no mle can be stated as a basis applicable to all cases; although the courts may determine whether the rate fixed by legislative authority is a reasonable one, still they have no power to fix rates for the future.'^ These rules will be more fully considered and illus- trated under the sections next following in this chapter. '2 National Bank v. Common- Savings Bank, 161 U. S. 275, 40 wealth, 9 Wall. (76 U. S.) 353, 19 L. ed. 777, 16 Sup. Ct. 641. L. ed. 701. I'See § 369, herein. '3 McClellan v. Chipman, 164 U. S. is United States: Milwaukee R. & 347, 41 L. ed. 461, 17 Sup. Ct. — , L. Co. v. Milwaukee, 87 Fed. 577; aff'g, on the first point. National Old Colony Trust Co. v. Atlanta, 83 Bank v. Commonwealth, 9 Wall. Fed. 39; New Memphis Gas Light (76 U. S.) 353, 19 L. ed. 701, and, on Co. v. City of Memphis, 72 Fed. 952; the second point, Davis v. Elmira Ames v. Union Pacific Ry. Co., 64 632 RATES .\XD CHARGES § 391 §391. Regulation of Public Warehouses and Their Charges — Munn v. Illinois.^^— The State has power to fix the maximum charges for receiving, elevating, storing and dis- charging grain and to regulate warehouses, and such enact- ments are not unconstitutional as an interference with inter- state commerce. In the well-known case of Munn v. Illinois, ^^ Fed. 165; Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679. (Other United States cases are spe- cially considered throughout this chapter.) California: Redlands L. & C. Do- mestic Water Co. v. Redlands, 121 Cal. 312. Colorado: Leadville Water Co. v. City of Leadville, 22 Colo. 297, lUinois: Chicago, Burlington & Quincy Ry. Co. v. Jones, 149 111. 361, 24 L. R. A. 141; Clinton Electric Light, H. & P. Co. V. Snell, 95 111. App. 552; People's Gas Light & Coke Co. V.' Hale, 94 111. App. 406. Iowa: Des Moines v. Des Moines Waterworks Co., 95 Iowa, 348; Burlington, C. R. & N. R. Co. v. Day, 82 Iowa, 312, 12 L. R. A. 436. Kentucky: Louisville & N. R. Co. V. Comm., 99 Ky. 132, 33 L. R. A. 20. Massachusetts: Turner v. Re- vere Water Co., 171 Mass. 329; Opinion of Justices, 150 Mass. 592. Michigan: Alpena Electric Co. v. City of Alpena, 130 Mich. 413; Mitchell V. City of Negaunee, 113 Mich. 359; Pingree v. Mutual Gas Co., 107 Mich. 156. Minnesota: St. Paul Gas Light Co. V. City of St. Paul, 91 Minn. 521. Mississippi: Gould v. Edison Electric Ilium. Co., 29 Miss. 242. Missouri: State v. Allen, 178 Mo. 555; State v. Laclede Gas Light Co., 102 Mo. App. 472. Nebraska: Wabaska Electric Co. V. City of Wymore, 60 Neb. 199. North Carolina: Leavell v. W^est- ern Union Teleg. Co., 116 N. C. 211, 5 Am. Elec. Cases, 689, 21 S. E. 391; State, Railroad Commission, v. West- ern Union Teleg. Co., 113 N. C. 213, 4 Am. Elec. Cases, 586, 18 S. E. 389. Ohio: Hamilton & Dayton R. Co. V. Bowling Green, 57 Ohio St. 336; Cincinnati Gas Light & Coke Co. v. Avondale, 43 Ohio St. 257. Pennsylvania: Brymer v. Butler Water Co., 179 Pa. 231. .Wisconsin: Shepard v. Milwaukee Gas Light Co., 6 Wis. 539. As to rates and charges in the case of telegraph and telephone, etc., com- panies using electricity , see Joyce on Electric Law (2d ed.), §§ 57, 518- 5276, 783d. Power of municipality to regulate and fix charges for telephone com- panies — Pohce power — Validity of ordinance — Obligation of contract — Equal protection of laws — Unlawful discrimination, see Home Telep. & Teleg. Co. v. City of Los Angeles (C. C), 155 Fed. 554. Franchise as property, see §§ 25- 29, 35, 36, herein. As to obligation of contracts and reservation of power to alter or amend, see §§ 317 et seq., herein. "See §§113, 161, herein, as to storage and elevator companies and grain and warehouse commission. See also §§ 369, 390, herein. "94 U.S. 113, 24 L. ed. 77. 633 § 391 REGULATION AND CONTROL CONTINUED — which has been extensively cited, quoted from, and relied upon, a statute of Illinois prescribed charges for warehouses and the validity of the statute was in question. The following points were decided: (1) Under the powers inherent in every sov- ereignty, a government may regulate the conduct of its citi- zens toward each other, and, when necessary for the public good, the manner in which each shall use his own property. (2) In their exercise it has been customary in England from time immemorial, and in this country from its first coloniza- tion, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, ac- commodations furnished and articles sold. (3) Down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property, necessarily deprived an ownei; of his property without due process of law. Under some cir- cumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a depriva- tion. (4) When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the pub- lic an interest in such use, and must, to the extent of that in- terest, submit to be controlled by the public, for the common good, as long as he maintains the use. He may withdraw his grant by discontinuing the use. (5) The limitation by legis- lative enactment of the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, establishes no new principle in the law but only gives a new effect to an old one. (6) Where warehouses are situated and their business is carried on ex- clusively within a State, she may, as a matter of domestic con- cern, prescribe regulations for them, notwithstanding they are used as instruments by those engaged in interstate, as well as in state, commerce; and, until Congress acts in reference to their interstate relations, such regulations can be enforced, even though they may indirectly operate upon commerce be- 634 RATES AND CHARGES § 391 yond her immediate jurisdiction. (7) The court does not hold that a case may not arise in which it may be found that a State has, under the form of regulating her own affairs, en- croached upon the exclusive domain of Congress in respect to interstate commerce. (8) The ninth section of the first article of the Constitution of the United States operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs. (9) The act of the General Assembly of Illinois, entitled: "An Act to regulate public warehouses and the warehousing and inspec- tion of grain, and to give effect to art. 13 of the constitution of this State," ^* is not repugnant to the Constitution of the United States. ^^ In another case an act of the legislature of i« Approved April 25, 1871. Chicago, M. & St. P. Ry. Co. v. '' Another point was decided in Minnesota, 134 U. S. 418, 461, 33 this case and is stated in § 297, L. ed. 970, 10 Sup. Ct. 462 (in dis- herein. senting opinion); Georgia R. R. & This case is explained on first point Banking Co. v. Smith, 128 U. S. 174, in Dobbins V. Los Angeles, 195 U. S. 180, 9 Sup. Ct. 47, 32 L. ed. 377; 223, 235, 25 Sup. Ct. 18, 49 L. ed. Dow v. Beidelman, 125 U. S. 680, 169, cited to same point in Minne- 686, 8 Sup. Ct. 1028, 31 L. ed. 861; apolis & St. Louis Rd. Co. v. Minne- Wabash, St. L. & P. Ry. Co. v. sota, 186 U. S. 257, 261, 46 L. ed. Illinois, 118 U. S. 557, 564, 30 L. ed. 1151, 22 Sup. Ct. 900; Mugler v. 244, 7 Sup. Ct. 4. Distinguished in Kansas, 123 U. S. 623, 660, 31 L. ed. Railroad Commission Cases (Stone v. 205, 8 Sup. Ct. 273; Home Tdleph. & Farmers' Loan & Tr. Co.), 116 U. S. Teleg. Co. v. City of Los Angeles 307, 330, 29 L. ed. 636, 6 Sup. Ct. — . (C. C), 155 Fed. 554, 561; Perkins v. Cited in Spring Valley Waterworks Northern Pac. Ry. Co. (C. C), 155 v. Schottler, 110 U. S. 347, 354, 28 Fed. 445, 453; Muskogee Nat. Teleph. L. ed. 173, 4 Sup. Ct. 48; Ruggles v. Co. V. Hall, 118 Fed. 382, 386. Cited Illinois, 108 U. S. 526, 531, 535, 536, to second point in Minneapolis & St. 2 Sup. Ct. 832, 27 L. ed. 812; Sinking Louis Rd. Co. v. Minnesota, 186 Fund Cases (Union Pacific R. Co. v. U. S. 257, 261, 22 Sup. Ct. 900, 46 United States and Central Pacific R. L. Ed. 1151; Lake Shore & M. S. Ry. Co. v. Gallatin), 99 U. S. 700, 747, Co. V. Smith, 173 U. S. 684, 696, 19 25 L. ed. 496 (in dissenting opinion); Sup. Ct. 565, 43 L. ed. 858; Inter- Burlington v. Beasley, 94 U. S. 310, state Commerce Comm. V. Cincinnati, 314, 24 L. ed. 161; Stone v. Wiscon- N. O. & T. P. Ry. Co., 167 U. S. sin, 94 U. S. 181, 185, 24 L. ed. 102 479, 500, 42 L. ed. 243, 17 Sup. Ct. (in dissenting opinion) ; Winona & St. 896; Covington & Cincinnati Bridge Peter R. Co. v. Blake, 94 U. S. 180, Co. V. Kentucky, 1.54 U. S. 204, 213, 24 L. ed. 99; Peik v. Chicago & N. W. 38 L. ed. 962, 14 Sup. Ct. 1087; Ry. Co., 94 U. S. 164, 176, 178, 24 635 § 391 REGULATION AND CONTROL CONTINUED — New York -^ provided that the maximum charge for elevating, receiving, weighing and discharging grain should not exceed five-eighths of one cent a bushel; and that, in the process of handling grain by means of floating and stationary elevators, L. ed. 97; Chicago, B. & Q. R. Co. v. Elevator Co. v. Andrew (C. C), 144 Iowa, 94 U. S. 155, 161, 24 L. ed. 94; Fed. 871, 879. Cited to seventh point Home Teleph. & Teleg. Co. v. City of in Kidd v. Pearson, 128 U. S. 1, 23, Los Angeles (C. C), 155 Fed. 554, 32 L. ed. 346, 9 Sup. Ct. 6. Cited to 569; Perkins v. Northern Pac. Ry. eighth point in Johnson v. Chicago & Co. (C. C), 155 Fed. 445, 453. Cited Pac. Elevator Co., 119 U. S. 388, 400, to i/iird poinf in Railroad Commission 7 Sup. Ct. 254, 30 L. ed. 447; Mor- Cases (Stone v. Farmers' Loan & Tr. gan's Steamship Co. v. Louisiana Co.), 116 U. S. 307, 335, 29 L. ed. Board of Health, 118 U. S. 455, 467, 636, 6 Sup. Ct. — ; Spring Valley 6 Sup. Ct. 1114, 30 L. ed. 237. Waterworks v. Schottler, 110 U. S. The principal case (Munn v. Illi- 347, 354, 28 L. ed. 173, 4 Sup. Ct. 48. nois) is also cited in Cotting v. Kan- Cited to fourth point in Louisville & sas City Stock Yards Co., 183 U. S. Nashville Rd. Co. v. West Coast 79, 46 L. ed. 92, 22 Sup. Ct. 30. Naval Stores Co., 198 U. S. 483, 500, While we have considered this case 25 Sup. Ct. 745, 49 L. ed. 1135; in § 110, herein, the following is Louisville & Nashville R. Co. v. pertinent here in connection with the Kentucky, 161 U. S. 677, 696, 16 principal case, since the court, per Sup. Ct. 714, 40 L. ed. 849; Budd v. Brewer, J., basing its language upon New York, 143 U. S. 517, 548, 12 the rule laid down in that case, says: Sup. Ct. 468, 36 L. ed. 247 (in dis- " It may be conceded that the State senting opinion); Civil Rights Cases, has the power to make reasonable 109 U. S. 3, 41, 27 L. ed. 835, 3 Sup. regulation of the charges for services Ct. 18 (in dissenting opinion) ; Weems rendered by the stock yards com- Steamboat Co. v. People's Steamboat pany. Its stock yards are situated Co., 141 Fed. 454, 456; West Coast at one of the gateways of commerce, Naval Stores Co. v. Louisville & and so located that they furnish im- N. R. Co. (C. C. A.), 121 Fed. 645, portant facihties to all seeking trans- 650. Cited to fifth point in Dow v. portation of cattle. While not a Beidelman, 125 U. S. 680, 686, 8 common carrier, nor engaged in any Sup. Ct. 1028, 31 L. ed. 841; Home distinctively public employment, it Teleph. & Teleg. Co. v. City of Los is doing a work in which the public Angeles (C. C), 155 Fed. 554, 569. has an interest, and therefore must Cited to sixth point in Covington & be considered as subject to govem- Cincinnati Bridge Co. v. Kentucky, mental regulation. But to what ex- 154 U. S. 204, 21.3, 38 L. ed. 962, tent may this regulation go? Is there 14 Sup. Ct. 1087; Brass v. Stoeser, no limit beyond which the State may 153 U. S. 391, 399, 38 L. ed. 757, 14 not interfere with the charges for Sup. Ct. 857; Hall v. De Cuir, 95 services either of those who are en- U. S. 485, 487, 24 L. ed. 547; Globe gaged in performing some public ^ Laws 1888, chap. 581. 636 RATES AND CHARGES § 391 the lake vessels or propellers, the ocean vessels or steamships, and canal-boats, should only be required to pay the actual cost of trimming or shovelling to the leg of the elevator when unloading, and trimming cargo when unloading. It was held service, or of those who, while not engaged in such service have yet devoted their property to a use in which the public has an interest? And is the extent of governmental regulation the same in both of these classes?" Id., 85. The court then states the second point in the above text and reviews other cases at some length. "To this day statutes are to be found in naany of the States upon some or all these subjects [those in point 2 in above text] and we think it has never yet been successfully contended that such legislation came within any of the constitutional pro- hibitions against interference with private property. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of Washington ' to regulate * * * the rates of wharfage at private wharves, * * * the sweeping of chimneys, and to fix the rates of fees therefor, * * * and the weight and quality of bread,' 3 Stat. 587, sec. 7; and, in 1848, 'to make all neces- sary regulations respecting hackney carriages, and the rates of haul- ing by cartmen, wagoners, carmen, and draymen, and the rates of com- mis.sioh of auctioneers,' 9 id. 224, g 2. * * * This brings us to in- quire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the com- mon law, from whence came the right which the Constitution pro- tects, we find that when private prop- erty is 'affected with a pubUc inter- est it ceases to be juris privati only.' This was said by Lord Chief Jus- tice Hale more than two hundred years ago, in his treatise, De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, there- fore, one devotes his property to a use in which tl^e pubhc has an inter- est, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by dis- continuing the use; but, so long as he maintains the use, he must submit to the control. * * * And the same has been held as to warehouses and warehousemen. In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it ap- peared that the London Dock Com- pany had built warehouses in which wines were taken in store at such rates of charge as the company and the owners might agree upon. Afterwards the company obtained authority, under the general ware- housing act, to receive wines from importers before the duties upon the importations were paid; and the question was, whether they could charge arbitrary rates for such stor- age, or must be content with a reason- able compensation. Upon this point Lord Ellenborough said (p. 537): 637 § 391 KEGULATION AND CONTROL CONTINUED- in the United States Supreme Court that the act was a legiti- mate exercise of the police power of the State over a business affected with a public interest, and did not violate the Con- stitution of the United States, and was valid. '^ 'There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own prop- erty, or the use of it; but if for a particular purpose the public have a right to resort to his premises and make use of them, and he have a monopoly in them, for that purpose, if he will take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this company is, by the combination of the warehousing act with the act by which they were originally consti- tuted, and with the actually existing state of things in the port of London, whereby they alone have the ware- housing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing. And, according to him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the old wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf.' * * * Under such circumstances it is diffi- cult to see why, if the common car- rier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman, or the hackney coachman, pursues a public employment and exercises 'a sort of public office,' these plaintiffs in error do not. They stand, to use again the language of their counsel, in the very 'gateway of commerce,' and take toll from all who pass. Their busi- ness most certainly ' tends to a com- mon charge, and is become a thing of public interest and use.' Every bushel of grain for its passage ' pays a toll, which is a common charge,' and, therefore, according to Lord Hale, every such warehouseman 'ought to be under public regulation, viz., that l^e * * * take but reasonable toll.' Certainly, if any business can be clothed ' with a public interest, and cease to be juris privati only,' this has been. It may not be made so by the operation of the constitu- tion of Illinois or this statute, but it is by the facts. * * * Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long known and well established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress. There is no "Budd V. 638 New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247. See § 113, herein. RATES AND CHARGES § 392 § 392. Regulation of Gas Rates — Method of Valuation — Penalty — Equity — Injunction.""— The rules above stated ^^ apply to gas rates, or charges for furnishing gas.^^ But a mu- nicipal corporation has no power to fix the price or regulate the rates for gas to be supplied to consumers unless such power is expressly delegated to it by the State or it can be implied necessarily from the powers expressly granted.'^ In an im- portant case in the Federal court certain points in relation attempt to compel these owners to means of regulation, is implied. In grant the public an interest in their fact, the common-law rule, which re- property, but to declare their obliga- quires the charge to be reasonable, is tions if they use it in this particular itself a regulation as to price. With- manner. * * * It is insisted, out it the owner could make his rates however, that the owner of property at will, and compel the public to is entitled to a reasonable compensa- yield to his terms, or forego the use. tion for its use, even though it be * * * We know that this is a clothed with a public interest, and power which may be abused; but that what is reasonable is a judicial that is no argument against its exist- and not a legislative question. As ence. For protection against abuses has already been shown, the practice by legislatures the people must resort has been otherwise. In countries to the polls, not to the courts." where the common law prevails, it Munn v. Illinois, 94 U. S. 113, 125, has been customary from time im- 127, 131, 133, 134, 24 L. ed. 77, 84, memorial for the legislature to de- 86, per Waite, C. J. Clare what shall be a reasonable "See §§16, 17, 82-84, 186, 198, compensation under such circum- herein, as to franchises, rates, etc., of stances, or, perhaps more properly gas companies, speaking, to fix a maximum beyond ^^ See § 390, herein, which any charge made would be un- ^* Madison, City of, v. Madison reasonable. Undoubtedly, in mere Gas & Electric Co., 129 Wis. 249, 108 private contracts, relating to matters N. W. 65. See Spring Valley Water- in which the public has no interest, works v. Schottler, 110 U. S. 347, what is reasonable must be ascer- 28 L. ed. 173, 4 Sup. Ct. 48, also tained judicially. But this is because citations under note to § 390, herein, the legislature has no control over Mnjcimnm rate fixed so low as to such a contract. So, too, in matters destroy ■property rights constitutes which do affect the public interest, taking property without due process and as to which legislative control of law. Brooklyn Union Gas Co. v. may be exercised, if there are no City of New York, 100 N. Y. Supp. statutory regulations upon the sub- 570, 50 Misc. 450. ject, the courts must determine what " Mills v. City of Chicago, 127 Fed. is reasonable. The controlling fact 731; Richmond, City of, v. Rich- is the power to regulate at all. If mond Natural Gas Co. (Ind., 1907), that exists, the right to establish the 79 N. E. 1031. See Pryor, In re, 53 maximum of charge, as one of the Kan. 724, 49 Am. St. Rep. 280, 41 639 § 392 REGULATION AND CONTROL CONTINUED — to franchises and equity jurisdiction are decided as follows: (1) In a suit by a gas company to enjoin the enforcement of a statute or regulation fixing the rate to be charged by such company for gas as unreasonable and confiscatory, where the company operates under a franchise, is required by law to furnish gas to all who demand it, and enjoys a practical mo- nopoly in the territory in which it serves, it has no good will in a property sense, aside from its franchise, which can be con- sidered as property invested in its business. (2) Under the settled rule of decision, however, that if property protected by a franchise is condemned and wholly taken from its owner the franchise must be paid for, such a state regulation reducing the earning power of property so protected reduces the value of the franchise pro tanto, and the complainant is entitled to add the value of its franchises, if ascertainable, to its capital account before declaring the rate of return permitted by the statute. (3) Complainant having followed the universal cus- tom of American corporations, sanctioned by law, of capital- izing its franchises on its organization by issuing stock in ex- cess of its actual investment in tangible property, and having since then earned fair dividends on all its stock, the amount of such excess stock may fairly be taken as the value of its fran- chises at the time of issuance, and where its business has largely increased such value may be assumed to have increased since that time in proportion to the increase of its tangible property. (4) Where the complainant on its organization pur- Pac. 958, 29 L. R. A. 398, 12 Am. R. ural Gas Co v. City of Chillicothe, 65 & Corp. Rep. 364. Ohio St. 186, 62 N. E. 122. Right exists in city to fix maximum Presumed that rates charged are rates for natural gas when statute in reasonable and need not be alleged that effect so authorizes. Rushville v. they are so. Noblesville, City of, v. Rushville Natural Gas Co., 132 Ind. Noblesville Gas & Improvement Co., 575, 15 L. R. A. 321, 28 N. E. 157 Ind. 162, 60 N. E. 1032. See 853. § 405, herein. Effect of acceptance of ordinance Exemption from change of rates and fixing rate (see Noblesville, City of, v. loss of rights by consolidation. See Noblesville Gas & Improvement Co., People's Gas Light & Coke Co. v. 157 Ind. 162, 60 N. E. 1032) for cer- Chicago, 194 U. S. 1, 48 L. ed. 851, tain period of time. See Logan Nat- 24 Sup. Ct. 520. See § 412, herein. 640 RATES AND CHARGES § 392 chased the property and franchises of existing gas companies, and has since enjoyed and operated under such franchises, it acquired the legal ownership thereof under the decisions of the Court of Appeals of New York, and notwithstanding the fact that the original grantees have ceased to exist, it is, for the purpose of an inquiry into the legality of a state statute. regu- lating its rates of charge, entitled to capitalize their value, especially where the State has during such time compelled, it to pay a franchise tax based thereon. (5) The provisions .of the New York statutes subjecting any gas company furnishing or selling gas in the city of New York to a penalty of one thousand dollars for every violation of their provisions respect- ing equipment, pressure, or rates of charge therein fixed is extravagant and unreasonable in its severity, and renders such statutes unconstitutional and void as a denial to such com- panies of the equal protection of the laws. (6) The fact that the regulation of rates to be charged by a public service cor- poration is made by a direct legislative act of a State, and not by a subordinate body, does not affect the jurisdiction or power of a court of the United States or of a State to inquire into its constitutionality. (7) A suit in equity may be main- tained to enjoin the enforcement of an unconstitutional legis- lative act, the failure to comply with which would subject complainant to innumerable suits for penalties.^^ In addition to the points as to the valuation of franchises above stated, concerning which the court said: "The most important and novel question is whether a pul^lic service corporation is en- titled to add the value of its franchise to the assets from which a fair return may be lawfully demanded," ^^ it was held: (a) In a suit by a gas company to restrain the enforcement of a state statute regulating the price of gas as confiscatory and ^^ Syllabus in fJonsolidated Gas Co. Compare as to point three in text V. City of New York (C.C), 157 Fed. Smyth v. Ames, 169 U. S. 466, 42 849. Case was argued in Supreme L. ed. 819, 18 Sup. Ct. 418, considered Court of United States on November under § 409, herein. 10, 1908, and points therein will be " Id., p. 872, per Hough, Dist. J. inserted as "Appendix C," herein, if decision is rendered in time therefor. 41 641 § 392 REGULATION AND CONTROL CONTINUED — unconstitutional, in placing a valuation on complainant's tangi- ble property employed in the business, on which it is entitled to earn a fair return, the actual or reproductive value at the time of the inquiry is the true measure, uithout regard to the original cost, (b) Real estate owned by the complainant, but not used in the business, should not be included as part of the capital invested, unless it is shown that its use will necessarily be required in the near future; nor should the income derived from such land be included in the earnings, nor the taxes paid thereon in the expenses, of the business, (c) The complainant is entitled to have included in its capital the value of land of which it claims to be the oivner, and actually in its possession and used by it in the business, although its title may be defective or subject to defeasance; but land in a river bed, over which boats ap- proach the company's works, is of no greater value to the business, because owned by the company, than if owned by the public, and cannot properly be considered as employed in the business, (d) The complainant is entitled to include in its capital account as ivorking capital in addition to the amount of its average bills payable outstanding, only so much cash as will enable it to safely and conveniently transact its business, having regard to its average losses and its standing as to credit, (e) The complainant cannot legally include as a part of its capital devoted to the business of manufacturing gas, and affected by the statute regulating rates, the value of the prop- erty or stock of a coal and coke company of ichich it owns the entire stock, and which was organized by it to purchase and dispose of its by-products, nor of another gas company organ- ized by it to manufacture and sell gas to it to supplement its own production; both such companies being separate and dis- tinct corporations, in which its legal interest is as stockholder only. (/) When the capital stock of such complainant was issued many years prior to the time of inquiry, and its capital is invested, not only in its business of manufacturing and selling gas, but also largely in the stock of other corporations, the amount of its share capital and its value in the market are of little or no value in determining its investment in the business on 642 RATES AND CHARGES § 392 which it is entitled to earn a reasonable return; but such in- vestment can only be reached by a valuation of the property employed in the business, (g) In determining the cost to com- plainant of the production and distribution of gas, the cost of gas purchased by it from other companies and distributed through its pipes to supplement its own production is not a part of the expense of operation; but such purchase and dis- tribution is a business to be separately considered. (Ii) Amounts paid out by complainant as interest and penalty on taxes, the validity of which is contested in the courts, and the expenses of such litigation and of legislative investigation, are extraordi- nary expenses, and cannot be treated as part of the permanent and average expense of the manufacture and distribution of gas, to be deducted from earnings to ascertain the net profits of the business, (i) In such a suit complainant is not entitled, in addition to treating the amount actually expended during the time covered by the inquiry for repairs and renewals of plant as a permanent expense, to an allowance .of a percentage of the gross income to be set aside as a reserve or contingent fund to cover depreciation of plant, which, together with the amount so actually expended, is largely in excess of the av- erage expenditures for such purpose during a series of years, and which have maintained the plant in as good a condition as in the beginning; but the total allowance should be based on such average, (j) "Where complainant, having insufficient gas of its own manufacture to supply its demand, purchased addi- tional gas by contract from other companies, which it distributed through its pipes, and it appeared from the evidence that such purchases would probably continue, the net profits realized therefrom should be added to its income from its own produc- tion, {k) In ascertaining whether a statute or an order of a state commission fixing the maximum rate to be charged for gas by a gas company is unjust and unreasonable, and such as to work a practical destmction of the rights of property, which would render it unconstitutional, the return wliich the company is entitled to earn on the capital employed in the business is not determined by the legal rale of interest in the State, but 643 § 393 REGULATION AND CONTROL CONTINUED — by the local rate of return ordinarily sought and obtained on investments of the same degree of safety. A company having a long-established business and practical monopoly in supply- ing gas in the most populous portion of New York City held, entitled, as against such a statute, to a return of six per cent.^* A United States Circuit Court injunction restraining the en- forcement of a statute fixing the maximum price of gas at a less rate than that charged by the company constitutes no bar to an action in the state court, by a consumer, to restrain the gas company from cutting off his gas supply to enforce payment, and there is nothing in the principle of comity pro- hibiting a state court from entertaining jurisdiction to the extent of granting such relief.'^ § 393. Regulation of "Water Rates — Obligation of Con- tracts — Due Process of Law — Equal Protection of Laws — Reservation of Power to Amend.^*^ — Statutes of a State pro- viding that the use of all water appropriated for sale, rental or •distribution shall be a public use and subject to public regu- lation and control, are valid. To regulate or establish rates for which water will be supplied, is, in its nature, the execution of one of the powers of the State,^^ but this power cannot be exercised arbitrarily and without reference to what is just and reasonable between the public and those who appropriate water and supply it for general use. This applies to a statute ^^ making it the official duty of the board of supervisors, town 28 Syllabus in Consolidated Gas Co. 100 N. Y. Supp. 100, 114 App. Div. V. City of New York (C. C), 157 Fed. 242, 78 N. E. 871. 849. The italicization in the text is ^o See §§ 16, 17, 88, 118, 130, 173, that of the writer. Another point 186, 195, 255, herein, as to franchises, was decided in the case as to the con- rates, etc., of water companies and stitutionality of a statute regulating irrigation companies, the pressure of gas, which was held ^' Stanislaus Co. v. San Joaquin & a commercially impossible require- King's River Canal & Irrig. Co., 192 ment. See § 388, herein. U. S. 201, 48 L. ed. 406, 24 Sup. Ct. 2* Richman v. Consolidated Gas 241; San Diego Land & Town Co. v. Co. of New York, 186 N. Y. 209, 78 National City, 174 U. S. 739, 43 N. E. 871, aff'g 100 N. Y. Supp. 81, L. ed. 1154, 19 Sup. Ct. 804. See 114 App. Div. 216. See Grossman v. §§ 369, 390, herein. Consolidated Gas Co. of New York, ^2 ^3,1. Act of March 7, 1881, c. 52. 644 RATES AND CHARGES § 393 council, or other legislative body of any city and county, city or town, in the State, to annually fix the rates that shall be charged or collected for water furnished, and also providing for a hearing, in an appropriate way, for fixing such rates. And the judiciary ought not to interfere with the collection of such rates, so established under legislative sanction, unless they are so plainly and palpably unreasonable, as to make their enforcement ecjuivalent to the taking of property for public use without such compensation as, under the circum- stances, is just both to the owner and the public. ^^ It is also held in another case that the appropriation and distribution of water is a public use, and the right to collect tolls or com- pensation for it is a franchise, subject to regulation and control in the manner prescribed by law, and such tolls cannot be fixed by contract of the parties.^-* The provision in the Cali- fornia Water Act of 18G2, that county boards of supervisors should regulate water rates but could not reduce them below a certain point, does not amount to a contract with water companies which would be impaired within the meaning of the Federal Constitution by a subsecjuent act either reducing the rates below such point or authorizing boards of super- visors to do so ; and the right of the State to regulate or estab- lish water rates should not be regarded as parted with any sooner than the right of taxation should be so regarded, and the language of the alleged contract should in both cases be equally plain ;'"''^ or, to state this last proposition in another form, the power to regulate water rates is a governmental power continuing in its nature which, if it can be bargained away at all, can only be so done by words of jwsitive grant, and if any reasonable doubt exists in regard thereto it must " San Diego Land & Town Co. v. Town Co., 178 U. S. 22, 44 L. ed. 961, National City, 174 U. S. 739, 4.3 L. 20 Sup. Ct. 860. But compare San ed. 1154, 19 Sup. Ct. 804. See also Diego Flume Co. v. Souther, 90 Fed. Spring Valley Waterwork-s v. Schot- 164, 32 C. C. A. 548, 61 U. S. App. tier, 110 U. S. 347, 28 L. ed. 173, 4 134. Sup. Ct. 48; Salt River Canal Co. v. '^ Stanislaus Co. v. San Joaquin & Nels-sen (Ariz., 1906), 85 Pac. 117. King's River Canal &Irrig. Co., 192 U. 3* Osborne v. San Diego Land & S. 201, 24 Sup. Ct. 241, 48 L. ed. 406. 645 § 394 REGULATION AND CONTROL CONTINUED — be resolved in favor of the existence of the power.^^ Again, although there is a limitation to the power of amendment when reserved in the constitution or statute of a State, it is not confiscation nor a taking of property without due process of law, nor a denial of the equal protection of the laws, to fix water rates so as to give an income of six per cent upon the then value of the property actually used, even though the company had prior thereto been allowed to fix rates securing one and a half per cent per month, and if not hampered by an unalterable contract a law reducing the compensation as above is not unconstitu- tional.''^ § 394. Regulation of Water Rates Continued — Obligation of Contracts — Defense That Franchise Has Expired. — Cor- porations organized for the purpose of supplying cities and towns and the inhabitants thereof with water are none the less subject to legislative regulation and control because they are denominated private corporations.^^ Water rates cannot be reduced by a city or its water board where such act will impair the obligation of contracts, as where a city ordinance, which is accepted by the company, authorizes agreements with consumers for rates not in excess of those specified, the municipality cannot reduce the rates to less than those so specified while such contract exists. ^^ So statutes impair the obligation of contracts where they enable a city, by establish- ing an independent system of waterworks, fixing a scale of prices, and making certain assessments, to destroy the value of the property of a waterworks company and procure its cus- tomers through its water commissioners by other than com- petitive means.^" In a suit by a corporation against a city, ^' Owensboro v. Owensboro Water- ^* Boise City Artesian Hot & Cold works Co., 191 U. S. 358, 24 Sup. Ct. Water Co. v. Boise City, 123 Fed. 82, 48 L. ed. 217. 232, 59 C. C. 236. ^^ Stanislaus Co. v. San Joaquin & ^* Omaha Water Co. v. City of King's River Canal & Irrig. Co., 192 Omaha, 147 Fed. 1, 77 C. C. A. 267. U. S. 201, 24 Sup. Ct. 241, 48 L. ed. " Warsaw Waterworks Co. v. Vil- 406. lage of Warsaw, 44 N. Y. Supp. 876, 646 RATES AND CHARGES § 395 brought after the expiration of its franchise rights, to restrain the enforcement of an ordinance limiting the water rates to be thereafter charged, the city may show in defense that the franchise has expired, and the corporation's rights thereunder have ceased to exist. ^^ § 395. Regulation of Water Rates Continued — Illustra- tive Decisions. — The constitution of Florida has a clause to the effect that the legislature is invested with full powers to prevent unjust discrimination and excessive charges by per- sons and corporations engaged as common carriers and per- forming other public services of a public nature, and that it shall provide for enforcing such laws. In pursuance of this clause a law was passed empowering cities to prescribe by ordinance maximum reasonable charges for water, provided that the act should not impair the validity of any valid con- tract, or be held to validate any contract theretofore made. After the constitution, but before the act, the city of Tampa had made a contract with a water company, giving the water company the right to charge certain rates. After the act it passed an ordinance fixing lower rates, not, however, alleged to be unreasonable. The Supreme Court of Florida sustained the ordinance, reading the statute as giving the power to fix rea- sonable rates, when it was possible, without impairing the ob- ligation of contracts, and the constitution as meaning that the legislature was to have an inalienable power to make such laws. It was held that this interpretation was sufficiently plausible to be followed.^' An ordinance of a city of Kentucky before it became a city of the third class, giving a water com- pany a right to make and enforce, as part of the conditions upon which it would supply customers, all needful rules and regu- lations not inconsistent with the law, must be construed as to 16 App. Div. .502, mod. and aff'd in " Cedar Rapids Water Co. v. City 161 N. Y. 176, 55 N. E. 4S6; Skane- of Cedar Rapids, 118 Iowa, 234, 91 ateles Waterworks Co. v. Village of N. W. 1031. Skaneateles, 54 N. Y. Supp. 1115, 33 "Tampa Waterworks Co. v. App. Div. 642, aff'd in 161 N. Y. 154, Tampa, 199 U. S. 241, 50 L. ed. 178, 55 N. E. 562. 26 Sup. Ct. 55. 647 § 395 REGULATION AND CONTROL CONTINUED — the law, as it might be altered, and when the city becomes a city of the third class and thus has power under the general law to provide the city with water by contract or by works of its own and to make regulations for the management thereof and to fix prices to consumers, an ordinance subsec|uently enacted during the life of the franchise, fixing the price of water, is not void as against the water company under the impairment of contract clause of the Constitution of the Uni- ted States, and in the absence of other grounds the Circuit Court of the United States has no jurisdiction of a suit in equity to restrain the enforcement of such last enacted ordinance, no question of unreasonableness of the rates being involved/^ In another case it appeared that the Knoxville Water Company was incorporated to construct waterworks near Knoxville, with power to contract with the city and inhabitants for a supply of water and "to charge such price for the same as may be agreed upon between said company and said parties;" the gen- eral act under which the company was incorporated provided that it should not interfere with or impair the police powers of the municipal authorities, and they should have power by ordinance to regulate the price of water supplied by such company. The company in 1882 contracted for an exclusive privilege for thirty years to construct works, and after fifteen years to convey to the city at a price to be agreed upon or fixed by appraisal, and to "supply private consumers at not ex- ceeding five cents per hundred gallons." Subsequently the city passed an ordinance reducing the price of water to private consumers below that rate. In an action to enforce penalties for overcharging the later rate, it was decided that there was no contract on the part of the city to permit the charge named therein; and that the charter having been accepted subject to the provision of the general act reserving the power in the municipal authorities to regulate the price of water the sub- sequent ordinance was not void either as impairing the obli- gation of a contract, or as depriving the company of its prop- " Owensboro v. Owensboro Water- works Co., 191 U. S. 358, 24 Sup. Ct. 82, 48 L. ed. 217. 648 RATES AND CHARGES § 395 erty without due process of law."*^ Again, the facts under still another decision were as follows: On July 22, 1868, Los An- geles City leased to Griffin and others for a named sum its waterworks for a term of thirty years and granted them the right to lay pipes in the street, and to take the water from the Los Angeles River at a point above the dam then existing, and to sell and distribute it to the inhabitants of the city, reserving the right to regulate the water rates, provided that they should not be reduced to less than those then charged by the lessees. The lessees agreed to pay a fixed rental, to erect hydrants and furnish water for pul^lic uses without charge, and at the ex- piration of the term to return the works to the city in good order and condition, reasonable wear and damage excepted. This contract was procured for the purpose of transferring it to a corporation to be formed, which was done. Subsequently the limits of the city were extended, and the expenses of the corporation were increased accordingly. The city subsequently established water rates below those named in the contract, and the company collected the new rates, without in any other way acquiescing in the change. This suit was brought by the company to enforce the original contract. It was held that the power to regulate rates was an existent power, not granted by the contract, but reserved from it with a single limitation, the limitation that it should not be exercised to reduce rates below what was then charged, and that undoubt- edly there was a contractual element, but that it was not in granting the power of regulation, but in the limitation upon it. It was also decided that the city of Los Angeles, by its solemn contract, and for various considerations therein stated, gave to the party under whom defendant claimed the privi- lege of introducing, distributing and selling water to the in- habitants of that city, on certain terms and conditions, which defendant had complied with, and it was not within the power of the city authorities, by ordinance or otherwise, afterward to impose additional burdens as a condition to the exercise of " Knoxville Water Co. v. Knox- ville, 189 U. S. 434, 47 L. ed. 887, 2-3 Sup. Ct. 537. . 649 §§ 396, 397 REGULATION AND CONTROL CONTINUED— the rights and privilege granted. It was further held that by acquiescing in the regulations of rates ever since 1880 the company was not estopped from claiming equitable relief, and was guilty of no laches.^^ § 396. Regulation of Ferry Fares and Tolls/^— The regu- lation of fares and tolls at a ferry between two States is not exclusively within the power of Congress to regulate com- merce.'*^ But it is held by the Federal Supreme Court that the transportation of passengers and freight for hire by a steam ferry across the Delaware River from New Jersey to Philadelphia by a corporation of New Jersey is interstate commerce, which is not subject to exactions by the State of Pennsylvania.'*^ § 397. Regulation of Rates or Tolls of Turnpike Com- panies—Due Process of Law— Power of Courts.'*'*— A statute which, by its necessary operation, compels a turnpike com- pany, when charging only such tolls as are just to the public, to submit to such further reduction of rates as will prevent it from keeping its road in proper repair and from earning any dividends whatever for stockholders, is as obnoxious to the Federal Constitution as would be a similar statute relating to the business of a railroad corporation having authority, under its charter, to collect and receive tolls for passengers and freight. And a judgment of a state court, even if it be au- thorized by statute, whereby private property is taken for the « Los Angeles, City of, v. Los Mon. (55 Ky.) 699; Marshall v. Angeles City Water Co., 177 U. S. Grimes, 41 Miss. 27; Carroll v. Camp- 558, 44 L. ed. 886, 20 Sup. Ct. 736, bell, 108 Mo. 550, 17 S. W. 884, 110 aff'g Los Angeles City Water Co. v. Mo. 557, 19 S. W. 809. Examine City of Los Angeles, 88 Fed. 720. § 145, herein. 46 See §§15, 80, 186, 194, 201, « Gloucester Ferry Co. v. Pennsyl- herein, as to franchises, rates, etc., vania, 114 U. S. 196, 5 Sup. Ct. 826, of ferries. See also §§ 369, 390, 29 L. ed. 158. herein. '' See §§ 17, 19, 116, 117, 199-201, *' Freeholders of Hudson County v. herein, as to franchises, rates or tolls, State, 24 N. J. L. 718; State V. Hud- etc., of turnpikes, toll roads and son County Freeholders, 23 N. J. L. plank roads. See also §§ 369, 390, 206. See Newport v. Taylor, 16 B. herein. 650 RATES AND CHARGES § 397 State or under its direction, for public use, without compensa- tion made or secured to the owner, is, upon principle and authority, wanting in that due process of law required by the Fourteenth Amendment.^" There is, however, no taking of property without due process of law where it does not appear that by such reduction of rates there will be any reduction of dividends or if so, the extent thereof, and rates may be subsecjuently changed notwithstanding a turnpike company's charter specifies what charges may lawfully be made, with the right to increase or decrease the same as the dividends may necessitate, such specification of certain rates in the charter raising merely an inference or presumption that they are reasonable. ^^ The principle may, as to this class of corpora- tions, be reaffirmed that courts have the power to inquire whether a body of rates prescribed by a legislature is unjust and unreasonable and such as to work a practical destruction of rights of property, and if found so to be, to restrain its op- eration, because such legislation is not due process of law. And when a question arises whether the legislature has ex- ceeded its constitutional power in prescribing rates to be charged by a corporation controlling a public highway, stock- holders are not the only persons whose rights or interests are to be considered; and if the establishment of new lines of transportation should cause a diminution in the tolls collected, that is not, in itself, a sufficient reason why the corporation operating the road should be allowed to maintain rates that would bo unjust to those who must or do use its property, but that the ])ublic cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends again; the constitutional provision forbidding a denial of the equal protection of the laws, in its application to corporations 50 Smyth v. Ames, 169 U. S. 466, U. S. 226, 241, 41 L. ed. 979, 17 Sup. 525, 42 L. ed. 819, IS Sup. Ct. 418, Ct. 581. per Harlan, J. (a ca.se of regulation of '' Winchester & L. Turnpike Road railroad rates and powers of State), Co. v. Croxton, 98 Ky. 7.39, 17 Ky. L. relying in part upon Chicago, Burling- Rep. 1299, .33 L. R. A. 177, 34 S. W. ton & Quincy Rd. Co. v. Chicago, 166 518. 651 § 398 REGULATION AND CONTROL CONTINUED — operating public highways, does not require that all corpora- tions exacting tolls should be placed upon the same footing as to rates; but that justice to the public and to stockholders may require in respect to one road rates different from those pre- scribed by other roads; and that rates on one road may be reasonable and just to all concerned, while the same rates would be exorbitant on another road.^^ § 39S. Regulation of Fares— Street Railways— Obligation of Contract.^^ — The legislative power to regulate the exercise of the franchises or the fares of a street railway company does not empower a municipality to make such a reduction of fares that the company cannot obtain a reasonable return on its investment, and if property rights are invaded to that extent such reduction constitutes a violation of the Federal Consti- tution.^'* Nor can the company be required to carry passengers without reward, or at such a reduced rate of fare as will sub- stantially confiscate or take away property without compensa- tion or due process of law.^^ It is held that conditions may be imposed by a commissioner of highways, in granting consent to lay tracks on town highways, for transportation between certain points at a specified fare and also for transfers to con- necting lines ; ^*^ and a company is obligated by such conditions ^^ Covington & Lexington Turn- When city may not reduce fares. pike R. Co. v. Sandford, 164 U. S. See Joyce on Electric Law (2d ed.), 578, 17 Sup. Ct. 198, 41 L. ed. 510. § 519. "See §§ 14, 17, 111, 112, 188, 197, Ordinance as to "labor tickets'^ at 337, 338, 387, herein, as to franchises, reduced rate and transfers-— W hen a fares, etc., of street railways. contract. See Joyce on Electric Law 5* Milwaukee R. & L. Co. v. Mil- (2d ed.), § 519a. waukee (C. C), 87 Fed. 577. See Federal Constitution — Street rail- §§ 369, 390, 400, herein. road — Rates of fare. See Joyce on ^^ Indianapolis v. Navin, 151 Ind. Electric Law (2d ed.), § 5196. 139, 41 L. R. A. 337, 14 Nat. Corp. Power of legislature to reduce rates Rep. 774, 47 N. E. 525, rehearing of fare, on street railroad, for students denied in 151 Ind. 156, 30 Chic. Leg. during summer months. See Joyce N. 414, 51 N. E. 80, 41 L. R. A. 344, on Electric Law (2d ed.), § 519c. 5 Det. L. N., No. 19. ^« Gaedeke v. Staten Island M. R. Municipality may regulate rates of Co., 60 N. Y. Supp. 598, 43 App. Div. fare on electric railways. See Joyce 514, rehearing denied in 61 N. Y. on Electric Law (2d ed.), § 518. Supp. 290, 46 App. Div. 219. 652 RATES AND CHARGES § 398 or regulations, so imposed in granting a franchise, where its line is operated in compliance therewith.^'' So a contractual relation exists, based upon a sufficient consideration, and the company is bound to carry passengers free of charge within certain limits, where that condition is imposed in the grant of a franchise by a municipality through which it was interested in getting its line of street railway and had deposited checks to evidence its good faith in constructing such line in pursuance of the grant.^* If the franchise granted by a township pro- vides for the sale of trip tickets at a reduced rate between a city without and a village within the township, such sale of tickets may be made at any point on the line within or outside of the township granting the franchise. ^^ Where a statute authorizes a street railroad company to charge as much as five cents fare, even though it reserves the right to amend or repeal the enactment, still it cannot, as to a company organ- ized thereunder, be altered by provisions which would make the statute unconstitutional in its entirety .^° In a case in the Federal Supreme Court it is held that a consolidated ordinance of the city of Cleveland, and ordinances thereafter passed by the municipality and accepted by certain street railway coni- ])anies, constituted such binding contracts in respect to the rate of fare to be exacted upon the consolidated and extended lines of the railway companies as to deprive the city of its rights to exercise the reservations in the original ordinances as to changing the rates of fare; and a subsequent ordinance i-oducing the rate of fare to be charged was declared to be void and unconstitutional within the impairment clause of the Constitution of the United States. It was also decided in the same case that the passage by the municipality of an ordi- nance affecting franchises, already granted by prior ordinances " Virginia Pa.ssenger & Power Co. 122 Mich. 677, 48 L. R. A. 84, 81 V. Commonwealth, 103 Va. 644, 49 N. W. 927. S. E. 995. «« Central Trust Co. v. Citizens' St. *»Hattersley v. Village of Water- R. Co. (C. C), 82 Fed. 1, 29 Chicago ville, 26 Ohio Cir. Ct. R. 226. Leg. N. 417, 14 Nat. Corp. Rep. 770, 5» Rice V. Detroit, Y. & A. Ry. Co., dismis.sed in 83 Fed. 529, 15 Nat. Corp. Rep. 529. 653 § 399 REGULATION AND CONTROL CONTINUED — amounted to an assertion that the legislative authority vested in it to pass the original ordinance gave it the continued power to pass subsequent ordinances, and it could not assail the jurisdiction of the Circuit Court on the ground that its action in impairing the contracts which resulted from prior ordinances was not an action by authority of the State.^^ § 399. Regulation of Fares — Street Railways Continued — Constitutional Law — Contract with Company — Altera- tion.^^ — There can be no question as to the competency of a state legislature, unless prohibited by constitutional pro- visions, to authorize a municipal corporation to contract with a street railway company as to the rate of fares, and so to bind, during the specified period, any future common council from altering or in any way interfering with such contract. Such a contract having once been made, the power of the city over the subject, so far as altering the rates of fare or other matters properly involved in and being a part of the contract, is sus- pended for the period of the running of the contract. So where binding agreements have been made and entered into, between a city on the one side and certain street railway companies on the other, relating to rates of fare, such agreements cannot be altered without the consent of both sides; those binding agreements constitute a contract as to the rates, equally bind- ing with that in regard to taxes. The rate of fare in such case having been fixed by positive agreement, under express leg- islative authority, the subject is not open to alteration there- after by the common council alone, under the right to pre- scribe from time to time the rules and regulations for the running and operation of the road; especially so where the *' Cleveland, City of, v. Cleveland contracts contained in prior ordi- Ry. Co., 194 U. S. 517, 48 L. ed. 1102, nances passed in regard to street 24 Sup. Ct. 756. Followed in Cleve- railways, compare Railroad Commis- land V. Cleveland Electric Ry. Co., sion Cases (Stone v. New Orleans & 201 U. S. 529, 26 Sup. Ct. 51.3, 50 Northwestern Rd. Co., 116 U. S. 352, L. ed. 854. As to the power of the 29 L. ed. 651, 6 Sup. Ct. 334, con- city council of Cleveland to pass sidered in § 412, herein, ordinances diminishing the rate of "^ See § 390, herein, fare on street railroads in view of the 654 RATES AND CHARGES § 399 language of an ordinance, which provides that the rate of fare for one passenger shall not be more than five cents, does not give any right to the city to reduce it below the rate of five cents established by the company. And where the fixing of rates was among the vital portions of such agreement between the parties, it cannot be supposed that there w^as any inten- tion to permit the common council, in its discretion, to make an alteration which might be fatal to the pecuniary success of the company.^3 If a street railway corporation takes a legis- lative charter subject to all duties and restrictions set forth in all general laws relating to corporations of that class, it can- not complain of the unconstitutionality of a prior enacted statute compelling it to transport children attending public schools at half price. ^'^ '^ Detroit v. Detroit Citizens' St. company the equal protection of the Ry. Co., 184 U. S. 368, 46 L. ed. 592, laws and deprived it of its property 22 Sup. Ct. 410. See § 412, herein. without just compensation and with- "* Interstate Consolidated Street out due process of law. In support Ry. Co. V. Commonwealth of Massa- of this defense it made an offer of chusetts, 207 U. S. 79, 28 Sup. Ct. 26, proof which may be abridged into the aff'g 187 Mass. 436. As appears from propositions that the regular fare was the headnotes to the official report, five cents; that during the last fiscal only two points were decided in this year the actual and reasonable cost of case, one of which is stated in the transportation per passenger was above text and the other in § 243, 3.86 cents, or, including taxes, 4.10 herein, but the court also discussed cents; that pupils of the pubhc another point, viz., that of dis- schools formed a considerable part crimination, and evidently there was of the passengers carried by it, and some question as to the sufficiency of that the one street railway expressly the proof. Both of these factors will exempted by the law transported appear from the following quotation nearly one-half the passengers trans- from the opinion of the court, de- ported on street railways and re- livered by Holmes, J., as follows: ceived nearly one-half the revenue "This was a complaint against the received for .such transportation in plaintiff in error for refusing to sell the commonwealth. The offer was tickets for the transportation of pu- stated to be made for the purpose pils to and from the public schools at of .showing that the plaintiff in error one-half the regular fare charged by could not comply with the statute it, as required by Mass. Rev. Laws, without carrying passengers for less c. 112, § 72. At the trial the rail- than a reasonable compensation and way company admitted the fact, but for less than cost. The offer of set up that the statute was uncon- proof was rejected, and a ruling that stitutional, in that it denied to the the statute was repugnant to the 655 400 REGULATION AND CONTROL CONTINUED- § 400. Regulation of Rates — Railroads.^''— The rules given under a preceding section as to regulation of rates ^^ apply in the case of railroads as to business wholly intrastate ; ^^ but it may also be stated here that where property has been clothed Fourteenth Amendment was refused. The plaintiff in error excepted and, after a verdict of guilty and sen- tence, took the case to the Supreme Judicial Court. 187 Massachusetts, 436. That court overruled the ex- ceptions, whereupon the plaintiff in error brought the case here. * * * The section of the revised laws (c. 112, § 72) was a continuation of St. 1900, c. 197, Rev. Laws, c. 226, § 2. Commonwealth v. Auselvich, 186 Massachusetts, 376, 379, 380. The act of incorporation went into effect March 15, 1901, St. 1901, c. 159. * * * The discrimina- tion alleged is the express excep- tion from the act of 1900 of the Bos- ton Elevated Railwaj' Company and the railways then owned, leased or operated by it. But, in the first place, this was a legislative adjudica- tion concerning a specific road, as in Wight v. Davidson, 181 U. S. 371, 45 L. ed. 900, 21 Sup. Ct. 616, not a general prospective classification as in Martin v. District of Columbia, 205 U. S. 135, 138, 51 L. ed. 743, 27 Sup. Ct. 440. A general law must be judged by public facts, but a specific adjudication may depend upon many things not judicially known. There- fore the law must be sustained on this point unless the facts offered in evi- dence clearly show that the exception cannot be upheld. But the local facts are not before us, and it follows that we cannot say that the legislature could not have been justified in thus limiting its action. Covington v. Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 579, 598, 41 L. ed. 560, 17 Sup. Ct. 198. In the next place, if the only ground were that the charter of the Elevated Railway contained a contract against the imposition of such requirement, it would be attributing to the Four- teenth Amendment an excessively nice operation to say that the im- munity of a single corporation pre- vented the passage of an otherwise desirable and wholesome law. It is unnecessary to consider what would be the effect on the statute by con- struction in Massachusetts if the ex- ception could not be upheld. For, if in order to avoid the Scylla of un- justifiable class legislation, the law were read as universal (see Dunbar v. Boston & Providence R. R. Co., 181 Massachusetts, 383, 386), it might be «5 See §§ 14, 17, 97-107, 129, 166- 170, 184, 247, 255, 256, 322, 381-386, herein, as to franchises, fares, regula- tion, etc., of railroads. " See § 390, herein. See also §§ 369, 398, herein. *' That State has right to fix rates for railroad companies, see also Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 656 43 L. ed. 858 [rev'g Smith v. Lake Shore & M. S. Ry. Co., 114 Mich. 460, 72 N. W. 328, 4 Det. L. N. 662, 8 Am. & Eng. R. Cas. (N. S.) 496], per Peck- ham, J.; Perkins v. Northern Pac. Ry. Co. (C. C), 155 Fed. 445, 453. As to interstate eommerce limita- tions upon state regulations, see § 402, herein. RATES AND CHARGES 400 with a public interest, the legislature may fix a limit to that which shall in law be reasonable for its use.^* Railroad com- panies are carriers for hire. Engaged in a public employment affecting the public interest, they are, unless protected by their thought by this court to fall into the Charybdis of impairing the obligation of a contract with the elevated road, although that objection might per- haps be held not to be open to the plaintiff in error here. Hatch v. Reardon, 204 U. S. 152, 160, 27 Sup. Ct. 188, 51 L. ed. 415. The objection that seems to me, as it seemed to the court below, most serious is that the statute unjustifiably appropriates the property of the plaintiff in error. It is hard to say that street railway companies are not subjected to a loss. The conventional fare of five cents presumably is not more than a reasonable fare, and it is at least questionable whether street railway companies would be permitted to in- crease it on the ground of this burden. It is assumed by the statute in ques- tion that the ordinary fare may be charged for these children or some of them when not going to or from school. Whatever the fare, the stat- ute fairly construed means that chil- dren going to or from school must be carried for half the sum that would be reasonable compensation for their carriage, if we looked only to the business aspect of the question. Moreover, while it may be true that in some cases rates or fares may be reduced to an unprofitable point in view of the business as a whole or upon special considerations, Minne- apolis & St. Louis R. R. Co. v. Minne- sota, 18G U. S. 256, 267, 46 L. ed. 1151, 22 Sup. Ct. nOO, it is not enough to justify a general law like this, that the companies concerned still may be able to make a profit from other sources, for all that appears. Atlan- tic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 24, 25, 51 L. ed. 933, 27 Sup. Ct. 585. Notwithstanding the foregoing considerations I hesitat- ingly agree with the staj;e court that the requirement may be justified under what commonly is called the police power. The obverse way of stating this power in the sense in which I am using^ the phrase would be that constitutional rights like others are matters of degree and that the great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses without compensation, for some at least of the purposes of wholesome legislation. Martin v. District of Columbia, 205 U. S. 135, 139, 51 L. ed. 743, 27 Sup. Ct. 450; Camfield v. United States, 167 U. S. 518, 524, 42 L. ed. 260, 17 Sup. Ct. 864. If the Fourteenth Amendment is not to be a greater hamper upon the established practices of the States in common with other governments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part of the community are some- what increased. The traditions and habits of centuries were not intended to be overthrown when that amend- ' Peik V. Chicago & Northwestern, etc., Ry. Co., 94 U. S. 164, 24 L. ed. 97. 42 657 § 400 REGULATION AND CONTROL CONTINUED charters, subject to legislative control as to their rates of fare and freight/^ a legislature has power to fix rates for the trans- ment was passed. Education is one of the purposes for which what is called the police power may be exer- cised. Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 5 Sup. Ct. 507. Massachusetts always has recognized it as one of the first objects of public care. It does not follow that it would be equally in accord with the conceptions at the base of our con- stitutional law to confer equal favors upon doctors, or workingmen, or people who could afford to buy 1000-mile tickets. Structural habits count for as much as logic in drawing the line. And, to return to the tak- ing of property, the aspect in which I am considering the case, general taxation to maintain public schools is an appropriation of property to a use in which the taxpayer may have no private interest, and, it may be, against his will. It has been con- demned by some theorists on that ground. Yet no one denies its con- stitutionality. People are accus- tomed to it and accept it without doubt. The present requirement is not different in fundamental princi- ple, although the tax is paid in kind and falls only on the class capable of paying that kind of tax — a class of quasi public corporations specially subject to legislative control. Thus the question narrows itself to the magnitude of the burden imposed — to whether the tax is so great as to exceed the limits of the police power. Looking at the law without regard to its special operation I should hesitate to assume that its total effect, direct and indirect, upon the roads outside of Boston amounted to a more serious burden than a change in the law of 658 nuisance, for example, might be. See, further, WiUiams v. Parker, 188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct. 440. Turning to the specific effect, the offer of proof was cautious. It was simply that a ' considerable percent- age ' of the passengers carried by the company consisted of pupils of the public schools. This might be true without the burden becoming serious. I am not prepared to overrule the de- cision of the legislature and of the highest court of Massachusetts that the requirement is reasonable under the conditions existing there, upon evidence that goes no higher than this. It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt a law must be sustained. Mr. Justice Har- lan is of opinion that the constitu- tionality of the act of 1900 is nece.s- sarily involved in the determination of this case. He thinks the act is not liable to the objection that it denies to the railroad company the equal protection of the laws. Nor does he think that it can be held, upon any showing made by this record, to be unconstitutional as depriving the plaintiff in error of its property with- out due process of law. Upon these grounds alone, and independent of any other question discussed, he joins in a judgment of affirmance. Judg- mevt affirmed." ^' Chicago, Burlington & Quincy R. Co. V. Iowa, 94 U. S. 155, 24 L. ed. 94, cited in Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 397, 38 L. ed. 1014, 14 Sup. Ct. 1047; Wa- bash, St. L. & Pacif. R. Co. v. Illinois, RATES AND CHARGES § 400 portation of passengers by railways, and the extent of judicial interference is protection against unreasonable rates7° Again, a railroad is a public highway and none the less so because constructed and maintained through the agency of a corpora- tion deriving its existence and powers from the State. Such a corporation is created for public purposes. It performs a function of the State. Its authority to exercise the right of eminent domain and to charge tolls is given primarily for the benefit of the public. It is, therefore, under governmental control, subject, of course, to the constitutional guarantees for the protection of its property .'^^ A corporation maintain- ing a public highway, although it owns the property it em- ploys for accomplishing public objects, must be held to have accepted its rights, privileges and franchises, subject to the condition that the government creating it, or the government within whose limits it conducts its business, may by legislation protect the people against the exaction of unreasonable charges for the services rendered by it; but it is equally true that the corporation performing such public services, and the people financially interested in its business and affairs, have rights that may not be invaded by legislative enactment in disre- 118 U. S. 557, 564, 30 L. ed. 244, the amount of the tolls, unless they 7 Sup. Ct. 4; Railroad Commission have deprived themselves of that Cases (Stone v. Farmers' Loan & Tr. power by, a legislative contract with Co.), 116 U. S. 307, 325, 29 L. ed. the owners of the land. Beekman v. 636, 6 Sup. Ct. 334, 348, 349, 388, Saratoga & Schenectady Rd. Co., 3 391, 1191; Ruggles v. Illinois, 108 Paige Ch. (N. Y.) 45. U. S. 526, 531, 27 L. ed. S12, 2 Sup. As to statute fixing maximum tolls Ct. 832; Sinking Fund Cases (Union to be charged by railroad company Pacific R. Co. v. United States and and remedy to persons injured for Central Pacific R. Co. v. (lallatin), 99 violation of act, see .\ttorney General U. S. 700, 719, 25 L. ed. 496; Winona v. Chicago & Northwestern Rd. Co., & St. Peter R. Co. v. Blake, 94 U. S. 35 Wis. 425. 180, 24 L. ed. 99; Peik v. Chicago & When legislature cannot regulate N. W. R. Co., 94 U. S. 164, 24 L. ed. tolls, see Attorney General v. Chicago 97. See also Dow v. Beidclman, 125 & Northwestern Rd. Co., 35 Wis. U. S. 680, 31 L. ed. 841. 425. The legislature may regulate the '" Chicago & G. T. Ry. Co. v. Well- use of a franchise, which consists of man, 143 U. S. 339, 30 L. ed. 176, 12 the privilege of making a railroad and Sup. Ct. 400. See § 407, herein, taking tolls thereon, and it may limit '' Sec §§ 97-107, herein. 659 § 401 REGULATION AND CONTROL CONTINUED — gard of the fundamental guarantees for the protection of property 7^ § 401. Regulation of Rates — Powers of Railrond and Like Commissioners. — We have seen that a State may lawfully '^ Smyth V. Ames, 169 U. S. 466, subjection of the business to public 42 L. ed. 819, 18 Sup. Ct. 418. See regulation were based on the char- § 364, herein. acter of the business, or, in the lan- " The control which, by common guage of Sir William Jones, upon the law and by statute, is exercised over consideration ' that the calling is a common carriers is conclusive upon public employment' (Jones on Bail- the point that the right of the legis- ments. Appendix). It is only a pub- lature to regulate the charges for lie employment in the sense of the services in connection with the use language of Lord Hale, that it was of property, does not in every case 'affected with a public interest,' and depend upon the question of legal the imposition of the character of a monopoly. From the earliest period public business upon the business of a of the common law it has been held common carrier was made because that common carriers were bound to public policy was deemed to require carry for a reasonable compensation, that it should be under public regu- They were not at liberty to charge lation. The principle of the common whatever sum they pleased, and law that common carriers must serve even where the price of carriage was the public for a reasonable compensa- fixed by the contract or convention tion became a part of the law of this of the parties, the contract was not State, and from the adoption of the enforceable beyond the point of rea- constitution has been part of our sonable compensation. From time municipal law. It is competent for to time statutes have been enacted in the legislature to change the rule of England and in this country, fixing reasonable compensation, as the the sum which should be charged matter was left by the common law, by carriers for the transportation of and prescribe a fixed and definite passengers and property, and the compensation for the services of validity of such legislation has not common carriers. This principle was been questioned. But the business of declared in the Munn Case [Munn common carriers, until recent times, v. Illinois, 94 U. S. (4 Otto), 113, 24 was conducted almost exclusively by L. ed. 77], which was cited with ap- individuals for private emolument, proval on this point in Sawyer v. and was open to every one who Davis (136 Mass. 239). It accords chose to engage in it. The State con- with the language of Chief Justice ferred no franchise and extended to Shaw in Commonwealth v. Alger common carriers no benefit or pro- (7 Cush. 53) : ' Whenever there is a tection, except that general protec- general right on the part of the tion which the law affords to all public, and a general duty of the persons and property within its juris- landowner, or any other person to re- diction. The extraordinary obliga- spect such right, we think it is com- tions imposed upon carriers and the petent for the legislature by a specific 660 RATES AND CHARGES § 401 create bodies designated as railroad commissioners, railroad and warehouse commissioners, state corporation commission- ers, etc., and delegate to them the authority to exercise cer- tain powers.'^ So a statute may constitutionally create a commission and charge it with the duty of supervising railroads,'^-* and making rates ; '^'^ and under the statutes of a enactment to prescribe a precise, legislation are corporations deriving practical rule for declaring, establish- their existence from the State, but ing and securing such right and en- upon the fact that the corporations forcing respect for it.' The practice are common carriers, and therefore of the legislature in this and other subject to legislative control. The States to prescribe m maximum rate State in constituting a corporation for the transportation of persons or may prescribe or limit its powers property on railroads is justified upon and reserve such control as it sees this principle. Where the right of fit, and the body accepting the the legislature to regulate the fares charter takes it subject to such or charges on railroads is reserved by limitations and reservations, and is the charter of incorporation, or the bound by them. The considerations charter was granted subject to the upon which a corporation holds its general right of alteration or repeal franchises are the duties and obliga- by the legislature, the power of the tions imposed by the act of incorpo- legislature in such cases to prescribe ration. But when a corporation is the rate of compensation is a part of created it has the same rights and the contract, and the exercise of the the same duties, within the scope power does not depend upon any marked out for its action, that a general legislative authority to regu- natural person has. Its property is late the charges of common carriers, secured to it by the same constitu- But the cases are uniform that where tional guaranties, and in the manage- there is no reservation in the char- ment of its property and business is ter the legislature may, neverthe- subject to regulation by the legis- less, interfere or prescribe or limit lature to the same extent only as the charges of railroad corporations, natural persons, except as the power (Granger Cases [Munn v. Illinois, 94 may be extended by its charter. The U. S. (4 Otto) 113, 24 L. ed. 77]; mere fact of a corporate character Dow V. Beidelman, 125 U. S. 680, 31 docs not extend the power of Icgis- L. ed. 841, 8 Sup. Ct. 1028; Earl, J., lative regulation." People v. Budd, in People ex rel. Kimball v. Boston & 117 N. Y. 1, 26 N. Y. St. R. 533, 22 Albany Rd. Co., 70 N. Y. 569; Ruger, N. E. 670, 680, 7 N. Y. Cr. R. 189, Ch. J., in Buffalo East Side Rd. Co. per Andrews, .J. V. Buffalo Street Rd. Co., Ill N. Y. "See §§ 167-170, herein. 132, 19 N. Y. St. R. 574, 19 N. E. ^"Railroad Commission Cases 63.) The power of regulation in (Stone v. Farmers' Loan & Trust these cases does not turn upon the Co.), 116 U. S. 307, 29 L. ed. 636, 6 fact that the entities affected by the Sup. Ct. 334. " State v. Atlantic Coast Line R. Co. (Fla., 1906), 40 So. 875. 661 § 402 REGULATION AND CONTROL CONTINUED — State the duty of enforcing such rates as it may fix can be vested in a raih-oad commission/^ Again, the creation of a raih'oad or corporation commission by a state statute may operate as a repeal of a statute empowering raih'oads to fix passenger rates, or a statute giving such authority to railroads may repeal an enactment creating such commission or extend- ing and enlarging its powers 7^ But a statute creating a rail- road and warehouse commission is unconstitutional where it makes the rates as fixed by such commission final and con- clusive and deprives a railroad company of its right to judicial investigation by due process of law 7^ Again, when railroad commissioners are authorized to investigate and report to the legislature they have no implied authority to adjust, and can- not require the company to refund excess charges to the ship- per7^ § 402. Railroads — Regulation of Rates by Congress — Reservation of Right to Alter or Amend. — Congress has power to require a uniform freight rate, and the rate with which That statute creating grain and particulars complained of by the warehouse commission is not uncon- railroad company. It deprives the stitutional as denying equal protec- company of its right to a judicial in- tion of the laws, see Globe Elevator vestigation, by due process of law, Co. V. Andrew (C. C), 144 Fed. 871. under the forms and with the ma- '' McChord v. Louisville & N. R. chinery provided by the wisdom of Co., 183 U. S. 483, 46 L. ed. 289, 22 successive ages for the investigation Sup. Ct. 165. judicially of the truth of a matter in " Southern Ry. Co. v. McNeill, 155 controversy, and substitutes there- Fed. 756. See Matthews v. Board for, as an absolute finality, the action of Corporation Commrs. of N. C, 97 of a railroad commission which, in Fed. 400; Pacific Express Co. v. view of the powers conceded to it by Cornell (Neb.), 81 N. W. 377. the state court, cannot be regarded '* Chicago, Milwaukee & St. Paul as clothed with judicial functions or Ry. Co. v. Minnesota, 134 U. S. 418, possessing the machinery of a court 33 L. ed. 970, 10 Sup. Ct. 462, 702. of justice." See § 407, herein. The court (at p. 456), per Blatch- '" Oregon Railroa^d Commrs. v. ford, J., said: "This being the con- Oregon R. & Nav. Co., 17 Oreg. 65, struction of the statute by which we 2 L. R. A. 195, 19 Pac. 702. See this are bound in considering the present case also upon point as to when no case, we are of opinion that, so con- authority exists to enter complaint strued, it conflicts with the Consti- in Circuit Court for refusal to obey tution of the United States in the orders. 662 RATES AND CHARGES § 402 constitutions and statutes are concerned is the net cost to the shipper of the transportation of his property. As uni- formity is the very essence of regulation and Congress has plenary power to regulate interstate commerce, the true rule must be that as a logical and necessary incident of the power to regulate, Congress may prohibit the doing, by any person whatsoever, of any act or thing the effect of which is to pre- vent or disturb uniformity.^" Again, Congress has undoubted power to subject to regulations adopted by it every carrier engaged in interstate commerce.*^ "I have no doubt that Congress might very properly, under the constitutional pro- vision giving it the entire power of control over interstate commerce, assume control of the avenues of interstate com- merce, of the railroads which are engaged in interstate com- merce, and of all rates which are collected by those railroads, whether within the States or without the States, because the matter of those rates would affect these avenues of interstate commerce, and might affect their ability to continue as ave- nues of interstate commerce. The rates, if they were fixed by the States, might be fixed so low in one State, and another, and all of them, that the railroads could not exist and could not perform their functions as carriers of interstate commerce, and for the purpose of securing these railroads as carriers of interstate commerce. Congress would have the power, under that provision, to take the entire control of the regulation and the rates which the carriers of interstate commerce, upon the avenues of interstate commerce, would have the right to charge, the same as Congress has assumed the right, under the very same clause, to control the navigation of the coastwise waters, bays and lakes; and the rivers running through the country, even if the rivers are entirely within a particular State. * * * But, as has been held by the Supreme Court in many cases, where Congress has the power to exercise con- ^ Interstate Commerce Commis- Co. v. Interstate Commerce Com- sion V. Reichmann (C. C), 145 Fed. mission, 200 U. S. 361, 50 L. ed. 515, 235, 238. 20 Sup. Ct. 272. " New York, New Haven & H. R. 663 § 403 REGULATION AND CONTROL CONTINUED — trol and fails to exercise it, the State may exercise control in all matters that are proper — police regulations at any rate. And until Congress does exercise that control, and certainly while the Supreme Court continues to hold, as it has, that the States may regulate the local commerce that is entirely within the State, I do not think that it would be proper to hold that these acts are void as invasions of the right of Congress to con- trol exclusively the avenues of interstate commerce." *^ In the case of the Union Pacific Railroad Company, incorporated by the act of 1862,*^ it is held that until Congress, in the ex- ercise of the power specially reserved in that enactment, or its power under the general reservation made of authority to add to, alter, amend or repeal that act, prescribes rates to be charged by that company, it remains with the States through which the road passes to fix rates for transportation beginning and ending within their respective limits.*"* § 403. Object of Interstate Commerce Act — Powers and Jurisdiction of Interstate Commerce Commission. — The principal objects of the Interstate Commerce Act were to se- cure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preference to persons, corporations, or localities; to inhibit greater compensation for a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freight. It was not designed to prevent com- petition between different roads, but rather to encourage com- petition. The statute does not define undue or unreasonable preference or advantage. That must be left to the circum- «2 Perkins v. Northern Pac. Ry. Ry. Co., 157 Fed. 321, 342; United Co. (C. C), 155 Fed. 445, per Loch- States v. Great Northern Ry. Co., ran, Dist. J. (a case of state regu- 145 Fed. 438. See §§ 125, 365-369, lation of rates to be charged by herein, railroads on intrastate business). *' Act July 1, 1862, § 18. Examine State Freight Tax Case, 15 ^* Smyth v. Ames, 169 U. S. 466, Wall. (82 U. S.) 232, 21 L. ed. 146; 42 L. ed. 819, 18 Sup. Ct. 418. See United States v. Colorado & N. W. § 402, herein. 664 RATES AND CHARGES § 403 stances of each case.^^ Again, the Interstate Commerce Act was enacted to secure equahty of rates and to destroy favor- itism, and for those purposes is a remedial statute, to be in- terpreted so as to reasonably accomplish them ; its prohibitions against directly or indirectly charging less than published rates are all embracing and applicable to every method by which the forbidden results could be brought about .^^ The purpose of the second section of said act is to enforce equality between shippers over the same line, and prohibit any rebate or other device by which two shippers shipping over the same line, the same distance, under the same circumstances of carriage are compelled to pay different prices therefor.*^ When a state railroad company whose road lies within the limits of a State enters into the carriage of foreign freight by agreeing to re- ceive the goods by virtue of foreign through bills of lading, and to participate in through rates and charges, it thereby becomes part of a continuous line, not made by consolidation with foreign companies, but by an arrangement for the continuous carriage or shipment from one State to another; and thus be- comes amenable to the Federal act in respect to such inter- state commerce; and having thus subjected itself to the con- trol of the Interstate Commerce Commission, it cannot limit that control in respect to foreign traffic to certain points on its road to the exclusion of other points. Such commission is not, however, empowered, either expressly or by implication, to fix rates m advance; but, subject to the prohibition that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue pref- " Interstate Commerce Commis- 16 Sup. Ct. 666. See also § 153, sion V. Chicago Creat Western Ity. herein. Co. (C. C), 141 Fed. 1003, 1014, per «' Interstate Commerce Commis- Bethea, Di.st. J. sion v. Alabama Midland Ry. Co., " New York, New Haven & H. Rd. 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Co. V. Interstate Commerce Commis- ed. 414. sion, 200 U. S. 361, 26 Sup. Ct. 272, The phrase "under substantially 50 L. ed. 515. See Texas & Pacific similar circumstances and conditions," Ry. Co. V. Interstate Commerce Com- as used in the second section of the mission, 162 U. S. 197, 40 L. ed. 1)40, Interstate Commerce Act, refers to the matter of carriage, and does not 665 § 403 REGULATION AND CONTROL CONTINUED erence or disadvantage to persons or traffic similarly circum- stanced, the act to regulate commerce leaves common carriers as they were at the common law, free to make special con- tracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their im- portant interests upon the same principles which are regarded as sound and adopted in other trades and pursuits.^ Rates fixed by the commission, in so far as it is empowered to fix them, should be regulated to each point independently and not be made to one point dependent upon the rise or fall of those to another point .^^ The Interstate Commerce Commission, in making an investigation on the complaint of a shipper has, in the public interest, the power, disembarrassed by any sup- posed admissions contained in the statement of the complaint, to consider the whole subject and the operation of the new classification complained of in the entire territory; also how far its going into effect would be just and reasonable and would create preferences or engender discriminations and whether it is in conformity with the requirements of the act to regulate commerce. And if it finds that the new classification disturbs the rate relations thereupon existing in the official classification territory and creates preferences and engenders discriminations it may, in order to prevent such result, prohibit the further enforcement of the changed classification, and an order to that include competition among rival Loviisville & N. R. Co. v. Behlmer, routes. Interstate Commerce Com- 175 U. S. 648, 663, 672, 44 L. ed. mission v. Alabama Midland Ry. Co., 309, 20 Sup. Ct. 209; Interstate Com- 168 U. S. 144, 18 Sup. Ct. 45, 42 merce Commission v. Alabama Mid- L. ed. 414; Wight v. United States, land Ry. Co., 168 U. S. 144, 162, 18 167 U. S. 512, 42 L. ed. 258, 17 Sup. Sup. Ct. 45, 42 L. ed. 414; Interstate Ct. 822. As to competition, see Commerce Commission v. Cincinnati, §§ 413-415, herein. N. O. & T. P. Ry. Co., 167 U. S. 479, 88 Cincinnati, N. O. & T. P. Ry. Co. 493, 508, 42 L. ed. 243, 17 Sup. Ct. V. Interstate Commerce Commission, 896; United States v. Trans-Missouri 162 U. S. 184. See the following Freight Assoc, 166 U. S. 290, 373, 17 cases: Interstate Commerce Commis- Sup. Ct. 540, 41 L. ed. 1007. sion V. Chicago Great Western Ry. *' Interstate Commerce Commis- Co., 209 U. S. 108, 119 (considered sion v. Louisville & N. R. Co., 73 and quoted from under § 415, herein) ; Fed. 409. 666 RATES AND CHARGES § 404 effect is within the power conferred by Congress on the com- mission; and so held as to an order of the commission directing carriers from further enforcing throughout official classification territory a changed classification in regard to common soap in less than carload lots.^*^ § 404. Regulation of Rates — Railroads — Interstate Com- merce — Taxation of Freight or Passengers. — A state statute which relates to discrimination in transportation charges of goods and which includes the transportation under one con- tract and under one voyage of goods from within one State to another States violates the Federal Constitution. Such a transportation is ''commerce among the States," even as to that part of the voyage which lies within the State where the statute was enacted. There may, however, be transportation of goods which is begun and ended within the limits of a State, and disconnected with any carriage outside of the State which is not commerce among the States. The latter is subject to regulation by the State ; but the former is national in its char- acter, and its regulation is confided to Congress exclusively, by that clause of the Constitution which empowers it to regu- late commerce among the States. This principle or doctrine is asserted in a Federal case where certain cases ^^ are examined and held, in view of other cases decided near the same time, not to establish a contrary doctrine. And the Supreme Court declares that, notwithstanding what is said in those cases, it still holds, and has never consciously held otherwise, that a statute of a State, intended to regulate or to tax or to impose any other restriction upon the transmission of persons or property or telegrai)hic messages from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress; and that such stat- »« Cincinnati, Hamilton & Dayton 24 L. cd. 77; Chicago, Burlington & Ry. Co. V. Interstate Commerce Com- Quincy Rd. Co. v. Iowa, Dow v. Beidelman, 125 U. S. 680, 362, 412, 14 Sup. Ct. 1047, 38 L. ed. 8 Sup. Ct. 1028, 31 L. ed. 841. 681 § 409 REGULATION AND CONTROL CONTINUED — applied to all freight the road would not pay its operating expenses, since it might well be that the existing rates upon other merchandise, which were not disturbed by the commis- sion, might be sufficient to earn a large profit to the company, though it might earn little or nothing upon coal in carload lots.^^ In still another case the facts were as follows: The State of South Dakota having passed an act providing for the appointment of a board of railroad commissioners, and au- thorizing that board to make a schedule of reasonable maxi- mum fares and charges for the transportation of passengers, freight and cars on the railroads within the State, provided that the maximum charge for the carriage of passengers on roads of the standard gauge should not be greater than three cents per mile ; and that board having acted in accordance with the statute, and having published its schedule of maximum charges, the Chicago, St. Paul and Milwaukee Railway com- pany filed the bill in this case in the Circuit Court of the United States for the District of South Dakota, seeking to re- strain the enforcement of the schedule. The railroad com- missioners answered fully, and testimony was taken before an examiner upon the issues made by the pleadings. This testimony was reported without findings of fact or conclusions of law. The case went to hearing, the judge, without the aid of a master, examined the pleadings and the mass of proof. He made findings of fact and conclusions of law; delivered an opinion; and rendered a decree dismissing the bill. The Fed- eral Supreme Court was of opinion that neither the findings made by the court, nor such facts as were stated in its opinion, were sufficient to warrant a conclusion upon the question whether the rates prescribed by the defendants were unrea- sonable or not, and that the process by which the court came to its conclusion was not one which could be relied upon; that there was error in the failure to find the cost of doing the local business, and that only by a comparison between the gross receipts and the cost of doing the business, ascertaining '» Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151. 682 KATES AND CHARGES §§ 410, 411 thus the net earnings, could the true effect of the reduction of rates be determined; that the better practice would be to refer the testimony, when taken, to the most competent and reliable master, general or special, that could be found, to make all needed computations, and find fully the facts; so that the Federal Supreme Court, if it should be called upon to examine the testimony, might have the benefit of the services of such master." § 410. Regulation of Rates — Railroad in Two or More States — Continuous Line — Consolidation — Test of Reason- ableness of Rate — Penalties — Defense. — A railroad forming a continuous line in two or more States, and owned and man- aged by a corporation whose corporate powers are derived from the legislature of each State in which the road is situated, is, as to domestic traffic in each State, a corporation of that State, subject to state laws not in conflict with the Constitu- tion of the United States.^* And when, by legislation and con- solidation, a railroad which was originally all in one State becomes consolidated with other roads in other States, and the State originally incorporating it enacts laws to regulate the rates of the consolidated road within its borders, the proper test as to the reasonableness of these rates is as to their effect upon the consolidated line as a whole. And when a State pre- scribes rates for a railroad only a part of which is within its borders, the company may raise the question of their rea- sonableness by way of defense to an action for the recovery of penalties for violating the directions. ^^ § 411. Railroad —Arbitrary Regulation of Rates — Mileage Tickets — Discrimination — Due Process of Law -Equal Pro- tection of the Laws. — Wliiloa State may make reasonable reg- ulations for the government of public service corporations, and "Chicago, Milwaukee & St. Paul 116 U. S. 307, 29 L. ed. 6150, 6 Sup. Ry. Co. V. Tompkins, 176 U. S. 167, Ct. 334. 20 Sup. Ct. 336, 44 L. ed. 417. i9 St. Louis & S. F. Ry. Co. v. Gill, " Railroad Commission Cases 156 U. S. 649, 15 Sup. Ct. 484, 39 (Stone V. Farmers' Loan & Tr. Co.), L. ed. 567. 683 § 411 REGULATION AND CONTROL CONTINUED — to that end may fix a reasonable maximum rate for the trans- portation of passengers, it cannot arbitrarily fix a maximum passenger rate of two cents a mile on mileage books of five hundred miles or over and require the carrier always to keep the same on sale to all who apply therefor, and to redeem them at a later period than they have theretofore redeemed mileage books. Such legislation is class legislation, and it is not for the protection of all the people, but of the favored few. It discriminates in favor of the wholesale buyer, and also in- vades the right of the carrier to conduct and manage its own affairs. It denies to the carrier the equal protection of the laws, and deprives him of his property without due process of law, and is, therefore, unconstitutional. ^^ So the provision in the act of the legislature of Michigan, ^^ amending the general rail- road law, that one thousand mile tickets shall be kept for sale at the principal ticket offices of all railroad companies in that State or carrying on business partly within and partly without the limits of the State, at a price not exceeding twenty dollars in the Lower Peninsula and twenty-five dollars in the Upper Peninsula; that such one thousand mile tickets may be made non-transferable, but whenever required by the purchaser they shall be issued in the names of the purchaser, his wife and chil- dren, designating the name of each on such tickets, and in case such ticket is presented by any other than the person or persons named thereon, the conductor may take it up and collect fare, and thereupon such one thousand mile ticket shall be forfeited to the railroad company; that each one thousand mile ticket shall be valid for two years only after date of purchase, and in case it is not wholly used within the time, the company is- suing the same shall redeem the unused portion thereof, if presented by the purchaser for redemption within thirty days after the expiration of such time, and shall on such redemption be entitled to charge three cents per mile for the portion thereof used, is a violation of that part of the Constitution of the Uni- 2" Commonwealth v. Atlantic Coast " Act 1891, No. 90. Line Ry. Co., 106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086. 684 RATES AND CHARGES § 412 ted States which forbids the taking of property without due process of law, and requires the equal protection of the laws. In so holding the court is not thereby interfering with the power of the legislature over railroads, as corporations or common carriers, to so legislate as to fix maximum rates, to prevent extortion or undue charges, and to promote the safety, health, convenience or proper protection of the pubhc; but it only holds that the particular legislation in review in this case does not partake of the character of legislation fairly or reasonably necessary to attain any of those objects and that it does vio- late the Federal Constitution as above stated.^^ § 412. Right of Carrier to Fix Rates— To What Extent Legislative Power Affected Thereby — Exemptions — Right to Create Railroad Commission — Power to Amend, etc., Suc- cessor Company— Obligation of Contracts.'^ — The right of a State to reasonably limit the amount of charges by a rail- road company for the transportation of persons and property within its jurisdiction, cannot be granted away by the legis- lature unless by words of positive grant, or words equivalent in law. 2^- And an exemption of a common carrier from legis- lative control in respect to its rates of fare must clearly appear from the language used, which must plainly and unmistak- al ly evidence an intent inconsistent with the exercise of such control. 2^ If a statute grants to a railroad company the right " Lake Shore & M. S. Ry. Co. v. 24 Sup. Ct. 756, considered in § 398, Smith, 173 U. S. 486, 19 Sup. Ct. 565, herein. See also § 399, herein. 43 L. ed. 858, rev'g Smith v. Lake " IndianapoHs v. Navin, 151 Ind. Shore & M. S. Ry. Co., 114 Mich. 139, 47 N. E. 525, 41 L. R. A. 337, 14 460, 72 N. W. 328, 4 Det. L. N. 662, Nat. Corp. Rep. 774. Rehearing de- 8 Am. & Eng. R. Cas. (N. S.) 496. nied in 151 Ind. 156, 41 L. R. A. 344, " See § 409, herein, as to test of 5 Det. Leg. N., No. 19, 30 Chic. Leg. reasonableness of rates in connection N. 414, 51 N. E. 80. See § 327, with right of company to fix rates. herein. ^* Railroad Commi.ssion Cases Examine also the following cases: (Stone V. New Orleans & North- United States: Metropolitan St. eastern Rd. Co.), 116 U. S. 352, 29 Ry. Co. v. New York Board of Tax L. cd. 651, 6 Sup. Ct. 349, 391. Com- Commissioners, 199 U. S. 1, 50 L. ed. pare Cleveland, City of, v. Cleveland 65, 25 Sup. Ct. 705; Citizens' Bank v. Ry. Co., 194 U. S. 517, 48 L. ed. 1102, Parker, 192 U. S. 73, 48 L. ed. 346, 24 685 § 412 REGULATION AND CONTROL CONTINUED — "from time to time to fix, regulate and receive, the tolls and charges by them to be received for transportation," it does not deprive the State of its power, within the limits of its general authority, as controlled by the Constitution of the United States, to act upon the reasonableness of the tolls and charges so fixed and regulated. So an act of incorporation which confers upon the directors of a railroad company the power to make by-laws, rules and regulations touching the disposition and management of the company's property and all matters appertaining to its concerns, confers no right which is violated by the creation of a state railroad commission, charged with the general duty of preventing the exaction of unreasonable or discriminating rates upon transportation done within the limits of the State, and with the enforcement of reasonable police regulations for the comfort, convenience and safety of travellers and persons doing business with the company within Sup. Ct..l81; Wheeling & Belmont Nebraska: Lincoln St. Ry. Co. v. Bridge Co. v. Wheeling Bridge Co., City of Lincoln, 61 Neb. 109, 110, 84 138 U. S. 287, 34 L. ed. 967, 11 Sup. N. W. 802. Ct. 301; Chicago, B. & K. C. R. Co. v. New Jersey: Sisters of Charity of Guffey, 120 U. S. 569, 30 L. ed. 732, St. Ehzabeth v. Corey, 73 N. J. L. 7 Sup. Ct. 693; Memphis Gas Co. v. 699, 65 Atl. 500. Shelby County, 109 U. S. 398, 27 Ohio: Knoup v. Piqua Bank, 1 L. ed. 976, 3 Sup. Ct. 205; Ruggles v. Ohio St. 603. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, Washington: Thurston County v. 27 L. ed. 872; Hoge v. Railroad Co., Sisters of Charity, 14 Wash. 264, 44 99 U. S. 348, 25 L. ed. 303; North Pac. 252. Missouri R. Co. v. Maguire, 20 Wall. See §§ 254, 255, herein. (87 U. S.) 46, 22 L. ed. 287; Delaware In order to exempt a railroad cor- Railroad Tax, 18 Wall. (85 U. S.) poration from legislative interference 206, 21 L. ed. 888; Oilman v. She- with its rates of charges within a boygan, 2 Black (67 U. S.), 510, 17 designated limit, it must appear that L. ed. 305; Jefferson Branch Bank v. the exemption was made in its char- Skelly, 1 Black (66 U. S ), 436, 17 ter by clear and unmistakable lan- L. ed. 173; Ohio Life Ins. & Trust guage, inconsistent with any reserva- Co. V. Debolt, 16 How. (57 U. S.) tion of power by the State to that 416, 14 L. ed. 997. effect. Georgia Rd. & Bkg. Co. v. Illinois: People, Koehersperger, v. Smith, 128 U. S. 174, 33 L. ed. 377, Chicago Theological Seminary, 174 9 Sup. Ct. 47, 16 Wash. L. Rep. 749. 111. 177, 51 N. E. 198. A contract of exemption from Louisiana: State of Louisiana v future general legislation, unless it is Morgan. 28 La. Ann. 482. given expressly or follows by impli- 686 RATES AND CHARGES § 412 the State. ^® So where an amendment was made to the charter of a railroad company in IlHnois providing that "the said company shall have power to make, ordain and establish all such by-laws, rules and regulations as may be deemed ex- pedient and necessary to fulfill the purposes and carry into effect the provisions of this act, and for the well ordering, reg- ulating and securing the affairs, business and interest of the company: Provided, that the same be not repugnant to the Constitution and laws of the United States, or repugnant to this act. The board of directors shall have power to estab- lish such rates of toll for the conveyance of persons or property upon the same as they shall from time to time by their by-laws determine, and to levy and collect the same for the use of such company;" it was held that inasmuch as the power to estab- lish rates was to be exercised through by-laws, and the power to make by-laws was restricted to such as should not be re- pugnant, among other things, to the laws of the State, the amendment did not release the company from restrictions upon the amount of rates contained in general and special statutes of the State. ^^ In another case the facts were as fol- lows: the Chicago and Northwestern Railway Company was, by its charter, and the charters of other companies consoli- dated with it, authorized "to demand and receive such sum or sums of money for the transportation of persons and prop- erty, and for storage of property, as it should deem reason- able." The constitution of Wisconsin, in force when the char- ters were granted, provided that all acts for the creation of corporations within the State "may be altered or repealed by the legislature at any time after their passage." It was de- cided, that the legislature had power to prescribe a maximum of charges to be made by said company for transporting per- sons or property within the State, or taken up outside the cation equally clear with express ^' Railroad Commission Cases words, cannot be deemed to exist. (Stone v. New Orleans & North- Louisville & N. R. Co. V. Kentucky, eastern Rd. Co.), 116 U. S. 352, 29 18.3 U. S. 50.3, 46 L. ed. 298, 22 L. ed. 651, 6 Sup. Ct. 349, 391. Sup. Ct. 95 (carriers; long and short ^' Rugglcs v. Illinois, 108 U. S. 526, hauls). 2 Sup. Ct. 832, 27 L. ed. 812. 687 § 412 REGULATION AND CONTROL CONTINUED — State and brought within it, or taken up inside and carried without.'* Again, where a charter to a railroad company vests it "with all the rights and privileges conferred by the laws of this commonwealth, and subject to such as apply to railroads generally," the corporation is thereby subjected to state laws regulating rates, notwithstanding provisions of exemption in statutes organizing other previous companies to whose rights it succeeded; and the successor who becomes possessed of the rights and property of the company so chartered takes them subject in like manner to such laws.^^ So a state railroad cor- poration, voluntarily formed, cannot exempt itself from the control reserved to the State by its constitution, and, if not protected by a valid contract, cannot successfully invoke the interposition of Federal courts, in respect to long and short haul clauses in a state constitution, simply on the ground that a railroad is property.^° Where a railroad company's charter is granted after a constitutional provision is adopted author- izing a limitation of maximum rates, the objection cannot successfully be urged that such a limitation violates its charter contract. ^^ But it is also held that the act of a legislature in attempting to fix a rate impairs the obligation of contracts as to a railroad company holding, by a prior grant, an exclusive power to fix rates, within certain limits, for transportation. ^^ =!« Peik V. Chicago & Northwestern Co., 154 U. S. 362, 38 L. ed. 1014, 14 Ry. Co., 94 U. S. 164, 24 L. ed. 97. Sup. Ct. 1047, 4 Inters. Comm. Rep. See §§ 317 et seq., herein. 560; Georgia Rd. & Bkg. Co. v. 29 Norfolk & Western R. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377, 9 Pendleton, 156 U. S. 667, 15 Sup. Ct. Sup. Ct. 47; New Orleans Gas Light 413, 39 L. ed. 574. Co. v. Louisiana Light & H. P. & 30 Louisville & N. R. Co. v. Ken- Mfg. Co., 115 U. S. 650, 29 L. ed. 516, tucky, 183 U. S. 503, 46 L. ed. 298, 6 Sup. Ct. 252; Ruggles v. Illinois, 22 Sup. Ct. 95. 108 U. S. 526, 2 Sup. Ct. 832, 27 " Wellman v. Chicago & G. T. R. L. ed. 812; Chicago, Burlington & Co., 83 Mich. 592, 47 N. W. 489, 45 Quincy R. Co. v. Iowa, 94 U. S. 155, Am. & Eng. Ry. Cas. 249, 9 Ry. & 24 L. ed. 94; The Binghamton Corp. L. J. 102. Bridge, 3 Wall. (70 U. S.) 51, 18 ^^Pingree v. Michigan Cent. R. L. ed. 137; Bridge Proprietors v. Co., 118 Mich. 314, 5 Det. L. N., Hoboken Land & Improv. Co., 1 No. 31, 53 L. R. A. 274, citing Wall. (68 U. S.) 116, 17 L. ed. 571; Reagan v. Farmers' Loan & Trust West River Bridge v. Dix, 6 How. 688 RATES AND CHARGES § 412 It seems, therefore, that even though a statute may authorize a railroad company to fix reasonable charges for the transporta- tion of persons or property within a State, still, as a general rule, such authorization does not constitute an irrepealable contract under which the company shall have the right for all future time to prescribe its rates of fare or toll free from all control by the legislature in intrastate matters. This conclu- sion is, however, subject to the exceptions that an exemption from legislative control in the matter of rates may have been granted in clear and unmistakable terms, or there may exist such a contract with the company that future legislative ac- tion in fixing rates may operate as an impairment of the ob- ligation of contracts; but the question of police powers is entitled to weight in this connection. ^^ (47U. S.) 507, 12 L.ed. 535; Stone V. Gulf & S. I. R. Co. v. Hewes, 183 Yazoo & M. V. R. Co., 62 Miss. 607, U. S. 66, 46 L. ed. 86, 22 Sup. Ct. 26; 52 Am. Rep. 193. Citizens' Savings Bank of Owensboro "See Minneapolis E. Ry. Co. v. v. Owensboro, 173 U. S. 630, 43 L. ed. Minnesota, 134 U. S. 467, 33 L. ed. 840, 19 Sup. Ct. 530; Wilmington & 985, 10 Sup. Ct. 473; Chicago, M. & W. R. Co. v. Alsbrook, 146 U. S. 279, St. P. Ry. Co. V. Minnesota, 134 13 Sup. Ct. 72, 36 L. ed. 972; Jeffer- U. S. 418, 33 L. ed. 970, 10 Sup. Ct. son Bank v. Skelly, 1 Black (66 462, 702; Chicago, I. & L. Ry. Co. U. S.),4.36, 17 L. ed. 173; Ohio Life V. Railroad Commission of Indiana Ins. & Trust Co. v. Debolt, 16 How. (Ind. App., 1906), 78 N. E. 338. (57 U. S.) 416, 14 L. ed. 2.30; Shields Examine Beardsley v. New York, v. Ohio, 95 U. S. 319, 24 L. ed. 357; L. E. & W. R. Co., 44 N. Y. Supp. New Jersey v. Yard, 95 U. S. 104, 175, 15 App. Div. 251 ; Dillon v. Erie 24 L. ed. 352; Houston & T. C. R. Co. R. Co., 43 N. Y. Supp. 320, 19 Misc. v. Storey, 149 Fed. 499; Yazoo & M. 116. See §§ 311 et seq., 399, herein. V. R. Co. v. Board of Levee Commrs. As to exemptions and obligations (C. C), 37 Fed. 24. of contracts, examine the following Maryland: State v. Northern Cen- cases for principle involved: tral Ry. Co., 90 Md. 447, 45 Atl. United States: Rochester Rail- 465. way Co. V. City of Rochester, 205 New Jersey: Board of Assessors U. S. 2.36, 51 L. ed. — , 27 Sup. Ct. v. PlainHold Water Supply Co., 67 — ; Powers v. Detroit, G., H. & M. N. J. L. 357, 52 Atl. 230; Hancock, Ry. Co., 201 U. S. 543, 50 L. ed. 860, Comptroller, v. Singer Mfg. Co., 62 26 Sup. Ct. 556; Grand Rapids & I. N. J. L. 289, 328, 42 L. R. A. 852, 41 Ry. Co. v. Osborn, 193 U. S. 17, 48 Atl. 846, per Van Syckel, J.; State, L. ed. 598 (aff'g Commissioners of Singer Mfg. Co., v. Heppcnhcimer, 58 Railroads v. Grand Rapids & I. Ry. N. J. T>. 633, 34 Atl. 103. Co., 130 Mich. 248, 89 N. W. 967); Pennsylvania: Commonwealth v. 44 689 § 413 REGULATION AND CONTROL CONTINUED — § 413. Right of Carrier to Fix Rates— Basis Upon Which Fixed.''^'* — The approval of a board of railroad and warehouse commissioners does not justify a common carrier in imposing an unlawful freight rate.^^ If a railroad company has the fran- chise right to charge one fare from a certain village, through which it operates its road, to another village, and it charges a fare through to a point within the first village, it does not in- cur a statutory penalty for charging excessive fares if it re- quires another fare from that point out toward such other village. ^^ Railroad companies have the right to sell non- transferable reduced rate excursion tickets,^'' and the non- transferability and forfeiture embodied in such tickets is not only binding upon the original purchaser and anyone subse- quently acquiring them but, under the provisions of the act to regulate commerce,^* it is the duty of the railroad company to prevent the wrongful use of such tickets and the obtaining of a preference thereby by anyone other than the original purchaser. ^^ There are a great many factors and circum- stances to be considered in fixing a rate,^" among other things: 1. The value of the service to the shipper, including the value of the goods and the profit he could make out of them by ship- ment. This is considered an ideal method, when not interfered with by competition or other factors. This method is con- sidered practical, and is based on an idea similar to taxation. Philadelphia & E. R. Co., 164 Pa. N. E. 1090; Raih-oad Law, § 39, 252, 35 W. N. C. 217, 30 Atl. 145. Laws 1890, p. 1096, c. 565. South Carolina: Columbia Water " Bitterman v. Louisville & Nash- Power Co. V. Campbell, 75 S. C. 34, ville Ry. Co., 207 U. S. 205, aff'g 144 54 S. E. 833. Fed. 34; Mosher v. St. Louis, I. M. & Tennessee: State, Memphis, v. S. R. Co., 127 U. S. 249, 8 Sup. Ct. Butler, 86 Tenn. 614, 8 S. W. 324. 586. 3« See § 2^, 24 Stat. 387, 25 Stat. 5* See § 409, herein, as to test of 862. reasonableness of rates in connection ^^ Bitterman v. Louisville & Nash- with right of company to fix rates. ville Ry. Co., 207 U. S. 205, afT'g 144 '5 McGrew v. Missouri Pac. Ry. Co. Fed. 34. (Mo. App., 1906), 94 S. W. 719. « Interstate Commerce Commis- ^* Byars v. Bennington & H. V. sion v. Chicago Great W. Ry. C, 141 Ry. Co., 90 N. Y. Supp. 736, 99 App. Fed. 1003, 1015, citing Noyes, Am. Div. 34, aff'd in 184 N. Y. 554, 76 R. R. Rates, pp. 61 et seq., 85-109. 690 / RATES AND CHARGES § 413 2. The cost of service to the carrier would be an ideal theory, but it is not practical. Such cost can be reached approxi- mately, but not accurately enough to make this factor con- trolling. It is worthy of consideration, however. 3. Weight, bulk and convenience of transportation. 4. The amount of the product or commodity in the hands of a few persons to ship or compete for, recognizing the principle of selling cheaper at wholesale than at retail. 5. General public good, including good to the shipper, the railroad company and the different localities. 6. Competition, which the authorities and experts recognize as a very important factor. None of the above factors alone are considered necessarily controlling by the authorities. Neither are they all controlling as a matter of law. It is a question of fact to be decided by the proper tri- bunal in each case as to what is controlling. In every case the Supreme Court has held that competition may be controlling. In only one case has it, as a matter of fact, been held not to be a defense.'*^ " Interstate Commerce Commis- 36 L. ed. 699. Citing to fifth point, sion V. Chicago Great Western Ry. Interstate Commerce Commission v. Co. (C. C), 141 Fed. 1003, 1015, per Baltimore & O. Ry. Co., 145 U. S. Bethea, Dist. J. (case is affirmed in 263, 12 Sup. Ct. 844, 36 L. ed. 699. 209 U. S. 108, considered in §415, Citing to sz'x^/i poi?i« Pickering Phipps herein). Citing to first point, Inter- v. London & Northwestern Ry. Co., 2 state Commerce Commission v. Balti- Q. B. D. (1892) 229 (which construes more & O. Ry. Co. (C. C), 43 Fed. § 2 of the Enghsh Act of 1854, which 37, 53; Noyes Am. R. R. Rates, 53. is almost like § 3 of our Interstate Citing to second point. Interstate Commerce Act); Interstate Com- Coramerce Commission v. Baltimore merce Commission v. Baltimore & O. & O. R. Co. (C. C), 43 Fed. 37; Ran- Ry. Co., 145 U. S. 263, 12 Sup. Ct. some V. Eastern Ry. Co. (1857), 1 C. 844, 36 L. ed. 699; Cincinnati, New B. 437, 26 L. J. C. P. 91; Judson on Orleans & Texas Pacific Ry. Co. v. Interstate Commerce, §§ 148, 149; Interstate Commerce Commission, Western Union Telegraph Co. V. Call, 162 U. S. 184, 16 Sup. Ct 700, 40 181 U. S. 92, 21 Sup. Ct. 561, 45 L. L. ed. 9.35; Interstate Commerce cd. 765; Interstate Commerce Com- Commission v. Alabama Midland Ry. mission v. Detroit, Grand Haven & Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 Milwaukee Rd. Co., 167 U. S. 633, 17 L. ed. 414; Louisville & Nashville Sup. Ct. 986, 42 L. ed. 306. Citing to Rd. Co. v. Behlmer, 175 U. S. 648, 20 fourth point, Interstate Commerce Sup. Ct. 209, 44 L. ed. 309; East Commission v. Baltimore & O. Ry. Tennessee, Virginia & Georgia Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, Co. v. Interstate Commerce Commis- 691 § 414 REGULATION AND CONTROL CONTINUED — § 414. Right of Carrier to Fix Rates in Competition — Long and Short Hauls — Discrimination. — When competi- tion which controls rates prevails at a given point a dissimi- larity of circumstances and conditions is created justifying a carrier in charging a lesser rate at such point, it being the longer distance, than it exacts to a shorter distance and non-competitive point on the same line. A nearer and non- competitive point on the same line is not entitled to lower rates prevailing at a longer distance and competitive place on the theory that it could also be made a competitive point if des- ignated lines of railway carriers by combinations between themselves agreed to that end. The competition necessary to produce a dissimilarity of conditions must be real and con- trolling and not merely conjectural or possible. Where a charge of a higher rate for a shorter than a longer haul over the same line is lawful because of the existence of controlling competition at the longer distance place, the mere fact that the less charge is made for the longer distance does not alone suffice to cause the lesser rate for the longer distance to be unduly discriminatory. And where the commission has found a rate to be unreasonable solely because it was violative of the act which forbids a greater charge for a lesser than for a longer distance under stated conditions and which prohibits undue discrimination, it is held that as the grounds upon which such holding is based resulted from an error of law, it is proper not to conclude the question of the inherent unreasonableness of the rates, but to leave it open for further action by the com- mission to be considered free from the errors of law which had previously influenced that body. A carrier in order to give particular places the benefit of their proximity to a competi- tive point and thereby afford them a lower rate than they would otherwise enjoy, may take into consideration the rate to the point of competition and make it the basis of rates to .'ion, 181 U. S. 1, 21 Sup. Ct. 516, 45 L. ed. 940; Interstate Commerce L. ed. 719; Texas & Pacific Ry. Co. Commission v. Louisville & Nashville V. Interstate Commerce Commission, Rd. Co., 190 U. S. 273, 23 Sup. Ct. 162 U. S. 197, 16 Sup. Ct. 666, 40 687, 47 L. ed. 1047. 692 i RATES AND CHARGES § 414 the points in question. To give a lower rate as the result of competition does not violate the provisions of the act to reg- ulate commerce.'*- So it has been settled by the Supreme Court of the United States that competition which is con- trolling on traffic and rates produces in and of itself the dis- similarity of circumstances and condition described in the statute, and that where this condition exists a carrier has a right of his own motion to take it into view in fixing rates to the competitive point. "^^ The only principle by which it is possible to enforce the whole statute of 1887,^^ is this con- struction: that is, that a competition which is real and sub- stantial and exercises a potential influence on rates to a par- ticular point, brings into play the dissimilarity of circumstance and condition provided by the statute, and justifies the lesser charge to the more distant and competitive point than to the nearer and non-competitive place, and that this right is not destroyed by the mere fact that incidentally, the lesser charge to the competitive point may seemingly give a preference to that point, and the greater rate to the non-competitive point may apparently engender a discrimination against it."*'^ Where "Interstate Commerce Commis- for the longer haul; but since that sion V. Louisville & N. R. Co., 190 ruling of the commission was made U. S. 273, 47 L. ed. 1047, 23 Sup. Ct. the rule stated in the text has been 687. settled by the Federal Supreme " East Tennessee, etc., Ry. Co. v. Court in Louisville & Nashville Rail- Interstate Commerce Commission, road Co. v. Behlmer, 175 U. S. 648, 181 U. S. 1, 45 L. ed. 719, 21 Sup. Ct. 44 L. ed. 309, 20 Sup. Ct. 209, and 516. In this case the Interstate other cases cited; and the construc- Commerce Commission found as a tion affixed by the commission to the fact that the competition at Nash- statute upon which its entire action ville, which formed the basis of the in this case was predicated was held contention in this case, was of such a to be wrong. preponderating nature that the car- As to competition, see cases cited riers must either continue to charge under §§ 413-415, herein, a lesser rate for a longer haul to "Act February 4, 1887, c. 101, Na.shville than was asked for the 24 Stat. 379. shorter haul to Chattanooga, or to " East Tennessee, etc., Ry. Co. v. abandon all Na.shville traffic, never- Interstate Commerce Commission, thelcss they were forbidden by the 181 U. S. 1, 45 L. ed. 719, 21 Sup. Ct. act of February 4, 1887, c. 104, 24 516. Stat. 379, to make the lesser charge 693 § 415 REGULATION AND CONTROL CONTINUED — a state constitution provided that: "It shall be unlawful for any person or corporation, owning or operating a railroad in this State, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, or per- son or corporation, owning or operating a railroad in this State, to receive as great compensation for a shorter as for a longer distance: Provided, That, upon application, such common car- rier, or person or corporation, owning or operating a railroad in this State, may in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of persons or property; and the commission may, from time to time, prescribe the ex- tent to which such common carrier, or person or corporation, owning or operating a railroad in this State, may be relieved from operation of this section," it was held that as construed by the courts of the State, and so far as it was made applicable to or affected interstate commerce, it was invahd.^^ § 415. Right of Carrier to Fix Rates in Competition Con- tinued — Interstate Commerce — Presumption of Good Faith — Discrimination. — Railroads are the private property of their owners, and while the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities, the pubhc is in no proper sense a general manager. The companies may, subject to change of rates provided for in the Interstate Commerce Act, contract with shippers for single and successive transportations and in fixing their own rates may take into account competition, pro- vided it is genuine and not a mere pretense. There is no pre- sumption of wrong arising from a change of rate made by a " Louisville & N. R. Co. v. Eu- bank, 184 U. S. 27, 22 Sup. Ct. 277, 46 L. ed. 416. 694 RATES AND CHARGES § 415 carrier. The presumption of good faith and integrity attends the action of carriers as it does the action of other corporations and individuals, as those presumptions have not been over- thrown by any legislation in respect to carriers. A rate on the manufactured article resulting from genuine competition and natural conditions is not necessarily an undue and unreasonable discrimination against a manufacturing community because it is lower than the rate on the raw material.^^ *' Interstate Commerce Commis- stated in its charter, ' to establish and sion V. Chicago Great Western Ry. maintain a commercial exchange; to Co., 209 U. S. 108 (aff'g 141 Fed. promote uniformity in the customs 1003, considered in § 410, herein), and usages of merchants; to provide It was held that under the circum- for the speedy adjustment of all busi- stances of this case there was no un- ness disputes between its members; due and unreasonable discrimination to facilitate the receiving and dis- against the Chicago packing-house tributing of live stock, as well as to industries on the part of the railroads provide for and maintain a rigid in- in making, as the result of actual spection thereof, thereby guarding competition and conditions, a lower against the sale or use of unsound or rate for manufactured packing-house unhealthy meats; and generally to products than for live stock from secure to its members the benefits of Missouri River points to Chicago, co-operation in the furtherance of The opinion of the court, per their legitimate pursuits.' Its mem- Brewer, J., is as follows: "It is un- bers were, as found by the Com- necessary to define the full scope merce Commission, 'engaged in the and meaning of the prohibition purchase, shipment and sale of live found in § 3 of the Interstate Com- stock for themselves and upon com- merce Act — or even to determine mission.' It was such an association, whether the language is sufficiently with members engaged in the busi- definite to make the duties cast on ness named, that initiated these pro- the Interstate Commerce Commission ceedings and in whose behalf they ministerial, and therefore such as were primarily prosecuted. While it may legally be imposed upon a may be that the proceedings arc not ministerial body, or legislative, and to be narrowly limited to an inquiry therefore, under the 1^'edcral Consti- whether this particular complainant tution, a matter for Congressional has been in any way injured by the action — for within any fair construe- action of the railroad companies, yet tion of the terms 'undue or unrea- that question must be regarded as sonable' the findings of the Circuit the one which was the special object Court place the action of the railroads of inquiry and consideration. It is outside the reach of condemnation, true that the Commission subse- The complainant, before the Inter- quently commenced under the Elkins state Commerce action, was an in- Act an independent suit in its own corporated association. The purposes name, but it was practically to en- for which it was organized were, as force the award made by the Com- 695 § 416 REGULATION AND CONTROL CONTINUED- § 416. Railroad Rates — Excessive Penalties — Equal Pro- tection of Law. — A state railroad rate statute which imposes such excessive penalties that parties affected are deterred from mission after its inquiry into the controversy between the live stock exchange and the railroad companies. It must be remembered that railroads are the private property of their owners; that while from the public character of the work in which they are engaged the public has the power to prescribe rules for securing faithful and efficient service and equality be- tween shippers and communities, yet in no proper sense is the public a gen- eral manager. As said in Int. Com. Com. V. Ala. Mid. R. R. Co., 168 U. S. 144, 172, 42 L. ed. 414, 18 Sup. Ct. 45, quoting from the opinion of Circuit Judge Jackson, afterwards Mr. Justice Jackson of this court, in Int. Com. Com. v. B. & O. R. R. Co., 43 Fed. Rep. 37, 50: 'Subject to the two leading prohibitions that their charges shall not be unjust or unrea- sonable, and that they shall not un- justly discriminate so as to give un- due preference or disadvantage to persons or traffic similarly circum- stanced, the act to regulate commerce leaves common carriers, as they were at the common law, free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits.' It follows that railroad companies may contract with shippers for a single transporta- tion or for successive transportations, subject though it may be to a change 696 of rates in the manner provided in the Interstate Commerce Act — Armour Packing Co. v. The United States, 209 U. S. 56, and also that in fixing their own rates they may take into account competition with other car- riers, provided only that the competi- tion is genuine and not a pretense. Int. Com. Com. v. B. & O. R. R. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. ed. 699; T. & P. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 16 Sup. Ct. 666, 40 L. ed. 940; Int. Com. Com. v. Ala. Mid. Ry. Co., supra; Louisville & N. R. R. Co. V. Behlmer, 175 U. S. 648, 44 L. ed. 309, 20 Sup. Ct. 209; East Tenn., Virginia & Georgia Ry. Co. v. Int. Com. Com., 181 U. S. 1, 21 Sup. Ct. 516, 45 L. ed. 719; Int. Com. Com. V. Louisville & N. R. R. Co., 190 U. S. 273, 47 L. ed. 1047, 32 Sup. Ct. 687. It must also be remembered that there is no presumption of wrong arising from a change of rate by a carrier. The presumption of honest intent and right conduct attends the action of carriers as well as it does the action of other corporations or indi- viduals in their transactions in life. Undoubtedly when rates are changed the carrier making the change must, when properly called upon, be able to give a good reason therefor, but the mere fact that a rate has been raised carries with it no presumption that it was not rightfully done. Those pre- sumptions of good faith and integrity which have been recognized for ages as attending human action have not been overthrown by any legislation in respect to common carriers. The Commerce Commission did not find whether the rates were reasonable RATES .\XD CHARGES § 416 testing its validity in the courts denies the carrier the equal protection of the law without regard to the question of the insufficiency of the rates prescribed.^* or unreasonable per se. Its omission may have been owing, partly at least, to the decision in Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Company, 167 U. S. 479, 506, 42 L. ed. 243, 17 Sup. Ct. 896, for this controversy arose before the amendment of June 29, 1906, 34 Stat. 584. On the other hand, the Circuit Court found specifically that the live-stock rates were reasonable, and also that the rates for carrying packers' products and dressed meats were remunerative. See Findings 1 and 7. Obviously shippers had in the rates considered separately no ground of challenge. But the burden of com- plaint is not that any rates taken by themselves were too high, but that the difference between those on live stock and those on dressed meats and packers' products worked an unjust discrimination. It is insisted that 'the making of the live-stock rate higher than the product rate is vio- lative of the almost universal rule that the rates on raw material shall not be higher than on the manu- factured product.' This may be con- ceded, but that the rule is not universal the proposition itself recog- nizes, and the findings of the court give satisfactory reasons for the ex- ception here shown. See Findings 2, 3 and 9. The cost of carriage, the ri.sk of injury, the larger amount which the companies are called upon to pay out in damages make sufficient explanation. They do away with the idea that in the relation established between the two kinds of charges any undue or unreasonable preference was intended or secured. Find- ing No. 6 is very persuasive. It reads: 'Sixth. That the present rates on live stock have not materially affected any of the markets, prices, or shipments; that they are reason- ably fair to Chicago and to the ship- pers; that the shipments of live stock from points between Chicago and the Missouri River and St. Paul are as great in proportion to the volume of business as before the present rates were made; that the majority of the live stock comes to Chicago from points as near as 150 miles this side of the Missouri River and St. Paul, and that the lower rate given to the packers does not seem to directly in- fluence or injure the shippers of live stock.' If the rates complained of have not materially affected any of the markets, prices or shipments; if they are reasonably fair to Chicago and the shippers; if the shipments of live stock from the west to Chicago are as great in proportion to the bulk of the business as before the present rates were made, and the lower rate given to the packers does not directly influence or injure the shippers of live stock; it is diflScult to see what foundation there can be for the claim of an undue and unreasonable preference. It would seem a fair inference from the findings that the real complaint was that the railroad companies did not so fix their rates as to help the Chicago packing in- " Young, Ex parte, 209 U. S. 123. and owing to its very great impor- Other points are decided in this case tance we insert it here. 097 § 41U REGULATION AND CONTROL CONTINUED- dustry; that they recognized the fact that along the Missouri River had been put up large packing-houses, and, without any intent to injure Chicago, had fixed reasonable rates for the carrying of live stock to such packing-houses and also to Chicago; that those packing-houses being nearer to the cattle fields were able to engage in the packing industry as conveniently and successfully as the packing-houses in Chicago. If we were at liberty to consider the mere question of sentiment, certainly to place packing-houses close to the cattle fields, thus avoiding the neces- sity of long transportation of the liv- ing animals— a transportation which cannot be accomplished without more or less suffering to them — and to induce transportation to those nearer packing-houses would deserve to be commended rather than con- demned. With reference to competi- tion we have referred to the cases in this court in which that matter has been considered. According to the fourth finding the rates in question given to the packers at the Missouri River and St. Paul were the result of competition. Without recapitulating all the facts disclosed in that finding it is enough to say that the Chicago Great Western Railway Company, which had the longest line from Chi- cago to Missouri River points, made a reduction in the rates, and did this, as its president testified, 'for the pur- pose of securing a greater proportion of the traffic in the products of live stock than it had been previously able to obtain.' That is one of the facts inducing competition, and one of the results expected to flow from a reduction of rates. It certainly of itself deserves no condemnation. In order to secure to themselves what was likely to be transferred to the Great Western by virtue of its reduc- tion of rates, the other companies also made a reduction and, as shown by the fifth finding, the competition was not the result of agreement, but was an ' actual, genuine, competition.' It may be true, as contended by counsel for the appellant, that even a genuine competition which results in a change of rates does not necessarily determine the question whether the rates as fixed work an undue pref- erence or create an unlawful dis- crimination. Those rates fixed may make a preference or discrimination irrespective of the motives which caused the railway companies to adopt them, and yet the fact of a genuine competition does make against the contention that the rates were intended to work injustice. An honest and fair motive was the cause of the change in rates; honest and fair on the part of the Great Western in its effort to secure more business, and equally honest and fair on the part of the other railway companies in the effort to retain as much of the business as was possible. In other words, this competition eliminates from the case an intent to do an un- lawful act, and leaves for considera- tion only the question whether the rates as established do work an undue preference or discrimination; and as the findings of the court show that the result of the new rates has not been to change the volume of traffic going to Chicago, or materially affect the business of the original com- Ex parte YOUNG. HEADNOTES. While this court will not 698 take jurisdiction if it should not, it must take jurisdiction if it should. It can- not, as the legislature may, avoid RATES AND CHARGES § 416 plaint, it would seem necessarily to result that the charge of an unlawful discrimination is not proved. In short, there was no intent on the part of the railway company to do a wrongful act, and the act itself did not work any substantial injury to the rights of the complainant. We have not attempted to review in detail the great mass of testimony, amounting to two enormous printed volumes. It is enough to say that an examination of it clearly shows suffi- cient reasons for the findings of fact made by the Circuit Court. In short, the findings of the Circuit Court were warranted by the testimony, and those findings make it clear that there was no unlawful discrimination. The decree of the Circuit Court is Affirmed." meeting a measure because it desires so to do. In this case a suit by a stock- holder against a corporation to enjoin the directors and officers from com- plying with the provisions of a state statute, alleged to be unconstitu- tional, was properly brought within Equity Rule 94 of this court. An order of the Circuit Court com- mitting one for contempt for violation of a decree entered in a suit of which it did not have jurisdiction is un- lawful; and, in such case, upon proper application, this court will discharge the person so held. Although the determination of whether a railway rate prescribed by a state statute is so low as to be con- fiscatory involves a question of fact, its solution raises a Federal question, and the sufficiency of rates is a ju- dicial question over which the proper Circuit Court has jurisdiction, as one arising under the Constitution of the United States. Whether a state statute is uncon- stitutional because the penalties for its violation are so enormous that persons affected thereby are pre- vented from resorting to the courts for the purpo.se of determining the va- lidity of the statute and are thereby denied the equal protection of the law and their property rendered liable to be taken without due process of law, is a Federal question and gives the Circuit Court jurisdiction. Whether the state railroad rate statute involved in this case, al- though on its face relating only to intrastate rates, was an interference with interstate commerce held to raise a Federal question which could not be considered frivolous. A state railroad rate statute which imposes such excessive penalties that parties affected are deterred from testing its validity in the courts denies the carrier the equal protec- tion of the law without regard to the question of insufficiency of the rates prescribed; it is within the jurisdic- tion, and is the duty, of the Circuit Court to inquire whether such rates are so low as to be confiscatory, and if so to permanently enjoin the rail- road company, at the suit of one of its stockholders, from putting them in force, and it has power pending such inquiry to grant a temporary injunction to the same effect. While there is no rule permitting a person to disobey a statute with im- punity at least once for the purpose of testing its validity, where such validity can only be determined by judicial investigation and construc- tion, a provision in the statute which imposes such severe penalties for disobedience of its provisions as to intimidate the parties affected thereby 699 § 416 REGULATION AND CONTROL CONTINUED — from resorting to the courts to test its validity practically prohibits those parties from seeking such judicial construction and denies them the equal protection of the law. The attempt of a state officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereign or governmental capacity, and is an illegal act and the officer is stripped of his official character and is subjected in his person to the con- sequences of his individual conduct. The State has no power to impart to its officer immunity from responsi- bility to the supreme authority of the United States. When the question of the validity of a state statute with reference to the Federal Constitution has been first raised in a Federal Court that court has the right to decide it to the exclusion of all other courts. It is not necessary that the duty of a state officer to enforce a statute be declared in that statute itself in order to permit his being joined as a party defendant from enforcing it; if by virtue of his office he has some con- nection with the enforcement of the act it is immaterial whether it arises by common general law or by statute. While the courts cannot control the exercise of the discretion of an executive officer, an injunction pre- venting such officer from enforcing an unconstitutional statute is not an interference with his discretion. The Attorney General of the State of Minnesota, under his common-law power and the state statutes, has the general authority imposed upon him of enforcing constitutional statutes of the State and is a proper party de- fendant to a suit brought to prevent the enforcement of a state statute on the ground of its unconstitutionality. 700 While a Federal court cannot in- terfere in a criminal case already pending in a state court, and while, as a general rule, a court of equity cannot enjoin criminal proceedings, those rules do not apply when such proceedings are brought to enforce an alleged unconstitutional state statute, after the unconstitutionality thereof has become the subject of inquiry in a suit pending in a Federal court which has first obtained juris- diction thereover; and under such circumstances the Federal court has the right in both civil and criminal cases to hold and maintain such jurisdiction to the exclusion of all other courts. While making a state officer who has no connection with the en- forcement of an act alleged to be unconstitutional a party defendant is merely making him a party as a representative of the State, and thereby amounts to making the State a party within the prohibition of the Eleventh Amendment, individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence an action, either civil or criminal, to enforce an un- constitutional state statute may be enjoined from so doing by a Federal court. Under such conditions as are in- volved in this case the Federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality, but it may not restrain the state court from acting in any case brought before it either of a civil or criminal nature, or prevent any investigation or action by a grand jury. An injunction by a Federal court against a state court would violate RATES AND CHARGES § 416 the whole scheme of this Govern- ment, and it does not follow that be- cause an individual may be enjoined from doing certain things a court may be similarly enjoined. No adequate remedy at law, suf- ficient to prevent a court of equity from acting, exists in a case where the enforcement of an unconstitu- tional state rate statute would re- quire the complainant to carry mer- chandise at confiscatory rates if it complied with the statute and sub- ject it to excessive penalties in case it did not comply therewith and its vahdity was finally sustained. While a common carrier sued at common law for penalties under, or on indictment for violation of, a state rate statute might interpose as a de- fense the unconstitutionality of the statute on account of the confiscatory character of the rates prescribed, a jury cannot intelligently pass upon such a matter; the proper method is to determine the constitutionality of the statute in a court of equity in which the opinions of experts may be taken and the matter referred to a master to make the needed computa- tions and to find the necessary facts on which the court may act. A state rate statute is to be re- garded as prima facie valid, and the onus rests on the carrier to prove the contrary. The railroad interests of this country are of great magnitude, and the thousands of persons interested therein are entitled to protection from the laws and from the courts equally with the owners of all other kinds of property, and the courts having jurisdiction, whether Federal or state, should at all times be open to them, and where there is no ade- quate remedy at law the proper course to protect their rights is by suit in equity in which all interested parties are made defendants. While injunctions against the en- forcement of a state rate statute should not be granted by a Federal court except in a case reasonably free from doubt, the equity juris- diction of the Federal court has been constantly exercised for such pur- pose. The Circuit Court of the United States having, in an action brought by a stockholder of the Northern Pacific Railway Company against the officers of the road, certain ship- pers and the Attorney General cer- tain other officials of the State of Minnesota, held that a railroad rate statute of Minnesota was uncon- stitutional and enjoined all the de- fendants from enforcing such statute, and the Attorney General having refused to comply with such order, the Circuit Court fined and com- mitted him for contempt, and this court refused to discharge him on habeas corpus. STATEMENT OF THE CASE. " An original application was made to this court for leave to file a petition for writs of habeas corpus and cer- tiorari in behalf of Edward T. Young, petitioner, as attorney general of the State of Minnesota. " Leave was granted and a rule entered directing the United States marshal for the District of Minnesota, Third Division, who held the peti- tioner in his custody, to show cause why such petition should not be granted. "The marshal, upon the return of the order to show cause, justified his detention of the petitioner by virtue of an order of the Circuit Court of the United States for the District of Minnesota, which adjudged the peti- 701 § 116 KEGLLATIUN AND CONTROL CONTINUED- tioner guilty of contempt of that court and directed that he be fined the sum of $100, and that he should dismiss the mandamus proceedings brought by him in the name and be- half of the State in the Circuit Court of the State, and that he should stand committed to the custody of the marshal until that order was obeyed. The case involves the validity of the order of the Circuit Court committing him for contempt. "The facts are these: The legis- lature of the State of Minnesota duly created a railroad and warehouse commission, and that commission on the sixth of September, 1906, made an order fixing tlie rates for the various railroad companies for the carriage of merchandise between stations in that State of the kind and classes specified in what is known as the 'Western Classification.' These rates materially reduced those then existing, and were by the order to take effect November 15, 1906. In obedience to the order the railroads filed and published the schedules of rates, which have ever since that time been carried out by the com- panies. " At the time of the making of the above order it was provided by the Revised Laws of Minnesota, 1905 (§ 1987), that any common carrier who violated the provisions of that section or willfully suffered any such unlawful act or omission, when no specific penalty is imposed therefor, 'if a natural person, shall be guilty of a gross misdemeanor, and shall be punished by a fine of not less than twenty-five hundred dollars, nor more than five thousand dollars for the first ofTense, and not less than five thousand dollars nor more than ten thousand dollars for each subse- quent offense; and, if such carrier or 702 warehouseman be a corporation, it shall forfeit to the State for the first offense not less than twenty-five hundred dollars nor more than five thousand dollars, and for each subse- quent offense not less than five thousand dollars nor more than ten thousand dollars, to be recovered in a civil action.' "This provision covered disobedi- ence to the orders of the Commis- sion. "On the fourth of April, 1907, the legislature of the State of Minnesota passed an act fixing two cents a mile as the maximum passenger rate to be charged by railroads in Minnesota. (The rate had been theretofore three cents per mile.) The act was to take effect on the first of May, 1907, and was put into effect on that day by the railroad companies, and the same has been observed by them up to the present time. It was provided in the act that 'Any railroad company, or any officer, agent or representative thereof, who shall violate any pro- vision of this act shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not ex- ceeding five thousand (5,000) dollars, or by imprisonment in the State prison for a period not exceeding five (5) years, or both such fine and im- prisonment.' " On the eighteenth of April, 1907, the legislature passed an act (chap- ter 232 of the laws of that year), which established rates for the trans- portation of certain commodities (not included in the Western Classi- fication) between stations in that State. The act divided the com- modities to which it referred into seven classes, and set forth a schedule of maximum rates for each class when transported in carload lots and established the minimum weight RATES AND CHARGES § 416 which constituted a carload of each class. " Section 5 provided that it should not affect the power or authority of the Railroad and Warehouse Com- mission, except that no duty should rest upon that commission to enforce any rates specifically fixed by the act or any other statute of the State. The section further provided gen- erally that the orders made by the Railroad and Warehouse Commission prescribing rates should be the ex- clusive legal maximum rates for the transportation of the commodities enumerated in the act between points within that State. "Section 6 directed that every railroad company in the State should adopt and publish and put into effect the rates specified in the statute, and that every officer, director, trafhc manager or agent or employ^ of such railroad company should cause the adoption, publication and use by such railroad company of rates not exceeding those specified in the act; 'and any officer, director or such agent or employ^ of any such railroad company who violates any of the provisions of this section, or who causes or counsels, advises or assists any such railroad company to violate any of the provisions of this section, shall be guilty of a misdemeanor, and may be prosecuted therefor in any county into which its railroad ex- tends, and in which it has a station, and upon a conviction thereof he punished V)y imprisonment in the county jail for a period not exceeding ninety days.' The act was to take effect June 1, 1!)07. "The railroad companies did not obey the provisions of this act so far as concerned the adoption and pub- lication of rates as specified there- in. " On the thirty-first of May, 1907, the day before the act was to take effect, nine suits in equity were com- menced in the Circuit Court of the United States for the District of Minnesota, Third Division, each suit being brought by stockholders of the particular railroad mentioned in the bill, and in each case the defendants named were the railroad companj' of which the complainants were, re- spectively, stockholders, and the members of the Railroad and Ware- house Commission, and the attorney general of the State, Edward T. Young, and individual defendants representing the shippers of freight upon the railroad. "The order punishing Mr. Young for contempt was made in the suit in which Charles E. Perkins, a citizen of the State of Iowa, and David C. Shepard, a citizen of the State of Minnesota, were complainants, and the Northern Pacific Railway Com- pany, a corporation organized under the laws of the State of Wisconsin, Edward T. Young, petitioner herein, and others, were parties defendant. All of the defendants, except the railway company, are citizens and residents of the State of Minnesota. "It was averred in the bill that the suit was not a collusive one to confer on the court jurisdiction of a case of which it could not otherwise have cognizance, but that the objects and purposes of the suit were to en- join the railway company from pub- lishing or adopting (or continuing to observe, if already adopted) the rates and tariffs prescribed and set forth in the two acts of the legislature above mentioned and in the orders of the Railroad and Warehouse Commis- sion, and also to enjoin the other de- fondants from attempting to enforce such provisions, or from instituting 703 § 41G REGULATION AND CONTROL CONTINUED — any action or proceeding against the defendant railway company, its offi- cers, etc., on account of any violation thereof, for the reason that the said acts and orders were and each of them was violative of the Constitu- tion of the United States. "The bill also alleged that the orders of the Railroad Commission of September 6, 1906, May 3, 1907, the passenger rate act of April 4, 1907, and the act of April 18, 1907, reducing the tariffs and charges which the railway company had thereto- fore been permitted to make, were each and all of them unjust, un- reasonable and confiscatory, in that they each of them would, and will if enforced, deprive complainants and the railway company of their prop- erty without due process of law, and deprive them and it of the equal protection of the laws, contrary to and in violation of the Constitution of the United States and the amend- ments thereof. It was also averred that the complainants had de- manded of the president and manag- ing directors of the railway company that they should cease obedience to the orders of the Commission dated September 6, 1906, and May 3, 1907, and to the acts already mentioned, and that the rates prescribed in such orders and acts should not be put into effect, and that the said corpo- ration, its officers and directors, should institute proper suit or suits to prevent said rates (named in the orders and in the acts of the legis- lature) from continuing or becoming effective, as the case might be, and to have the same declared illegal; but the said corporation, its president and directors, had positively de- clined and refused to do so, not be- cause they considered the rates a fair and just return upon the capital in- 704 vested or that they would not be confiscatory, but because of the se- verity of the penalties provided for the violation of such acts and orders, and therefore they could not subject themselves to the ruinous conse- quences which would inevitably re- sult from failure on their part to obey the said laws and orders, a re- sult which no action by themselves, their stockholders or directors, could possibly prevent. "The bill further alleged that the orders of the Commission of Septem- ber, 1906, and May, 1907, and the acts of April 4, 1907, and April 18, 1907, were, in the penalties pre- scribed for their violation, so drastic that no owner or operator of a rail- way property could invoke the juris- diction of any court to test the validity thereof, except at the risk of confiscation of its property, and the imprisonment for long terms in jails and penitentiaries of its officers, agents and employes. For this rea- son the complainants alleged that the above-mentioned orders and acts, and each of them, denied to the defendant railway company and its stockholders, including the com- plainants, the equal protection of the laws, and deprived it and them of their property without due process of law, and that each of them was, for that reason, unconstitutional and void. "The bill also contained an aver- ment that if the railway company should fail to continue to observe and keep in force or to observe and put in force the orders of the Com- mission and the acts of April 4, 1907, and April 18, 1907, such failure might result in an action against the company or criminal proceedings against its officers, directors, agents or employes, subjecting the company RATES AND CHARGES 416 and such officers to an endless number of actions at law and criminal pro- ceedings; that if the company should fail to obey the order of the Com- mission or the acts of April 4, 1907, and April 18, 1907, the said Edward T. Young, as Attorney General of the State of Minnesota, would, as com- plainants were advised, and believed, institute proceedings by mandamus or otherwise against the railway com- pany, its officers, directors, agents, or employes to enforce said or- ders and all the provisions thereof, and that he threatened and would take other proceedings against the company, its officers, etc., to the same end and for the same purpose, and that he would on such failure institute mandamus or other pro- ceedings for the purpose of enforcing said acts and each thereof, and the provisions and penalties thereof. Appropriate relief by injunction against the action of the defendant Young and the railroad commission was asked for. "A temporary restraining order was made by the Circuit Court, which only restrained the railway company from publishing the rates as pro- vided for in the act of April 18, 1907, and from reducing its tariffs to the figures set forth in that act; the court refusing for the present to interfere by injunction with regard to the orders of the Commission and the act of April 4, 1907, as the railroads had already put them in operation, but it restrained Edward T. Young, Attorney Ceneral, from taking any steps against the railroads to enforce the remedies or penalties specified in the act of April 18, 1907. "Copies of the bill and the re- straining order were served, among others, upon the defendant Mr. Ed- ward T. Young, Attorney General, 45 who appeared specially and only for the purpose of moving to dismiss the bill as to him, on the ground that the court had no jurisdiction over him as Attorney General; and he averred that the State of Minnesota had not consented, and did not consent, to the commencement of this suit against him as Attorney General of the State, which suit was in truth and effect a suit against the said State of Minnesota, contrary to the Eleventh Amendment of the Consti- tution of the United States. "The Attorney General also filed a demurrer to the bill, on the same grounds stated in the motion to dis- miss. The motion was denied and the demurrer overruled. "Thereupon, on the twenty-third of September, 1907, the court, after a hearing of all parties and taking proofs in regard to the issues in- volved, ordered a temporary in- junction to issue against the railway company, restraining it, pending the final hearing of the cause, from put- ting into effect the tariffs, rates or charges set forth in the act approved April 18, 1907. The court also en- joined the defendant Young, as At- torney General of the State of Minne- sota, pending the final hearing of the cause, from taking or instituting any action or proceeding to enforce the penalties and remedies specified in the act above mentioned, or to compel obedience to that act, or compliance therewith, or any part thereof. " As the court refused to grant any preliminary injunction restraining the enforcement of the rates fixed by the Railroad and Warehouse Com- mission, or the passenger rates under the act of April 4, 1907, because the same had been accepted by the rail- roads and were in operation, the court 705 § 416 REGULATION AND CONTROL CONTINUED — stated that in omitting the granting of such preliminary injunction the necessity was obviated upon that hearing of determining whether the rates fixed by the Commission, or the passenger rates together or singly, were confiscatory and did not afford reasonable compensation for the service rendered and a proper allow- ance for the property employed, and for those reasons that question had not been considered, but inasmuch as the rates fixed by the act of April 18, 1907, had not gone into force, the court observed: ' It seems to me, upon this evidence of the conditions before either of those new rates were put into effect (that is, the order of the Commission of September, 1906, or the act of April 4, 1907), and the re- ductions made by those rates, that if there is added the reduction which is attempted to be made by the com- modity act (April 18, 1907) it will re- duce the compensation received by the companies below what would be a fair compensation for the services performed, including an adequate return upon the property invested. And I think, on the. whole, that a preliminary injunction should issue, in respect to the rates fixed by chap- ter 232 (act of April 18), talked of as the commodity rates, and that there should be no preliminary injunction as to the other rates, although the matter as to whether they are com- pensatory or not is a matter which may be determined in the final determination of the action.' " The day after the granting of this preliminary injunction the Attorney General, in violation of such injunc- tion, filed a petition for an alternative writ of mandamus in one of the courts of the State, and obtained an order from that court, September 24, 1907, directing the alternative writ to issue 70G as prayed for in the petition. The writ was thereafter issued and served upon the Northern Pacific Railway Company, commanding the com- pany, immediately after its receipt, 'to adopt and publish and keep for public inspection, as provided by law, as the rates and charges to be made, demanded and maintained by you for the transportation of freight between stations in the State of Minnesota of the kind, character and class named and specified in chap- ter 232 of the Session Laws of the State of Minnesota for the year 1907, rates and charges which do not ex- ceed those declared to be just and reasonable in and by the terms and provisions of said chapter 232. * * * ' "Upon an affidavit showing these facts the United States Circuit Court ordered Mr. Young to show cause why he should not be punished as for a contempt for his misconduct in violating the temporary injunction issued by that court in the case therein pending. " Upon the return of this order the Attorney General filed his answer, in which he set up the same objections which he had made to the jurisdiction of the court in his motion to dismiss the bill, and in his demurrer; he dis- claimed any intention to treat the court with disrespect in the com- mencement of the proceedings re- ferred to, but believing that the de- cision of the court in the action, holding that it had jurisdiction to enjoin him as Attorney General from performing his discretionary official duties, was in conflict with the Eleventh Amendment of the Consti- tution of the United States, as the same has been interpreted and ap- plied by the United States Supreme Court, he believed it to be his duty as such Attorney General to com- RATES AND CHARGES § 416 mence the mandamus proceedings for and in behalf of the State, and it wa3 in this belief that the proceed- ings were commenced solely for the purpose of enforcing the law of the State of Minnesota. The order ad- judging him in contempt was then made." Mr. Justice Peckham, after making the foregoing statement, delivered the OPINION OF THE COURT "We recognize and appreciate to the fullest extent the very great im- portance of this case, not only to the parties now before the court, but also to the great mass of the citizens of this country, all of whom are inter- ested in the practical working of the courts of justice throughout the land, both Federal and state, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitu- tion and the laws of Congress. "That there has been room for difference of opinion with regard to such limitations the reported cases in this court bear conclusive testimony. It cannot be stated that the case be- fore us is entirely free from any possi- ble doubt nor that intelligent men may not differ as to the correct an- swer to the question we are called upon to decide. "The question of jurisdiction, whether of the Circuit Court or of this court, is frequently a delicate matter to deal with, and it is es- pecially so in this case, v/here the material and most important objec- tion to the juri.'^diction of the Circuit Court is the assertion that the suit is in effect against one of the States of the Union. It is a question, however, which we are called upon, and which it is our duty, to decide. Under these circumstances, the language of Chief Justice Marshall in Cohens v. Vir- ginia, 6 Wheat. (19 U. S.) 264, 404, 5 L. ed. 257, is most apposite. In that case he said: " ' It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it ap- proaches the confines of the Constitu- tion. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must de- cide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Ques- tions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscien- tiously perform our duty.' "Coming to a consideration of the case, we find that the complainants in the suit commenced in the Cir- cuit Court were stockholders in the Northern Pacific Railway Company, and the reason for commencing it and making the railroad company one of the parties defendant is sufficiently set forth in the bill. Davis, etc., Co. v. Los Angeles, 189 U. S. 207, 220, 47 L. ed. 778, 23 Sup. Ct. 498; Equity Rule 94, Supreme Court. "It is primarily as.serted on the part of the petitioner that jurisdic- tion did not exist in the Circuit Court because there was not the requisite diversity of citizenship, and there was no question arising under the Constitution or laws of the United States to otherwise give jurisdiction to that court. There is no claim made 707 § 416 REGULATION AND CONTROL CONTINUED — here of jurisdiotion on the ground that question might incidentally in- of diversity of citizenship, and the volve a question of fact, its solution claim, if made, would be unfounded nevertheless is one which raises a in fact. If no other ground exists, Federal question. See Hastings v. then the order of the Circuit Court, Ames (C. C. A. 8th Circuit), 68 Fed. assuming to punish petitioner for Rep. 726. The sufficiency of rates contempt, was an unlawful order, with reference to the Federal Consti- 'made by a court without jurisdiction, tution is a judicial question, and one In such case this court, upon proper over which Federal courts have juris- application, will discharge the person diction by reason of its Federal from imprisonment. Ex parte Yar- nature. Chicago, etc., R. R. Co. v. brough, 110 U. S. 651, 4 Sup. Ct. 152, Minnesota, 134 U. S. 418, 33 L. ed. 28 L. ed. 274; Ex parte Fisk, 113 970, 10 Sup. Ct. 462, 702; Reagan v. U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Farmers', etc., Co., 154 U. S. 369, 724; In re Ayers, 123 U. S. 443, 485, 399, 38 L. ed. 1014, 14 Sup. Ct. 1047; 31 L. ed. 216, 8 Sup. Ct. 164. But an St. Louis, etc., Co. v. Gill, 156 U. S. examination of the record before us 649, 39 L. ed. 567; Covington, etc., shows that there are Federal ques- Turnpike Road Company v. Sand- tions in this case. ford, 164 U. S. 578, 41 L. ed. 560, 17 "It is insisted by the petitioner Sup. Ct. 198; Smyth v. Ames, 169 that there is no Federal ques- U. S. 466, 522; Chicago, etc., Rail- tion presented under the Fourteenth way Co. v. Tompkins, 176 U. S. Amendment, because there is no dis- 167, 172, 44 L. ed. 417, 20 Sup. Ct. pute as to the meaning of the Con- 336. stitution, where it provides that no " Another Federal question is the State shall deprive any person of life, alleged unconstitutionality of these liberty or property without due proc- acts because of the enormous pen- ess of law; nor deny to any person alties denounced for their violation, within its jurisdiction the equal pro- which prevent the railway company, tection of the laws, and whatever as alleged, or any of its servants or dispute there may be in this case is employes, from resorting to the one of fact simply, whether the courts for the purpose of determining freight or passenger rates as fixed by the validity of such acts. The con- the legislature or by the railroad com- tention is urged by the complainants mission are so low as to be con- in the suit that the company is denied fiscatory, and that is not a Federal the equal protection of the laws and question. its property is liable to be taken with- " Jurisdiction is given to the Cir- out due process of law, because it cuit Court in suits involving the is only allowed a hearing upon the requisite amount, arising under the claim of the unconstitutionality of Constitution or laws of the United the acts and orders in question, at the States (1 U. S. Comp. Stat. p. 508), risk, if mistaken, of being subjected and the question really to be deter- to such enormous penalties, resulting mined under this objection is whether in the possible confiscation of its the acts of the legislature and the whole property, that rather than take orders of the railroad commission, if such risks the company would obey enforced, would take property with- the laws, although such obedience out due process of law, and although might also result in the end (though 708 RATES AND CHARGES § 416 by a slower process) in such confisca- tion. "Still another Federal question is urged, growing out of the assertion that the laws are, by their necessary effect, an interference with and a regulation of interstate commerce, the grounds for which assertion it is not now necessary to enlarge upon. The question is not, at any rate, frivolous. " We conclude that the Circuit Court had jurisdiction in the case before it, because it involved the de- cision of Federal questions arising under the Constitution of the United States. "Coming to the inquiry regarding the alleged invalidity of these acts, we tal^ up the contention that they are invalid on their face on account of the penalties. For disobedience to the freight act the officers, directors, agents and employes of the company are made guilty of a misdemeanor, and upon conviction each may be punished by imprisonment in the county jail for a period not exceeding ninety days. Each violation would be a separate offense, and, therefore, might result in imprisonment of the various agents of the company who would dare disobey for a term of ninety days each for each offense. Disobedience to the passenger rate act renders the party guilty of a felony and subject to a fine not ex- ceeding five thousand dollars or im- prisonment in the state prison for a period not exceeding five years, or both fine and imprisonment. The sale of each ticket above the price permitted by the act would be a vio- lation thereof. It would be difficult, if not impossible, for the company to obtain officers, agents or employes willing to carry on its affairs except in obedience to the act and orders in question. The company itself would also, in case of disobedience, be liable to the immense fines provided for in violating orders of the Commission. The company, in order to test the validity of the acts, must find some agent or employe to disobey them at the risk stated. The necessary effect and result of such legislation must be to preclude a resort to the courts (either state or Federal) for the pur- pose of testing its validity. The officers and employes could not be expected to disobey any of the provi- sions of the acts or orders at the risk of such fines and penalties being im- posed upon them, in case the court should decide that the law was valid. The result would be a denial of any hearing to the company. The ob- servations upon a similar question made by Mr. Justice Brewer in Cot- ting V. Kansas City Stock Yards Company, 183 U. S. 79, 99, 100, 102, are very apt. At page 100 he stated: 'Do the laws secure to an individual an equal protection when he is al- lowed to come into court and make his claim or defense subject to the condition that upon a failure to make good that claim or defense the pen- alty for such failure either appro- priates all his property or subjects him to extravagant and unreasonable loss?' Again, at page 102, he says: ' It is doubtless true that the State may impose penalties, such as will tend to compel obedience to its man- dates by all, individuals or corpora- tions, and if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in an effort to prevent any inquiry of the validity of a par- ticular statute, so burdens any chal- 709 §416 REGULATION AND CONTROL CONTINUED — lenge thereof in the courts that the party affected is necessarily con- strained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.' The question was not decided in that case, as it went off on another ground. We have the same question now before us, only the penalties are more severe in the way of fines, to which is added, in the case of officers, agents or employfe of the company, the risk of imprisonment for years as a common felon. See also Mercantile Trust Co. V. Texas, etc., Ry. Co., 51 Fed. Rep. 529, 543; Louisville, etc., R. R. Co. V. McChord, 103 Fed. Rep. 216, 223; Consolidated Gas Co. v. Mayer, 146 Fed. Rep. 150, 153. In McGahey v. Virginia, 135 U. S. 662, 694, it was held that to provide a different remedy to enforce a con- tract, which is unreasonable, and which imposes conditions not exist- ing when the contract was made, was to offer no remedy, and when the remedy is so onerous and impracti- cable as to substantially give none at all the law is invalid, although what is termed a remedy is in fact given. See also Bronson v. Kinzie, 1 How. (42 U. S.) 311, 317, 11 L. ed. 143; Seibert v. Lewis, 122 U. S. 2S4, 30 L. ed. 1161, 7 Sup. Ct. 1190. If the law be such as to make the decision of the legislature or of a commission conclusive as to the sufficiency of the rates, this court has held such a law to be unconstitutional. Chicago, etc., Railway Co. v. Minnesota, 134 U. S. 41S, 33 L. ed. 970, 10 Sup. Ct. 462, 702. A law which indirectly accomplishes a like result by impos- ing such conditions upon the right to appeal for judicial relief as works an abandonment of the right rather than 710 face the conditions upon which it is offered or may be obtained, is also unconstitutional. It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights. " It is urged that there is no princi- ple upon which to base the- claim that a person is entitled to disobey a stat- ute at least once, for the purpose of testing its validity without subject- ing himself to the penalties for dis- obedience provided by the statut^ in case it is valid. This is not an accu- rate statement of the case. Ordi- narily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is com- plete in any event. In the case, how- ever, of the establishment of certain rates without any hearing, the va- lidity of such rates necessarily de- pends upon whether they are high enough to permit at least some re- turn upon the investment (how much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial in- vestigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to im- pose upon a party interested the burden of obtaining a judicial de- cision of such a question (no prior hearing having ever been given) only upon the condition that if unsuccess- ful he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any RATES AND CHARGES § 416 hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act de- pends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the or- dinary case of a statute upon a sub- ject requiring no such investigation and over which the jurisdiction of the legislature is complete in any event. " We hold, therefore, that the pro- visions of the acts relating to the en- forcement of the rates, either for freight or passengers, by imposing such enormous fines and possible im- prisonment as a result of an unsuc- cessful effort to test the validity of the laws themselves, are unconstitu- tional on their face, without regard to the question of the insufficiency of those rates. We also hold that the Circuit Court had jurisdiction under the cases already cited (and it was therefore its duty) to inquire whether the rates permitted by these acts or orders were too low and therefore confiscatory, and if so held, that the court then had jurisdiction to per- manently enjoin the railroad com- pany from putting them in force, and that it also had power, while the in- quiry was pending, to grant a tem- porary injunction to the same effect. " Various affidavits were received upon the hearing before the court prior to the granting of the tempo- rary injunction, and the hearing itself was, as appears from the opinion, full and deliberate, and the fact was found that the rates fixed by the commodity act, under the circum- stances existing with reference to the passenger rate act and the orders of the Commission, were not sufTiciont to be compensatory, and were in fact confiscatory, and the act was there- fore unconstitutional. The injunc- tion was thereupon granted with reference to the enforcement of the commodity act. " We have, therefore, upon this record the case of an unconstitutional act of the state legislature and an in- tention by the Attorney General of the State to endeavor to enforce its provisions, to the injury of the com- pany, in compelling it, at great ex- pense, to defend legal proceedings of a complicated and unusual character, and involving questions of vast im- portance to all employes and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may re- sort to, by going into a Federal court of equity, in a case involving a viola- tion of the Federal Constitution, and obtaining a judicial investigation of the problem, and pending its solution obtain freedom from suits, civil or criminal, by a temporary injunction, and if the question be finally decided favorably to the contention of the company, a permanent injunction re- straining all such actions or proceed- ings. "This inquiry necessitates an ex- amination of the most material and important objection made to the jurisdiction of the Circuit Court, the objection being that the suit is, in effect, one against the State of Minne- sota, and that the injunction issued against the Attorney General illegally prohibits state action, either criminal or civil, to enforce obedience to the statutes of the State. This objection is to be considered with reference to the Eleventh and Fourteenth .\mend- ments to the Federal Constitution. The Eleventh Amendment prohibits the commencement or prosecution of 711 § 41() REGULATION AND CONTROL CONTINUED- any suit against one of the United States by citizens of another State or citizens or subjects of any foreign State. The Fourteenth Amendment provides that no State shall deprive any person of life, liberty or property without due process of law, nor shall it deny to any person within its juris- diction the equal protection of the laws. " The case before the Circuit Court proceeded upon the theory that the orders and acts heretofore mentioned would, if enforced, violate rights of the complainants protected by the latter Amendment. We think that whatever the rights of complainants may be, they are largely founded upon that Amendment, but a deci- sion of this case does not require an examination or decision of the ques- tion whether its adoption in any way altered or limited the effect of the earlier Amendment. We may as- sume that each exists in full force, and that we must give to the Elev- enth Amendment all the effect it naturally would have, without cut- ting it down or rendering its mean- ing any more narrow than the language, fairly interpreted, would warrant. It applies to a suit brought against a State by one of its own citi- zens as well as to a suit brought by a citizen of another State. Hans v. Louisiana, L34 U. S. 1, 33 L. ed. 842, 10 Sup. Ct. 504. It was adopted after the decision of this court in Chisholm v. Georgia (1793), 2 Dall. 419, where it was held that a State might be sued by a citizen of another State. Since that time there have been many cases decided in this court in- volving the Eleventh Amendment, among them being Osborn v. United States Bank (1824), 9 Wheat. (22 U. S.) 738, 846, 857, 6 L. ed. 204, which held that the Amendment ap- 712 plied only to those suits in which the State was a party on the record. In the subsequent case of Governor of Georgia v. Madrazo (1828), 1 Pet. (26 U. S.) 110, 122, 123, 7 L. ed. 73, that holding was somewhat enlarged, and Chief Justice Marshall, deliver- ing the opinion of the court, while citing Osborn v. United States Bank, supra, said that where the claim was made, as in the case then before the court, against the Governor of Geor- gia as governor, and the demand was made upon him, not personally, but officially (for moneys in the treasury of the State and for slaves in posses- sion of the state government), the State might be considered as the party on the record (page 123), and therefore the suit could not be main- tained. "Davis v. Gray, 16 Wall. (83 U. S.) 203, 220, 21 L. ed. 447, re- iterates the rule of Osborn v. United States Bank, so far as concerns the right to enjoin a state officer from executing a state law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the com- plainant. "In Virginia Coupon Cases, 114 U. S. 270, 296, 29 L. ed. 185, 5 Sup. Ct. 903, 962 (Poindexter v. Green- how), it was adjudged that a suit against a tax collector who had re- fused coupons in payment of taxes, and, under color of a void law, was about to seize and sell the property of a taxpayer for non-payment of his taxes, was a suit against him per- sonally as a wrongdoer and not against the State. "Hagood v. Southern, 117 U. S. 52, 67, decided that the bill was in substance a bill for the specific per- formance of a contract between the complainants and the State of South RATES AND CHARGES § 416 Carolina, and, although the State was not in name made a party de- fendant, yet being the actual party to the alleged contract the performance of which was sought and the only party by whom it could be per- formed, the State was, in effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which when done would con- stitute a performance of the alleged contract by the State. "The cases upon the subject were reviewed, and it was held, in In re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. 164, that a bill in equity brought against officers of a State, who, as individuals, have no personal interest in the subject-matter of the suit, and defend only as representing the State, where the relief prayed for, if done, would constitute a per- formance by the State of the alleged contract of the State, was a suit against the State (page 504), follow- ing in this respect Hagood v. South- ern, supra. "A suit of such a nature was sim- ply an attempt to make the State itself, through its officers, perform its alleged contract, by directing those officers to do acts which constituted such performance. The State alone had any interest in the question, and a decree in favor of plaintiff would affect the treasury of the State. "On the other hand. United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. ed. 171, determined that an in- dividual in possession of real estate under the Government of the United States, which claimed to be its owner, was, nevertheless, properly sued by the plaintiff, as owner, to recover possession, and such suit was not one against the United States, although the individual in possession justified such possession under its authority. See also Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. 770, to the same effect. "In Pennoyer v, McConnaughy, 140 U. S. 1, 9, 11 Sup. Ct. 840, 35 L. ed. 631, a suit against land com- missioners of the State was said not to be against the State, although the complainants sought to restrain the defendants, officials of the State, from violating, under an unconstitu- tional act, the complainants' con- tract with the State, and thereby working irreparable damage to the property rights of the complainants. Osborn v. United States Bank, supra, was cited, and it was stated: 'But the general doctrine of Osborn v. Bank of the United States, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional stat- ute of the State, when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution, and would work irreparable damage and injury to him, has never been de- parted from.' The same principle is decided in Scott v. Donald, 165 U. S. 58, 67, 41 L. ed. 632, 17 Sup. Ct. 265. And see Missouri, etc., v. Missouri Railroad Commissioners, 183 U. S. 53, 46 L. ed. 78. "The cases above cited do not include one exactly like this under discussion. They serve to illustrate the principles upon which many cases have been decided. We have not cited all the cases, as we have not thought it necessary. But the in- junction asked for in the Ayres Case, 123 U. S. (supra), was to restrain the state officers from commencing suits under the act of May 12, 1887 (al- leged to be unconstitutional), in the 713 §410 REGULATION AND CONTROL CONTINUED — name of the State and brought to recover taxes for its use, on the ground that if such suits were commenced they would be a breach of a contract with the State. The injunction was declared illegal because the suit itself could not be entertained as it was one against the State to enforce its alleged contract. It was said, how-' ever, that if the court had power to entertain such a suit, it would have power to grant the restraining order preventing the commencement of suits. (Page 487.) It was not stated that the suit of the injunction was necessarily confined to a case of a threatened direct trespass upon or injury to property. " Whether the commencement of a suit could ever be regarded as an actionable injury to another, equiva- lent in some cases to a trespass such as is set forth in some of the foregoing cases, has received attention in the rate cases, so called. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014 (a rate case), was a suit against the members of a railroad commis- sion (created under an act of the State of Texas) and the Attorney General, all of whom were held suable, and that such suit was not one against the State. The Commis- sion was enjoined from enforcing the rates it had established under the act, and the Attorney General was enjoined from instituting suits to re- cover penalties for failing to conform to the rates fixed by the Commission under such act. It is true the statute in that case creating the board pro- vided that suit might be maintained by any dissatisfied railroad company, or other party in interest, in a court of competent jurisdiction in Travis County, Texas, against the Commis- sion as defendant. This court held 714 that such language permitted a suit in the United States Circuit Court for the Western District of Texas, which embraced Travis County, but it also held that, irrespective of that con- sent, the suit was not in effect a suit against the State (although the At- torney General was enjoined), and therefore not prohibited under the Amendment. It was said in the opin- ion, which was delivered by Mr. Jus- tice Brewer, that the suit could not in any fair sense be considered a suit against the State (page 392), and the conclusion of the court was that the objection to the jurisdiction of the Circuit Court was not tenable, whether that jurisdiction was rested (page 393), 'upon the provisions of the statute or upon the general juris- diction of the court existing by vir- tue of the statutes of Congress and the sanction of the Constitution of the United States.' Each of these grounds is effective and both are of equal force. Union Pacific, etc., v. Mason City Company, 199 U. S. 160, 166, 26 Sup. Ct. 19, 50 L. ed. 134. " In Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819 (an- other rate case), it was again held that a suit against individuals, for the purpose of preventing them, as offi- cers of the State, from enforcing, by the commencement of suits or by in- dictment, an unconstitutional enact- ment to the injury of the rights of the plaintiff, was not a suit against a State within the meaning of the Amendment. At page 518, in an- swer to the objection that the suit was really against the State, it was said: 'It is the settled doctrine of this court that a suit against individ- uals for the purpose of preventing them as officers of a State from en- forcing an unconstitutional enact- ment to the injury of the rights of the RATES AND CHARGES § 416 plaintiff, is not a suit against the State within the meaning of that Amendment.' The suit was to en- join the enforcement of a statute of Nebraska because it was alleged to be unconstitutional, on account of the rates being too low to afford some compensation to the company, and contrary, therefore, to the Fourteenth Amendment. " There was no special provision in the statute as to rates, making it the duty of the Attorney General to en- force it, but under his general powers he had authority to ask for a manda- mus to enforce such or any other law. State of Nebraska ex rel., etc., v. The Fremont, etc., Railroad Co., 22 Nebraska, 313. "The final decree enjoined the At- torney General from bringing any suit (page 477) by way of injunction, mandamus, civil action or indict- ment, for the purpose of enforcing the provisions of the act. The fifth sec- tion of the act provided that an ac- tion might be brought by a railroad company in the Supreme Court of the State of Nebraska; but this court did not base its decision on that sec- tion when it held that a suit of the nature of that before it was not a suit again.st a State, although brought against individual state officers for the purpose of enjoining them from enforcing, either by civil proceeding or indictment, an unconstitutional enactment to the injury of the plain- tiff's right. (Page 518.) "This decision was reaffirmed in Prout V. Starr, 188 U. S. 537, 542, 47 L. ed. 584, 23 Sup. Ct. 398. "Attention is also directed to the case of Missouri, etc., Ry. Co. v. Missouri R. R., etc.. Commissioners, 183 U. S. 53, 46 L. ed. 78. That was a suit brought in a state court of Missouri by the railroad commis- sioners of the State, who had the powers granted them by the statutes set forth in the report. Their suit was against the railway company to compel it to discontinue certain charges it was making for crossing the BoonvUle bridge over the Mis- souri River. The defendant sought to remove the case to the Federal court, which the plaintiffs resisted, and the state court refused to re- move on the ground that the real plaintiff was the State of Missouri, and it was proper to go behind the face of the record to determine that fact. In regular manner the case came here, and this court held that the State was not the real party plaintiff, and the case had therefore been properly removed from the state court, whose judgment was thereupon reversed. "Applying the same principles of construction to the removal act which had been applied to the Eleventh Amendment, it was said by this court that the State might be the real party plaintiff when the re- lief sought enures to it alone, and in whose favor the judgment or decree, if for the plaintiff, will effectively operate. "Although the case is one arising under the removal act and does not involve the Eleventh Amendment, it nevertheless illustrates the question now before us, and reiterates the doctrine that the State is not a party to a suit simply because the State Railroad Commission is such party. "The doctrine of Smyth v. Ames is also referred to and reiterated in Gunter, Attorney General, v. At- lantic, etc., Railroad Co., 200 U. S. 273, 283, 26 Sup. Ct. 252, 50 L. ed. 477. See also McNeill v. Southern Railway, 202 U. S. 543-559, 50 L. ed. 1142, 26 Sup. Ct. 722; Mississippi 715 § 416 REGULATION AND CONTROL CONTINUED Railroad Commission v. Illinois, etc., Railroad Co., 203 U. S. 335, 340, 27 Sup. Ct. 90, 51 L. ed. 209. "The various authorities we have referred to furnish ample justifica- tion for the assertion that indi- viduals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be en- joined by a Federal court of equity from such action. "It is objected, however, that Fitts V. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. ed. 535, has somewhat limited this principle, and, that upon the authority of that case, it must be held that the State was a party to the suit in the United States Circuit Court, and the bill should have been dismissed as to the Attorney General on that ground. " We do not think such contention is well founded. The doctrine of Smyth V. Ames was neither over- ruled nor doubted in the Fitts case. In that case the Alabama legislature, by the act of 1895, fixed the tolls to be charged for crossing the bridge. The penalties for disobeying that act, by demanding and receiving higher tolls, were to be collected by the per- sons paying them. No officer of the State had any official connection with the recovery of such penalties. The indictments mentioned were found under another state statute, set forth at page 520 of the report of the case, which provided a fine against an officer of a company for taking any greater rate of toll than was au- thorized by its charter, or, if the charter did not specify the amount, 716 then the fine was imposed for charg- ing any unreasonable toll, to be de- termined by a jury. This act was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls. As no state officer who was made a party bore any close official connection with the act fixing the tolls, the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done. A state superintendent of schools might as well have been made a party. In the light of this fact it was said in the opinion (page 530): " 'In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not ex- pressly directed to see to its enforce- ment. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the State in litigation in- volving the enforcement of its stat- utes. That would be a very con- venient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the RATES AND CHARGES § 416 fundamental principle that they can- not, without their assent, be brought into any court at the suit of private persons.' " Tn making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is plain that such officer must have some con- nection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party. " It has not, however, been held that it was necessary that such duty should be declared in the same act which is to be enforced. In some cases, it is true, the duty of enforce- ment has been so imposed (154 U. S. 362, 366, 38 L. ed. 1014, 14 Sup. Ct. 1047, § 19 of the act), but that may possibly make the duty more clear; if it otherwise exist it is equally effi- cacious. The fact that the state officer by virtue of his office has some connection with the enforcement of the act is the important and ma- terial fact, and whether it arises out of the general law, or is specially created by the act itself, is not ma- terial so long as it exists. "In the course of the opinion in the Fitts case the Reagan and Smyth cases were referred to (with others) as instances of state officers .specially charged with the execution of a state enactment alleged to be unconstitu- tional, and who commit under its authority some specific wrong or trespa-ss to the injury of plaintiff's rights. In those cases the only wrong or injury or trespass involved was the threatened commencement of suits to enforce the statutes as to rates, and the threat of such com- mencement was in each case re- garded as sufficient to authorize the issuing of an injunction to prevent the same. The threat to commence those suits under such circumstances was therefore necessarily held to be equivalent to any other threatened wrong or injury to the property of a plaintiff which had theretofore been held sufficient to authorize the suit against the officer. The being spe- cially charged with the duty to en- force the statute is sufficiently ap- parent when such duty exists under the general authority of some law, even though such authority is not to be found in the particular act. It might exist by reason of the general duties of the officer to enforce it as a law of the State. " The officers in the Fitts case occu- pied the position of having no duty at all with regard to the act, and could not be properly made parties to the suit for the reason stated. "It is also objected that as the statute does not specifically make it the duty of the Attorney General (assuming he has that general right) to enforce it, he has under such cir- cumstances a full general discretion whether to attempt its enforcement or not, and the court cannot inter- fere to control him as Attorney Gen- eral in the exercise of his discretion. " In our view there is no inter- ference with his discretion under the facts herein. There is no doubt that the court cannot control the exercise of the discretion of an officer. It can only direct affirmative action where the officer having some duty to perform not involving discretion, but merely ministerial in its nature, refuses or neglects to take such ac- tion. In that case the court can direct the defendant to perform this merely ministerial duty. Board of Liquidation v. McComb, 92 U. S. 531, 541, 23 L. ed. 623. 717 § 416 REGULATION AND CONTROL CONTINUED — "The general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains the state officer from taking any steps towards the en- forcement of an unconstitutional en- actment to the injury of complainant. In such case no affirmative action of any nature is directed, and the officer is simply prohibited from doing an act which he had no legal right to do. An injunction to pre- vent him from doing that which he has no legal right to do is not an interference with the discretion of an officer. " It is also argued that the only proceeding which the Attorney Gen- eral could take to enforce the statute, so far as his office is concerned, was one by mandamus, which would be commenced by the State in its sov- ereign and governmental character, and that the right to bring such ac- tion is a necessary attribute of a sovereign government. It is con- tended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was com- plained of as an officer, to whose discretion is confided the use of the name of the State of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion and cannot be controlled by any court. "The answer to all this is the same as made in every case where an offi- cial claims to be acting under the authority of the State. The act to be enforced is alleged to be uncon- stitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding with- 71S out the authority of and one which does not affect the State in its sov- ereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a viola- tion of the Federal Constitution, the officer in proceeding under such en- actment comes into conflict with the superior authority of that Constitu- tion, and he is in that case stripped of his official or representative char- acter and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme au- thority of the United States. See In re Ayers, supra, page 507. It would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an en- deavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a court of equity. If the question of unconstitutionality with reference, at least, to the Fed- eral Constitution be first raised in a Federal court that court, as we think is shown by the authorities cited hereafter, has the right to decide it to the exclusion of all other courts. "The question remains wljether the Attorney General had, by the law of the State, so far as concerns these rate acts, any duty with regard to the enforcement of the same. By his official conduct it seems that he regarded it as a duty connected with his office to compel the company to obey the commodity act, for he com- menced proceedings to enforce such obedience immediately after the in- RATES AND CHARGES § 416 junction issued, at the risk of being found guilty of contempt by so doing. "The duties of the Attorney Gen- eral, as decided by the Supreme Court of the State of Minnesota, are created partly by statute and exist partly as at common law. State ex rel. Young, Attorney General, v. Robinson (decided June 7, 1907), 112 N. W. Rep. 269. In the above- cited case, it was held that the Attorney General might institute, conduct and maintain all suits and proceedings he might deem necessary for the enforcement of the laws of the State, the preservation of order and the protection of public rights, and that there were no statutory restrictions in that State limiting the duties of the Attorney General in such case. "Section 3 of chapter 227 of the General Laws of Minnesota, 1905 (same law, § 58, Revised Laws of Minnesota, 1905), imposes the duty upon the Attorney General to cause proceedings to be instituted against any corporation whenever it shall have offended against the laws of the State. By § 1960 of the Revised Laws of 1905 it is also provided that the Attorney General shall be ex ofjicio attorney for the railroad com- mission and it is made his duty to institute and prosecute all actions which the Commission shall order brought, and shall render the com- missioners ail counsel and advice necessary for the proper performance of their duties. " It is said that the Attorney Gen- eral is only bound to act when the Commission orders action to be brought, and that § 5 of the com- modity act (April 18, 1907), ex- pressly provides that no duty shall rest upon the Commission to enforce the act, and hence no duty other than that which is discretionary rests upon the Attorney General in that matter. The provision is somewhat unusual, but the reasons for its in- sertion in that act are not material, and neither require nor justify com- ment by this court. " It would seem to be clear that the Attorney General, under his power existing at common law and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the State, including, of course, the act in question, if it were constitutional. His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States Circuit Court. "It is further objected (and the objection really forms part of the contention that the State cannot be sued) that a court of equity has no jurisdiction to enjoin criminal pro- ceedings, by indictment or otherwise, under the state law. This, as a gen- eral rule, is true. But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of in- quiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. Prout v. Starr, 188 U. S. 5.37, 544, 47 L. ed. 584, 23 Sup. Ct. 398. But the Fed- eral court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor, 16 Wall. (83 U. S.) 719 § -416 REGULATION AND CONTROL CONTINUED 366, 370, 21 L. ed. 287; Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. 119. "Where one commences a criminal proceeding who is already party to a suit then pending in a court of eq- uity, if the criminal proceedings are brought to enforce the same right that is in issue before that court, the latter may enjoin such criminal pro- ceedings. Davis, etc., Co. v. Los Angeles, 189 U. S. 207, 47 L. ed. 778, 23 Sup. Ct. 498. In Dobbins v. Los Angeles, 195 U. S. 223-241, 49 L. ed. 169, 25 Sup. Ct. 18, it is remarked by Mr. Justice Day, in delivering the opinion of the court, that 'it is well settled that where property rights will be destroyed, unlawful inter- ference by criminal proceedings un- der a void law or ordinance may be reached and controlled by a court of equity.' Smyth v. Ames (supra) distinctly enjoined the proceedings by indictment to compel obedience to the rate act. " These cases show that a court of equity is not always precluded from granting an injunction to stay pro- ceedings in criminal cases, and we have no doubt the principle applies in a case such as the present. In re Sawyer, 124 U. S. 200, 211, 8 Sup. Ct. 482, 31 L. ed. 402, is not to the contrary. That case holds that in general a court of equity has no juris- diction of a bill to stay criminal pro- ceedings, but it expressly states an exception, 'unless they are instituted by a party to the suit already pend- ing before it and to try the same right that is in issue there.' Various au- thorities are cited to sustain the exception. The criminal proceedings here that could be commenced by the state authorities would be under the statutes relating to passenger or freight rates, and their validity is the 720 very question involved in the suit in the United States Circuit Court. The right to restrain proceedings by man- damus is based upon the same foun- dation and governed by the same principles. " It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a state court would be a viola- tion of the whole scheme of our Gov- ernment. If an injunction against an individual is disobeyed, and he com- mences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account. " The difference between the power to enjoin an individual from doing certain things, and the power to en- join courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former. "It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But in the event of a single violation the prosecutor might not avail himself of the op- RATES AND CHARGES § 416 portunity to make the test, as obedi- ence to the law was thereafter contin- ued, and he might think it unneces- sary to start an inquiry. If, however, he should do so while the company was thereafter obeying the law, sev- eral years might elapse before there was a final determination of the question, and if it should be deter- mined that the law was invalid the property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery. "Another obstacle to making the test on the part of the company might be to find an agent or employe who would disobey the law, with a possible fine and imprisonment star- ing him in the face if the act should be held valid. Take the passenger rate act, for instance: A sale of a single ticket above the price men- tioned in that act might subject the ticket agent to a charge of felony, and upon conviction to a fine of five thousand dollars and imprisonment for five years. It is true the company might pay the fine, but the imprison- ment the agent would have to suffer personally. It would not be wonder- ful, if under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk. " If, however, one should be found and the prosecutor should elect to proceed against him, the defense that the act was invalid, because the rates establi.shcd by it were too low, would require a long and difficult examina- tion of quite complicated facts upon which the validity of the act de- pended. Such investigation it would be almost impo.ssible to make before a jury, as such body could not intelli- 46 gently pass upon the matter. Ques- tions of the cost of transportation of passengers and freight, the net earn- ings of the road, the separation of the cost and earnings, within the State from those arising beyond its bound- aries, all depending upon the testi- mony of experts and the examination of figures relating to these subjects, as well, possibly, as the expenses at- tending the building and proper cost of the road, would necessarily form the chief matter of inquiry, and in- telligent answers could only be given after a careful and prolonged ex- amination of the whole evidence, and the making of calculations based thereon. All material evidence hav- ing been taken upon these issues, it has been held that it ought to be re- ferred to the most competent and reliable master to make all needed computations and to find therefrom the necessary facts upon which a judgment might be rendered that might be reviewed by this court. Chicago, etc., Railway Co. v. Tomp- kins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. 336. From all these consid- erations it is plain that this is not a proper suit for investigation by a jury. Suits for penalties, or indict- ment or other criminal proceedings for a violation of the act, would therefore furnish no reasonable or adequate opportunity for the pres- entation of a defense founded upon the assertion that the rates were too low and therefore the act in- valid. " We do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment (St. Louis, etc., Ry. Co. V. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567), but the facility of proving it in either case falls so far below that which would obtain in a 721 §416 REGULATION AND CONTROL CONTINUED — court of equity that comparison is scarcely possible. "To await proceedings against the company in a state court grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the high- est state court, would place the com- pany in peril of large loss and its agents in great risk of fines and im- prisonment if it should be finally de- termined that the act was valid. This risk the company ought not to be required to take. Over eleven thousand millions of dollars, it is esti- mated, are invested in railroad prop- erty, owned by many thousands of people who are scattered over the whole country from ocean to ocean, and they are entitled to equal protec- tion from the laws and from the courts, with the owners of all other kinds of property, no more, no less. The courts having jurisdiction. Fed- eral or state, should at all times be open to them as well as to others, for the purpose of protecting their prop- erty and their legal rights. "All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and enjoining the enforce- ment of the act until the decision of the court upon the legal question. " An act of the legislature fixing rates, either for passengers or freight, is to be regarded as prima facie valid, and the onus rests upon the company to prove its assertion to the contrary. Under such circumstances it was stated by Mr. Justice Miller, in his concurring opinion in Chicago, etc., Co. v. Minnesota, 134 U. S. 418, 460, 33 L. ed. 970, 10 Sup. Ct. 462, 702, that the proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature 722 or by its Commission is by a bill in chancery, asserting its unreasonable character, and that until the decree of the court in such equity suit was ob- tained it was not competent for each individual having dealings with a carrier, or for the carrier in regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive manner. This remedy by bill in equity is referred to and ap- proved by Mr. Justice Shiras, in de- livering the opinion of the court in St. Louis, etc., Co. v. Gill, 156 U. S. 649, 659, 666, 15 Sup. Ct. 484, 39 L. ed. 567, although that question was not then directly before the court. Such remedy is undoubtedly the most convenient, the most com- prehensive and the most orderly way in which the rights of all parties can be properly, fairly and adequately passed upon. It cannot be to the real interest of anyone to injure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected. The question of suffi- ciency of rates is important and con- trolling, and being of a judicial na- ture it ought to be settled at the earliest moment by some court, and when a Federal court first obtains jurisdiction it ought, on general prin- ciples of jurisprudence, to be per- mitted to finish the inquiry and make a conclusive judgment to the exclu- sion of all other courts. This is all that is claimed, and this, we think, must be admitted. "Finally it is objected that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this char- RATES AND CHARGES § 416 acter, where one Federal judge would have it in his power to enjoin pro- ceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions. To this it may be answered, in the first place, that no injunction ought to be granted unless in a case reasonably free from doubt. We think such rule is, and will be, followed by all the judges of the Federal courts. "And, again, it must be remem- bered that jurisdiction of this general character has, in fact, been exercised by Federal courts from the time of Osborn v. United States Bank up to the present; the only difference in regard to the case of Osborn and the case in hand being that in this case the injury complained of is the threatened commencement of suits, civil or criminal, to enforce the act, instead of, as in the Osborn case, an actual and direct trespass upon or in- terference with tangible property. A bill filed to prevent the commence- ment of suits to enforce an uncon- stitutional act, under the circum- stances already mentioned, is no new invention, as we have already seen. The difference between an actual and direct interference with tangible property and the enjoining of state officers from enforcing an unconstitu- tional act, is not of a radical nature, and does not extend, in truth, the jurisdiction of the courts over the subject-matter. In the case of the interference with property the per- son enjoined is assuming to act in his capacity as an official of the State, and justification for his interference is claimed by reason of his position as a state official. Such official cannot so ju.stify when acting under an un- constitutional enactment of the legis- lature. So, wliere the state official, instead of directly interfering with tangible property, is about to com- mence suits, which have for their ob- ject the enforcement of an act which violates the Federal Constitution, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the State as in other cases. The sovereignty of the State is, in reality, no more involved in one case than in the other. The State cannot in either case impart to the official immunity from responsibility to the supreme authority of the United States. See In re Ayers, 123 U. S. 507, 31 L. ed. 216, 8 Sup. Ct. 164. "This supreme authority, which arises from the specific provisions of the Constitution itself, is nowhere more fully illustrated than in the series of decisions under the Federal habeas corpus statute (§ 753, Rev. Stat.), in some of which cases persona in the custody of state officers for alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of the cases the writ has been refused as matter of discretion, but in others it has been granted, while the power has been fully recognized in all. Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. 734; In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. ed. 949; In re Neagle, 135 U. S. 1, 19 Sup. Ct. 335, 43 L. ed. 591 ; Baker v. Crice, 169 U. S. 284, 42 L. ed. 748, 18 Sup. Ct. 323; Ohio v. Thomas, 173 U. S. 276; 723 § 416 REGULATION AND CONTROL CONTINUED Minnesota v. Brundage, 180 U. S. 499, 502, 45 L. ed. 639, 21 Sup. Ct. 455; Reid v. Jones, 187 U. S. 153, 23 Sup. Ct. 89, 47 L. ed. 116; United States V. Lewis, 200 U. S. 1, 50 L. ed. 343, 26 Sup. Ct. 229; In re Lincoln, 202 U. S. 178, 26 Sup. Ct. 602, 50 L. ed. 984; Urquhart v. Brown, 205 U. S. 179, 51 L. ed. 760, 27 Sup. Ct. 459. " It is somewhat difficult to appre- ciate the distinction which, while ad- mitting that the taking of such a person from the custody of the State by virtue of service of the writ on the state officer in whose custody he is found, is not a suit against the State, and yet service of a writ on the At- torney General to prevent his en- forcing an unconstitutional enact- ment of a state legislature is a suit against the State. "There is nothing in the ease be- fore us that ought properly to breed hostility to the customary operation of Federal courts of justice in cases of this character. "The rule to show cause is dis- charged and the petition for writs of habeas corpus and certiorari is dis- missed. So ordered." Mr. Justice Harlan, dissenting. 724 TAXATION OF FRANCHISES CHAPTER XXIV. TAXATION OF FRANCHISES. 417. Taxation — Power of State — Limitations Thereon — Con- stitutional Law — General Principles. 418. Federal Franchises — Agencies of the Federal Government — State Taxation of. 419. Power of States to Tax Corpo- rations — Agencies of Fed- eral Government — Inter- state Commerce. 420. Same Subject — Application of Principles — Illustrative Decisions. 421. Diversity, Uniformity and Equality of Taxation. 422. Uniformity and Equality of Taxation — Constitutional Law — -Board of Equaliza- tion — Illegal Discrimina- tion — Jurisdiction in Eq- uity. 423. To What Extent Franchises Taxable — Generally. 424. Same Subject. 425. Franchise Tax— Capital Stock — Meaning of Terms — Na- ture of Tax — Construction of Statute. 426. State Taxation — Franchise Assessments — Capital Stock — Constitutional Law — Remedy. 427. Franchise Tax — Capital Stock — Gross Receipts — Addi- tional Franchise — Inter- state Commerce. 428. Franchise Tax— Capital Stork — Who Liable — Generally. 429. Franchise Tax— Capital Stock — Who not Liable — Gen- erally. 430. Taxation of Intangible Prop- erty of Interstate Bridge — Constitutional Law. 431. Taxation of Ferry Franchise — Legal Situs of Property — Constitutional Law. 432. Franchise Tax — Telegraph Companies — Constitutional Law. 433. Franchise Tax — Tax on Gross Receipt s — Street Rail- roads. 434. Franchise Tax — Water Com- panies. 435. Franchise Tax — Gross Re- ceipts — Dividends — • Gas and Electric Light and Power Companies. 436. Franchise Tax — Insurance Companies. 437. Franchise Tax — Guaranty or Security Company — Trust Company. 438. Franchise Tax — Savings Banks. 439. Franchi.se Tax — National Banks. 440. Capital Stock — Tangible and Intangible Property — Franchises — Situs of, for Taxation. 441. Franchise Tax — What Is In- cluded as Capital Stock — — Exempt Property. 442. Franchise Tax— What Is not Included as Capital Stock. 725 417 TAXATION OF FRANCHISES 443. Exemptions — Tax Upon State Banks in Which United States Securities are In- cluded. 444. Special Franchises — Taxa- tion. 445. Franchises — Exemption from Tax on Capital Stock. 446. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation. 447. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation Con- tinued. 448. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation Con- tinued. 449. Franchise Tax — Capital Stock, etc. — Valuation — Basis of Computation — Deductions. 450. Value of Special Franchise. 451. Deduction from Special Fran- chise Tax. 452. Exemption or Immunity from Taxation — Whether a Franchise or Privilege. 453. Power to Exempt from Tax- ation — State, Municipality, and Board of Assessment — Local Taxation. § 454. Duration and Extent of Ex- emption from Taxation. 455. Surrender of Power of Tax- ation — Presumptions — ■ Exemption from Taxation — Statutory Construction. 456. Constitutional Law — Validity of Exemption from Taxa- tion. 457. Obligation of Contracts — Ex- emption from Taxation — Preliminary Statement. 458. Obligation of Contract — Res- ervation of Power to Alter, Amend or Repeal — Ex- emption from Taxation. 459. Obligation of Contracts — What Is a Contract — Ex- emption from Taxation. 460. Obligation of Contracts — What Is not a Contract — Exemption from Taxation. 461. Obligation of Contracts — Res- ervation of Power to Alter, etc. — Exemption from Tax- ation — Res adjudicata. § 417. Taxation— Power of State— Limitations Thereon — Constitutional Law— General Principles. — The power to levy and collect taxes is a legislative function in this country ^ and cannot be exercised otherwise than under the authority of the legislature.^ But state governments have no right to ' Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197; Heine v. Levee Commissioners, 19 Wall. (86 U. S.) 655, 22 L. ed. 223. 2 Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197. Delegation of ■power to toa;— Extent of. See Michigan Railroad Tax Cases (C. C), 138 Fed. 223 (held not un- 726 lawfully delegated — average rate to be ascertained by state board of as- sessors), case affirmed, Michigan Cen- tral Rd. Co. V. Powers, 201 U. S. 245, 50 L. ed. 744, 26 Sup. Ct. 459; Southern Ry. Co. v. North Carolina Corp. Commission (C. C), 97 Fed. 513 (North Carolina Corporation Com- mission no power to appraise and TAXATION OF FRANCHISES § 417 tax any of the constitutional means employed by the govern- ment of the Union to execute its constitutional powers; nor have the States any power, by taxation or otherwise, to re- tard, impede, burden, or in any manner control the opera- tions of the constitutional laws enacted by Congress to carry into effect the powers vested in the national government.^ The exercise, however, of the authority which every State pos- sesses to tax its corporations and all their property, real and personal, and their franchises, and to graduate their tax upon a corporation according to its business or income, or the value of its property, when this is not done by discriminating against rights held in other States, and the tax is not on imports or tonnage, or transportation to other States, cannot be regarded as conflicting with any constitutional power of Congress.^ assess railroad property); School City of Marion v. Forrest, 1G8 Ind. 94, 78 N. E. 187 (extent of delegation of power to municipal body or de- partment thereof); People ex rel. Metropolitan St. Ry. Co. v. Tax Commissioners, 174 N. Y. 417, 67 N. E. 67 (special franchise; tax stat- ute not unconstitutional as con- ferring upon state officers the right to assess franchises and tangible prop- erty connected therewith and in- cluded therein though formerly as- sessed by a local board of assessors); Missouri, K. & T. Ry. Co. v. Shannon (Tex. Civ. App., 1906), 97 S. W. 527, aff'd 100 Tex. 379, 100 S. W. 138 (state tax board; statute making Secretary of State and State Comp- troller members not invalid as vest- ing judicial power in such officers). Deleqalion to hoard of equalization. See § 182, herein. The power to levy and collect taxes does not belong to a court of equity, and can only be enforced by a court of law, through the officers author- ized by the legislature to levy the tax, if a writ of mandamus is ap- propriate to that purpose. Heine v. Levee Commissioners, 19 Wall. (86 U. S.) 655, 22 L. ed. 223. Nature of tax — Not a debt or con- tractual obligation. State v. Chicago & N. W. Ry. Co., 128 Wis. 449, 108 N. W. 594. 3 McCulloch V. Maryland, 4 Wheat. (17 U. S.) 316, 4 L. ed. 579. In this case it was held that this principle did not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular State, nor to a tax imposed on the proprietary interest which the citi- zens of that State might hold in that institution, in common with other property of the same description throughout the State. See in this connection Home Savings Bank v. City of Dcs Moines, 205 U. S. 503, 509, 51 L. ed. — , 27 Sup. Ct. — . As to implied constitutional limi- tations, see Southern Gum Co. v. Laylin, 66 Ohio St. 578, 64 N. E. 564. * Delaware Railroad Tax, 18 Wall. (85 U. S.) 206, 21 L. ed. 888. 727 § 418 TAXATION OF FRANCHISES If a State has not the power to levy a tax it will not be sus- tained merely because another tax which it might lawfully impose would have the same ultimate incidence.^ The omis- sion of the legislature for one year, or for a series of years, to tax certain classes of property, otherwise taxable, does not destroy the power of the State to subject them to taxation when it sees fit to do so.^ The fact that taxation increases the expenses attendant upon the use or possession of the thing taxed, of itself constitutes no objection to its constitution- ality.' § 418. Federal Franchises— Agencies of the Federal Gov- ernment—State Taxation of. — The States may tax every subject of value, within the sovereignty of the State, belong- ing to the citizens as mere private property, but the power of taxation does not extend to the instruments of the Federal government, nor to the constitutional means employed by Congress to carry into execution the powers conferred in the Federal Constitution.* And although the property of a cor- poration of the United States may be taxed by a State, still this cannot be done through the company's franchises,^ for franchises conferred by Congress cannot, without its per- mission, be taxed by the States. Thus the State Board of Equalization of California, having included in their assess- ment all the franchises of a railroad company, amongst which were franchises conferred by the United States, of constructing a railroad from the Pacific Ocean across the State as well as across the Territories of the United States, and of taking toll thereon, it was held that the assessment of these franchises was repugnant to the Constitution and laws of the United States and the power given to Congress to regulate commerce ^ Home Savings Bank v. City of ' Delaware Railroad Tax, 18 Wall. Des Moines, 205 U. S. 503, 504, 51 (85 U. S.) 206, 21 L. ed. 888. L. ed. — , 27 Sup. Ct. — . « McCulloch v. Maryland, 4 Wheat. « Metropolitan St. Ry. Co. v. (17 U. S.) 316, 4 L. ed. 579. New York State Board of Tax » Central Pacific R. Co. v. Cali- Commrs., 199 U. S. 1, 50 L. ed. 65, fornia, 162 U. S. 91, 16 Sup. Ct. 766, 25 Sup. Ct. 705. 40 L. ed. 903. See § 129, herein. 728 TAXATION OF FRANCHISES § 418 among the several States. ^° But the decision of the Supreme Court of a State that the findings of the trial court on the question of whether the franchises taxed covered franchises derived from the United States was conclusive, is binding upon the Federal Supreme Court. ^^ In the case of an inter- state bridge the tax on the capital stock has been held not a tax on franchises conferred by the Federal government, but on those conferred by the State, and as such not open to objec- tion in the Federal Supreme Court. Such tax was also held in the same case not to be a tax on interstate commerce. ^^ The exemption of agencies of the Federal government from taxation by the States is dependent, not upon the nature of the agents, nor upon the mode of their constitution, nor upon the fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does in truth de- prive them of power to serve the government as they were intended to serve it, or hinder the efficient exercise of their povv^er. A tax upon their property merely, having no such necessary effect, and leaving them free to discharge the duties they have undertaken to perform, may be rightfully laid by the States. A tax upon their operations being a direct ob- struction to the exercise of Federal powers may not be. This doctrine was applied to the case of a tax by a State upon the real and personal property, as distinguished from its fran- chises, of the Union Pacific Railroad Company, a corporation chartered by Congress for private gain, and all of whose stock was owned by individuals, but which Congress assisted by donations and loans, of whose board of directors the govern- ment appointed two, which makes annual reports to the gov- ernment, whose operations in laying, constructing and work- ing its railroad and telegraph lines, as well as its rates of toll, '"California v. Central Pacific R. " Central Pac. R. Co. v. California, Co., 127 U. S. 1, 32 L. ed. 150, 8 Sup. 1G2 U. S. 91, IG Sup. Ct. 7GG, 40 L. Ct. 1052, 2 Inters. Comm. Rep. 153. ed. 903. Examine Atlantic & Pacific R. Co. v. '^ Keokuk & Hamilton Bridge Co. Lesner (Ariz.), 19 Pac. 157, 2 Inters, v. Illinois, 175 U. S. 62G, 44 L. ed. Comm. Rep. 189, 1 L. R. A. 244, 38 299, 20 Sup. Ct. 205. Alb. L. J. 328. See § 129, herein. 729 § 419 TAXATION OF FRANCHISES are subject to regulations imposed by its charter, and to sueh further regulations as Congress might thereafter make; on whose failure to comply with the terms and conditions of its charter, or to keep the road in repair and use. Congress might assume the control and management thereof, and devote the income to the use of the United States ; the loan of the United States to which, amounting to many millions, constituted a lien on all the property, and on failure to redeem which loan, the Secretary of the Treasury was authorized to take posses- sion of the road with all its rights, functions, immunities and appurtenances, for the use and benefit of the United States, and, finally, where all the grants made to the company were declared to be upon the condition that, besides paying the government bond advances, the company should keep the railroad and telegraph lines in repair and use, and should at all times transmit dispatches and transport mails, troops and numitions of war, supplies and public stores for the govern- ment, whenever required to do so by any department thereof; and that the government should have the preference of rates not to exceed those charged to private parties, and payable by being applied to the payment of the bonds aforesaid; and in addition to which control, and the obligations and lia- bilities of the company, Congress, not forbidding a state tax, reserved the right to add to, alter, amend or repeal the charter. ^^ § 419. Power of States to Tax Corporations— Agencies of Federal Government— Interstate Commerce. — Although we have considered elsewhere in this treatise the relative powers of the States and the Federal government and also the ques- tion of interstate commerce in that connection, we will also consider here, more specifically, the application of governing principles to the questions of the power of the States as to taxation and interstate commerce in connection therewith. The following propositions as to the taxation by States and their municipalities of corporations engaged in carrying on inter- " Railroad Co. v. Peniston, 18 Wall. (85 U. S.) 5, 21 L. ed. 787. 730 TAXATION OF FRANCHISES § 419 state commerce have been settled; the Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the sev- eral States, that power is necessarily exclusive whenever the subjects are national in their character, or admit only of one uniform system or plan of regulation. No State can compel a party, individual or corporation, to pay for the privilege of engaging in interstate commerce. This immunity does not prevent a State from imposing ordinary property taxes upon property having a situs within its territory and employed in interstate commerce. The franchise of a corporation, although that franchise is the business of interstate commerce, is, as a part of its property, subject to state taxation, providing at least the franchise is not derived from the United States. No corporation, even though engaged in interstate commerce, can appropriate to its o\tn use property, public or private, without liability to a charge therefor.^'* In Fargo v. Hart ^^ it is held that while a State can tax property permanently within its jurisdiction although belonging to persons domiciled elsewhere and used in commerce between the States, it cannot tax the privilege of carrying on such commerce, nor can it tax property outside of its jurisdiction belonging to persons domiciled elsewhere. In Adams Express Co. v. Ohio ^® it is decided that it is well settled that no State can interfere with interstate commerce through the imposition of a tax, by whatever name called, which is, in effect, a tax for the privi- lege of transacting such commerce ; and also that such restric- tion upon the power of a State does not in the least degree abridge its right to tax at their full value all the instrumentali- ties used for such commerce. In the same case, determined at an earlier date,^^ the rule is stated as follows: Although the '♦Atlantic and Pacific Telegraph "> 193 U. S. 490, 48 L. ed. 7G1, 24 Co. V. Philadelphia, 190 U. S. 160, Sup. Ct. 498. 47 L. ed. 995, 23 Sup. Ct. 817; Rob- '• 166 U. S. 185, 218, 41 L. ed. 965, bins V. Sholhy Taxing District, 120 17 Sup. Ct. 604. U. S. 489, 492, 7 Sup. Ct. 592, 30 »' Adams Express Co. v. Ohio, 165 L. ed. 694. U. S. 194, 255, 41 L. ed. 683, 707, 17 Sup. Ct. 305. 731 § 419 TAXATION OF FRANCHISES transportation of the subjects of interstate commerce, or the receipts received therefrom, or the occupation or business of carrying it on, cannot be directly subjected to state taxation, yet property belonging to corporations or companies engaged in such commerce may be; and whatever the particular form of the exaction, if it is essentially only property taxation, it will not be considered as falling within the inhibition of the Constitution. In Postal Telegraph Co. v. Adams ^* the court holds that while a State cannot exclude from its limits a corporation engaged in interstate or foreign commerce, or a corporation in the employment of the general government, by the imposition of unreasonable conditions, it may subject it to a property taxation incidentally affecting its occupation in the same way that business of individuals or other corpora- tions is affected by common governmental burdens. In Ficklen V. Shelby County ^^ it is held that although a tax may affect interstate commerce it may do it so incidentally and so re- motely as not to amount to a regulation of such commerce. In Robbins v. Shelby County Taxing District ^° it is decided that interstate commerce cannot be taxed at all by a State even though the same amount of tax should be laid on do- mestic commerce, or that which is carried on solely within the State. That the power granted to Congress, to regulate commerce among the States, being exclusive when the sub- jects are national in their character, or admit only of one uniform system of regulation, the failure of Congress to exer- cise that power in any case, is an expression of its will that the subject shall be left free from restrictions or impositions upon it by the several States. The court also holds that a State may enact laws which in practice operate to affect com- merce among the States, as by providing in the legitimate exercise of its police power and general jurisdiction, for the security and comfort of persons and the protection . of prop- i« 155 U. S. 688, 39 L. ed. 311, 15 ^° 120 U. S. 489, 7 Sup. Ct. 592, Sup. Ct. 360. 30 L. ed. 694. '" 145 U. S. 1, 36 L. ed. 601, 12 Sup. Ct. 810. 732 TAXATION OF FRANCHISES § 420 erty; by establishing and regulating channels for commercial facilities; by the passage of inspection laws and laws to re- strict the sale of articles injurious to health and morals; by the imposition of taxes upon avocations within its borders nor interfering with foreign or interstate commerce; and in other ways indicated by the court in its opinion, subject in all cases to certain limitations. In Pickard v. Pullman Southern Car Co.^^ it is decided that no State has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that trans- portation, or on the occupation or business of carrying it on, and the reason is that such taxation is a burden on that com- merce, and amounts to a reg-alation of it, which belongs solely to Congress. In the Delaware Railroad Tax case ^^ it is held that the State may impose taxes upon the corporation as an entity existing under its laws, as well as upon the capital stock of the corporation or its separate corporate property. And the manner in which its value shall be assessed and the rate of taxation, however arbitrary or capricious, are mere matters of legislative discretion. And in Western Union Teleg. Co. v. Norman 2^ the court, per Barr, Dist. J., declares that: "A State cannot tax foreign or interstate commerce as such, nor can it tax its agencies or instrumentalities in such a man- ner as to interfere with the regulation of this commerce, which belongs exclusively to Congress. The State may tax property within the State, though it be employed in whole or in part in foreign or domestic commerce, as that use does not, of itself, exempt it from liability to taxation as is all other property within the jurisdiction of the State." § 420. Same Subject— Application of Principles— Illustra- tive Decisions. — Interstate conunerce is not interfered with by the imposition upon a domestic railroad of a franchise tax, 2' 117 U. S. 34, 29 L. ed. 785, 6 " 18 Wall. (85 U. S.) 206, 21 L. ed. Sup. Ct. 635. 888. "77 Fed. 13,21. 733 § 420 TAXATION OF FRANCHISES even though no deduction is allowed from the capital by rea- son of the fact that a part of the rolling stock of the company is constantly outside of the State. ^"^ A statute of Pennsylvania imposing a tax upon the tolls received by the New York, Lake Erie and Western Railroad Company from other railroad companies, for the use by them respectively of so much of its railroad and tracks as hes in the State of Pennsylvania for the passage over them of trains owned and hauled by such companies, respectively, is a valid tax, and is not in conflict with the interstate commerce clause of the Constitution when applied to goods so transported from without the State of Pennsylvania.^^ In the Delaware Railroad Tax case ^*^ the consolidated company therein mentioned was, in 1838, united with two other railroad companies, one called the Baltimore and Port Deposit Railroad Company, chartered by the legis- lature of Maryland in 1831, with authority to construct and maintain a railroad from Baltimore to Fort Deposit, on the Susquehanna River; and the other called the Philadelphia, Wilmington and Baltimore Railroad Company, chartered by the legislature of Pennsylvania in the same year, with au- thority to construct and maintain a railroad from Philadelphia to the Delaware state line. These three companies were, under acts of the legislatures of these States, Delaware, Maryland and Pennsylvania, consolidated into one company with a common stock, retaining as its corporate name the name of the company chartered by Pennsylvania. The act of the legislature of Delaware, under which the consolidation was effected, declared that the respective companies should "con- stitute one company, and be entitled to all the rights, privi- leges, and immunities which each and all of them possess, have, and enjoy, under and by virtue of their respective charters." It was held that this latter provision in no respect '* New York v. Miller, 202 U. S. " New York, L. E. & W. R. R. Co. 584, 26 Sup. Ct. 714, 50 L. ed. 1155, v. Pennsylvania, 158 U. S. 431, 39 aff'g 177 N. Y. 584, 69 N. E. 1129, L. ed. 1043, 15 Sup. Ct. 896. 76 N. E. 1104; N. Y. Tax Law; Laws " 18 Wall. (85 U. S.) 206. 1890, chap. 908, § 182. 734 TAXATION OF FRANCHISES § 420 changed the position with reference to taxation of the new company, in one of the States, from that of the old company in such State. It was also decided that the tax did not con- flict with the power of Congress to regulate commerce among the several States, nor interfere with the right of transit of persons and property from one State into or through another. In the case of Henderson Bridge Co. v. Kentucky ^^ the court holds that the acts of Congress conferred no right or franchise on the company to erect the bridge or collect tolls for its use; that they merely regulated the height of bridges over the river and the width of their spans, in order that they might not interfere with its navigation; and that the declaration that such bridges should be regarded as post roads did not interfere with the right of the State to impose taxes; and that the tax was not a tax on the interstate business carried on over or by means of the bridge, because the bridge com- pany did not transact such business; that business being car- ried on by the persons and corporations which paid the bridge company tolls for the privilege of using the bridge. In an- other case the facts were as follows: Section 4077 of the com- pilation of the Kentucky statutes of 1894 provides that each of the enumerated companies or corporations; "every other like company, corporation or association;" and also "every other corporation, company or association having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service, shall, in addition to the other taxes imposed on it by law, annually pay a tax on its franchise to the State, and a local tax thereon to the county, incorporated city, town and taxing district, where its franchise may be exercised;" and in the succeeding section the words "franchise," "franchises" and "corporate franchise" are used. It was held, that, taking the whole act together, and in view of the provisions of §§ 4078, 4079, 4080 and 4081, it was evident that the word "franchise" was not employed in a technical sense, and that the legislative inten- " 166 U. S. 150, 41 L. ed. 953, 17 Sup. Ct. 532. 735 § 420 TAXATION OF FRANCHISES tion was plain that the entire property, tangible and intangible, of all foreign and domestic corporations, and all foreign and domestic companies possessing no franchise, should be valued as an entirety, the value of the tangible property be deducted, and the value of the intangible property thus ascertained be taxed under these provisions; and as to railroad, telegraph, telephone, express, sleeping car, etc., companies, whose lines extend beyond the limits of the State, that their intangible property should be assessed on the basis of the mileage of their lines within and without the State; but that from the valuation on the mileage basis the value of all tangible prop- erty should be deducted before the taxation was applied.^s In still another case it appeared that the statute of Ohio of 1893 2^ created a board of appraisers and assessors, and re- quired each telegraph, telephone and express company doing business within the State to make returns of the number of shares of its capital, the par value and market value thereof, its entire real and personal property, and where located and the value thereof as assessed for taxation, its gross receipts for the year of business wherever done and of the business done in the State of Ohio, giving the receipts of each office in the State, and the whole length of the line of rail and water routes over which it did business within and without the State. It required the board of assessors to "proceed to ascer- tain and assess the value of the property of said express, telegraph and telephone companies in Ohio, and in determin- ing the value of the property of said companies in this State to be taxed within the State and assessed as herein provided said board shall be guided by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the State of Ohio, in the proportion which the same bears to the entire property of said companies, as determined by the value of 28 Adams Express Co. V. Kentucky, =» Act April 27, 1893, Laws Ohio, 166 U. S. 171, 41 L. ed. 960, 17 Sup. 330, and May 10, 1894, Laws Ohio, Ct. 527. 220. 736 TAXATION OF FRAXCHISES § 420 the capital stock thereof, and the other evidence and rule as aforesaid." It was held, (1) that, assuming that the pro- portion of capital employed in each of the several States through which such a company conducts its operation has been fairly ascertained, while taxation thereon, or determined with reference thereto, may be said in some sense to fall on the business of the company, it does so only indirectly; and that the taxation is essentially a property tax, and as such, not an interference with interstate commerce; (2) that the property so taxed has its actual situs in the State and is, therefore, subject to its jurisdiction; and that the distribution among several counties is a matter of regulation by the state legislature; (3) that this was not taking of property without due process of law, either by reason of its assessment as within the jurisdiction of the taxing authorities, or of its classifica- tion as subject to the unit rule ; (4) that the valuation by the assessors cannot l^e overthrown simply by showing that it was otherwise than as determined by them.^" Again, the tax imposed by the laws of Mississippi,^^ when enforced against a telegraph company organized under the laws of another State, and engaged in int(n-state commerce in Mississippi, being graduated according to the amount and value of the com- pany's property measured by miles, and being in lieu of taxes directly levied ui)()ii the j)roi)erty, is a tax which it is within the power of the State to impose; and the exercise of that power, as expounded by the highest judicial tribunal of the State, docs not amount to a regulation of interstate com- merce, or put an unconstitutional n^straint thereon.^- The lousiness of receiving and landing of passengers and freight is incident to their transportation, and a tax upon such receiving and landing is a tax upon transportation and upon commerce, interstate or foreign, involved in such transportation.^^ A '"Adams Express Co. v. Ohio, 165 155 V. S. 688, 39 L. ed. 311, 15 Sup. U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Ct. 360. 305. " ( iloucester Ferry Co. v. Penn- ""Codc of ISSO, c. 10, § 585; Sess. sylvaiiia, 114 U. S. 196,29 L. ed. 158, Laws, 1888, c. 3. 5 Sup. Ct. 826. "Postal Tel. Cable Co. v. Adams, 47 737 § 421 TAXATION OF FRANCHISES state tax upon the gross receipts of a steamship company incorporated under its laws, which are derived from the trans- portation of persons and property by sea, between different States, and to and from foreign countries, is a regulation of interstate commerce, in conflict with the exclusive powers of Congress under the Constitution.^'' Under a state statute providing that certain corporations and companies "shall, in addition to the other taxes imposed by law, annually pay a tax on its franchise to the State and a local tax thereon to the county, incorporated city, town, and taxing district where its franchise may be exercised," and other subsequent sections provide the method of ascertaining the value of the "fran- chise" or "corporate franchise," the statute is not limited to the technical meaning of the term franchise; and the prop- erty to be taxed is all the intangible property of the corpora- tion. If the corporation is a foreign one, engaged in interstate commerce, then the taxation is upon such proportion of such property as the length of lines situate in the State sustains to their entire length of lines. Such statute is not unconstitu- tional as violating the interstate commerce clause or Four- teenth Amendment. ^^ § 421. Diversity, Uniformity and Equality of Taxation. — Diversity of taxation, both with respect to the amount im- posed, and the various species of property selected, either for bearing its burdens or for being exempt from them, is not inconsistent with a perfect uniformity and equality in taxa- tion, and of a just adaptation of property to its burdens. A system of taxation which imposes the same tax upon every species of property, irrespective of its nature, or condition, or class, will be destructive of the principle of uniformity and equality in taxation, and of a just adaptation of property to its burdens.^^ While a state constitution requires taxation, in general, to be uniform and equal, but declares in express ^* Philadelphia & South. Steam- ^5 Western Union Teleg. Co. v. ship Co. V. Pennsylvania, 122 U. S. Norman (U. S. C. C), 77 Fed. 13. 326, 7 Sup. Ct. 1118, 30 L. ed. 1200. ^e p^^ific Express Co. v. Seibert, 738 T.-LXATION OF FR.\NCHISES § 421 terms that a large class of persons engaged in special pursuits, among whom are persons or corporations owning franchises 142 U. S. 339, 35 L. ed. 1035, 12 Sup. v. Pima County, 5 Ariz. 142, 145, Ct. 250. 146, 48 Pac. 291 (shares of national As to uniformity and equality of banks; equality of assessment with taxation, see the following cases: other moneyed capital). United States : Merchants & Mfrs. Connecticut: State v. Travelers' Bank v. Pennsylvania, 167 U. S. 461, Ins. Co., 73 Conn. 255, 47 Atl. 299 17 Sup. Ct. 829, 42 L. ed. 236 (uni- (neither the constitution of this State formity of taxation — state statute nor that of the United States con- not obnoxious to Fourteenth Amend- tains any provision, express or im- ment; national banks); Western Un- plied, requiring equality or uni- ion Teleg. Co. v. Indiana, 165 U. S. formity of taxation; taxation of 304, 41 L. ed. 725, 17 Sup. Ct. 345 local corporations), (uniformity of taxation; telegraph Florida: Hayes v. Walker, 54 Fla. companies); Charlotte, Columbia & 163, 44 So. 747 (constitutional pro- Augusta Rd. Co. V. Gibbes, 142 U. S. vision for uniformity does not pre- 386, 35 L. ed. 1051, 12 Sup. Ct. 255, vent legislature making proper clas- 48 Am. & Eng. R. Cas. 595 (consti- sifications of property), tutional law; equal and uniform tax- Georg'ia: Central of Georgia Ry. ation; railroads); Kentucky Railroad Co. v. Wright, 125 Ga. 617, 54 S. E. Tax Cases, 115 U. S. 321, 29 L. ed. 64; case controlled by Georgia R. & 414, 6 Sup. Ct. 57 (classification of Banking Co. v. Wright, 125 Ga. 589, assessed property; equal protection 54 S. E. 52 (shares of stock; constitu- of law); Commonwealth v. National tional requirement that all taxation Bank, 101 U. S. 153, 25 L. ed. 903 shall be uniform, etc.); Sparks v. (uniformity of taxation; state con- Macon, 98 Ga. 301, 25 S. E. 459; stitution; equalization board; bank case is controlled by principles of shares); Railroad Companies v. Columbus Railway Co. v. Wright, 89 Gaines, 97 U. S. 697, 24 L. ed. 1091 Ga. 574, 15 S. E. 293 (taxation of (uniformity of taxation; railroads; railroad company for county pur- constitutional law; obligation of con- poses; tax held equal, uniform and tract); Gilman v. Sheboygan, 2 Black just). (67 U. S.), 510, 17 L. ed. 305 (uni- IlUnois: Crozer v. People, 206 111. formity of taxation; Wisconsin con- 464, 473, 69 N. E. 489 ("only stitution); W. C. Peabody & Co. v. method by which taxation could be Pratt, 121 Fed. 772, 58 C. C. A. 48 made exactly and absolutely uni- (effect of art. 8, § 1 of Federal Con- form, and in proportion to the value ftitution); Western Union Teleg. Co. of the property, would be by ascer- v. Norman (C. C), 77 Fed. 13; San taining its value throughout the en- Mateo County v. Railroad Co., 7 tire year and fixing its assessed value Sa\\y. 517. accordingly"); Raymond, County Alabama: PhcBnix Carpet Co. v. Treasurer, v. Hartford Fire Ins. Co., State, 118 Ala. 143, 151, 152, 22 So. 196 111. 329. 627 (tax on privileges or franchises; Iowa: Judy v. Beckwith (Iowa, equality and uniformity explained). 1908), 114 N. W. 565 (shares of for- Arizona: Consolidated Nat. Bank eign corporation; statute not violative 739 § ^121 TAXATION OF FRANCHISES and privileges, may be taxed as the legislature shall determine, by a general law, uniform as to the class upon which it operates; of constitutional requirement of uni- formity). Kansas: Missouri, K. & T. Ry. Co. V. Miami County Commrs., 67 Kan. 434, 73 Pac. 103 (classification and common-law distinctions); Atchison, Topeka & S. F. Ry. Co. v. Clark, 60 Kan. 831, 832, 58 Pac. 561, modi- fying 54 Pac. 930 ("nor do we find a lack of equality and uniformity in this tax of which the railroad com- pany has cause to complain"). Kentucky: Commonwealth v. Walsh's Trustee, 32 Ky. L. Rep. 460, 106 S. W. 240 (stockholders; cor- porate franchise; statute partly void); Vanceburg & S. L. Turnpike Road Co. V. Maysville & B. S. R. Co., 25 Ky. L. Rep. 1404, 1409, 77 S. W. 1118 (statute provided that same rate of taxation which was levied on other real estate in any year, should also be levied on railroad property); De- vou V. Boske, 23 Ky. L. Rep. 364, 63 S. W. 44 (taxation of turnpike com- pany; statute held not to violate constitution requiring all taxation to be equal and uniform). Louisiana: St. Anna's Asylum v. Parker, 109 La. 592, 33 So. 613 (property not exempt; if taxed should be taxed equally or in a uni- form ratio according to assessment legally made on all property of same description upon which a tax is lev- ied). Michigan: Pingree v. Dix, 120 Mich. 95, 44 L. R. A. 679, 6 Det. L. N. 45, 78 N. W. 1025 (telegraph and telephone lines; statute held to vio- late constitutional requirement as to uniformity). Minnesota: State ex rel. Marr v. Stearns, 72 Minn. 200, 222, 223, 75 N. W. 210 (system of commuted 740 taxation on property of railroad com- panies; equality and uniformity). Mississippi: Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91 (priv- ilege tax law; additional tax on rail- roads; discriminatory and void as ad valorem tax); Adams v. Bank of Ox- ford, 78 Miss. 532, 29 So. 402 (ad valorem taxes on banks; not viola- tive of constitutional requirement of uniformity). Missouri: State, Johnson, v. Chi- cago, B. & Q. R. Co., 195 Mo. 228, 238, 93 S. W. 784 (general rule of law is that taxes must be uniform and equal, coextensive with the territory to which the tax applies; case of special road tax); Ward v. Gentry County Board of Equalization, 135 Mo. 309, 322, 323, 36 S. W. 648 (assessment of banking property; equality of taxation). New Jersey: Central R. Co. of New Jersey v. State Board of Assess- ors, 74 N. J. L. 1, 67 Atl. 672 (stat- ute for taxation of railroad and canal company does not violate constitu- tional provision as to uniformity). See United New Jersey R. & Canal Co. V. Parker (Err. & App., 1908), 69 Atl. 239; Bergen & Dundee R. Co. v. State Board of Assessors, 74 N. J. L. 742, 67 Atl. 668. North Dakota: Minneapolis & Northern Elevator Co. v. Traill County, 9 N. D. 213, 50 L. R. A. 266, 82 N. W. 727 (assessments and taxation of grain in elevators, ware- houses and grain houses; statute not violative of constitutional require- ment of uniformity). Tennessee: State v. Taylor, 119 Tenn. 229, 104 S. W. 242 (street rail- roads; not improper classification of property). TAXATION OF FRANX'HISES § 422 a statute under such provision is not unconstitutional which prescribes a different rule of taxation for railroad companies from that of individuals. Nor does it violate any provision of the Constitution of the United States. ^^ Again, in a case con- cerning want of uniformity in taxation, it is decided that while it was quite competent for the State of Virginia to im- pose upon the movable personal property of the Baltimore and Ohio Railroad Company (a corporation organized under the laws of Maryland), which was brought within its territory and there habitually used and employed, the same rate of taxation which was imposed upon similar property used in like way by its own citizens, it had not done so in the taxing laws of the State which were in force when the tax in con- troversy was imposed.^* § 422. Uniformity and Equality of Taxation — Constitu- tional Law — Board of Equalization— Illegal Discrimination — Jurisdiction in Equity. — There is no general supervision by the nation over state taxation, in regard to which the State has, generally speaking, the freedom of a sovereign both as to Virginia: Day v. Roberts, 101 Va. Wisconsin: Chicago & Northwest- 248, 251, 43 S. E. 3G2 (settled con- em Ry. Co. v. State, 128 Wis. 553, struction is that uniform taxation re- 108 N. W. 557 (uniformity required quires uniformity not only in the rate only as to property taxed directly; of taxation, and in the mode of as- uniformity of burden, not of methods; sessment upon the taxable valuation, public service corporations; fran- but that uniformity must be co- chises; valuation of property as a extensive with the territory to which unit and as personality; ad valorem it applies). taxation of railroad property); State Washington: Pacific Nat. Bank v. v. Railway Companies, 128 Wis. 449, Pierce County, 20 Wash. 675, 56 108 N. W. 594 (license fees in lieu of Pac. 936, 16 Bkg. L. J. 346 (shares of taxes; constitutional rule of uniform- capital stock of bankinj; institutions, ity not applicable; return of gross also of real and personal property; earnings; privilege taxes not taxes constitution does not prescribe uni- in constitutional sense), form methods of as.sessment for all ' ^' State Railroad Tax Case, 92 classes of property but is a require- U. S. 575, 23 L. ed. 663. ment that the rate of asses.sment and ''* Marye v. Baltimore & Ohio R. R. the method of valuation shall be uni- Co., 127 U. S. 117, 32 L. ed. 94, 8 form as to property sought to be Sup. Ct. 1037. taxed). 741 § 422 TAXATION OF FRANCHISES objects and methods. Nothing in the Federal Constitution prevents a State from separating a particular class of property and subjecting it to assessment and taxation in a mode and by a rate different from that imposed on other property and applying the proceeds to state rather than local purposes. Nor is the legislature bound to impose the same rate of tax upon one class of property that it does upon another; it is sufficient if all of the same class are subjected to the same rate and the tax is administered impartially among them.^^ Again, it is not beyond the power of a State, so far as the Federal Constitution is concerned, to tax the franchise of a corporation at a different rate from the tangible property in the State.'*'' This doctrine has been restated in a comparatively recent case although not the contention in the case, as it was asserted that the board of equalization assessed the franchises and other property of certain companies at a different rate and by a different method from that which had been em- ployed by the board for other corporations of the same class for that year. The result was an enormous disparity and dis- crimination between the various assessments upon the cor- porations; and action of such board, resulting in illegal dis- crimination, was held in this case not to be action forbidden by the state legislature and therefore beyond review by the Federal courts under the Fourteenth Amendment. It was also decided in the same case that where a corporation has paid the full amount of its tax as based upon the same rate as that levied upon other property of the same class, equity will restrain the collection of the excess illegally assessed, there being no adequate remedy at law, when it appears that it would require a multiplicity of suits against the various tax- ing authorities to recover the tax and that a portion of it 39 Michigan Central R. Co. v. Water Co. v. Fond du Lac, 82 Wis. Powers, 201 U. S. 245, 50 L. ed. 744, 322, 16 L. R. A. 581, 52 N. W. 439; 26 Sup. Ct. 259, aff'g Michigan Rail- Galveston, H. & S. A. Ry. Co. v. road Tax Cases, 138 Fed. 223. State (Tex. Civ. App.), 93 S. W. 464, ^"Coulter V. Louisville & N. R. reversed in State v. Galveston, H. & Co., 196 U. S. 599, 49 L. ed. 615, 25 S. A. Ry. Co. (Tex., 1906), 97 S. W. Sup. Ct. 342. Examine Fond du Lac 71. 742 TAXATION OF FR.AN'CHISES § 422 would go to the State against which no action would lie, and where the amount is so great that its payment w^ould cause insolvency, and a levy upon the property — in this case a street car system — would embarrass and injure the public.'*^ ^* Raymond v. Chicago Traction Co., 207 U. S. 20, 37 L. ed. 7, 28 Sup. Ct. 7, aff'g 114 Fed. 557, two justices dissenting. The court in its opinion, per Peckham, J., said: "The case before us is one which the facts make exceptional. It is made entirely clear that the board of equalization did not equalize the assessments in the cases of these corporations, the effect of which was that they were levied upon a different principle or followed a different method from that adopted in the case of other like corporations whose property the board had as- sessed for the same year. It was not the mere action of individuals, but, under the facts herein detailed, it was the action of the State through the board. * * * xhe most impor- tant function of the board, that of equalizing assessments, in order to carry out the provisions of the con- stitution of the State in le\'jMng a tax by valuation, 'so that eveiy person shall pay a tax in proportion to the value of his, her or its property,' was, in this instance, omitted and ig- nored, while the board was making an assessment which it had jurisdic- tion to make under the laws of the State. This action resulted in illegal discrimination, which under these facts was the action of the State through the board. Barney v. City of New York, 193 U. S. 430, 48 L. ed. 737, 24 Sup. Ct. 502, holds that where the act complained of was for- bidden by the state legislature, it could not be said to be the act of the State. Such is not the case here. We are also of opinion that the case is one over which equity has juris- diction. In Cummings v. National Bank, 101 U. S. 153, 25 L. ed. 903, this court held that the case was one properly brought in equity. It was to restrain the collection of a tax. While the court held that the posi- tion of the bank as trustee entitled it to maintain an action in equity and also under the statute of Ohio, it was further held (page 157): 'In- dependently of this statute, however, we are of opinion that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to op- erate unequally and to violate a fun- damental principle of the constitu- tion, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, that equity may properly interfere to restrain the operation of this uncon- stitutional exercise of power.' We have in the case at bar similar facts. A system of valuation was adopted and applied to a large class of corpo- rations, differing wholly from that applied to other corporations of the same class, and resulting in a dis- crimination against the appellee of the most serious and material na- ture. It is not a question of mere difference of opinion as to the val- uation of property, but it is a ques- tion of difference of method in the manner of assessing property of the same kind. Although the law itself may be valid and provide for a proper valuation, yet if, through mistake on the part of the State, through its board of equalization and while act- 743 § 423 TAXATION OF FRANCHISES § 423. To What Extent Franchises Taxable— Generally.— We have seen that franchises are property almost universally ing as a guasi-judicial body, the board erred in the method to be pursued in relation to the corporations now be- fore us, the mistake is one which may be corrected in equity. In all these cases, however, where there is juris- diction to tax at all, equity will not grant an injunction to restrain the collection, even of an illegal tax, without the payment on the part of the taxpayer of the amount of a tax fairly and equitably due. Bank v. Marye, 191 U. S. 272, 24 Sup. Ct. 68, 48 L. ed. 180, and cases cited. Act- ing upon this principle, the Circuit Court refused to issue the injunction until the appellee paid the amount which the court found to be a fair and just amount due from the ap- pellee for the tax of the year 1900, based upon a tax at the same rate as that levied upon other property and on corporations of the same class within the State. The sum to be paid by the appellee herein, as decided by the circuit judge, was $134,350.03. That sum was paid instead of $1,019,211.78, called for by the war- rant in the hands of the collector. Finally it is objected that the ap- pellee had a complete and adequate remedy at law by paying the amount of the warrant, and then suing the collector to recover the same back as money paid under duress, although upon a void warrant. Undoubtedly if there be a complete and adequate remedy at law in such a case as this, the remedy in equity will not be recognized. Assuming the tax to be void, equity will not restrain by in- junction its collection, unless there be some other ground for equitable interposition. Shelton v. Piatt, 139 U. S. 591, 35 L. ed. 273, 11 Sup. Ct. 744 64G; Allen v. Palace Car Co., 139 U. S. 658, 11 Sup. Ct. 682, 35 L. ed. 303; Express Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 12 Sup. Ct. 250. In the cases in 139 U. S., supra, it was recognized that no ground ap- peared for the interposition of a court of equity, because of the ex- istence of a statute in the State of Tennessee providing for paying the amount of the alleged illegal tax to the officer holding the warrant, and granting to the taxpayer a right to commence an action to recover back the tax thus paid, the statute pro- viding that the officer should pay the amount received into the state treasury, where it was to remain un- til the question was decided, and, if it was decided in favor of the tax- payer, provision was made for the repayment of the amount by the State. The other averments, beside that of the illegality of the tax, made in these two cases, were held not to constitute a ground for the interposition of a court of equity by restraining the collection of the tax. In the case in 142 U. S., supra, the court held that there was no ground to warrant the interposition of a court of equity. The case was de- cided upon the ground that the aver- ment of illegality of the tax was not sustained. There is no statute of a similar kind in Illinois which has been called to our attention, but some of the cases in that State hold that such a suit may be maintained against the collector when the money was paid under protest. In the case at bar it is averred that it is the duty of the collector, having received the money on his warrant, to pay the sum so received in the proportions TAXATION OF FRANCHISES § 423 classed as real property or incorporeal hereditaments/^ and this constitutes an important factor in determining to what designated in his tax books to the And, in addition, there is the allega- city treasurer of the city of Chicago, tion that a levy upon the property the county treasurer of the county of the appellee would interfere with of Cook, the treasurer of the sanitary the operation of the street car system district, and other officers and au- in the city of Chicago, operated by thorities entitled to receive the same, the appellee, and would greatly em- and if the plaintiff instituted suit to barrass and injure the public who recover back the taxes so paid to the have to use the cars. Upon the town or county collector he would whole, we think it is apparent that be obliged to bring separate suits no adequate remedy at law exists in against each one of the several tax- this case, and that the judgment en- ing bodies receiving its proportionate joining the collection of the balance share of the tax, thereby necessitat- of the tax levied against the appellee, ing a multiplicity of suits, and the above that which has been paid un- proportion of the tax which would der the direction of the Circuit Court, go to the State of Illinois, could not must be Affirmed." be collected back by any legal pro- In the above case of Raymond v. ceeding whatsoever; and if repay- Chicago Traction Co., the material ment could be compelled from the part of art. 9, § 1, of the con- city of Chicago and other taxing stitution of Illinois, 1870, is as fol- bodies, such repayment would not lows: "The general assembly shall cover the cost, including commissions provide such revenue as may be deducted for the collection of the needful by levying a tax by valua- tax, and in that way it was averred tion, so that every person and cor- that the appellee would be sub- poration shall pay a tax in propor- jected to a great and irreparable in- tion to the value of his, her or its jury, for which there was not a property — such value to be ascer- complete and adequate remedy at tained by some person or persons to law. There was also the allega- be elected or appointed in such man- tion * * * that if compelled to ner as the general assembly shall pay this enormous tax it would be direct and not otherwise; but the rendered insolvent. We think all general assembly shall have power these allegations combined take the to tax h: * * insurance, tele- case out of the class where relief is graph and express interests or busi- prayed for, founded simply upon the ness, vendors of patents and persons unconstitutionality of the law under or corporations owning or using fran- which the tax is levied, or upon the chises and privileges in such manner illegality for any other reason, of the as it shall from time to time direct by tax itself, and bring the case within general law, uniform as to the class the jurisdiction of a court of equity, upon which it operates." The fol- " See §§25-27, herein. Examine Tax on capital stock, franchises, Southwestern Teleg. & Teleph. Co. v. etc., is tax on property and its assets. City of San Antonio (Tex. Civ. App., Commonwealth v. New York, P. & 1903), 73 S. W. 859. O. R. Co., 188 Pa. 169, 41 Atl. 594; 745 § 423 TAXATION OF FRANCHISES extent franchises are taxable or to what extent the power to tax such property may be exercised. In the complex civiliza- lowing are the statutes in question in ble property of such company or as- the above case: "Real property shall sociation; such board shall adopt such be valued as follows: First, each tract rules and principles for ascertaining or lot of real property shall be valued the fair cash value of such capital at its fair cash value estimated at the stock as to it may seem equitable and price it would bring at a fair volun- just, and such rules and principles when so adopted, if not inconsistent with this act, shall be as binding and of the same effect as if contained in this act, subject, however, to such change, alteration or amendment as may be found from time to time to be Kurd's tary sale." Kurd's Rev. Stat., 1899, c. 120, par. 4. "Personal property shall be valued as follows: First, all personal property, except as herein otherwise directed, shall be valued at its fair cash value. * * * Fourth, the capital stock of all companies and necessary by said board." associations now or hereafter created Rev. Stat., 1899, c. 120, § 3. under the laws of this State, except Raymond v. Chicago Edison Co., those required to be assessed by the 207 U. S. 42, was decided upon the local assessors and hereinafter pro- authority of the above principal case. vided, shall be so valued by the state See § 182, herein. board of equalization as to ascer- Remedies for assessment by board tain and determine respectively the of equalization in excess of authority. fair cash value of such capital stock. Compare Central Pac. R. Co. v. Cali- including the franchise, over and fornia, 162 U. S. 91, 16 Sup. Ct. 766, above the assessed value of the tangi- 40 L. ed. 909. Commonwealth v. Beach Creek Rd. Co., 188 Pa. 203, 41 Atl. 60,5; Com- monwealth V. Fall Brook Rd. Co., 188 Pa. 199, 41 Atl. 606; Pa. Act Junes, 1891, P. L. 229. Tax on franchises, rails, rolling stock, etc., under const. § 179, is tax on personal property. Minneapolis, St. Paul & S. M. Ry. Co. v. Dickey County, 11 N. Dak. 107, 90 N. W. 260. "In some States the franchises and privileges of a corporation are de- clared to be personal property. Such was the case in New York with ref- erence to the privileges and franchises of savings banks. They were so de- clared by a law passed in 1866, and made liable to taxation to an amount not exceeding the gross sum of the surplus earned and in the possession 746 of the banks. The law was sustained by the Court of Appeals of the State in Monroe Savings Bank v. City of Rochester, 37 N. Y. 365, 369, 370, although the bank had a portion of its property invested in United States bonds. In its opinion the court ob- served that in declaring the privileges and franchises of a bank to be per^ sonal property the legislature adopted no novel principle of taxation; that the powers and privileges which constitute the franchises of a corpo- ration were in a just sense property, quite distinct and separate from the property which, by the use of such franchises, the corporation might ac- quire; that they might be subjected to taxation if the legislature saw fit so to enact; that such taxation being within the power of the legislature, TAXATION OF FRANCHISES § 423 tion of to-day a large portion of the wealth of a community consists of intangible property, and there is nothing in the nature of things or in the limitations of the Federal Constitu- tion which restrains a State from taxing such intangible prop- erty at its real value. "^^ In California franchises are, under its constitution, classed as property and are subject to taxation/^ In Illinois they are also declared to be taxable property. ^^ In Kentucky the constitution does not prevent intangible property from being taxed, and a statute of that State pro- viding for the taxation of franchises of every ''corporation, company, or association having or exercising any special or exclusive privilege or franchise, not allowed to natural per- sons, or performing any public service," covers tangible and it might prescribe a rule or test of State. If the grantee accepts the their value; that all franchises were boon it must bear the burden.' not of equal value, their value de- This doctrine of the taxability of the pending, in some instances, upon the franchises of a corporation without nature of the business authorized, reference to the character of the prop- and the extent to which permission erty in which its capital stock or its was given to multiply capital for its deposits are invested is sustained by prosecution; and that the tax being the judgments in Society for Sav- upon the franchises and privileges it ings v. Coite, 6 Wall. (73 U. S.) 594, was unimportant in what manner the 18 L. ed. 897, and Provident Institu- property of the corporation was in- tion v. Massachusetts, 6 Wall. (73 vested. And the court added: 'It U. S.) 611, 18 L. ed. 907." Home In- is true that where a state tax is laid surance Co. v. New York, 134 U. S. upon the property of an individual 594, 601, 33 L. ed. 1025, 10 Sup. Ct. or a corporation, so much of their 593, per Field, J. property as is invested in United *^ Adams Express Co. v. Ohio, 166 States bonds is to be treated, for the U. S. 185, 41 L. ed. 965, 17 Sup. Ct. purposes of as.sessmont, as if it 604, denying rehearing in 165 U. S. did not exist, but this rule can have 194, 255, 41 L. ed. 683, 17 Sup. Ct. no application to an assessment upon 305. See this case under § 39, a franchise, where a reference to herein. property is made only to ascertain " Bank of California v. City & the value of the thing asses.sed.' County of San Francisco, 142 Cal. And again: 'It must be regarded as a 276, 75 Pac. 832, 64 L. R. A. 918; sound doctrine to hold that the State, San Joaquin & Kings River Canal & in granting a franchi.se to a corpo- Irrig. Co. v. Merced County, 2 Cal. ration, may limit the powers to be App. 593, 84 Pac. 2S5. exercised und(!r it and annex con- " Porter v. Rockford, Rock Island ditions to its enjoyment, and make d. 3, Laws 1896, p. 796, 751 § 424 TAXATION OF FRANCHISES tions, but the right to use the pubhc streets, highways or pubhc places for the purpose of laying pipes or mains, either as an individual or a corporation; that the right to use the public streets or highways is a property right, and it is because such property has a value that the right exists to assess it. The franchise thus made taxable must mean some special privilege derived from some governmental body or some political body having authority to grant the property right sought to be taxed; and that it is this species of property, intangible in its nature, which the law is enacted to reach.^'^ In another case in the same State a distinction is made be- tween the taxation of corporate franchises and a tax upon property of the corporation for the privilege of carrying on business.^* In a Pennsylvania case it is said that: "The power to tax corporate franchises is undoubtedly recognized and acted upon in this State. The test, whether the tax in any given case is a franchise as distinguished from a property tax, would seem, from the authorities, to be that a tax according to a valuation is a tax upon property, whereas a tax imposed according to nominal value, or measured by some fixed stand- ard of mere calculation — as contrasted with valuation — fixed by the law itself, may be a franchise tax;" thus, to illustrate, a tax on capital stock cannot be a franchise tax as tested by the above criterion.^'' In Washington corporate franchises are held to be taxable.^" c. 908, as amended by Laws 1899, That franchise tax is a tax on p. 1589, c. 712. corporate functions, rather than on ^^ People ex rel. Retsof Min. Co. v. property, see Security Trust Co. v. Priest, 77 N. Y. Supp. 382, 75 App. Liberty Bldg. Co., 89 N. Y. Supp. Div. 131, aff'd (mem.) 175 N. Y. 511, 340, 96 App. Div. 436; Laws 1901, per the court. Quoted in Western p. 316, c. 132. Union Teleg. Co. v. City of Omaha That franchise is taxable property, (Neb., 1905), 103 N.W. 84,85,86. see Hatfield v. Strauss, 189 N. Y. 5" People V. Knight, 174 N. Y. 475, 208, 219, 82 N. E. 172, per O'Brien, J. 67 N. E. 65, case reverses 73 N. Y. ^'Commonwealth v. Standard Oil Supp. 745, 67 App. Div. 333. Co., 101 Pa. 119, 127, citing as to ™ Edison Electric Illuminating Co. Light & Power Co. v. Judson, 21 V. Spokane City, 22 Wash. 168, 60 Wash. 49. Pac. 132. See Commercial Electric 752 TAXATION OF FRANCHISES § 425 § 425. Franchise Tax— Capital Stock— Meaning of Terms —Nature of Tax— Construction of Statute.*^^ — The words "capital stock," as used in the Tax Law of New York imposing a franchise tax on corporations for the privilege of doing busi- ness or exercising its cori)orate franchises in the State, refer to the capital or property of the corporation; and the words "employed within this State," as used in the statute, do not mean simply the legal situs of the property of the corpora- tion.^- It is also held in the same State that the term "capital stock," as used in its franchise tax law, means not the share stock held by individuals, but the actual capital which it represents, employed in that State; when considered as a basis for a franchise tax, it is the equivalent of the term "capi- tal" and it is the amount of capital so employed upon which the tax is to be computed.^^ This tax is imposed for the above criterion Kittanning Coal Co. U. S.) 200, 17 L. ed. 793; Society for V. Commonwealth, 29 P. F. S. 104; Savings v. Coite, 6 Wall. (73 U. S.) Bank of Commerce v. New York 594, 18 L. ed. 897; Providence In- City, 2 Black (67 U. S.), 620, 17 L. ed. stitution V. Massachusetts, 6 Wall. 451; Bank Tax Case, 2 Wall. (69 (73 U. S.) 611, 18 L. ed. 907. " See §§ 439, 440, herein. 26 Sup. Ct. —; Western Union •^People ex rel. Lackawanna Teleg. Co. v. Norman, 77 Fed. 13, Transp. Co. v. Knight, 77 N. Y. Supp. 22. 398, 75 App. Div. 164; N, Y. Tax Illinois: State Board of Equaliza- Law, Laws 1896, chap. 908, § 182, tion v. People, 191 III. 528, 547-549, am'd by Laws 1901, chap. 558; I)y 68 L. R. A. .'■)13, 61 N. E. 339. Laws 1906, p. 1195, chap. 474; by Kentucky: Henderson Bridge Co. Laws 1907, p. 1726, chap. 734, v. Commonwealth, 99 Ky. 023, 17 Ky. " People ex rel. Commercial Cable L. Rep. 389, 29 L. R. A. 73, 31 S. W. Co. v. Morgan, 178 N. Y. 433, rev'g 486, aff'd 166 U. S. 150, 17 Sup. Ct. 86 App. Div. 577, 83 N. Y. Supp. 998. 532, 41 L. ed. 953; Henderson Bridge The court, per Werner, J., said: Co. v. Negley, Sheriff, 23 Ky. L. Rep. "'Capital stock' and 'capital' are 746. practically the equivalent of each Minnesota: State v. Duluth Cas & other when considered as the basis Water Co., 7() Minn. 96, 102-104, 78 of a franchise tax." Id., 440. X. W. 1032, 57 L. R. A. 63. Whether "franchise" or " fran- New York: People ex rel. Roches- rhisea" included in "capital stock," ter Ry. Co. v. Pond, 57 N. Y. Supp. .see tho following cases: 490, 493, 37 App. Div. 330; Williams United States : New York Central v. Western Union Teleg. Co., 48 N. Y. & Hudson River Rd. Co. v. Miller. Super. Ct. (16 Jones & S.) 349, 368, 202 U. S. 584, 596, 50 L. ed. - , case rev 'd 93 N. Y. 162. 48 753 § 425 TAXATION OF FRANCHISES privilege of doing business or exercising corporate franchises within the State. •^'' But under a Federal Supreme Court de- Ohio: Hubbard v. Brush, 61 Ohio St. 252, 261, 262, 55 N. E. 829. Tennessee : Tradesman Publishing Co. V. Knoxville Car Wheel Co., 11 Pick. (95 Tenn.) 634, 654-656, 49 Am. St. Rep. 943, 32 S. W. 1097, 31 L. R. A. 593. Compare People ex rel. Manhattan Ry. Co. V. Barker, 146 N. Y. 304, 40 N. E. 996, s. c, 165 N. Y. 305, 310, 317, 324, 340, 59 N. E. 151, cited in People ex rel. Metropolitan St. Ry. Co. V. Tax Commissioners, 174 N. Y, 417, 436, 67 N. E. 169; People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417, 439, 452, 46 N. E. 875. Whether tax imposed on gross re- ceipts is franchise tax, see Stephens V. Texas & Pac. Ry. Co. (Tex. Sup.), 97 S. W. 309; Galveston, H. & S. Ry. Co. V. State (Tex. Sup.), 97 S. W. 71, rev'g93 S. W. 464. Tax on value of capital stock is tax on property in which capital invested. Delaware, Lackawanna & Western Rd. Co. V. Pennsylvania, 198 U. S. 341, 49 L. ed. 1077, 25 Sup. Ct. 669. Tax on cash value of shares of capital stock not tax upon shares of individual stockholders or upon prop- erty of corporation, but tax upon cor- poration itself measured by percen- tage upon cash value of certain proportional part of shares of capital stock. Delaware Railroad Tax, 18 Wall. (85 U. S.) 206, 21 L. ed. 888. Capital stock and shares in joint- stock company represents tangible and intangible property, including all corporate franchises. Adams Ex- press Co. V. Ohio, 166 U. S. 185, 41 L. ed. 965, 17 Sup. Ct. 604. Capital stock and corporate prop- erty distinguished. The shares of the capital stock of a corporation are essentially different and distinct from the corporate property, and the owner of all the corporation's stock does not own or become entitled to control the property; such owner and the corporation do not thereby be- come one person. Monongahela Bridge Co. v. Pittsburg & Birming- ham Traction Co., 196 Pa. 25, 46 Atl. 99. See § 11, herein. That capital stock is distinguished from corporate property examine also the following cases: United States: Van Allen v. As- sessors, 3 Wall. (70 U. S.) 573, 18 L. ed. 229; Sturges v. Stetson, 1 Biss. (C. C.) 246, Fed. Cas. No. 13,568. Connecticut: Security Co. v. Hart- ford, 61 Conn. 89. Illinois: Ohio R. v. Weber, 96 111. 443. Kentucky: Henderson Bridge Co. V. Commonwealth, 99 Ky. 623. Missouri: Brent v. Hart, 10 Mo. App. 143. New Jersey: State v. Morristown F. Assoc, 23 N. J. L. 195. New York: People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46, 50, 44 N. E. 787, case affirms 78 Hun, 63, 60 N. Y. St. Rep. 662, 29 N. Y. Supp. 92; People ex rel. Union Trust Co. V. Coleman, 126 N. Y. 433, 38 N. Y. St. Rep. 237, 27 N. E. 818, case reverses 36 N. Y. St. Rep. 221, 13 N. Y. Supp. 67; Pratt v. Munson, 17 Hun (N. Y.), 475. Pennsylvania: Wilkes-Barre Bank «" People ex rel. United States N. Y. 475, 67 N. E. 65, rev'g 67 Aluminum P. P. Co v. Knight, 174 App. Div. 333, 73 N. Y. Supp. 745. 754 TAXATION OF FRANCHISES § 425 cision where the state statute imposed a tax upon "the cor- porate franchise or business" it is held that the tax was upon the right or privilege to be a corporation and to do business within the State in a corporate capacity, and that it was not a tax upon the privilege or franchise which, when incorporated, the company might exercise.^^ And the same rule applies to the statute in the same State imposing a franchise tax on trust companies ; ^^ the tax imposed by the statute is a tax upon a privilege and not upon property. It is not imposed upon the privilege of becoming a corporation, for that would be an organization tax payable but once for the entire period of corporate existence. It is imposed "for the privilege of exercising" the corporate franchise, and is measured by the value of the investments made and used in carrying on the corporate business. It is an annual tax imposed for the pur- pose of exercising, not of possessing, a corporate franchise. It is the implied intent of the statute that the tax should be apportioned according to the period during which the company exercised such franchise. ^^ The cjuestion whether a corporation does business so as to bring it within the opera- tion of the statute is to be determined by the character of the business, and it is not a ciuestion of the right to carry it on.^^ Unless the goods are brought into the State before sale,®^ V. Wilkes-Barre, 148 Pa. 601; Com- 102 Pa. 109; Lycoming Co. v. Gam- monwealth v. Lehigh Ave. Rd. Co., ble, 47 Pa. 106, 110. 129 Pa. 405, 18 Atl. 414, 498, 24 Tennessee: Brightwell v. Mallory, Wkly N. of Cas. 530, 5 L. R. A. 367; 10 Yerg. (Tcnn.) 196; Union Bank v. Philadelphia & Ridge Ave. Rd. Co., State, 9 Yerg. (Tenn.) 489. Amended statute expressly so pro- v. Miller, 177 N. Y. 51, 69 N. E. 124, vides. rev'g 85 App. Div. 211, 83 N. Y. «=' Home Ins. Co. v. New York, 134 Supp. 185. U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. "^ People v. American Bell Tolcph. 593, aff'g 92 N. Y. 328, which is also Co., 117 N. Y. 241, 22 N. E. 1057. affirmed by divided court, 119 U. S. ""People ex rel. Southern Cotton 129, 30 L. ed. 3.50, 8 Sup. Ct. 1385, Oil Co. v. Wemple, 131 N. Y. 64, 42 restored to calendar, 122 U. S. 636 N. Y. St. Rep. 632, 29 N. E. 1002, (mem.). aff'g 61 Hun, 83, 39 N. Y. St. Rep. •»N. Y. Tax Laws; Laws 1896, 738, 15 N. Y. Supp. 446; People ex chap. 908, § 187a. See § 434, herein, rel. Parke, Davis & Co. v. Roberts, •' People ex rel. Mutual Trust Co. 91 Hun, 158, 71 N. Y. St. Rep. 138, 755 § 425 TAXATION OF FRANCHISES sales by sample do not constitute doing business;'" and the fact that a portion of a corporation's business is the importa- tion and sale of articles in original packages does not invalidate the tax7^ In Vermont the franchise tax is imposed upon banks for the privilege of carrying on their business as a corporation^^ A tax on the nominal capital of a bank, without regard to the nature or value of the property composing it, is annexed to the franchise as a royalty for the grant, and not a burden imposed on the property itself.'^ In an Alabama case the court says: "The tax imposed by the subdivision has the properties and qualities of a franchise tax — it is measured by the amount of paid-up capital stock of the corporation — and this distinguishes it from a tax on property. Speaking in reference to this inquiry it was said by Clopton, J., in State v. Stonewall Ins. Co.,''* 'The usual and most certain test is, whether the tax is upon the capital stock, eo nomine, without regard to its value, or at its assessed valuation in whatever it may be invested; if the former, it is a franchise tax, if the latter, a tax upon property.' " ''^ A statute of Massachusetts which requires corporations having a capital stock divided into shares, to pay a tax of a certain percentage (one-sixth of one per cent) upon "the excess of the market value" of all such stock over the value of its real estate and machinery, is, under the settled course of decision in the State of Massachusetts, 36 N. Y. Supp. 368, aff'd 149 N. Y. '' New York v. Roberts, 171 U. S. 608, 44 N. E. 1127, which is aff'd, 658, 43 L. ed. 345, 19 Sup. Ct. 235, New York V. Roberts, 171 U. S. 658, 31 Chic. Leg. News, 111, 119, 129, 43 L. ed. 345, 19 Sup. Ct. 235; People 17 Nat. Corp. Rep. 677, 5 Det. L. N., V. Horn Silver Mining Co., 105 N. Y. No. 41. 76, 6 N. Y. St. Rep. 495, 26 Wkly. " State v. Franklin County Sav. Dig. 158, 11 N. E. 155, aff'g 38 Hun, Bank & Trust Co., 74 Vt. 246, 52 276. Atl. 1069; Vt. St. 583, 584, as am'd '» People ex rel. Seth Thomas Clock by Laws 1896, No. 18, § 2. Co. V. Wemple, 133 N. Y. 323, 45 " Bank of Commerce v. New York, N. Y. St. Rep. 234, 31 N. E. 238, 2 Black (67 U. S.), 620, 17 L. ed. rev'g 42 N. Y. St. Rep. 60, 16 N. Y. 451. Supp. 602. See also People ex rel. '* 89 Ala. 338. Washington Mills Co. v. Roberts, 40 " Phoenix Carpet Co. v. State, 118 N. Y. Supp. 417, 8 App. Div. 201, Ala. 143, 151, 32 So. 627, per Brick- aff'd 151 N. Y. 619, 45 N. E. 1134. ell, C. J. 756 TAXATION OF FRANCHISES § 425 on its constitution and laws, a statute which imposes a fran- chise tax; and the tax is lawful7<^ So the tax imposed by the statutes of Massachusetts," requiring every telegraph com- pany owning a Une of telegraph within the State to pay to the state treasurer "a tax upon its corporate franchise at a valua- tion thereof equal to the aggregate value of the shares in its capital stock," deducting such portion of that valuation as is proportional to the length of its lines without the State, and deducting also an amount equal to the value of its real estate and machinery subject to local taxation within the State, is in effect a tax upon the corporation on account of property owned and used by it within the State; and is constitutional and valid, as applied to a telegraph company incorporated by another State, and which has accepted the rights conferred by Congress by § 5263 of the Revised Statutes 7« Again, an act of the legislature of Delaware, taxing railroad and canal com- panies, was passed on the 8th of April, 1869. The fourth section of the act provided that every company of the class designated should, in addition to other taxes, also pay to the treasurer of the State for its use, on the first day of July of each year thereafter, or within thirty days from such period, a tax of one-fourth of one per cent upon the actual cash value of every share of its capital stock; with a proviso that when the line of the railroad or canal belonging to a company liable to the tax lay partly in the State and partly in an adjoining State or States, the company should only be required to pay the tax on such number of the shares of its capital stock as would be in that proportion to the whole number of shares, which the length of the road or canal within the limits of the State should bear to the whole length of such road or canal. It was held, that the tax was not imposed uj^on the shares of the individual stockholders, or ui)on the property of the '"Hamilton Co. v. Massachusetts, 62S, 11 Sui). Ct. 889; Western Union 6 Wall. (73 U. S.) 632, 18 L. ed. 904. Telegniph Company v. Attorney " Pub. Stat., c. 13, §§ 40, 42. General of Massachusetts, 125 U. S. '« Massachusetts v. Western Union 530, 8 vSup. Ct. 961, 31 L. ed. 790, Telegraph Co., 141 U. S. 40, 35 L. ed. followed. 757 § 426 TAXATION OF FRANCHISES corporation, but was a tax upon the corporation itself, meas- ured by a percentage upon the cash value of a certain propor- tional part of the shares of its capital stock, — a rule which, though an arbitrary one, was declared approximately just in the case 7^ Where a gross earnings tax is imposed upon a railroad company in lieu of all other taxes except certain real estate, such tax includes a stock of groceries kept by the company to furnish supplies for a steamboat line operated by it .8° § 426. State Taxation— Franchise Assessments— Capital Stock — Constitutional Law— Remedy. — In order to bring taxation imposed by a State within the scope of the Four- teenth Amendment of the National Constitution, the case should be so clearly and palpably an illegal encroachment upon private rights as to leave no doubt that such taxation, by its necessary operation, is really spoliation under the guise of exerting the power to tax.^^ And the validity of a state tax upon corporations created under its laws or doing business within its territory, can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise.*^ The statute of New York of 1881,*^ imposing a tax upon the corporate franchise or business of every corporation, joint- stock company or association incorporated or organized under any law of the State or of any other State or country, to be computed by a percentage upon its whole capital stock, and to be ascertained in the manner provided by the act, when applied to a manufacturing corporation organized under the " Delaware Railroad Tax, 18 Wall. ^^ jjome Ins. Co. v. New York, 134 (85 U. S.) 206, 21 L. ed. 888. U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. 8" Pere Marquette R. Co. v. City 593, aff'g 92 N. Y. 328, which is also of Ludington (Mich.), 10 Det. Leg. aff'd by divided court in 119 U. S. N. 231, 95 N. W. 417; Comp. Laws 129, 30 L. ed. 350, 8 Sup. Ct. 1385, 1897, § 6277. restored to calendar 122 U. S. 636 " Henderson Bridge Co. v. Hen- (mem.), derson City, 173 U. S. 592, 43 L. ed. »' Act of May 26, 1881, c. 361. 823, 19 Sup. Ct. 553. 758 TAXATION OF FRANCHISES § 426 laws of Utah, and doing the greater part of its business out of the State of New York, and paying taxes in Ilhnois and Utah, but doing a small part of its business in the State of New York, does not tax persons or property not within the State; nor regulate interstate commerce; nor take private property without just compensation; nor deny to the corpora- tion the equal protection of the laws ; nor impose a tax beyond the constitutional power of the State; and the remedy of the corporation against hardship and injustice, if any has been suffered, must be sought in the legislature of the State .^'' So the tax law of that State of 1899,*^ imposing taxes on certain public franchises, is not repugnant to the equal protection, due process or impairment of obligation clauses of the Federal Constitution and of the Fourteenth Amendment thereto.*^ Again, the statutes of the same State providing that "Every corporation, joint-stock company or association whatever, now or hereafter incorporated, organized or formed under, by or pursuant to law in this State or in any other State or country and doing business in that State, except only savings banks and institutions for savings, life insurance companies, banks, foreign insurance companies, manufacturing or mining cor- porations or companies, wholly engaged in carrying on manu- facture or mining ores within this State, and agricultural and horticultural societies or associations, which exception, how- ever, shall not include gas companies, tmst companies, electric or steam heating, lighting and power companies, shall be liable to and shall pay a tax as a tax upon its franchise or business, into the state treasury annually, to be computed as follows:" and that "The amount of capital stock which shall be the basis for tax * * * in the case of every cor})oration, ^* Horn Silver Mining Co. v. New 25 Sup. Ct. 705. Proposition may, York, 143 U. S. 305, 36 L. ed. 164, however, be deemed limited in this 12 Sup. Ct. 403. decision to the franchises involved in " As amended May 26, 1899, c. 712, this case. As to Tax Law, see Cum- p. 1589. ming & Gilbert's Gen '1 Laws & Stat- "" Metropolitan St. Ry. Co. v. utcs of N. Y., Title "Taxation," for New York State Board of Tax Com- various amendments, missioncrs, 199 W S. 1, 50 L. ed. 65, 759 § 426 TAXATION OF FRANCHISES joint-stock company and association liable to taxation there- under shall be the amount of capital stock employed within this State," as construed by the highest court of that State, are not repugnant to the Constitution of the United States.*^ And as the tax law of 1899 of that State ** contains proper provisions for certiorari and review of the assessments, it does not deny to the holders of the franchises due process of law in the valuation and assessment of the franchises, because the tangible and intangible property of the corporation is valued as a totality or because it does not give sufficient notice.*^ The taxation of cars under the New York franchise tax law, belonging to a New York corporation, is not unconstitutional as depriving the owner of its property without due process of law because the cars are at times temporarily absent from the State — it appearing that no cars permanently without the State are taxed.^^ If a state statute rec|uires every corpora- tion, person or association operating a railroad within the State to pay an annual tax for the privilege of exercising its franchises therein, to be determined by the amount of its gross transportation receipts, and further provides that, when applied to a railroad lying partly within and partly without the State, or to one operated as a part of a line or system extending beyond the State, the tax shall be equal to the proportion of the gross receipts in the State, to be ascertained in the manner provided by the statute, it does not conflict with the Constitution of the United States ; and the tax thereby imposed upon a foreign corporation, operating a line of rail- way, partly within and partly without the State, is one within the power of the State to levy.^^ As, however, a State cannot «' New York v. Roberts, 171 U. S. 199 U. S. 48, 50 L. ed. 79, 25 Sup. Ct. 658, 19 Sup. Ct. 235, 43 L. ed. 345, 713. 5 Det. L. N., No. 41, 31 Chic. Leg. »« New York Central & H. R. Rd. News, 111, 119, 129, 17 Nat. Corp. Co. v. Miller, 202 U. S. 584, 50 L. Rep. 677. ed. — , 26 Sup. Ct. — . «8AsamendedMay26, 1899,0.712, "' Maine v. Grand Trunk Ry. P- 1589. Co., 142 U. S. 217, 35 L. ed. 994, 12 »« Brooklyn City Rd. Co. v. New Sup. Ct. 121, 163, 48 Am. & Eng. York State Board of Tax Commrs., R. Cas. 602, 11 Ry, & Corp. L. J. 52. 760 TAXATION OF FRANCHISES § 427 directly tax tangible property permanently outside the State and having no situs within the State, it cannot attain the same end by taxing the enhanced value of the capital stock of a corporation which arises from the value of the property bej'ond its jurisdiction. And the collection of a tax on a cor- poration on its capital stock based on a valuation which in- cludes property situated out of the State would amount to the taking of property without due process of law and can be re- strained by the Federal courts.^' § 427. Franchise Tax— Capital Stock— Gross Receipts — Additional Franchise — Interstate Commerce. — The statute of New York ^^ imposes a tax upon corporations for the privilege of exercising their corporate franchises or carrying on their corporate business within the State, and it is based upon the amount of capital stock which is employed within the State, and it is held to apply notwithstanding the capital stock is used in a business which is in the nature of commerce between States. Thus it is held that a foreign corporation doing business in New York, from which it negotiates sales of the products of mines situated in other States and collects the proceeds of the sales, is doing business in that State so as to subject it to a franchise tax within the intent of the statute; nor can it, in order to avoid taxation, successfully contend that it is wholly engaged in interstate commerce because the products sold by it must all be transported from a foreign State into the taxing State and other States where purchasers are found.'''* Another sec- Cited in McHenry v. Alford, 168 U. S. 38 L. ed. 773, 14 Sup. Ct. 865; Fick- 651, 670, 42 L. ed. 614, 18 Sup. Ct. len v. Shelby County, 145 U. S. 1, 242; Adams Express Co. v. Ohio, 165 23, 36 L. ed. 601, 12 Sup. Ct. 810. U. S. 194, 220, 17 Sup. Ct. 305, 41 "^ Delaware & L. W. Rd. Co. v. L. ed. 683; We.stem Union Teleg. Co. Penn.sylvania, 198 U. S. 341, 49 L. V. Taggart, 163 U. S. 1, 21, 16 Sup. ed. 1077, 25 Sup. Ct. 669. Ct. 1054,41 L. ed. 49; New York, L. "Laws 1896, chap. 908, §§181, E. & W. R. Co. V. Penn.sylvania, 158 182, as amended by Laws 1901, U. S. 431, 440, 39 L. ed. 1043, 15 chap. 558; since amended by Laws Sup. Ct. 896; Pittsburg, C. C. & St. 1906, p. 1195, chap. 474, and Laws L. R. Co. V. Backus, 154 U. S. 421, 1907, p. 1726, chap. 734. 431, 14 Sup. Ct. 1114, 38 L. ed. 1031; "^ People ex rel. Union Sulphur Co. A.shley v. Ryan, 153 U. S. 436, 446, v. Glynn, 125 App. Div. 328. See 761 § 427 TAXATION OF FRANCHISES tion of the tax law in the same State provides for an additional franchise tax on transportation and transmission corporations and associations, requiring every corporation and joint-stock association formed for steam surface railroad, canal steam- boat, ferry, express, navigation, pipe-line, transfer, baggage express, telegraph, telephone, palace car or sleeping car pur- poses, to pay, for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in the State, an annual excise tax or license fee equal to a certain proportionate part of a specified per centum upon its gross earnings within the State, which shall include its gross earnings from its- transportation or transmis- sion business originating and terminating within the State, but not including earnings derived from business of an inter- state character.^^ Under this section a terminal railroad com- pany operating a grain elevator and a freight warehouse, and a number of railroad tracks, which tracks were used to afford access to such elevator and warehouse by cars owned by other corporations, and whose business was entirely transacted within the State, is not subject to the additional franchise tax so imposed. As -the business of the corporation is connected with interstate commerce, its earnings are "earnings derived from business which is of an interstate character," within the meaning of the statutes which forbid the imposition of any tax upon the business of interstate commerce .^*^ So earnings de- Pennsylvania Rd. Co. V. Knight, 192 chise tax on waterworks companies, U. S. 21, 48 L. ed. 325, 24 Sup. Ct. gas companies, electric or steam 202; People ex rel. Burke v. Wells, heating, lighting and power com- 95 N. Y. Supp. 100, 107 App. Div. panics (since amended by Laws 1907, 15, aff'd 184 N. Y. 275, 77 N. E. 19. p. 1726, chap. 734). »5 N. Y. Tax Law; Laws 1896, "* People ex rel. Connecting Ter- chap. 908, § 184 (since amended by minal R. Co. v. Miller, 178 N. Y. 194, Laws 1907, p. 1726, chap. 734). 70 N. E. 472, rev'g 82 N. Y. Supp. This statute includes also all other 582, 84 App. Div. 174. As to fran- corporations not liable to taxes un- chise tax case is under Laws 1880, der § 185^ which provides for a fran- chap. 542, § 6; Laws 1881, chap. 361, chise tax on elevated or surface rail- Laws 1896, chap. 908, § 184; as to roads not operated by steam (as interstate commerce, see Laws 1894, amended by Laws 1906, chap. 474); chap. 562, § 11, Laws 1896, chap, and § 186, which provides for a fran- 908, § 184. 762 TAXATION OF FRANCHISES § 427 rived by a railroad company for the transportation of express freights, either shipped from counties in the State for dehvery out of the State, or from counties out of the State for dehvery within the State, are "earnings derived from business of an interstate character," and are therefore not taxable under this section .^^ Under the same section of the New York statute a foreign corporation engaged in the business of a common carrier outside of the State of New York, in carrying passen- gers to and from New York City, whose terminus in New Jersey is Jersey City, from which it conveys its New York passengers by ferry boats to various stations in New York City, and which maintains a cab service at one of its ferry stations, is taxable upon the capital employed in the maintenance of such cab service, since such service is not a part of or an incident to the interstate commerce of the railroad .^^ Again, where a state franchise tax is imposed on the gross receipts of fidelity and guaranty companies incorporated in the State and doing busi- ness therein, and also upon all corporations of like kind do- ing business in the State, it is held that interstate business is not included and the tax is limited to gross receipts on intrastate business.'*'' A state tax may be imposed upon re- ceipts for the mileage within the State, of a railroad cor- poration, incorporated under the state laws, on account of transportation done by it from one point within the State to another point within it, but passing during the transportation without the State and through part of another State and such tax is not a tax upon interstate commerce, and does not infringe the provisions of the Federal Constitution.^ " People ex rel. New York Central »' State v. United States Fidelity & H. R. Rd. Co. V. Miller, 88 N. Y. & Guaranty Co. of Bait. City, 93 Supp. 373, 94 App. Div. 587. Md. 314, 48 Atl. 918; Code, art. 81, ** People ex rel. Pennsylvania Ry. § 146, a.s am'd by Act 1896, c. 120. Co. V. Knight, 73 N. Y. Supp. 790, ' Lehigh Valley R. Co. v. Penn- 67 App. Div. 398, aff'd 171 N. Y. sylvania, 14.5 U. S. 192, 12 Sup. Ct. 354, 64 N. E. 152, and in Pennsyl- Rep. 806, 809, 36 L. cd. 672, 676, 45 vania Rd. Co. v. Knight, 192 U. S. Alb. L. J. 511, 11 Ry. & Corp. L. J. 21, 48 L. ed. 325, 24 Sup. Ct. 202; 302. Sec Galveston, H. & S. A. Ry. under N. Y. Tax Law; Laws 1896, Co. v. State (Tex. Civ. App.), 93 S. chap. 908, § 184. W. 464, reversed in State v. Gal- 763 § 428 TAXATION OF FRANCHISES § 428. Franchise Tax— Capital Stock— Who Liable— Gen- erally. — The New York statute imposing a franchise tax for the privilege of doing business or exercising a corporate franchise in the State ^ must be confined in its operation to domestic corporations. As to foreign corporations the tax is imposed solely on business, and two conditions are necessary: First, that the corporation shall be doing business within the State; and, second, employing capital within the State.^ It is also held in Kansas that the power to levy a tax on the capital stock of a corporation is limited to the State of its dom- icile even though it conducts its principal business in another State.'* Where the purpose of incorporation of a company in- cludes a general business in the purchase, sale and exchange of real estate, with power to erect and manage buildings, and to purchase and sell mortgages and the stocks and bonds of other corporations, such company is subject to a franchise tax in New York.^ So a domestic corporation which owns and operates an apartment house, situated in that State, is em- ploying its capital stock within the State so as to be taxable on its franchise.^ A foreign corporation doing business in the veston, H. & S. A. Ry. Co. (Tex., St. Rep. 859; People v. Equitable 1906), 97 S. W. 71, under Laws 1905, Trust Co. of New London, 96 N. Y. p. 336, c. 141. 387. ^Tax Law; Laws 1896, chap. 908, ^Foster-Cherry Commission Co. v. § 182, as am'd by Laws 1901, chap. Caskey, 66 Kan. 600, 72 Pac. 268. 558, and Laws 1906, p. 1195, chap. ^ People ex rel. Fourteenth St. 474, and since by Laws 1907, p. 1726, Realty Co. v. Kelsey, 97 N. Y. Supp. chap. 734. 197, 110 App. Div. 797, aff'd (mem.) 3 People ex rel. Chicago Junction 184 N. Y. 572, 77 N. E. 1194, under Rys. & Union Stockyards Co. v. N. Y. Tax Law; Laws 1896, p. 908, Roberts, 154 N. Y. 1, 47 N. E. 974, § 182. Examine People ex re!. Wall rev'g 90 Hun, 474, 70 N. Y. St. Rep. & Hanover St. Realty Co. v. Miller, 640, 35 N. Y. Supp. 968; People ex 181 N. Y. 328, 73 N. E. 1102, aff'g rel. Harlin & HoUingsworth Co. v. 98 App. Div. 584, 90 N. Y. Supp. Campbell, 139 N. Y. ^8, 54 N. Y. 755. Compare People ex rel. Ft. St. Rep. 451, 34 N. E. 753, rev'g George Realty Co. v. Miller, 179 N. Y. 49 N. Y. St. Rep. 917, 22 N. Y. Supp. 49, 71 N. E. 463, rev'g 90 App. Div. 1111; People ex rel. American Con- 588, 86 N. Y. Supp. 420. tracting & D. Co. v. Wemple, 129 * People ex rel. Hubert Apartment N. Y. 558, 42 N. Y. St. Rep. 400, 29 Assoc, v. Kelsey, 96 N. Y. Supp. 745, N. E. 812, aff'g 60 Hun, 225, 38 N. Y. 110 App. Div. 617, aff'd (mem.) 184 764 TAXATION OF FRANCHISES § 429 State of New York and acting as a holding corporation of the capital stock of constituent companies is subject to a franchise tax on money so invested, that being the purpose of the cor- poration. And although such corporation acts as the buying agent of constituent companies without charge, it cannot avoid taxation upon the theory that it is not doing business •for a profit and that its capital is not employed in New York, for its profit consists in dividends on the stock held by it.' A foreign corporation by becoming a special partner in New York also employs capital there.* Again, a race-track asso- ciation may be liable to a franchise tax where it exercises a special or exclusive privilege or franchise not allowed by law to natural persons.^ If a non-resident enters into the business of loaning money within a State and employs a local agent to conduct the business, the State may tax the capital em- ployed precisely as it taxes the capital of its own citizens, in like situation, and may assess the credits arising out of the business, and the foreigner cannot escape taxation upon his capital by temporarily removing from the State the evidences of credits which, under such circumstances, have a taxable situs in the State of their origin. Loans made by a New York life insurance company on its own policies in Louisiana are taxable in that State although the notes may be temporarily sent to the home office.^*' § 429. Franchise Tax— Capital Stock— Who not Liable — Generally. — Under the New York statute ^^ a corporation N. Y. 573, 77 N. E. 1194; under § 182 « People ex rel. Badische Anilin & of N. Y. Tax Law, cited in last note. Soda Fabrik v. Roberts, 152 N. Y. 59, "> People ex rel. Manhattan Silk Co. 46 N. E. 161, aff'g 11 App. Div. 310, 76 V. Miller, 125 App. Div. 296, citing N.Y. St. Rep. 502, 42 N.Y. Supp. 502. People ex rel. North American Co. v. ' Latonia Agricultural & S. Assoc. Miller, 90 App. Div. 560, aff'd 182 v. Donnelly, 20 Ky. L. Rep. 1891,50 N. Y. 521 ; under § 181 of N. Y. Tax S. W. 251. Law; Laws 1896, chap. 908, as '" Metropolitan Life Ins. Co. of amended by Laws 1901, chap. 558. New York v. City of New Orleans, Also under § 182, of N. Y. Tax Law, 205 U. S. 395, 51 L. ed. 853, 27 Sup. as amended by Laws 1901, chap. 558. Ct. 499, aff'g 115 La. 698. See Laws 1907, p. 1726, chap. 734; " Tax Law; Laws 1896, chap. 908, Laws 1906, p. 1195, chap. 474. § 182. 765 § 430 TAXATION OF FRANCHISES composed only of tenants in common of unimproved city real estate and organized solely for the purpose of taking title to the property so as to raise funds by mortgage thereon to pay past due mortgages, taxes and assessments on the property and hold the same until it can be sold for such a price that the owners thereof may obtain something for their interest therein, is not liable to the franchise tax imposed by the statute, since the stock of such corporation is not capital "employed within this State" within the meaning of the statute. ^2 When corporate real estate has been condemned and the receipts of the award distributed, after payment of the debts of the corporation, in a sum which exceeds the 'par value of the capital stock, and the surplus arises from the increment in the value of such real estate increased by interest upon the award, a franchise tax cannot be assessed upon such excess as a dividend. ^^ § 430. Taxation of Intangible Property of Interstate Bridge — Constitutional Law.— A railroad bridge across a navigable river forming the boundary line between two States is not, by reason of being an instrument of interstate com- merce, exempt from taxation by either State upon the part within it.^'* And the power of a State to tax an interstate bridge is not affected by the fact that it was erected under the authority or with the consent of Congress. So a municipal- ity, which has authority from the legislature so to do, may tax so much of the property of a bridge company owning such a bridge as is permanently between low-water mark on the shore of a State on the other side of a river and low-water mark on the shore of its own State, where it is settled that the boundary of its own State extends to low-water mark on " People ex rel. Ft. George Realty " People ex rel. Jerome Park Villa Co. V. Miller, 179 N. Y. 49, 71 N. E. Site & S. I. Co. v. Roberts, 58 N. Y. 463, rev'g 90 App. Div. .588, 86 N. Y. Supp. 2.54, 41 App. Div. 21. Supp. 420, Distgd. in People ex rel. "Pittsburg, C. C. & St. L. Ry. Wall & Hanover St. Realty Co. v. Co. v. Board of Public Works, West Miller, 181 N. Y. 328, 73 N. E. Virginia, 172 U. S. 32, 43 L. ed. 354, 1102. 19 Sup. Ct. 90. 766 TAXATION OF FRANCHISES §§ 431, 432 the other shore of the river on the Hne of the other State. And the taxation by the city as property of the bridge com- pany, of the bridge and its appurtenances within the fixed boundary of the city, between low-water mark on the two sides of a river, is not a taking of private property for pubhc use without just compensation, in violation of the Federal Constitution.^^ § 431. Taxation of Ferry Franchise— Legal Situs of Property— Constitutional Law.— A franchise granted by the proper authorities of Indiana, for maintaining a ferry across the Ohio River from the Indiana shore to the Kentucky shore, is an incorporeal hereditament derived from, and having its legal situs for purposes of taxation in Indiana. The fact that such franchise was granted to a Kentucky corporation, which held a Kentucky franchise to carry on the ferry business from the Kentucky shore to the Indiana shore (the jurisdiction of Kentucky extending only to low-water mark on the northern and western side of the Ohio River), does not bring the Indiana franchise within the jurisdiction of Kentucky for purposes of taxation. The taxation of the Indiana franchise by Kentucky would amount to a deprivation of property without due process of law, in violation of the provisions of the Fourteenth Amendment. Qurrre, whether such taxation would be such a burden on interstate commerce as to make it inconsistent with the power of Congress to regulate commerce among the several States, was not decided. ^^ § 432. Franchise Tax — Telegraph Companies— Constitu- tional Law.^' — A tax may be levied in the form of a franchise " Henderson Bridge Co. v. Hen- Q. R. Co. v. Cass County, 51 Neb. derson City, 173 U. S. 592, 43 L. ed. 369, 70 N. W. 955. See § 429, 823, 19 Sup. Ct. 553; 173 U. S. 624, herein. 43 L. ed. 835, 19 Sup. Ct. 545, 877; •« Louisville & Jeffersonville Ferry Henderson Bridge Co. v. Kentucky, Co. v. Kentucky, 188 U. S. 385, 23 166 r. S. 150, 41 L. ed. 953, 17 Sup. Sup. Ct. 463, 47 L. ed. 513. See Ct. 532. Examine Chicago, B. & Q. § 428, herein. See also as to situs R. Co. V. Nebra.ska City, 53 Neb. § 438, herein. 453, 73 N. W. 952; Chicago, B. & " See § 425, herein, as to additional 767 § 433 TAXATION OF FRANCHISES tax, though a privilege tax imposed in heu of all other taxes.^* But a state tax upon the franchise of a telegraph company covers all its intangible property, rather than its corporate franchises as technically defined.^^ A state statute, requiring a telegraph company to pay a tax upon its property within the State, valued at such a proportion of the whole value of its capital stock as the length of its lines within the State bears to the length of all its lines everywhere, deducting a sum equal to the value of its real estate and machinery sub- ject to local taxation within the State, is constitutional and valid, notwithstanding that nothing is in its terms directed to be deducted from the valuation, either for the value of its franchises from the United States, or for the value of its real estate and machinery situated and taxed in other States; unless there is something more showing that the system of taxation adopted is oppressive and unconstitutional.^" § 433. Franchise Tax — Tax on Gross Receipts— Street Railroads. — Under the Kentucky constitution an ad valorem tax may be imposed upon a street railway company's fran- chise.^^ So, a tax, for maintenance of parks, imposed upon franchise tax on transportation and Co. v. Missouri ex rel. Gottlieb, 190 transmission companies. U. S. 412, 23 Sup. Ct. 730, 47 L. ed. '* Postal Teleg. Cable Co. V. Adams, 1116; Western Union Teleg. Co. v. 155 U. S. 688, 39 L. ed. 311, 15 Sup. Massachusetts, 125 U. S. 530, 31 L. Ct. 268, 360, 5 Am. Elec. Cas. 636, ed. 790, 8 Sup. Ct. 961. 645. Tax on gross amount of the receipts ., '* Western Union Teleg. Co. v. o/ telegraph company derived from Norman (C. C), 77 Fed. 13. business done by it within the State, As to taxation of telegraph, etc., when a regulation of commerce and companies and their franchises, see unconstitutional, see Western Union Joyce on Electric Law (2d ed.), Teleg. Co. v. Alabama, 132 U. S. §§ 85 et seq., 911 et seq. 472, 10 Sup. Ct. 161, 33 L. ed. 409. 2« Western Union Teleg. Co. v. See State v. Fleming (Neb., 1903), Taggart,163U.S. 1,16 Sup. Ct. 1054, 97 N. W. 1063; Neb. Sess. Laws, 41 L. ed. 49. Cited in Adams Express c. 73, § 78. Co. V. Ohio, 166 U. S. 185, 223, 17 ^i g^^th Covington & C. St. R. Sup. Ct. 604, 41 L. ed. 965; s. c, Co. v. Bellevue, 20 Ky. L. Rep. 1184, 165 U. S. 194, 220, 248 (in dissent- 49 S. W. 23; Ky. Const., § 174. ing opinion), 41 L. ed. 683, 17 Sup. As to franchises appurtenant to Ct. 305. See Western Union Teleg. use of street railway property being 768 TAXATION OF FRANCHISES § 434 the gross receipts of a street railway company, is a franchise tax in consideration of the privilege granted to run cars upon the city streets subject to the control of the city. In case, however, of a railway not occupying any street within the city's control, but operating within extended limits of the city, and acquiring its right by purchase to use a turnpike upon which it operated a suburban railway, it is not liable to such tax.22 Street railways are not included in the term "railroads" under a constitutional requirement for the taxa- tion of the franchises, etc., of railroads, since there exists a difference in the nature of their franchises, especially where the value of the different portions of a street railway line varies in consequence of the varying density of population of the localities through which the line runs, and the constitu- tional requirement also makes the assessment at the actual value in proportion to the number of miles of railroad laid in the different counties, etc.'^ The difference between surface street railroads and subsurface street railroads is sufficient to justify classification in the mode and extent of taxation, and a tax otherwise legal on surface street railroad franchises does not deprive the owners thereof of the equal protection of the laws because subsurface street railroad franchises are not sub- jected to a similar tax.^^ § 434. Franchise Tax —Water Companies. — Where a stat- ute requires all property in the State to be taxed unless subject to separate tax, see Dallas Pac. 57.5. See Cedar Rapids & M. Consol. Electric Ry. Co. v. City of C. R. Co. v. Cedar Rapids, 106 Iowa, Dallas (Tex. Civ. App.), 65 S. W. 476, 76 N. W. 728. Compare IMox- 201, reversed in Dallas, City of, v. ham v. Consumers' E. L. & St. R. Dallas Consol. Electric Ry. Co. (Tex. Co., 36 Fla. 519, 18 So. 444, 51 Am. Sup.), 66 S. W. 835. St. Rep. 44, 29 L. R. A. 507; Phila- " Park Tax Case (Mayor & City delphia. City of, v. Philadelphia Council of Paltimore v. Baltimore, Traction Co., 206 Pa. 35, 55 Atl. Catonsville & I':ilicotts Mills Passgr. 762. Rd. Co.), 84 Md. 1, 35 Atl. 17, 33 '^ Metropolitan St. Ry. Co. v. L. R. A. 503. New York State Board of Commrs., " San Francisco & S. M. Electric 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. Ry. Co. V. Scott, 142 Cal. 222, 75 705. 49 769 § 435 TAXATION OF FRANCHISES exempt from taxation the franchises of a water company may be inckided.'^ So tangible and intangible property combined create a value constituting a basis for the taxation of a water- works company, and the franchise of such company is personal property and embraces all things of a proprietary nature con- nected there with. ^^ Where a city is so authorized by its charter it may levy a franchise tax on a waterworks company, the legislature having also required that such corporations should pay a local franchise tax to the municipality wherein a corporation exercised its franchise.''^ Under the Kentucky statutes ^* a part of the charter of cities of the third class, providing that " all real and personal estate within the city on the tenth day of January in the year in which the assessment shall be made, and of all corporations having their chief office or place of business in the city on said date, and the franchises of the same shall be subject to assessment and taxation for all local and municipal purposes," the franchises of a water company, which has its chief office and place of business in the city of Frankfort, and which, while furnishing water to some persons outside the city, has no exclusive privilege except as to persons within the city, is taxable by the city, although the pumping station, reservoirs, and a part of the mains are outside the city; and the State Board of Valuation has no power ^^ to apportion the valuation of the franchise between the city and the taxing districts outside the city, as the power of apportionment conferred by the statute ^^ applies only to the carriers named under another section thereof,^^ which fixes the basis of apportionment.^^ § 435. Franchise Tax — Gross Receipts — Dividends — Gas and Electric Light and Power Companies. — In New Jersey 25 Fond du Lac Water Co. v. 2530, 74 S. W. 685, rehearing denied Fond du Lac, 82 Wis. 322, 52 N. W. in 25 Ky. L. Rep. 434, 75 S. W. 439, 16 L. R. A. 581. 268. 2« Washburn, Town of, v. Wash- ^8 § 3374^ burn Waterworks Co. (Wis.), 98 N. =« Under Ky. Stat., §4077. W. 539; Rev. Stat., 1898, § 1037a. ^^ Ky. Stat., § 4077. ^'Owensboro Waterworks Co. v. ^^ Ky. Stat., §4081. City of Owensboro, 24 Ky. L. Rep. ^^ Board of Councilmen of City of 770 TAXATION OF FRANCHISES § 436 the franchise tax required to be paid by a gas and electric company, which exercises a municipal franchise, is based not merely upon the receipts from exercising such municipal fran- chise, but upon the actual gross receipts of its entire business.^^ But "dividends earned and declared" do not include profits or earnings used for betterment of a gas company's plant, although the percentage required to be paid for a franchise tax is based upon gross receipts and upon such dividends.^'* In Pennsylvania gross receipts for the purpose of taxation in- cludes receipts derived by an electric light company from furnishing power to other companies and from sales of electric supplies. ^^ A franchise tax may be levied upon an electric light and power company, which exercises its privilege to use city streets, even though the state constitution only authorizes the taxation of real and personal property and no statutory provision exists for ascertaining the value of franchises. ^^ It is also held, however, that where a statute only provides for a tax on the value of a gas company's property its franchise is not taxable. ^^ A gas and electric company formed by con- solidation and merger is liable to a state franchise tax in New Jersey even though some of the original companies had never exercised their corporate franchises. ^^ § 436. Franchise Tax — Insurance Companies. — IMicrc the obvious intent of a statute is to impose a tax upon cori)ora- tions, a large class of which it enumerates, exercising some special or exclusive privilege or franchise not allowed by law Frankfort v. Stone, 108 Ky. 400, 22 trie Light Co., 204 Pa. 249, 53 Atl. Ky. L. Rep. 25, 56 S. W. 679. 1096; Act of June 1, 1889, § 23. '' Paterson & P. Gas & Electric Co. ^^ Commercial Electric Light & P. V. State Boanl of Assessors (N. J. Co. v. Jud.son, 21 Wash. 49, 56 Pac. Sup.), 54 Atl. 246, aff'd 70 N. J. L. 829, 57 L. R. A. 78; Wash. Const., 825, 59 Atl. 1118; Act of March 23, art. 7, § 1; Laws 1897, p. 136. 1900. " Covington Gas Light Co. v. Cov- '* State, Camden Gas Light Co. v. ington, 13 Ky. L. Rep. 577, 17 S. W. State Comptroller, 54 N. J. L. 135, 808. 23 Atl. 122; N. J. Act of April 18, ^Paterson & P. Gas & Electric Co. 1884. V. State Board of Assessors (N. J. '5 Commonwealth v. Brush Eler- Sup.), 54 Atl. 246, aff'd 70 N. J. 771 § 436 TAXATION OF FRANCHISES to natural persons, an insurance company which exercises no such special or exclusive franchise is not within the statute even though in addition to the enumerated class, " every other like company" is specified as included. ^^ Foreign mutual life insurance companies are within a statute which requires that each and every insurance company doing business in the State be taxed upon the excess of premiums received over losses and ordinary expenses incurred within the State during the year.^ In New York the statute requires an annual state tax, for the privilege of exercising corporate franchises or for carrying on business in their organized capacity within that State, to be paid by insurance companies, said tax being fixed at a certain per centum on the gross amount of premiums received during the preceding year for business done at any time within the State/^ Under this section unearned premi- ums paid in advance but refunded upon the cancellation of policies are not to be included in the "gross amount of premiums received * * * fop business done." The sum paid out by an insurance company to other companies for reinsuring its own risks cannot be deducted from the gross amount of premiums received, since such sum is an expense of the business."*" The provisions of this statute authorizing an annual tax upon the gross amount of premiums received by a domestic insurance company are not retroactive, and do not impose a tax upon premiums derived from contracts made prior to the time the statute took effect, but upon future business only.^^ A foreign marine insurance company doing L. 825, 59 Atl. 1118; Act of March 23, 118; Laws 1905, chap. 94, since am'd 1900, § 4. by Laws 1907, p. 1726, chap. 734. ^' ^tna Life Ins. Co. v. Coulter, 25 " People ex rel. Continental Ins. Ky. L. Rep. 193, 74 S. W. 1050; Ky. Co. v. Miller, 177 N. Y. 515, 70 N. E. Stat., 1899, § 4077. 10, modifying 85 N. Y. Supp. 1142, ^0 Northwestern Mut. Life Ins. Co. 90 App. Div. 618. V. Lewis & Clarke County, 28 Mont. " People ex rel. Provident Sav- 484, 72 Pac. 982; Civ. Code, §§650- ings Life Assurance Soc. v. Miller, 681. 179 N. Y. 227, 71 N. E. 930, re- <• N. Y. Tax Law; Laws 1896, viewing 85 N. Y. Supp. 468, 88 chap. 908 § 187, as am'd by Laws App. Div. 218. Compare amendment 1897, chap. 494; Laws 1901, chap, of 1905. 772 TAXATION OF FRANCHISES § 437 business in that State must pay the annual tax of five-tenths of one per cent on the gross amount of premiums received for business generally within this State during each calendar year.^^ Such a company is not entitled to a deduction from the amount required to be paid by it to the superintendent of insurance under § 34 of the Insurance Law. This is so be- cause the amendment of 1901 provided that "the taxes im- posed by this section shall be in addition to all other fees, licenses or taxes imposed by this or any other law/^ Where a policy is cancelled and unearned premiums are returned to the insured the company is not required to include them in its return of gross receipts; the tax on such receipts is not in Heu of all other taxes/^ § 437. Franchise Tax — Guaranty or Security Company — Trust Company. — A franchise tax imposed upon a "guaranty or security" company, does not include an insurance com- pany.'*^ If, however, such corporation does a guaranty or security business it is liable to a franchise tax even though it is an insurance company in name.^ Under the New York statute every trust company incorporated, organized or founded under, by or pursuant to a law of that State, and any com- pany organized to do a trust company's business solely or in connection with any other business, under a general or special law of that State, is required to pay to the State an- nually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capac- ity, an annual tax equal to a certain specified per centum on the amount of its capital stock, surplus, and undivided profits.""* ** Imposed by the amendment of " .^Etna Life Ins. Co. v. Coulter, 25 1901 to the above section of the Ky. L. Rep. 193, 74 S. W. 1050; Ky. Tax Law. Stat., 1899, § 4077, construed in con- *^ People V. Thames & Mersey nection with § 723. Marine Ins. Co., 176 N. Y. 531, 68 *" Fidelity & Casualty Co. of N. Y. N. E. 888, aff'g 85 App. Div. 623, v. Coulter, 25 Ky. L. Rep. 200, 74 83 N. Y. Supp. 1113. S. W. 1053. « State V.Fleming (Neb., 1903), 97 " N. Y. Tax Law; Laws 1896, N. W. 1063; Neb. Sess. Laws, 1903, chap. 908, § 187a; added by Laws c. 73, § 58. 1901, chaps. 132, 535. 773 § 438 TAXATION OF FRANCHISES The tax imposed by this act upon trust companies was in- tended as a substitution as of the day of its passage, for all other taxes upon trust companies. The act operated to relieve a trust company of a tax levied upon it, under a city charter for the year 1901.^° So it is held that trust companies paying the tax required by this section are entitled to an exemption from local assessment and taxation of their per- sonal property .^^ And when a trust company has carried on business for less than the fiscal year or tax year, or for a fraction of a year, the tax imposed for the said privilege of exercising its corporate franchises in the State must be apportioned accordingly.^- Where a trust company leased, with an option to purchase, certain property owned by it, and agreed to pay all taxes upon the premises during the continuance of the lease, it was held that the provisions of this section requiring a payment of a tax of one per cent upon the capital stock, surplus and undivided profits of a trust company, and exempt- ing it from all other taxation, did not operate to relieve such company from the obligation of paying the taxes on the leased premises.^^ §438. Franchise Tax; Savings Banks.— The charter of a \/ bank is a franchise, which is not taxable, as such, if a price has been paid for it, which the legislature has accepted with a declaration that it is to be in lieu of all other taxation.^" Natureof tax so imposed, see §423, "Security Trust Co. v. Liberty herein. Building Co., 89 N. Y. Supp. 340, 96 50 Binghamton Trust Co. v. City App. Div. 436. of Binghamton, 76 N. Y. Supp. 517, ^^ Jefferson Bank v. Shelby, 1 72 App. Div. 341. Black (66 U. S.), 436, 17 L. ed. 173. ^' People ex rel. Poughkeepsie See Gordon v. Appeal Tax Court, 3 Trust Co. V. Lane, 83 N. Y. Supp. How. (44 U. S.) 133, 11 L. ed. 529. 606, 41 Misc. 1. Cited in State Bank of Ohio v. Knoop " People ex rel. Mutual Trust Co. (Piqua, Branch of the State, v. of Westchester County v. Miller, 177 Knoop), 16 How. (57 U. S.) 369, 386, N. Y. 51, 69 N. E. 124, rev'g 83 N. Y. 14 L. ed. 977. Supp. 185, 85 App. Div. 211. Com- Charter and franchise; to what ex- pare, however, People ex rel. Hans tent distinguished. See §§41-46, Rees' Sons v. Miller, 86 N. Y. Supp. herein. 193, 90 App. Div. 591. 774 TAXATION OF FRANCHISES § 438 In a Federal case it appeared that the legislature of Mary- land, in 1821, continued the charters of several banks to 1845, upon condition that they would make a road and pay a school tax. This would have exempted their franchise but not their property from taxation. But another clause in the law provided that upon any of the aforesaid banks accepting of, and complying with, the terms and conditions of the act, the faith of the State was pledged not to impose any further tax or burden upon them during the continuance of their charters under the act. This was held to be a contract relating to something beyond the franchise, and exempted the stock- holders from a tax levied upon them as individuals, according to the amount of their stock; but that the corporate property of the bank was separable from the franchise and could be taxed, unless there was a special agreement to the contrary.^^ Under the constitution and laws of Massachusetts, as inter- preted by its highest court, in two cases not involving any question under the Judiciary Act, and by long usage, a statute which enacts that every institution for saving incorporated under the laws of that commonwealth, shall pay to the com- monwealth "a tax on account of its depositors" of a certain percentage "on the amount of its deposits, to be assessed, one-half of said annual tax on the average amount of its deposits for the six months preceding the first of May, and the average amount of its deposits for the six months preceding the first of November," is to be regarded as a franchise tax, not as a tax on property, and is valid. Nor is there anything inconsistent with this view in the decisions of the Federal Supreme Court. •'"'^ Under a Maryland decision savings banks with capital stock subject to taxation, equally with those without capital stock, are within the intent of a statute im- posing a franchise tax on savings banks, institutions or cor- porations organized for the purpose of receiving deposits and " Gordon v. Appeal Tax Court, 3 •'' Provident Institution v. Massa- How. (44 U. S.) 133, 11 L. ed. 529. chusctts, 6 Wall. (73 U. S.) 611, 18 See as to last proposition in the text L. cd. 907. §§ 30 et seq., herein. 775 § 439 TAXATION OF FRANCHISES paying interest on the same.^^ The New York statute pro- vides for a franchise tax on savings banks for the privilege of exercising their corporate franchises or carrying on their business in their corporate or organized capacity. Such tax being an annual one equal to a certain per centum on the par value of the surplus or undivided earnings.^* § 439. Franchise Tax— National Banks.'^^— A State is wholly without power to levy any tax, either direct or indi- rect, upon national banks, their property, assets or franchises, except when permitted so to do by the legislation of Con- gress. Section 5219 of the Revised Statutes is the measure of the power of States to tax national banks, their property or their franchises, that power being confined to a taxation of the shares of stock in the names of the shareholders, and to an assessment of the, real estate of the bank. So where the tax complained of had been assessed on the franchise or in- tangible property of a corporation, it was not within the purview of the authority conferred by the act of Congress, and was, therefore, illegal. And the taxing law of a State, under the provisions of which the above tax had been imposed, was, therefore, held to be beyond the authority conferred by Congress on the States, and to be void for repugnancy to that act.^" Nor can taxes be lawfully imposed upon the fran- chises or intangible property of a national bank upon the ground that they may be regarded as the equivalent of a tax on the shares of stock in the names of the stockholders, and, therefore, such imposition of taxes does not violate the act ^' Fidelity Savings Bank v. State, sidered under the section herein, as 103 Md. 206, 63 Atl. 484; Code Pub. to basis of computation. Gen. Laws, 1888, art. 81, § 86. '" See § 443; also § 389, herein, as ^' N. Y. Tax Law; Laws 1896, to regulation of national banks, chap. 908, §1876; added by Laws "" Owensboro National Bank v. 1901, chap. 117, § 188, provides for Owensboro, 173 U. S. 664, 19 Sup. a tax upon foreign bankers. Ct. .537, 43 L. ed. 850. How tax is to be determined, Application of § 5219, noted in see People ex rel. Bank of Savings v. text. See Consolidated Nat. Bank v. Miller, 177 N. Y. 461, aff'g 82 N. Y. Pima County, 5 Ariz. 142, 48 Pac. Supp. 621, 84 App. Div. 168, con- 291. 776 TAXATION OF FRANCHISES § 440 of Congress in that respect; such contention is erroneous and will not be sustained. "^^ In the case of the Bank of the United States it was held that it could not be taxed by a State, and that any attempt on the part of its agents and officers, to enforce the collection of such tax against the property of the bank, could be restrained by injunction from the Circuit Court. ^' Nor can a State, within which a branch of such bank may be established, tax that branch without violating the Constitution.*^^ The right, however, of the States to tax the shares of the national banks has been reaffirmed by the Federal Supreme Court ; ^^ and a bill to restrain the collec- tion of a state tax upon the shares of a national bank is bad on demurrer, where it does not appear that there is any statu- tory discrimination against them, or that they, under any rule established by the assessing officers, are rated higher in pro- portion to their actual value than other moneyed capital.^^ A statute does not violate a state constitution where it does not impose a disproportionate and unequal tax upon national banks.^^ § 440. Capital Stock— Tangible and Intangible Property — Franchises — Situs of, for Taxation. — The capital stock of a corporation and the shares in a joint-stock company repre- sent not only its tangible property but also its intangible property, including therein all corporate franchises and all contracts, privileges and good will of the concern; and when, "First National Bank, Louisville, 14 Sup. Ct. 1168 (which is cited in V. Louisville, 174 U. S. 438, 43 L. ed. Aberdeen Bank v. Chehalis County, 1038, 19 Sup. Ct. 875. See also Third 166 U. S. 440, 446, 41 L. ed. 1069, 17 National Bank, Louisville, v. Stone, Sup. Ct. 629); Delaware Railroad Tax, 174 U. S. 432, 43 L. ed. 103.5, 19 Sup. 18 Wall. (85 U. S.) 206,230, 21 L. ed. Ct. 759. 888. See Merchants & Mfrs'. Bank "Osborn v. United States Bank, 9 v. Penn.sylvania, 167 U. S. 461, 42 L. Wheat. (22 r. S.) 738, 6 L. ed. 204. ed. 236, 17 Sup. Ct. 829. •^McCulloch v. Maryland, 4 "^ National Bank v. Kimball, 103 Wheat. (17 U. S.) 316, 4 L. ed. 579. U. S. 732, 26 L. ed. 469. ** National Bank v. Common- "" Bank of Redemption v. Boston, wealth, 9 Wall. (76 U. S.) 353, 19 L. 125 l'. S. 60, 3i L. ed. 689, 8 Sup. Ct. ed. 701. Cited in Van Slyke v. Wis- — ; Mass. Pub. Stats., chap. 13, §§ 8, consin, 154 U. S. 581, 20 L. ed. 240, 9, 10. 777 § 440 TAXATION OF FRANCHISES as in the case of an express company, the tangible property of the corporation is scattered through different States by means of which its business is transacted in each, the situs of this intangible property is not simply where its home office is, but is distributed wherever its tangible property is located and its work is done; and it is held that no fine-spun theories about situs should interfere to enable these large corpora- tions, whose business is of necessity carried on through many States, from bearing in each State such burden of taxation as a fair distribution of the actual value of their property among those States requires.^^ If a state constitution pro- vides that all property except that of railroads operated in more than one county shall be assessed in the county or dis- trict where located ^^ a gas and electric company's franchise to lay pipes or conduits, etc., for the purpose of supplying artificial light to the inhabitants of a city, must be assessed in the county wherein the municipality is located. ^^ It is held in Wisconsin that the legislature cannot arbitrarily and capriciously give property a situs for taxation. Tax burdens must be imposed on the State at large, the county at large, and on the smaller taxing districts at large, according as the purpose thereof is purely general or purely local to the par- ticular taxing district. The scope of the power of the legisla- ture to fix the situs of railway property for taxation has re- gard to the nature of property as personalty. The doctrine that the situs of personal property for taxation is the home of the corporation is the law only in the absence of a law fixing some situs within constitutional limitations. The limit of legislative power as to territory in fixing the situs of per- sonal property for taxation is not the taxing districts in which the visible part of the railroad and its office or offices are located. The peculiar nature of railway corporations as to '' Adams Express Co. v. Ohio, 166 Pac. 54. Examine San Joachin & K. U. S. 185, 41 L. ed. 965, 17 Sup. Ct. R. Canal & Irrig. Co. v. Merced 604. County (Cal. App., 1906), 84 Pac. 285; '^Cal. Const., art. 13, § 10. City & County of San Francisco v. «» Stockton Gas & Electric Co. v. Oakland Water Co. (Cal., 1906), 83 San Joachin County, 148 Cal. 313, 83 Pac. 61, under Pol. Code, § 3628. 778 TAXATION OF FRANCHISES § 440 their commanding position, the universahty and closeness of their touch with the everyday Hfe of the people, the mutual relations of dependence for well-being both as to persons and property, reaching the State at large, the needs of such cor- porations as to support and protection, the significant degree in which the administrative energy of all departments of the State is devoted to affairs concerning their regulation and well-being, and their public privileges springing from the whole people, warrant the exercise of legislative power, giving- to their property for the purposes of taxation a general situs, and applying thereto the average rate of taxation, whether regarded as having a situs throughout the State or one limited to the taxing districts touched by their tracks7^ It may also be stated in this connection that the Federal Supreme Court holds that the State of origin remains the permanent situs of personal property notwithstanding its occasional excursions to foreign parts, and a State may tax its own corporations for all their property in the State during the year even if every item should be taken into another State for a period and then brought backJ^ The same court also holds that neither the fiction that personal property follows the domicile of the owner, nor the doctrine that credits evidenced by notes have the situs of the latter, can be allowed to obscure the truth; and personal property may be taxed at its permanent abiding place although the domicile of the owner is elsewhere 7^ The sover- ™ Syllabus by Marshall, J., in (C. C. A.), 122 Fed. 787 (bank de- Chicago & Northwestern Ry. Co. v. posits). State, 128 Wis. 553, 108 N. W. 557. Arkansas: Harris Lumber Co. v. " New York Central & H. R. Rd. Grandstaff (Ark., 1906), 95 S. W. 772 Co. V. Miller, 202 U. S. 584, 50 L. cd. (personal property of company man- 1155, 26 Sup. Ct. — . ufacturing, selling, etc., lumber). "Metropolitan Life Ins. Co. of California: Mackay v. City & New York v. City of New Orleans, County of San Francisco, 128 Cal. 205 IT. S. 395, 51 L. ed. 853, 27 Sup. 678, 61 Pac. 382 (bonds of foreign Ct. 499, aff'g 115 La. 698. railroad company on deposit and As to nitus jar taxation of personal payable outside of State); P'air's Es- property and franchises, see generally tate. In re, 128 Cal. 607, 61 Pac. 184 the following rases: (l)onds of foreign railroad company United States: Pyle V. Brenncman operating entirely outside of State). 779 § 440 TAXATION OF FRANCHISES eign that creates a corporation has the incidental right to im- pose reasonable regulations concerning the ownership of stock Colorado: Hall v. American Re- wealth v. Northwestern Mut. Life frigerator Transit Co., 24 Colo. 291, Ins. Co., 32 Ky. L. Rep. 796, 107 51 Pac. 421 (refrigerator cars). N. W. 232 (choses in action); Lang- Connecticut: East Granby, Town don & Creasy Co. v. Trustees of of, V. Hartford Electric Light Co., 76 Owenton Common School Dist., 25 Conn. 169, 56 Atl. 514 (water power); Ky. L. Rep. 823, 76 S. W. 381 (fran- State V. Travellers' Ins. Co., 70 Conn, chise tax); Board Councilmen of City 590, 40 Atl. 465 (power of legisla- of Frankfort v. Stone, 22 Ky. L. Rep. ture to give shares of corporation a 502, 58 S. W. 373, denying rehearing, situs). 22 Ky. L. Rep. 25, 56 S. W. 679 Georgia: Georgia R. & Banking (franchise of corporation). Co. V. Wright, 124 Ga. 596, 53 S. 251 Louisiana: Liverpool & L. & G. (rule, as to situs of stock in foreign Ins. Co. v. Board of Assessors, 51 railroad corporation, changed). La. Ann. 1028, 25 So. 970, 45 L. R. A. Illinois: Scripps v. Board of Re- 524 (debt), view of Fulton County, 183 111. 278, Maine: Inhabitants of Farming- 55 N. E. 700 (credits). dale v. Berlin Mills Co., 93 Me. 333, Indiana: Buck v. Miller, 147 Ind. 45 Atl. 39 (personal property em- 586, 47 N. E. 8, 37 L. R. A. 387, 45 ployed in trade; logs); Union Water N. E. 647, 37 L. R. A. 384 (personal Power Co. v. Auburn, 90 Me. 71, 37 property used in business in State; Atl. 331, 37 L. R. A. 651 (water owner domiciled elsewhere; test of power). situs). Maryland: Baltimore, City of, v. Kansas: Board of Commrs. of Safe Deposit & Trust Co. of Bait. Johnson County v. Hewitt, 76 Kan. (Md.), 55 Atl. 316 (personal property, 816, 93 Pac. 181 (notes of resi- bonds, etc.; validity of statute); dent left for safekeeping in another Baldwin v. State, Hull, 89 Md. 587, State). 43 Atl. 857 (personal property; non- Kentucky: Ayer & Lord Tie Co. v. residents). Keown, 122 Ky. 580 (personal prop- Massachusetts: Lamson Consol. erty of residents and non-residents); Store-Service Co. v. Boston, 170 Ayer & Lord Tie Co. v. Keown, 29 Mass. 354, 49 N. E. 630 (personal Ky. L. Rep. 110, 400, 93 S. W. 588 property leased for profit by foreign (same point as last case); Ayer & corporation). Lord Tie Co. v. Keown, 27 Ky. L. Michigan: Portsmouth To^vnsh^p Rep. 541, 85 S. W. 726; Ayer & Lord v. Cranage S. S. Co., 148 Mich. 230, Tie Co. V. Keown, 26 Ky. L. Rep. 14 Det. Leg. N. 101, 111 N. W. 749 585, 85 S. W. 1096, rev'd in 202 U. S. (navigation company located in place 409, 50 L. ed. 1082, 26 Sup. Ct. 679 other than that specified in articles of (vessels owned by corporation dom- incorporation); Detroit, City of, v. iciled in Illinois, having acquired a Donovan (Mich.), 8 Det. Leg. N. 465, permanent situs for taxation in an- 86 N. W. 1032 (franchise of street other State, not subject to taxation railway). in Kentucky even though enrolled Minnesota: State v. Iverson, 97 in a port in that State); Common- Minn. 286, 106 N. W. 309 (personal 780 TAXATION OF FRANCHISES § 440 therein, and it is not an unreasonable regulation to establish the situs of stock, for purposes of taxation, at the principal property of logging railroad com- 47 Atl. 740 (personalty); Common- panies); State v. Red River Valley wealth v. Fall Brook R. Co., 188 Pa. Elevator Co., 69 Minn. 131, 72 N.W. 199, 41 Atl. 606 (capital stock of 60 (situs of personal property of cor- railroad company partly in other poration after appointment of re- States); Commonwealth v. Pennsyl- ceiver). vania Coal Co., 3 Dauph. Co. Rep. Missouri: State, Hopkins, v. 142, 9 Pa. Dist. Rep. 486 (coal mined Brown Tobacco Co., 140 Mo. 218, or purchased). 41 S. W. 776 (personalty; removal Texas: Missouri, K. & T. Ry. Co. of corporation from county). of Texas v. Shannon (Tex. Civ. App., New Jersey: American Mail 1906), 97 S. W. 527, aff'd 100 Tex. Steamship Co. v. Crowell (N. J., 379, 100 S. W. 138, 10 L. R. A. 1908), 68 Atl. 752 (vessels owned by (N. S.) 681 (intangible assets of rail- corporation); Crossley v. East Orange roads); State v. Austin & N. W. R. Township Committee, 62 N. J. L. Co. (Tex. Civ. App.), 60 S. W. 886, 583, 41 Atl. 712, 16 Bkg. L. J. 34 62 S. W. 1050 (tangible and intangi- (shares of capital stock of bank). ble property, franchises, etc., of rail- New York: People ex rel. Edison way company). Electric Light Co. v. Campbell, 138 Utah: Eureka Hill Mining Co. v. N. Y. 543, 43 N. E. 177 (situs of City of Eureka, 22 Utah, 447, 63 Pac. bonds of foreign corporations issued 654 (personalty; net proceeds of in payment of patent rights; fran- mine); Union Refrigerator Transit chise tax); Heerwagen v. Crosstown Co. v. Lynch, 18 Utah, 378, 55 Pac. St. Ry. Co., 86 N. Y. Supp. 218, 90 639, 13 Am. & Eng. R. Cas. (N. S.) App. Div. 275 (street railway com- 868, 48 L. R. A. 790 (railway cars); pany's franchise); People ex rel. Salt Lake County v. State Board of Hans Rees' Sons v. Miller, 86 N. Y. Equalization, 18 Utah, 172, 55 Pac. Supp. 193, 90 App. Div. 591 (fran- 378 (rolling stock of railroad), chise taxes); People ex rel. v. Barker, Virginia: Board of Supervisors of 83 N. Y. Supp. 33, 84 App. Div. 469 Elizabeth City County v. City of New- (taxation on capital; personalty; cor- port News, 106 Va. 764, 56 S. E. 80 poratc indebtedness). (rolling stock of electric railway North CaroUna: Winston, City of, taxed, where principal place of busi- v. Town of Salem, 131 N. C. 404, 42 ness located); Norfolk & W. R. Co. v. S. E. 889 (personal property; legis- Board of Public Works, 97 Va. 23, 1 lative power as to situs). Va. Sup. Ct. Rep. 203, 32 S. E. 779 Ohio: Cleveland Trust Co. v. Lan- (tugs and barges engaged in interstate dcr, 62 Ohio St. 266, 56 N. E. 1036 commerce); Union Bank v. Rich- (shares of national banks; non- mond, 94 Va. 316, 26 S. E. 821 , 6 Am. residents). & Eng. Corp. Cas. (N. S.) 581 (bank Oklahoma: Prairie Cattle Co. v. stock). Williamson, 5 Okla. 488, 49 Pac. 937 Wisconsin: Chicago & N. W. Ry. (personal property). Co. v. State, 128 Wis. 553, 108 N. W. Pennsylvania: Commonwealth v. 557 (personal property; limitation on Pennsylvania Coal Co., 197 Pa. 551, legiflative power to fix situs). 781 § 441 TAXATION OF FRANCHISES office of the corporation whether owned by residents or non- residents, and to compel the corporation to pay the tax for the stockholders, giving it a right of recovery therefor against the stockholders and a lien on the stock. If valid according to the laws of the State, such a regulation does not deprive the stockholder of his property without due process of law either because it is an exercise of the taxing power of the State over persons and things not within its jurisdiction, or because notice of the assessment is not given to each stockholder, provided that notice is given to the corporation, and the statute, either in terms or as construed by the state court, constituted the corporation the agent of the stockholders to receive notice and to represent them in proceedings for the correction of the assessments^ § 441. Franchise Tax — What Is Included as Capital Stock —Exempt Property.^'* — It is decided in New York that United States and other bonds, in the absence of proof that they were bought by a corporation with its surplus, should be treated as capital employed within the State, and as part of the basis upon which the franchise tax is to be computed. Stocks of other corporations held by a corporation sought to be taxed upon its franchise fall within the same rule as bonds. The fact that it not only owns the entire stock of another corpora- tion, but also acquired all its assets, property and privileges, except its corporate franchise and some non-assignable con- tracts, does not exempt such stock from the operation of the rule, upon the ground that the ownership of stock is merged in the ownership of the assets and privileges represented by it, and is, therefore, of no value, where the corporation has never been dissolved, retains its corporate franchise, and therefore remains a going concern.'^ It is also held in the " Corry v. Mayor and Council of '^ People ex rel. Commercial Cable Baltimore, 196 U. S. 466, 49 L. ed. Co. v. Morgan, 178 N. Y. 433, rev'g 556, 25 Sup. Ct. 297. 86 App. 577, 83 N. Y. Supp. 998. '* See §423, herein. Also §§ 446- Compare §441, herein. 451 as to basis of computation. 782 TAXATION OF FRANCHISES § 441 Federal Supreme Court that a tax which is imposed by a state statute upon "the corporate franchise or business" of all corporations incorporated under any law of the State or of any other State or country, and doing business within the State, and which is measured by the extent of the dividends of the corporation in the current year, is a tax upon the right or privilege to be a corporation and to do business within the State within a corporate capacity, and is not a tax upon the privilege or franchise which, when incorporated, the com- pany may exercise, and, being thus construed, its imposition upon the dividends of the company does not violate the pro- visions of the statute exempting bonds of the United States from taxation, 12 Stat. 346, c. 33, § 2, although a portion of the dividends may be derived from interest on capital in- vested in such bonds7^ So the entire rolling stock of a domestic railroad corporation is capital employed within the State, where the company has not shown that any portion thereof is used exclusively outside of the State 7^ Land partly im- proved, which is owned by a manufacturing corporation, but not purchased with its surplus, and a part of which produces an annual revenue, and a part no revenue and is held for sale as village lots, is not employed in manufacturing and must be considered as capital in fixing the amount of franchise tax payable by the corporation, even though assets are possessed by it in excess of its capital stock, and in an amount exceeding the value of such land 7* Good will is also taxable as capital; and copyrights granted by the United States are subject to the taxing power of the State 7*^ The fact that the capital of a domestic corporation is substantially all invested in letters '' Home Ins. Co. v. Now York, 134 Supp. 401, 75 App. Div. 1G9, modi- U. S. 594,33 L. 0(1. 1025, 10 Sup. Ct. ficd in 173 N. Y. 255, 65 N. E. 593, decided in 1889. See §423, 1102. herein. Compare §441, herein. " People ex rcl. Steinway & Sons v. " People ex rel. New York Cent. & Kelsey, 96 N. Y. Supp. 42, 108 App. H. R. R. Co. V. Miller, 84 N. Y. Supp. Div. 138. 1088, 89 App. Div. 127, aff'd (mem.) '"People, A. J. Johnson Co., v. 177 N. Y. 584, 69 N. E. 1129. Sec Roberts, 159 N. Y. 70, 53 N. E. 685, also People ex rel. New York Cent. & 45 L. R. A. 126, rev'g 54 N. Y. Supp. H. R. R. Co. V. Knight. 77 N. Y. 1 1 12, .35 App. Div. 624. 783 § 442 TAXATION OF FRANCHISES patent issued by the United States, which, under the Federal law, is exempt from taxation, does not prevent the imposition of a franchise tax thereon, for the reason that, although meas- ured by the value of the property, it is imposed upon the corporation for the privilege of carrying on business in the State. The same rule would apply if its capital were invested in United States bonds or copyrights, which are also exempt from taxation.*" So a patent may be considered as part of the capital and exempt where manufacturing is done in the State under letters patent.*^ Capital invested in New York by a foreign corporation maintaining an office there for the sale of products of mines from other States, the proceeds being collected there, is deemed capital stock for the purposes of taxation, although not part of the original capital stock, and it may be made the basis for determining the percentage of taxation.*' Where a franchise tax or annual license fee is imposed upon a corporation and graduated according to the amount of outstanding stock, such tax is held not to be a prop- erty tax, and that shares of a corporation organized in another State but located in the State imposing such tax were liable.*^ § 442. Franchise Tax — What Is not Included as Capital Stock.*^ — Under the New York statute*^ bills receivable are not capital employed within the State.*^ Nor is surplus of a foreign corporation which is merely invested in real estate in ^^ People ex rel. United States *^ People ex rel. Union Sulphur Co. Aluminum Printing Plate Co. v. v. Glynn, 125 App. Div. 328. Knight, 174 N. Y. 474, 67 N. E. 65, ^^ Rhode Island Hospital Trust rev'g 67 App. Div. 333, 73 N. Y. Co. v. Tax Assessors of Providence, Supp. 745. See also Home Ins. Co. v. 25 R. I. 355, 55 Atl. 877; Genl. Stat., New York, 134 U, S. 594, 33 L. ed. p. 3337, § 4; Genl. Laws, 1896, c. 45, 1025, 10 Sup. Ct. 593; People v. § 10. Home Ins. Co., 92 N. Y. 328; People «* See § 423, herein. Also §§ 446- ex rel. Electric Light Co. v. Campbell, 451 as to basis of computation. 138 N. Y. 543, 43 N. E. 177, rev'g 88 '^ Tax Law; Laws 1896, chap. 908, Hun, 530, 68 N. Y. St. Rep. 747, 34 § 182. N. Y. Supp. 713. ** People ex rel. Rees' Sons v. «' American Mutoscope Co. v. State Miller, 86 N. Y. Supp. 193, 90 App. Board of Assessors (N. J. Sup.), 56 Div. 591. Atl. 369. 784 TAXATION OF FRANCHISES § 443 New York taxable.*'^ Nor are surplus earnings or stocks and bonds purchased with surplus by a domestic corporation taxa- ble.^ Again, money invested by a domestic corporation in real estate not used by the corporation in its business or in any connected therewith, and upon which it pays a tax for general and local purposes, and money invested in it by non- negotiable municipal bonds, the rentals of the real estate and the interest on the bonds being used to increase the corpora- tion's annual income, are not part of the capital of the cor- poration "employed within" a State under a statute provid- ing for taxation on capital so employed. The capital intended by the enactment is that actually employed in the State and does not apply to that merely invested.^'' So stock of a for- eign corporation, accjuired by a domestic corporation in ex- change for patent rights, is not taxable to the domestic cor- poration.''" Nor does stock of a foreign corporation held by a domestic railroad corporation constitute a part of its capital employed within the State; nor are the amount of anticipated dividends, bills receivable for expenditures on leased lines, and the value of coal and supplies owned by the corporation without the State to be included.^^ And where a domestic corporation owns vessels plying between the port of Buffalo and other ports on the Great Lakes, all of which arc without the State, they do not constitute capital employed within the State within the statutory intent .*'- § 443. Exemptions— Tax Upon Banks in Which United "People ex rel. Singer Mfg. Co. v. rev'g 63 Hun, 44, 44 N. Y. St. Rep. Wemple, 150 N. Y. 40, 44 N. E. 787, 702, 18 N. Y. Supp. 511; People ex aff'g 78 Hun, 63, 60 N. Y. St. Rep. rel. Edison Electric Light Co. v. 662, 29 N. Y. Supp. 92. Wemple, 138 N. Y. 543. *" People ex rel. United Verdi Cop- °' People ex rel. New York Central per Co. V. Roberts, 156 N. Y. 585, & H. R. Rd. Co. v. Knight, 173 N. Y. rev'g 25 App. Div. 89. 255, 65 N. E. 1102, modifying 77 *' People ex rel. Union Ferry Co. V. N. Y. Supp. 401, 75 App. Div. Roberts, 72 N. Y. Supp. 950, 06 App. 169. Div. 157. '^ People ex rel. Lackawanna '"People ex rel. Edison Electric Transp. Co. v. Knight, 77 N. Y. Light Co. V. Wemple, 148 N. Y. 090, Supp. 398, 75 App. Div. 104. 50 785 § 443 TAXATION OF KllANCHISES States Securities Are Included.''"'— In a comparatively late decision in the Federal Supreme Court certain banking in- stitutions were incorporated under the state laws and upon each of them a tax was levied under the state law, which pro- vided that "shares of stock of state and savings banks and loan and trust companies shall be assessed to such banks and loan and trust companies and not to individual stock- holders." These banks loeing corj)orations of the State im- posing the tax, the State did not, as in the (;ase of national banks, require any authority from the United States. Its own governmental power was sufficient for the imposition of such taxes, assessed by such methods, and under such stand- ards of valuation as it might choose, provided the Federal Constitution shovdd not be violated, or some Federal law which by that Constitution is made supreme. The following were the points decided: (1) The Constitution has conferred upon the government power to borrow money on the credit of the United States, and that power cannot be burdened, impeded, or in any way affected by the action of any State. (2) The tax upon the property of a bank in which United States securities are included is beyond the power of the State, and is also within the prohibition of § 3701, Rev. Stat., and other acts of Congress. (3) While a tax on an individual in respect to his shares in a corporation is not a tax on the cor- poration, and the value of the shares may be assessed without regard to the fact that the assets of the corporation include government securities, if the tax is actually on the corpora- tion although nominally on the shares such securities may not be included in assessing the value of the shares for taxa- tion. (4) The substantial effect of the statute, i:>roviding as above stated, and providing that in fixing the value of the shares capital, surplus and undivided earnings shall be taken into account, as the law has been construed by the highest court of the State, is to tax the property of the bank and not the shares of stock, and an assessment which includes govern- »' See § 439, herein. 786 TAXATION OF FRANCHISES § 444 ment bonds owned by the bank in fixing the valuation of its shares is illegal and beyond the power of the State.*"* §444. Special Franchises— Taxation.— The right to exist as a railroad company, and to maintain and operate a rail- road, is a general franchise. A special franchise of a railroad is its right to construct, maintain and operate a railroad in pul)lic streets, highways or public places, and under the New York Tax Law ^■' it covers railroads over, upon or under such streets, etc., including the tangible property in use over, upon or under the highway. If the railway is located entirely in or under the streets, highways or public places, the special fran- chise consists of the physical property itself, including the right to use it; and a special franchise is only taxable as real estate."*^ Whatever doubt there may be as to the classifica- tion of special franchises to operate mains, etc., under public waters as real property the statute clearly includes under the term "special franchise"''^ such tangible property under public waters as is used in connection with the special fran- chise; and tangible property situated under public waters as a part or continuation of the system in the public streets operated by an electric light company under its special franchise and in connection therewith, there being no suggestion that the property under water is the subject of a separate and distinct franchise, cannot be validly assessed for taxation by the com- missioners of taxes of the city wherein such plant is located, but can only be taxed as a part of the special franchise upon an assessment made by the state board of tax commissioners as provided by the Tax Law."* The Lil eri )orough Rapid Transit ** Home Savings Bank v. Des Rapid Transit Co. v. Tax Coinmrs., Moines, 205 U. S. .503, .51 L. ed. — , 120 App. Div. 610, 611-013, from 27 Sup. Ct. — (another point was oj)inion of Kcllofig, J. (leeided in this case and is given "' Subdv. 3, § 2, of tlie Tax Law under §417, herein), under §1322 of N. Y., Laws 1896, chap. 908, of the Iowa code. as amended by Laws 1899, chap. *'^ Tax Law; Laws 1890, chap. 908, 712. 5 2, fiubd. 3, as amended by laws of "" People ex r(;l. Edison Illuminat- 1899, chap. 712. ing Co. v. Commissioner of Taxes, 58 " People ex rel. Interboroiigh Misc. 249. 787 § 445 TAXATION OF FRANCHISES Company, as lessee or operator of subway railroads owned by the city of New York, is not subject to a special franchise tax on account of the rights which it exercises under its contract with the city. If the city had been given power to operate the road no franchise tax could be charged against it, and the legislature has by express provision extended the exemption to the operator or lessee of the city. This express exemption from taxation of such operator or lessee of said subway rail- road on property, other than real property owned or employed by it in the construction or operation of the road, was not impaired by the subsequent enactment of that provision of the Tax Law declaring a special franchise to be real estate for the purposes of taxation, and it may well be questioned whether the legislature could destroy the exemption after a contract is made relying upon it. The courts, by a doubtful construction, will not impute to that body an intent to violate a promise by which the city was aided in obtaining a contractor on favorable terms. Where two acts are passed at the same session it is presumed that the legislature did not intend to repeal by implication the earlier act. And this applies to a claim that the Tax Law ^ repeals by implication that section of the Rapid Transit Law which contains the exemption from taxation.^ § 445. Franchises — Exemption From Tax on Capital Stock. — The New York Tax Law exempts certain corpora- tions from the payment of taxes on their capital stock. ^ Under »»Genl. Laws N. Y., chap. 24, chap. 558, and by Laws 1906, p. 1195, Laws 1896, chap. 908. chap. 474. Includes banks, savings ' People ex rel. Interborough Rapid banks, institutions for savings, title Transit Co. v. Tax Commrs., 126 guaranty, insurance or surety corpo- App. Div. 610. Sec. 35 of Rapid rations, trust companies organized Transit Law was amended May 19, under the laws of the State, com- by chap. 729, Laws N. Y., 1896, and panics authorized to do a trust com- the Tax Law was enacted May 27, at pany's business, solely or in connec- same session. tion with any other business, laundry ^ N. Y. Tax Law; Laws 1896, corporations, manufacturing corpora- chap. 908, § 183, as am'd by Laws tions, to the extent only of the capi^ 1897, chap. 785, by Laws 1901, tal actually employed in the State in 788 TAXATION OF FRANCHISES § 445 this statute manufacturing companies have been held to in- clude electricity,^ gas/ and putting together parts of a fountain pen by experts.^ So a corporation whose sole business is that of manufacturing, under a patent process, linings composed of lead, brick and cement for use in wood-pulp digesters is a manufacturing corporation within the intent of a statute exempting manufacturing corporations from a tax on capital stock to the extent only of the capital actually employed in the State in manufacturing and in the sale of the product of manufacturing, with the condition that such corporation shall not be exempted unless at least a specified certain per centum of its capital stock is invested in property in the State and used by it in its manufacturing business in the State. ^ Again, the making of a paving compound is the production of a new and distinct substance which constitutes manufacturing within the intent of the statute, but the preparation of a street for the laying of the paving compound and the placing of the compound thereon, is not in any sense a process of manu- factured Nor is collecting and preparing ice,* publishing a manufacturing, and in the sale of the ^ People ex rel. Edison Illuminating product of such manufacturing, min- Co. v. Wemple, 129 N. Y. 664, 42 N. ing corporations wholly engaged in Y. St. Rep. 280, 3 Silv. C. A. 653, 29 mining ores within the State, agri- N. E. 812, rev'g 61 Hun, 53, 39 N. Y. cultural or horticultural societies or St. Rep. 605, 15 N. Y. Supp. 711; associations, and corporations, joint- People ex rel. Brush Electric Mfg. Co. stock companies or associations, v. Wemple, 129 N. Y. 543, 42 N. Y. owning or operating elevated rail- St. Rep. 272, 29 N. E. 808, rev'g 39 roads or surface railroads not oper- N. Y. St. Rep. 614, 15 N. Y. Supp. ated by steam, or formed for supply- 718. ing water or gas for electric or steam * Nassau Gas Light Co. v. City of heating, lighting or power purposes Brooklyn, 89 N. Y. 409. and liable to a tax under certain other ^People ex rel. Waterman Co. v. specified sections of the tax law. Morgan, 48 App. Div. 395. Laundrying, manufacturing or min- " People ex rel. Digester Co. v. ing corporations are not exempted Knight, 73 N. Y. Supp. 743, 67 App. from the tax unless at least forty per Div. 365. centum of the capital stock of such ' People ex rel. Paving Co. v. corporation is invested in property in Knight, 90 N. Y. Supp. 537, 99 App. the State and used by it in laundry- Div. 02. ing, manufacturing or mining busi- " People v. Knickerbocker Ice Co., ness in the State. 99 N. Y. 181. 789 § 446 TAXATION OF FRANCHISES newspaper,^ or doing merely an incidental business in connec- tion with selling manufactured goods, included as manu- facturing.^" § 446. Franchise Tax— Capital Stock, etc.— Valuation- Basis of Computation. — The legislature has power to de- termine upon what basis the amount of a franchise tax upon banks may be ascertained.^^ Under the New York statute the basis of the franchise tax imposed upon corporations is the actual value of the capital employed "within" the State/^ and an assessment based upon the par value of the stock is erroneous. ^^ That section of the statute of that State ^'* re- lating to the imposition of a franchise tax on corporations, and providing that when a dividend of less than six per centum has been declared during the tax year, the tax shall be at the rate of one and one-half mills upon such portion of the capital stock, at par, as the amount of capital employed within the ' People ex rel. Jewelers' Pub. Co. V. Roberts, 155 N. Y. 1. "• People ex rel. Roebling's Sons Co. V. Wemple, 138 N. Y. 582, 53 N. Y. St. Rep. 297, 34 N. E. 386, aff'g 63 Hun, 452, 44 N. Y. St. Rep. 708, 18 N. Y. Supp. 504. " State V. Franklin County Sav. Bank & Trust Co., 74 Vt. 246, 52 Atl. 1069. •^ People ex rel. New York Cent. & H. R. R. Co. V. Knight, 77 N. Y. Supp. 401, 75 App. Div. 169, modified 173 N. Y. 255, 65 N. E. 1102; People ex rel. Wiebush & Hilger Co. v. Roberts, 154 N. Y. 101, 47 N. E. 980, aff'g 19 App. Div. 574, 46 N. Y. Supp. 570; People ex rel. Chicago Junction Rys. & Union Stock Yards Co. v. Rob- erts, 154 N. Y. 1, 47 N. E. 974, rev'g 90 Hun, 474, 70 N. Y. St. Rep. 640, 35 N. Y. Supp. 968; People ex rel. Edison Electric Light Co. v. Wemple, 148 N. Y. 690, rev'g 63 Hun, 444, 44 N. Y. St. Rep. 702, 18 N. Y. Supp. 790 511; People ex rel. Seth Thomas Clock Co. V. Wemple, 133 N. Y. 323, 31 N. E. 238, 45 N. Y. St. Rep. 234, rev'g 42 N. Y. St. Rep. 60, 16 N. Y. Supp. 602; People ex rel. American Contracting & D. Co. v. Wemple, 129 N. Y. 558, 42 N. Y. St. Rep. 400, 29 N. E. 812, aff'g 60 Hun, 225, 38 N. Y. St. Rep. 17, 14 N. Y. Supp. 859; People v. Horn Silver Mining Co., 105 N. Y. 76, 6 N. Y. St. Rep. 495, 26 Wkly. Dig. 158, 11 N. E. 155, aff'g 38 Hun, 276; People v. Equi- table Trust Co. of New London, 96 N. Y. 387. ^^ People ex rel. New York Central & H. R. R. Co. V. Knight, 173 N. Y. 255, 65 N. E. 1102, modifying 77 N. Y. Supp. 401, 75 App. Div. 169. See Bells Gap R. Co. v. Pennsylva- nia, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. ed. 892, noted under §446, herein. 1* Tax Law; Laws 1896, chap. 908, §182. TAXATION OF FRANCHISES § 446 State bears to the entire capital of the corporation, must be read in connection with the subsequent section/^ providing for the assessment at its actual cash value, and when so read establishes a mle for the computation of the amount of capital stock on which the assessment is to be made, but not for its valuation, that being determined by the provisions of the latter section, and, therefore, in such case an assessment upon its par value is erroneous. ^^ In determining the tax under the statute of that State as to savings banks, the comptroller must appraise the bonds and securities in which the surplus is in- vested at their market value, whenever such value is less than the face or par value thereof. This is in accordance with the provisions of the banking law,^^ authorizing a savings bank to accumulate a surplus not to exceed fifteen per cent of its de- posits, and providing that "in determining the per cent of surplus held by any savings bank its interest paying stocks and bonds shall not be estimated above their par value, or above their market value if below par." It was held that in imposing a tax upon the surplus of a savings bank the legis- lature must have intended the surplus provided for in these sections of the banking law.^* Where the comptroller is dis- satisfied with the appraisal of the value of the capital stock of a corporation, and elects to reject such appraisal and make one of his own, he is not limited by the average market price for which the stock sold during the year, except that he is re- quired to appraise it at not less than such average market price. ^'^ The franchise right of a corporation to conduct its business under its franchise is to be considered in determining " See § 190. chap. 117, imposing franchise tax on " People ex rcl. New York & East savings banks. River Ferry Co. v. Roberts, 168 N. Y. " People ex rel. Metropolitan Se- 14, 60 N. E. 1043, rev'g 35 App. Div. cvirity Co. v. Kelsey, 91 N. Y. Supp. 625, 54 N. Y. Supp. 1112. 711, 101 App. Div. 248; N. Y. Tax " See §§ 123, 124. Laws; Laws 1896, chap. 908, § 190, •' People ex rel. Bank of Savings V. as am'd by Laws 1906, chap. 474, Miller, 177 N. Y. 461, modifying 82 since am'd by Laws 1907, p. 1726, N. Y. Supp. 621, 84 App. Div. 168; chap. 734, providing that value of N. Y. Tax Law; Laws 1896, chap. 908, stock be apprai-sed. 51876, as am'd by Laws 1901, 791 § 446 TAXATION OF FRANCHISES the actual value of its "capital stock" for taxation.^" Surplus earnings are not within the statute of New York.^^ The tax is computed on the basis of dividends made upon the capital stock of the corporation, and not upon dividends earned within the State. ^' If more than six per cent dividends are paid by a corporation the tax is to be assessed upon the basis of the capital employed within the State.^^ It is not necessary in valuing a property as a totality for taxation to disintegrate the various elements which enter into it and ascribe to each its separate fraction of value. ^'* An imposition of a tax upon the capital of a foreign investment corporation employed within the State, computed upon the monthly bank balance ^^ People ex rel. Wiebusch & Hilger sidered in determining the actual Co. V. Roberts, 154 N. Y. 101, 107, value of the capital stock. Common- 108, 47 N. E. 480. See also New wealth v. Ontario, C. & S. R. Co., 188 York Central & Hudson R. Rd. Co. v. Pa. 205, 41 Atl. 607; Pa. Act June 8, Miller, 202 U. S. 584, 596, 50 L. ed. 1891, P. L. 229. — , 26 Sup. Ct. — ; Henderson Bridge Earning capacity of franchise. See Co. V. Commonwealth, 99 Ky. 623, 17 Rocheblave Market Co. v. City of Ky. L. Rep. 389, 29 L. R. A. 73, 31 New Orleans (La.), 34 So. 665, con- S. W. 486, aff'd in 166 U. S. 150, 17 sidered under § 447, herein. Sup. Ct. 532, 41 L. ed. 953; Hender- 2' People ex rel. Steinway & Sons son Bridge Co. v. Negley, Sheriff, 23 v. Kelsey, 96 N. Y. Supp. 42, 108 Ky. L. Rep. 746; People ex rel. Com- App. Div. 138; Tax Laws; Laws mercial Cable Co. v. Morgan, 178 1896, chap. 908, § 182. N. Y. 433, 70 N. E. 967, rev'g 83 "gome Ins. Co. v. People, 134 N. Y. Supp. 998, 86 App. Div. 577; U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Williams v. Western Union Tel eg. 593; People ex rel. New England Co., 48 N. Y. Super. Ct. (16 Jones & Dressed Meat & Wool Co. v. Roberts, S.) 349, 368, rev'd 93 N. Y. 162; Peo- 155 N. Y. 408, 415; People v. Horn pie ex rel. Rochester Ry. Co. V. Pond, Silver Mining Co., 105 N. Y. 76, 6 57N.Y. Supp. 490, 493, 37 App. Div. N. Y. St. Rep. 495, 26 Wkly. Dig. 330. Compare People ex rel. Man- 158, 11 N. E. 155, aff'g 38 Hun, 276; hattan Ry. Co. v. Barker, 146 N.. Y. People v. Equitable Trust Co., 96 304, 40 N. E. 996, 165 N. Y. 305, 310, N. Y. 387. 317, 324, 340, 59 N. E. 137, 151, 23 People ex rel. Commercial Cable cited in People ex rel. Metropolitan Co. v. Morgan, 178 N. Y. 433, rev'g St. Ry. Co. V. Tax Commissioners, 83 N. Y. Supp. 998, 86 App. Div. 174 N. Y. 417, 436, 67 N. E. 169; 577. People ex rel. Manhattan Ry. Co. v. " Brooklyn City Rd. Co. v. New Barker, 152 N. Y. 417, 439, 452, 46 York State Board of Tax Commrs., N. E. 875. 199 U. S. 48, 50 L. ed. 79, 25 Sup. Ct. Value of franchise should be con- 713. 792 TAXATION OF FRANCHISES § 446 carried in the State, and the amount of stocks, bonds and other securities held in the State, and the average amount of bills and accounts receivable within the State has been sustained.'^ Where a real estate corporation is liable upon its capital stock employed within the State but had only exercised its corporate franchises five and one-half months of the year for which it was taxed, the tax should be apportioned for such time, and should not be levied' for the whole year.^^ If the amount varies throughout the year the average of capital should be taken. ^^ The good will of a corporation engaged in importing the prod- ucts of foreign manufacturers is an asset to be considered in fixing the amount of the capital employed by the corporation within the State. In fixing the amount of such capital the same proportion of the value of the entire good will of the corporation should be taken as the amount of the tangible capital employed within the State bears to the entire amount of tangible capital employed both without and within the State.^* In determining the value of the stock of an apart- ment house corporation, taxable on its franchise, the real rental value of the apartment may be considered, although such apartments are leased to stockholders in the company at a rate below the rental value, in lieu of dividends. ^^ The value of a trade-mark may also be taken into consideration in estimating the value of capital stock.^'' 2* People ex rel. North American Y. 574, 76 N. E. 1105. See People Co. V. Miller, 86 N. Y. Supp. 286, 90 ex rel. A. J. Johnson Co. v. Roberts, App. Div. 560, aff'd (mem.) 182 N. Y. 159 N. Y. 70, rev'g 35 App. Div. 624; 521. People ex rel. Hans Rees' Sons v. " People ex rel. Ft. George Realty Miller, 86 N. Y. Supp. 193, 90 App. Co. V. Miller, 179 N. Y. 526, 71 N. E. Div. 591. 463, rev'g 86 N. Y. Supp. 420, 90 App. ^ People ex rel. Hubert Apartment Div. 588. Assoc, v. Kelsey, 96 N. Y. Supp. 745, "People ex rel. Brooklyn Rapid 110 App. Div. 617, aff'd (mem.) 184 Tran.sit Co. v. Morgan, 57 App. Div. N. Y. 573, 77 N. E. 1194. 335, 68 N. Y. Supp. 21 , aff'd (mem.) 3° People ex rel. Spenccrian Pen Co. 168N. Y. 672. v. Kelsey, 93 N. Y. Supp. 971, 105 *« People ex rel. Koechl & Co. v. App. Div. 132, aff'd (mem.) 185 N. Y. Morgan, 88 N. Y. Supp. 1066, 96 546. App. Div. 110, aff'd (mom.) 183 N. 793 § 447 TAXATION OF FRANCHISES § 447. Franchise Tax— Capital Stock, etc.— Valuation- Basis of Computation Continued.— In a case in the Federal Supreme Court where a statute of IlHnois was before the court it was held that the capital stock, franchise, and all the real and personal property of corporations, are justly liable to taxation ; and a rule which ascertains the value of all this, by ascertaining the cash value of the funded debt and of the shares of the capital stock as the basis of assessment, is prob- ably as fair as any other. Deducting from this the assessed value of all the tangible, real and personal property, which is also taxed, leaves the real value of the capital stock and fran- chise subject to taxation as justly as any other mode, all modes being more or less imperfect. ^'^ In another case in the same court where a section of the Iowa Code was under considera- tion ^' it was decided that while the tax on an individual in respect to his shares in a corporation is not a tax on the corpo- ration, and the value of the shares may be assessed without regard to the fact that the assets of the corporation include government securities, if the tax is actually on the corpora- tion although nominally on the shares such securities may not be included in assessing the value of the shares for taxa- tion.^^ In Kentucky, in order to ascertain the value of the franchise of a foreign corporation for taxation, it is held that the value of the capital stock being arrived at and the assessed value of tangible property deducted, the remainder constitutes the value of the franchise tax subject to taxation; three things are to be done under the statute,^" as follows: First. The value of the entire capital stock is to be fixed by the board of valuation and assessment. Second. The board must then ascertain the gross receipts of the corporation in that State and the entire gross receipts from every source in- cluding that State. Third. The board should calculate the proportion which the gross receipts in that State bear to the 3' state Railroad Tax Cases, 92 Moines, 205 U. S. 503, 51 L. ed. — , U. S. 575, 23 L. ed. 663. 27 Sup. Ct. — . " Code Iowa, § 1322. " Ky. Stat., § 4080. " Home Savings Bank v. Des 794 TAXATION OF FRANCHISES § 447 entire gross receipts of the taxed corporation, and that pro- portion of the vahie of the entire capital stock, less the assessed value of the tangible property in that State, will constitute the correct value of the corporate franchise subject to taxation there for state, county and municipal purposes.^^ The value of a franchise is not dependent in any sense upon the amount which is expended in creating it. The payment of any sum of money for the purpose of perfecting its organization or putting the company into legal shape to do business cannot be re- garded as a taxable asset in the hands of the company, or as giving to the company so organized any greater value than if its organization had been perfected without incurring any expense; nor is the value of a franchise enhanced because the company is required to pay annually a license to the State or to a foreign State to continue its corporate existence. ^*^ In the case of an interstate bridge the franchise valuation for taxa- tion in that State may be ascertained by determining what per cent of the length of such bridge is within the taxing State, and then taking the same per cent of the total value of stock and bonded indebtedness, the assessed valuation of the tangi- ble property in that State should be deducted therefrom." In a case in the United States Supreme Court it appeared that the Henderson Bridge Com[)any was a corporation created by the commonwealth of Kentucky for the purpose of erecting and operating a railroad bridge, with its approaches, over the Ohio River between the city of Henderson, in Kentucky, and the Indiana shore. It owned 9.4G miles of railroad connections in Indiana, which property was assessed for taxation in that State, at $027,000. The length of the bridge in the two States, measured by feet, was one-third in Indiana and two-thirds in Kentucky. The tangible property of the company was assessed " Hager, etc., V. American Surety franchise might be materially les- Co., 28 Ky. L. Rep. 782, 90 S. W. 550. sened l)ccau.se of the expenditure of " Commonwealth, By, etc., v. Led- a large sum of money in creating it or man, 32 Ky. L. Rep. 452, 455, 106 in perfecting its organization." S. W. 247. But the court, per Las- " Commonwealth v. Covington & Bing, J., says: "On the other hand, C. Bridge Co., 24 Ky. L. Rep. 1177, we can readily sec how the value of a 70 S. W. 849. 795 § 448 TAXATION OF FRANCHISES in Henderson County, Kentucky, at $649,735.54. From the evidence before them the Board of Valuation and Assessment placed the value of the company's entire property at $2,900,000, and deducted therefor $027,660 for the tangible property as- sessed in Indiana, which left $2,272,340, of which two-thirds, or $1,514,893, was held to be the entire value of the property in Kentucky. From this, $649,735.54, the value of the tangible property in Henderson County, was deducted, and the remain- der, $865,157.46, was fixed by the board as the value of the company's franchise. From the total value, $1,385,107 was deducted for the tangible and intangible property in Indiana, and the taxes in Kentucky were levied on $1,514,893 of tangi- ble and intangible property in that State. The company paid the tax on the tangible property ($2,762.08) and refused to pay the tax on the intangible property ($3,675.91). This ac- tion was brought to recover it. The Court of Appeals held that the commonwealth was entitled to recover it. It was held by the Supreme Court that the company was chartered by the State of Kentucky to build and operate a bridge and the State could properly include the franchises it had granted in the valuation of the company's property for taxation.^* In Louisiana, in determining the value of street railway franchises for the purposes of taxation, reference should be had to ele- ments bearing directly upon said value other than the earning capacity as a basis. ^^ But it is also held in that State that the earning capacity of a franchise should be taken into con- sideration in determining its value.^° § 448. Franchise Tax— Capital Stock, etc.— Valuation — Basis of Computation Continued. — In a case in Maine, where the statute ^^ provided for an excise tax upon a railroad based upon the average gross transportation receipts per mile 38 Henderson Bridge Co. v. Ken- 90; La. Const., art. 203; Acts 1890, tucky, 166 U. S. 150, 41 L. ed. 666, §§ 1, 28. 17 Sup. Ct. 305. *° Rocheblave Market Co. v. City 5» St. Charles St. R. Co. v. Board of of New Orleans, 34 So. 665. Assessors, 51 La. Ann. 458, 25 So. ^' § 42, chap. 6, Rev. Stat., as am'd by chap. 145, Pub. Laws 1901. 796 TAXATION OF. FRANCHISES § 448 of the railroad operated, it is held that the mileage basis of apportionment in taxing railroads and other public service corporations is eminently just, but that there are exceptional cases where deductions should be made to prevent manifest inequality or value per mile; also, that a railroad may be in a legal sense considered a unit capable of proportionate sub- divisions by miles, but where it is especially chartered to own and operate, in connection with its transportation business, lines of steamboats across navigable rivers beyond its termini, the length of such lines should be excluded from the computa- tion in determining the franchise tax.'*' Under a Nebraska decision the value of the tangible property of an express, telephone or telegraph company, apart from its gross receipts for the year prior to the time of the assessment and its fran- chise or right to carry on its business, does not furnish the true value of its property for taxation. Such value should be ascer- tained from a consideration of all of the aforesaid items taken together and by treating the corporation as a growing con- cern. ''^ So in assessing the value of railroad and telegraph property all the elements which enhance its value should be considered, whether such elements consist of tangible or in- tangible property, and the valuation should be so made as to comply with the constitutional rule of uniformity.'*^ Under a New Jersey statute the amount of a tax to be levied is two per centum of the company's gross annual receipts from all business, and not merely two per centum of its receipts from the exercise of municipal franchises; and a company which constitutes a consolidation and merger of several corpora- tions and continues to exercise their franchises is subject to the taxation of its franchises.''^ In assessing the value of the capital stock of a corporation of Pennsylvania under the statute of that State,''® coal which is owned by the; corpora- *' State V. Canadian Pacific liy. *'^ Peterson & Passaic Gas & EIcc. Co., 100 Me. 202, GO Atl. 901. Co. v. State Board of Assessors, 69 *'Nebra,ska Teleg. Co. v. Hall N. J. L. 116, 54 Atl. 246, 8 Am. Elec. County (Neb., 1906), 106 N. W. 471. Cas. 403, aff'd 70 N. J. L. 825, 59 ** State V. Savage (Neb.), 91 N. W. Atl. 1118. 716. "Act June 8, 1891. 797 § 448 TAXATION OF FRANCHISES tion, but at the time of the assessment is situated in another State and is not to be returned to Pennsylvania, should not be included. The same rule that requires the exclusion from the assessment of valuation of capital stock of tangible per- sonal property permanently situated outside of the State applies to property sent outside of the State to be sold and which is actually out of the State when the assessment is made. And while an appraisement of value is in general a decision on a question of fact and final, where it is arrived at by including property not within the jurisdiction of the State, it is absolutely illegal as made without jurisdiction.''^ Again, a provision in a statute of that State for an assessment upon the nominal or face value of bonds, instead of upon their actual value, was held to be a part of the state system of taxa- tion, authorized by its constitution and laws, and, therefore, not a violation of any provision of the Federal Constitution.^* In Wisconsin the property of a public service corporation is to be valued for taxation as a unit, the franchise element and tangible elements, whether in land or movables, being regarded as inseparable parts of one thing in which the former so far predominates as to stamp all with the impress of personal property. In assessing railway property for taxation, the assessing agency is not concerned with physical value except as evidence of physical conditions; nor specially concerned with franchise value. All is to be valued as a unit, inseparable for the purpose of valuing any one element or determining the value, in the whole, by adding together the separate values of elements. The rule that property of a railway corporation, for the purposes of direct taxation, must be valued as a unit, reasonably demands that such value be treated as a unit, and, to the end that the rule of taxation may be uniform, that the average rate of taxation on general property throughout the taxing districts which, in any reasonable view, are entitled to participate in taxing such property, be apphed thereto, and *'' Delaware, L. & W. Rd. Co. v. " Bell's Gap R. Co. v. Pennsyl- Pennsylvania, 198 U. S. 341, 49 L. vania, 134 U. S. 232, 10 Sup. Ct. 533, ed. 1077, 25 Sup. Ct. 679. 33 L. ed. 892. See § 444, herein. 798 TAXATION OF FRANCHISES § 448 the avails be treated as belonging to the State for public pur- poses, on the theory of a constructive accounting between it and such taxing districts.'*^ So under a Federal decision the property of corporations engaged in interstate commerce, situated in the several States through which their lines or business extends, may be valued as a unit for the purposes of taxation, taking into consideration the uses to which it is put and all the elements making up aggregate value; and a pro- portion of the whole fairly and properly ascertained may be taxed by the particular State, without violating any Federal restriction.^^ Again, in estimating, for purposes of taxation, the value of the property of a telegraph company situate within a State, it may be regarded not abstractly or strictly locally, but as a part of a system operated in other States; and the taxing State is not precluded from taxing the property because it did not create the company or confer a franchise upon it, or because the company derived rights or privileges under the act of Congress of 1866, or because it is engaged in interstate commerce. ^^ ^' Chicago & Northwestern Ry. Co. Iowa: Dubuque v. Illinois Cent. V. State, 128 Wis. 553, 108 N. W. 557, R. Co., 39 Iowa, 56. citing to the point that the property Kansas : Missouri River, Ft. S. & of a railway corporation "be assessed G. R. Co. v. Morris, 7 Kan. 210; Mis- as a unit; the physical things being souri, K. & T. R. Co. v. Board of regarded as merged in that produced Commrs., 9 Kan. App. 545, 59 Pac. by union with the franchi.se element: 383. the one of primary importance" Missouri: State ex rel. K. C, St. J. (Id. p. 6G3) the following cases: & C. B. R. Co. v. Severance, 55 Mo. United States: Columbus South- 378. em Ry. Co. v. Wright, 151 U. S. 470, Tennessee: Franklin County v. 14 Sup. Ct. 396, 38 L. ed. 238; State Na.shvillo, C. & St. L. R. Co., 12 Lea Railroad Tax Cases, 92 U. S. 575, (80 Tenn.), 521. 607, 23 L. ed. 663. Virginia: Shenandoah Valley R. Colorado: Ames v. People, 26 Colo. Co. v. Clarke County, 78 Va. 269. 83, 50 Pac. 656; People ex rel. Iron See Union Pacific Ry. Co. v. Chey- M. Co. v. Henderson, 12 Colo. 369, enne, 113 U. S. 516, 28 L. ed. 1098, 21 Pac. 144; Carlisle v. Pullman P. 5 Sup. Ct. 601. C. Co.. 8 Colo. 320, 7 Pac. 164, 54 " Adams Express Co. v. Oliio, 65 Am. Rep. 553. U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Illinois: Chicago & A. R. Co. v. 305. People, 129 111. 571, 22 N. E. 864, 25 ''' Western Union Tel. Co. v. Mis- N. E. 5. souri ex rel. Gottlieb, 190 U. S. 799 § 449 TAXATION OF FRANCHISES § 449. Franchise Tax — Capital Stock, etc. — ^Valuation — Basis of Computation — Deductions. — A deduction from the capital stock should be made of the amount of corporate funds invested in shares of other corporations which pay taxes on their capital stock.^^ Capital stock should be assessed at its market value subject to a deduction of such amount of the capital as is invested in realty. Such amount to bear the same proportion to the market value as the entire investment sustains to the net assets.^^ Where a foreign corporation doing business in New York is acting as a holding corporation of the capital stock of constituent companies and its indebted- ness is incurred generally in its business and not in respect to any particular asset which is within the State, it is not en- titled, on the assessment of a franchise tax, to have its in- debtedness within the State deducted from the capital which is held to be employed within the State, but the indebtedness should be deducted from the sum of the assets of the corpora- tion wherever found, and such amount offset against the value of the assets within the State as will be proportionate.^^ A railroad company is not entitled to be credited with the average amount of its rolling stock employed during the year outside of the State, but only with such amount of its rolling stock as was exclusively and continuously used outside of the State during that period.^^ A domestic corporation is not entitled 412, 23 Sup. Ct. 730, 47 L. ed. that is, is incurred generally in the 1116. business, and was not incurred in re- " Commonwealth v. People's Trac- spect of any particular asset which tion Co., 183 Pa. 405, 39 Atl. 42. is within the State, there is no reason " Batterson, In re, 72 Conn. 374, why it should not be deducted from 44 Atl. 546. the sum of the assets of the company ^* People ex rel. Manhattan Silk wheresoever they may be found, and Co. V. Miller, 125 App. Div. 296. an amount offset against the value "It may be that there are cases where of the assets within this State as will the indebtedness within the State be proportionate. Such seems to should be offset against capital em- have been the rule of this department ployed within that State. Those are in People ex rel. Rees' Sons v. Miller cases, however, where the indebted- (90 App. Div. 591)." Id., 298, per ness was in respect of the specific as- Smith, P. J. sets which are found within the State. " People ex rel. New York Cen- Where the indebtedness is general, tral & Hudson R. Rd. Co. v. Miller, 800 TAXATION OF FRANCHISES § 450 to have deducted from its gross assets the assets employed without the State and together therewith its total liabilities, leaving the balance as the amount upon which the franchise tax is to be computed. A reduction should only be made of the value of the assets employed in the State of such propor- tionate amount of the liabihties of the corporation as is repre- sented by the ratio of the assets employed within the State to the total assets of the corporation.^^ The aggregate and fairly appraised value of corporate property is not subject to a deduction of the amount of corporate indebtedness, although such amount should be taken into consideration in arriving at the actual value of capital stock where the purpose of the statute is to include the corporation's property consisting of bonds, mortgages, franchises, etc." Where a corporation issues stock certificates representing a part of the capital stock of the corporation, such certificates cannot be deemed debts and deducted from an assessment made by the comptroller for the purpose of imposing a franchise tax.^* § 450. Value of Special Franchise. — In assessing a special franchise tax, the value of the franchise should, so far as its nature permits, be ascertained in the same manner as the value of any other property. Where such tax is assessed against a water supply company which owns three distinct classes of property, the use of which produces the net earnings; and such property consists of tangible property outside of the street; tangible property in the street and intangible property in the street, each of these three classes should be considered as contributing pro rata to the net earnings of the company according to its respective value. On determining the value 85N. Y. Supp. 998, aff'd (mem.) 177 Commonwealth v. Manor Gas Coal N. Y. 584. Co., 188 Pa. 195, 41 Atl. 605; Com- " People ex rel. Hyde & Sons v. monwealth v. New York, P. & O. R. Miller, 85 N. Y. Supp. 522, 90 App. Co., 188 Pa. 169, 41 Atl. 594. Div. 599, afT'd (mem.) 179 N. Y. "People ex rcl. Colin & Co. v. 564. Miller, 180 N. Y. 16, aff'g 88 N. Y. " Commonwealth v. Beech Creek Supp. 197, 94 App. Div. 564. R. Co., 188 Pa. 203, 41 Atl. 605; 51 801 § 450 TAXATION OF FRANCHISES of tangible and intangible property, actual value, not the cost, is the true basis for taxation; and hence intangible prop- erty in a pubhc street, consisting of a mere right to lay water mams, must be determined by treating it as a part of the plant and basing its value upon the net earnings and then capitalizing such earnings. Such intangible property has a taxable value on the theory that it is earning an income for the company, and if with good management there is no ade- quate return, such intangible property has little value. The value of the property of a water company for the purpose of taxation, and especially its franchise and good will, cannot be ascertained until the franchise tax and all other taxes and a proper replacement or upkeep fund have been deducted from the current earnings. In determining the value of the prop- erty of such a corporation based principally upon its earnings, the earnings and expense for one year alone should not be considered, but the average earnings and expense for a series of years, or for such time as is reasonably available, should be taken. The correct method of arriving at the value of the intangible property of a water supply company in a public street is as follows: From the earnings should be deducted salaries and other expenses of maintenance, all taxes, includ- ing the approximate amount of the special franchise tax to be assessed, such percentage of the earnings as is shown to be a reasonable and proper fund for replacements and upkeep not ordinarily covered by the current maintenance account, and the balance of the earnings remaining should be treated as the actual net earnings of the company; six per cent should then be deducted as a fair return upon the value of the real estate and other tangible property, and the surplus earnings should then be capitalized at six per cent, which result represents the fair value of the intangible rights in the street. To this should be added the value of the tangible property in the street, the result representing the value of the special franchise.^^ 59 People ex rel. Jamaica Water App. Div. 13, 112 N. Y. Supp. Supply Co. V. Tax Commrs., 128 392. 802 TAXATION OF FRANCHISES §§ 451, 452 § 451. Deduction from Special Franchise Tax. — The New York statute provides that if, when the tax assessed on any special franchise tax is due and payable the corporation has paid to the city, etc., for its exclusive use under any agree- ment therefor, or under any statute requiring the same any sum based upon a percentage of gross earnings, or any other income, or any license fee, or any sum of money on account of such special franchise granted to or possessed by such person, copartnership, association or corporation, which payment was in the nature of a tax, all amounts so paid, except money paid or expended for paving or repairing of pavement of any street, etc., shall be deducted from any tax based on the assessment made by the State Board of Tax Commissioners for city, etc., purposes, and the remainder shall be the tax on such special franchise. This section of the Tax Law does not authorize a deduction from the amount assessed against the franchise of a street surface railroad of the amount of the lamp tax levied against the property of the street railroad company under the provisions of a city charter. The payment made by the street railway company which is to be deducted must be in the nature of a tax. So where under an agreement between a street railway company and the city, subsequently ratified by statute, the street railroad company agreed to pay to the city certain percentages of its gross receipts, such payment should be deducted from the amount payable under the special fran- chise tax law.*" § 452. Exemption or Immunity from Taxation — Whether a Franchise or Privilege. — We have considered elsewhere the question whether exemption or inmiunity from taxation is a franchise; *^ but exemption from taxation may or may not be a "privilege" within the sense in which that word is used in a statute, and in the act of North Carolina, incorporating a •» Heerwagcn v. Crosstown St. Ky. 275, modifiod 179 N Y. 99, 71 N. E. Co., 86 N. Y. Supp. 219, 90 App. Div. 729. «" See § 20, herein. 803 ^^ § 453 TAXATION OP^ FRANCHISES railroad company,^' the word "privileges" does not include such exemption.^^ § 453. Power to Exempt from Taxation— State, Munici- pality and Board of Assessment — Local Taxation. — Unless prohibited by the constitution a State has undoubted power to exempt through its legislature or by contract certain prop- erty, by reasonable provisions, from taxation ; ^'^ and the power to tax includes the power to exempt within constitutional limitations.^^ If the constitution requires a tax upon property, the legislature has no power to exempt it therefrom.®^ In the case of a municipality the power to exempt property within its limits from taxation must be conferred by legislative act.^^ And a state board of valuation and assessment cannot validly agree to release a corporation from the payment of local taxes upon its franchise.*^* But a telephone company may be made exempt from local taxation under an incorporation statute imposing certain taxes in lieu of all other taxes.®'' A clause, however, in a statute exempting property from taxation does not release it from liability for assessments for local improve- ments. It has been held in Mississippi not only that special assessments for local improvements do not come within the constitutional limitation as to taxation, but also that the con- struction and repair of levees are to be regarded as local im- provements for which the property specially benefited may be «^ Act January 3, 1834. «« Crocker v. Scott, 149 Cal. 575, «3 Wilmington & W. R. Co. v. Als- 87 Pac. 102; Mackay v. San Fran- brook, 146 U. S. 279, 13 Sup. Ct. 72, cisco, 113 Cal. 392, 45 Pac. 696. 36 L. ed. 972. «' Tampa v. Kannitz, 39 Fla. 687, «*Tomlinson v. Branch, 15 Wall. 23 So. 416, 63 Am. St. Rep. 202. (82 U. S.) 460, 21 L. ed. 189; Jefferson «*' Southern Ry. Co. v. Coulter, 24 Bank v. Skelly, 1 Black (66 U. S.), Ky. L. Rep. 203, 68 S. W. 873. 436, 17 L. ed. 173; Ohio Life Ins. Co. «» Attorney Genl. v. Detroit, 113 V. Debolt, 16 How. (57 U. S.) 416, 14 Mich. 388, 71 N. W. 632, 4 Det. L. N. L. ed. 997; William S. Wilkins Co. v. 326; Mich. Pub. Acts, 1883, Act City of Baltimore, 103 Md. 293, 63 No. 129, § 8, 3 How. Ann. Stat., Atl. 562; Wallace v. Board of Equal- § 3718/1; Mich. Sess. Laws, 1881, Act ization (Oreg. , 1906) , 86 Pac. 365. No. 168. *^ Colton V. City of Montpelier, 71 Vt. 413, 45 Atl. 1039. 804 TAXATION OF FR.\NCHISES § 454 assessed; and this rule is in harmony with that recognized generally elsewhere, to the effect that special assessments for local improvements are not within the purview of either con- stitutional hmitations in respect of taxation, or general exemp- tions from taxation/'' § 454. Duration and Extent of Exemption from Taxa- tion. — A tax on the value of the capital stock of a corpora- tion is a tax on the property in which that capital is invested, and therefore no tax can be levied upon the corporation issuing the stock which includes property that is otherwise exempt/^ If the charter of a railroad company contains a provision that "The capital stock of said company shall be forever exempt from taxation, and the road, with all its fixtures and appurte- nances, including workshops, machinery, and vehicles of trans- portation, shall be exempt from taxation for a period of twenty years from the completion of the road and no longer," such provision does not, after the expiration of that period, exempt from taxation the road with its fixtures, etc., although the same were purchased with or represented by capital .'^^ Where the legislature of Tennessee had, under the Constitution of the State, power to and did grant to a railroad company an exemp- tion from taxation, under an act incorporating it, in the fol- lowing terms: "That the capital stock of said company shall be forever exempt from taxation and the road, with all its fix- tures and appurtenances, including workshops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty-five years from the completion of the road, and no tax shall ever be laid on said road or its fixtures which will reduce the dividends below eight per cent," it was held that under such provisions the capital stock of the com- pany was forever exempt from taxation during the existence of "> Ford V. Delta & Pine Land Co., Pennsylvania, 198 U. S. 341, 49 L. cd. 164 U. S. 662, 17 Sup. Ct. 230, 41 1077, 25 Sup. Ct. 669. L. ed. 390. Examine Yazoo Staunton, City of, v. Mary Bald- 287, 34 L. ed. 967, 11 Sup. Ct. 301; win Seminary, 99 Va. 653, 3 V. Sup. Jefferson Bank v. Skelly, 1 Black (66 Ct. Rep. 468, 39 S. E. 596; Const., U. S.),436, 17 L. ed. 173; Ohio Life art. 10, § 3. Ins. Co. v. Debolt, 16 How. (57 U. S.) «' Wilmington & W. R. Co. v. Als- 416, 14 L. ed. 997; Knoup v. Piqua brook, 146 U. S. 279, 13 Sup. Ct. 72, Bank, 1 Ohio St. 603. See also 36 L. ed. 972, applied to an exemp- New Orleans City & L. R. Co. v. tion from taxation conferred upon the New Orleans, 143 U. S. 192, 36 L. ed. Wilmington and Raleigh Railroad 121, 12 Sup. Ct. 406. Company by the Act of January 3, ^ Metropolitan St. Ry. Co. v. 1834, incorporating it, and it was New York State Board of Tax held that such exemption was not Commrs., 199 U. S. 1, 50 L. ed. 65, conferred by that act upon the 25 Sup. Ct. 713. branch roads which the company was 808 TAXATION OF FRANCHISES § 455 from legitimate governmental control are never to be pre- sumed; unless an exemption is clearly established the legis- lature is free to act on all subjects within its general jurisdic- tion, as the public interest may require.^" Although it has been repeatedly held by the Federal Supreme Court that the legislature of a State may exempt particular parcels of prop- erty or the property of particular persons or corporations from taxation, either for a specified period or perpetually, or may limit the amount or rate of taxation to which such property shall be subjected, and that when such immunity is conferred, or such limitation is prescribed by the charter of a corporation it becomes a part of the contract, and is equally inviolate with its other stipulations ; yet before any such exemption or limita- tion can be admitted, the intent of the legislature to confer the immunity or prescribe the limitation must be clear beyond a reasonable doubt. All public grants are strictly construed, and nothing can be taken against the State by presumption or in- ference. The established rule of construction in such cases is that rights, privileges and immunities not expressly granted are reserved ;*** and no claims for exemptions from taxation can be sustained unless within the express letter or the neces- sary scope of the exempting clause.^^ It is held, however, that "> Ruggles V. Illinois, 108 U. S. 526, 17 Sup. Ct. 230, 41 L. ed. 390; 2 Sup. Ct. 832, 27 L. ed. 812. See Georgia R. & Bkg. Co. v. Smith, 128 Gilman v. Sheboygan, 2 Black (07 U. S. 174, 32 L. ed. 377, 9 Sup. Ct. 47, U. S.), 510, 17 L. ed. 305. 16 Wash. L. Rep. 749; Chicago, B. & No presumption exists in favor of K. C. R. Co. v. Guffey, 120 U. S. 569, a contract by a State to exempt lands 7 Sup. Ct. 693, 30 L. ed. 732; Mem- from taxation. Every reasonable phis Gas Co. v. Shelby County, 109 doubt should be resolved against it. U. S. 398, 27 L. ed. 1006, 3 Sup. Ct. When such a contract exi.sts it must 327; Hoge v. Railroad Co., 99 U. S. be rigidly scrutinized and never per- 348, 25 L. ed. 303; North Missouri R. mittcd to extend, either in scope or Co. v. Maguire, 20 Wall. (87 U. S.) duration, beyond what the terms 46, 22 L. ed. 287. of the concession clearly require. Illinois: People, Kochersperger, v. Tucker v. Ferguson, 22 Wall. (89 Chicago Theological Seminary, 171 U. S.) 527, 22 L. ed. 805. 111. 177, 51 N. E. 198; Bloomington " Delaware Railroad Tax, 18 WaU. Cemetery Assoc, v. People, 170 111. (85 U.S.) 206, 21 L.ed. 888. * 377, 30 Chic. Leg. News, 187, 48 N. E. "United States: Ford v. Delta & 905; People, Davis, v. Chicago, 124 Pine Grove Land Co., 164 U. S. 602, III. 636, 17 N. E. 56. 809 §455 TAXATION OF FRANCHISES while the rule requiring a strict construction of statutes exempt- ing property from taxation should not be infringed, still it is the duty of the court to determine whether doubt exists and to solve it and not to immediately surrender to it.^^ It is also decided that where a certain class of property has by settled custom and pohcy been entitled for a long period of time to be exempt from taxation, as in case of property held for religious and charitable purposes, a statute taxing such property must show the intent so to do by language clearly expressing such intent, as a presumption in favor of such taxation will not exist .^'' In connection with this last decision the following case in the Federal courts is pertinent. The facts were these: Sec- tion 5 of the act of 1855 of the General Assembly of Illinois, in- corporating the plaintiff, provided: "That the property of whatever kind or description belonging or appertaining to said seminary shall be forever free and exempt from all taxation for all purposes whatever." Section 2 provided: "That the sem- inary shall be located in or near the city of Chicago." Property of the incorporation other than the seminary buildings was Louisiana: State v. New Orleans Utah: Judge v. Spencer, 15 Utah, Ry. & Light Co., 116 La. 144, 40 So. 242, 48 Pac. 1097. 597; Louisiana & N. W. R. Co. v. Washington: Thurston County v. State Board of Appraisers, 108 La. 14, Sisters of Charity, 14 Wash. 264, 44 32 So. 184; Penrose v. Chaff raix, 106 Pac. 252. La. 250, 30 So. 718; State of Lou- Examine Brown University v. isiana v. Morgan, 28 La. Ann. 482. Granger, 19 R. I. 705, 36 L. R. A. Nebraska: Lincoln St. R. Co. v. 847. City of Lincoln, 61 Neb. 109, 110,84 See §§ 23, 209, 252, 254-257, N. W. 802; Young Men's Christian herein. Assoc, of Omaha v. Douglas County, Exemptions from taxation, being 60 Neb. 642, 83 N. W. 924, 52 L. R. in derogation of the sovereign au- A. 123. thority and of common right, are not New Jersey: Sisters of Charity to be extended beyond the express of St. Elizabeth v. Corey, 73 N. J. L. requirements of the language used, 699, 65 Atl. 500; Cooper Hospital v. when most rigidly construed. Yazoo City of Camden (N. J. L.), 57 Atl. 260. & M. V. R. Co. v. Thomas, 132 U. S. Oregon: Wallace v. Board of 174, 33 L. ed. 302, 10 Sup. Ct. 68. Equalization (Oreg., 1906), 86 Pac. «3 Citizens' Bank v. Parker, 192 365. U. S. 73, 48 L. ed. 346, 24 Sup. Ct. Tennessee: Knoxville & O. R. Co. 181. V. Harris, 99 Tenn. 684, 43 S. W. »* Mattern v. Canevin, 213 Pa. 588, 115. 63 Atl. 131. 810 TAXATION OF FRANCHISES § 455 taxed under the general taxing law of 1872. The Supreme Court of Illinois construed the statute of 1855 as meaning that the exemption was limited to property used in immediate con- nection with the seminary and did not refer to other property held by the institution for investment, although the income was used solely for school purposes. It was held that as the rule of the Supreme Court of Illinois in construing an act exempting property from taxation under legislative authority, was that the exemption must be plainly and unmistakably granted and could not exist by implication only, a doubt being fatal to the claim, and as the construction placed on the act was not such an unnatural, strained or unreasonable construc- tion as showed it to be erroneous, the judgment would be affirmed even though the statute might be otherwise construed so as to effect a total exemption. The act incorporating the seminary also provided that: "It shall be deemed a public act and be construed liberally in all courts for the purposes therein expressed." It was decided that such provision should not be construed as a complete overthrow of the canon of constmction adopted by the Supreme Court of Illinois in regard to exemption of property from taxation .^'^ Again, the rule of strict construc- tion of exemptions from taxation is held not applicable when the statute simply changes the method of taxation .'^'^ Where a statute, imposing taxes upon corporate franchises, provided that: "This act shall not be construed to apply to" certain cor- porations, it was decided that the purpose of the legislature was not to curtail to any extent the judicial power of interpre- tation but to hmit the scope of the act itself; that it was a leg- islative declaration that the designated corporations sliould be exempted from the operation of the statute."^ A constitutional limitation upon the legislature as to exemptions from taxation is prospective and not retroactive as to charter exemptions."* °^ Chicago Theological Seminary v. '^ Board of Assessors v. I'luinficld Illinois, 188 U. S. GG2, 47 L. cd. G4I, Water Supply Co., G7 N. J. L. 357, 52 23 Sup. Ct. 386. Atl. 230. " IJinghamton Trust Co. v. City "' State ex rcl. Morris v. Board of of Binghamton, 76 N. Y. Supp. 517, Trustees ' of Westminster College, 72 App. Div. 341. 175 Mo. 52, 74 S. W. 990; Const'ns 811 § 45G TAXATION OF FRANCHISES § 456. Constitutional Law— Validity of Exemption from Taxation. — Nothing in the Federal Constitution prevents a State from granting exemptions from taxation ; and the reduc- tion, upon equitable considerations of payments made in the nature of taxes of certain corporations on their franchises from the amount to which they are subjected by a general law does not entitle every franchise owner to a similar reduction and render the tax invalid because it denies the holders of some franchises the equal protection of the law or deprives them of their property without due process of law.^^ So the rights of an individual under the Fourteenth Amendment turn on the power of the State. A State does not infringe such rights under that amendment by exempting a corporation from a tax, either in whole or in part, whether such exemption results from the plain language of a statute or from the conduct of a state official under it.^ There may also be an exemption of one class of corporations from taxation without the statute being invalid as to other corporations. ^ And a statute which provides for a deduction of shares of stock of a national bank invested in real estate, and on which such bank pays a tax, from the market value of the shares, is not unconstitutional.^ Legislation, how- ever, which is in effect an attempt to create an express exemp- tion from taxation of corporation property contrary to the con- stitutional provisions of a State is void, even though the kind of property attempted to be so made exempt is not mentioned in the constitution which provides for equal and uniform taxa- tion and permits the exemption of certain kinds of property.^ So a statute which does not properly classify property for exemption violates a constitutional provision which requires uniform taxation.^ But an exemption of a water company of 1865, 1875. See §§215, 287, ' w. C. Peacock & Co. v. Pratt, 121 herein. Fed. 772, 58 C. C. A. 48. ^ Metropolitan St. Ry. Co. v. ^ Middletown Nat. Bank v. Town of New York State Board of Commrs., Middletown, 74 Conn. 449, 51 Atl. 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. 138. 705. * State Nat. Bank v. City of Mem- > Missouri V. Dockery, 191 U. S. phis, 116 Tenn. 641, 94 S. W. 603. 165, 24 Sup. a. 53, 48 L. ed. 33. ^ Adams v. Kuykendall (Miss.), 35 812 TAXATION OF FR.ANCHISES §§ 457, 458 from municipal taxation based upon a consideration that the company give the city the use of water for certain purposes free of charge is not illegal, as it constitutes merely an offset against taxes of the value of the water used by the city.^ § 457. Obligation of Contracts — Exemption from Taxa- tion — Preliminary Statement. — We have considered under prior sections the principles governing cases as to obligation of contracts, the impairment thereof and also the right to alter, amend or repeal reserved to the legislative body, and the ap- plication of these doctrines in matters relating to corporations and their franchises,'' and shall, therefore, only consider here certain questions as to exemptions from taxation in connection with the obligation of contracts. § 458. Obligation of Contracts — Reservation of Power to Alter, Amend or Repeal — Exemption from Taxation. — The object of a reservation of the right of the legislature to repeal, alter or amend a charter is to prevent a grant of corpo- rate rights and privileges in a form which will preclude legis- lative interference with their exercise, if the public interests should at any time require such interference, and to preserve the state control over its contract with the corporators, which would otherwise be irrepealable and protected from any meas- ure affecting its obligation. Immunity, therefore, from taxa- tion, constituting a part of a contract between the government and a corporator or stockholder, is, by the reservation of power contained in a general law enacted prior to the grant of the charter, subject to be revoked equally with any other provision of the charter, whenever the legislature may deem it expedient for the public interest that the revocation should be made. The reservation affects the entire relation between the State So. 830; Const., art. 12, §20; Mu- R. Co. v. McLean County, 17 111. 291; nicipal Charter, Acts 1884, p. 445, Grant v. Davenport, 3G Iowa, 405; c. 391, § 31. Portland v. Portland Water Co., 07 ° Bartholomew v. Austin, 85 Fed. Me. 135. 359, 52 U. S. App. 512, 29 C. C. A. ' See §§ 301-340, 482, herein. 568. Distinguishing Illinois Cent. 813 § 458 TAXATION OF FRANCHISES and the corporation, and places under legislative control all rights, privileges and immunities derived by the charter di- rectly from the State.* So where at the time a charter is granted to a railroad corporation a general law of the State was in existence which provided that the charter of every corpora- tion subsequently granted, and any renewal, amendment or modification thereof, should be subject to amendment, altera- , tion or repeal by legislative authority, unless the act granting the charter or the renewal, amendment or modification, in express terms excepted it from the operation of that law, and thereafter the charter of the corporation was amended and its property exempted from taxation, but the amending act con- tained no clause excepting the amendment from the provisions of the general law, and, subsequently, the state constitution was adopted requiring the property of corporations then exist- ing or thereafter chartered to be taxed except in certain cases, not affecting this case, and the legislature in pursuance of such- requirement then provided for the taxation of property of rail-: road companies and under it the property of such corporation, it was held that the taxation was legal and constitutional; that the power reserved to the State by the general law, in force when the charter was granted, authorized any change in the con- tract' created by the charter between the corporators and the State, as it originally existed, or as subsequently modified, or ^Tomlinson v. Jessup, 15 Wall. Co., 192 U. S. 201, 211, 30 L. ed. 406, (82 U. S.) 454, 21 L. ed. 204. Cited 26 Sup. Ct. — ; Wisconsin & M. R. on first point in Louisville Water Co. Co. v. Powers, 191 U. S. 379, 386, V. Clark, 143 U. S. 1, 12, 36 L. ed. 55, 387, 48 L. ed. 229, 24 Sup. Ct. 107. 12 Sup. Ct. — ; Spring Valley Water Distinguished in Citizens' Savings Works V. Schottler, 110 U. S. 347, Bank v. Owensboro, 173 U. S. 636, 370, 4 Sup. Ct. 48, 28 L. ed. 173 658, 43 L. ed. 840, 19 Sup. Ct. 530, (in dissenting opinion); Sinking Fund 571 (in dissenting opinion), cited in Cases (Union Pacific Rd. Co. v. Uni- same case at p. 645; Pearsall v. Great ted States and Central Pacific Rd. Northern Ry., 161 U. S. 646, 663, 16' Co. v. Gallatin), 99 U. S. 700, 758, 25 Sup. Ct. 705, 40 L. ed. 838; Louis- L. ed. 496 (in dissenting opinion); ville Water Co. v. Clark, 143 U. S. Railroad Co. v. Maine, 96 U. S. 499, 1, 12, 12 Sup. Ct. — , 36 L. ed. 55; 511, 24 L. ed. 836. Cited on second Sinking Fund Cases (Union Pacific point in Stanislaus County v. San Rd. Co. v. United States and Cen- Joaquin & Kings River Canal & Irrig. tral Pacific Rd. Co. v. Gallatin), 99 814 TAXATION OF FRANCHISES § 458 its entire revocation.^ Again, the mere grant for a designated time of an immunity from taxation does not take it out of the rule subjecting such grant to the general law retaining the power to amend or repeal, unless the grant contain an express provision to that effect. And the act of the legislature of Ken- tucky of 1856,^" and the act of 1884,^^ incorporating the Citizens' Savings Bank of Owensboro, and the act of 1886,^^ commonly known as the Hewitt Act, did not create an irrevocable contract on the part of the State protecting the bank from other taxa- tion, therefore, the taxing law of Kentucky of 1892 ^^ did not violate the contract clause of the Federal Constitution.^^ In another Kentucky case it is held that the immunity from taxa- tion conferred upon the Louisville Water Company by the legislature of that State by the statute of 1882 ^^ was with- drawn by the general revenue act of 188G; ^'^ and the immunity from taxation granted to the company by the said act of 1882 was accompanied by the condition expressed in the act of 18oG,^^ and made part of every subsequent statute, when not otherwise expressly declared, that by amendment or repeal of the former act such immunity could be withdrawn. It was also held that the withdrawal of the exemption from taxation con- ferred upon the company by the act of 1882, put an end to the obligation, imposed upon the company by that act, to furnish water free of charge to the city for the extinguishment of fires, cleaning of streets, etc.^* If a charter is granted exempting the U. S. 700, 720, 25 L. ed. 496. Quali- '* Act April 22, 1882, 1 Scss. Acts, fied in Hogc v. Railroad Co., 99 U. S. 1886, Gen. Stat. 1888, c. 92. 348, 353, 25 L. ed. 303. "Act May 17, 1886, Gen. Stat. •Tomlinson v. Jessup, 15 Wall. 1888, c. 92. (82 U. S.) 454, 21 L. ed. 204. See " Act February 14, 1856, 2 Rev. Covington v. Kentucky, 173 U. S. Stat. 121. 231, 43 L. ed. 679, 19 Sup. Ct. 383. " Louisville Water Co. v. Chirk, "> Act February 14, 1856. 143 U. S. 1, 36 L. ed. 55, 12 Sup. Ct. " Act May 12, 1884, c. 1412. — . Sec also Louisville Water Co. v. "Act May 17, 1886. Kentucky, 170 U. S. 127, 42 L. cd. ''Act November 11, 1892, c. 108. 975, 18 Sup. Ct. — . This case was '* Citizens' Savings Bank v. Owens- decided upon the authority of the boro, 173 U. S. 636, 19 Sup. Ct. 530, last above-cited case, which it also 43 L. cd. 840. affirmed. 815 § 459 TAXATION OF FRANCHISES property of a corporation from taxation, providing that an existing statute reserving the right to alter, amend or repeal corporate charters shall not apply to it, and the State thereafter passes a law taxing the property of the corporation, such statute violates the obligation of a contract and is unconstitutional.^^ § 459. Obligation of Contracts— What Is a Contract- Exemption from Taxation. — It is a general rule that a valid grant to a corporation, by a statute of a State, of the right of exemption from taxation, given without reservation of the right to amend, alter or repeal, is a contract between the State and the corporation, protected by the Constitution of the United States against state legislative impairment.^" So a charter provision exempting a corporation's property not actually and in fact within the State and the stock held or owned by any of its stockholders, is violated by the imposition " Home of The Friendless v. L. ed. 352; Columbia Water Power Rouse, 8 Wall. (75 U. S.) 430, 19 L. Co. v. Campbell, 75 S. C. 34, 54 S. E. ed. 495. 833. ^° Wilmington & W. Rd. Co. v. Als- Such a contract once made cannot brook, 146 U. S. 279, 13 Sup. Ct. 92, be rescinded by a subsequent legis- 36 L. ed. 972 (Laws Mich., 1855, lative act. Jefferson Bank v. Skelly, p. 305, § 9). Holding also that this 1 Black (66 U. S.), 436, 17 L. ed. 173. rule is not qualified by St. Paul, Min- Statute repealing all former laws neapolis & M. R. Co. v. Todd County, exempting from taxation held void. 142 U. S. 282, 35 L. ed. 1014, 12 Sup. See Duluth & I. R. Co. v. St. Louis Ct. — , nor by Henderson Bridge Co. County, 179 U. S. 302, 45 L. ed. V. Henderson, 141 U. S. 679, 35 L. ed. 201, 21 Sup. Ct. 124, rev'g St. Louis 900, 12 Sup. Ct. —; Wilmington Rail- County v. Duluth & I. R. Co., 77 road V. Reid, 13 Wall. (80 U. S.) 264, Minn. 433, 80 N. W. 626; Steams v. 20 L. ed. 568; Barnes v. Kornegay Minnesota, 179 U. S. 223, 21 Sup. (C. C), 62 Fed. 671; Yazoo & M. V. Ct. 73, 45 L. ed. 162, rev'g State v. R. Co. V. Board of Levee Commrs., Stearns, 72 Minn. 200, 75 N. W. 210. 37 Fed. 24; Commonwealth v. Phila- An exemption from taxation in a delphia & E. R. Co., 164 Pa. 252, 35 charter of a company constitutes a W. N. C. 217, 30 Atl. 145; State, contract, as is illustrated by a case Memphis, v. Butler, 86 Tenn. 614, 8 where there are present a subject- S. W. 586. See Powers v. Detroit, matter, parties and consideration and Grand Haven & M. Ry. Co., 201 U. S. on the one side a complete perfor- 543, 26 Sup. Ct. 556, 50 L. ed. 860, mance, and on the other, acceptance, aff'g Detroit, Grand Huron & M. Ry. Hancock, Comptroller, v. Singer Mfg. Co. v. Powers (C. C), 138 Fed. 264; Co., 62 N. J. L. 289, 328, 42 L. R. A. New Jersey v. Yard, 95 U. S. 104, 25 852, 41 Atl. 846, per Van Syckel, J. 816 TAXATION OF FRANCHISES § 460 upon such corporation of a franchise tax upon its capital less the value of its real and personal property within the State.^^ A provision in the charter of a bank that " Said institution shall have a lien on the stock for debts due it by the stockholders before and in preference to other creditors, except the State, for taxes, and shall pay to the State an annual tax of one-half of one per cent on each share of capital stock, which shall be in lieu of all other taxes," limits the amount of tax on each share of stock in the hands of the shareholders, and any subsequent revenue law of the State which imposes an additional tax on such shares in the hands of shareholders, impairs the obligation of the contract, and is void; such exemption applies to new stock in the bank, created and issued after the adoption of a new constitution. But when not otherwise exempted the capi- tal stock of a corporation and its shares in the hands of share- holders may both be taxed. And the surplus accumulated is not exempted from taxation by such provision of exemption in the charter.22 Although a statutory exemption from taxation may be repealable, still the exemption remains in force until the repealing goes in effect. ^^ § 460. Obligation of Contracts— What Is not a Contract — Exemption from Taxation. — An act of the legislature ex- empting property of the railroad from taxation is not a "con- tract" to exempt it unless there be a consideration for the act. An agreement where there is no consideration is a nude pact ; a promise of a gratuity spontaneously made, which may be kept, changed, or recalled at pleasure; and this rule of law applies to the agreements of States made without consideration as well as to those of persons.^'* So where none of the expressions in a ^' State, Singer Mfg. Co., v. Hep- Commissioner of Railroads, 118 Mich, penheimor, 58 N. J. L. 633, 34 Atl. 349, 5 Det. L. N. 507, 76 N. W. 633; 1001 , 32 L. R. A. 643. Mich. Pub. Acts 1897, Act No. 228; '* Bank of Commerce v. Tennessee, Laws 1891, Act, No. 174; Laws 1893, 161 U. S. 134, 40 L. ed. 645, 16 Sup. Act No. 129. Ct. 456, aff'g, on the first point, '* Tucker v. Ferguson, 22 Wall. Farrington v. Tennessee, 95 U. S. (89 U. S.) 527, 22 L. ed. 805, reaf- 679, 24 L. ed. 558. firmed in West Wisconsin Ry. Co. v. " Manistee & N. E, R. Co. v. Trempealeau County, 93 U. S. 595, 23 52 817 § 460 TAXATION OF FRANCHISES contract between a street railway company and a municipality in regard to the extension of the company's tracks for the better advantage of, and furnishing more facilities to, the pub- lic, import any exemption from taxation, the subsequent im- position of a tax, otherwise valid, is not invalid under the im- pairment of obligation clause of the Constitution. ^^ In grants from the public nothing passes by implication, and, in the absence of direct stipulations relinquishing the right of taxa- tion, a provision in grants of privileges or franchises, that the grantee shall pay something therefor, is not to be construed as an equivalent or substitute for taxes amounting to a con- tract of exemption from future taxation within the impair- ment clause of the Federal Constitution. ^^ So a provision in a general tax law that railroads thereafter building and operating a road north of a certain parallel shall be exempted from the tax for ten years, unless the gross earnings shall exceed a cer- tain sum, is not addressed as a covenant to such railroads and does not constitute a contract with them, the obligations of which cannot be impaired consistently with the Constitution of the United States.^^ In another case a charter of a railroad company, incorporated by an act of the legislature of Missis- sippi, passed in 1882, contained an exemption from all taxation for twenty years. The state constitution adopted in 1869 provided that the property of all corporations for pecuniary profit should be subject to taxation, the same as that of indi- L. ed. 814. See also Manistee & N. 13 Wall. (80 U. S.) 264, 20 L. ed. 568; E. R. Co. V. Commissioners of Rail- Home of The Friendless v. Rouse, 8 roads, 118 Mich. 349, 5 Det. L. N. Wall. (75 U. S.) 438, 19 L. ed. 498; 507, 76 N. W. 633. Citing Grand Piqua Branch of the State v. Knoop, Lodge F. & A. M. v. New Orleans, 166 16 How. (57 U. S.) 369, 14 L. ed. 977. U. S. 143, 41 L. ed. 951, 17 Sup. Ct. " Savannah, T. & I. of H. Ry. Co. 523; Welch v. Cook, 97 U. S. 541, 24 v. Savannah, 198 U. S. 392, 49 L. ed. L. ed. 1112; West Wisconsin Ry. Co. 1097, 25 Sup. Ct. 690. V. Trempealeau County, 93 U. S. 595, " Metropolitan St. Ry. Co. v. 23 L. ed. 814; Tucker v. Ferguson, 22 New York State Board of Tax Wall. (89 U. S.) 527, 22 L. ed. 805. Commrs., 199 U. S. 1, 50 L. ed. 65, Distinguishing University v. People, 25 Sup. Ct. 205. 99 U. S. 309, 25 L. ed. 387; Farring- " Wisconsin & Michigan Ry. Co. ton v. Tennessee, 95 U. S. 679, 24 L. v. Powers, 191 U. S. 379, 24 Sup. Ct. ed. 558; Wilmington R. Co. v. Reid, 107, 48 L. ed. 229. 818 TAXATION OF FRAXCHISES § 461 viduals, and that taxation should be equal and uniform through- out the State. Prior to the incorporation of the railroad com- pany, the Supreme Court of the State had construed this provision of the constitution as authorizing exemptions from taxation, but had declared that such exemptions were repeal- able. It was held that the Federal Supreme Court was bound by such construction of the constitution, and, therefore, that the railroad company could not claim an irrepealable exemp- tion in its charter. It was also decided that the exemption being repealable, the question whether it had in fact been repealed was a local and not a Federal question. ^^ An irrev- ocable contract is not created by the acceptance by a national bank of the Hewitt Act ^ so as to exempt its shares from taxa- tion as required by a state statute which is valid as to taxes for subsequent years. ^" Again, a corporation organized for the purpose of doing an insurance business, under an act of the legislature of the State of Tennessee passed before the adoption by that State of its constitution of 1870, with a provision in the charter limiting the rate and extent of taxation by the State, does not continue to enjoy the exemption if its corporate ob- jects and business are changed to those of a bank by legislation enacted subsequent to the adoption of that constitution.^^ If a statute, supplemental to a corporation's charter, is enacted after a state constitution is adopted which makes all laws subject to alteration and repeal, it is repealable.^^ § 461. Obligation of Contracts — Reservation of Power to Alter, etc.— Exemption from Taxation — Res Adjudicata. — Where it is res judicala that the original charter of a bank by ^«Gulf & S. I. R. Co. V. Hewcs, 183 Ky. Act March 21, 1900, Acts 1900, U. S. GO, 40 L. ed. 80, 22 Sup. Ct. p. 65, c. 23. See State Board of 20. Assessors v. Patterson (N. J.), 14 » Act 1880, Acts 1885-1880, p. 140, Atl. 610. c. 1233. ^' Memphis City Bank v. Tennes- 3" First National Bank of Coving- see, 101 U. S. 186, 40 L. ed. 664, 16 ton V. City of Covington, 129 Fed. Sup. Ct. — . 772, case aff'd in Covington v. First '* State v. Northern Cent. Ry. Co., National Bank of Covington, 198 90 Md. 447, 45 Atl. 465; Const. 1851. U. S. 100, 49 L. cd. — , 25 Sup. Ct. — ; art. 3, § 47. 819 § 461 TAXATION OF FRANCHISES which its capital is exempt from any tax constituted a con- tract within the impairment clause of the Constitution, and that such exemption is not affected by subsequent charters and constitutions, and there is no doubt that the State intended ' to offer inducements to enlist capital in the early development of the State, and no license tax was demanded for fifty-eigHt years although that method of taxation was in force during the whole period, the exemption from any tax may be con- strued as including a license tax on occupation as well as taxes on property.^^ Again, where it has been litigated and deter- mined in a Federal court that the state law under which the taxes were levied is unconstitutional within the impairment clause of the Constitution because of a contract which ex- empted from all taxation, including particular years then in controversy, the question is res judicata as to the right to levy the tax under such law in any other year although it may have been established by the highest court of that State that an adjudication concerning taxes for one year cannot be pleaded as estoppel in suits involving taxes of other years. And the adjudication of a Federal court establishing a contract exempt- ing from taxation, although based upon the judgment of a state court given as a reason therefor, is equally effectual as res judicata between the parties as though the Federal court had reached its conclusion as upon an original question; and under the doctrine of res judicata such adjudication will estop either party in subsequent litigation between themselves from again litigating the question of contract determined in the former action, even though the judgment of the state Court upon which the Federal court based its decision has meanwhile been reversed by the highest court of that State. ^'* Where it has been adjudged by the Supreme Court of New Jersey that a franchise tax imposed upon a manufacturing company is illegal by reason of the contract of exemption in its charter, the ques- tion of its Hability for a like tax in a subsequent year is res 53 Citizens' Bank v. Parker, 192 . ''* Deposit Bank v. Frankfort, 191 1 '. S. 73, 24 Sup. Ct. 181, 48 L. ed. C. S. 499, 48 L. ed. 276, 24 Sup. Ct. 34b. 154. 820 TAXATION OF FRANCHISES § 461 ad judicata; and even though prior to such decision a statute of earher date reserved to the legislature the power to alter, sus- pend or repeal subsequent charters, and although under sub- sequent state decisions this statute was held to be read into every subsequent charter, nevertheless a legislature cannot bind its successors and prohibit its granting an irrepealable contract if it should so elect ; and unless an intention can fairly be drawn from the terms of a contract of exemption from taxa- tion to reserve to the State a right to repeal such contract at will without the consent of the company, there can be no de- parture from it.^^ "Hancock, Comptroller, v. Singer Mfg. Co., 62 N. J. L. 289, 328, 329, 42 L. R. A. 852, 41 Atl. 846. 821 ALIENATION AND FORFEITURE CHAPTER XXV. ALIENATION AND FORFEITURE. ^ 462. Power to Alienate Franchises — Nature of Franchise as Affecting. 463. Power to Alienate Franchises — General Rule. 464. Same Subject — Basis of Rule. 465. Power to Alienate Franchises — Legislative Authoriza- tion. 466. Power to Alienate Franchises — Legislative Authoriza- tion Continued. 467. Power to Alienate Franchises — Implied Legislative Au- thorization — Presumptions — Construction of Statutes. 468. Power to Alienate Franchises — Railroad Companies. 469. Power to Alienate Franchises — Banks — Street Railway C o m p a n i e s — Telegraph Lines. 470. Power to Alienate Franchises — Water and Irrigation Companies. 471. Power to Mortgage. 472. Power to Make and Take a Lease — Railroad Compan- ies — Natural Gas, Gas and Electric Companies. 473. Illegal or Ultra Vires Lease — Ratification — Estoppel — Equity — Validating Stat- utes. 474. Power to Assign Franchises. 475. Assignment of Franchises of 822 Insolvent or Bankrupt Cor- poration — What Passes. 476. Power to Purchase. 477. Judicial Sales — Decree — Gen- erally. 478. Judicial Sales— What Does and Does not Pass — Pur- chasers' Rights and Obliga- tions. 479. Exemption or Immunity from Taxation or Governmental Regulation — Not Transfer- able Unless Expressly Au- thorized by State. 480. Exemption or Immunity from Taxation, etc., Continued — Judicial Sale — Sale Un- der Mortgage or Statutory Lien. 481. Exemption or Immunity from Taxation, etc., Continued — Whether Passes on Con- solidation of Corporations. 482. Same Subject— When Ex- emption Does and Does not Pass — Illustrative De- cisions. 483. Exemption or Immunity from Taxation, etc., — Rule as to Effect of Reservation of Power to Alter, Amend or Repeal. 484. Same Subject — Illustrative Decisions. 485. Forfeiture of Franchise — Leg- islative Power as to. ALIENATION AND FORFEITURE §§ 462,463 § 486. Forfeiture of Franchise— Ju- Abuse, Misuser or Nonuser dicial Determination of — of Corporate Powers. Quo Warranto— State Of- § 489. Nature and Extent of Mis- ficials — Ipso Facto For- user or Nonuser Justifying feiture. Forfeiture. 487. Courts Reluctant to Adjudge 490. When Franchise Will Be For- Forfeitures and Will Pro- feiture — Instances. ceed with Caution. 491. When Franchise Will not Be 488. Forfeiture of Franchise — Forfeited — Instances. § 462. Power to Alienate Franchises — Nature of Fran- chise as Affecting. — We have elsewhere considered such dis- tinction as exists between what are designated as primary and secondary franchises, and have also seen that a marked distinc- tion exists between franchises which are essential to the crea- tion and continued existence of a corporation, to its right to exist as an artificial being and which are inseparable from it, and other franchises and privileges subsidiary in their nature which it possesses and may exercise under and by virtue of the franchise to be and to the enjoyment of which, corporate exist- ence is not a prerequisite. We have further specially con- sidered: "essentially corporate franchises;" the non-inclusion in that term of "corporate powers or privileges;" the sale and assignability of the latter and their liability to loss or forfeiture; the distinction between franchises and powers and of franchises to be and property or franchises which a corporation may ac- quire; the distinction between the general creative franchise and a special franchise; also other distinctions of importance, with those above mentioned; these distinctions are pertinent to the question of the power to alienate franchises.^ § 463. Power to Alienate Franchises — General Rule. — It is a general rule, in the case of j)ublic service corporations, that the franchise to be a corporation is not a subject of sale and transfer unless made so by a statute which provides a mode of exercising it.^ So a corporation, in the absence of ' See §§ 8, 30 ct scq., herein. 5 Sup. Ct. 299, 28 L. cd. 837; Branch ' Memphis & L. R. Ry. Co. v. Rail- v. Josup, 106 U. S. 408, 27 L. ed. road Commissioners, 112 U. S. 609, 279, 1 Sup. Ct. 495. Other authori- 823 § 463 ALIENATION AND FORFEITURE statutory authority, has no right to sell or transfer its fran- chise, or any property essential to its exercise, which it has acquired under the law of eminent domain.^ Nor can a corpo- ration sell or transfer franchises from which it has been forever ousted by quo warranto proceedings.^ A strictly private cor- poration, however, may alienate its property or part with it in its entirety w^ith the consent of its stockholders, where it is under no obligation to render pubUc services or to perform public duties.^ And it is held that a corporation's power to alienate its property exists in the absence of a statutory re- striction ; ^ that the power to convey is limited to the accom- plishment of the objects for which the corporation was created; ^ that all of a corporation's property may be sold to another corporation;* that franchise interests which are independent are transferable,^ as is also an easement or right of way upon a public street ; ^° and a ferry franchise is held to be transfera- ble the same as other property. ^^ Nor does the rule apply to a sale or transfer to the public, as where a municipality, under a contract Condition upon acceptance of a franchise by a gas company, has the right reserved to purchase its property. ^^ ties supporting this rule appear un- ' Kit Carter Cattle Co. v. McGil- 4er subsequent sections in this chap- lin, 10 Ohio S. & C. P. Dec. 146, 7 ter. Ohio N. P. 575. Insurance company doing losing * Warfield v. Marshall County- business, but still solvent; right of Canning Co., 72 Iowa, 666, 34 N. W. to alienate. See Raymond v. Se- 467. See Marvin v. Anderson, 111 curity Trust & Life Ins. Co., 89 N. Y. Wis. 387, 87 N. W. 226. Supp. 753, 44 Misc. 31, rev'd 111 App. * Long Acre Electric Light & Div. 191, 97 N. Y. Supp. 557. Power Co., In re, 101 N. Y. Supp. 3 Fietsam v. Hay, 122 111. 293, 13 460, 51 Misc. 407, aff'd 102 N. Y. N.E. 501, 3 Am. St. Rep. 492. Citing Supp. 242, 117 App. Div. 80, aff'd Freeman on Executions, §§ 179, 180; 188 N. Y. 361, 80 N. E. 1101. Pierce on Railroads, §§ 196-201; Jones i" Knoxville v. Africa, 77 Fed. 501, on Mortgages, §161; Rorer on Ju- 47 U. S. App. 74, 246, 23 C. C. A. 252. dicial Sales (2d ed.), 222. "Evans v. Kroutinger (Idaho), * Wilmington Water Power Co. v. 72 Pac. 882. Evans, 166 111. 548, 46 N. E. 1083. " Indianapolis, City of, v. Con- * Morrisette v. Howard (Kan.), 63 sumers-" Gas Trust Co., 144 Fed. 640. Pac. 756. See s. c, 206 U. S. 592. Examine ^Fitchv. Lewiston Steam Mill Co., Joyce on Electric Law (2d ed.), 80 Me. 34, 12 Atl. 732. § 244. 824 ALIENATION AND FORFEITURE § 464 § 464. Same Subject— Basis of Rule. — The franchises and powers of a pubhc service corporation are in a large meas- ure designed to be exercised for the public good, and this exer- cise of them is the consideration for granting them; and any transfer or contract by which the company renders itself in- capable of performing its duties to the public or attempts to absolve itself from its obligations without the consent of the State is forbidden by public policy, violates its charter, and is, therefore, void.^^ So a railroad company cannot, by a lease of 13 United States: Central Transp. ance of public duties which it has Co. V. Pullman's Palace Car Co., undertaken, and thereby make pub- 139 U. S. 24, 11 Sup. Ct. 478, 35 L. lie accommodation or convenience ed. 55, 45 Am. & Eng. R. Cas. 607, subservient to its private interests. 9 Ry. & Corp. L. J. 342, 43 Alb. L. J. Gibbs v. Consolidated Gas Co. of Bal- 328; Thomas v. Railroad Co., 101 timore, 130 U. S. 396, 397, 32 L. ed. U. S. 71, 83, 84, 25 L. ed. 950; New 788, 9 Sup. Ct. 389, 6 R. R. & Corp. York, etc., Rd. Co. v. Winans, 17 L. J. 22. How. (58 U. S.) 30, 15 L. ed. 27. Courts will not allow corporations Illinois: Balsley v. St. Louis, to escape from their proper respon- Alton & Terre Haute Rd. Co., 119 111. sibility, by means of any disguise. 68, 72, 73, 8 N. E. 859. New York, etc., Rd. Co. v. Winans, Kentucky: Anderson v. Cincin- 17 How. (58 U. S.) 30, 15 L. ed. 27. nati S. R. Co., 86 Ky. 44, 5 S. W. 49. "The State is presumed to grant New Jersey: State, Bridgeton, v. corporate franchises in the public Bridgeton & M. Traction Co., 62 N. J. interest, and to intend that they shall L. 592, 43 Atl. 715, 45 L. R. A. 837. be exercised through the proper ofB- Texas: International & G. N. R. cers and agencies of the corporation, Co. v. Eckford, 71 Tex. 274, 8 S. W. and does not contemplate that cor- 679; International & G. N. R. Co. v. porate powers will be delegated to Kuehn, 70 Tex. 582, 8 S. W. 484; others. Any conduct which destroys East Line & R. R. Co. v. Rushing, their functions, or maims or cripples 69 Tex. 306, 6 S. W. 834. their separate activity, by taking Virginia: Acker v. Alexandria away the right to freely and inde- & F. R. Co., 84 Va. 648, 5 S. E. 688; pendently exercise the functions of Naglee v. Alexandria & F. R. Co., 83 their franchise, is contrary to a sound Va. 707, 3 S. E. 369. public policy. Central Transp. Co. v. Examine. State, Grinsfelder, v. Pullman's Palace Car Co., 139 U. S. Spokane St. R. Co., 19 Wash. 518, 24, 11 Sup. Ct. 478, 35 L. ed. 55; 53 Pac. 719, 41 L. R. A. 515, 11 Am. Thomas v. Railroad Co., 101 U. S. & Eng. R. Cas. (N. S.) 62; Connor v. 71, 25 L. cd. 950; People v. North Cil} of Manshfiold (Wis., 1906), 107 River Sugar Refining Co., 121 N. Y. N. W. 639, under Rev. Stat. 1898, 582-625, 24 N. E. 834; Mallory v. §959-51. Oil Works, 86 Tenn. 598, 8 S. W. A corporation cannot disable it- 396." McCutchcon v. Mcrz Capsule self by contract from the perform- Co.,71 Fed. 787, 793,perLurton,C. J. 825 § 464 ALIENATION AND FORFEITURE its property, absolve itself from liability for an injury to a stranger, caused by the negligence of the lessee in the operation of its road, unless such exemption is provided for in the lease and is also expressly sanctioned by legislative authority. Where, however, one railroad company has, with express legis- lative authority, transferred the full legal ownership of its franchise, as well as its property, to another railroad corpora- tion, the former is then exempt from liability for the negligence of the latter in the management and operation of the road.^'' Again, the original obligation of a railroad company to the public cannot be discharged by a transfer of its franchises to another company except by legislative enactment consenting to and authorizing such transfer, with an exemption granted to such company relieving it from liability. Mere legislative con- sent to the transfer is not sufficient; there must be a release from the obligations of the company to the public. ^^ A cor- "The duties which railroad corpo- nor relieve itself from liability for rations owe to the public and which the wrongful acts or omissions of are the consideration upon which duty of persons operating its road, their privileges were conferred, can- by transferring its corporate powers, not be avoided by neglect or refusal, or permitting others to operate its or by agreement with other persons road as owners of its capital stock, or corporations. Therefore, any con- To allow it to do so would be con- tract to prevent the faithful dis- trary to the public policy of the State charge of any such duties will be as expressed in its constitution and against public policy and void." laws with reference to railroad com- Peoria & Rock Island Ry. Co. v. panics. Coal Valley Mining Co., 68 111. 489, When purchaser or transferee is and quoted in Chicago Gas Light & Coke is not liable for torts and debts, see the Co. V. People's Gas Light & Coke Co., following cases: 121 111. 530, 13 N. E. 169, 172, per United States: Guardian Trust Magruder, J. & Deposit Co. v. Fisher, 200 U. S. " Driscoll V. Norwich & Worcester 57, 50 L. ed. 367, 26 Sup. Ct. 180 Rd. Co., 65 Conn. 230, 32 Atl. 354. (statute to be liberally construed to " ChoUette v. Omaha & Republi- give effect to intent of legislature can Valley Rd. Co., 26 Neb. 159, 41 and make corporate property security N. W. 1106, 4 L. R. A. 135. It is also against torts, and imposes upon plant held in this case that a railroad com- of corporation responsibility for torts pany organized and incorporated un- which cannot be avoided by con- der the laws of that State cannot veyance to new corporation), absolve itself from the performance Illinois: Chicago, M. & St P. Ry. of duties imposed upon it by law, Co. v. City of Chicago, 83 111. App, 826 ALIENATION AND FORFEITURE § 464 poration in debt cannot transfer its entire property by lease, so as to prevent the application of it, at its full value, to the 233 (purchaser of franchises is not v. Bridgeton & M. Traction Co., 62 freed from public duty imposed by N. J. L. 592, 43 Atl. 715, 45 L. R. A. grant). 837 (transferee obligated to main- Indiana: Graham v. Chicago, I. tain and operate street railroad). & L. Ry. Co. (Ind. App., 1906), 77 Texas: Dallas Consolidated Trac- N. E. 57, 1055 (railroad company tion Co. v. Maddox (Tex. Civ. App.), cannot by transfer relieve grantee 31 S. W. 702 (purchaser not bound by from statutory obligations as to pub- contract obligations of selling com- lic security); United States Capsule pany). Co. V. Isaacs, 23 Ind. App. 533, 55 Purchasers obligated by burdens and N. E. 832 (transferee liable for debts conditions. Purchasers of a rail- of consolidating companies, but lim- road, not having any right to de- ited by amount of property trans- mand to be incorporated under the ferred). laws of a State, but voluntarily ac- Michigan : Chase v. Michigan Tel. cepting the privileges and benefits Co., 121 Mich. 631, 80 N. W. 717 of an incorporation law, are bound (not liable in absence of statute or by the provisions of existing laws agreement for seller's obligations, and regulating rates of fare and are, as in case of tort only liable after judg- well as the corporation formed, es- ment against seller); Wallace v. Ann topped from repudiating the bur- Arbor & Y. Electric Ry. Co., 121 dens attached by the statute to the Mich. 588, 80 N. W. 572 (transferee privilege of becoming an incorpora- prima facie bound to honor passes tion. Grand Rapids & Ind. Ry. Co. issued by transferring company); v. Osborn, 193 U. S. 17, 48 L. ed. 598, Grenell v. Detroit Gas Co., 112 Mich. 24 Sup. Ct. 310. See Metropolitan 70, 70 N. W. 413, 3 Det. L. N. 858, 6 Trust Co. v. Columbus, S. & H. R. Am. & Eng. R. Cas. (N. S.) 420 (pur- Co. (C. C), 95 Fed. 18. So where chaser assumes creditors' claims in conditions are attached to the right respect to property transferred). of a corporation and its successors Minnesota: Heron v. St. Paul, to operate a railroad on a street, M. & M. R. Co., 68 Minn. 542, 71 such conditions bind the transferee. N. W. 706 (old company liable for Chicago, M. & St. P. Ry. Co. v. City negligence of transferee of right to of Chicago, 183 111. 341, 55 N. E. run trains over former road when it 648, aff 'g 83 111. App. 233. retains control). A business or manufacturing corpo- Missouri : Lawson v. Illinois ration does not become the owner of Southcni liy. Co., 116 Mo. App. 090, a railroad company's road, fran- 94 S. W. 807 (purchaser not liable chises, or other property, by owning for destruction of crops); Porter v. nearly all the stock of the latter. A Illinois Southern Rd. Co., 116 Mo. railroad company, whoever may be App. 526,92 S. W. 744 (purchaser not the owner of its stock, still owns its liable for torts of seller). See Hager- property. Ulmer v. Lime Rock H. mann v. Southern Electric Co. (Mo.), Co., 98 Me. 579, 57 Atl. 1001. 100 S. W. 1081. Whether lessor or lessee liable for New Jersey: State, Bridgeton, torts and debts, see the ioWow'mg cases: 827 § 464 ALIENATION AND FORFEITURE satisfaction of the debts of the company ; and when such trans- fer is made under circumstances which warrant such remedy, United States: Chesapeake & O. & W. R. Co., 65 Conn. 230, 32 Ry. Co. V. Howard, 178 U. S. 153, 44 Atl. 354 (lease ratified by State; L. ed. 1015,20 Sup. Ct. 880 (railroads; managing agent of lessee to be per- lessor through agents and servants son satisfactory to lessor; lessor not managed and conducted train; no de- released from liability for negli- fense for negligence causing injury gence of lessee), that road was leased); Chicago, M. Georgia: Pickens v. Georgia, Rd. 6 St. P. Ry. Co. V. Third Nat. Bank, Co., 126 Ga. 517, 55 S. E. 171 (rail- Chicago, 134 U. S. 276, 10 Sup. Ct. road company; lessor liable for in- 550, 33 L. ed. 900 (a lessee of a jury to passenger for breach of public railroad, receiving money to be ex- duty where road is operated by les- pended on the leased property, and see). See Nashville, C. & St. L. R. misappropriating it by spending it on Co. v. Edwards, 91 Ga. 24. another property, cannot, by after- Illinois: People, Cantrell, v. St. wards spending an equal amount of Louis, A. & T. H. R. Co., 176 111. its own money on the leased prop- 512, 52 N. E. 292, 12 Am. & Eng. erty, deprive a creditor of the lessor of R. Cas. (N. S.) 227, aff 'g 45 N. E. 824, an equitable right growing out of the 35 L. R. A. 656, 6 Am. & Eng. R. misappropriation); Chicago & N. W. Cas. (N. S.) 241 (lessee of railroad Ry. Co. V. Crane, 113 U. S. 424, 28 bound by requirements of lessor's L. ed. 1064, 5 Sup. Ct. 578 (statute, charter). authorizing company to lease rail- Kansas: Carruthers v. Kansas road to another corporation and re- City, Ft. S. & M. R. Co., 59 Kan. 629, quiring lessee to be liable in same 54 Pac. 673, 44 L. R. A. 737 (lease manner as though railroad belonged authorized; lessor no control over rail- to it, imposes liability as to leased road; general lease; lessor not liable property upon lessee while operating for results of lessee's negligence), it; but does not discharge lessor from Kentucky: Schmidt v. Louisville its corporate liabilities); Hukill v. & N. R. Co., 101 Ky. 441, 19 Ky. Maysville & B. S. R. Co. (C. C), 72 L. Rep. 666, 38 L. R. A. 809 Fed. 745 (lessor empowered to lease (lessee held not a mere tenant by not liable for all lessee's torts; nor sufferance, but bound by terms of liable for lessee's torts as to em- lease where it assumes control of and ployees; is liable for injuries to pub- operates road); Brooker v. Maysville lie). & B. S. R. Co., 26 Ky. L. Rep. 1022, California: Lee v. Southern Pa- 83 S. W. 117 (railroad making ultra cific R. Co., 116 Cal. 97, 47 Pac. 932, vires lease to foreign corporation of 7 Am. & Eng. R. Cas. (N. S.) 656, 38 ferry franchise acquired by lessor, is L. R. A. 71 [constitutional provision liable for negligent injury to pas- against leasing so as to release lessor senger on ferryboat). from liability (Cal. Const., art. 12, Michigan: Ackerman v. Cincin- § 10), injured employee of lessee; no nati, S. & M. R. Co. (Mich., 1906), action against lessor but may enforce 12 Det. L. N. 908, 106 N. W. 558 judgment against property]. [lessor not liable for acts of lessee Connecticut; Driscoll v. Norwich of railroad; statute (Comp. Laws, 828 ALIENATION .AN'D FORFEITURE § 464 a court of equity will decree the payment of a judgment debt of the lessor by the lessee.^® In a Federal case it appeared that a corporation, formed by articles of association, called a certifi- cate or charter, under the general laws of Pennsylvania con- cerning manufacturing companies, with a certain capital stock, for twenty years, for "the transportation of passengers in rail- road cars constructed and owned by the said company," under certain patents, carried on the business of manufacturing sleeping cars under its patents, and of hiring and letting the cars to railroad companies by written contracts, receiving a revenue from the sale of berths and accommodations to passen- gers. Seven years afterwards, by special act of the legislature of Pennsylvania, the charter was extended for ninety-nine years, and the corporation was empowered to double its capital stock, and "to enter into contracts with corporations of this or any other State for the leasing or hiring and transfer to them, or any of them, of its railway cars and other personal § 6369) authorized lease and made lessee liable]. Minnesota: Heron v. St. Paul, M. & M. R. Co., 68 Minn. 542, 71 N. W. 706 (lease authorized by legisla- ture; lessee had exclusive control; les- sor not liable for negligence of lessee or sublessee). Ohio: Beckett Paper Co. v. Ham- ilton & R. H. Co., 18 Ohio C. C. 200 (lessees of water power liable after assignment of lease). Virginia: Ft. Winchester & Stras- burg Rd. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692 (the lessee of a railroad who had contracted to per- form all the public legal obligations of the lessor, and who is of financial ability to do so, will be compelled to discharge such obligations, al- thou-^h the lessor may be of financial ability to do so, and although it may entail a lo.ss upon the lessee, evidence upon the latter subject is, therefore, inadmissible. A lessor and a lessee who have sought and obtained a charter imposing obligations cannot repudiate them simply because they are onerous and unprofitable). West Virginia; Guinn v. Ohio River R. Co. (W. Va.), 33 S. E. 87 (lessee of constructed railroad not liable for damages to property oc- casioned by construction and opera- tion). Canada: Michigan C. R. Co. v. Wealleans, 24 Can. S. C. 309 (foreign lessee, under authorized lease; no greater liability than that of lessor where property injured without neg- ligence). Examine Miller v. New York, L. & W. R. Co., 125 N. Y. 118, 34 N. Y. St. R. 607, 26 N. E. 35, rev'g 20 N. Y. St. R. 157, 3 N. Y. Supp. 245; Lo- gan V. North Carolina R. Co., 116 N. C. 940. '"Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank, Chicago, 134 U. S. 276, 33 L. ed. 900, 10 Sup. Ct. 550. 829 I 464 ALIP^NATION AND FORFEITURE property." The corporation forthwith entered into an in- denture with a corporation of another State engaged in a similar business, by which it leased and transferred to that corporation all its cars, railroad contracts, patent rights and other personal property, moneys, credits and rights of action, for the term of ninety-nine years, except so far as the contracts and patents should expire sooner; and covenanted not to "engage in the business of manufacturing, using or hiring sleeping cars" while the indenture should remain in force; and the lessee covenanted to pay all existing debts of the lessor, and to pay to the lessor annually the sum of $264,000, during the entire term of ninety-nine years, unless the indenture should be sooner terminated as therein provided. It was held that this contract was unlawful and void, because beyond the corporate power of the lessor, and involving an abandonment of its duty to the public; and therefore no action could be maintained by the lessor upon the contract, or to recover the sums thereby payable, even while the lessee had enjoyed the benefits of the contract. ^^ In another Federal case the facts were as follows: A lease to a commercial partnership from a railroad corporation of a strip of its land by the side of its track in the State of Iowa, for the purpose of erecting and maintain- ing a cold storage warehouse thereon, contained an agreement that the corporation should not be liable to the partnership for any damage to the building or contents, by fire from the loco- motive engines of the corporation, although owing to its negli- gence. At a trial of an action brought in the Circuit Court of the United States by the partnership against the corporation to recover for damage to the building and contents by fire from its locomotive engines, owing to its negligence, under a statute of the State making any railroad corporation liable for damages to property of others by fire from its locomotive engines, the plaintiff contended that the agreement was void as against pub- lic policy. It appeared that, since this lease, the highest court of the State, in an action between other parties, had at first " Central Trans. Co. v. Pullman's Pal. Car. Co., 139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct. 478. 830 ALIENATION AND FORFEITURE § 465 held a like agreement to be void as against public policy, but, upon a rehearing, had reversed its opinion, and entered final judgment affirming the validity of the agreement; and it also appeared that its final decision was not inconsistent with its decision or opinion in any other case. It was held, that the question of the validity of the agreement was one of statutory and local law, or of general jurisprudence; and that the final decision of the state court thereon was rightly followed by the Circuit Court of the United States.^* § 465. Power to Alienate Franchises — Legislative Au- thorization. — It is within the power of a legislature which creates a corporation and grants to it its franchise, to empower it to sell, lease or otherwise transfer those franchises. ^^ And where a statutory authorization exists to alienate, a city's con- sent thereto is unnecessary although the franchise right to use its streets was granted by the city.^" The power granted to "Hartford Fire Ins. Co. v. Chicago, Sup. Ct. 416. But it is not obliged, M. & St. P. Ry. Co., 175 U. S. 91, and cannot even be compelled by 99, 20 Sup. Ct, 33, 44 L. ed. 84. "A statute, against its will, to permit railroad corporation holds its station private persons or partnerships to grounds, railroad tracks and right of erect or maintain elevators, ware- way for the public use for which it is houses or similar structures, for their incorporated, yet as its private own benefit, upon the land of the property, and to be occupied by it- railroad company. Missouri Pacific self or by others, in the manner which Railroad Co. v. Nebraska, 104 U. S. it may consider best fitted to pro- 403, 41 L. ed. 489, 17 Sup. Ct. 130." mote, or not to interfere with, the Id., per Gray, J. public use. It may, in its discretion, '^ Williamctte Mfg. Co. v. Bank of permit them to be occupied by others British Columbia, 119 U. S. 191, 30 with structures convenient for the L. ed. 384, 7 Sup. Ct. 187; St. Louis receiving and delivering of freight & C. R. Co. v. East St. Louis & C. upon its railroad, so long as a free and R. Co., 39 111. App. 354, case aflf'd safe passage is left for the carriage of 139 111. 401, 28 N. E. 1088; State, freight and passengers. Grand Trunk Badger Ilium. Co., v. Anderson, 97 Railroad v. Richardson, 91 U. S. Wis. 114, 72 N. W. 386. 454, 23 L. ed. 356. And it must '» Michigan Telcph. Co. v. City of provide reasonable means and facil- St. Jo.seph, 121 Mich. 502, 80 N. W. ities for receiving goods offered by 383,47 L. R. A. 87, 7 Am. Elec. Cas. the public to be transported over 1. See Moorshead v. United Rys. its road. Covington Stockyards v. Co., 119 Mo. App. 541, 90 S. W. Keith, 139 U. S. 128, 35 L. ed. 73, 11 201. 831 § 465 ALIENATION AND FORFEITURE make or take a lease of a railroad may be limited to connecting or continuous lines.^^ So the act of the legislature of Ken- tucky of January 22, 1858, authorizing any railroad company to lease its road to another railroad company, provided its road so leased should be so connected as to form a continuous line, permits the lessee company to take leases of branches by means of which it established continuous lines from their several ter- mini to each of its own.^' Under the laws of North Carolina a corporation can sell, transfer or mortgage its franchises, other than its franchise of existence, and the franchise so far as it relates to receiving fare or tolls, may be sold without the other property of the corporation.^^ In a Federal decision, rendered in 1888, it is held that the constitution and general laws of Oregon do not authorize a railroad corporation, organized under the laws of the State, to take a lease of a railroad and franchise ; nor do the general laws of that State confer upon a foreign cor- poration a right to make a lease of a railroad within the State, but only the right to construct or acquire and operate one there. ^^ Under the Pennsylvania act of 1870,^^ authorizing leases to or by ''railroad companies," steam, passenger and all railroads are included; ^^ and under the statute of 1876 of that State ^'' water companies are empowered to alienate their fran- chises and property and another water company may become the purchaser and owner of such property. ^^ In West Virginia the act of 1901 ^^ vests corporations with the power to sell all 21 Chesapeake & O. R. Co. v. nian Ry. Co., 130 U. S. 1, 32 L. ed. Howard, 14 App. D. C. 262, 27 Wash. 837, 9 Sup. Ct. 409 (decided in 1888). L. Rep. 146; W. Va. Code, chap. 54, « Act February 13, 1870, P. L. 31. § 53; State, Leese, v. Atchinson & ^^ Rafferty v. Central Traction Co., N. R. Co., 24 Neb. 143, 38 N. W. 43; 1 Pa. Adv. R. 419, 29 W. N. C. 542, Neb. Comp. Stat., chap. 16, § 94. 2 Pitts. L. J. (N. S.) 319, 50 Am. & " Hancock v. Louisville & N. R. Eng. R. Cas. 239, 23 Atl. 884. R. Co., 145 U. S. 409, 36 L. ed. 755, "Act April 17, 1876, P. L. 33, 12 Sup. Ct. 969. amending Act April 29, 1874, § 23, " Central Trust Co. of N. Y. v. P. L. 83. Western North Carolina Rd. Co., 89 ^^ Hey v. Springfield Water Co., Fed. 24, 31; Code N. C, §§ 671, 673- 207 Pa. 38, 56 Atl. 265. 675. 2»Acts 1901, p. 93, c. 35; Code "Oregon R. & N. Co. v. Orego- 1899, C. C. 52,63,54. 832 ALIENATION AND FORFEITURE § 466 their property, where they act in good faith and are authorized so to do by the vote of a certain per cent of outstanding stock, and the fact that the company was incorporated before the act does not prevent its apphcation.^" Street and passenger rail- ways and traction companies are also authorized under state and municipal legislative enactments to alienate their prop- erty. ^^ § 466. Power to Alienate Franchises — Legislative Au- thorization Continued. — It is held that a transfer of the privileges or franchise of an elevated street railroad company is not precluded by a prohibition, in the ordinance conferring such franchise, against its use by any other company; the municipality alone has the right to enforce such prohibition as it alone is benefited thereby .^^ Nor does a statutory pro- hibition against a transfer or lease by a corporation of its franchise prevent such alienation by an individual.^^ In Ken- tucky the word "franchise" in a statute providing that "no corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liability of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise or any of its privileges," is the corporate existence or charter privileges '"Germer v. Triple State Natural R. & L. Co., 95 Wis. 29, 69 N. W. Gas & Oil Co. (W. Va., 1906), 54 791, 36 L. R. A. 47, under Wis. Laws S. E. 509. 1883, chap. 221, as am'd by Laws ''Moorshead v. United Rys. Co., 1891, chap. 127. 119 Mo. App. 541, 96 S. W. 261 "Chicago & S. S. R. T. R. Co. v. (municipal ordinance); Hampe v. Northern Trust Co., 90 111. App. 460. Pittsburg & B. Traction Co., 165 Pa. Sec Oregon Ry. & Nav. Co. v. Ore- 468,25 Pitts. L.J. (N. S.) 413,30Atl. gonian Ry. Co., 130 U. S. 1, 9 Sup. 931, under Pa. Act April 23, 1861, Ct. 409, 32 L. ed. 837, noted under P. L. 410, and Pa. Act February 17, § 467, herein. 1870, P. L. 31 (the possession of " Long Acre Electric Light & franchises of an inclined railroad does Power Co., In re, 101 N. Y. Supp. not preclude this right); Philadel- 400, 51 Misc. 407, aff'd 102 N. Y. phia & W. C. Tump. Co. v. Phila- Supp. 242, 117 App. Div. 80, also delphia & D. C. R. Co. (C. P.), 5 Pa. aff'd 188 N. Y. 361, 80 N. E. 1101; Diet. R. 305, under Act March 22, Laws N. Y. 1905, p. 2097, c. 737, 1887; Wright v. Milwaukee Electric § 13. 53 833 § 466 ALIENATION AND FORFEITURE as distinguished from the corporeal property of the corpora- tion. ^'^ In that State the statute of 1903 ^^ provides for consent of court as a condition to making a sale of a ferry right and imposes certain limitations as to the time within which a non- resident owner shall make a sale to a resident citizen of the State, with other conditions, the non-compliance with which authorizes a revocation of the grant; but in applying this stat- ute it was held that such non-compUance did not per se operate to revoke a lease, but that this must be done by a direct pro- ceeding for that purpose instituted by the State or county authorities, or by the lessor.^^ In New York a lease made at public auction may include two ferries, in the discretion of the commissioners of the sinking fund of New York City." In a Connecticut case a bequest was made to a charitable corpora- tion located in the State of Pennsylvania. After the will was made, and before the death of the testator, the legislature of the latter State authorized the corporation to transfer its entire property and franchises to a corporation established in the State of New York for the same charitable purpose, which corpora- tion was to become its legal successor and hold and enjoy all its corporate franchises and powers. The legislature of New York authorized the New York corporation to receive the property and franchise of the Pennsylvania corporation. The transfer was effected, and the New York corporation thereafter carried on, and at the time of the testator's death was carrying on, the same charitable work that had been carried on by the Pennsylvania corporation, using the same means and employ- ing the same agencies. The legacy was a general one with no directions as to the objects for which, or the class of persons for 5< Bailey v. Southern Ry. Co., 112 St. R. 588; New York City Consol. Ky. 424, 430, 61 S. W. 31, per Act 1882, chap. 410, § 716. O'Kear, J. As to powers to take or make '= Ky. Stat. 1903, § 1808, subd. 3. grant or assignment of ferry fran- '' Paynter v. Miller, 25 Ky. L. Rep. chise, subject to the rights of New 2222, 80 S. W. 469. York City or other municipal cor- " Starin v. Staten Island R. T. poration, etc., see Transp. Corp. R. Co., 112 N. Y. 206, 20 N. Y. St. Law of N. Y., Laws 1890, chap. Rep. 898, 19 N. E. 670, rev'g 4 N. Y. 566, § 4. 834 ALIENATION AND FORFEITURE § 467 whose benefit the money was to be applied. It was decided that the legacy lapsed. The court, per Park, C. J., gave as one of the reasons for the above decision the following: "A fran- chise of a corporation is its life — its being. * * * Mani- festly there was nothing whatever left of this corporation after the transfer was made." ^^ § 467. Power to Alienate Franchises — Implied Legislative Authorization — Presumptions — Construction of Statutes. — A statute ^^ empowering all railroad companies incorporated under the laws of the State to make "contracts and ar- rangements with each other, and with railroad corporations of other States, for leasing or running their roads," authorizes a railroad company of the State to make a lease of its road to a railroad corporation of another State, but confers no power on a railroad company of the other State to take such a lease, if not authorized to do so by the laws of its own State. ■**^ But it is also held that the ordinary clause in a railroad company's char- ter, authorizing it to contract with other transportation com- panies for the mutual transfer of goods and passengers over each other's roads, confers no authority to lease its road and franchises."*^ And it is further decided: That the power to lease a railroad, its appurtenances and franchises, is not to be presumed from the usual grant of powers in a railroad charter; and, unless authorized by legislative action .so to do, one com- pany cannot transfer them to another company by lease, nor can the other company receive and operate them under such a '«Cram v. Bliss, 47 Conn. 592, 593. Hestonvillc, M. & F. Pass. Ry. Co., '•III. Stat. February 12, 1855. 9 Pa. Dist. R. 2, under Act May 15, « St. Louis & T. H. R. Co. v. Terre 1895, P. L. pp. 63, 64; Michigan C. Haute & I. R. Co., 145 U. S. 393, 12 C. R. Co. v. Weallcns, 24 Can. S. C. Sup. Ct. 953, 36 L. ed. 748. See 309. I'nion Pacific R. Co. v. Chicago, R. ^'Thomas v. Railroad Co., 101 I. & P. R. Co., 163 U. S. 564, 41 L. ed. U. S. 71, 25 L. ed. 950. See Central 265, 16 Sup. Ct. 1173; Beveridge v. Transp. Co. v. Pullman's Palace Car New York Kiev. R. Co., 112 N. Y. Co., 139 U. S. 24, 35 L. ed. 55, 11 1, 20 N. Y. St. R. 962, 19 N. E. 489, Sup. Ct. 478, 9 Ry. & Corp. L. J. 342, 2 L. R. A. 648, aff'g 5 N. Y. St. R. 45 Am. r ai)pointed shall be five years from the first of T'ebruary. A'acancies shall l>e filled by appointment for the unexpired teruL § 5. Jurisdiction of Commissions. — The jurisdiction, super- vision, powers and duties of the pubfic service commission in the first district shall extend under this act: 1. To railroads and street railroads lying exclusively within that district, and to the persons or corporations owning, leas- ing, operating or controlling the same. 883 § 5 APPENDIX A 2. To street railroads any portion of whose lines lies within that district, to all transportation of persons or property thereon within that district or from a point within either district to a point within the other district, and to the persons or corpora- tions owning, operating, controlling or leasing the said street railroads; provided, however, that the commission for the second district shall have jurisdiction over such portion of the lines of said street railroads as lies within the second district, and over the persons or corporations owning, operating, con- trolling or leasing the same, so far as concerns the construction, maintenance, equipment, terminal facilities and local transpor- tation facilities of said street railroads within the second district. 3. To such portion of the lines of any other railroad as lies within that district, and to the person or corporation owning, leasing, operating or controlling the same, so far as concerns the construction, maintenance, equipment, terminal facilities and local transportation facilities, and local transportation of per- sons or property within that district. 4. To any common carrier operating or doing business exclu- sively within that district. 5. To the manufacture, sale or distribution of gas and elec- tricity for light, heat and power in said district, and to the per- sons or corporations owning, leasing, operating or controlling the same. 6. And in addition thereto, the commission in the first dis- trict shall have and exercise all powers heretofore conferred upon the board of rapid transit railroad commissioners under chapter four of the laws of eighteen hundred and ninety-one, entitled: "An act to provide for rapid transit railways in cities of over one million inhabitants," and the acts amendatory thereto. All jurisdiction, supervision, powers and duties under this act not specifically granted to the public service commission of the first district shall be vested in, and be exercised by, the pub- lic service commission of the second district, including the regu- lation and control of all transportation of persons or property, and the instrumentalities connected with such transportation, 884 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 6-8 on any railroad other than a street raih-oad from a point within either district to a point within the other district. § 6. Counsel to the Commissions. — Each commission shall appoint as counsel to the commission an attorney and counsel- lor-at-law of the State of New York, who shall hold office during the pleasure of the commission. Each counsel to the commission shall, subject to the approval of the commission, have the power to appoint, and at pleasure remove, attornej's and counsellors- at-law, to assist him in the performance of his duties, and also to employ and remove stenographers and process-servers. § 7. Secretary to the Commissions. — Each commission shall have a secretary to be appointed by it and to hold office during its pleasure. It shall be the duty of the secretary to keep a full and true record of all proceedings of the commission, of all books, maps, documents and papers ordered filed by the com- mission and of all orders made by a commissioner and of all orders made by the commission or approved and confirmed by it and ordered filed, and he shall be responsible to the commis- sion for the safe custody and preservation of all such documents at its office. Under the direction of the commission the secre- tary shall have general charge of its office, superintend its cleri- cal business and perform such other duties as the commission may prescribe. He shall have power and authority to ad- minister oaths in all parts of the State, so far as the exercise of such power is properly incidental to the performance of his duty or that of the commission. The secretary shall designate, from time to time, one of the clerks appointed by the commission to perform the duties of secretary during his absence and, during such time, the clerk so designated shall at the office possess the powers of the secretary of the commission. ^ 8. Additional Officers and Employees. — Each commission shall have j)o\v(>r to cnijjloy, (hiring its j)Ieasure, such officers, clerks, inspectors, experts and employees as it may deem to be necessary to carry out the provisions of this act, or to perform 885 §§ 9-11 APPENDIX A the duties and exercise the powers conferred by law upon the commission. § 9. Oath of Office ; Eligibility of Commissioners and Officers. — Each commissioner and each person appointed to office by a commission or by counsel to a commission shall, be- fore entering upon the duties of his office, take and subscribe the constitutional oath of office. No person shall be eligible for appointment or shall hold the office of commissioner or be appointed by a commission or by counsel to a commission to, or hold, any office or position under a commission, who holds any official relation to any common carrier, railroad corporation, street railroad corporation, gas corporation or electrical corpo- ration subject to the provisions of this act, or who owns stocks or bonds therein. § 10. Offices of Commissions; Meetings; Official Seal; Stationery, etc. — The principal office of the commission of the the first district shall be in the borough of Manhattan, city of New York; and the office of the second district shall be in the city of Albany, in rooms designated by the trustees of public buildings. Each commission shall hold stated meetings at least once a month during the year at its office. Each shall have an official seal to be furnished and prepared by the Secretary of State as provided by law. The offices shall be supplied with all necessary books, maps, charts, stationery, office furniture, tele- phone and telegraph connections and all other necessary ap- pliances, to be paid for in the same manner as other expenses authorized by this act. 2. The offices of each commission shall be open for business between the hours of eight o'clock in the morning and eleven o'clock at night every day in the year, and one or more re- sponsible persons, to be designated by the commission or by the secretary under the direction of the commission, shall be on duty at all times in immediate charge thereof. § 11. Quorum; Powers of a Commissioner. — A majority of the commissioners shall constitute a quorum for the transac- 886 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 12, 13 tion of any business, for the performance of any duty or for the exercise of any power of the commission, and may hold meet- ings of the commission at any time or place within the State. Any investigation, inquiry or hearing which either commission has power to undertake or to hold may be undertaken or held by or before any commissioner. All investigations, inquiries, hearings and decisions of a commissioner shall be and be deemed to be the investigations, inquiries, hearings and decisions of the commission and every order made by a commissioner, when ap- proved and confirmed by the commission and ordered filed in its office, shall be and be deemed to be the order of the commis- sion. § 12. Counsel to the Commissions ; Duties. — It shall be the duty of counsel to a commission to represent and appear for the people of the State of New York and the commission in all actions and proceedings involving any question under this act, or under or in reference to any act or order of the commission, and, if directed to do so by the commission, to intervene, if pos- sible, in any action or proceeding in which any such question is involved ; to commence and prosecute all actions and proceed- ings directed or authorized by the commission, and to expedite in every way possible final determination of all such actions and proceedings; to advise the commission and each commissioner when so requested in regard to all matters in connection with the powers and duties of the commission and of the members thereof, and generally to perform all duties and services as at- torney and counsel to the commission which the commission may reasonably require of him. § 13. Salaries and Expenses. — The annual salary of each commissioner shall be fifteen thousand dollars ($15,000). The annual salary of counsel to a commission shall be ten thousand dollars (S10,000). The annual salary of a secretary to a com- mission shall be six thousand dollars ($6,000). All officers, clerks, inspectors, experts and employees of a commission, and all persons appointed by the counsel to a commission, shall re- ceive the compensation fixed by the commission. 887 § 14 APPENDIX A The commissioners, counsel to the commission and the secre- tary, and their officers, clerks, inspectors, experts and other employees, shall have reimbursed to them all actual and neces- sary travelling and other expenses and disbursements incurred or made by them in the discharge of their official duties. § 14. Payment of Salaries and Expenses. — 1. The salaries of the commissioners, the counsel to the commission, and the secretary to the commission in the first district shall be audited and allowed by the state comptroller, and paid monthly by the state treasurer upon the order of the comptroller out of the funds provided therefor. All other salaries and expenses of the commission of the first district shall be audited and paid as follows : The board of estimate and apportionment of the city of New York, or other board or public body on which is imposed the duty and in which is vested the pow^r of making appropri- ations of public moneys for the purposes of the city government shall, from time to time, on requisition duly made by the public service commission of the first district, appropriate such sum or sums of money as may be requisite and necessary to enable it to do and perform, or cause to be done and performed, the duties in this or in any other act prescribed, and to provide for the expenses and the compensation of the employees of such commission, and such appropriation shall be made forthwith upon presentation of a requisition from the said commission, which shall state the purposes for which such moneys are re- quired by it. In case the said board of estimate and apportion- ment, or such other board or public body, fail to appropriate such amount as the said commission deems requisite and neces- sary, the said commission may apply to the appellate division of the Supreme Court in the first department, on notice to the board of estimate and apportionment or such other board or public body aforesaid, to determine what amount shall be ap- propriated for the purposes so required and the decision of said appellate division shall be final and conclusive; and the city shall not be liable for any indebtedness incurred by the said commission in excess of such appropriation or appropriations. PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 14 It shall be the duty of the auditor and comptroller of said city, after such appropriation shall have been duly made, to audit and pay the proper expenses and compensation of the employees of said commission other than its counsel and secretary, upon vouchers therefor, to be furnished by the said commission, which payments shall be made in like manner as payments are now made by the auditor, comptroller or other public officers of claims against and demands upon such city; and for the purpose of providing funds with which to pay the said sums, the comp- troller or other chief financial officer of said city, is hereby au- thorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropri- ations are made. The commission may provide that all or any portion of the expenses so incurred and paid by said city as in this section provided, and for which said city shall bo liable, shall be repaid, with interest, by the bidder or bidders at the public sale of the rights, privileges and franchises, as provided in chapter four of the laws of eighteen hundred and ninety-one, entitled : "An act to provide for rapid transit railways in cities of over one million inhabitants," and the acts amendatory thereto. The said comptroller shall pay the proper salaries and the expenses of the said commission upon its requisition, for the remainder of the fiscal year after this act shall take effect, from any funds that may have been heretofore appro- priated for the board of rapid transit railroad commissioners, which appropriation is hereby transferred to the credit of the public service commission of the first district. In cas(> th(> said appropriation shall not be sufficient to meet such salaries and expenses, the comptroller of said city is hereijy author! z('(l and directed to issue and sell revenue bonds of said city, in anticipa- tion of receipt of taxes, as hereinbefore provided, S89 §§ 15, 16 APPENDIX A 2. All salaries and expenses of the commission in the second district shall be audited and allowed by the state comptroller and paid monthly by the state treasurer upon the order of the comptroller, out of the funds provided therefor. § 15. Certain Acts Prohibited. — Every commissioner, coun- sel to a commission, the secretary of a commission, and every person employed or appointed to office, either by a commission or by the counsel to a commission, is hereby forbidden and prohibited to solicit, suggest, request or recommend, directly or indirectly, to any common carrier, railroad corporation or street railroad corporation, or to any officer, attorney, agent or em- ployee thereof, the appointment of any person to any office, place, position or employment. And every common carrier, railroad corporation, street railroad corporation, gas corpo- ration and electrical corporation, and every officer, attorney, agent and employee thereof, is hereby forbidden and prohibited to offer to any commissioner, to counsel to a commission, to the secretary thereof, or to any person employed by a commission or by the counsel to a commission, any office, place, appoint- ment or position, or to offer or give to any commissioner, to counsel to a commission, to the secretary thereof, or to any officer employed or appointed to office by the commission or by the counsel to the commission, any free pass or transportation or any reduction in fare to which the public generally are not entitled or free carriage for freight or property or any present, gift or gratuity of any kind. If any commissioner, counsel to a commission, the secretary thereof or any person employed or appointed to office by a commission or by counsel to a com- mission, shall violate any provision of this section he shall be removed from the office held by him. Every commissioner, counsel to the commission, the secretary thereof and every per- son employed or appointed to office by the commission or by counsel to the commission, shall be and be deemed to be a public officer. § 16. Annual Report of Commissions. — All proceedings of each commission and all documents and records in its posses- 890 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 17, 18 sion shall be public records, and each commission shall make an annual report to the legislature on or before the second Mon- day of January in each year, which shall contain copies of all orders issued by it, and any information in the possession of the commission which it shall deem of value to the legislature and the people of the State. Five hundred copies of each report, to- gether with the abstracts of the reports to such commission of common carriers, railroad corporations and street railroad corporations, and gas and electrical corporations, in addition to the regular number prescribed by law, shall be printed as a pub- lic document of the State, bound in cloth, for the use of the commissioners and to be distributed by them in their discretion to railroad, street railroad, gas and electrical corporations and other persons interested therein. § 17. Certified Copies of Papers Filed to Be Evidence. — Copies of all official documents and orders filed or deposited ac- cording to law in the office of either commission, certified by a commissioner or by the secretary of the commission to be true copies of the originals, under the official seal of the commission, shall be evidence in like manner as the originals. § 18. Fees to Be Charged and Collected by the Commis- sions. — Each commission shall charge and collect the follow- ing fees: For copies of papers and records not required to be certified or otherwise authenticated by the commission, ten cents for each folio; for certificKl copies of oflicial documents and orders filed in its office, fifteen cents for each folio, and one dollar for every certificate under seal affixed thereto; for certi- fying a copy of any report made by a corporation to the com- mission, two dollars; for each certified copy of the annual report of the commission, one dollar and fifty cents; for certified copies of evidence and proceedings before the commission, fifteen cents for each folio. No fees shall be charged or collected for copies of papers, records or official documents, furnished to public officers for use in their oflScial capacity, or for the annual reports of the commission in the ordinary course of distribution. 891 § 19 APPENDIX A All fees charged and collected by the commission of the first district shall belong to the city of New York, and shall be paid monthly, accompanied by a detailed statement thereof, into the treasury of the city to the credit of the general fund, and all fees charged and collected by the commission of the second district shall belong to the people of the State, and shall be paid monthly, accompanied by a detailed statement thereof, into the treasury of the State to the credit of the general fund. § 19. Attendance of Witnesses and Their Fees.— 1. All sub- poenas shall be signed and issued by a commissioner or by the secretary of a commission and may be served by any person of full age. The fees of witnesses required to attend before a commission, or a commissioner, shall be two dollars for each day's attendance, and five cents for every mile of travel by the nearest generally travelled route in going to and from the place where attendance of the witness is required, such fees to be paid when the witness is excused from further attendance ; and the disbursements made in the payment of such fees shall be audited and paid in the first district in the same manner provided for the payment of expenses of the commission. 2. If a person subpoenaed to attend before a commission, or a commissioner fails to obey the command of such subpoena, without reasonable cause, or if a person in attendance before a commission, or commissioner, shall, without reasonable cause, refuse to be sworn or to be examined or to answer a question or to produce a book or papers, when ordered so to do by the com- mission, or a commissioner, or to subscribe and swear to his deposition after it has been correctly reduced to writing, he shall be guilty of a misdemeanor and may be prosecuted there- for in any court of competent criminal jurisdiction. If a person in attendance before a commission or a com- missioner refuses without reasonable cause to be examined or to answer a legal and pertinent question or produce a book or paper, when ordered so to do by a commission or a commis- sioner, the commission may apply to any justice of the Supreme Court upon proof by affidavit of the facts for an order returnable 892 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 20,21 in not less than two nor more than five days directing such par- son to show cause before the justice who made the order, or any other justice of the Supreme Court, why he should not be com- mitted to jail; upon the return of such order the justice before whom the matter shall come on for hearing shall examine under oath such person whose testimony may be relevant, and such person shall be given an opportunity to be heard; and if the justice shall determine that such person has refused without reasonable cause or legal excuse to be examined^ or to answer a legal and pertinent question, or to produce a book or paper which he was ordered to bring, he may forthwith, by warrant, commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged ac- cording to law. § 20. Practice Before the Commissions; Immunity of Witnesses. — All hearings before a commission or a commis- sioner, shall be governed by rules to be adopted and prescribed by the commission. And in all investigations, inquiries or hear- ings the commission, or a commissioner, shall not be bound by the technical rules of evidence. No person shall be excused from testifying or from producing any book or i)apers in any investigation or inquiry by or upon any hearing before a com- mission or any commissioner, when ordered to do so by the commission, upon the ground that the testimony or evidence, books or documents required of him may tend to incriminate him or subject him to penalty or forfeiture, but no person shall be prosecuted, punished or subjected to any penalty or forfeit- ure for or on account of any act, transaction, matter or thing concerning which he shall under oath have testified or produced documentary evidence; provided, however, that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony. Nothing herein contained is intended to give, or shall be construed as in any manner giving unto any corporation immunity of any kind. §21. Court Proceedings; Preferences. — All actions and proceedings under this act, and ail actions and proceedings 893 §§ 22, 23 APPENDIX A commenced or prosecuted by order of either commission, and all actions and proceedings to which either commission or the people of the State of New York may be parties, and in which any question arises under this act or under the railroad law, or under or concerning any order or action of the commission, shall be preferred over all other civil causes except election causes in all courts of the State of New York and shall be heard and deter- mined in preference to all other civil business pending therein excepting election causes, irrespective of position on the calen- dar. The same preference shall be granted upon application of counsel to the commission in any action or proceeding in which he may be allowed to intervene. § 22. Rehearing Before Commission. — After an order has been made by a commission any party interested therein may apply for a rehearing in respect to any matter determined therein, and the commission may grant and hold such a re- hearing if in its judgment sufficient reason therefor be made to appear; if a rehearing shall be granted, the same shall be deter- mined by the commission within thirty days after the same shall be finally submitted. An application for such a rehearing shall not excuse any common carrier, railroad corporation or street railroad corporation from complying with or obeying any order or any requirement of any order of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct. If, after such rehearing and a consideration of the facts, including those arising since the making of the order, the commission shall be of opinion that the original order or any part thereof is in any respect unjust or unwarranted, the commission may abrogate, change or modify the same. An order made after any such re- hearing abrogating, changing or modifying the original order shall have the same force and effect as an original order but shall not affect any right or the enforcement of any right arising from or by virtue of the original order. § 23. Service and Effect of Orders.— Every order of a com- mission shall be served upon every person or corporation to be 894 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 23 affected thereby, either by personal dehvery of a certified copy thereof, or by maihng a certified copy thereof, in a sealed pack- age with postage prepaid, to the person to be affected thereby or, in the case of a corporation, to any officer or agent thereof upon whom a summons may be served in accordance with the provisions of the code of civil procedure. It shall be the duty of every person and corporation to notify the commission forth- with, in writing, of the receipt of the certified copy of every order so served, and in the case of a corporation such notification must be signed and acknowledged by a person or officer duly authorized by the corporation to admit such service. Within a time specified in the order of the commission every person and corporation upon whom it is served must if so required in the order notify the commission in like manner whether the terms of the order are accepted and will be obeyed. Every order of a commission shall take effect at a time therein specified and shall continue in force for a period therein desig- nated unless earlier modified or abrogated by the commission or unless such order be unauthorized by this or any other act or be in violation of a provision of the constitution of the State or of the United States. ARTICLE II. PROVISIONS RELATING TO RAILROADS, STREET RAILROADS AND COMMON CARRIERS. § 25. Application of Article. § 33. Transportation Prohibited Un- 26. Adequate Service; Just and til Publication of Schedules; Reasonable Charges. Rates as Fixed to Be 27. Switch and Side-track Con- Charged; Passes Prohibited. nections; Powers of Commis- 34. Fal.se liilling, etc., by Carrier sions. or Shipper. 28. Tariff Schedules; Publication. .3.5. Di.scrimination Prohibited; 29. Changes in Schedule; Notice Connecting Lines. Required. 36. Long and Short Haul. 30. Concurrence in Joint Tariffs; 37. Distribution of Cars. Contracts, Agreements or 38. Liability for Damage to Prop- Arrangements Between any erty in Transit. Carriers. .39. Continuous Carriage. 31. L^nju.st Discrimination. 40. I>iability for Lo.ss or Damage 32. Unreasonable Preference. by Violation of This Act. 895 §§ 25-27 APPENDIX A § 25. Application of Article.— The provisions of this article shall apply to the transportation of passengers, freight or prop- erty, from one point to another within the State of New York, and to any common carrier performing such service. § 26. Safe and Adequate Service; Just and Reasonable Charges.— Every corporation, person or common carrier per- forming a service designated in the preceding section, shall furnish, with respect thereto, such service and facilities as shall be safe and adequate and in all respects just and reasonable. All charges made or demanded by any such corporation, person or common carrier for the transportation of passengers, freight or property or for any service rendered or to be rendered in con- nection therewith, as defined in section two of this act, shall be just and reasonable and not more than allowed by law or by order of the commission having jurisdiction and made as au- thorized by this act. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers, freight or property or in connection therewith or in excess of that allowed by law or by order of the commission is prohibited. § 27. Switch and Side-track Connections ; Powers of Com- missions.— 1. A railroad corporation, upon the application of any shipper tendering traffic for transportation, shall con- struct, maintain and operate upon reasonable terms a switch connection or connections with a lateral line of railroad or pri- vate side-track owned, operated or controlled by such shipper, and shall, upon the application of any shipper, provide upon its own property a side-track and switch connection with its line of railroad, whenever such sidetrack and switch connection is reasonably practicable, can be put in with safety and the busi- ness therefor is sufficient to justify the same. 2. If any railroad corporation shall fail to install or operate any such switch connection with a lateral line of railroad or any such side-track and switch connection as aforesaid, after written application therefor has been made to it, any corporation or 896 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 28 person interested may present the facts to the commission hav- ing jurisdiction by written petition, and the commission shall investigate the matters stated in such petition, and give such hearing thereon as it may deem necessary or proper. If the commission be of opinion that it is safe and practicable to have a connection, substantially as prayed for, established or main- tained, and that the business to be done thereon justifies the construction and maintenance thereof, it shall make an order directing the construction and establishment thereof, specifying the reasonable compensation to be paid for the construction, establishment and maintenance thereof, and may in like manner upon the application of the railroad corporation order the dis- continuance of such switch connection. § 28. Tariff Schedules; Publication. — Every common car- rier shall file with the commission having jurisdiction and shall print and keep open to public inspection schedules showing the rates, fares and charges for the transportation of passengers and property within the State- between each point upon its route and all other points thereon ; and between each point upon its route and all points upon every route leased, operated or controlled by it; and between each point on its route or upon any route leased, operated or controlled by it and all points upon the route of any other common carrier, whenever a through route and joint rate shall have been established or ordered between any two such points. If no joint rate over a through route has been established, the several carriers in such through route shall file, print and keep open to public inspection, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid shall plainly state the places between which property and pas- sengers will be carried, and shall also contain the classification of passengers, freight or property in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require to be stated, all privileges or facilities granted or allowed, and any rules or regulations which may in any wise change, affect or de- 57 897 § 29 APPENDIX A termine any part, or the aggregate of, such aforesaid rates, fares and charges, or the vakie of the service rendered to the pas- senger, shipper or consignee. Such schedules shall be plainly printed in large type; copies thereof for the use of the public shall be kept posted in two public and conspicuous places in every depot, station and office of every common carrier where passengers or property are received for transportation, in such manner as to be readily accessible to and conveniently in- spected by the public. The form of every such schedule shall be prescribed by the commission and shall conform as nearly as possible to the form of schedule required by the Interstate Com- merce Commission under the act of Congress, entitled: "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, as amended by act approved June twenty-ninth, nineteen hundred and six, and other amendments thereto. Where any similar schedule is required by law to be filed with both commissions they shall agree upon an identical form for such schedule. The commission shall have power from time to time, in its discretion, to determine and prescribe by order such changes in the form of such schedules as may be found expedient. § 29. Changes in Schedule ; Notice Required. — Unless the commission otherwise orders no change shall be made in any rate, fare or change, or joint rate, fare or charge, which shall have been filed and published by a common carrier in com- pliance with the requirements of this act, except after thirty days' notice to the commission and publication for thirty days as required by section twenty-eight of this act, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the changed rate, fare or charge will go into effect; and all proposed changes shall be shown by printing, filing and publishing new schedules or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. The commission, for good cause shown, may allow changes in rates without requiring the thirty days' notice and publication herein provided for, by duly PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 30-32 filing and publishing in such manner as it may direct an order specifying the change so made and the time when it shall take effect; all such changes shall be immediately indicated upon its schedules by the common carrier. § 30. Concurrence in Joint Tariffs; Contracts, Agree- ments or Arrangements Between any Carriers.— 1. The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission such evi- dence of concurrence therein or acceptance thereof as may be required or approved by the commission; and where such evi- dence of concurrence or acceptance is filed, it shall not be neces- sary for the carriers filing the same also to file copies of the tariffs in which they are named as parties. 2. Every common carrier shall file with the commission sworn copies of every contract, agreement or arrangement with any other common carrier or common carriers relating in anj'- way to the transportation of passengers, property or freight. § 31. Unjust Discrimination. — No common carrier shall, directly or indirectly, by any special rate, rebate, drawback, or other device or method, charge, demand, collect or receive from any person or corporation a greater or less compensation for any service rendered or to be rendered in the transportation of pas- sengers, freight or property, except as authorized in this act, than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous service in the transportation of a like kind of traffic under the same or substantially similar circumstances and conditions. § 32. Unreasonable Preference. — No common carrier shall make or give any undue or unreasonable preference or ad- vantage to any person or corporation or to any locality or to any particular description of trallic in any respect whatsoever, or subject any particular jK'rson or corporation or locality or any particular descrij)tion of traflic, to any prejudice or dis- advantage in any respect whatsoever. 899 § 33 APPENDIX A § 33. Transportation Prohibited Until Publication of Schedules ; Rates as Fixed to Be Charged ; Passes Prohibited. — No common carrier subject to the provisions of this act shall after the first day of November, nineteen hundred and seven, engage or participate in the transportation of passengers, freight or property, between points within the State, until its schedules of rates, fares and charges shall have been filed and published in accordance with the provisions of this act. No common carrier shall charge, demand, collect or receive a greater or less or different compensation for transportation of passengers, freight or property, or for any service in connection therewith, than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit in any manner or by any device any portion of the rates, fares or charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property except such as are regularly and uniformly extended to all persons and corporations under like circumstances. No common carrier subject to the provisions of this act shall, di- rectly or indirectly, issue or give any free ticket, free pass or free transportation for passengers or property between points within this State, except to its officers, employees, agents, pensioners, surgeons, physicians, attorneys-at-law, and their families; to ministers of religion, oflficers and employees of rail- road young men's Christian associations, inmates of hospitals, charitable and eleemosynary institutions and persons exclu- sively engaged in charitable and eleemosynary work; and to indigent, destitute and homeless persons and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation ; to inmates of the national homes or state homes for disabled volunteer soldiers and of soldiers' and sailors' homes, including those about to enter and those returning home after discharge, and boards of managers of such homes ; to necessary caretakers of property in transit; to employees of sleeping-car companies, express com- panies, telegraph and telephone companies doing business along 900 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 33 the line of the issuing carrier, to railway mail service employees, post-office inspectors, customs inspectors and immigration in- spectors; to newsboys on trains, baggage agents, witnesses at- tending any legal investigation or proceeding in which the com- mon carrier is interested, persons injured in accidents or wrecks and physicians and nurses attending such persons; to the carriage free or at reduced rates of persons or property for the United States, state or municipal governments, or of property to or from fairs and expositions for exhibit thereat. Nothing in this act shall be construed to prohibit the interchange of free or reduced transportation between common carriers of or for their officers, agents, employees, attorneys and surgeons and their families, nor to prohibit any common carrier from carrying passengers or property free, with the object of providing relief in cases of general epidemic, pestilence or other calamitous visi- tation; nor to prohibit any common carrier from transporting persons or property as incident to or connected with contracts for construction, operation or maintenance, and to the extent only that such free transportation is provided for in the con- tract for such work. Provided further, that nothing in this act shall prevent the issuance of mileage, excursion, or commutation passenger tick- ets, or joint interchangeable mileage tickets, with special priv- ileges as to the amount of free l^aggage that may be carried under mileage tickets of one thousand miles or more. But be- fore any common carrier, subject to the provision of this act, shall issue any such mileage, excursion, commutation passenger ticket or joint interchangeable mileage ticket, with special privileges as aforesaid, it shall file witli the commission copies of the tariffs of rates, fares or charges on which such tickets are to be based, together with the specifications of the amount of free baggage permitted to be carried under such joint inter- changeable mileage ticket, in the same manner as common carriers are required to do with regard to other I'ates b}^ this act. Nor shall anything in this act prevent the issuance of pas- senger transportation in exchange for advertising space in newspapers at full rates. 901 §§ 34, 35 APPENDIX A § 34. False Billing, etc., by Carrier or Shipper. — No com- mon carrier or any officer or agent thereof or any person acting for or employed by it, shall assist, suffer or permit any person or corporation to obtain transportation for any passenger, freight or property between points within this State at less than the rates then established and in force in accordance with the schedules filed and published in accordance with the provisions of this act, by means of false billing, false classification, false weight or weighing, or false report of weight, or by any other device or means. No person, corporation or any officer, agent or employee of a corporation, who shall deliver freight or prop- erty for transportation within the State to a common carrier, shall seek to obtain or obtain such transportation for such prop- erty at less than the rates then established and in force there- for, as aforesaid, by false billing, false or incorrect classification, false weight or weighing, false representation of the contents of a package, or false report or statement of weight, or by any other device or means, whether with or without the consent or connivance of the common carrier, or any of its officers, agents or employees. § 35. Discrimination Prohibited; Connecting Lines. — Every common carrier is required to afford all reasonable, proper and equal facilities for the interchange of passenger, freight and property traffic between the lines owned, operated, controlled or leased by it and the lines of every common carrier, and for the prompt transfer of passengers and for the prompt receipt and forwarding of freight and property to and from its said lines; and no common carrier shall in any manner dis- criminate in respect to rates, fares or charges or in respect to any service or in respect to any charges or facilities for any such transfer in receiving or forwarding between any two or more other common carriers or between passengers, freight or prop- erty destined to points upon the lines of any two or more other common carriers or in any respect with reference to passengers, freight or property transferred or received from any two or more other common carriers. This section shall not be con- 902 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 36 strued to require a common carrier to permit or allow any other common carrier to use its tracks or terminal facilities. Every common carrier, as such, is required to receive from every other common carrier, at a connecting point, freight cars of proper standard, and haul the same through to destination, if the destination be upon a line owned, operated or controlled by such common carrier, or if the destination be upon a line of some other common carrier, to haul any car so delivered through to the connecting point upon the line owned, operated, con- trolled or leased by it, by way of route over which such car is billed, and there to deliver the same to the next connecting carrier. Nothing in this section shall be construed as in any- wise limiting or modifying the duty of a common carrier to establish joint rates, fares and charges for the transportation of passengers, freight and property over the lines owned, oper- ated, controlled and leased by it and the lines of other common carriers, nor as in any manner limiting or modifying the power of the commission to require the estabhshment of such joint rates, fares and charges. A railroad corporation and a street railroad corporation shall not be required to interchange cars except on such terms and conditions as the commission may direct. § 36. Long and Short Haul. — No common carrier, subject to the provisions of this act, shall charge or receive any greater compensation in the aggregate for the transportation of pas- sengers or of a like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any such common carrier to charge and receive as great a compensation for a shorter as for a longer distance or haul. Upon application of a common carrier the commission may by order authorize it to charge less for longer than for shorter distances for the transportation of passengers or property in special cases after investigation by the com- mission, but the order must specify and prescribe the extent to 903 §§ 37, 38 APPENDIX A which the common carrier making such apphcation is relieved from the operation of this section, and only to the extent so specified and prescribed shall any common carrier be relieved from the operation and requirements of this section. § 37. Distribution of Cars.— 1. Every railroad corporation or other connnon carrier engaged in the transportation of freight shall, upon reasonalDle notice, furnish to all persons and corporations who may apply therefor, and offer freight for transportation, sufficient and suitable cars for the transporta- tion of such freight in car-load lots. Every railroad corpo- ration and street railroad corporation shall have sufficient cars and motive power to meet all requirements for the transporta- tion of passengers and property which may reasonably be anticipated, unless relieved therefrom by order of the commis- sion. In case, at any particular time, a common carrier has not sufficient cars to meet all requirements for the tl'ansportation of property in car-load lots, all cars available to it for such pur- poses shall be distributed among the several applicants there- for, without discrimination between shippers, localities or com- petitive or non-competitive points, but preference may always be given in the supply of cars for shipment of livestock or perishable property. 2. The commission shall have power to make, and by order shall make, reasonable regulations for the furnishing and dis- tribution of freight cars to shippers, for the switching of the same, for the loading and unloading thereof, for demurrage charges in respect thereto, and for the weighing of cars and freight offered for shipment or transported by any common carrier. § 38. Liability for Damage to Property in Transit. — Every common carrier and every railroad corporation and street railroad corporation shall, upon demand, issue either a receipt or bill of lading for all property delivered to it for trans- portation. No contract, stipulation or clause in any receipt or bill of lading shall exempt or be held to exempt any common 904 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 39 carrier, railroad corporation or street railroad corporation from any liability for loss, damage or injury caused by it to freight or property from the time of its delivery for transportation until the same shall have been received at its destination and a reasonable time shall have elapsed after notice to consignee of such arrival to permit of the removal of such freight or prop- erty. Every common carrier, railroad corporation and street railroad corporation shall be liable for all loss, damage or in- jury to property caused by delay in transit due to negligence while the same is being carried by it, but in any action to re- cover for damages sustained by delay in transit the burden of proof shall be upon the defendant to show that such delay was not due to negligence. Every common carrier and railroad corporation shall be liable for loss, damage and injury to prop- erty carried as baggage up to the full value and regardless of the character thereof, but the value in excess of one hundred and fifty dollars shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such liability in excess of one hundred and fifty dollars and for the carriage of baggage exceeding one hundred and fifty pounds in weight upon a single ticket. Nothing in this section shall de- prive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. § 39. Continuous Carriage. — No common carrier shall enter into or become a i)arty to any combination, contract, agree- ment or understanding, written or oi-al, express or implied, to prevent by any arrangement or by change of arrangement of time schedule, by carriage in different cars or by any other means or device whatsoever the carriage of freight and property from being continuous from the place of shipment to the place of destination. No breakage of bulk, stoppage or interruj^jtion of carriage made by any common carrier shall prevent the carriage of freight and property from being treated as one con- tinuous carriage from the place of shipment to the place of destination. Nor shall any such breakage of bulk, stoppage or 905 § 40 APPENDIX A interruption of carriage be made or permitted by any common carrier except it be done in good faith for a necessary purpose without intention to avoid or unnecessarily interrupt or delay the continuous carriage of such freight or property or to evade any of the provisions of law, of this act or of an order of the com- mission. § 40. Liabilty for Loss or Damage Caused by Violation of This Act. — In case a common carrier shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of the State of New York, by this act or by an order of the commission, such common carrier shall be liable to the persons or corpo- rations affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and in case of recovery, if the court shall find that such act or omission was willful, it may in its discretion fix a reasonable counsel or attorney's fee, which fee shall be taxed and collected as part of the costs in the case. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any such person or corporation. ARTICLE III. PROVISIONS RELATING TO THE POWERS OF THE COMMISSIONS IN RESPECT TO COMMON CARRIERS, RAILROADS AND STREET RAILROADS. § 45. General Powers and Duties of § 51. Power of Commissions to Order Commissions in Respect to Changes in Time Schedules; Common Carriers, Railroads Running of Additional Cars and Street Railroads. and Trains. 46. Reports of Common Carriers, 52. Uniform System of Accounts; Railroad Corporations and Access to Accounts, etc.; Street Railroad Corpora- Forfeitures. tions. 53. Franchises and Privileges. 47. Investigation of Accidents. 54. Transfer of Franchises or 48. Investigations by Commission. Stocks. 49. Rates and Service to Be Fixed 55. Approval of Issues of Stock, by the Commissions. Bonds and Other Forms of 50. Power of Commissions to Order Indebtedness. Repairs or Changes. 56. Forfeiture; Penalties. 906 PUBLIC SERVITE fOAIMISSIOXS LAW OF NEW YORK § 45 § 57. Summary Proceedings. § 59. Action to Recover Penalties or 58. Penalties for Other Than Com- Forfeitures. mon Carriers. 60. Duties of Commissions as to Interstate Traffic. § 45. General Powers and Duties of Commissions in Re- spect to Common Carriers, Railroads and Street Railroads.— 1. Each commission and each commissioner shall have power and authority to administer oaths, in all parts of the State, to witnesses summoned to testify in any inquiry, investigation, hearing or proceeding; and also to administer oaths in all parts of the State whenever the exercise of such power is incidentally necessary or proper to enable the commission or a commis- sioner to perform a duty or to exercise a power. 2. Each commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corpora- tions and street railroad corporations within its jurisdiction as hereinbefore defined, and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines, owned, leased, controlled or operated, are managed, con- ducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders of the commission and charter requirements. 3. Each commission and each commissioner shall have power to examine all books, contracts, records, documents and papers of any person or corporation subject to its supervision, and by subpoena duces tecum to compel production thereof. In lieu of requiring production of originals by subpa?na duces tecum, the commission or any commissioner may roriuire sworn copies of any such books, records, contracts, documents and papers or parts thereof to be filed with it. 4. Either commission shall conduct a hearing and take testi- mony as to the advisability of any proposed change of law re- lating to any common carrier, railroad corporation or street railroad corporation, if requested to do so by the legislature, by the senate or assembly committee on railroads, or by the gov- 907 § 46 APPENDIX A ernor, and may conduct such a hearing, when requested to do so by any person or corporation, and shall report its conclusions to the officer, body, person or corporation at whose request the hearing was held. The commission may also recommend the enactment of such legislation, with respect to any matter within its jurisdiction, as it deems wise or necessary in the public in- terest, and may draft or cause to be drafted such bills or acts as it may deem necessary or proper to enact into law the legisla- tion recommended by it. § 46. Reports of Common Carriers, Railroad Corpora- tions and Street Railroad Corporations. — Each commission shall prescribe the form of the annual reports required under this act to be made by common carriers, railroad and street railroad corporations, and may from time to time make such changes therein and additions thereto as it may deem proper; provided, however, that if any such changes or additions re- quire any alteration in the method or form of keeping the ac- counts of such corporations, the commission shall give to them at least six months' notice before the expiration of any fiscal year of any such changes or additions, and on or before June thirtieth, in each year, shall furnish a blank form for such re- port. The contents of such report and the form thereof shall conform as near as may be to that required of common carriers under the provisions of the act of congress, entitled "An act to regulate commerce," approved February fourth, eighteen hun- dred and eighty-seven, and the act amendatory thereof ap- proved June twenty-ninth, nineteen hundred and six, and other amendments thereto. The commission may require such report to contain information in relation to rates or regulations concerning fares or freights, agreements or contracts affecting the same, so far as such rates or regulations pertain to trans- portation within the State. When the report of any such cor- poration is defective, or believed to be erroneous, the commis- sion shall notify the corporation to amend the same within thirty days. The originals of the reports, subscribed and sworn to as prescribed by law, shall be preserved in the office of tke 908 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 47 commission. The commission may also require such corpo- rations to file monthly reports of earnings and expenses within a specified time. The commission may require of all such cor- porations specific answers to questions upon which the com- mission may need information. The annual report required to be filed by a common carrier, railroad or street railroad corpo- ration shall be so filed on or before the thirtieth day of Septem- ber in each year. The commission may extend the time for making and filing such report for a period not exceeding sixty days. If such corporation shall fail to make and file the annual report within the time above specified or within the time as extended by the commission, or shall fail to make specific an- swer to any question, or shall fail to make the monthly reports when required by the commission as herein provided, within thirty days from the time when it is required to make and file any such report or answer, such corporation shall forfeit to the State the sum of one hundred dollars for each and every day it shall continue to be in default with respect to such report or answer. Such forfeiture shall be recovered in an action brought by the commission in the name of the people of the State of New York. The amount recovered in any such action shall be paid into the state treasury and credited to the general fund. Any railroad corporation operating a line partly within the second district and partly within the first district shall report to the commission of the second district; but the commission of the first district may, upon reasonable notice, require a special re- port from such railroad corporation. Any street railroad corpo- ration operating a line partly within the first district and partly within the second district shall report to the commission of the first district; but the commission of the second district may, upon reasonable notice, require a special report from such street railroad corporation. § 47. Investigation of Accidents. — Each commission shall investigate the cause of all accidents on any railroad or street railroad within its district which result in loss of life or injury to persons or property, and which in its judgment shall require 909 § 48 APPENDIX A investigation. Every common carrier, railroad corporation and street railroad corporation is hereby required to give im- mediate notice to the commission of every accident happening upon any line of railroad or street railroad owned, operated, controlled or leased by it, within the territory over which such commission has jurisdiction in such manner as the commission may direct. Such notice shall not be admitted as evidence or used for any purpose against such common carrier, railroad corporation or street railroad corporation giving such notice in any suit or action for damages growing out of any matter men- tioned in said notice. §48. Investigations by Commission. — 1. Each commission may, of its own motion, investigate or make inquiry, in a man- ner to be determined by it, as to any act or thing done or omitted to be done by any common carrier, railroad corporation or street railroad corporation, subject to its supervision, and the commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation or street railroad corporation in violation of any provision of law or in violation of any order of the com- mission. 2. Complaints may be made to the proper commission by any person or corporation aggrieved, by petition or complaint in writing setting forth any thing or act done or omitted to be done by any common carrier, railroad corporation or street railroad corporation in violation, or claimed to be in violation, of any provision of law or of the terms and conditions of its franchise or charter or of any order of the commission. Upon the presen- tation of such a complaint the commission shall cause a copy thereof to be forwarded to the person or corporation complained of, accompanied by an order, directed to such person or corpo- ration, requiring that the matters complained of be satisfied, or that the charges be answered in writing within a time to be specified by the commission. If the person or corporation com- iilained of shall make reparation for any injury alleged and shall cease to commit, or to permit, the violation of law, franchise or 910 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 49 order charged in the complaint, and shall notify the commission of that fact before the time allowed for answer, the commission need take no further action upon the charges. If, however, the charges contained in such petition be not thus satisfied, and it shall appear to the commission that there are reasonable grounds therefor, it shall investigate such charges in such man- ner and by such means as it shall deem proper, and take such action within its powers as the facts justify. 3. Whenever either commission shall investigate any matter complained of by any person or corporation aggrieved by any act or omission of a common carrier, railroad corporation or street railroad corporation under this section it shall be its duty to make and file an order either dismissing the petition or com- plaint or directing the common carrier, railroad corporation or street railroad corporation complained of to satisfy the cause of complaint in whole or to the extent which the commission may specify and require. § 49. Rates and Service to Be Fixed by the Commis- sion. — Whenever either commission shall be of opinion, after a hearing, upon a complaint made as provided in this act, that the rates, fares or charges demanded, exacted, charged or col- lected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction for the trans- portation of persons, freight or property within the State, or that the regulations or practices of such common carrier, rail- road corporation or street railroad corporation affecting such rates are unjust, unreasonable, unjustly discriminatory or un- duly preferential, or in anywise in violation of any provision of law, the commission shall determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, and shall fix the same by order to be served upon all common car- riers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be ob- served. And whenever the commission shall be of opinion, after a hearing, had upon its own motion or upon complaint, 911 § 50 APPENDIX A that the regulations, practices, equipment, appliances, or service of any such common carrier, railroad corporation or street rail- road corporation in respect to transportation of persons, freight or property within the State are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, safe, adequate and proper regulations, prac- tices, equipment, appliances and service thereafter to be in force, to be observed and to be used in such transportation of persons, freight and property and so fix and prescribe the same by order to be served upon every common carrier, railroad corporation and street railroad corporation to be bound thereby; and thereafter it shall be the duty of every common carrier, railroad corporation and street railroad corporation to observe and obey each and every requirement of every such order so served upon it, and to do everything necessary or proper in order to secure absolute compliance with and observance of every such order by all its officers, agents and employees. The commission shall have power by order to require any two or more common carriers or railroad corporations whose lines, owned, operated, controlled or leased, form a continuous line of transportation or could be made to do so by the construction and maintenance of switch connection, to establish through routes and joint rates, fares and charges for the transportation of passengers, freight and property within the State as the com- mission may, by its order, designate; and in case such through routes and joint rates be not established by the common carriers or railroad corporations named in any such order within the time therein specified, the commission shall establish just and reasonable rates, fares and charges to be charged for such through transportation, and declare the portion thereof to which each common carrier or railroad corporation affected thereby shall be entitled and the manner in which the same shall be paid and secured. § 50. Power of Commissions to Order Repairs or Changes. — If, in the judgment of the commission having jurisdiction, re- pairs or improvements to or changes in any tracks, switches, 912 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 51 terminals or terminal facilities, motive power, or any other prop- erty or device used by any common carrier, railroad corporation or street railroad corporation in or in connection with the trans- portation of passengers, freight or property ought reasonably to be made, or that any additions should reasonably be made thereto, in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers, freight or prop- erty, the commission shall, after a hearing either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street rail- road corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. § 51. Power of Commissions to Order Changes in Time Schedules ; Running of Additional Cars and Trains.— If, in the judgment of the commission having jurisdiction, any railroad corporation or street railroad corporation docs not run trains enough or cars enough or possess or operate motive power enough, reasonably to accommodate the traffic, passenger and freight, transported by or offered for transportation to it, or does not run its trains or cars with sufTicient frequency or at a reasonable or proper time having regard to safety, or docs not run any train or trains, car or cars, upon a reasonable time schedule for the run, the commission shall, after a hearing either on its own motion or after complaint, have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars or its motive power or to change the time for starting its trains or cars or to change the time schedule for tlie run of any train or car or make any other suitable order that the commission may determine reasonably necessary to accommodate and transport tlic traffic, passenger or freight, transported or offered for trans- portation. 58 913 §§ 52, 53 APPENDIX A § 52. Uniform System of Accounts ; Access to Accounts, etc.; Forfeitures. — Each commission may, whenever it deems advisable, cstabhsh a uniform system of accounts to be used by railroad and street railroad corporations or other common carriers which are subject to its supervision, and may prescribe the manner in which such accounts shall be kept. It may also in its discretion prescribe the forms of accounts, records and memoranda to be kept by such corporations, including the ac- counts, records and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The system of accounts established by the commission and the forms of ac- counts, records and memoranda prescribed by it as provided above shall conform as near as may be to those from time to time established and prescribed by the interstate commerce commission under the provisions of the act of congress entitled "An act to regulate commerce" approved February fourth, eighteen hundred and eighty-seven, as amended by the act ap- proved June twenty-ninth, nineteen hundred and six, and amendments thereto. The commission shall at all times have access to all accounts, records and memoranda kept by railroad and street railroad corporations and may prescribe the accounts in which particular outlays and receipts shall be entered, and may designate any of its officers or employees who shall thereupon have authority under the order of the commission to inspect and examine any and all accounts, records and memoranda kept by such corporations. Where the commission has prescribed the forms of accounts, records and memoranda to be kept by such corporations it shall be unlawful for them to keep any other accounts, records or memoranda than those so prescribed, or those prescribed by or under authority of the United States. Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any such inspection or examination except in so far as he may be directed by the commission, or by a court or judge thereof, or authorized by law, shall be guilty of a misdemeanor. § 53. Franchises and Privileges. — Without first having ob- 914 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 54 tained the permission and approval of the proper commission no railroad corporation, street railroad corporation or common carrier shall begin the construction of a railroad or street rail- road, or any extension thereof, for which prior to the time when this act becomes a law a certificate of public convenience and necessity shall not have been granted by the board of railroad commissioners or where prior to said time said corporation or common carrier shall not have become entitled by virtue of its compliance with the provisions of the railroad law to begin such construction; nor, except as above provided in this sec- tion, shall any such corporation or common carrier exercise any franchise or right under any provision of the railroad law, or of any other law, not heretofore lawfully exercised, without first having obtained the permission and approval of the proper commission. The commission within whose district such con- struction is to be made, or within whose district such franchise or right is to be exercised, shall have power to grant the per- mission and approval herein spetified whenever it shall after due hearing determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service. And if such construction is to be made, or such franchise to be exercised in both districts, the approval of both commissions shall be secured. § 54. Transfer of Franchises or Stocks. — No franchise nor any right to or under any franchise, to own or operate a rail- road or street railroad shall be assigned, transferred or leased, nor shall any contract or agreement with reference to or affect- ing any such franchise or right be valid or of any force or effect whatsoever, unless the assignment, transfer, lease, contract or agreement shall have been approved by the proper commission. The permission and approval of the commission, to the exercise of a franchise under section fifty-three, or to the assignment, transfer or lease of a francliise under this section shall not be construed to revive or validate any lai)sed oi- in\alid franchise, or to enlarge or add to the powers and privileges contained in the grant of any franchise, or to waive any forfeiture. 915 § 55 APPENDIX A No railroad corporation, or street railroad corporation, do- mestic or foreign, shall hereafter purchase or acquire, take or hold, any part of the capital stock of any railroad corporation or street railroad corporation or other common carrier organized or existing under or by virtue of the laws of this State, unless authorized so to do by the commission empowered by this act to give such consent ; and save where stock shall be transferred or held for the purpose of collateral security only with the con- sent of the commission empowered by this act to give such con- sent, no stock corporation of any description, domestic or foreign, other than a railroad corporation or street railroad cor- poration, shall purchase or acquire, take or hold, more than ten per centum of the total capital stock issued by any railroad cor- poration or street railroad corporation or other common carrier organized or existing under or by virtue of the laws of this State. Nothing herein contained shall be construed to prevent the hold- ing of stock heretofore lawfully acquired. Every contract, as- signment, transfer or agreement for transfer of any stock by or through any person or corporation to any corporation, in viola- tion of any provision of this act, shall be void and of no effect, and no such transfer or assignment shall be made upon the books of any such railroad corporation or street railroad cor- poration, or shall be recognized as effective for any purpose. The power conferred by this section to approve or disapprove a transaction relating to franchises, rights or stock of any railroad corporation or street railroad corporation, or other common carrier, shall be exercised by the commission which is author- ized by this act to approve the issue of stock by such railroad corporation or street railroad 'corporation. § 55. Approval of Issues of Stock, Bonds and Other Forms of Indebtedness. — A common carrier, railroad corpora- tion or street railroad corporation organized or existing, or here- after incorporated, under or by virtue of the laws of the State of New York, may issue stocks, bonds, notes or other evidence of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of 916 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 55 property, the construction, completion, extension or improve- ment of its facilities, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obliga- tions, provided and not otherwise that there shall have been secured from the proper commission an order authorizing such issue, and the amount thereof and stating that, in the opinion of the commission, the use of the capital to be secured by the issue of such stock, bonds, notes or other evidence of indebtedness is reasonably required for the said purposes of the corporation, but this provision shall not apply to any lawful issue of stock, to the lawful execution and delivery of any mortgage or to the lawful issue of bonds thereunder, which shall have been duly ap- proved by the board of railroad commissioners before the time when this act becomes a law. For the purpose of enabling it to determine whether it should issue such an order, the commission shall make such inquiry or investigation, hold such hearings and examine such witnesses, books, papers, documents or con- tracts as it may deem of importance in enabling it to reach a determination. Such common carrier, railroad corporation or street railroad corporation may issue notes, for proper corporate purposes and not in violation of any provision of this or any other act, payable at periods of not more than twelve months without such consent, but no such notes shall, in whole or in part, directly or indirectly be refunded by any issue of stock or bonds or by any evidence of indebtedness running for more than twelve months without the consent of the proper commission. Provided, however, that the commission shall have no power to authorize the capitalization of any franchise to be a corporation or to authorize the capitalization of any franchise or the right to own, operate or enjoy any franchise whatsoever in excess of the amount (exclusive of any tax or annual charge) actually paid to the State or to a political subdivision thereof as the con- sideration for the grant of such franchise or right; nor shall the capital stock of a corporation formed by the merger or consoli- dation of two or more other corporations, exceed the sum of the capital stock of the corporations so consolidated, at the par value thereof, or such sum and any additional sum actually paid 917 § 56 APPENDIX A in cash ; nor shall any contract for consolidation or lease be cap- italized in the stock of any corporation whatever; nor shall any corporation hereafter issue any bonds against or as a lien upon any contract for consolidation or merger. Whenever it shall happen that any railroad corporation shall own or operate its lines in both districts it shall, under this section, apply to the commission of the second district. Whenever it shall happen that any street railroad corporation shall own or operate its lines in both districts, it shall, under this section, apply to the commission of the first district. Any other common carrier not operating exclusively in the first district shall apply to the com- mission of the second district. § 56. Forfeiture ; Penalties. — 1. Every common carrier, rail- road corporation and street railroad corporation, and all officers and agents of any common carrier, railroad corporation or street railroad corporation shall obey, observe and comply with every order made by the commission, under authority of this act, so long as the same shall be and remain in force. Any common carrier, railroad corporation or street railroad cor- poration which shall violate any provision of this act, or which fails, omits or neglects to obey, observe or comply with any order or any direction or requirement of the commission, shall forfeit to the people of the State of New York not to exceed the sum of five thousand dollars for each and every offense; every violation of any such order or direction or requirement, or of this act, shall be a separate and distinct offense, and, in case of a continuing violation, every day's continuance thereof shall be and be deemed to be a separate and distinct offense. 2. Every officer and agent of any such common carrier or cor- poration who shall violate, or who procures, aids or abets any violation by any such common carrier or corporation, of any provision of this act, or who shall fail to obey, observe and com- ply with any order of the commission or any provision of an order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and 918 PUBLIC SERVICE COMMISSIONS LAW OF XEW YORK §§ 57, 58 comply with any such order or provision, shall be guilty of a misdemeanor. § 57. Summary Proceedings. — WTienever either commission shall be of opinion that a common carrier, railroad corporation or street railroad corporation subject to its supervision is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission, or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commis- sion to commence an action or proceeding in the Supreme Court of the State of New York in the name of the commission for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. Counsel to the commission shall thereupon begin such action or proceeding by a petition to the Supreme Court alleging the viola- tion complained of and praying for appropriate relief by way of mandamus or injunction. It shall thereupon be the duty of the court to specify the time not exceeding twenty days after serv- ice of a copy of the petition, within which the common carrier, railroad corporation or street railroad corporation complained of must answer the petition. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct with- out other or formal pleadings, and without respect to any tech- nical requirement. Such other persons or corporations as the court shall deem necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joined as parties upon application of counsel to the commission. The final judgment in any such action or proceeding shall either dis- miss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief. § 58. Penalties for Other Than Common Carriers.— 1. Any 919 § 59 APPENDIX A corporation, other than a common carrier, railroad corporation or street railroad corporation, which shall violate any provision of this act, or shall fail to obey, observe and comply with every order made by the. commission under authority of this act, so long as the same shall be and remain in force, shall forfeit to the people of the State of New York a sum not exceeding one thousand dollars for each and every off ense ; every such violation shall be a separate and distinct offense, and the penalty or for- feiture thereof shall be recovered in an action as provided in section fifty-nine of this act. 2. Every person who, either individually or acting as an officer or agent of a corporation other than a common carrier, railroad corporation or street railroad corporation, shall violate any provision of this act or fail to obey, observe or comiply with any order made by the commission under this act, so long as the same shall be or remain in force, or who shall procure, aid or abet any such corporation in its violation of this act or in its failure to obey, observe or comply with s^ny such order, shall be guilty of a misdemeanor. 3. In construing and enforcing the provisions of this act re- lating to forfeitures and penalties the act of any director, officer or other person acting for or employed by any common carrier, railroad corporation, street railroad corporation or corporation, acting within the scope of his official duties or employment, shall be in every case and be deemed to be the act of such common carrier, railroad corporation, street railroad corporation or cor- poration. § 59. Action to Recover Penalties or Forfeitures. — An ac- tion to recover a penalty or a forfeiture under this act may be brought in any court of competent jurisdiction in this State in the name of the people of the State of New York, and shall be commenced and prosecuted to final judgment by counsel to the commission. In any such action all penalties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein, and the commencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a 920 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 60 waiver of the right to recover any other penalty or forfeiture; if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of the commission the defendant was actually and in- good faith prosecuting a suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or forfeitures incurred during the pendency of such suit, action or proceeding. All moneys re- covered in any such action, together with the costs thereof, shall be paid into the state treasury to the credit of the general fund. § 60. Duties of Commissions as to Interstate Traffic. — Either commission may investigate freight rates on interstate traffic on railroads within the State, and when such rates are, in the opinion of cither commission, excessive or discriminatory or are levied or laid in violation of the interstate commerce law, or in conflict with the rulings, orders or regulations of the inter- state commerce commission, the commission may apply by petition to the interstate commerce commission for relief or may present to the interstate commerce commission all facts coming to its knowledge, as to violations of the rulings, orders or regulations of that commission or as to violations of the in- terstate commerce law. ARTICLE IV. PROVISIONS RELATING TO GAS AND ELECTRICAL CORPORATIONS) REGULATION OF PRICE OF GAS AND ELECTRICITY. § 65. Application of Articles. Bonds and Other Forms of 60. General Powers of Commis- Indebtedness. sions in Respect to Gas and § 70. Approval of Transfer of Fran- Electricity, chises. 67. Inspection of Gas and Electric 71. Complaints as to Quality and Meters. Price of Gas and Electricity; 68. Approval of Incorporation and Investigation by Commis- Franchi.scs; Certificate. sion; Forms of Complaints. 69. Approval of Issue of Stork, 72. Notice and Hearing; Order 921 §§ 65, 66 APPENDIX A Fixing Price of Gas or Elec- § 74. Summary Proceedings, tricity, or Requiring Im- 75. Defense in Case of Excessive provements. Charge for Gas or Electricity. § 73. Forfeiture for Noncompliance 76. Jurisdiction. With Order. 77. Powers of Local Officers. § 65. Application of Article.— This article shall apply to the manufacture and furnishing of gas for light, heat or power and the furnishing of natural gas for light, heat or power, and the generation, furnishing and transmission of electricity for light, heat or power. § 66. General Powers of Commissions in Respect to Gas and Electricity. — Each commission shall within its jurisdic- tion: 1. Have the general supervision of all persons and corpora- tions having authority under any general or special law or under any charter or franchise to lay down, erect or maintain wires, pipes, conduits, ducts or other fixtures in, over or under the streets, highways and public places of any municipality, for the purpose of furnishing or distributing gas or of furnishing or transmitting electricity for light, heat or power, or maintain- ing underground conduits or ducts for electrical conductors. 2. Investigate and ascertain, from time to time, the quality of gas supplied by persons, corporations and municipalities; examine the methods employed by such persons, corporations and municipalities in manufacturing and supplying gas or electricity for light, heat or power and in transmitting the same, and have power to order such improvements as will best pro- mote the public interest, preserve the public health and protect those using such gas or electricity and those employed in the manufacture and distribution thereof, or in maintenance and operation of the works, wires, poles, lines, conduits, ducts and systems maintained in connection therewith. 3. Have power to fix the standard of illuminating power and purity of gas, not less than that prescribed by law, to be manu- factured or sold by persons, corporations or municipalities for lighting, heating or power purposes, and to prescribe methods of regulation of the electric supply system as to the use for in- 922 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 66 candescent lighting and fix the initial efficiency of incandescent lamps furnished by the persons, corporations or municipalities generating and selhng electric current for lighting, and by order to require the gas so manufactured or sold to equal the standard so fixed by it, and to establish the regulations as to pressure at which gas shall be delivered. For the purpose of determining whether the gas sold by such persons, corporations or munic- ipalities for lighting, heating or power purposes conforms to the standard of illuminating power and purity and, of its own motion, examine and investigate the methods employed in manufacturing, delivering and supplying the gas so sold, and shall have access through its members or persons employed and authorized by it to make such examinations and investigations to all parts of the manufacturing plants owned, used or operated for the manufacture or distribution of gas by any such person, corporation or municipality. Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any such inspection or examination, except in so far as he may be directed by the commission, or by a court or judge thereof, or authorized by law, shall be guilty of a misdemeanor. 4. Have power, in its discretion, to prescribe uniform methods of keeping accounts, records and books, to be observed by the persons, corporations and municipalities engaged in the manu- facture, sale and distribution of gas and electricity for light, heat or power. 5. Examine all persons, corporations and municipalities un- der its supervision, keep informed as to the methods employed by them in the transaction of their business and see that their property is maintained and operated for the security and ac- commodation of the public and in compliance with the pro- visions of law and of their franchises and charters. 6. Require every person and corporation under its super- vision to submit to it an annual report, verified Ijy the oath of the president, treasurer, or general manager thereof, showing in detail (1) the amount of its authorized capital stock and the amount thereof issued and outstanding; (2) the amount of its 923 § 66 APPENDIX A authorized bonded indebtedness and the amount of its bonds and other forms of evidence of indebtedness issued and out- standing; (3) its receipts and expenditures during the pre- ceding year; (4) the amount paid as dividends upon its stock and as interest upon its bonds; (5) the name of, and the amount paid as salary to each officer and the amount paid as wages to its employees; (6) the location of its plant or plants and system, with a full description of its property and franchises, stating in detail how each franchise stated to be owned was acquired, and (7) such other facts pertaining to the operation and mainte- nance of the plant and system, and the affairs of such person or corporation as may be required by the commission. Such re- ports shall be in the form, cover the period and be submitted at the time prescribed by the commission. The commission may, from time to time, make changes and additions in such forms, giving to the persons, corporations and municipalities six months' notice before the time fixed by the commission as the expiration of the fiscal year of any changes or additions which would require any alteration in the method or form of keeping their accounts for the ensuing year. When any such report is defective or believed to be erroneous, the commission shall notify the person, corporation or municipality making such re- port to amend the same within thirty days. Any such person or corporation or municipality which shall neglect to make any such report within the time specified by the commission, or which shall fail to correct any such report within thirty days after notice, shall be liable to a penalty of one hundred dollars and an additional penalty of one hundred dollars for each day after the prescribed time for which it shall neglect to file or correct the same, to be sued for in the name of the people of the State of New York. The amount recovered in any such action shall be paid into the state treasury and be credited to the general fund. The commission may extend the time herein limited for cause shown. 7. Require each municipality engaged in operating any works or systems for the manufacture and supplying of gas or elec- tricity to make an annual report to the commission, verified by 924 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 67 the oath of the general manager or superintendent thereof, showmg in detail, (1) the amount of its authorized bonded in- debtedness and the amount of its bonds and other forms of evidence of indebtedness issued and outstanding for lighting purposes; (2) its receipts and expenditures during the preceding year; (3) the amount paid as interest upon its bonds and upon other forms of evidence of indebtedness; (4) the name of and the amount paid to each person receiving a yearly or monthly salary, and the amount paid as wages to employees; (5) the location of its plant and system with a full description of the property, and (6) such other facts pertaining to the operation and maintenance of the plant and system, as may be required by the commission. Such report shall be in the form, cover the period and be submitted at the time prescribed by the com- mission. 8. Have power, either through its members or inspectors or employees duly authorized by it, to enter in or upon and to inspect the property, buildings, plants, factories, power houses and offices of any of such corporations, persons or munici- pahties. 9. Have power to examine the books and affairs of any such corporation, persons or municipalities, and to compel the pro- duction before it of books and papers pertaining to the affairs being investigated by it. 10. Have power, either as a commission or through its mem- bers, to subpoena witnesses, take testimony and administer oaths to witnesses in any proceeding or examination instituted before it, or conducted by it in reference to any matter within its jurisdiction under this article. § 67. Inspection of Gas and Electric Meters.— 1. Each commission shall appoint inspectors of gas and electric meters whose duty it shall be when reciuired, to inspect, examine, prove and ascertain the accuracy of any and all gas meters used or in- tended to be used for measuring or ascertaining the quantity of illuminating or fuel gas or natural gas furnished by any gas corporation to or for the use of any person and any and all 925 § 68 APPENDIX A electric meters used or intended to be used for measuring and ascertaining the quantity of electric current furnished for light, heat and power by any electrical corporation to or for the use of any person or persons and when found to be or made to be correct, the inspector shall stamp or mark all such meters and each of them with some suitable device, which device shall be recorded in the office of the secretary of state. 2. No corporation or person shall furnish or put in use any gas meter which shall not have been inspected, proved and sealed, or any electric meter which shall not have been inspected, ap- proved, stamped or marked by an inspector of -the commission. Every gas and electrical corporation shall provide or keep in and upon its premises a suitable and proper apparatus, to be approved and stamped or marked by the commission, for test- ing and proving the accuracy of gas and electric meters fur- nished for use by it, and by which apparatus every meter may and shall be tested, on the written request of the consumer to whom the same shall be furnished, and in his presence if he desires it. If any consumer to whom a meter has been furnished, shall request the commission in writing to inspect such meter, the commission shall have the same inspected and tested; if the same on being so tested shall be found to be, four per cent, if an electric meter, or two per cent, if a gas meter, defective or in- correct to the prejudice of the consumer, the inspector shall order the gas or electrical corporation forthwith to remove the same and to place instead thereof a correct meter, and the ex- pense of such inspection and test shall be borne by the corpo- ration ; if the same on being so tested shall be found to be cor- rect the expense of such inspection and test shall be borne by the consumer. A uniform reasonable charge shall be fixed by the commission for this service. § 68. Approval of Incorporation and Franchises ; Certifi- cate. — No gas corporation or electrical corporation incor; o- rated under the laws of this or any other State shall begin con- struction, or exercise any right or privilege under any franchise 926 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 69 hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised without first having ob- tained the permission and approval of the proper commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the com- mission, together with a verified statement of the president and secretary of the corporation,* showing that it has received the required consent of the proper municipal authorities. No municipality shall build, maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying of gas or electricity for lighting purposes without a certificate of authority granted by the commission. If the certificate of authority is refused, no further proceedings shall be taken before the commission, but a new application may be made therefor after one year from the date of such refusal. § 69. Approval of Issues of Stock, Bonds and Other Forms of Indebtedness. — A gas corporation or electrical corpo- ration organized or existing, or hereafter incorporated, under or by virtue of the laws of the State of New York, may issue stocks, bonds, notes or other evidence of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, the construc- tion, completion, extension or improvement of its plant or distributing system, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obli- gations, provided and not otherwise that there shall have been secured from the proper commission an order authorizing such issue, and the amount thereof, and stating that, in the opinion of the commission, the use of the capital to be secured by the issue of such stock, bonds, notes or other evidence of indebted- ness is reasonably required for the said purposes of the corpo- ration. For the purpose of enal)ling it to determine whether or not it should issue such an order, the commission shall make such inquiry or investigation, hold such hearings and examine such witnesses, books, papers, documents or contracts as it * So in original. 927 § 70 • APPENDIX A may deem of importance in enabling it to reach a determi- nation. Such gas corporation or electrical corporation may issue notes, for proper corporate purposes and not in violation of any provision of this or of any other act, payable at periods of not more than twelve months without such consent; but no such notes shall, in whole or in part, directly or indirectly be re- funded by any issue of stock or bonds or by any evidence of in- debtedness running for more than twelve months without the consent of the proper commission. Provided, however, that the commission shall have no power to authorize the capitali- zation of any franchise to be a corporation or to authorize the capitalization of any franchise or the right to own, operate or enjoy any franchise whatsoever in excess of the amount (ex- clusive of any tax or annual charge) actually paid to the State or to any political subdivision thereof as the consideration for the grant of such franchise or right. Nor shall the capital stock of a corporation formed by the merger or consolidation of two or more other corporations, exceed the sum of the capital stock of the corporations, so consolidated, at the par value thereof, or such sum and any additional sum actually paid in cash ; nor shall any contract for consolidation or lease be capitahzed in the stock of any corporation whatever; nor shall any corporation hereafter issue any bonds against or as a lien upon any contract for consohdation or merger. § 70. Approval of Transfer of Franchise.— No gas corpo- ration or electrical corporation shall transfer or lease its fran- chise, works or system or any part of such franchise, works or system to any other person or corporation or contract for the operation of its works and system, without the written consent of the proper commission. The permission and approval of the commission, to the exercise of a franchise under section sixty- eight of this act, or to the assignment, transfer or lease of a franchise under this section shall not be construed to revive or validate any lapsed or invalid franchise or to enlarge or add to the powers and privileges contained in the grant of any fran- chise or to waive any forfeiture. No such corporation shall 928 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 71 directly or indirectly acquire the stock or bonds of any other corporation incorporated for, or engaged in, the same or a similar business, or proposing to operate or operating under a franchise from the same or any other municipality, unless au- thorized so to do by the commission. Save where stock shall be transferred or held for the purpose of collateral security only with the consent of the commission empowered by this act to give such consent, no stock corporation of any description, do- mestic or foreign, other than a gas or electrical corporation, shall purchase or acquire, take or hold, more than ten per centum of the total capital stock issued by any gas corporation or electrical corporation organized or existing under or by virtue of the laws of this State. Nothing herein contained shall be construed to prevent the holding of stock heretofore law- fully acquired. Every contract, assignment, transfer or agree- ment for transfer of any stock by or through any person or cor- poration to any corporation, in violation of any provision of this act, shall be void and of no effect, and no such transfer or assignment shall be made upon the books of any such gas cor- poration, or electrical corporation, or shall be recognized as effective for any purpose. § 71. Complaints as to Quality and Price of Gas and Electricity; Investigation by Commission; Forms of Com- plaints.— Upon the complaint in writing of the mayor of a city, the trustees of a village or the town board of a town in which a person or corporation is authorized to manufacture, sell or sup- ply gas or electricity for heat, light or power, or ui)on the com- plaint in writing of not less than one hundred customers or purchasers of such gas or electricity in cities of the first or second class, or of not less than fifty in cities of the third class, or of not less than twenty-five elsewhere, either as to the illu- minating power, purity, pressure or price of gas or the initial efficiency of the electric incandescent lamp supply, or the regu- lation of the voltage of the supply syst em used for incandescent lighting, or price of electricity sold and delivered in such mu- nicipality, the proper commission shall investigate as to the 59 929 § 72 APPENDIX A cause for such complaint. When such complaint is made, the commission may, by its agents, examiners and inspectors, in- spect the works, system, plant and methods used by such person or corporation in manufacturing, transmitting and supplying such gas or electricity, and may examine or cause to be ex- amined the books and papers of such person or corporation pertaining to the manufacture, sale, transmitting and supplying of such gas or electricity. The form and contents of complaints made as provided in this section shall be prescribed by the com- mission. Such complaints shall be signed by the officers, or by the customers, purchasers or subscribers making them, who must add to their signatures their places of residence, by street and number, if any. § 72. Notice and Hearing; Order Fixing Price of Gas or Electricity, or Requiring Improvement. — Before proceeding under a complaint presented as provided in section seventy-one, the commission shall cause notice of such complaint, and the purpose thereof, to be served upon the person or corporation affected thereby. Such person or corporation shall have an opportunity to be heard in respect to the matters complained of at a time and place to be specified in such notice. If an in- vestigation be instituted upon motion of the commission the person or corporation affected by the investigation may be per- mitted to appear before the commission at a time and place specified in the notice and answer all charges which may be preferred by the commission. After a hearing and after such investigation as may have been made by the commission or its officers, agents, examiners or inspectors, the commission within lawful limits may, by order, fix the maximum price of gas or electricity to be charged by such corporation or person, or may order such improvement in the manufacture or supply of such gas, in the manufacture, transmission or supply of such elec- tricity, or in the methods employed by such person or corpo- ration, as will in its judgment improve the service. The price so fixed by the commission shall be the maximum price to be charged by such person or corporation for gas or electricity in 930 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK § 73 such municipality until the commission shall upon complaint as provided in this section or upon an investigation conducted by it on its own motion, again fix the maximum price of such gas or electricity. In determining the price to be charged for gas or electricity the commission may consider all facts which in its judgment have any bearing upon a proper determination of the question although not set forth in the complaint and not within the allegations contained therein. § 73. Forfeiture for Noncompliance with Order. — Every gas corporation and electrical corporation and the officers, agents or employees thereof shall obey, observe and comply with every order made by the commission under authority of this act, so long as the same shall be and remain in force. Any such corpo- ration, or any officer, agent or employee thereof, who knowingly fails or neglects to obey or comply with such order, or any pro- vision of this act, shall forfeit to the State of New York not to exceed the sum of one thousand dollars for each offense. Every distinct violation of any such order or of this act, shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. An action to recover such forfeiture may be brought in any court of competent jurisdic- tion in this State in the name of the people of the State of New York, and shall be commenced and prosecuted to final judg- ment by counsel to the commission. In any such action all pen- alties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein, and the com- mencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a waiver of the right to recover any other penalty or forfeiture ; if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of the commission the defendant was actually and in good faith prosecuting the suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or for- feitures incurred during the pendency of such suit, action or proceeding. All moneys recovered in any such action, together 931 §§ 74, 75 APPENDIX A with the costs thereof, shall be paid into the state treasury to the credit of the general fund. § 74. Summary Proceedings. — Whenever either commission shall be of opinion that a gas corporation, electrical corporation or municipahty within its jurisdiction is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to commence an action or proceeding in the Supreme Court of the State of New York in the name of the commission for the pur- pose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. Counsel to the commission shall thereupon begin such action or proceeding by a petition to the Supreme Court alleging the violation com- plained of and praying for appropriate relief by way of manda- mus or injunction. It shall thereupon be the duty of the court to specify the time not exceeding twenty days after service of a copy of the petition within which the gas corporation, elec- trical corporation or municipality complained of must answer the petition. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. Such other persons or corporations, as it shall seem to the court, necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joined as parties upon ap- plication of counsel to the commission. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropri- ate relief. § 75. Defense in Case of Excessive Charges for Gas or Electricity. — If it be alleged and established in an action 932 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 76, 77 brought in any court for the collection of any charge for gas or electricity, that a price has been demanded in excess of that fixed by the commission or by statute in the municipality wherein the action arose, no recovery shall be had therein, but the fact that such excessive charges have been made shall be a complete defense to such action. § 76. Jurisdiction. — Whenever any corporation supplies gas or electricity to consumers in both districts, any application or report to a commission required by this act shall be made to the commission of the district within which it is mainly supply- ing, or proposing to supply, such service to consumers. But nothing herein contained shall be construed to deprive the commission of either district of the power of supervision and regulation within its district. And either commission shall have power to enter and inspect the plant of such corporation, wher- ever situated. § 77. Powers of Local Officers.— If in any city of the first or second class there now exists or shall hereafter be created a board, body or officer having jurisdiction of matters pertaining to gas or electric service, such board, body or officer shall have and may exercise such power, jurisdiction and authority in en- forcing the laws of the State and the orders, rules and regu- lations of the commission as may be prescribed by statute or by the commission. ARTICLE V. COMMISSIONS AND OFFICES ABOLISHED; SAVING CLAUSE; REPEAL. § 80. Board of Railroad Commis- road Commissioners Abol- sioners Abolished; Effect ished; Effect Thereof. Thereof. § 84. Transfer of Records. 81. Commission of Gas and Elec- 85. Pending Actions and Proceed- tricity Abolished; Effect ings. Thereof. 86. Construction. 82. Inspector of Gas Meters Abol- 87. Repeal. ished; Effect Thereof. 88. Appropriation. 83. Board of Rapid Transit Rail- 89. Time of Taking Effect. );-!3 §§ 80-84 APPENDIX A § 80. Board of Railroad Commissioners Abolished; Effect Thereof. — On and after the taking effect of this act the board of railroad commissioners shall be abohshed. All the powers and duties of such board conferred and imposed by any statute of this State shall thereupon be exercised and per- formed by the public service commissions. § 81. Commission of Gas and Electricity Abolished ; Effect Thereof. — On and after the taking effect of this act the com- mission of gas and electricity shall be abohshed. All the powers and duties of such commission conferred and imposed by any statute of this State shall be exercised and performed by the public service commissions. § 82. Inspector of Gas Meters Abolished; Effect Thereof. — On and after the taking effect of this act the offices of in- spector and deputy inspectors of gas meters shall be abolished. All the powers and duties of such inspector conferred and im- posed by any statute of this State shah be exercised and per- formed by the public service commissions. But any meter in- spected, proved and sealed, by the said inspector of gas meters, prior to the taking effect of this act, shall be deemed to have been inspected by the commission. § 83. Board of Rapid Transit Railroad Commissioners Abolished ; Effect Thereof. — On and after the taking effect of this act the board of rapid transit railroad commissioners shall be abolished. All the powers and duties of such board con- ferred and imposed by any statute of this State shall thereupon be exercised and performed by the pubhc service commission of the first district. § 84. Transfer of Records. — 1. The board of railroad com- missioners, the commission of gas and electricity, and the in- spector of gas meters, shall transfer and deliver to the public service commission of the second district all books, maps, papers and records of whatever description, now in their pos- 934 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK §§ 85, 86 session; and upon taking effect of this act, the said commission is authorized to take possession of all such books, maps, papers and records. 2. The board of rapid transit railroad commissioners shall transfer and deliver to the public service commission of the first district all contracts, books, maps, plans, papers and records of whatever description, now in their possession; and upon taking effect of this act, the said commission is authorized to take possession of all such contracts, books, maps, plans, papers and records. The said commission may also, at its pleasure, retain in its employment any person or persons not employed by the said board of rapid transit railroad commis- sioners, and all said persons shall be eligible for transfer and appointment to positions under the public service commission of the first district. § 85. Pending Actions and Proceedings. — This act shall not affect pending actions or proceedings, civil or criminal, brought by or against the board of railroad commissioners or the com- mission of gas and electricity, or the board of rapid transit railroad commissioners, but the same may be prosecuted or de- fended in the name of the pubHc service commission, provided the subject-matter thereof is within the statutory jurisdiction of such commission. Any investigation, examination or pro- ceeding undertaken, commenced or instituted by the said boards or commission or either of them prior to the taking effect of this act may be conducted and continued to a final determi- nation by the proper public service commission in the same manner, under the same terms and conditions, and with the same effect as though such boards or commission had not been aboHshed. § 86. Construction. — Wherever the terms board of railroad commissioners, or coniinission of gas and electricity, or inspector of gas meters or board of rapid transit railroad commissioners occur in any law, contract or document or whenever in any law, contract or document reference is made to such boards, 935 §§ 87-89 APPENDIX A commission or inspector, such terms or reference shall be deemed to refer to and include the public service commissions as established by this act, so far as such law, contract or docu- ment pertains to matters which are within the jurisdiction of the said public service commissions. Nothing in this act con- tained shall be deemed to apply to or operate upon interstate or foreign commerce. § 87. Repeal. — The following acts and parts of acts, together with all other acts amendatory of such acts, and all acts and parts of acts otherwise in conflict with this act, are hereby re- pealed : Laws of 1905, chapter 737. Laws of 1905, chapter 728. Laws of 1904, chapter 158. Laws of 1902, chapter 373. Laws of 1896, chapter 456. Laws of 1894, chapter 452. Laws of 1892, chapter 534. Laws of 1891, chapter 4, sections 1, 2 and 3. Laws of 1890, chapter 565, sections 150 to 172, inclusive. Laws of 1890, chapter 566, sections 62, 63 and 64. § 88. Appropriation.— There shall be appropriated for the use of the commissions, and for the payment of salaries and disbursements under this act, from money not otherwise ap- propriated, the sum of three hundred thousand dollars, one hundred and fifty thousand dollars for the use of the commis- sion of the first district and one hundred and fifty thousand dollars for the use of the commission of the second district. § 89. Time of Taking Effect.— This act shall take effect July first, nineteen hundred and seven. Purchase of Rapid Transit Railways— Powers of Public Service Commission.— Act of May 22, 1908, Laws of New York, 1908, p. 1675, chap. 472, entitled: "An act to amend chapter 936 PUBLIC SERVICE COMMISSIONS LAW OF NEW YORK four of the laws of eighteen hundred and ninety-one, entitled ' an act to provide rapid transit railways in cities of over one mil- lion inhabitants/ in regard to the purchase by such cities and the equipment, maintenance and operation of railways for rapid transit purposes," empowers, under § 34/, the pubhc service commission of the first district, successor of the rapid transit railroad commissioners, with the approval of the board of esti- mate and apportionment, or other analogous local authority of such city, to purchase for such price and upon such terms and conditions as may be agreed upon, and acquire by con- veyance or grant to such city, to be delivered to said board, any line of railway already constructed or in process of con- struction of the character which might be constructed as a rapid transit railway or railways under the provisions of this act, and which in the opinion of the board it is for the interest of the public and the city to acquire for rapid transit purposes. This amendment further provides for the raising and payment of the necessary monies ; that such railway or railways shall be deemed to have been constructed at the expense of the city; for consents to such construction and operation; for contracts with any firm or corporation for equipment, etc.; for the term of maintenance and operation ; and for conditions as to rates of fare, character of service and rental to be paid, having in view the public interests. Section 37 of said act, as amended by chap. 534 of the Laws of 1907, is amended for the purpose of providing the necessary means for such construction or equip- ment or both, or acquiring by purchase at the public expense, of any such road or roads, including galleries, ways, subways and tunnels for sub-surface structures and the necessary means to pay for lands, etc., and meeting the interest on the bonds. Other provisions are also made in the matter of such bonds and the issuance thereof, their sale value, their freedom from tax- ation, their payment, etc.; and for public hearing, upon notice, before finally fixing the terms or conditions of any contract provided \)y tlu; amendment. 937 APPENDIX B. PUBLIC UTILITY LAW OF WISCONSIN. GIVING THE WISCONSIN RAILROAD COMMISSION JURISDICTION OVER PUBLIC UTILITIES. APPENDIX B. PUBLIC UTILITY LAW OF WISCONSIN. [No. 933, A. Published July 10, 1907.] CHAPTER 499. AN ACT to create section 1797m— 1 to 1797m— 108, inolusive, statutes of 1898, giving the Wisconsin railroad commission jurisdiction over public utilities, providing for the regulation of such public utilities, appropriating a sum sufficient to carry out the provisions of this act, and repealing certain acts in conflict with the provisions hereof. The People of the State of Wisconsin, represented in Senate and Assembly do enact as follows : Section 1. There are added to the statutes of 1898, 108 new sections to read : * Section 1797m — 1. 1. The t(>rm " {)ul)Iic util- ity" as used in this act shall mean and embrace every corpora- tion, company, individual, association of individuals, their les- sees, trustees or receivers appointed by any court whatsoever, and every town, village or city that now or hereafter may own, operate, manage or control any plant or ecjuipment or any part of a plant or ecjuipment within the State, for the conveyance of telephone messages or for the prochiction, transmission, deHv- ery or furnishing of heat, Hght, water or ])ower (>ither directly or indirectly to or for the public. 2. The term "municipal council" as used in this act shall * Contents are given on page 978, herein. 941 APPENDIX B § 1797m — 2, 3 mean and embrace the common council, the board of aldermen, the board of trustees, the town or village board, or any other governing body of any town, village or city wherein the property of the public utility or any part thereof is located. 3. The term "municipality" as used in this act shall mean any town, village or city wherein property of a public utility or any part thereof is located. 4. The term "service" is used in this act in its broadest and most inclusive sense. 5. The term "indeterminate permit" as used in this act shall mean and embrace every grant, directly or indirectly from the State, to any corporation, company, individual, association of individuals, their lessees, trustees or receivers appointed by any court whatsoever, of power, right or privilege to own, operate, manage or control any plant or equipment or any part of a plant or equipment within this State for the production, transmission, delivery or furnishing of heat, light, water or power, either di- rectly or indirectly, to or for the public, which shall continue in force until such time as the municipality shall exercise its op- tion to purchase as provided in this act or until it shall be other- wise terminated according to law. 6. The term " commission " as used in this act shall mean the railroad commission of Wisconsin. § 1797m — 2. The railroad commission of Wisconsin is vested with power and jurisdiction to supervise and regulate every public utility in this State and to do all things necessary and convenient in the exercise of such power and jurisdiction. § 1797m— 3. Every public utility is required to furnish rea- sonably adequate service and facilities. The charge made by any public utility for any heat, light, water or power produced, transmitted, delivered or furnished or for any telephone message conveyed or for any service rendered or to be rendered in con- nection therewith shall be reasonable and just, and every unjust or unreasonable charge for such service is prohibited and de- clared unlawful. 942 § 1797m — 4-6 public utility law of Wisconsin § 1797m — 4. 1. Every public utility, and every person, association or corporation having conduits, subways, poles or other equipment on, over or under any street or highway shall for a reasonable compensation permit the use of the same by any public utility whenever public convenience and necessity require such use and such use will not result in irreparable in- jury to the owner or other users of such equipment nor in any substantial detriment to the service to be rendered by such owners or other users. 2. In case of failure to agree upon such use or the conditions or compensation for such use any public utility or any person, as- sociation or corporation interested may apply to the commis- sion, and if after investigation the commission shall ascertain that public convenience and necessity require such use and that it would not result in irreparable injury to the owner or other users of such equipment nor in any substantial detriment to the service to be rendered by such owner or other users of such equipment, it shall by order direct that such use be permitted and prescribe reasonable conditions and compensation for such joint use. 3. Such use so ordered shall be permitted and such conditions and compensations so prescribed shall be the lawful conditions and compensation to be observed, followed and paid, subject to recourse to the courts upon the complaint of any interested party as provided in section 1797m — 64 to 1797m — 73, inclu- sive, and such sections so far as applicable shall apply to any action arising on such complaint so made. Any such order of the commission may be from time to time revised by the com- mission upon application of any interested party or upon its own motion. § 1797m — 5. The commission shall value all the property of every public utility actually used and useful for the conven- ience of the public. In making such valuation the commission may avail itself of any information in possession of the state board of assessment. § 1797m — 6. 1. Before final determination of such value the 943 § 1797m — 7-10 appendix b commission shall, after notice to the public utility, hold a pub- lic hearing as to such valuation in the manner prescribed for a hearing in sections 1797m-.— 45 to 1797m — 55 inclusive, and the provisions of such sections so far as applicable shall apply to such hearing, 2. The commission shall within five days after such valua- tion is determined serve a statement thereof upon the public utility interested, and shall file a like statement with the clerk of every municipality in which any part of the plant or equip- ment of such public utility is located. § 1797m — 7. The commission may at any time on its own initiative make a re-valuation of such property. § 1797m — 8. 1. Every public utility shall keep and render to the commission in the manner and form prescribed by the commission uniform accounts of all business transacted. 2. Every public utility engaged directly or indirectly in any other business than that of the production, transmission or furnishing of heat, light, water or power or the conveyance of telephone messages shall, if required by the commission, keep and render separately to the commission in like manner and form the accounts of all such other business, in which case all the provisions of this act shall apply with like force and effect to the books, accounts, papers and records of such other busi- ness. § 1797m — 9. The commission shall prescribe the forms of all books, accounts, papers and records required to be kept, and every public utility is required to keep and render its books, accounts, papers and records accurately and faithfully in the manner and form prescribed by the commission and to comply with all directions of the commission relating to such books, accounts, papers and records. § 1797m — 10. The commission shall cause to be prepared suit- able blanks for carrying out the purposes of this act, and shall, when necessary, furnish such blanks to each public utility. 944 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 11-15 § 1797m — 11. No public utility shall keep any other books, accounts, papers or records of the business transacted than those prescribed or approved by the commission. § 1797m — 12. Each public utility shall have an office in one of the towns, village or cities in this State in which its property or some part thereof is located, and shall keep in said office all such books, accounts, papers and records as shall be required by the commission to be kept within the State. No books, ac- counts, papers or records required by the commission to be kept within the State shall be at any time removed from the State, except upon such conditions as may be prescribed by the com- mission. § 1797m — 13. The accounts shall be closed annually on the 30th day of June and a balance sheet of that date promptly taken therefrom. On or before the first day of August following, such balance sheet together with such other information as the commission shall prescribe, verified by an officer of the public utility, shall be filed with the commission. § 1797m — 14. 1. The commission shall provide for the ex- amination and audit of all accounts, and all items shall be allocated to the accounts in the manner prescribed by the commission. 2. The agents, accountants or examiners em])loyed by the commission shall have authority under the direction of the com- mission to inspect and examine any and all books, accounts, papers, records and memoranda kept by such public utilities. § 1797m — 15. 1. Every i)ubli(' utility shall carry a proper and adequate depreciation account whenever (he commission after investigation shall determine that such d(>i)reciation ac- count can l)e reasona])ly required. The commission shall ascer- tain and determine what arc the proper and adequate rates of depreciation of the several classes of property of each public utility. Th(! rates shall be such as will [)rovi(le th(> amounts n^- GO 915 § 1797m— 16, 17 appendix b quired over and above the expense of maintenance, to keep such property in a state of efficiency corresponding to the progress of the industry. Each pubhc utiUty shall conform its depreci- ation accounts to such rates so ascertained and determined by the commission. The commission may make changes in such rates of depreciation from time to time as it may find to be necessary. 2. The commission shall also prescribe rules, regulations, and forms of accounts regarding such depreciation which the public utility is required to carry into effect. 3. The commission shall provide for such depreciation in fix- ing the rates, tolls and charges to be paid by the public. 4. All moneys thus provided for shall be set aside out of the earnings and carried in a depreciation fund. The moneys in this fund may be expended in new constructions, extensions or ad- ditions to the property of such pubhc utihty, or invested, and if invested the income from the investments shall also be carried in the depreciation fund. This fund and the proceeds thereof shall be used for no other purpose than as provided in this sec- tion and for depreciation. § 1797m— 16. The commission shall keep itself informed of all new construction, extensions and additions to the property of such public utilities and shall prescribe the necessary forms, regulations and instructions to the officers and employees of such public utilities for the keeping of construction accounts, which shall clearly distinguish all operating expenses and new con- struction. § 1797m— 17. 1. Nothing in this act shall be taken to pro- hibit a public utility from entering into any reasonable arrange- ment with its customers or consumers or with its employees, for the division or distribution of its surplus profits, or providing for a sliding scale of charges, or other financial device that may be practicable and advantageous to the parties interested. No such arrangement or device shall be lawful until it shall be found by the commission, after investigation, to be reasonable and 946 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 18, 19 just and not inconsistent with the purposes of this act. Such arrangement shall be under the supervision and regulation of the commission. 2. The commission shall ascertain, determine and order such rates, charges and regulations as may be necessary to give effect to such arrangement, but the right and power to make such other and further changes in rates, charges and regulations as the commission may ascertain and determine to be necessary and reasonable and the right to revoke its approval and amend or rescind all orders relative thereto is reserved and vested in the commission notwithstanding any such arrangement and mutual agreement. § 1797m — 18. Each public utility shall furnish to the com- mission in such form and at such time as the commission shall require, such accounts, reports and information as shall show in itemized detail: (1) the depreciation per unit, (2) the salaries and wages separately per unit, (3) legal expenses per unit, (4) taxes and rentals separately per unit, (5) the quantity and value of material used per unit, (6) the receipts from residuals, by-products, services or other sales separately per unit, (7) the total and net cost per unit, (8) the gross and net profit per unit, (9) the dividends and interest per unit, (10) surplus or reserve per unit, (11) the prices per unit paid by consumers; and in addition such other items, whether of a nature similar to those hereinbefore enmnerated or otherwis(\ as the commission may prescribe in order to show completely and in detail the entire operation of the public utility in furnishing the unit of its prod- uct or service to the public. § 1797m — 19. 1. The commission shall publish annual re- ports showing its proceedings and showing in tabular form the details per unit as provided in section 1797m— IS for all Ihe public utilities of each kind in the State, and such monthly or occasional reports as it may deem advisable. 2. The commission shall also publish in its annual reports the value of all the property actually used and useful for the con- 947 § 1797m— 20-23 appendix b venience of the public and the value of the physical property ac- tually used and useful for the convenience of the public, of every public utility as to whose rates, charges, service or regulations any hearing has been held by the commission under section 1797m — 45 and 1797m— 46 or the value of whose property has been ascertained by it under section 1797m — 5. § 1797m — 20. All facts and information in the possession of the commission shall be public and all reports, records, files, books, accounts, papers and memoranda of every nature whatsoever in their possession shall be open to inspection by the public at all reasonable times except as provided in section 1797m— 21. § 1797m — 21. 1. Whenever the commission shall determine it to be necessary in the interest of the public to withhold from the public any facts or information in its possession, such facts may be withheld for such period after the acquisition thereof not exceeding ninety days as the commission may determine. 2. No facts or information shall be withheld by the commis- sion from the public for a longer period than ninety days nor be so withheld for any reason whatsoever other than in the interest of the public. § 1797m — 22. The commission shall ascertain and prescribe for each kind of public utility suitable and convenient stand- ard commercial units of product or service. These shall be lawful units for the purposes of this act. § 1797m — 23. 1. The commission shall ascertain and fix adequate and serviceable standards for the measurement of quality, pressure, initial voltage or other condition pertaining to the supply of the product or service rendered by any public utility and prescribe reasonable regulations for examination and testing of such product or service and for the measurement thereof. 2. It shall establish reasonable rules, regulations, specifica- 948 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 24-27 tions and standards to secure the accuracy of all meters and ap- pliances for measurements, and every public utility is required to carry into effect all orders issued by the commission relative thereto. 3. Nothing contained in this section shall limit in any manner any powers or authority vested in municipal corporations as provided in section 1797m — 87. § 1797m — 24. 1. The commission shall provide for the ex- amination and testing of any and all appliances used for the measuring of any product of service of a public utility. 2. Any consumer or user may have any such appliance tested upon payment of the fees fixed by the commission. 3. The commission shall declare and establish reasonable fees to be paid for testing such appliances on the request of the consumers or users, the fee to be paid by the consumer or user at the time of his request, but to be paid by the public utility and repaid to the consumer or user if the appliance be found de- fective or incorrect to the disadvantage of the consumer or user. § 1797m — 25. The commission may purchase such materials, apparatus and standard measuring instruments for such ex- aminations and tests as it ma}' deem necessary. § 1797m — 26. The commission, its agents, experts or ex- aminers, shall have power to enter upon any promises occupied by any public utility for the purpose of making the exami- nations and tests provided in this act and to set up and use on such premises any apparatus and appliances and occupy reason- able space therefor. § 1797m— 27. Every public utility shall file with the com- mission within a time to be fixed by the commission, schedules which shall be open to public inspection, showing all rates, tolls and charges which it has established and which are in force at the time for any service performed by it within the State, or for any service in connection therewith ( r performed by any public 949 § 1797m— 28-32 appendix b utility controlled or operated by it. The rates, tolls and charges shown on such schedules shall not exceed the rates, tolls and charges in force April 1, 1907. § 1797m — 28. Every public utility shall file with and as a part of such schedule all rules and regulations that in any manner effect the rates charged or to be charged for any service. § 1797m— 29. A copy of so much of said schedules as the commission shall deem necessary for the use of the public shall be printed in plain type, and kept on file in every station or office of such public utility where payments are made by the consumers or users, open to the public, in such form and place as to be readily accessible to the public and as can be con- veniently inspected. § 1797m— 30. Where a schedule of joint rates or charges is or may be in force between two or more pubhc utilities, such schedules shall in like manner be printed and filed with the commission and so much thereof as the commission shall deem necessary for the use of the public shall be filed in every such station or office as provided in section 1797m — 29. § 1797m— 31. No change shall thereafter be made in any schedule, including schedules of joint rates, except upon ten days' notice to the commission, and all such changes shall be plainly indicated upon existing schedules, or by filing new schedules in lieu thereof ten days prior to the time the same are to take effect; provided, that the commission, upon appli- cation of any public utility, may prescribe a less time within which a reduction may be made, § 1797m — 32. Copies of all new schedules shall be filed as hereinbefore provided in every station and office of such public utility where payments are made by consumers or users ten days prior to the time the same are to take effect, unless the commission shall prescribe a less time. 950 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 33-38 § 1797m — 33. It shall be unlawful for any public utility to charge, demand, collect or receive a greater or less compensation for any service performed by it within the State or for any service in connection therewith than is specified in such printed schedules, including schedules of joint rates, as may at the time be in force, or to demand, collect or receive any rate, toll or charge not specified in such schedule. The rates, tolls and charges named therein shall be the lawful rates, tolls and charges until the same are changed as provided in this act. § 1797m — 34. The commission may prescribe such changes in the form in which the schedules are issued by any public utility as may be found to be expedient. § 1797m — 35. The commission shall provide for a compre- hensive classification of service for each pubhc utility and such classification may take into account the quantity used, the time when used, the purpose for which used, and any other reasonable consideration. Each public utility is required to conform its schedules of rates, tolls and charges to such classi- fication. § 1797m — 36. The commission shall have power to adopt reasonable and proper rules and regulations relative to all in- spections, tests, audits and investigations and to adopt and publish reasonable and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings of pul)lic utilities and other parties before it. All hear- iligs shall be open to the pubUc. § 1797m — 37. The commission sluiU have authority to in- quire into the management of the business of all public utilities and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from any pul)lic utility all necessary information to en- able the commission to perform its duties. § 1797m— 38. 1. The commission or any commissioner or 951 § 1797m — 39-41 appendix b any person or persons employed by the commission for that purpose shall, upon demand, have the right to inspect the books, accounts, papers, records and memoranda of any public utility and to examine, under oath, any officer, agent or em- ployee of such public utility in relation to its business and affairs. 2. Any person other than one of said commissioners, who shall make such demand shall produce his authority to make such inspection. § 1797m — 39. 1. The commission may require, by order or subpoena to be served on any public utility in the same man- ner that a summons is served in a civil action in the circuit court, the production within this State at such time and place as it may designate, of any books, accounts, papers or records kept by said public utility in any office or place without the State of Wisconsin, or verified copies in lieu thereof, if the com- mission shall so order, in order that an examination thereof may be made by the commission or under its direction. 2. Any public utility failing or refusing to comply with any such order or subpoena shall, for each day it shall so fail or re- fuse, forfeit and pay into the state treasury a sum of not less than fifty dollars nor more than five hundred dollars. § 1797m — 40. The commission is authorized to employ such engineers, examiners, experts, clerks, accountants and other assistants as it may deem necessary, at such rates of com- pensation as it may determine upon. § 1797m — 41. 1. For the purpose of making any investi- gation with regard to any public utility the commission shall have power to appoint, by an order in writing, an agent whose duties shall be prescribed in such order. 2. In tlic discharge of his duties such agent shall have every power whatsoever of an inquisitorial nature granted in this act to the commission and the same powers as a court commis- sioner with regard to the taking of depositions , and all powers 952 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 42, 43 granted by law to a court commissioner relative to depositions are hereby granted to such agent. 3. The commission may conduct any number of such in- vestigations contemporaneously through different agents, and may delegate to such agent the taking of all testimony bearing upon any investigation or hearing. The decision of the com- mission shall be based upon its examination of all testimony and records. The recommendations made by such agents shall be advisory only and shall not preclude the taking of further testimony if the commission so order nor further investigation. § 1797m— 42. 1. Every public utihty shall furnish to the commission all information required by it to carry into effect the provisions of this act, and shall make specific answers to all questions submitted by the commission. 2. Any pubhc utility receiving from the commission any blanks with directions to fill the same, shall cause the same to be properly filled out so as to answer fully and correctly each question therein propounded, and in case it is unable to answer any question, it shall give a good and sufficient reason for such failure; and said answer shall be verified under oath by the president, secretary, superintendent or general manager of such public utility and returned to the commission at its office within the period fixed by the commission. 3. Whenever required by the commission, every public utility shall deliver to the commission any or all maps, pro- files, contracts, reports of engineers and all documents, books, accounts, papers and records or copies of any or all of the same, with a complete inventory of all its property, in such form as the commission may direct. § 1797m — 43. Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing so- ciety or by any body politic or municipal organization or by any twenty-five persons, firms, corporations or associations, that any of the rates, tolls, charges or schedules or any joint rate or rates are in any respect rnreasonable or unjustly dis- 953 § 1797m— 44-46 appendix b criminatory, or that any regulation, measurement, practice or act whatsoever affecting or relating to the production, trans- mission, delivery or furnishing of heat, light, water or power or any service in connection therewith or the conveyance of any telephone message or any service in connection therewith is in any respect unreasonable, insufficient or unjustly dis- criminatory, or that any service is inadequate or cannot be ob- tained, the commission shall proceed, with or without notice, to make such investigation as it may deem necessary or con- venient. But no order affecting said rates, tolls, charges, schedules, regulations, measurements, practice or act com- plained of shall be entered by the commission without a formal pubhc hearing. § 1797m — 44. The commission shall, prior to such formal hearing, notify the public utility complained of that a com- plaint has been made, and ten days after such notice has been given the commission may proceed to set a time and place for a hearing and an investigation as hereinafter provided. § 1797m — 45. The commission shall give the public utility and the complainant, if any, ten days' notice of the time and place when and where such hearing and investigation will be held and such matters considered and determined. Both the public utility and complainant shall be entitled to be heard and shall have process to enforce the attendance of witnesses. § 1797m — 46. 1. If upon such investigation the rates, tolls, charges, schedules or joint rates, shall be found to be unjust, unreasonable, insufficient or unjustly discriminatory or to be preferential or otherwise in violation of any provisions of this act, the commission shall have power to fix and order substi- tuted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable. 2. If upon such investigation it shall be found that any regulation, measurement, practice, act, or service complained of is unjust, unreasonable, insufficient, preferential, unjustly 954 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 47-50 discriminatory or otherwise in violation of any of the provisions of this act, or if it be found that any service is inadequate or that any reasonable service cannot be obtained, the commis- sion shall have power to substitute therefor such other regu- lations, measurements, practices, service or acts and to make such order respecting, and such changes in such regulations, measurements, practices, service or acts as shall be just and reasonable. § 1797m — 47. If upon such investigation it shall be found that any rate, toll, charge, schedule or joint rate or rates is un- just, unreasonable, insufficient or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this act, or that any regulation, practice, act or service com- plained of is unjust, unreasonable, insufficient, preferential, or otherwise in violation of the provisions of this act, or if it be found that any service is inadequate or that any reasonable service cannot be obtained, the public utility found to be at fault shall pay the expenses incurred by the commission upon such investigation. § 1797m — 48. The commission may, in its discretion, when complaint is made of more than one rate or charge, order separate hearings thereon, and may consider and determine the several matters complained of separately and at such times as it may prescribe. No complaint shall at any time be dis- missed because of tlie absence of direct damage to the com- plainant. § 1797m — 49. Whenever the commission shall believe that any rate or charge may be unreasonable or unjustly discrimi- natory or that any service is inadequate or cannot be obtained or that an investigation of any matter relating to any public utility should for any reason be made, it may on its own motion, summarily investigate the same with or without notice. § 1797m— 50. If, after making such investigation, the commis- sion becomes satisfied that sufficient grounds exist to warrant 955 § 1797m — 51-53 appendix b a formal hearing being ordered as to the matters so investi- gated, it shall furnish such pubUc utility interested a statement notifying the public utility of the matters under investigation. Ten days after such notice has been given the commission may proceed to set a time and place for a hearing and an investiga- tion as hereinbefore provided. § 1797m— 51. Notice of the time and place for such hearing shall be given to the public utility and to such other interested persons as the commission shall deem necessary as provided in section 1797m — 45, and thereafter proceedings shall be had and conducted in reference to the matter investigated in like manner as though complaint had been filed with the commis- sion relative to the matter investigated, and the same order or orders may be made in reference thereto as if such investi- gation had been made on complaint. § 1797m — 52. Any public utility may make complaint as to any matter affecting its own product or service with Uke effect as though made by any mercantile, agricultural or manufac- turing society, body politic or municipal organization or by any twenty-five persons, firms, corporations or associations, § 1797m — 53. 1. Each of the commissioners and every agent provided for in section 1797m— 41 of this act for the pur- poses mentioned in this act, shall have power to administer oaths, certify to official acts, issue subpoenas, compel the at- tendance of witnesses and the production of books, accounts, papers, records, documents and testimony. 2. In case of disobedience on the part of any person or per- sons to comply with any order of the commission or any com- missioner or any subpoena, or, on the refusal of any witness to testify to any matter regarding which he may be lawfully in- terrogated before the commission or its agent authorized as provided in section 1797m — 41, it shall be the duty of the cir- cuit court of any county or the judge thereof, on application of a commissioner to compel obedience by attachment pro- 956 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 54-58 ceedings for contempt as in the case of disobedience of the re- quirements of a subpoena issued from such court or a refusal to testify therein. § 1797m— 54. 1. Each witness who shall appear before the commission or its agent by its order, shall receive for his at- tendance the fees and mileage now provided for witnesses in civil cases in courts of record, which shall be audited and paid by the State in the same manner as other expenses are audited and paid, upon the presentation of proper vouchers sworn to by such witnesses and approved by the chairman of the commis- sion. 2. No witness subpoenaed at the instance of parties other than the commission shall be entitled to compensation from the State for attendance or travel unless the commission shall certify that his testimony was material to the matter investi- gated. § 1797m — 55. The commission or any party may, in any investigation, cause the depositions of witnesses residing within or without the State to be taken in the manner prescribed by law for like depositions in civil actions in circuit courts. § 1797m — 56. A full and complete record shall be kept of all proceedings had before the commission or its agent on any formal investigation had and all testimony shall be taken down by the stenographer appointed by the conmiission. § 1797m — 57. Whenever any complaint is served upon the commission under the provisions of section 1797m — 64 of this act, the commission shall, before said action is reached for trial, cause a certified transcript of all proceedings had and testimony taken upon such investigation to be filed with the clerk of the circuit court of the county where the action is pending. § 1797m — 58. A transcribed copy of the evidence and pro- ceedings or any specific part thereof, on any investigation taken 957 § 1797m— 59, 60 appendix b by the stenographer appointed by the commission, being certi- fied by such stenographer to be a true and correct transcript in longhand of all the testimony on the investigation of a par- ticular witness, or of other specific part thereof, carefully com- pared by him with his original notes, and to be a correct state- ment of the evidence and proceedings had on such investigation so purporting to be taken and transcribed, shall be received in evidence with the same effect as if such reporter were present and testified to the fact so certified. § 1797m — 59. A copy of such transcript shall be furnished on demand free of cost to any party to such investigations. § 1797m — 60. 1. Whenever, upon an investigation made under the provisions of this act, the commission shall find any existing rates, tolls, charges, schedules or joint rate made un- der the provisions of this act, the commission shall find any existing rates, tolls, charges, schedules or joint rate or rates to be unjust, unreasonable, insufficient or unjustly discriminatory or to be preferential or otherwise in violation of any of the provisions of this act, the commission shall determine and by order fix reasonable rates, tolls, charges, schedules or joint rates to be imposed, observed and followed in the future in lieu of those found to be unjust, unreasonable, insufficient or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this act. 2. Whenever, upon an investigation made under the pro- visions of this act, the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreason- able, insufficient, preferential, unjustly discriminatory or other- wise in violation of any of the provisions of this act; or shall find that any service is inadequate or that any service which can be reasonably demanded cannot be obtained, the commis- sion shall determine and declare and by order fix reasonable measurements, regulations, acts, practices or service to be furnished, imposed, observed and followed in the future in lieu of those found to be unjust, unreasonable, insufficient, prefer- 958 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 61, 62 ential, unjustly discriminatory, inadequate or otherwise in violation of this act as the case may be, and shall make such other order respecting such measurement, regulation, act, practice or service as shall be just and reasonable. 3. Whenever, upon an investigation made under the pro- visions of this act, the commission shall find that any rate, toll, charge, schedule or joint rate or rates is unjust, unreason- able, insufficient or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this act, or that any measurement, regulation, practice, act or service com- plained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise in violation of any of the provisions of this act, or it shall find that any service is inade- quate or that any service which can reasonably be demanded cannot be obtained, the commission shall ascertain and de- clare and by order fix the expenses incurred by the commis- sion upon such investigation and shall by such order direct such public utility to pay to the state treasurer within twenty days thereafter such expenses so incurred. 4. The commission shall cause a certified copy of all such orders to be delivered to an officer or agent of the public utility affected thereby, and all such orders shall of their own force take effect and become operative twenty days after service thereof, unless a different time be provided by said order. § 1797m — 61. All public utilities to which the order applies shall make such changes in their schedule on file as may be necessary to make the same conform to said order, and no change shall thereafter be made by an}'' public utility in any such rates, tolls or charges, or in any joint rate or rates, with- out the approval of the commission. Certified copies of all other orders of the commission shall be delivenMl to the public utility affected thcre})y in like manner and the same shall take effect within such time thereafter as the commission shall pre- scribe. § 1797m — 62. The commission may at any time, upon notice 959 § 1797m— 63-65 appendix b to the public utility and after opportunity to be heard as pro- vided in section 1797m— 45, rescind, alter or amend any order fixing any rate or rates, tolls, charges or schedules, or any other order made by the commission, and certified copies of the same shall be served and take effect as herein provided for original orders. § 1797m— 63. All rates, tolls, charges, schedules and joint, rates fixed by the commission shall be in force and shall be prima facie lawful, and all regulations, practices and services prescribed by the commission shall be in force and shall be prima facie reasonable until finally found otherwise in an ac- tion brought for that purpose pursuant to the provisions of section 1797m— 64. § 1797m— 64. 1. Any public utiUty and any person or corporation in interest being dissatisfied with any order of the commission fixing any rate or rates, tolls, charges, schedules, joint rate or rates or any order fixing any regulations, practices, act or service may commence an action in the circuit court for Dane county against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act or service fixed in such order is unreasonable, in which action the complaint shall be served with the summons. 2. The answer of the commission to the complaint shall be served and filed within ten days after service of the complaint, whereupon said action shall be at issue and stand ready for trial upon ten days' notice to either party. 3. All such actions shall have precedence over any civil cause of a different nature pending in such court, and the cir- cuit court shall always be deemed open for the trial thereof, and the same shall be tried and determined as other civil ac- tions. § 1797m — 65. Every proceeding, action or suit to set aside, 960 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 66-68 vacate or amend any determination or order of the commis- sion or to enjoin the enforcement thereof or to prevent in any way such order or determination from becoming effective, shall be commenced, and every appeal to the courts or right of recourse to the courts shall be taken or exercised within ninety days after the entry or rendition of such order or de- termination, and the right to commence any such action, pro- ceeding or suit, or to take or exercise any such appeal or right of recourse to the courts, shall terminate absolutely at the end of such ninety days after such entry or rendition thereof. § 1797m— 66. No injunction shall issue suspending or stray- ing [staying] any order of the commission, except upon applica- tion to the circuit court or presiding judge thereof, notice to the commission, and hearing. § 1797m— 67. 1. If, upon the trial of such action, evidence shall be introduced by the plaintiff which is found by the court to be different from that offered upon the hearing before the commission or its authorized agent, or additional thereto, the court, before proceeding to render judgment unless the parties to such action stipulate in writing to the contrary, shall trans- mit a copy of such evidence to the commission and shall stay further proceedings in said action for fifteen days from the date of such transmission. 2. Upon the receipt of such evidence the commission shall consider the same and may alter, modify, amend or r(\scind its order relating to such rate or rates, tolls, charges, schedules, joint rate or rates, regulations, practice, act or service com- plained of in said action, and shall n>port its action thereon to said court within ten days from the rec(>ipt of such evidence. § 1797m — 68. 1. If the commission shall rescind its order complained of, the action shall be dismissed; if it shall alter, modify or amend the same, such altered, modified or amended order shall take the place of the original order complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. 61 \m § 1797m— 69-72 appendix b 2. If the original order shall not be rescinded or changed by the commission judgment shall be rendered upon such original order. § 1797m — 69. Either party to said action, within sixty days after service of a copy of the order or judgment of the circuit court, may appeal to the supreme court. Where an appeal is taken the cause shall, on the return of the papers to the su- preme court, be immediately placed on the state calendar of the then pending term and shall be assigned and brought to a hearing in the same manner as other causes on the state cal- endar. § 1797m — 70. In all trials, actions and proceedings arising under the provisions of this act or growing out of the exercise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to such commission or seeking to set aside any determination, require- ment, direction or order of said commission, to show by clear and satisfactory evidence that the determination, requirement, direction or order of the commission complained of is unreason- able or unlawful as the case may be. § 1797m — 71. In all actions and proceedings in court arising under this act all processes shall be served and the practice and rules of evidence shall be the same as in civil actions, ex- cept as otherwise herein provided. Every sheriff or other officer empowered to execilte civil processes shall execute any process issued under the provisions of this act and shall receive such compensation therefor as may be prescribed by law for similar services. § 1797m — 72. No person shall be excused from testifying or from producing books, accounts and papers in any proceed- ing based upon or growing out of any violation of the provisions of this act on the ground or for the reason that the testimony or evidence, documentary or otherwise, required by him may 962 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 73, 74 tend to incriminate him or subject him to penalty or forfeiture; but no person having so testified shall be prosecuted or sub- jected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may have testified or produced any documentary evidence; provided, that no person testifying shall be exempted from prosecution or punishment for perjury in so testifying. § 1797Tn — 73. Upon application of any person the commis- sion shall furnish certified copies, under the seal of the com- mission, of any order made by it, which shall be prima facie evidence of the facts stated therein. § 1797m — 74. 1. No license, permit or franchise shall be granted to any person, copartnership or corporation to own, operate, manage or control any plant or equipment for the production, transmission, delivery or furnishing of heat, light, water or power in any municipality where there is in operation under an indeterminate permit as provided in this act a public utility engaged in similar service without first securing from the commission a declaration after a public hearing of all parties interested, that public convenience and necessity require such second public utility. 2. Any existing permit, license or franchise which shall con- tain any term whatsoever interfering with the existence of such second public utility is hereby amended in such a manner as to permit such municipality to grant an indeterminate permit for the operation of such second public utility pursuant to the provisions of this act. 3. No municipality shall hereafter construct any such plant or equipment where there is in operation under an indeterminate permit as provided in this act, in such municipality a public utility engaged in similar service, without first securing from the commission a declaration, after a public hearing of all parties interested, that i)ul)lic convenience and necessity re- quire such municipal public utility. But nothing in this sec- tion shall be construed as preventing a municipality accjuir- 903 § 1797m— 75-77 appendix b ing any existing plant by purchase or by condemnation as hereinafter provided. 4. Nothing in this section shall be construed so as to pre- vent the granting of an indeterminate permit or the construc- tion of a municipal plant Where the existing pubhc utihty is operating without an indeterminate permit as provided in this act. § 1797m— 75. No hcense, permit or franchise to own, oper- ate, manage or control any plant or equipment for the pro- duction, transmission, delivery or furnishing of heat, light, water or power shall be hereafter granted, or transferred ex- cept to a corporation duly organized under the laws of the State of Wisconsin. § 1797m— 76. Every license, permit or franchise hereafter granted to any public utility shall have the effect of an inde- terminate permit subject to the provisions of this act, and subject to the provision that the municipality in which the ma- jor part of its property is situate may purchase the property of such public utility actually used and useful for the con- venience of the public at any time as provided herein, paying therefor just compensation to be determined by the commission and according to the terms and conditions fixed by said com- mission. Any such municipahty is authorized to purchase such property and every such public utility is required to sell such property at the value and according to the terms and conditions determined by the commission as herein provided. § 1797m— 77. Any public utility, being at the time a corpo- ration duly organized under the laws of the State of Wisconsin, operating under an existing hcense, permit or franchise shall, upon filing at any time prior to the expiration of such license, permit or franchise and prior to July 1, 1908, with the clerk of the municipality which granted such franchise and with the commission, a written declaration legally executed that it surrenders such license, permit or franchise, receive by oper- ation of law in lieu thereof, an indeterminate permit as pro- 964 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 78, 79 vided in this act; and such pubhc utiHty shall hold such per- mit under all the terms, conditions and limitations of this act. The filing of such declaration shall be deemed a waiver by such public utility of the right to insist upon the fulfillment of any contract theretofore entered into relating to any rate, charge or service regulated by this act. § 1797m — 78. Any pubUc utihty accepting or operating un- der any license, permit or franchise hereafter granted shall, by acceptance of any such indeterminate permit be deemed to have consented to a future purchase of its property actually used and useful for the convenience of the public by the mu- nicipality in which the major part of it is situate for the com- pensation and under the terms and conditions determined by the commission, and shall thereby be deemed to have waived the right of requiring the necessity of such taking to be estab- lished by the verdict of a jury, and to have waived all other remedies and rights relative to condemnation, except such rights and remedies as are provided in this act. § 1797m — 79. 1. Any municipality shall have the power, subject to the provisions of this act, to construct and operate a plant and equipment or any part thereof for the production, transmission, delivery or furnishing of heat, light, water or power, 2. Any municipality shall have the power, subject to the provisions of this act, to purchase by an agreement with any public utility any part of any plant, provided, that such pur- chase and the terms thereof shall be approved by the com- mission after a hearing as provided in sections 1797m — 81 and 1797m— 82. 3. Any municipality shall have the power, subject to tlie provisions of this act to acquire by condemnation the jjrop- erty of any public utility actually used and useful for the con- venience of the public then operating under a license, jxTiriit or franchise existing at the time this act takes effect, or oper- ating in such municipality without any permit or franchise, 965 § 1797m— 80-82 appendix b 4. Any municipality shall have the power, subject to the pro- visions of this act, to acquire by purchase as provided in this act, the property of any public utility actually used and useful for the convenience of the public operating under any inde- terminate permit as provided herein. § 1797m— 80. If the municipality shall have determined to acquire an existing plant then operated under a license, permit or franchise existing at the time this act takes effect, such mu- nicipality shall bring an action in the circuit court against the public utility as defendant praying the court for an adjudication as to the necessity of such taking by the municipality, in which action the complaint shall be served with the summons. The public utility shall serve and file its answer to such complaint within ten days after the service thereof, whereupon such action shall be at issue and stand ready for trial upon ten days' notice by either party. Unless the parties thereto waive a jury, the question as to the necessity of the taking of such property by the municipality shall be as speedily as possible submitted to a jury. § 1797m— 81. If the municipality shall have determined to acquire an existing plant and the public utility owning such plant shall have consented to the taking over of such plant by the municipality by acceptance of an indeterminate permit as provided herein, or, in case such public utiUty shall not have waived or consented to such taking, if the jury shall have found that a necessity exists for the taking of such plant, then the municipality shall give speedy notice of such determination and of such consent or such verdict of a jury to the public utiUty and to the commission. § 1797m— 82. The commission shall thereupon after public hearing and within three months from the receipt of such notice and upon notice to the municipality and the public utility in- terested, by order fix and determine and certify to the munic- ipal council and to the public utility just compensation to be 966 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 83-86 paid for the taking of the property of such pubHc utiUty actually used and useful for the convenience of the public and all other terms and all conditions of sale and purchase which it shall ascertain to be reasonable. The compensation and other terms and the conditions of sale and purchase thus certified by the commission shall constitute the compensation and terms and conditions to be paid, followed and observed in the purchase of such plant from such pubhc utility. Upon the filing of such certificate with the clerk of such municipality the exclusive use of the property taken shall vest in such municipality. § 1797m — 83. Any pubhc utihty or the municipality being dissatisfied with such order may commence and prosecute an action in the circuit court to alter or amend such order or any part thereof as provided in sections 1797m — 64 to 1797m — 73, inclusive, and said sections so far as applicable shall apply to such action. § 1797m— 84. If the plaintiff shall not establish to the full satisfaction of the court that the compensation fixed and de- termined in such order is unlawful or that some of the terms or conditions fixed and determined therein are in some particulars unreasonable, the compensation, terms and conditions fixed in said order shall be the compensation, terms and conditions to be paid, followed and observed in the purchase of said plant from such public utility. § 1797m— 85. If the plaintiff shall establish to the full satis- faction of the court and the court shall adjudge that such com- pensation is unlawful or that some of such terms or conditions are unreasonable, the court shall remand the same to the com- mission with such findings of fact and conclusions of law as shall set forth in detail the reasons for such judgment and the specific particulars in which sucli order of the commission is ad- judged to be unreasonable or unlawful. § 1797m— 86. 1. If tlie compensation fixed by the previous order of the commission be adjudged to be unlawful, the com- 967 § 1797m— 87 appendix b mission shall forthwith proceed to set a re-hearing for the re- determination of such compensation as in the first instance. 2. The commission shall forthwith otherwise alter and amend such previous order with or without a re-hearing as it may deem necessary so that the same shall be reasonable and lawful in every particular. § 1797m— 87. Every municipal council shall have power. (1) To determine by contract, ordinance or otherwise the qual- ity and character of each kind of product or service to be fur- nished or rendered by any public utility furnishing any product of service within said municipality and all other terms and con- ditions not inconsistent with this act upon which such pubhc utility may be permitted to occupy the streets, highways or other public property within such municipality and such con- tract, ordinance or other determination of such municipality shall be in force and prima facie reasonable. Upon complaint made by such public utility or by any qualified complainant as provided in section 1797m — 43, the commission shall set a hearing as provided in sections 1797m — 45 and 1797m — 46 and if it shall find such contract, ordinance or other determination to be unreasonable, such contract, ordinance or other determi- nation shall be void. (2) To require of any public utility by ordinance or other- wise such additions and extensions to its physical plant within said municipality as shall be reasonable and necessary in the in- terest of the pubhc, and to designate the location and nature of all such additions and extensions, the time within which they must be completed and all conditions under which they must be constructed subject to review by the commission as pro- vided in subdivision 1 of this section. (3) To provide for a penalty for non-compliance with the provisions of any ordinance or resolution adopted pursuant to the provisions hereof. (4) The power and authority granted in this section shall exist and be vested in said municipalities, anything in this act to the contrary notwithstanding. 968 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 88, 89 § 1797m— 88. No public utility or any agent or officer thereof, or any agent or officer of any municipality constituting a public utility as defined in this act shall offer or give for any purpose to any political committee or any member or employee thereof, to any candidate for, or incumbent of, any office or posi- tion under the constitution or laws or under any ordinance of any municipality of this State, or to any person at the request, or for the advantage of all or any of them, any frank, or any privilege withheld from any person for any product or service produced, transmitted, delivered, furnished or rendered, or to be produced, transmitted, delivered, furnished or rendered by any pubhc utility, or the conveyance of any telephone message or communication or any free product or service whatsoever. 2. No political committee and no member or employee thereof, no candidate for and no incumbent of any office or posi- tion under the constitution or laws or under any ordinance of any town or municipality of this State, shall ask for or accept from any public utility or any agent or officer thereof, or any agent or officer of any municipahty constituting a public utility as defined in this act, or use in any manner or for any purpose any frank or privilege withheld from any person, for any product or service produced, transmitted, delivered, furnished or ren- dered, or to be produced, transmitted, delivered, furnished or rendered by any public utility, or the conveyance of any tele- phone message or communication. 3. Any violation of an}' of the provisions of this section shall be punished by imprisonment in the state prison not more than five years nor less tiian one year or by fine not exceeding one thousand dollars nor less than two liundrcd dollars. § 1797m — 89. 1 . If any public utility or any agent or officer thereof, or any officer of any municipality constituting a public utility as defined in this act shall, directly or indirectly, by any device whatsoever or otherwise, charge, demand, col- lect or receive from any person, firm or corporation a greater or less compensation for any service rendered or to be rendered by it in or affecting or relating to tlie jjrodiiction, transmission, 969 § 1797m~90, 91 appendix b delivery or furnishing of heat, Hght, water or power or the con- veyance of telephone messages or for any service in connection therewith than that prescribed in the published schedules or tariffs then in force or established as provided herein, or than it charges, demands, collects or receives from any other person, firm or corporation for a like and contemporaneous service, such public utility shall be deemed guilty of unjust discrimination which is hereby prohibited and declared to be unlawful, and upon conviction thereof shall forfeit and pay into the state treasury not less than one hundred dollars nor more than one thousand dollars for each offense; and such agent or officer so offending shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars for each offense. § 1797m— 90. It shall be unlawful for any public utility to demand, charge, collect or receive from any person, firm or corporation less compensation for any service rendered or to be rendered by said public utility in consideration of the fur- nishing by said person, firm or corporation of any part of the facilities incident thereto; provided nothing herein shall be construed as prohibiting any public utility from renting any faciUties incident to the production, transmission, delivery or furnishing of heat, light, water or power or the conveyance of telephone messages and paying a reasonable rental therefor. § 1797m — 91 . If any public utility make or give any undue or unreasonable preference or advantage to any particular person, firm or corporation or shall subject any particular person, firm or corporation to any undue or unreasonable prejudice or dis- advantage in any respect whatsoever, such public utility shall be deemed guilty of unjust discrimination which is hereby prohibited and declared unlawful. The furnishing by any public utility, of any product or serv- ice at the rates and upon the terms and conditions provided for in any existing contract executed prior to April 1, 1907, shall not constitute a discrimination within the meaning speci- 970 PUBLIC UTILITY LAW OF WISCONSIN § 1797m— 92-94 fied. Any person, firm or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty dollars nor more than one thousand dollars for each offense. § 1797m — 92. It shall be unlawful for any person, firm or corporation knowingly to solicit, accept or receive any rebate, concession or discrimination in respect to any service in or affecting or relating to the production, transmission, delivery or furnishing of heat, light, water or power or the conveying of telephone messages within this State, or for any service in connection therewith whereby any such service shall, by any device whatsoever, or otherwise, be rendered free or at a less rate than that named in the published schedules and tariffs in force as provided herein, or whereby any service or advantage is received other than is herein specified. Any person, firm or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty dollars nor more than one thousand dollars for each offense. § 1797m— 93. If any public utihty shall do or cause to be done or permit to be done any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing ixuiuired to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in conse- quence of such violation; provided, that any recovery as in this section provided, shall in no manner affect a recovery by the State of the penalty prescribed for such violation. § 1797m — 94. Any ofl^cer, agent or cmployeb of any public utility or of any municipality constituting a public utility as defined in this act who shall fail or refuse to fill out and return any blanks as required by this act, or shall fail or refuse to answer any question therein propounded, or shall knowingly 971 § 1797m— 95, 96 appendix b or willfully give a false answer to any such question or shall evade the answer to any such question where the fact inquired of is within his knowledge or who shall, upon proper demand, fail or refuse to exhibit to the commission or any commissioner or any person authorized to examine the same, any book, paper, account, record, or memoranda of such public utility which is in his possession or under his control or who shall fail to properly use and keep his system of accounting or any part thereof as prescribed by the commission, or who shall refuse to do any act or thing in connection with such system of account- ing when so directed by the commission or its authorized repre- sentative, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one thousand dollars for each offense. 2. And a penalty of not less than five hundred dollars nor more than one thousand dollars shall be recovered from the public utility for each such offense when such officer, agent or employee acted in obedience to the direction, instruction or re- quest of such public utility or any general officer thereof. § 1797m— 95. 1. If any public utility shall violate any pro- vision of this act, or shall do any act herein prohibited or shall fail or refuse to perform any duty enjoined upon it for which a penalty has not been provided, or shall fail, neglect or refuse to obey any lawful requirement or order made by the commission or the municipal council or any judgment or decree made by any court upon its application, for every such violation, failure or refusal such public utility shall forfeit and pay into the treasury a sum not less than one hundred dollars nor more than one thousand dollars for each such offense. 2. In construing and enforcing the provisions of this sec- tion the act, omission or failure of any officer, agent or other person acting for or employed by any public utility acting within the scope of his employment shall in every case be deemed to be the act, omission or failure of such public utihty. § 1797m— 96. If any officer of any town, village or city con- 972 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 97-99 stituting a public utility as defined in this act shall do or cause to be done or permit to be done any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit, fail, neglect or refuse to do any act, matter or thing required by this act of such officer to be done, or shall omit, fail, neglect or refuse to perform any duty enjoined upon him and relating directly or indirectly to the enforcement of this act, or shall omit, fail, neglect or refuse to obey any lawful requirement or order made by the commission or any judgment or decree made by the court upon its application, for every such violation, failure or refusal such officer shall be deemed guilty of a mis- demeanor and upon conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars. ' § 1797m — 97. 1. TVny person who shall destroy, injure or interfere with any apparatus or appliance owned or operated by or in charge of the commission or its agent shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine not exceeding one hundred dollars or imprisonment for a period not exceeding thirty days or both. 2. Any public utility permitting the destruction, injury to, or interference with, any such apparatus or appliance, shall forfeit a sum not exceeding one thousand dollars for each of- fense. § 1797m — 98. Every day during which any public utility or any officer, agent or employee thereof shall fail to observe and comply with any order or direction of the commission or to perform any duty enjoined by this act shall constitute a sepa- rate and distinct violation of such order or direction or of this act as the case may be. § 1797m— 99. 1. The commission shall have power, when deemed by it necessary to prevent injury to the business or interests of the people or any public utility of this State in case of any emergency to Ik* judged of Ijy the commission, to tempo- 97;-; § 1797m— 100-102 appendix b rarily alter, amend, or with the consent of the public utility concerned, suspend any existing rates, schedules and order relating to or affecting any public utility or part of any public utility in this State. 2. Such rates so made by the commission shall apply to one or more of the public utilities in this State or to any portion thereof as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission. § 1797m— 100. Whenever, after hearing and investigation as provided in this act, the commission shall find that any rate, toll, charge, regulation or practice for, in, or affecting or relating to the production, transmission, delivery or furnishing of heat, light, water or power or the conveying of any tele- phone message or any service in connection therewith not hereinbefore specifically designated, is unreasonable or un- justly discriminatory, it shall have the power to regulate the same as provided in sections 1797m — 43 to 1797m — 51 and 1797m— 60 to 1797m— 62, inclusive. § 1797m — 101. 1. Every pubHc utility shall, whenever an accident attended with loss of human life occurs within this State upon its premises or directly or indirectly arising from or connected with its maintenance or operation, give immediate notice thereof to the commission. 2. In the event of any such accident the commission, if it deem the public interest require it, shall cause an investigation to be made forthwith, which investigation shall be held in the locality of the accident, unless for greater convenience of those concerned it shall order such investigation to be held at some other place; and said investigation may be adjourned from place to place as may be found necessary and convenient. The com- mission shall seasonably notify the public utility of the time and place of the investigation. § 1797m — 102. 1. The commission shall inquire into any neglect or violation of the laws of this State by any public 974 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 103-105 utility doing business therein, or by the officers, agents or em- ployees thereof or by any person operating the plant of any pub- lic utility, and shall have the power and it shall be its duty to enforce the provisions of this act as well as all other laws re- lating to public utilities, and to report all violations thereof to the attorney general. 2. Upon the request of the commission it shall be the duty of the attorney general or the district attorney of the proper county to aid in any investigation, hearing or trial had under the provisions of this act, and to institute and prosecute all nec- essary actions or proceedings for the enforcement of this act and of all other laws of this State relating to public utiUties and for the punishment of all violations thereof. 3. Any forfeiture or penalty herein provided shall be recov- ered and suit therein shall be brought in the name of the State of Wisconsin in the circuit court for Dane coimty. Complaint for the collection of any such forfeiture may be made by the commission or any member thereof, and when so made the ac- tion so commenced shall be prosecuted by the attorney general. 4. The commission shall have authority to employ counsel in any proceeding, investigation, hearing or trial. § 1797m— 103. A substantial comphance with the require- ments of this act shall be sufficient to give effect to all the rules, orders, acts and regulations of the commission and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto. § 1797m— 104. This act shall not have the effect to release or waive any right of action by the State or by any person for any right, penalty or forfeiture which may have arisen or which may hereafter arise, under any law of this State; and all pen- alties and forfeitures accruing under this act shall be cunuila- tive and a suit for any recovery of one shall not be a bar to the recovery of any other penalty. § 1797m— 105. 1. Unless the commission shall otherwise order, it shall be unlawful for any jjublic utility within this State 975 § 1797rn — 106, 107 . appendix b to demand, collect or receive a greater compensation for any service than the charge fixed on the lowest schedules of rates for the same service on the first day of April, 1907. 2. Every public utility in this State shall, within thirty days after the passage and publication of this act, file in the office of the commission, copies of all schedules of rates and charges in- cluding joint rates, in force on the first day of April, 1907, and all rates in force at any time subsequent to said date. 3. Any public utility desiring to advance or discontinue any such rate or rates may make application to the commission in writing stating the advance in or discontinuation of the rate or rates desired, giving the reasons for such advance or discon- tinuation. 4. Upon receiving such application the commission shall fix a time and place for hearing and give such notice to interested parties as it shall deem proper and reasonable. If, after such hearing and investigation, the commission shall find that the change or discontinuation applied for is reasonable, fair and just, it shall grant the application either in whole or in part. 5. Any public utility being dissatisfied with any order of the commission made under the provisions of this section may com- mence an action against it in the circuit court in the manner provided in sections 1797m— 64 to 1797m — 73, inclusive, of this act, which action shall be tried and determined in the same manner as is provided in said sections. § 1797m — 106. The employment of agents, experts, engi- neers, accountants, examiners or assistants by the commission as provided in this act, and the payment of their compensation and travelling and other expenses, shall be under the provisions of section 1, chapter 362, of the laws of 1905, and acts amenda- tory thereof. § 1797m — 107. A sum sufficient to carry out the provisions of this act is appropriated out of any money in the state treas- ury not otherwise appropriated, not exceeding fifty-two thou- sand dollars. 976 PUBLIC UTILITY LAW OF WISCONSIN § 1797m — 108 § 1797m — 108. All acts and parts of acts conflicting with the provisions of this act are repealed in so far as they are in- consistent herewith. Section 2. Section 925— 97a, statutes of 1898, chapter 389, laws of 1905, and chapter 459, laws of 1905, are repealed. Section 3. This act shall take effect and be in force from and after its passage and publication. Approved July 9, 1907. 62 977 CONTENTS OF APPENDIX B. § 1797ni— 1 Public Utility Law: definitions; "public utility," "municipal council," "munici- pality," "service," § 1797m- " indeterminate per- mit," "commis- 1797m- si on s . " 1797m — 2 Railroad commission's powers. 1797m— 3 Utility charges to be 1797m- reasonable and just. 1797m — 4 Facilities to be granted 1797m- to other utilities; complaint and ap- peal. 1797m- 1797m — 5 Utility property; valu- ation. 1797m- 1797m — 6 Valuation; commis- 1797m- sion's hearing and report. 1797m- 1797m — 7 Revaluation. 1797m — 8 Uniform accounting by utilities; other busi- 1797m- ness separate. 1797m — 9 Forms of bookkeeping; 1797m- prescription. 1797m— 10 Blanks. 1797m- 1797m — 11 No other books, etc., to 1797m- be kept than those prescribed or ap- 1797m- proved by commis- sion. 1797m- 1797m — 12 Books: office for; no removal from State. 1797m- 1797m — 13 Balance sheets filed 1797m- annually. 1797m — 14 Audit and inspection. 1797m- 1797m — 15 Depreciation rates and 978 accounts; commis- sion's rules; depreci- ation fund and use thereof. -16 New constructions; ac- counting. -17 Profit-sharing and slid- ing scales; when and while commission approves. -18 Report by utilities; items. -19 Commission's reports, annual and other; values shown. -20 Commission's records public. -21 Temporary secrecy. -22 Units of products or service. -23 Standard measure- ments; accurate ap- pliances. -24 Tests of measuring in- struments; fees. -25 Public equipment for tests. -26 Entry upon premises. -27 Publicity of rate sched- ules. -28 Publicity of rules and regulations. -29 Files accessible to pub- lic. -30 Publicity of joint rates. -31 Changes of rates; ten days' notice. -32 Publicity of revised schedules. APPENDIX B ( 1797m— 33 1797m— 34 1797m— 35 1797m— 36 1797m— 37 1797m— 38 1797m— 39 1797m^0 1797m-41 1797m— 42 1797m— 43 1797m— i4 1797m— i5 1797m— 46 1797m— 47 1797m— 48 1797m— 49 1797m— 50 1797m— 51 1797m— 52 1797m— 53 1797m— 54 1797m— 55 1797m— 56 1797m— 57 Unlawful to depart from schedules. Schedules' forms pre- scribed. Classification of utility service. Commission's rules of procedure. Business management; inquiries. Books subject to in- spection. Judicial process to ob- tain papers. Commission's em- ployees. Agents of commis- sions; powers. Response of utilities to commission's calls. Complaint by consum- ers. Hearing on complaint. Ten days^ notice of hearing. Commission to fix rates and regulations. Costs of investiga- tion. Separate rate hearing; absence of direct damage. Summary investiga- tions. Followed by general hearings. Hearings; notices and procedure. UtiHties may com- plain. Evidences and wit- nesses; proceedings for contempt. Witness fees and mile- age. Depositions. Stenographic records. In court actions, com- § 1797m— 58 1797m— 59 1797m— 60 1797m— 61 1797m— 62 1797m— 63 1797m— 64 1797m— 65 1797m— 66 1797m— 67 1797m— 68 1797m— 69 1797m— 70 1797m— 71 mission to file testi- mony. Certified transcripts of testimony as evi- dence. Free transcripts for parties. Commission to deter- mine rates and regu- lations; utility at fault to pay costs; orders, service and effect. Utilities to conform to order made. Commission may change orders. Findings of commis- sion prima facie law- ful and reasonable. Utility dissatisfied with order of commission; action to set aside; precedence on calen- dar. Action to set aside or- der of commission, ninety days for. Injunction procedure; order of commission. New evidence before court ; stay while commission recon- siders. Upon commi-ssion's refinding, rescission, alteration or amend- ment of order; judg- ment on original or- der; conclusion of trial. Appeal to supreme court. Burden of proof. Court procedure; ser- vice of process; evidence; powers and compensation of 979 APPENDIX B sheriff and other offi- cers. § 1797m — 72 Incriminating evi- dence ; production of books, accounts and § 1797m — 1 papers. 1797m — 73 Distribution of orders of commission; or- 1797m — 1 ders as prima facie evidence. 1797m — 74 Competition of utili- ties, municipalities 1797m — : and others. 1797m — 75 Foreign utilities ex- cluded. 1797m— I 1797m — 76 Grants hereafter to be indeterminate ; mu- nicipal acquisition. 1797m — 77 Voluntary change to indeterminate plan; contract waiver im- 1797m — 1 plied. 1797m — 78 Grant hereafter; im- plied consent and 1797m — ' waiver. 1797m — 79 Municipal powers un- der utility law. 1797m — ! 1797m — 80 Plants non-existing, municipality's ac- tion to acquire. 1797m — ' 1797m — 81 Under indeterminate permit ; municipal- ity's notice for ac- quisition. 1797m — 82 Compensation for 1797m — property taken of public utility to be determined by com- mission and certi- 1797m- fied; public hearing; notice; filing certifi- 1797m- cate. 1797m — 83 Appeal to court from compensation order. 1797m- 1797m — 84 If decision for commis- sion. 1797m- 1797m — 85 If decision for utility. 1797m — 86 Reconsideration of, or 980 rehearing as to com- pensation ; alteration or amendment of previous order. 87 Power of municipal council to regulate utilities; appeal. 88 Franks and privileges to political commit- tees and candidates; penalty. 89 Unjust discrimina- tions; definition and penalty. 90 Facilities by public utilities, in exchange for compensation prohibited ; excep- tions or qualifica- tions. 91 Undue preference or prejudice by public utility; penalty. 92 Rebates, concessions and discriminations unlawful; penalty. 93 Utility's liability for damages; treble damages. 94 Information, papers and accounting; of- ficers, agents or em- ployee's of utilities; delinquency penal. 95 Violations by utilities in general, penalty; utility responsible for agents. 96 Municipal officers' de- linquency penal. 97 Interference with com- mission's equipment penal. 98 Every day's violations distinct. 99 Temporary alteration or suspension of rates. APPENDIX B § 1797m— 100 Followed by perma- nent rate regula- tion. 1797m— 101 Lives lost; utility must report; inves- tigation. 1797m — 102 Law enforcing power of commission; at- torney general's or district attorney's aid in prosecution; suit to recover for- feiture or penalty; suit in name of State, in specified court ; power to em- ploy counsel. 1797m — 103 Commission's work; rules, orders, acts and regulations of, technical omissions not to invalidate. 1797m— 104 Other rights of ac- tion ; release or waiver; penalties cumulative. 1797m— 105 Rates of April 1, 1907, to govern, unless; reports thereof; proceed- ings to change. 1797m — 106 Employee's of com- mission, and their compensation. 1797m — 107 Appropriation. 1797m — 108 Conflicting laws re- pealed, 98] APPENDIX C. WILLCOX V. CONSOLIDATED GAS COMPANY. 212 U. S. 19. [January 4, 1909.] APPENDIX C. WILLCOX V. CONSOLIDATED GAS COMPANY. 212 U. S. 19. Nos. 396, 397 and 398.— October Term, 1908. Appeals from the Circuit Court of the United States for the Southern Dis- trict of New York. WilHam R. Willcox et al., Constituting the Pubhc Service Commission, &c., of New York, Appellants, 396 V. Consolidated Gas Company of New York. The City of New York, Appellant, 397 V. Consolidated Gas Company of New York. William S. Jackson, as Attorney Gen- eral of the State of New York, Ap- pellant, 398 V. Consolidated Gas Company of New York. [January 4, 1909.] HEADNOTES.* It is not a question of discretion or comity for the Federal court to take jurisdiction of a case; it is the duty of that court to take jurisdiction when properly appealed to; and it should not be criticized for so doing even though the case be one of local interest. Cohens v. \'irginia, (> Wheat. (19 U. S.) 264, 404, 5 Sup. Ct. 257. The right of a party plaintiff to choose the Federal court cannot be properly denied. \\v Metropolitan Receivership, 208 U. S. 90, 110. Rates, when fixed by legislative authority, for public service corpora- tions, should allow a fair return upon the reasonable value of the ♦Headnotes, Statement of Case and Opinion are official; L. ed. and Sup. Ct. citations are not in original. 985 APPENDIX C property at the time it is being used, but the legislative act will not be declared invalid by the courts unless the rates are so unreasonably low that their enforcement would amount to taking the property for public use without compensation. San Diego Land and Town Co. Cases, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. 257; s. c. 189 U. S. 439, 47 L. ed. 892, 23 Sup. Ct. 571. Except in very clear cases, courts should not interfere with state rate legislation before the legislation goes into effect. Knoxville v. Water Co., 212 U. S. 1. Value of the property employed being an essential element in determin- ing whether a rate is or is not confiscatory, and being also largely a matter of opinion, where the determination of the question depends upon such value, a court of equity should hesitate to interfere by in- junction to suspend the rate before it goes into operation and a fair trial has been made. Franchises of public service corporations are property and cannot be taken or used by others without compensation, and, where a State has by legislative enactment permitted such corporations to capitalize such franchises, their value at the time of such capitalization should be included in the value of the property as an element for fixing rates; but no increased value of such franchises should be allowed. Public service corporations, such as gas companies, are subject to the legislative right to fix rates which permit not more than a fair return on the property used. Whether a rate yields such a fair return as not to be confiscatory de- pends upon circumstances, locality and risk, and no particular rate can be established for all cases. Under all the circumstances of this case this court concurs with the court below that six per cent is a fair return on the value of property em- ployed in supplying gas in the city of New York, and a rate yielding that return is not confiscatory. In estimating value of franchises for the purpose of fixing rates, it is im- material that the corporation is taxed on a greater value than that allowed if it charges its taxes as operating expenses in determining net income. Where a public service corporation has a monopoly, such as of supply- ing gas in a large city, " good will " cannot be considered as an element of value of the property employed. For purpose of fixing rates the value of property employed should be determined as of the time when the inquiry is made, and, as a general rule, the corporation is entitled to the benefit of increased value since acquisition. A provision in a state statute, requiring a public service corporation to 986 APPENDIX C perform its service in such a manner that its entire plant would have to be rebuilt at a cost on which no return could be obtained at the rate fixed, deprives the company of its ability to secure such return and is unconstitutional and void. Ex parte Yomig, 209 U. S. 123, followed as to the unconstitutionality of provisions in a state statute for penalties for violations so enormous as to be overwhelming. Provisions in a gas rate bill for rate, pressure and penalties for violation, may be, as held in this case, separable and the unconstitutionality of the provisions as to pressure and penalties will not affect the provi- sions as to rate. Provision in a gas rate act establishing one rate for the municipality and another for individual consumers is not an unreasonable classification and does not render the act unconstitutional under the equal protec- tion clause of the Fourteenth Amendment. Where none of the different classes of consumers complain of different rates the corporation cannot complain of such differences provided the total receipts are sufficient to yield an adequate return. Where, as in this case, in an action brought before the rate takes effect, complainant fails to sustain the burden of clearly showing that a rate act is confiscatory, the bill should be dismissed without prejudice to right of the complainant to bring another action after the rate goes into effect if it then proves to be confiscatory. So held in regard to the New York Eighty-Cent Gas Law. 157 Fed. Rep. 849, reversed. STATEMENT OF CASE. The appellee, complainant below, filed its bill May 1, 1906, in the United States Circuit Court for the Southern District of New York against the city of New York, the Attorney Gen- eral of the State, the District Attorney of New York County and the Gas Commission of the State, to enjoin the enforce- ment of certain acts of the legislature of the State, as well as of an order made by the Gas Commission, February 23, 1900, to take effect May 1, 1906, relative to rates for gas in New "i'ork City. Since the commencement of the suit the Gas Commission has been abolished and the Public Service Commission has been created by the legislature in its stead. The official term of Attorney General Meyer has also expired, and Attorney Gen- eral Jackson, his successor, has been substituted in his place. 9S7 APPENDIX C The ground for the reUef asked for in the bill was the alleged unconstitutionality of the acts and the order, because the rates fixed were so low as to be confiscatory. Upon filing the bill a preliminary injunction was granted (146 Fed. 150), and after issue was joined the case was referred to one of the stand- ing masters of the court to take testimony, in conformity to the practice indicated in Railroad v. Tompkins, 176 U. S. 167, 179, 44 L. ed. 417, 20 Sup. Ct. 336. A hearing was had before the master, who reported in favor of the complainant. The case then came before the Circuit Court, and, after argument, a final decree was entered, restrain- ing defendants from enforcing the provisions of the acts and the order relating to rates or penalties. 157 Fed. 849. These various defendants, except the District Attorney, have taken separate appeals directly to this court from the decree so entered. The acts which are declared void as unconstitutional are chapter 736 of the Laws of 1905, which limits the price of gas sold to the city of New York to a sum not to exceed 75 cents per thousand cubic feet. The act also requires that the gas sold shall have a specified illuminating power, and a certain pressure at all distances from the place of manufacture. Pen- alties are attached to a violation of the act. The other act is chapter 125 of the Laws of 1906, limiting the prices of gas in the boroughs of Manhattan and the Bronx, to other consumers than the city of New York, to 80 cents per thousand cubic feet, with like penalties as in the act of 1905, and with the same provisions as to illuminating power and the pressure in the service mains. The order which was declared invalid was one made by the Gas Commission created under and by virtue of chapter 737 of the Laws of 1905, the order providing that the price of gas in the city should be not more than 80 cents to consumers other than the city of New York. The order had the same provisions as to illuminating power and pressure as the acts above mentioned. The master and the court below found that the 80 cent rate was so low as to amount to con- fiscation, and hence the acts and the order were invalid as in violation of the Federal Constitution. 988 APPENDIX C Mr. Justice Peckh.-ui, after making the foregoing state- ment, delivered the OPINION OF THE COURT. " At the outset it seems to us proper to notice the views re- garding the action of the court below, which have been stated by counsel for the appellants, the Public Service Commission, in their brief ui this court. They assume to criticise that court for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the case. On the contrary, there was no discretion or comity about it. When a Federal court is prop- erly appealed to in a case over w^hich it has by law jurisdiction, it is its duty to take such jurisdiction [Cohens v. Virginia, 6 Wheat. (19 U. S.) 264, 404, 5 L. ed. 257], and in taking it that court cannot be truthfully spoken of as precipitate in its con- duct. That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plain- tiff to choose a Federal court where there is a choice cannot be properly denied. In re Metropolitan Railway Receivership, 208 U. S. 90-110; Prentis v. Atlantic Coast Line et al., 211 U. S. 210. In the latter case it was said that a plaintiff could not be for- bidden to try the facts upon which his right to relief is based before a court of his own choice, if otherwise competent. It is true an application for an injunction was denied in that case be- cause the plaintiff should in our opinion have taken the appeal allowed him by the law of Virginia while the rate of fare in litiga- tion was still at the legislative stage, so as to .make it absolutely certain that the officials of the State would try to establish and enforce an unconstitutional rule. " The case before us is not like that. It involves the constitu- tionality, with reference to the Federal Constitution, of two acts of the legislature of New York, and it is one over which the Circuit Court undoubtedly had jurisdiction under the act of 989 APPENDIX C Congress, and its action in taking and hearing the case cannot be the subject of proper criticism. "An examination of the record herein, with reference to the questions involved in the merits, shows that the act under which the Gas Commission was appointed was subsequently to the commencement and trial of this suit, declared, on grounds not here material, to be unconstitutional by the Court of Ap- peals of New York. 191 N. Y. 123, February 18, 1908. The order made by the commission must therefore be regarded as invalid. It is not important in this case, because the act of the legislature of 1906, makes the same provision as to the price of gas to consumers other than the city that the order does. We have as remaining to be considered the above-mentioned two acts of the legislature. " The question arising is as to the validity of the acts limiting the rates for gas to the prices therein stated. The rule by which to determine the question is pretty well established in this court. The rates must be plainly unreasonable to the extent that their enforcement would be equivalent to the taking of property for public use without such compensation as under the circumstances is just both to the owner and the public. There must be a fair return upon the reasonable value of the prop- erty at the time it is being used for the public. San Diego Land & Town Company v. National City, 174 U. S. 739, 767, 43 L. ed. 1154, 19 Sup. Ct. 804; Same plaintiff v. Jasper, 189 U. S. 439, 442, 47 L. ed. 892, 23 Sup. Ct. 892. " Many of the cases are cited in Knoxville v. Knoxville Water Co., just decided. The case must be a clear one before the court ought to be asked to interfere with state legislation upon the subject of rates, especially before there has been any actual ex- perience of the practical result of such rates. In this case the rates have not been enforced as yet, because the bill herein was filed and an injunction obtained restraining their enforcement before they came into actual operation. " In order to determine the rate of return upon the reasonable value of the property at the time it is being used for the public it, of course, becomes necessary to ascertain what that value is. 990 APPENDIX C A very great amount of evidence was taken before the master upon that subject, which is included in five large volumes of the record. Valuations by expert witnesses were given as to the value of the real estate owned by the complainant, and as to the value of the mains, service pipes, plants, meters and miscellaneous personal property. " The value of real estate and plant is to a considerable extent matter of opinion, and the same may be said of personal estate when not based upon the actual cost of material and construc- tion. Deterioration of the value of the plant, mains and pipes is also to some extent based upon opinion. All these matters make questions of value somevvhat uncertain; while added to this is an alleged prospective loss of income from a reduced rate, a matter also of much uncertainty, depending upon the extent of the reduction and the probable increased consump- tion, and we have a problem as to the character of a rate which is difficult to answer without a practical test from actual op- eration of the rate. Of course, there may be cases where the rate is so low, upon any reasonable basis of valuation, that there can be no just doubt as to its confiscatory nature, and in that event there should be no hesitation in so deciding and in enjoining its enforcement without waiting for the damage which must inevitably accompany the operation of the busi- ness under the objectionable rate. But where the rate com- plained of shows in any event a very narrow line of division between possible confiscation and proper regulation, as based upon the value of the property found by the court below, and the division depends upon opinions as to value, which differ considerably among the witnesses, and also upon the results in the future of oi)erating under the rate objected to, so that the material fact of value is left in much doubt, a court of equity ought not to interfere by injunction befon> a fair trial has been made of continuing the business under that rate, and thus eliminating, as far as is possible, the doubt arising from opin- ions as opposed to facts. *' A short history of the coti)[)lainant, as to its incorporation and its capital, and th(.' method by which the value of its fran- 1M)1 APPENDIX C chises was arrived at, will render the further examination of the case more intelligible. "Prior to 1884 there were seven gaslight companies in New York City, each operated under separate charters, granted at different times between the years 1823 and 1865 or 1871. They each had the right to use the streets of certain portions of the city for the purpose of laying their mains and service pipes in order to furnish gas to the city and the citizens. Not one of the companies had ever been called upon to pay a penny for such right, but the grant to each was in that aspect a gratuity. It was not, at the time of granting franchises such as these, the custom to pay for them. " In 1884, by chapter 367 of the laws of that year, authority to consolidate manufacturing corporations was granted upon conditions mentioned in the act. The directors of the corpo- rations proposing to consolidate were to make an agreement for consolidation, embracing, among other things, the amount of capital and the number of shares of stock into which it should be divided, the capital not to be in amount more ' than the fair aggregate value of the property, franchises and rights of the several companies to be consolidated.' The agreement was not to be valid until submitted to the stockholders of each of the companies and approved by two-thirds of each. The constituent companies, which were afterwards consolidated un- der their agreement, and pursuant to the act mentioned, were six in number, the seventh, the Mutual Company, withdrawing. The companies agreed upon the valuation of their property, which was to be paid for in the stock of the consolidated com- pany, and the original stock held by the stockholders of each company was surrendered to the consolidated company. The value of the franchises of all the companies was set at the figure of $7,781,000. The court below said that the master re- ported there was little direct evidence before him as to the value of the franchises, to which the court added that if the master, by direct evidence, meant testimony of the same kind regarding their value as had been offered regarding every item of tangible property, there was none at all. 992 APPENDIX C " The court further stated 'that it does not appear in the evi- dence how the valuation of the franchises was measured, or why the figures selected were chosen, but that it was true that when complainant was organized, in 1884, under the consolida- tion statute, which in terms permitted it to acquire the prop- erty and franchises of the other companies, it issued stock of the par value of $7,781,000, representing the franchises it then acquired and nothing else, and that the stock was held by pur- chasers, who, I am compelled to think, had a right to rely upon legal protection for legally issued stock.' It is not, of course, contended there was special stock issued for this particular item, but it was included in the total sum for which the consolidated company issued its stock and upon its receipt the stockholders in the various companies surrendered their stock in those com- panies. The result was that the amount of the stock issued by the consolidated company was increased by $7,781,000, rep- resenting a value of franchises which was agreed upon by the stockholders in the companies, and which had never cost any of them a single penny. " It cannot be disputed that franchises of this nature are property and cannot be taken or used by others without com- pensation. Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. 622; People v. O'Brien, 111 N. Y. 1, 19 N. Y. St. Rep. 173, 18 N. E. 692, and cases cited. The im- portant question is always one of value. Taking their value in this case as arrived at by agreement of their owners, at the time of the consolidation, that value has been increased by the finding of the court below to the sum of $12,000,000 at the time of the commencement of this suit. The trial court said : " If, however, complainant's franchises were worth $7,781,000 in 1884, and its tangible property, at the same time, was appraised (as ap- pears in evidence), at $30,000,000 (in round figures), then since complainant's business (in sales volume) has, in twenty-three years, almost quadrupled, and its tangible assets grown to $47,000,000, it appears to me that a fair method of fixing value of the franchises in 1905 is to assume the same growth in value for the franchises as is demonstrated l)y the evidence in the 63 ^^^ APPENDIX C case of tangible property. If, therefore, the franchise valua- tion of 1884 was proportioned to personalty and realty of $30,000,000, a franchise valuation proportioned to $47,000,000 in 1905 would be over $12,000,000. This, I think, a logical re- sult from the assumption I am compelled to start with, i. e., that franchises have a separate and independent value. But there is, however, no method of valuing franchises, except by a consideration of earnings; earnings must be proportioned to assets; and both kinds of assets, tangible and intangible, must stand upon the same plane of valuation; having, therefore, a measure of growth of tangible assets from 1884 to 1905, the franchise assets must be assumed to have grown in the same proportion. I find that the value of complainants' franchises at the date of inquiry was not less than $12,000,000, making a total valuation of $59,000,000, upon which the probable return is $3,030,000, or very considerably less than 6 per cent.' The judge stated his own views as opposed to including these fran- chises in the property upon the value of which a return is to be calculated in fixing the amount of rates, but held that he was bound by decided cases to hold against his personal views. " We are not prepared to hold with the court below as to the increased value which it attributes to the franchises. It is not only too much a matter of pure speculation, but we think it is also opposed to the principle upon which such valuation should be made. This corporation is one of that class which is subject to regulation by the legislature in the matter of rates, provided they are not made so low as to be confiscatory. The franchises granted the various companies and held by complainant con- sisted in the right to open the streets of the city and lay down mains and use them to supply gas, subject to the legislative right to so regulate the price for the gas as to permit not more than a fair return (regard being had to the risk of the business) upon the reasonable value of the property at the time it is being used for the public. " The evidence shows that from their creation, down to the consolidation in 1884, these companies had been free from leg- 994 APPENDIX C islative regulation upon the amount of the rates to be charged for gas. They had been most prosperous and had divided very large earnings in the shape of dividends to their stockholders, dividends which are characterized by the Senate committee, appointed in 1885 to investigate the facts surrounding the con- solidation, as enormous. The report of that committee shows that several of the companies had averaged, from their crea- tion, dividends over sixteen per cent, and the six companies in the year 1884 paid a dividend upon capital which had been increased by earnings, as in the case of the Manhattan and the New York, of eighteen per cent, and, had it been upon the money actually paid in, it would have been nearly twenty- five per cent. " The committee also said in the same report that these ' fran- chises were in force November 10, 1884, the time of the con- solidation, and the money invested in them was earning the same enormous dividends. So far as the evidence shows, there was nothing in the condition of affairs on the 10th of Novem- ber to indicate that these franchises would not be as valuable for the next twenty years as they had been in the past. There were gas companies enough in the city with a capacity capable of supplying the demands for the next twenty years. A law was on our statute books that virtually prohibited the laying of any more gas pipes in the streets. The gas companies had an agreement among themselves, fixing the price of gas at a figure that paid these dividends. The people were paying this price, as they had in the past, without objection or protest. This price may have been too high, and the dividends were excessive, but they were not illegal, and the valuation of the franchises computed upon these dividends, and that state of facts cannot be called a violation of a law that expressly au- thorized it to be done, unless such valuation was too high.' "The committee, upon these facts, were of opinion that the valuation of $7,781,000 for the franchises was not more than their fair aggregate value. "Assuming, as the committee did, that the company would be permitted to charge the same prices in the future which in 995 APPENDIX C the past had resulted in these 'enormous' or 'excessive' divi- dends, it need not be matter of surprise that a franchise by means of which such dividends had been possible was not re- garded as overvalued at the sum stated in 1884. " We think that under the above facts the courts ought to ac- cept the valuation of the franchises fixed and agreed upon un- der the act of 1884 as conclusive at that time. The valuation was provided for in the act, which was followed by the com- panies, and the agreement regarding it has been always recog- nized as valid, and the stock has been largely dealt in for more than twenty years past on the basis of the validity of the val- uation and of the stock issued by the company. " But although the State ought, for these reasons, to be bound to recognize the value agreed upon in 1884 as part of the prop- erty upon which a reasonable return can be demanded, we do not think an increase in that valuation ought to be allowed upon the theory suggested by the court below. Because the amount of gas supplied has increased to the extent stated, and the other and tangible property of the corporations has in- creased so largely in value, is not, as it seems to us, any reason for attributing a like proportional increase in the value of the franchise. Real estate may have increased in value very largely, as also the personal property, without any necessary increase in the value of the franchise. Its past value was founded upon the opportunity of obtaining these enormous and excessive returns upon the property of the company, with- out legislative interference with the price for the supply of gas, but that immunity for the future was, of course, uncertain, and the moment it ceased and the legislature reduced the earnings to a reasonable sum the great value of the franchise would be at once and unfavorably affected, but how much so it is not possible for us now to see. The value would most certainly not increase. The question of the regulation of rates did from time to time thereafter arise in the legislature, and finally culminated in these acts which were in existence when the court below found this increased value of the franchises. We cannot, in any view of the case, concur in that finding. 996 APPENDIX C " This increase in value did, however, form part of the sum upon which the court below held the complainant was entitled to a return. That court found the value of the tangible assets actually employed at the time of the commencement of this suit in the business of supplying gas by the complainant to be $47,831,435, to which it added the $12,000,000 as the value of the franchises as found by it, making the total of $59,831,435, upon which it held that the company was entitled to a return of 6 per cent, being $3,589,886.10. It also found its total net income for the year 1905 amounted to $5,881,192.45, almost 10 per cent upon the sum above named. Altering the finding of the court so far only as to placathe value of the franchises at the time agreed upon in 1884, $7,781,000, the total value upon that basis of the property employed by the company would be $55,612,435, upon which 6 per cent would be $3,336,746.10, while the sum, estimated as the return on 80 cent gas would have been $3,024,592.14, which is nearly 5^ per cent on the above total of $55,612,435. " What has been said herein regarding the value of the fran- chises in this case has been necessarily founded upon its own peculiar facts, and the decision thereon can form no precedent in regard to the valuation of franchises generally, where the facts are not similar to those in the case before us. We simply accept the sum named as the value under the circumstances stated. " There is no particular rate of compensation which must in all cases and in all parts of the country be regarded as sufficient for capital invested in business enterprises. Such compensa- tion must depend greatly u])on circumstances and locality; among other things, the amount of risk in the business is a most important factor, as well as the locality where the business is conducted and the rate expected and usually realized there upon investments of a somewhat similar nature with regard to the risk attending them. There may be other matters which in some cases might also be i)roj)("riy taken into account in determining the rate which an investor might iJrojM'rly exjurt or hope to receive and which he would be entitled to without 997 APPENDIX C legislative interference. The less risk, the less right to any unusual returns upon the investments. One who invests his money in a business of a somewhat hazardous character is very properly held to have the right to a larger return without leg- islative interference, than can be obtained from an investment in Government bonds or other perfectly safe security. The man that invested in gas stock in 1823 had a right to look for and obtain, if possible, a much greater rate upon his invest- ment than he who invested in such property in the city of New York years after the risk and danger involved had been almost entirely eliminated. '' In an investment in a gas company, such as complainants', the risk is reduced almost to a minimum. It is a corporation, which in fact, as the court below remarks, monopolizes the gas service of the largest city in America, and is secure against competition under the circumstances in which it is placed, because it is a proposition almost unthinkable that the city of New York would, for purposes of making competition, permit the streets of the city to be again torn up in order to allow the mains of another company to be laid all through them to supply gas which the present company can adequately supply. And, so far as it is given us to look into the future, it seems as cer- tain as anything of such a nature can be, that the demand for gas will increase, and, at the reduced price, increase to a con- siderable extent. An interest in such a business is as near a safe and secure investment as can be imagined with regard to any private manufacturing business, although it is recognized at the same time that there is a possible element of risk, even in such a business. The court below regarded it as the most favorably situated gas business in America, and added that all gas business is inherently subject to many of the vicissitudes of manufacturing. Under the circumstances, the court held that a rate which would permit a return of six per cent would be enough to avoid the charge of confiscation, and for the reason that a return of such an amount was the return ordinarily sought and obtained on investments of that degree of safety in the city of New York. 998 APPENDIX C " Taking all facts into consideration, we concur with the court below on this question, and think complainant is entitled to six per cent on the fair value of its property devoted to the public use. But assuming that the company is entitled to six per cent upon the value of its property actually used for the public, the total value fixed by the court below is, as we have seen, much too large. We must first strike out the increased value of the franchises asserted by the court over the amount agreed upon in 1884, when the company was consolidated. 'We also find that the total value of the tangible property is made up of several items, two of which are — Real estate ^ $11,985,435 Plants 15,000,000 " Both depend largely upon the opinions of expert witnesses as to the value of that kind of property. ^Vhere a large amount of the total value of a mass of different properties consists in the value of real estate, which is only ascertained by the vary- ing opinions of expert witnesses, and where the opinions of the plaintiffs' witnesses differ quite radically from those of the defendants', it is apparent that the total value must nec- essarily be more or less in doubt. It, in other words, becomes matter of speculation or conjecture to a great extent. It may be, as already suggested, that in many cases the rates objected to might be so low that there could be no reasonable doubt of their inadecjuacy upon any fair estimate of the value of the property. In such event the enforcement of the rates should be enjoined even in a case where the value of the property de- pends upon the value to be assigned to real estate by the evi- dence of experts. But there may be other cases where the evidence as to the probable result of the rates in controversy would show they were so nearly adequate that nothing but a practical test could satisfy the doubt as to their sufficiency. " In this case a slight reduction in the' estimated vaku^ of the real estate, plants and mains, as given by the witnesses for complainant, would give a six per cent return upon the total value of the property as above stated. And again increased consumption at the lower rate might result in increased earn- 999 APPENDIX C ings, as the cost of furnishing the gas would not increase in proportion to the increased amount of gas furnished. " The elevated railroads in New York when first built charged ten cents for each passenger, but when the rate was reduced to five cents it is common knowledge that their receipts were not cut in two, but that from increased patronage the earnings in- creased from year to year, and soon surpassed the highest sum ever received upon the ten cent rate. " Of course, there is always a point below which a rate could not be reduced and at the same time permit the proper return on the value of the property, but it is equally true that a re- duction in rates will not always reduce the net earnings, but on the contrary may increase them. The question of how much an increased consumption under a less rate will increase the earnings of complainant, if at all, at a cost not proportioned to the former cost, can be answered only by a practical test. In such a case as this, where the other data upon which the computation of the rate of return must be based, are from the evidence so uncertain, and where the margin between possible confiscation and valid regulation is so narrow we cannot say there is no fair or just doubt about the truth of the allegation that the rates are insufficient. " The complainant also contends that the State having taxed it upon its franchises cannot be heard to deny their existence or their value as taxed. " The fact that the State has taxed the company upon its franchises at a greater value than is awarded them here, is not material. Those taxes, even if founded upon an erroneous valuation, were properly treated by the company as part of its operating expenses, to be paid out of its earnings before the net amount could be arrived at applicable to dividends, and if such latter sums were not sufficient to permit the proper return on the property used by the company for the public, then the rate would be inadequate. The future assessment of the value of the franchises, it is presumed, will be much lessened if it is seen that the great profits upon which that value was based are largely reduced by legislative action. In that way 1000 APPENDIX C the consumer will be benefited by paying a reduced sum (although indirectly) for taxes. " We are also of opinion that it is not a case for a valuation of 'good will.' The master combined the franchise value with that of good will, and estimated the total value at $20,000,000. "The complainant has a monoply in fact, and a consumer must take gas from it or go without. He will resort to the ' old stand,' because he cannot get gas anywhere else. The court below excluded that item, and we concur in that action. "And we concur with the court below in holding that the value of the property is to be determined as of the time when the inquiry is made regarding the rates. If the property, which legally enters into the consideration of the question of rates, has increased in value since it was acquired, the company is entitled to the benefit of such increase. This is, at any rate, the general rule. We do not say there may not possibly be an exception to it, where the property may have increased so enor- mously in value as to render a rate permitting a reasonable re- turn upon such increased value unjust to the public. How such facts should be treated is not a question now before us, as this case does not present it. We refer to the matter only for the purpose of stating that the decision herein does not prevent an inquiry into the question when, if ever, it should be necessarily presented. "The matter of the increased cost of the gas, resulting from the provisions of the acts, as to making the gas equal to 22 candle power, is also alleged as a reason for inadequacy of rate. " It appears that the average candle power actually produced in the first six months of the year 1905 was 22, while but 20 candle power was exacted by law, and for the last six months of that year, while 22 candle power was exacted, the average amount was 24.19. This expense was included in the operat- ing expense of that year, which resulted in the net earnings above mentioned, while the company was complying with the requirements of the act in this particular. " It is unnecessary, therefore, to further inquire as to the ad- ditional expense caused by this requirement. 1001 APPENDIX C "Again, it has been asserted that the laws are unconstitu- tional, because of the provision as to pressure, and also by reason of the penalties which a violation of the acts may ren- ^ der a corporation liable to. " The acts provide that the pressure of the gas in the service mains at any distance from the place of manufacture shall not be less than one inch nor more than two and a half inches. "The evidence shows that to put a pressure such as is de- manded by the acts upon the mains and other service pipes in their present condition would be to run a great risk of ex- plosion, and consequent disaster. Before compliance with this provision would be safe the mains and other pipes would have to be strengthened throughout their whole extent, and at an expenditure of many millions of dollars, from which no return could be obtained at the rates provided in the acts. This would take from the complainant the ability to secure the return to which it is entitled upon its property, used for sup- plying gas, and the provision as to the amount of pressure is therefore void. This particular duty imposed by the acts is, however, clearly separable from the enactments as to rates, and we have no doubt that the remainder of the statute would have been enacted, even with that provision omitted. " The obligation would remain upon the company to have a pressure sufficient to insure a light of 22 candle power, as pro- vided in the acts. " We are of the same opinion as to the penalties provided for a violation of the acts. They are not a necessary or inseparable part of the acts, without which they would not have been passed. If these provisions as to penalties have been properly construed by the court below, they are undoubtedly void, within the principle decided in Ex parte Young, 209 U. S. 123, and the cases there cited, because so enormous and overwhelm- ing in their amount. " When the objectionable part of a statute is eliminated, if the balance is valid and capable of being carried out, and if the court can conclude it would have been enacted if that portion which is illegal had been omitted, the remainder of the stat- 1002 APPENDIX C ute thus treated is good. Reagan v. Trust Co., 154 U. S. 362, 395, 38 L. ed. 1014, 14 Sup. Ct. 1047; Berea College v. Com- monwealth of Kentucky, 211 U. S. 45-54. " This is a familiar principle. " Lastly, it is objected that there is an illegal discrimination as between the city and the consumers individually. We see no discrimination which is illegal or for which good reasons could not be given. But neither the city nor the consumers are find- ing any fault with it, and the only interest of the complainant in the question is to find out whether, by the reduced price to the city, the complainant is upon the whole unable to realize a return sufficient to comply with what it has the right to de- mand. \\Tiat we have already said applies to the facts now in question. " We cannot see from the whole evidence that the price fixed for gas supphed to the city by the wholesale, so to speak, would so reduce the profits from the total of the gas supplied as to thereby render such total profits insufficient as a return upon the property used by the complainant. So long as the total is enough to furnish such return it is not important that with re- lation to some customers the price is not enough. Minneapolis &c. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. 900; Atlantic Coast Line v. North Carolina Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. 585. " Upon a careful consideration of the case before us we are of opinion that the complainant has failed to sustain the burden cast upon it of showing beyond any just or fair doubt that the acts of the legislature of the State of New York are in fact con- fiscatory. " It may possibly be, however, that a practical experience of the effect of the acts by actual operation under thorn might prevent the complainant from obtaining a fair return, as already described, and in that event complainant ought to have the opportunity of again presenting its case to the court. To that end we reverse the decree, with directions to dismiss the bill without prejudice, and "// is so ordered." 1003 INDEX. INDEX. A. ABANDONMENT, corporations cannot arbitrarily discontinue operations. .. .note, §63 ABATEMENT, of bridge; power of Congress to declare it a lawful structure § 128 ABUTTING OWNER, consent of to use of streets by street railway when necessary, creates property rights § 33 judgment for damages caused by railroad construction; equal protection of law § 300 See Consent. ACCEPTANCE, of grant; obligation of contract § 313 of charter necessary §§ 348-350 See Conditions; Grants. ACCIDENTS, investigation of. See Public Service Commissions Law. ACCOUNTING. See Public Utility Law. ACCOUNTS. See Public Service Commissions Law. ACTIONS, at law not maintainable to recover franchise § 26 power to sue under New York constitution includes only actions as to corporate rights note § 52 no private action lies for negligence of public governmental offi- cers § 56 right of corporation created by rebel State to sue § 142 by taxpayer to restrain village from constructing lighting system § 100 for penalties; railroad commission's powers § 167 creditor's bill; privileges and immunities of citizens in the several States § 292 right to sue or defend; privileges or immunities of citizens in the several States § 293 for wrongful death of citizen of a State, occurring in another State; privileges and immunities of citizens in the several States § 293 non-resident's right of, not guaranteed by provisions as to im- munity and privileges in Federal Constitution § 293 1007 1008 INDEX ACTIONS— Continued : between foreign corporations prohibited; privileges and immu- nities of citizens § 293 foreign corporation prohibited from suing on claim to assignee; obligation of contract § 306 condition that foreign corporations shall not remove suit into Federal courts § 355 See Equity; Injunctions; Parties; Public Service Commissions Law; Public Utility Law; Remedies. ADDITIONAL FRANCHISE TAX § 427 ADMINISTRATIVE POWERS or functions. See Powers. AGENCIES, of Federal government; Federal franchises; state taxation of § 418 AGENTS, insurance companies; agreements as to commissions of; equal pro- tection of laws § 300 of foreign corporations; conditions imposed by States § 353 AGGREGATE CORPORATIONS, division into § 57 See Corporation Aggregate. AGRICULTURAL COLLEGE, as public corporation § 68 AGRICULTURAL SOCIETIES, nature of, as public, etc., corporations § 68 AGRICULTURE, state board of; as private corporation § 68 See Board of Agriculture. ALASKA. See Territories. ALDERMAN, office of, when not a franchise note, § 21 See Board of Aldermen. ALIENATION, right of in connection with corporate franchise." §11 street railway franchises to use streets, when may be sold or as- signed § 31 street railway cannot by contract disable itself, from performance of public duty §§ 63, 97, 111 power to alienate franchises; nature of franchise as affecting. ... § 462 power to alienate franchises; general rule § 463 same; basis of rule § 464 liability for torts and debts notwithstanding alienation § 464 power to alienate franchises; legislative authorization §§ 465, 466 INDEX 1009 ALIENATION— Continued: power to alienate franchises; implied legislative authorization; presumptions; construction of statutes § 467 power to alienate franchises; railroad companies § 468 power to alienate franchises; banks; street railway companies; telegraph lines § 469 power to alienate franchises; water and irrigation companies. ... § 470 power to mortgage § 471 mortgaged franchise or property; purchaser; reorganization of corporation; obligation of contract § 329 power to make and take a lease; railroad companies; natural gas; gas and electric companies § 472 illegal or ultra vires lease; ratification; estoppel; ecjuity; validat- ing statutes § 473 power to assign franchises § 474 assignment of franchises of insoRent or bankrupt corporation; what passes § 475 power to purchase § 476 purchaser of canal and "franchises" whether obligated to main- tain it as public way note, § 72 judicial sales; decree; generally § 477 judicial sales; what does and does not pass; purchasers' rights and obligations § 478 mortgage of franchise; what passes at foreclosure sale •. . . § 30 exemption or immunity from taxation or governmental regula- tion; not transferable unless expressly authorized by State. ... § 479 exemption or innnunity from taxation, etc., contiiuied; judicial sale; sale under mortgage or statutory lien § 480 exemption or inmmnity from taxation, etc., continued; whether passes on consolidation of corporations § 481 when exemption does and does not pass; illustrative decisions. . . § 482 exemption or immunity from taxation, etc.; rule as to the effect of reservation of power to alter, amend or repeal. § 483 same; illustrative decisions § 484 of franchises. See Assignment; Obligation of Contracts; Public Service Commissions Law; Sale. AMENDMENTS OF STATUTES, corporation's powers may be enlarged by legislative amendments § 1 13 See Construction or Interpretation of Statutes; Obligation of Contracts. AMERICAN RAILWAY ASSOCIATION, delegation of power to § ' ■>4 ANTI-TRUST ACTS, question of relative })onefit between public and combination rest in discretion of Congress § *''' construction of by state courts; effect of in Federal courts § 280 64 1010 INDEX ANTI-TRUST ACTS— Continued: combinations under; state court decisions; effect of in Federal courts § 280 APPEAL, no jurisdiction on in matters of governmental or administrative policy § 171 power of appellate court on; reasonableness of rates § 174 to court of chancery; effect upon commissioners' powers over toll roads and upon orders of § 200 See Public Utility Law. APPELLATE COURT, delegation of power to; reasonableness of rates fixed by commis- sion § 174 APPELLATE DIVISION OF SUPREME COURT, delegation of power by; construction of street railroads § 183 APPLIANCES. See Public Utility Law. APPROVAL, of incorporation and franchises. See Public Service Commissions Law. ARBITRATION, grant of franchise; when subject to conditions as to § 347 ASSESSMENTS, for street paving; obligation of contracts § 338 See Taxation. ASSESSOR, erroneous decision of; sale by county treasurer for non-payment of taxes § 278 ASSIGNEE. foreign corporation prohibited from suing on claim to; obligation of contract § 306 See Receivers. ASSIGNMENT, what street railway franchises may be assigned § 31 right of car company to u.se streets is assignable § 47 foreign assignment; operation on property in domestic State, note, § 292 resident and non-resident creditors; preferences § 292 See Alienation. ASSOCIATIONS, voluntary; membership in as franchises §11 included in term " corporation " under constitutions § 52 included in "corporation" under Public Service Commissions Law of New York § 52 INDEX 1011 ASSOCIATIONS— Continued : building and loan associations, as private corporations, etc § 71 when included under "electrical corporation" in statute § 76 included in "gas corporation;" statute § 82 what ones are within Public Utility Act.. . § 104, Appendix B (p. 941) when included as "railroad corporation;" statute § 104 See Foreign Association; Name of. ATLANTIC AND PACIFIC RAILROAD, land grants to aid note, § 129 ATTORNEY GENERAL, power of as to enforcement of statutes; party defendant, note (p. 700), § 416 committed for contempt for refusal to comply with order as to rate regulation statute; habeas corpus writ refused, note (p. 701), § 416 See Public Utility Law; State Officers. ATTORNEY OR COUNSELLOR, right to be, as franchise § 21 ATTORNEYS, fees as costs against insurance company; judgment of state court; Federal jurisdiction § 279 fees; when requirement that certain corporations pay as costs; constitutional law § 299 fee as costs against insurance companies; equal protection of laws. § 300 fees to enforce lien against corporation property for wages, note, § 300 fees; conditions imposed upon corporations as to payment of; ex- pense of ordinances § 347 AUCTION, power of police juries to offer ferry privileges at public § 201 AUTOMATIC COUPLERS, safety devices; railroads; regulation of § 385 AUTOMOBILE, when tolls cannot be demanded for, by bridge company. . . .note, § 17 B. BAGGAGE COMPANIES, additional franchise tax § 427 BANKING, powers; monopoly; nature of franchi.Ko § 22 franchise is property note, § 2(5 powers; right to exercise distinct from franchise to be § 32 corporations, how classified § •''5 delegation of power to commissioner of § 157 1012 INDEX BANKING ASSOCIATIONS, held liable as corporation, to taxation § 52 BANKRUPT, corporation; assignment of franchises of; what passes § 475 BANKS, charter of is held a franchise § 18 business of banking when not a franchise §18 business of, open to all at common law §18 capital attached to franchise is another property § 34 corporate property of, separate from its franchise § 34 stock o^vTiership as affecting character of corporation § 62 as public, quasi-public, and private corporations § 69 when not a private corporation note, § 126 Congress has power to incorporate national § 126 created by Congress; State has no control over, except Congress permits § 126 charter by special act; subsequent constitution prohibiting such acts § 215 officers or directors of assenting to receipt of deposits after knowl- edge of insolvent condition; constitution self-executing which fixes responsibility § 226 requirement in act of incorporation as to amount, etc., of shares of capital stock, not condition precedent § 226 taxation of national; equal protection of laws § 300 stipulation in charter as to amount of tax; obligation of contracts. § 334 tax on which includes United States securities § 443 See Alienation; National Banks; Obligation of Contracts; Savings Institution; Stockholders; Taxation. BATTURE, right of way over to navigable water § 345 BICYCLE. See Wheelmen. BLACKSTONE, definition of franchise by § 1 BOARD. See County Supervisors; Name of Board; Officers, BOARD OF AGRICULTURE, nature of; as private corporation § 68 delegation of power to § 156 BOARD OF ALDERMEN, when proper authority to consent and board of electrical control not; subways note, § 191 power as to grant of location, construction, etc., of street rail- ways; regulation of fares § 197 embraced in term "municipal council". .. .Appendix B (§ 3, p. 942) INDEX 1013 BOARD OF ASSESSIMENT, powers; exemption from taxation § 453 BOARD OF CHOSEN FREEHOLDERS, are included in "corporations" in statute as to damages. . note, § 58 BOARD OF COMMISSIONERS OF ELECTRICAL SUBWAYS, extent of powers of; conduits and use of space therein § 191 BOARD OF ELECTRICAL CONTROL, when board of aldermen proper body to consent instead of; sub- ways note, § 191 extent of powers of; underground electric wires § 191 BOARD OF EQUALIZATION, nature of; agency of State § 182 See Commissioner of Equalization; Taxation. BOARD OF EQUALIZATION COMMISSIONERS, delegation of power to equalize taxes as quasi-judicial § 182 BOARD OF ESTIMATE AND APPORTIONMENT, power to grant franchises; transfer of power from another board; cumulative voting § 192 BOARD OF GAS TRUSTEES, limited powers; regulation of gas rates § 198 BOARD OF LOAN COMMISSIONERS, delegation of power to; Territory § 165 BOARD OF RAILROAD COMMISSIONERS. See Public Service Commissions Law; Railroad Commissioners. BOARD OF RAPID TRANSIT RAILROAD COMMISSIONERS, delegation to; subways; city ownership and obligations; change of construction of plans § 190 See Public Service Commissions Law. BOARD OF SUPERVISORS, delegation of power to; effect of grant of turnpike franchises. ... § 199 powers as to bridges § 200 BOARD OF TRADE, membership in not a franchise §11 BOARD OF TRANSPORTATION, statute providing for is remedial § 204 BONDS, special law authorizing city to issue for waterworks, not a grant of "corporate powers and privileges" note, § 31 construction of statutes; delivery of county bonds to railroad company § 228 1014 INDEX BONDS— Continued: in aid of railroads; sufficiency of title to statutes § 247 obligation of State to pay; state court decisions; Federal question. § 279 See Public Service Commissions Law; Railroad Companies. BOOKKEEPING, forms of. See Public Utility Law. BOOKS. See Public Utility Law. BOOM COMPANY. See Log Driving or Boom Company. BOROUGHS, may be included in words "other corporate bodies" note, § 56 BREWING COMPANY, license, etc. , tax § 361 BRIDGE CORPORATIONS, ownership of stock as affecting character of § 62 how classed; nature of § 55 as private, etc., corporations § 70 power of Congress to create § 127 consent of local authorities to use streets § 187 BRIDGES, right to construct public, is a franchise § 15 as a structure not a franchise note, §§ 15, 34 franchise is of same nature as ferry franchise § 15 ferry only a substitute for note, § 15 definition of public bridge; and as part of road or highway. . note, § 15 company, when cannot demand tolls for automobile note, § 17 right to tolls is franchise § 17 franchise is property note, § 26 grant by town trustees to make roadway and erect bridge confers franchise § 48 publici juris note, § 53 exclusive grants for, are grants of franchises of public character, note, § 63 as public highways note, § 63 rights of railroad company to construct, not superior to public rights, as to drainage § 75 as part of "railroad corporation;" statute § 104 when not a lawful structure over navigable river § 127 act of Congress incorporating North River Bridge Company is constitutional § 127 powers of Congress over railroad bridges § 127 powers of Congress and the States as to § 127 power of Congress to declare it a lawful structure after being held a nuisance; or after injunction suit; post route § 128 INDEX 1015 BRIDGES— Continued : legislative grant necessary § 144 as including railroad bridges § 145 rights of State as to; power of Congress to interpose § 145 powers of State over; bridge corporation § 145 franchise; power to grant may be delegated § 148 delegation of power as to, to Secretary of War § 152 delegation of power to commissioner of § 158 power of courts to establish §171 over navigable river between States; jurisdiction; when Federal court will not interfere with decision of highest state court. ... § 184 delegation to city of power over § 186 powers of commissioners of highways and board of supervisors. . § 200 powers of police juries over § 201 Charles River bridge; powers expressly granted; exclusive privi- leges not regarded; implications as to note, § 257 and ferries; separate grants of franchises; rule of construction. . . § 258 construction of statute of incorporation, etc., by state court adopted by Federal courts § 275 requirement as to non-erection of other bridges construed § 286 railroad company required to remove bridge; equal protection of law; due process of law note, § 298 obligation of contracts § 340 See Drawbridge; Obligation of Contracts; Railroad Bridges; Rail- road Toll Bridges; Taxation; Toll Bridges. BRITISH STATUTE, adopted; rule as to construction of § 269 BUILDING AND LOAN ASSOCIATIONS, as private corporations, corporate partnerships, or quasi-partncr- ships § 71 sufficiency of title of statute § 245 BUREAU OF INSURANCE, delegation of power to § 163 BUSH ACT, interpretation or construction of § 286 c. CALIFORNIA, acts of Congress; grants of land in to Edison Electric Company for power plants nolo, § 130 CANAL COMPANIES, how classed; nature of §■'>•'> receive franchises upon consideration that public served. . . note, § 63 canal as public highway note, § 72 1016 INDEX CANAL COMPANIES— Continued: nature of, are private corporations § 72 strict construction of grant against grantee § 255 obligation of contracts; tolls § 340 CANALS, right to improve navigation by is a franchise §15 grant to construct; monopoly; exclusiveness; nature of franchise § 22 Corporations for constructing, as affected as to classification by ownership of stock § 62 publici juris note, § 63 obligation of contract § 340 See Eminent Domain; Obligation of Contracts. CANAL STEAMBOAT COMPANY, additional franchise tax § 427 CAPITAL, of bank attached to franchise is another property § 34 employed as element of value; gas rates; regulation § 392 meaning of term § 425 CAPITAL STOCK, power of railroad and warehouse commission as to increase of . . . . § 169 omissions as to, etc.; when do not invalidate act of incorporation § 235 false representations as to; strict construction of statutes § 252 validity of statute as to subscriptions to; state court decision; Federal jurisdiction § 276 condition that foreign corporation be possessed of certain amount of § 291 defined § 425 and shares in joint-stock company represent what property note, § 425 and corporate property distinguished note, § 425 See Taxation. CAR COMPANIES, are " common carriers; " statute § 74 within Public Utilities Act § 104 CARRIERS, of water; irrigation companies as § 88 See Common Carriers. CARS, distribution of. See Public Service Commissions Law. C.\TTLE, regulation of transportation of § 156 transportation of; regulation of commerce; inspection law; police power §§ 372, 373 CEMETERY COMPANY, obligation of contract § 321 INDEX 1017 CENTRAL PACIFIC RAILROAD, state railroad; Federal franchises § 129 CERTIFICATE, of authority to foreign corporation is franchise § 13 of authority by commission of gas and electricity § 160 of public convenience and necessity; determination by railroad commissioners as to, not subject to judicial revision § 184 recording evidences acceptance of charter § 350 filing; conditions imposed on foreign corporations § 353 CHARLES RIVER BRIDGE. See Bridges. CHARTERS, and franchise; distinctions; charter rights and privileges derived through organization; "additional franchise or privilege" ac- quired after incorporation § 4 or prescription necessary to ferry franchise note, § 15 of bank is held a franchise § 18 phrase to grant corporate charters equivalent to phrase "to grant corporate powers or privileges" note, § 31 defined §41 "constating instruments" constitute § 41 and franchise; to what extent distinguished §§ 41-46 and franchise; distinctions; how extent of power is ascertained. . . § 42 resort to must be had to ascertain corporate powers § 45 and franchise; distinction exists § 45 as synonymous with franchise § 46 of college as contract note, § 69 powers of Congress to charter savings institution § 130 when Circuit Court of city no power to grant charter to obstruct highway § 1 76 exemption from taxation; effect of constitution repealing exemp- tion § 215 of bank under special act; subsequent constitution prohibiting such acts § 2 1 5 partial invalidity § 235 matters incorporated by reference § 243 wrong construction of by state court; Federal jurisdiction § 276 renewal after statute providing for repeal or amendment of all charters § 284 repeal or amendment of; construction of statutes § 284 amendment to effect purposes of; modifying or enlarging powers § 307 of subsidized railroad; amendment, etc., of § 321 amendment of; obligation of contracts §§ 324, 325 extensions of franchises; obligation of contrarts § 330 stipulation as to amount of bank taxation; obligation of contracts § 334 acceptance of; conditions §§ 348-350 modification of exemptions in; acceptance S 349 1018 INDEX CHARTERS— Continued : must be accepted § 350 registering by foreign corporation § 354 See Contracts; Corporations; Municipal Charter; Obligation of Contracts; Powers; Special Charters. CHITTY, definition of franchise by § 1 CIRCUIT COURT OF APPEALS ACT, of United States, when legislative acts of city are those of State within meaning of § 177 CIRCUIT COURTS, delegation to; designation of telephone route; charter to obstruct highway § 176 of United States; delegation of power to enforce orders of Inter- state Commerce Commission; jurisdiction; contract rights of railroads § 177 refusal of, to interfere with administrative discretion of county court as to grant to railroad § 184 when cannot restrain grant by ordinance to street railway § 184 commitment for contempt; when unlawful note (p. 699), § 416 CIRCUIT JUDGE, delegation of power to appoint commissioners of equalization. ... § 183 CITIZENS, when "limited partnership association" not shown to be by plead- ing; when it is a § 53 privileges and immunities of in the several States § 291 presumption as to corporation being composed of, of State of creation note, § 291 of other States, rights of as creditors of corporations § 292 ; foreign corporations; filing certificate; jurisdiction note, § 353 CITY. See Municipality; Streets. CITY COUNCIL. See Municipal Council. CITY OFFICIALS, delegation of power to by city council; track elevation; subway construction § 200 CIVIL CORPORATIONS, division into § 57 CIVIL SERVICE COMMISSION, power to appoint not a franchise § 21 CIVIL SERVICE LAW, fire engine company within § 81 INDEX 1019 CODES. See Construction or Interpretation of Statutes; Statutes. COLLEGE CASES § 331 COLLEGES, appointment of professors of as franchise §21 charter of as contract note, § 69 Dartmouth College a private corporation § 73 authority of dental board over, quasi-judicial § 181 See Agricultural College; Dartmouth College Case; Medical Col- lege; University. COLONIES, on severance of, power to grant franchises became vested in people § 122 COLOR BLINDNESS, locomotive engineers ^ § 377 COLORED RACE, separate cars for; regulation of railroads § 386 COMBINATIONS, statutes against; strict construction § 252 under Anti-Trust Act; when Federal court will follow state court decision § 280 See Anti-Trust Acts; Monopolies. COMITY, foreign corporations; situs of § 351 right to sue or defend; privileges and immunities of citizens in the several States § 293 jurisdiction of Federal court; not a question of. . Appendix C (p. 985) COMMERCE, electric light is in its nature an article of § 72 business of insurance is not § 87 railroad carriers business as part of trade or § 106 See Interstate Commerce. "COMMERCIAL" RAILROAD, street railway in city for carriage of passengers is not a note, § 1 1 1 COMMISSION, validity and reasonableness of rates fixed by; jurisdiction of appel- late court to determine § 1 74 See Civil Service Commission; Name of. COMMISSION OF GAS AND ELECTRICITY, delegation of power to § ^"^ abolished in New York. See Public Service Commissions Law. COMMISSIONER OF INSURANCE, delegation of power to § 103 1020 INDEX COMMISSIONER OF BANKING AND INSURANCE, delegation to of powers § 157 COMmSSIONERS, appointed by court to determine whether street railway be con- structed; extent of powers of § 183 delegation of power to; regulation and control; railroads § 381 railroad and like commissioners; rate regulation § 401 COMMISSIONERS OF BRIDGES, delegation to of powers § 158 COMMISSIONERS OF ELECTRICAL SUBWAYS, submission to of plans, etc.; electrical conductors; obligation of contracts § 335 See Board of. COMMISSIONERS OF EQUALIZATION, delegation of power to, by circuit judge § 183 See Board of Equalization. COMMISSIONERS OF HIGHWAYS, powers as to bridges § 200 COMMISSIONERS OF PARK, power of, to grant passenger railway in park note, § 14 COMMISSIONER OF PUBLIC BUILDINGS, LIGHTING, ETC., consent of, or permit from § 379 COMMISSIONER OF PUBLIC WORKS, refusal to designate location of telephone poles § 140 COMMISSIONER OF WATER SUPPLY, GAS AND ELECTRIC- ITY, consent of, to space for electric conductors in conduits § 379 COMMISSIONER OF WATERWORKS, power to contract with "lowest bidder" cannot be controlled by mandamus § 184 COMMISSIONS. See Public Service Commissions Law. "COMMODITIES," as franchise § 21 COMMON CARRIERS, business of, not itself a franchise § 14 subject to regulation and control § 74 includes what, under Public Service Commissions Law. ... § 74, p. 881 right of, anyone might engage in business of § 74 differs from private; duties of § 74 cannot discriminate § 74 INDEX 1021 COMMON CARRIERS— Continued: nature of employment, as public, quasi-public, etc § 74 express companies as § 79 false billing. See Public Service Commissions Law. sleeping-car companies are not § 109 wharfingers, when not § 1 19 within Public Utility Act § 104 railroad companies as; obligations imposed § 105 telegraph and telephone companies as note, § 115 delegation to railroad and warehouse commission; power of regu- lation, etc § 169 state corporation commission's control; delegation of power § 170 constitutional provisions as to telegraph and telephone companies being, not self-executing § 227 state court construction of statute fixing liability followed by Federal court § 276 consolidation of; police power; regulation; Fourteenth Amend- ment § 295 right to remedy in equity; validity of rate regulation statute; ex- cessive penalties note (p. 701), § 416 See Carriers; Public Service Commissions Law; Rate Regulation; Taxation; Transportation Companies. COMMON COUNCIL, grant by, to waterworks company, is legislative grant and a fran- chise § 16 legislative acts within rule which precludes court's inquiry as to motives in passing § 1 37 acts of; extent of power of courts to inquire into § 184 consent of to construction of street railway is legislative act. ... § 188 embraced in term "municipal council" Appendix B (§ 3, p. 942) See Municipal Council. COMMON LAW, business of common carrier has foundation in § 14 COMMONWEALTH. See State. COMPANY, included in term "corporation" under Public Service Commis- sions Law of New York § 52 COMPETITION, long and short hauls; Interstate Commerce Commission § 153 See Public Service Commissions Law. COMPLAINTS. See Public Service Commissions Law; Public IHility Law. CONCESSIONS. See Public Utility Law. 1022 INDEX CONDEMNATION. See Eminent Domain. CONDITIONAL GRANT, race track association, subject to conditions § 96 CONDITIONS, precedent to charter taking effect; effect upon franchises § 43 impHed in grant note, § 63 imposed in grant of franchise; delegation of power to local bodies § 187 compensation exacted as to grant of franchise to telephone com- pany § 187 partial invalidity of statute imposing same on foreign corpora- tions § 235 imposed upon foreign corporation; rule in -pari materia § 266 requirement in act of incorporation as to amount, etc., of capital stock of bank, not condition precedent § 286 as to amount of capital stock possessed by foreign corporations. . § 291 municipal consent to construction of street railways; obligation of contract § 335 non-compliance with; revocation of license; obligation of con- tracts § 336 navigation company; obligation of contract § 336 and regulations; obligation of contracts; street paving. ... §§ 337, 338 imposed by Congress § 341 imposed by legislature § 342 municipal powers; generally § 343 municipal control over streets; franchise rights of corporations §§344,345 implied; railroad company; city streets; new streets and cross- ings; police power § 346 payment of expenses or percentage; arbitration; submission to electors § 347 acceptance §§ 348, 349 same; implied acceptance; presumption; evidence § 350 foreign corporation; situs of; interstate comity § 351 power of State to impose conditions upon foreign corporations. . § 352 same; instances; certificate; designation of corporate agents, etc., service of process § 353 same; instances continued; insurance, railroad and other corpora- tions § 354 power of State to impose, upon foreign corporations; agreement not to remove suit to Federal court; waiver of right § 355 as to license, privilege, business or occupation charge, rental, fee or tax; interstate commerce; equal protection of law § 356 license, etc., fee or tax; constitutional law; insurance companies; decisions § 357 license, etc., fee or tax; interstate commerce; express companies; decisions § 358 INDEX 1023 CONDITIONS— Continued : license, etc., fee or tax; constitutional law; railroads; consolidated railroads; street railroads; decisions § 359 license, etc., fee or tax; telegraph companies § 360 license fee, etc.; constitutional law; gas franchises; brewing com- pany; packing houses; decisions § 361 imposing new conditions; police power § 362 subsequent; construction of; performance § 363 CONDUITS, property rights in § 33 consent of city for use of § 187 electrical; powers of city's electrical commission; grant or refusal of use of §191 powers of village trustees note, § 199 refusal of city to permit laying. : § 241 power of city to order wires placed in; deprivation of property. . . § 298 right to construct steam conduits in streets, not superior § 345 application for space in § 379 CONGRESS, when business of railroad carrier subject to control of; interstate commerce § 106 power of, to establish corporations; generally § 123 power of, to grant additional franchises § 124 power of, over franchises of state corporation; interstate com- merce; generally § 125 grants by; banks § 125 powers of; bridge corporation; bridges; commerce § 127 power of, to declare bridge lawful structure after being adjudged nuisance; or after injunction suit; post route § 128 Federal aid to railroad and telegraph companies § 129 authority granted by, to Secretary of Interior to grant rights of way for telegraph and telephone lines through Indian Territory exclusive § 1 •'O power of, over Territories § 130 acts of, making grants of rights to certain companies note, § 130 extent of authority granted by Post Roads Act; telegraph com- panies 5 130 legislative discretion as to grants of franchises, etc.; power of courts to interfere § 1 37 control over navigable waters 8 !'!•'' power of, over bridge franchises § 1 45 delegation of powers by §§151-155 reserved powers; amendment of charter §§ 321 , 31.2 cannot abolish or limit toils so as to imp.iir Ixnullioldcr's rights. . § 340 interstate commerce; power of States where Congress has not acted §§367,368 1024 INDEX CONGRESS— Continued : regulation of rates by § 402 See Conditions; Powers; Statutes. CONSENT, by town authorities to lay conductors for gas is franchise § 16 of city as prerequisite to use of streets, etc § 44 of city to construct spur track not a franchise but a license § 47 to use of streets by quasi-public corporations § 47 of city to car company to construct connecting spur track, a license not a franchise § 47 of railroad commissioners required, but refused; legislature may cure such defect § 140 of subordinate body unnecessary to exercise of power by legis- lature § 141 of railroad commissioners not necessary to enable State to grant franchise to street railway § 167 of abutting property owners to construction of street railways; not obtained; appointment of commissioners by Supreme Court § 183 of property owners; street railroads; determination of commis- sioners confirmed by appointing court taken in lieu of consent § 183 of city for use of conduits and subways § 187 of city to exercise of franchise of water company § 187 of abutting ovraers generally § 187 subways; board of aldermen and not board of electrical con- trol note, § 191 by city as prerequisite to construction of street railways; obliga- tion of contract • • ■ § 335 as condition precedent; regulation and control §§ 379-380 See Abutting Owner; Electors; Permits. CONSIDERATION, franchise must be based upon public considerations §§ 14,464 for building bridge is franchise granted note, § 15 of franchise as performance of public service § 16 certain franchises founded on valuable, and a contract § 24 for grant of franchise is that public be served; public service cor- porations note, § 63 franchises are contracts based upon valuable note, § 63 for ferry franchise is right to take tolls § 80 grant of franchise to supply gas based upon § 82 for railroad grants is public good § 97 for contract with city as to maximum rates; use of streets § 187 grant of lighting franchise may be given without § 200 grant as gratuity § 306 See Contracts. CONSOLIDATION, right to consolidate is franchise § 12 INDEX 1025 CONSOLIDATION— Continued : and merger of gas companies; sufficiency of title to statutes § 245 of corporations; power to alter or repeal; obligation of contract. . § 331 of corporations; exemption from paving assessments § 338 non-acceptance in form required § 349 railroads; test of reasonableness of rates § 410 of corporations; effect of as to exemption or immunity from tax- ation §§ 481, 482 when value of property as basis of rate regulation fixed by time of Appendix C (pp. 986, 996) increase in valuation of franchise or property after time of; basis of rate regulation Appendix C (p. 986) See Alienation; Obligation of Contracts; Taxation. CONSTITUTION, definition of franchise under ^ § 9 franchises classed as property under; in California § 37 of New York; includes what in definition of corporations § 52 of New York; power to sue includes only actions relating to corpo- rate rights note, § 52 definition of "corporation" whether u general one or limited to particular constitution § 53 classification of corporations under § 58 provisions of vesting power in legislature to repeal an exemption from taxation §*^1 corporations not "citizens" under Federal Constitution § 67 ■ and laws of United States, made in pursuance thereof, arc supreme law of land §120 rule of is that national government i.s one of enumerated powers. . § 1 20 Federal, as limitation on powers of state legislature § 137 when provisions of as to grant of franchises are and are not .self- executing §§140,225-227 conditions imposed by; grants of franchises § 187 within term "laws; " obligation of contracts § 305 See Grants. CONSTITUTIONAL LAW, provision in constitution that right to collect water rates is fran- chise • ■ • §^7 right to practice law as privilege, etc., not protected by Four- teenth Amendment note, § 21 grant by city when not grant of "corporate powers or privileges" within constitutional prohibition against passing special l.-nv, etc equal protection of the laws; corporations as persons § 6'> Fourteenth Amendment; corporations as persons § <1<) "due process of law," corporations as persons § 66 when statute may bo declared uncon.stitutioiml by state corpora- tion commission S "' 65 §31 1026 INDEX CONSTITUTIONAL LAW— Continued: drainage companies; rights of railroad company § 75 insurance companies are not "citizens" with guarantee of priv- ileges and immunities § 87 act of Congress to incorporate North River Bridge Company, constitutional § 127 constitutional and legislative ;->owers of State §§ 132-146 Fourteenth Amendment does not limit subjects for exercise of po- lice powers § 149 delegation of power to Secretary of War as to bridges § 152 delegation of power to inspectors of coal mines not unconstitu- tional § 162 statute allowing certain subordinate agencies to prescribe form of standard policy unconstitutional § 163 delegation to railroad commissioners not unconstitutional as del- egation of legislative powers § 167 statute appointing railroad commission when not unconstitu- tional as establishing joint rates, etc § 167 validity of statute; power of railroad, etc., commission as to in- crease of capital stock § 169 statute constitutional which empowers courts of equity to pre- scribe construction of railway crossings § 172 statute constitutional which empowers Supreme Court to deter- mine reasonableness of water rates § 173 delegation of power to probate courts as to use of streets; when constitutional § 179 statute creating court of visitation when unconstitutional § 180 Fourteenth Amendment; review by Federal courts of action of taxing bodies or state agencies § 182 delegation of powers to board of equalization not unconstitutional § 182 authorization to city to construct railroad not unconstitutional. . § 186 when delegation of exclusive power to city council to license, reg- ulate, fix rates, etc., unconstitutional; ferries § 188 when statute conferring powers as to toll roads and providing for hearings and appeal is unconstitutional § 200 requirements to title of statute § 245 title of acts which amend, revive or repeal § 246 title to statutes; instances; incorporation; expropriation; rail- roads; street railroads; bonds in aid of railroads; lien on and sale of railroad; electrical conductors; fraudulent elections in corporations; foreign corporations § 247 effect of new constitution where corporation dissolved and all its property transferred to new corporation § 286 constitution; grant and limitation on powers of governments; ex- press and implied powers; construction §§ 289, 290 privileges and immunities of citizens in the several States § 291 same; discrimination; tax law; deduction of debts; creditors in different States § 292 INDEX 1027 CONSTITUTIONAL LAW— Continued: same; actions; statutes of limitations § 293 the Fourteenth Amendment; generally *. . § 294 same; police power § 295 privileges and immunities of citizens of the United States § 296 due process of law §§ 297-299 equal protection of the laws ■ § 300 new constitution; obligation of contracts § 334 jurisdiction of Federal court when exclusive; validity of state statute note (p. 700) § 416 state rate statute prima facie valid note (p. 701) § 416 limitations on power to tax § 417 validity of exemptions from taxation § 456 statute as to pressure of gas Appendix C (p. 987) Federal court has jurisdiction over questions of constitutionality of statutes " Appendix C (p. 989) New York statute appointing gas commission unconstitutional Appendix C (p. 990) statutes may be partly void, partly valid. . . . Appendix C (pp. 987, 1002) See Construction or Interpretation of Constitutions; Construction or Interpretation of Statutes; Due Process of Laws; Equal Pro- tection of Laws; Interstate Commerce; Obligation of Contracts; Privileges and Immunities of Citizens; Rate Regulation; Special Acts; Taxation. CONSTITUTIONAL POWERS, of Federal government; source of franchise §§ 120-131 CONSTRUCTION OR INTERPRETATION OF CONSTITUTIONS, Federal and state powers under constitutions; distinctions, §§ 120, 121 differences in rules as to, of Federal and state constitutions § 121 interpretation or construction; generally § 204 intent; effect given to every part; ordinary signification of words; grammatical construction ' § 205 context; ordinary and technical meaning of words; phrase or word in different parts of instrument § 206 plain language of constitution cannot be ignored; repugnant pro- visions § 207 meaning of constitution as understood by its framers; construc- tion • §20S strict construction § 209 implied matters, a part of constitution 5 210 punctuation § 21 1 interpretation in view of common law § 212 constitutional prohibitions; proviso; exception from general words § 213 partially invalid provisions § 21 I charter of bank under special act; subsequent constitution pro- hibiting such acts § 215 1028 INDEX CONSTRUCTION OR INTERPRETATION OF CONSTITUTIONS— Con- tinued: special acts; constitution prohibiting, not retroactive § 215 exemption from taxation; effect of constitution repealing same. . § 215 taxing district incorporated by special law; subsequent constitu- tion § 215 statute partially invalid; railroad commission; rate regulation. . . § 215 prospective; retrospective § 215 corporations required to be formed under general laws; constitu- tional amendment; not retroactive § 215 contemporaneous; extrinsic matters; history; debates and pro- ceedings in convention § 216 contemporaneous construction; legislative construction § 217 special laws creating corporations; constitutional prohibition as to same § 218 exemption from taxation § 218 construction long continued and acquiesced in by legislative and executive departments § 218 long and continued usage § 219 amendments to constitution § 220 "ratify" and "approve" not equivalent to words "to adopt" or "to incorporate into;" constitutional amendments note, § 220 title of legislative enactment proposing constitutional amend- ment § 221 revised constitution; re-enactment § 222 constitution adopted from another State; construction § 223 former constitution repealed by implication § 224 whether constitutional provisions self-executing § 225 when constitutional provision is self-executing; instances § 226 when constitutional provision is not self-executing; instances. . . § 227 CONSTRUCTION OR INTERPRETATION OF STATUTES, monopolies not favored § 23 exclusive privilege to supply light or heat § 23 grant of exclusive rights not favored by § 23 statutes presumed valid until clearly shown unconstitutional. ... § 121 Interstate Commerce Act; adoption of language of English Traffic Act § 153 Interstate Commerce Act; rebates § 153 general words following specific enumeration § 163 transactions resulting in delivery of county bonds to railroad company § 228 constitutional law; interpretation or construction of statutes; generally § 228 invalidity for uncertainty; undue or unreasonable preferences, etc., by corporations § 230 judicial authority and duty to determine constitutional questions. § 229 validity of statutes; generally § 230 INDEX 1029 CONSTRUCTION OR INTERPRETATION OF STATUTES— Continued: presumption that legislative enactment constitutional; repug- nancy must clearly appear § '-31 when statute void which provides for forfeiture as to receiving, etc., telegraph messages § 232 same; exception or qualification of rule § 232 conflicting provisions; validating; interpretation or construc- tion; two constructions § 233 partial invalidity § 234 partial invalidity; instances § 235 intent; effect to be given to every part § 236 plain and manifest intention § 237 natural and reasonable effect and construction; ordinary or popu- lar meaning; absurdity or injustice § 238 literal meaning; intention and letter of statute § 239 general and specific words or clauses; general legislation § 240 of special words and clauses in grants of franchises or privileges to street railway, railroad and electric hght, etc., companies. ... § 241 as to conflicting railroad grants; undivided moiety § 242 matters incorporated by reference § 243 title of statute § 244 punctuation ; • ■ ^ ^^s order of arrangement; transposition; alteration; omission; rejec- tions §249 construction of proviso or exception § 250 liberal construction; meaning extended; implication § 251 strict construction « ^ common law; statutes in derogation of • • ■ § 253 public grants of franchises, privileges, etc.; construction against § 254 grantee ^ same; instances; railroads; street railroads; submarine railway; ea.s telephone, canal, water and turnpike companies; ferry, eminent domam ^ "' ^ same; instances; public land grants; railroad aid §*-5b crant of exclusive franchises, rights or privileges; strict construc- '^ . . § 257 tion •. : separate grants of franchises; rule of construction S ^o» settled judicial construction §259 practical construction; parties ■ » - effect of interpretation; beneficial reasons; natural justice and equity; inconvenience; injury or hardship § -'''> contemporaneous construction; extraneous matters; history; dc- ... § 2('i2 bates, etc ',',•'" ■• policy of government of legislative body or of law; public policy; general principles of law . noA ,.,... § Zb't remedial statutes « . on^ 9fifi , . • i • 88 2d5, zoo rule in pan materia » " ' same; exceptions to or qualifications of rule 8 -^o' 1030 INDEX CONSTRUCTION OR INTERRRETATION OF STATUTES— Continued: words or provisions of prior statutes adopted in later act § 268 derivative statutes; construction of statutes adopted from foreign State or country § 269 re-enactment; consolidation; revised statutes; codes § 270 construction by State of its statutes; how far respected in courts of other States § 271 construction of state constitutions and statutes by state courts; how far respected by Federal courts §§ 272, 273 same; exceptions or qualifications of rule § 274 same; instances; incorporation acts; eminent domain; corporate powers § 275 same; instances; common carriers; railroads § 276 same; instances; revenue; taxation § 277 same; instances; exemptions from taxation; impairment of obli- gation of contract as to taxation § 278 same; instances; impairment of obligation of contract; B^our- teenth Amendment § 279 same; instances; statutes penal in nature; trustees of corporations; anti-trust laws § 280 same; instances; foreign corporations § 281 repeal or amendment of statutes §§ 282, 283 same; instances § 284 same; instances; taxation and assessment § 285 construction of statutes, charters and ordinances; miscellaneous cases § 286 prospective and retrospective operation § 287 validating statutes; waiver or correction of defects or irregularity. § 288 state rate statute prima facie valid note (p. 701), § 416 franchise tax; capital stock; meaning of terms; nature of tax. ... § 425 exemption from taxation ■ • • § 455 validity of exemption from taxation § 456 alienation of franchises § 467 See Public Service Commissions Law. i CONTEMPT, commitment for; when unlawful note (p. 699), § 416 CONTRACT, " franchise " as a § 4 with city to run street railway, when not a franchise § 14 "news contract" as franchise § 21 right of corporation to, is franchise § 32 is agreement § § 41 , 45 whether certain grants are a; distinctions § 47 franchises are contracts based upon valuable consideration, note, § 63 charter of college as note, § 69 by irrigation company with consumer; liability of company for breach § 88 INDEX 1031 CONTRACT— Continued : irrigation companies cannot limit liability by § 88 by railroad company intended to absolve it from obligations is void § 97 sleeping-car companies' obligations rest upon contract to furnish accommodations f 109 street railway cannot by contract disable itself from performance of public duty § 1 11 in which public interested; railroad commission's powers as to reasonableness of § 1 (>" extent of power of court to inquire into validity of lighting con- tracts § 184 with city as to maximum rates; consideration; use of streets. ... § 187 power of city to contract for water supply § 1 COURT PROCEDURE. See Public Service Commissions Law; Public Utility Law. COURTS, office not a franchise under statute, etc., as to appellate jurisdic- tion of ^'^^ 1036 INDEX COURTS— Continued : Federal Supreme Court, duty of, to guard chartered property in- terests § 120 powers of; what matters exclusively within legislative discretion; grants of franchises § 136 Federal Supreme Court proceeds with caution in revising ruling of state court as to validity of statute § 137 will invalidate ordinance which works discrimination § 137 police power subject to judicial review § 137 of State; decree of requiring construction of railroad lines not in- terference with interstate commerce § 167 empowered by statute to direct manner of service of notice on common carriers, not delegation of legislative power § 169 delegation of power to §§ 171-184 when no jurisdiction by appeal upon questions of administrative policy § 171 extent of power to inquire into acts of subordinate political agencies, etc § 184 judicial authority and duty to determine constitutional questions. § 229 settled judicial construction of statute § 259 construction of statutes by state courts; how far respected by Federal courts § § 272-281 judicial decisions not within obligation of contract clause § 306 power of; rate regulation; due process of law § 397 reasonableness of rates; judicial question. ... § 407, note (p. 699), § 416 See Rate Regulation. Federal questions note (p. 699), § 416 injunction against violation of whole scheme of government note (pp. 700,701), §416 judicial determination of forfeiture; quo warranto § 486 reluctant to adjudge forfeitures § 487 when duty of Federal court to take jurisdiction Appendix C (pp. 985,989) Federal courts have jurisdiction over questions of constitutional- ity of statutes Appendix C (p. 989) See Name of; Delegation of Power; Equity; Jurisdiction. CREDITORS, rights as citizens of foreign States; assets of private corporation; its course of administration in courts § 292 resident and non-resident; preferences; assignment § 292 CREDITORS' BILL, privileges and immunities of citizens in the several States § 292 CRIMINAL LAW, jurisdiction of Federal court; injunction; unconstitutional statute note (p. 700), §416 INDEX 1037 CROWN, franchise to erect, eto., ferrj^ must be derived from, in England note, § 15 CRUISE, definition of franchise by § 1 D. DAM, and lock; right to exact tolls is franchise § 17 DAMAGES, railroad companies liable for refusal to exercise franchise. . note, § 97 for fire caused by railroad company; statutory limitation of dam- ages, not retrospective § 287 liability of railroad company to employees; due process of law; equal protection of laws .^^ § 298 for overflowed lands; Massachusetts Mill Act; constitutional law. . § 298 adjusting damage claims; regulation of railroads § 386 See Public Service Commissions Law; Public Utility Law. DARTMOUTH COLLEGE CASE, charter or franchise as contract § 312 See Colleges. DEATH, lives lost; investigation. See Public Utility Law; Actions. DEBTS, alienation of franchise; liability for § 464 deduction of. See Taxation. DECREE, judicial sales; franchises of corporations §§ 477, 478 See Judgment. DEFENSES, to action for penalties; rate regulation § 410 See Public Service Commissions Law; Remedies. DEFINITIONS, of "capital" ^25 capital stock § 4-.) "charter" ^ '*J "corporate franchise;" corporate franchises § •'» of corporation §5 50, 60 corporations; change in nature and relations of; effect upon <';irly definitions ^ ^^ corporation; summary of expressions used in defining a § 51 corporation; to what extent definition of, includes a company, association and joint-stock association or company; partner- ship §552-54 1038 INDEX DEFINITIONS— Continued : what corporations are public utilities under Public Utility Law Appendix B (§ 1, p. 941) of eleemosynary corporation note, § 58 ferry franchise note, § 15 of franchise generally, classified § 3 of franchise by Finch, Blackstone, Chitty, Cruise and Kent § 1 of franchise by Chief Justice Taney § 2 franchise as a contract; as an exclusive right § 4 franchise as right, privilege or immunity § 3 franchise often used as generic term note, § 38 "franchises" under constitutions and statutes § 9 of foreign and interstate commerce § 367 general franchises of corporation § 6 of immunity note, § 9 of license; license to operate railroad note, § 47 of monopoly note, § 22 of private corporations §§ 61-62 privileges which do not belong to citizens of country generally by common right ■ § 2 of public bridge and as part of road or highway note, § 15 "pubUc corporation" meaning of may be defined and limited by statute § 61 public corporations § 61 public franchise; in statute § 9 of quasi-pubhc corporations §§ 61-62 of "public utilities;" Wisconsin statute Appendix B (§ 1, p. 941) of rates or rate note, § 17 "stockholder" includes members of what associations. . . . note, § 52 of street railroad or railway and street railway companies. . note, § 111 See Words and Phrases. DELEGATION OF POWER, to cities, towns, etc., to grant franchise § 48 not delegated to United States by Constitution nor prohibited by it to the States, are reserved to States or people § 120 powers of Federal Government restricted to those delegated; those of State embrace all not forbidden § 121 delegation of; generally §§ 147-150 distinction between delegation of power to make laws and discre- tion as to their execution or administration; power to regulate. § 147 grant of franchise may be made through lawful delegated agency. § 147 non-delegation of legislative powers § 147 police regulations; generally § 149 by Congress §§ 151-155 to the President § 151 to Secretary of War; bridges • § 152 to Interstate Commerce Commission § 153 INDEX 1039 DELEGATION OF POWER— Continued: to American Railway Association . . : . § 154 by State to board of agriculture § 156 to commissioner of banking and insurance § 157 to commissioner of bridges § 158 to drainage commissioners; removal of railway bridge § 159 by State; enumeration of subordinate bodies §§ 156-170 delegation to commission of gas and electricity § 160 to grain and warehouse commission § 161 to inspectors of coal mines § 162 statute delegating power to certain subordinate agencies of offi- cers to prescribe form of standard policy, unconstitutional. ... § 163 to bureau of insurance, or to superintendent or commissioner of insurance § l^-^ to levee district § 164 to board of loan commissioners; Xerritory § 165 to public service commission of New York § 166 to railroad commissioners § 167 to railroad commissioners; their consent not necessary to enable State to grant franchise to street railway § 167 to railroad commission; Public Utility Law of Wisconsin § 168 to railroad and warehouse commission; railroads; carriers; in- crease of capital stock § 169 to state corporation commission; extent of power § 170 to and by courts §§ 171-184 to courts; generally § 1^^ to courts to grant corporate powers to private companies § 171 to courts to establish bridges § 171 courts; legislative and administrative functions cannot be forced upon or assumed l)y § 1 ' 1 to courts to establish or pass upon street regulations § 171 to courts; duties non-judicial, such as fixing rates cannot be forced upon s 171 to courts of equity; railroad bridges crossing highways. ....... § 172 to supreme judicial court; to determine reasonableness of water rates § ^'-^ to aoDollate court to determine reasonableness of rates fixed by ■ § 174 commi.ssion * to fiscal court; subdelcgation to county judge; subscription to stock of railroad company § ' ^•'' subdelcgation of, by fiscal court to county judge; subscription to railroad stock s i ' - to Circuit Courts; designation of telephone route; charter to ob- struct highway 5 ^ ''' to Federal Circuit Courts; power to enforce orders of Interstate Commerce Commission; jurisdiction; contract rights of railroad. § 177 to county commissioners' court; county courts; ferry franchise- grant of use of street ^ ' '' 1040 INDEX DELEGATION OF POWER— Continued: to county commissioners' court; county courts; ferry franchise; grant of use of street by railroad or gas company § 178 to probate courts; use of streets by telephone company § 179 to court of visitation; statute when unconstitutional § 180 to dental board; authority over colleges as quasi-judicial § 181 authority of dental board over colleges as quasi-judicial § 181 to board of equalization; review of action of; Federal courts. ... § 182 to commissioners by courts; construction of street railroads; ap- pointment by circuit judge of commissioners of equalization. . § 183 to what extent courts may inquire into acts of subordinate politi- cal agencies, etc § 184 powers of courts in relation to; power of, over municipalities, common council, commissioner of waterworks, railroad com- missions, and over other courts, etc.; police powers § 184 to municipal, quasi-municipal and subordinate agencies. . . §§ 185-203 to municipal or city council; street railways; ferries; extent of power of city council § 187 local authorities; power to "prevent" distinguished from power to "regulate" §187 legislative power to people; right to amend municipal charter as to grant of franchises § 189 to board of rapid transit railroad commissioners; subways; city ownership and obligations; change of construction of plans ... § 190 electrical commission; electrical conduits; board of commissioners of electrical subways; board of electrical control § 191 grant of franchises; board of estimate and apportionment of New York; transfer of power from another board; cumulating. ... § 192 dock department no power to grant franchise; street railway. . . § 193 to county commissioners; ferries; bridges; use of streets; permits; gas and electricity; street railroads; repaving; removal of poles, etc § 194 to towns, villages and counties; water rates; ferries; heat, light and power franchises and contract, when void; waterworks; hydrant rentals § 195 to town council; use of streets § 196 to selectmen, or to board of aldermen of city; use of streets; loca- tion and control of electrical appliances, etc., conditions as to street railway fares § 197 trustees of town; drawbridge; board of gas trustees; gas rates; lighting plant ordinance invalid § 198 board of supervisors; grant of turnpike franchise; right to collect tolls § 199 highway or toll road commissioners; public lighting franchise; bridges; when order to cease taking tolls invalid; delegation to city officials, subway construction § 200 police juries; ferries, bridges and roads § 201 by municipality § 202 INDEX 1041 DELEGATION OF POWER— Continued: by ordinance to street commissioner § 203 obligation of contracts § 313 to tax note, § 417 See Municipalities. DENTAL BOARD, delegation of power to; authority over colleges as quasi-municipal. § 181 DEPRECIATION, rates. See Public Utility Law. DIRECTORS, liability of, for failure to make reports; statute not repealed by amendment as to time of filing reports § 282 DISCRIMINATION, by corporations ^ note, § 63 common carriers caimot discriminate § 74 electric light companies cannot exercise § 7G natural gas companies cannot discriminate § 83 irrigation companies cannot discriminate §«88 railroad companies cannot discriminate § 97 as test whether branch railroad track is for public or private pur- poses § 103 railroad carriers must perform service on equal terms to all. . . . § 106 waterworks company cannot discriminate § 118 action of board of equalization resulting in illegal; review of by Federal courts § 182 constitutional provision prohibiting, is self-executing § 226 constitutional provisions as to, when not self-executing § 227 invalidity of statute for uncertainty § 230 telegraph companies; sufficiency of title to statute note, § 245 taxation of national banks; state court decision; review in Fed- eral courts § -77 state decision that there is none as against oil companies; efTect in Federal courts § 280 indictment for unlawful, in transportation of passengers; effect of repeal and re-enactment of statute § 284 against corporations; liability for damages to employees § 300 by State against foreign corporations § 3,'j 1 regulation and control § •^'*^1 rate regulation §§411,414, 41.'5 taxation ^ See Public Service Commissions Law; Public Utility Law; Taxa- tion. DISEASES, right of sleeping-car company to exclude persons with infectious. § 1 ()•> DISPENSARY, for sale of liquors; right to operate, aw franchise § 21 66 1042 INDEX DISSOLUTION, of corporation and transfer of all its property to new corporation; effect of new constitution § 286 of corporations; sufficiency of title to statute note, § 245 corporation dissolved and property transferred to new corpora- tion; latter subject to new constitution ■ § 286 See Forfeiture. DISTRICT ATTORNEY. See Public Utility Law DISTRICT OF COLUMBIA, power of Congress to charter savings institution in § 130 telephone system in; acts of Congress § 130 See Territories. DIVIDENDS, taxation § 435 DOCK DEPARTMENT, no power to grant franchises; street railway § 193 DOCKS, sufficiency of title of statute § 245 DOMESTIC CORPORATIONS, division into § 57 DRAINAGE, ditch; when questions concerning it, are of administrative policy; jurisdiction of courts § 171 DRAINAGE COMMISSIONERS, delegation of power to § 159 requirement by that railroad bridge be removed, etc.; constitu- tional law note, § 298 DRAINAGE COMPANIES, drainage; constitutional law; police power § 75 is private corporation § 75 DRAWBRIDGE, trustees of towns may grant right § 198 right to erect is a franchise § 15 DUE PROCESS OF LAW, police power § 149 validity of ordinance requiring repairs on railroad; when railroad relieved from making repairs § 138 when rule of railroad commission not violative of this provision. . § 167 resident and non-resident mortgagees and creditors § 292 generally §§ 294-295 Mill Act giving damages for overflowed lands § 298 INDEX 1043 DUE PROCESS OF LAW— Continued : requirement that railroad company remove bridge, etc.. . . note, § 298 law specifying form of contract to obtain mechanic's lien § 298 Eight-Hour Law; employment in mines by corporations; police power note, § 298 liabihty of railroad company for damages to employees § 298 statute for monthly payment of employees by corporations, note, § 298 tax on transfers of stock by corporations § 298 arbitrary decision of umpire as to weight of grain; when law un- constitutional § 299 law prohibiting insurance in marine insurance company § 299 ordinance as to transfers; property taken without § 299 requirement as to payment of attorney's fees by railroad com- panies § 299 See Attorneys. power to alter, etc. , franchise or charter § 320 rate regulation; turnpike companies § 397 examination and license of locomotive engineers; color blindness. § 377 regulation of water rates § 393 regulation of rates §§ 406-408, 411 E. EASEMENT, or right under franchise § 33 and franchi.se distinguished § 34 right to lay gas pipes in streets is § 47 use of streets for gas pipes rather an easement than a franchise. . § 36 grant of right to erect bridge creates franchise as distinguished from license or easement § 48 in streets; obligation of contract § 313 ECCLESIASTICAL CORPORATIONS, divi.sion into § 57 EDISON ELECTRIC COMPANY, acts of Congress granting certain lands to, in (California, for power , plant note, § 130 ELECTIONS IN CORPORATIONS, fraudulent; sufficiency of title to statutes § 247 "ELECTIVE FRANCHISE," or freedom § 2 1 "ELECTIVE SUFFRAGE," as franchise § •^' ELECTORS, vote of granting riglit to use city streets at least a license coupled with an interest § 17 1044 INDEX ELECTORS— Continued : vote by, to construct, etc., lighting system; suit by taxpayer to restrain construction by village § 160 vote of, as to granting or amending francliise § 189 approval will not aid validity of ordinance, void for unreason- ableness, etc § 195 consent of, as prerequisite to use of streets § 347 ELECTRICAL COMMISSION, established by city; extent of powers of; conduits and use of space therein § 191 ELECTRICAL COMPANIES, no exclusive right in the earth as an electrical field § 36 powers of selectmen of towns as to § 197 See Alienation. ELECTRICAL CORPORATION, in Public Service Commissions Law includes what corporations, etc § 76 ELECTRICAL CONDUCTORS, sufficiency of title to statutes § 247 ELECTRICAL CONDUITS. See Conduits; Subways. ELECTRICAL SUBWAY COMPANY, when no power to refuse space in conduits § 379 ELECTRIC CARS, difference between and ordinary vehicles; police power; equal protection of the laws § 149 ELECTRICITY, right to produce and sell open to all persons without legislative authority § 16 right to use streets for transmission of, is franchise grantable only by legislative authority § 16 • lines and posts in streets for use of; when not a franchi.se § 47 regulation of use of; police power; Fourteenth Amendment § 295 See Commission of Gas and Electricity; Public Service Commis- sions Law; Streets. ELECTRIC LIGHT AND POWER COMPANIES. See Taxation. ELECTRIC LIGHT COMPANIES, franchise by city to, is property of corporation and not of owner of stock § 38 receive franchises in consideration that public convenience will be served note, § 63 nature of; when may supply electricity for heat and power § 76 carmot discriminate § 76 INDEX 1045 ELECTRIC LIGHT COMPANIES— Continued: when property of, devoted to public use § 76 when and when not a "manufacturing" company §§ 77, 78 consent of local authorities to use of streets, etc § 187 revocation of license of; obligation of contracts § 336 rights in streets § 345 franchise accepted subject to conditions as to use of poles by other companies; arbitration § 347 ELECTRIC LIGHTING, when statute as to privilege to supply light, etc., docs not include, § 23 right of natural persons to engage in business of § 76 by village; certificate of authority as prerequisite; private lighting § 160 ELECTRIC POWER COMPANIES, right of way through public lands and forests; grants by Congress note, § 130 See Power Companies. ELECTRIC POWER PLANTS, in Cahfomia; acts of Congress, granting lands for note, § 130 ELECTRIC RAILWAYS, included in "horse and steam railways" § 241 ELECTRIC STREET RAILWAY. See Street Railway. ELEEMOSYNARY CORPORATIONS, classed as private § 55 defined note, § 57 division into § 57 ELEVATOR COMPANIES. See Storage and Elevator Companies. EMINENT DOMAIN, franchise of § 19 an important railroad franchise § 19 power to exercise right of note, § 19 franchise rights may be taken, when public necessity requires, on compensation § 26 exercise of right of, when not violation of obligation of contract. § 26 not necessarily a corporate right § 30 railroads, canals, and gas companies must have right of § 62 power of, only granted for public use ■ note, § 63 franchises which require exercise of right of . note, § 63 private enterprises; private use.. . . • iu)le, § 63 public use; railroad company nolo, § 63 exercise of right of, imposes certain oldigations. . nofc, § 63 right exercisable by canal companies • § "2 exercise of, when justified; electric power company § 76 levee, such a public use that eminent ni.iiii m.iy be exercised. § 89 1046 INDEX EMINENT DOMAIN— Continued: when power of, may be exercised by boom company § 90 railroad companies may exercise right of § 97 street railways no right of § HI telegraph and telephone companies may condemn private prop- erty § 114 legislature cannot grant away State's right of eminent domain. . § 138 legislative grant necessary to exercise of right § 144 delegation of power to determine compensation under right of exercised by United States § 155 statutes; "public use" in, construed § 241 statutes; sufficiency of title § 247 statutes; strict construction § 252 damages; upon question of Federal court accepts construction placed by state court upon statute § 275 whether statute of incorporation confers power of; state court decision adopted by Federal courts § 275 exemption; future legislation; obligation of contract § 327 obligation of contracts §§ 332, 333 streets across railroad tracks in city § 346 See Expropriation. EMPLOYEES, of railroads, etc., liability to; sufficiency of title to statute. . note, §245 police power over mining corporations; Fourteenth Amendment, § 295 of corporations in mines; Eight-Hour Law; police power of State note, §298 statute for monthly payment of, by corporations; constitutional law note, § 298 liability of railroad company to, for negligence; constitutional law § 298 liability of railroad companies for damages to; equal protection of law § 300 payment of; lien for wages on corporate property; reasonable at- . torneys' fees to enforce lien note, § 300 See Obligation of Contracts; Public Service Commissions Law; Public Utility Law. EMPLOYERS' LIABILITY ACT, when statute invalid as including certain inseparable, void pro- visions § 235 ENGINEERS. See Locomotive Engineers. ENGLAND, ferry franchise derived from crown, in note, § 15 certain franchises in, no application here . . § 10 delegation of power to establish corporations § 148 ENGLISH COMPANIES' ACT, railroad as "public companies" under § 98 INDEX 1047 ENGLISH STATUTES, adopted; rule as to construction of § 269 ENGLISH TRAFFIC ACT, as affecting construction of Interstate Commerce Act § 153 ENTRY, upon premises. See Public Utility Law. ENUMERATION OF FRANCHISES §§ 10-21 See Franchises. EQUAL PROTECTION OF LAWS, when regulation of rates of stockyard company is unconstitu- tional § 1 10 constitutionality of statute fixing charge for elevating, storing, etc. , grain §113 electric cars, differ from ordinary vehicles; police powers § 149 when statute fixing rates violates provision as to § 160 delegation of power to grain and warehouse commission not un- constitutional § 161 common carriers not denied, by control of state corporation com- mission over them § 170 judgment for attorneys' fees as costs against insurance company. § 279 combinations; anti-trust acts; state court decisions; effect of, in Federal courts § 280 generally §§ 294-295 liability of railroad company for damages to employees § 298 Eight-Hour Law; employment in mines by corporations; police power note, § 298 requirement that railroad company remove bridge note, § 298 requirement as to payment of attorney's fees by railroad or in- surance companies. 299 instances § 300 power to alter or amend charter or franchise § 320 license, etc., tax § 356 regulation of water rates § 393 regulation of rates §§ 406-408, 411, 416 penalties so enormous as to prevent resort to courts; Federal question note (p. 699), § 416 EQUITY, may ignore doctrine of corporate entity note, § 1 1 delegation of power to courts of; railroatl bridges crossing high- ways § 1"'-' to test right to exercise franchises; forfeiture; validity of statute, § 230 injunction; gas rates § 392 inquiry anrl decree as to reasonablene.'fR of rates § 407 no adequate remedy at law: rate regulation note (p. 701), § 416 1048 INDEX EQUITY— Continued: right of common carrier to resort to; validity of rate regulation statute; excessive penalties note (p. 701), § 416 power to levy and collect taxes does not belong to note, § 417 jurisdiction; taxation § 422 ultra vires lease; estoppel § 473 ought not to interfere until practical test of rate is made Appendix C (p. 986) See Injunction. ESTATES, corporate franchises are vested legal estates § 29 ESTOPPEL, title insurance company not accepting new constitution § 220 equity; ultra vires lease § 473 taxation of franchises at over-valuation is immaterial on question of value for rate regulation Appendix C (pp. 986, 1000) EVIDENCE, repugnancy of statute to Constitution must clearly appear § 231 burden of proof on person denying constitutionality of statute. . § 231 of acceptance of charter or franchise § 350 See Presumptions, burden of proof on carrier to show invalidity of state rate statute note (p. 701), §416 valuation of property by expert witnesses; effect of; reasonable- ness of rates Appendix C (pp. 991, 999) See Expert Testimony; Public Service Commissions Law; Public Utility Law. EXCISE TAX, on transportation or transmission companies § 427 EXCLUSIVE CONTRACTS, may be made with single concern by railroad company as for use of hacks § 97 EXCLUSIVE FRANCHISE, meaning of note, § 24 See Exclusive Grants. EXCLUSIVE GRANTS, • franchise as exclusive right § 4 grant of right to supply gas is franchise § 16 nature of franchise as §§ 22-37 light or heat, what included § 23 meaning of "exclusive" note, § 24 test of note, § 24 every grant of franchise as exclusive in nature note, § 24 "franchise" sometimes used to mean exclusive right § 24 franchise is jus publicum and exclusive § 24 INDEX 1049 EXCLUSIVE GRANTS— Continued: franchise as being necessarily exclusive § 24 ferry note, §24 right to receive certain proportion of public funds, not an ex- clusive privilege, franchise, etc note, § 24 right to furnish water; when an exclusive privilege note, § 24 of right to operate street railroad is property right note, § 26 right to supply city with water; grant by ordinance is franchise. . § 48 for ferries, bridges and turnpikes, are grants of public character note, § 63 of right to supply gas is franchise § S2 of telegraph and telephone rights of way through Indian Territory. § 130 or license; when power to make and regulate cannot be delegated to city council; ferries § 188 of franchises by city, for waterworks; partial invalidity of enact- ment "■■ § 235 strict construction of § -O' not regarded; implication as to; Charles River bridge. .. . note, § 257 to supply gas; obligation of contracts § 335 State, in granting, does not part with police power § 388 See Construction of Statutes; Exclusive Privilege; Exclusive Franchise. EXCLUSIVE IMMUNITY, meaning of note, § -4 See Exclusive Grants. EXCLUSIVE PRIVILEGES, meaning of note, § -4 See Exclusive Grants. EXECUTION, exemption from; corporation grantee of municipal waterworks; obligation of contracts § -^26 EXEMPTIONS, from legislative repeal; obligation of contract § 325 from execution; corporation grantee of municipal waterworks; obligation of contract » -^J^ street paving assessments; consolidation § •^•^^ in charter; modification of; acceptance of § '^-^^ State cannot impart to its ofliccrs immunity from responsibility to Federal authority • • • ■ ""te (p. 700), § 41-G from taxation; whether transferable • §§ 479-485 See Obligation of Contracts; Rate Regulation; Taxation. EXPERT TESTIMONY', rate regulation; excessive pcnallics; rcrixHiy in equity note (p. 701), §416 effect of, in determining value of property as basis of reasonable- ness of rates Appendix C (pp. 991, 999) 1050 INDEX EXPRESS COMPANIES, are " common carriers; " statute § 74 nature of; as partnership; as public use; as common carrier; dif- ferent from railroad companies § 79 when do not carry on purely private business § 79 included under "railroad;" public Utility Act § 104 license, etc., tax § 358 additional franchise tax § 427 EXPROPRIATION, statutes; sufficiency of title § 247 obligation of contracts §§ 332, 333 See Eminent Domain. EXTENSION, of franchise: obligation of contract § 330 F. FAIRMONT PARK, power of park commissioners to grant franchise to passenger rail- way in note, § 14 FALSE BILLING, by carrier or shipper. See Public Service Commissions Law; Public Utility Law. FARES, right to, distinguished from other franchises of corporation. ... § 34 See Rate Regulation. FEDERAL, CONSTITUTIONAL AND LEGISLATIVE POWERS, source of franchise §§ 120-131 FEDERAL COURT. See Courts; Jurisdiction. FEDERAL FRANCHISE, telegraph company; effect of attempted grant of municipal fran- chise § 48 See Taxation. FEDERAL GOVERNMENT. See National Government. FEES. See Public Service Commissions Law; Public Utility Law. FERRIES, franchise; definition of note, § 15 meaning of word note, § 24 right to keep, is publici juris note, § 15, note, § 63, § 80 nature of ferry franchise; public, private, quasi-public use § 80 right to maintain, etc., public, is franchise § 15 INDEX 1051 FERRIES— Continued : franchise consists of what note, § 15 franchise is privilege to take tolls, etc note, § 15 right to tolls is franchise §1" franchise is derived from Crown or State note, § 15 right to establish was royal prerogative § 122 legislative grant necessary § 144 franchise, charter or prescription necessary note, § 15 franchise; prescription § 133 no private person can establish, and collect tolls without au- thority note, § 17 no franchise required for private ferry § 15 franchise extends beyond landing places note, § 15 only a substitute for bridge note, § 15 franchise, bridge franchise is of same nature as § 15 is not a railroad ^ note, § 15 as part of railroad corporation; statute § 104 and railroad franchises may be granted to one corporation. . note, § 15 landings, exclusive privilege note, § 24 exclusive grants for are grants of franchises of public character, note, § 63 franchise when not exclusive § 24 not land or incorporeal hereditament § 26 franchise, nature of as property note, § 26 franchise partake of nature of, though not strictly real estate, note, § 26 right to maintain when a mere license or gratuity and not a con- tract H^ receive franchises upon consideration of public service. . . . note, § 63 franchise to middle of a river between States § 144 franchise; power to grant may be delegated § 148 power of county commissioners' court to license § 178 extent of power to establish; county commissioners § 194 power of county court to grant or refuse ferry franchise § 178 power of town to grant franchise for § 195 franchise when county authorities only can grant § 195 refusal of court to interfere with grant of second ferry franchise. §184 license by city • ^ l'^" when power cannot be delegated to municipal council to license, 8 1 OQ regulate, etc ^ * ' powers of police juries over s -o' strict construction of grant against grantee § 255 franchise of; rule of strict construction not strictly applicable. . § 257 and bridges; separate grants of franchises; rule of construction. . § 258 obligation of contracts § 34 ^ additional franchise tax » ^'^' regulation of fares and tolls. See Rate Regulation. regulation and control of. Sec Regulation and Control; Taxaticni. 1052 INDEX FINCH, definition of franchise by § 1 FINDINGS, practice; reasonablneess of rates § 409 See Public Utility Law. FIRE ENGINE COMPANY, is quasi-municipal corporation § 81 within provisions of Civil Service Law § 81 FIRE INSURANCE. See Insurance Companies. FISCAL COURT, delegation of power to; subdelegation to county judge; subscrip- tion to stock of railroad company § 175 FISHERY, right, as franchise § 21 FORECLOSURE, sale under, of railroad; what franchises pass sale § 30 See Mortgage, proceedings; receiver cannot destroy corporation's rights to use of streets obtained by consents of abutting owners § 33 purchasers at sale; reorganization; obligation of contracts § 329 FOREIGN AND INTERSTATE COMMERCE. See Interstate Commerce. FOREIGN ASSOCIATION, held a corporation § 52 FOREIGN CORPORATIONS, division into § 57 franchise of; generally § 13 State may debar § 13 State may exclude foreign corporations or impose conditions on them § 87 certificate of authority as franchise § 13 power to acquire lands note, § 12 condition that suit shall not be removed into Federal courts. ... § 355 constitutional prohibitions as to, self-executing § 226 constitutional provisions as to, when not self-executing § 227 partial invalidity of statute imposing conditions § 235 status of foreign railroad corporation; "act to incorporate," note, § 244 status of; "act to incorporate;" title of act; railroad company note, § 245 sufficiency of title to statutes § 247 conditions imposed upon; rule in pari matTia § 266 license tax; state court decisions; Federal question § 277 INDEX 1053 FOREIGN CORPORATIONS— Continued: state decision that they have no corporate existence in State, does not involve Federal questions § 281 statute as to situs of stock for taxation not repealed by implica- tion by omission of from compiled code § 285 granted all rights and privileges possessed by it in State of in- corporation, does not grant privileges not within constitution of granting State § 286 construction of Bush Act § 286 conditions as to amount of capital stock § 291 specific tax upon may be imposed when no discrimination § 291 actions between prohibited; privileges and immunities of citizens. § 293 prohibited from suing on claim to assignee; obligation of con- tracts § 306 conditions; power of States as to §§ 351-362 situs of; interstate comity > § 351 See Taxation. FOREIGN STATE OR COUNTRY, statutes derived or adopted from; construction of § 269 FORFEITURE, when street railway franchises may be lost by forfeiture § 31 corporations cannot neglect or refuse to perform public duties note, § 63 See Alienation. of franchises; quo warranto; validity of statutes § 230 clause of; how construed § 286 revocation of license; obligation of contracts § 336 legislative power as to § 485 judicial determination of; quo warranto; state officials; ipso facto forfeiture § 486 courts reluctant to adjudge forfeitures and will proceed with caution § 487 abuse, misuser or nonuser of corporate powers § 488 nature and extent of misuser or nonuser justifying forfeiture. ... § 489 when franchise will be forfeited; instances § 490 when franchise will not be forfeited; instances § 491 See Dissolution. FOURTEENTH AMENDMENT, generally §5 294-295 does not deprive State of police power 5 295 power to alter or amend franchise or charter § 320 FRANCHISES, rights may be taken for public necessity on compensation 5 26 valuation of; gas rates; reason a bleness 5 •^•^''2 expiring at different times; obligation of contract § 330 1054 INDEX FRANCHISES— Continued: additional franchise tax § 427 See Definitions. FRANCHISES; ENUMERATION OF §§ 10-21 appointment § 21 attorney or counsellor § 21 banking § 18 bridges § 15 canals § 15 "commodities" § 21 common carriers; railroads; street railroads § 14 corporations; what franchises are embraced generally § 12 corporations generally; members' rights; membership; corporate name; municipal corporations; "public franchise" § 11 corporations; foreign corporations; generally § 13 counsellor at law or attorney § 21 "elective franchise" or freedom § 21 "elective suffrage" § 21 electricity; right to supply § 16 eminent domain § 19 exemption or immunity from jury duty § 20 exemption or immunity from working on public roads § 20 exemption or immunity from taxation § 20 fares; right to § 17 ferries § 15 fishery § 21 foreign corporations; generally § 13 gas; right to supply § 16 insurance § 18 liquor license § 21 membership in corporation § 11 municipal corporations §11 name of corporation §11 "news contract" § 21 patent right § 21 political rights; "elective suffrage;" "elective franchise" or free- dom § 21 professor's appointment § 21 "public franchise" §11 public market § 21 public office; attorney or counsellor; right to preside; appointment of professors ' § 21 railroads § 14 rates; right to § 17 right to preside § 21 right to supply gas, water, or electricity § 16 right to tolls, fares, rates or wharfage § 17 INDEX 1055 FRANCHISES; ENUMERATION OF— Cbntinued: roadways § 15 street railroads §14 tolls; right to § 17 trade-mark §21 water; right to supply § IG wharfage; right to § 17 See Congress; Delegation of Power; Grants; Powers. FRANCHISES, NATURE OF, AND DISTINCTIONS §§22-48 granted for public not for private purposes §14 as monopoly or exclusive in nature §§ 22-24 sometimes means "exclusive right" § 24 as property § § 25-29 as personal property § 27 corporate franchises are legal estates not mere naked powers. ... § 29 franchises of members, shareholders, or corporators as prop- erty § 28 franchises essential and not essential to corporate existence; "essentially corporate franchises" § 30 "corporate powers or privileges" not franchises essential to cor- porate existence § 31 franchises and powers; to what extent distinguished § 32 franchise to be separate and distinct from property or franchise which corporation may acquire §§ 33-35 franchise to be and franchises subsequentlj'- acquired § 34 franchise and easement distinguished § 34 "personal franchise" distinguished from property franchise § 35 franchise differs from grant of land; easement; freehold § n:i general creative franchise and special franchise distinguished. . . § 37 franchises belonging to corporators and those of corporation dis- tinguished § 3S franchise of itself alone is of no value note, § 39 franchise only of value in connection with its use note, § 39 franchise to be and to carry on business distinguished; "corporate franchi.se or business" § -^9 "corporate franchise" distinct from franchises which corporation may exerci.sc § •^'' franchise distinguished from means employed in exercising it. . . . § 40 charter and franchises; to what extent distinguishod; how extent of powers is a.scfrtained §§ 41-4(j charter and franchise; distinctions; where franchise does not take effect before actual formation of corporation 5 43 when right to supply water, not strictly a "corporate franchise". . § 44 charter and franchi.se; distinctions; diarter rights and i)riviieges derived through organization; "additional franchise or privi- lege " acquired after incorporation § 11 charter and franchise; distinction exists 5 ■^•'> 1056 INDEX FRANCHISES, NATURE OF, AND DISTINCTIONS— Continued: charter and franchise; "charter" as synonymous with "fran- chise" § 46 whether certain grants constitute a Hcense, privilege, permission, gratuity or contract; and not a franchise §§ 47, 48 "secondary franchises" in streets § 48 as affecting power to ahenate § 462 are property Appendix C (p. 986) distinct. See Person. FRANCHISES, SOURCE OF, Federal, constitutional and legislative powers §§ 120-131 state, constitutional and legislative powers §§ 132-146 FRAUD, corporation formed to accomplish; no excuse that corporation and corporators have separate existence note, § 38 elections in corporations; sufficiency of title to statute § 247 FREEHOLD, franchise differs from § 36 FREEMAN, of corporation as franchise note, § 21 FREIGHT, tracing lost; regulation of commerce § 378 taxation of; regulation of rates § 404 FREIGHT CARS, delegation of power to American Railway Association; regulation of height of draw-bars, etc § 154 FREIGHT COMPANIES, are "common carriers"; statute § 74 within Public Utility Act § 104 FREIGHT-LINE COMPANIES, are "common carriers "; statutes § 74 within Public Utility Act § 104 G. GAS, right to dig up streets to supply, is franchise § 16 right to lay pipes in streets, is easement rather than franchise. . . § 47 individual may manufacture and sell without sovereign grant, note, § 16 statute as to, when does not include electric lighting § 23 certificate of authority as prerequisite to enable village to supply for private lighting § 160 INDEX 1057 GAS — Continued : rates; rule governing validity of statutes fixing rates Appendix C (pp. 985, 986) See Rate Regulation. increased cost of; basis of rate regulation Appendix C (p. 1001) See Commission of Gas and Electricity. GAS AND ELECTRIC COMPANY, right to maintain certain location in street; prescription § 133 GAS COMMISSION, order of void when statute appointing is unconstitutional Appendix C (p. 990) of New York; statute unconstitutional Appendix C (p. 990) GAS COMPANIES, consent of town authorities to use streets; when franchise § 48 receive franchises upon consideration that public convenience will be served note, § 63 rate may be fixed at less than specified in statute, for gas § 82 See Rate Regulation. exclusive right to supply gas is grant of franchise § 82 See Exclusive Grants. of public nature; public service corporations § 82 right to use streets; county commissioners' authority § 178 grant of right in streets to, by municipalily § 185 consent of local authorities to use of streets, etc.; statute § 187 consolidation and merger; sufficiency of title of statute § 245 strict construction of grant against grantee § 255 right to u.se city streets; obligation of contracts § 313 amendment of charter; obligation of contracts § 325 obligation of, to do certain things, even though evidence may in some matters impair obligation of contract § 336 rights in streets § 344 gas franchiise; licen.sc, etc., tax § 361 regulation of; police power § 388 basLs of rates; method of valuation § 392 regulation of rates; method of valuation § 392 See Alienation; Eminent Domain; Natural Gas Companies; Rate Regulation; Taxation. GAS LIGHT COMPANIES, right of to lay conductors, etc., in street is properly note, § 26 GAS PRESSURE, requirement; con.stitutional law Appendix C (p. 987) GENERAL ASSEMBLY. See Powers. GENERAL FRANCHISES. See Definitions. 67 1058 ' INDEX GENERAL LAWS, reservation of power to alter, etc.; obligation of contracts § 324 See Statutes. GOOD WILL, as element of value; gas rates; regulation § 393 GOVERNMENT, department of §§ 120, 135 aid to railroads and telegraph companies § 129 GOVERNMENTAL POWERS. See Powers. GOVERNOR, appointment of commission by § 160 GRAIN, arbitrary decision of umpire as to weight of; due process of law § 299 regulation of rates for elevating, storing, etc., public warehouses § 391 GRAIN AND WAREHOUSE COMMISSIONS, delegation of power to § 161 GRAIN ELEVATORS, and warehouses; police power of State; Fourteenth Amendment § 295 GRAIN WAREHOUSES, regulation of police power of State; Fourteenth Amendment. ... § 295 "GRANTED LANDS," in Land Grant Acts in aid of railroads construed § 241 GRANTS, of franchise strictly construed § 23 whether license, privilege, permission, gratuity or contract and not a franchise; distinctions § 47 may be a mere gratuity conferring only a privilege § 47 immaterial whether made through legislative agency or by legis- lature § 48 ■ implied condition in, to corporations note, § 63 power to make formerly vested in crown but on severance of colonies vested in people § 122 or source of franchises; governmental or legislative powers; generally § 122 power of Congress to establish corporations; generally § 123 power of Congress to grant additional franchises § 124 power of Congress over franchises of state corporation; interstate commerce; generally § 125 by Congress; incorporation of banks § 126 by Congress; bridge corporation; bridges; commerce § 127 by Congress; railroads § 127 by Congress; bridges § 127 INDEX 1059 GRANTS— Continued : of railroad franchises; state railroad; Federal franchises; merger. § 129 powers of Congress to charter savings institutions in District of Columbia § 130 source of franchise or charter; legislative grant necessary. . §§ 132-133 source of franchise; state, constitutional and legislative powers §§ 132-146 test of legislative power to grant franchises § 134 corporation created by Territory follows it into Union § 139 legislative action when necessary to give effect to constitutional grant § 140 of rights to telegraph and telephone companies by Constitution; when not self-operating § 140 refusal of franchise by subordinate body § 140 legislative power to grant implies power to refuse franchises. ... § 140 of franchises; consent of subordinate body unnecessary to exer- cise of power by legislature § 141 of additional franchises; amendments; legislative power § 143 legislative grant necessary; roads, highways, bridges, ferries; gen- erally § 144 ferry franchise to middle of river between two States § 144 of bridge franchise, by State; power of Congress to interpo.se. ... § 145 of franchises may be made through lawful delegated agencies. ... § 147 See Powers, Delegation of. of right to mine; delegation of power to board of agriculture to grant or refuse § 156 by county commissioners of right to lay gas pipes in streets. ... § 178 of ferry franchise; river between two counties; jurisdiction of courts § 1 78 of ferry franchise or license by courts § 178 to street railway by ordinance; when court cannot restrain § 184 refusal of court to make to railroad; administrative discretion; Circuit Court will not interfere § 184 of franchise by State; to what extent municipal consent neces- sary § 187 of franchi.se by State, to what extent subject to municipal consent for exercise § 187 may be made directly by State or through subordinate agencies. § 187 to railroads; delegation of power to cities; restrictions imposed. . § 187 right to amend municipal charter as to grant of franchise not a delegation of legislative power to people § 189 or refu.sal of use of electrical conduits § 191 by board of estimate and apportionment; transfer of power from another board; cumulative voting § 192 lighting plant ordinance of town tru.stees invalid, ()])ligation of town coa.ses § 198 of town ; when may be by resolution § 198 right to construct drawbridge § 198 1000 INDEX GRANTS— Continued: to turnpike company by board of supervisors; effect of § 199 of lighting franchise by highway commissioners § 200 pohce juries; ferries, bridges and roads § 201 constitutional requirement that bids be received is self-executing. § 226 of francTiises; construction against grantee §§ 254-256 separate, of franchise; rule of construction § 258 separate grants of franchises, construction of § 258 permission granted street railway companies to occupy other streets, not a new franchise § 286 as gratuity confers, not chartered rights § 306 implied reservation of right to modify § 323 modifications of, new franchises, additional powers, etc.; accept- ance of §§ 348-350 implied acceptance; presumption; evidence § 350 in aid of railroad companies. See Railroad Companies. See Condition Precedent; Delegation of Powers; Exclusive Grants; Land Grants; Municipality; Powers; Statutes. GROSS RECEIPTS. See Taxation. GUARANTY OR SECURITY COMPANY, franchise tax § 437 H. HABEAS CORPUS, refusal to discharge Attorney General when committed for con- tempt; refusal to comply with order enjoining enforcement of rate regulation statute note (p. 701), § 416 HARBOR COMPANIES, receive franchises on consideration of pubHc service note, § 63 HAWAII, telephone system in; act of Congress note, § 130 HEAT, exclusive privilege to supply; construction of statute § 23 HEATING CARS, regulation and control; railroads § 385 HEATING COMPANIES, nature of, as corporations, etc § 76 when "manufacturing; " when not §§ 77, 78 within "Public UtiUty" Law Appendix B (§ 1, p. 941) See Heat, Light and Power Companies. HEATING CORPORATION, not a pubhc or quasi-public corporation § 85 INDEX 1061 HEAT, LIGHT AND POWER COMPANIES, ordinance granting franchise and making contract with; when void § 195 ordinance granting franchise and making contract with; void parts inseparable § 235 HEREDITAMENTS, franchises as § 25 right of sharehold3rs in railroad an incorporeal hereditament.. . § 28 HEWITT ACT, banks; obligation of contract § 339 HIGHWAY COMMISSIONERS, delegation of power to; grant of lighting franchise § 200 powers as to toll roads. § 200 HIGHWAYS, public bridge as part of note, § 15 no private person can establish, and charge tolls without author- ity note, § 17 turnpike companies as note, § &3 railroads as public highways § 107 county supervisors no authority to grant franchise to collect tolls on free § 116 turnpike road as § 117 railroad bridges crossing; delegation of power to courts of equity. § 172 when Circuit Court of city no power to grant charter to obstruct § 176 right to take tolls on conferred by board of supervisors § 199 or roads; powers of police juries over. § 201 See Streets. "HORSE AND STEAM RAILROADS," embrace electric railways § 241 HOSPITAL CORPORATION, when a public, when a private corporation § 86 HUDSON RIVER, no exclusive right of fishery in § 21 I. "IMMUNITIES," in constitution § 9 defined. . .■ note, § 9 See Alienation; Exclusive Immunity; E.xcmptions; Taxation. INCORPORATION, di.stinction between, and corporation § (iO sufficiency of title to statutes § 247 See Corporations. 1062 INDEX INCORPOREAL HEREDITAMENT, when right to use streets under contract with city is § 14 franchises classed as § 26 See Hereditament. "INDEMNITY LANDS," term construed § 241 INDIAN TERRITORY. See Territories. INDICTMENT, for unlawful discrimination in transportation of passengers; effect of repeal and re-enactment of statute § 284 INJUNCTION, suit to raise question of property; right to, of street railway; ex- clusive right to operate, etc., is property entitling company to suit note, § 26 suit against bridge; power of Congress to declare it a lawful structure § 128 when taxpayer may sue to restrain construction, etc., of lighting system by village § 160 when court cannot restrain grant by ordinance to street railway, § 184 against operating ferry, and from interference or competition. ... § 186 police juries' right to restrain operation of ferry on bridge near toll bridge § 201 gas rates § 392 suit by stockholders note (p. 699), § 416 confiscatory rates note (p. 699), § 416 criminal case or proceedings; jurisdiction of Federal courts note (p. 700), §416 to prevent state officer from enforcing unconstitutional statute note (p. 700), §416 State not restrained note (p. 700), § 416 against state court violative of whole scheme of government note (pp. 700, 701), §416 See Equity. INJURY, to persons or property; protection against; regulation and control. § 382 INSANE PERSONS, may be excluded by sleeping-car companies § 109 INSOLVENCY, and winding up of corporation; equity; statutes valid § 230 of corporation; rights of creditors who are citizens of other States; preferences § 292 assignment of franchises of insolvent or bankrupt corporation; what passes § 475 INDEX 10G3 INSPECTION, and visitation does not make private corporation a public one. . § 62 of oil; interstate commerce § 404 INSPECTION LAW, police power; regulation of commerce; transportation of cattle §§372,373 INSPECTORS, board of, power to appoint is franchise §21 INSPECTORS OF COAL MINES, delegation of power to § 162 INSURANCE, business as franchise § 18 delegation of power to commissioner of § 157 duties in matters of, may be devolved upon Secretary of State. . § 157 delegation of power to bureau of, superintendent or commis- sioner of insurance § 163 statute allowing certain subordinate agencies to prescribe form of standard policy unconstitutional § 163 State may prescribe form of standard policy § 163 sufficiency of title of statute note, § 245 INSURANCE COMPANIES, how classed § 55 stock ownership as affecting character of corporation § 62 "business of public character § 8/ business of, is not commerce § 87 contract of insurance not an instrumentality of commerce § 87 not "citizens" within protection of Federal Constitution § 87 false representations as to capital stock, etc.; strict construction of statutes § 252 statute authorizing organization of mutual companies; implied re- peal of inconsistent acts § 284 law prohibiting insurance in marine insurance companies; due process of law § --'^ judgment for attorney's fees as costs against; Federal jurisdic- tion ■■• §279 requirement that attorney's fees be paid as costs; equal protection of law §§299,300 statutes prohil)iting ngreemenls among regulating ii^jjenls; com- missions and transaction of intnistatc fire business § 300 procuring insurance for resident from company not complying witl) Stat(;'s conditions; penul code § 354 foreign mutual comi)anies not authorized to do Inisiness in State; collection of assessments § -^54 requirement that life companies pay losses in certain titne § 354 requirement that returns l)e made § "^Sl 1064 INDEX INSURANCE COMPANIES— Continued: condition that fire insurance company shall not remove suit into Federal court § 355 license, privilege, etc., tax § 357 See Obligation of Contracts; I'axation. INTEREST, rate of; banks; obligation of contracts § 339 INTERPRETATION. See Construction and Interpretation of Con- stitutions; Construction and Interpretation of Statutes. INTERSTATE COMITY. See Comity INTERSTATE COMMERCE, regulation of pressure of natural gas not an interference with. ... § 83 construction of boom and works in navigable river, when not a burden on § 90 when railroad carrier's business is § 106 States cannot exclude all commercial intercourse by telegraph be- tween States § 120 power of Congress over franchises of state corporation; generally, § 125 powers of Congress over bridges §§ 127, 128 bridge as obstruction to; thereafter declared lawful structure by Congress § 128 power of Congress to grant franchises to railroads § 129 power of Congress over Territories; telegraph, telephone and rail- road companies § 130 police powers of States not affected by § 131 ferry franchise to middle of river between two States § 144 bridge corporation; bridges; navigable waters wholly within State § 145 extent of conflict of police powers with § 149 not interfered with by decree of state court requiring construction of railroad lines, etc § 167 order of state corporation commission as to delivery of cars when a burden on § 170 telegraph, telephone or long distance telephone line; conformity to state statute as to use of streets § 187 Federal courts not bound to follow state court decision as to cor- porations created by Congress for purposes of § 276 foreign corporations; Bush Act; construction § 286 foreign corporations; what is carrying on business § 354 license, etc., tax §§ 356, 358 police power § 366 foreign and; definition of; power to regulate § 367 power of States where Congress has not acted §§ 367, 368 state control of business within jurisdiction § 369 See Rate Regulation; Regulation and Control; Taxation. INDEX 1065 INTERSTATE COMMERCE ACTS, meaning of "rate" in note, § 17 object of enactments § 153 rule in jxiri materia, when inapplicable § 267 object of § 403 INTERSTATE COMMERCE COMMISSION, is a body corporate, with legal capacity to be plaintiff in Federal court § 153 delegation of power to § 156 jurisdiction and powers of § 403 not granted legislative powers § 153 power to promulgate decrees § 153 Federal Circuit Courts' powers to enforce orders of; extent of power § 1 77 process of Federal Circuit Courts to aid inquiries before § 177 INTERURBAN RAILROADS. See Street Railway Companies. INTEEURBAN RAILWAYS, included as "railroad;" Public Utility Act § 104 INTOXICATING LIQUORS, right of city to license sale, as franchise § 21 IRRIGATION COMPANIES, nature of, as private or quasi-public corporations § 88 obligated to perform their public duties § 88 obligation to furnish services at reasonable rates § 88 right of, to fix rates § 88 cannot by contract limit liability to public § 88 cannot discriminate § 8S territorial laws as to; when not invalid § 130 vested rights § 306 See Alienation. IRRIGATION DISTRICTS, as public corporations § 88 not municipal corporations § 88 may exist under supervision of local liody § 118 J. JOINT-STOCK ASSOCIATIONS, included in "corporation" under Pul)lic Service Commissions Law of New York § 52 does not include a corporation under Joint-Stock Association Law of New York § 52 when included under "electrical corporation," in statute § 76 included in "gas corporation; " statute § 82 1066 INDEX JOINT-STOCK ASSOCIATIONS— Continued: when included under "railroad corporation;" statute § 104 additional franchise tax § 427 JOINT-STOCK COMPANIES, included in term "corporations" under constitutions § 52 as partnership §§ 52, 53 when shareholders are partners note, § 52 when and when not taxable as a corporation § 52 capital stock and shares in represent what property note, § 425 JUDGMENT, of county court in granting or refusing ferry franchise § 178 of board of equalization valid until set aside by direct proceeding. § 182 for attorney's fee as costs against insurance company; Federal jurisdiction § 279 See Decree. JUDICIAL POWERS. See Names of Courts; Powers. JUDICIAL QUESTIONS. See Courts. JUDICIAL SALES, ' of franchises, etc.; what passes §§ 477, 478 effect of, as to exemptions from taxation § 480 JURISDICTION, corporations as "citizens" for Federal jurisdictional purposes. . § 67 limited partnership as "citizen" so as to give § 53 Federal question; reasonableness of rules of railroad commission, § 167 when none in courts upon questions of administrative policy. ... § 171 of appellate courts; reasonableness of rates § 174 of Federal Circuit Courts; railroad's contract rights not shown; bill dismissed § 1 ' ' of courts as to grants of ferry franchise where river between two counties § 1 '8 of Federal courts over action of taxing bodies or state agencies. . § 182 of court of visitation; telegraph and railroad companies; rule in 'pari materia § 26o of Federal courts over state court decisions § 276 of courts; State's own policy may determine § 293 foreign corporations; filing certificate; citizenship note, § 353 equity; injunction; gas rates § 392 of Interstate Commerce Commission § 403 when Federal court will take note (p. 698), § 416 commitment for contempt, when unlawful note (p. 699), § 416 Federal questions note (p. 699), § 416 when exclusive; Federal court; validity of state statute note (p. 700), §416 of Federal court in criminal case or proceeding; injunction; un- constitutional statute note (p. 700), § 416 INDEX 1067 JURISDICTION— Continued : courts should at all times be open to protect interests of railroad companies equally with others note (p. 701), § 416 of Federal court; not a question of discretion or comity Appendix C (p. 985) when It IS duty of Federal court to take. .Appendix C (pp. 985, 989) See Equity. JURY DUTY, exemption or immunity from, as franchise § 20 K. KINDS OF CORPORATIONS '§§ 68-119 See Names of. L. LAND, franchise differs from grant of land §36 franchise is not itself an interest in § 34 See Real Estate. LAND GRANT ACTS, in aid of railroads; "granted lands" construed § 241 LAND GRANTS, in aid of railroads § 129 See Railroad Companies. "LANDING," when synonymous with "levee" § 89 LAW, right to practice as franchise; Fourteenth Amendment. . . . note, § 21 when no adequate remedy; rate regulation note (p. 701), § 416 "LAWS," what arc; obligation of contracts § 305 LAY CORPORATIONS, division into 5 f,7 LEASE, power to make and take §§ 472, 47:? See Lessee; Lessor. LEGISLATIVE. See Congress; I-ogi.slaturc; .Muriirip;ilily; Ordi- nance; State; Statute. LEGISLATIVE POWERS, of Federal Government; source of franchise §§ 120-131 Sec Grants; Powers. 1068 INDEX LEGISLATURE, power to grant franchise limited in this that consideration must be based upon public consideration §14 grant from necessary to ferry franchise note, § 15 grant of, when not necessary; gas and electricity § 16 See Charter; Powers; State; Statute. LESSEES, of toll bridges or roads; powers of police juries § 201 subject to rate regulation § 405 of corporation; liability for torts and debts of § 464 See Alienation. LESSOR, corporations; liability for torts and debts of § 464 See Alienation. LEVEE, a public use § 89 when term synonymous with "landing" § 89 See Levee Districts. LEVEE BOARDS, whether public or private corporations § 89 LEVEE DISTRICTS, whether public or private corporations § 89 when not corporations but state functionaries § 89 when not a municipality § 89 authority to sue, etc § 89 power to levy tax § 89 when a state local tax or assessment district § 89 delegation of taxing power to levee district; when excluded § 164 LICENSE, whether certain grants are a, or a franchise § 47 right to liquor license as franchise § 21 by city to use streets may become a contract not revocable. ... § 47 as means of regulation of business distinguished from franchise. . § 47 to operate railroad; license defined note, § 47 or legislative grant necessary for'ferry and toll note, § 144 for ferry; delegation of power to county commissioners' court. . § 178 charge upon telephone poles as a "consideration for the privi- lege" not a license § 241 revocation of; obligation of contract § 336 condition as to license, privilege, business or occupation charge, rental or tax §§ 356-361 etc., fee; transportation and transmission companies § 427 See Obligation of Contracts. LICENSE OR FRANCHISE § 47 See Consent; Common Council. INDEX 1069 LICENSE TAX, foreign corporations; state court decisions; Federal question. ... § 277 LIENS, against railroad company; partial invalidity of statute § 235 against mining and manufacturing companies not embraced in title; act void § 245 on and sale of railroad; sufficiency of title to statute § 247 for wages of employees on corporate property; equal protection of laws note, § 300 sale under statutory; effect as to exemption from taxation § 480 See Mechanics' Liens. LIFE INSURANCE. See Insurance Companies. LIGHT, or heat; exclusi^'e privilege to supply; construction of statute. . § 23 LIGHTING. See Electric Lighting. LIGHTING COMPANIES, town trustees' ordinance; invalid grant of franchise; obligation of town to pay for lights ceases § 198 as pubhc utihties Appendix B (§ 1, p. 941) LIMITATION OF LIABILITY, railro.ads § 386 LIMITED PARTNERSHIP, when a citizen; Federal jurisdiction § 53 association when not shown to be a "citizen" by the pleading. . § 53 See Partnership. LINES, poles and wires in streets. See Streets. LIQUOR LICENSE, right to, as franchise § 21 LOAN ASSOCIATIONS, as private corporations, etc § 71 LOAN COMMISSIONERS. See Board of. LOCAL TAXATION § 453 See Taxation. LOCK, and dam; right to exact tolls is franchise § 1 7 LOCOMOTIVE ENGINEERS, examination and license of; color lilindncss; regulation (A mm- mercc; due process of law § 377 1070 INDEX LOG DRIVING AND BOOM COMPANIES, nature of affected by statute under which incorporated § 90 boom company is lawfully "chartered" corporation § 90 W'hen may exercise power of eminent domain § 90 subject to state regulation of fees or tolls § 90 rights of, in navigable rivers; non-liability to riparian owners. . § 90 construction of boom and works in navigable river when not a burden on interstate commerce § 90 LOGGING COMPANIES, not within Public Utility Act § 104 LOG ROLLING AND BOOM COMPANY, pier erected in navigable waters as part of boom for saw-logs. ... § 146 LOGS, tolls on, in river; right to collect is franchise § 17 pier erected as part of boom for, in navigable waters § 146 LONG AND SHORT HAULS. See Rate Regulation. M. MANDAMUS, power of commissioner of waterworks to contract with "lowest bidder" cannot be controlled by § 184 MANUFACTURE, liberation of natural gas from the earth is not a § 84 See Manufacturing Company. MANUFACTURING COMPANIES, classed as private corporations § 55 when electric light, heat and power companies are §§ 77, 78 when natural gas company is a § 84 MANUFACTURING CORPORATIONS, are private corporations § 91 MARINE INSURANCE COMPANIES. See Insurance Companies. MARKET, public, as franchise § 21 MARKET COMPANY, is private corporation § 92 MASTER, advantage of reference to; equity jurisdiction; rate regulation statute; excessive penalties note (p. 701), § 416 MAYOR, right to preside is franchise § 21 INDEX 1071 MECHANICS' LIENS, law specifying form of contract; due process of law § 298 MEDICAL COLLEGE, is private and not public or political corporation § 93 may become a public corporation § 93 creating act a contract § 93 MILEAGE TICKETS. See Rate Regulation. anLL, right to build on public river and collect tolls is franchise. . note, § 17 MILL ACT, giving damages for overflowed lands; due process of law § 298 MINES, delegation of power to inspectors of coal mines § 162 police power; employees; Fourteenth Amendment § 295 employees of corporations in; Eight-Hour Law; police power, note, § 298 MINING COMPANIES, liens against not embraced in title and act void § 245 MISDEMEANOR, procuring insurance for resident from company not complying with State's conditions § 354 MISUSER, of corporate powers or franchises; forfeiture §§ 488, 489 MONOPOLIES, defined note, § 22 franchise as, or exclusive in its nature §§ 22-27 monopolies not favored § 23 exclusive arrangements with single concern by railroad company when not § 97 constitutional provisions as to when, not self-executing § 227 as a factor in rate regulation Appendix C (pp. 9SG, 1001) See Contract. MORTGAGE, of franchi.sc; when does not pa.ss I)y §11 of "road and its franchises" embraces what § 12 what franchises are sul)ject to; distinctions § 30 obligation of contract; mortgaged franchise or property; pur- chaser; reorganization of corporation 5 329 power to 5 171 sale of franchises under; effect of as to exrriiption from taxation. . § ISO See Alienation. MORTGAGEES, non-resident; resident creditors; preferences 5 292 1072 INDEX MUNICIPAL ASSEMBLY, prerequisites as to consent § 379 MUNICIPAL CHARTER, right to amend, as to grant of franchises, not a delegation of legis- lative power to people § 189 MUNICIPAL CORPORATIONS, special franchises may be conferred upon § 11 as including counties and towns note, § 56 acting in capacity of private corporation §11 irrigation districts are not § 88 obligation of contracts § 310 See Municipalities. MUNICIPAL COUNCIL, delegation of power to; street railways; ferries; extent of power of city's council § 188 exercise of delegated powers to make grants; formalities § 188 delegation of power by, to city officials; track elevation; subway construction § 200 defined in Public Utilities Law Appendix B (§ 2, pp. 941, 942) See Common Council. MUNICIPALITIES, right of, to take and improve lands as park is franchise. . . . note, § 12 grant of privilege by, to railroad company is franchise § 14 authority of, to franchise for transmission of electricity § 16 right of mayor to preside is a franchise § 21 right to license or tax sale of liquors, as franchise * . . . § 21 grant by, not grant of "corporate powers or privileges" within prohibition of constitution § 31 special law authorizing it to issue bonds for waterworks; not a grant of "corporate powers and privileges" note, § 31 ordinance granting right to use of conduits in streets; property rights • § 33 privilege granted by, to telephone company; when not a charter. . § 44 grant of franchise to corporation organized under general law; effect as to "corporate franchise" § 44 consent of, as prerequisite to use of streets, etc § 44 grant of right to construct spur track connecting with street rail- road, a license, not a franchise § 47 whether grants by, are license or franchise § 47 when cannot grant franchise § 47 consent of, to use of streets § 47 grant by, invalid when no power exists in city to make it § 48 with delegated powers acts as agent of State in granting franchise. § 48 attempted grant of franchise to telegraph company; Post Roads Act; Federal franchise § 48 when no power to grant franchises § 48 INDEX 1073 MUNICIPALITIES— Continued: power to grant franchises « 4g classed as political corporation; nature of § 55 may possess certain powers in nature of private corporations. ... § 55 special franchises may be conferred in waterworks, sewers, etc.; respect to 'note' § 55 subject to absolute control of government note, § 55 right to establish, alter and abolish such corporations note, § 55 as public corporations & qi levee district not a. 89 right of, to control public markets note, § 92 rights of telegraph companies to use streets; Post Roads Act. ... § 131 when has power to grant or to refuse grant to telegraph or tele- phone companies § 140 delegation to, of police power 5 149 private lighting; certificate as prerequisite to right § IGO power of, to regulate street railways w^hen not e.xcluded by dele- gation of powers to railroad commission § 107 failure to designate route for telephone line; delegation of power to Circuit Court to do so not sustainable § 176 when legislative acts of are those of State within Circuit Court of Appeals Act x I77 failure to agree with telephone company as to construction of lines, etc.; Probate Court's power § 179 title to streets of New York are in city § 183 of New York; provisions as determination of court commissioners as to construction of street railroad not applicable § 183 to what extent subject to judicial review and control § 184 city assembly cannot be restrained by court from granting by ordinance a right in streets to street railway company § 184 right of telephone to exercise of police power as to approval of plans, etc § 1 84 delegation of power to; generally § 185 when franchise may be granted by; when not § 185 delegation of power to; ferries; bridges; rates for gas, water, street railroads § 180 use of streets of; power to "prevent" and "regulate" distin- guished § 1S7 contract as to maximum rates with city; use of streets; considera- tion § 1 S7 power of to contract for water supply § 1*^7 power of rapid transit board to contract; construction of sub- ways; city's ownership and liability; cliangc of plans § 190 delegation of power to electrical commission; elcclrit al conduits. § 191 delegation of power by, to city officials; elevation of tracks; sub- way construction § 200 delegation of power by; to what extent limited § 202 delegation by ordinance to street commissioner § 203 68 1074 INDEX MUNICIPALITIES— Continued : constitutional requirement as to bids before granting franchise are self-executing § 226 exclusive grant of waterworks franchise by; partial invalidity of. § 235 bonds; aid to railroad; construction of statute § 238 water supplied under contracts; general and specific words; statutory construction § 240 refusal of to permit laying conduits § 241 levy of tax by; strict construction of statute § 252 issue of bonds or subscriptions to capital stock; railroad aid; state court decisions; Federal jurisdiction § 276 questions as to power of, to regulate speed of trains; effect upon Federal courts of decisions of state courts § 276 construction of ordinance relating to extension of street railway franchises § 286 right to set off taxes against water rates; due process of law § 298 construction of waterworks by; taking corporation property; due process of law § 298 power to order that telephone wires be placed in conduits § 298 railroad tracks in street; city may resume control of § 298 right to lay tracks in streets of; implied reservation of right to modify grant § 323 corporation grantee of municipal waterworks; obligation of con- tract; exemption from execution § 326 power to fix water rates; obligation of contracts § 336 powers of, generally; conditions §§ 343-346 powers as to exemption from taxation § 453 See Consent; Municipal Corporations; Ordinances; Police Power; Street Railway; Streets. MUNN V. ILLINOIS, regulation of public warehouses and their charges § 391 MUTUAL INSURANCE. See Insurance Companies. N. NAME, of corporation as franchise §11 NATIONAL BANKS, taxation of; state court decision; Federal question § 277 regulation of § 389 franchise tax § 439 See Banks. NATIONAL GOVERNMENT, is one of enumerated powers § 120 distinction between limitations on powers of Federal and state governments § 121 See Powers. IXDEX 1075 NATIONAL POWERS, and state powers c I2n NATURAL GAS, liberation of, from earth, is not a manufacture § 84 transportation of; regulation of commerce § 374 NATURAL GAS COMPANIES, as public or quasi-public corporations §83 State may regulate pressure of natural gas § 83 See Alienation. cannot discriminate x 03 compulsory service required , _ 5 83 when "manufacturing" company & 84 NATURE OF FRANCHISE §§ 22-48 See Franchises. NAVI_GABLE WATERS. See Waters. NAVIGATION, right to improve, by canal is a franchise § 15 NAVIGATION COMPANIES, contract rights under act of incorporation; when may not be im- paired § 336 additional franchise tax x 427 NEGLIGENCE, of public governmental officers, when no private action lies for. . § 56 of corporations acting in quasi-public character and liability for note, § 56 liability of public, quasi-public, anil private corporations for. ... § 62 railroad company's liability for, to employees; constitutional law. § 298 of corporation causing injury to employees; liability; equal pro- tection of laws s 300 "NEWS CONTRACT," as franchi.sc 5 21 NEW YORK. See Statutes. NON-USER, of corporate powers or franchises; forfeiture §§ 488, 489 NUISANCE, bridge held a; power of Congress to thereafter declare il ,1 lawful structure § 128 o. OBIJGATION OF CONTRACTS, exclusive right to supply gas is contract § 16 franchise as grant of exclusive right and contract § 24 1076 INDEX OBLIGATION OF CONTRACTS— Continued: exercise of right of eminent domain when not violation of obliga- tion of contracts § 26 telephone company's right to occupy public streets note, § 33 right to use city streets as irrevocable contract § 47 right to maintain ferry when not a contract § 47 corporations possess many of the features of a contract. . . note, § 55 creation of medical college is a § 93 duty of Federal Supreme Court to protect constitutional con- tracts § 137 ordinance valid compelling repairs of railroad viaduct, although company relieved from making repairs § 138 bill dismissed where no contract shown by claimant railroad company § 177 to what extent state court decisions binding upon Federal courts §§278,279 impairment of obligation of contract; generally § 301 States; civil institutions of; constitutional restraints § 302 existence of legal contract; impairment; state statutes § 303 Federal question; status of party plaintiff § 304 impairment of; what are "laws;" application § 305 same; judicial acts; vested rights § 306 vested rights; amendment to effect purposes of charter; modify- ing or enlarging powers § 307 charter powers not contemplated and unexecuted; treated as license and revocable § 308 change of remedy § 309 municipal corporations § 310 charter or franchise as a contract; impairment of obligation of contract § 311 same; Dartmouth College case § 312 statutes; ordinances; delegated authority; easements in streets §§313,314 what is not a contract; when not impaired; instances §315 same; instances; railroad charter; subscription in aid of rail- road •• §316 reservation of power to alter, amend or repeal grant of franchise or charter § 317 reservation of power to alter, etc., is part of charter or contract. . § 318 reservation of power to alter, etc., and limitations thereon § 319 reservation of power to alter, etc.; Fourteenth Amendment; equal protection of the law; deprivation of property; railroad em- ployees § 320 reserved powers of Congress; amendments of charter of subsidized railroad; railroad and telegraph company; cemetery company. § 321 vested rights; conditions as affecting; reserved power of Congress; railroad grants § 322 implied reservation in favor of sovereign power § 323 INDEX 1077 OBLIGATION OF CONTRACTS— Continued: general and special laws; reservation of power to alter or repeal; quo warranto s 39^ reservation of right to repeal; exemption from legislative repeal; impairment of obligation of contracts § 325 exemption from execution; corporation grantee of municipal "Waterworks j 39g exemption; eminent domain; future legislation § 327 reservation of power to amend charters; supplementary charter. . § 328 mortgaged franchise or property; purchaser; reorganization of corporation x 393 franchises expiring at different times; extension of franchise; reservation of power to amend or repeal § 330 not impaired; consolidation of corporations; reservation of power to alter or repeal x 33^ eminent domain. § 332 same; mstances x 333 constitution; subsequently adopted § 334 police powers; regulations § 335 conditions; regulations; reserved power to alter, etc § 336 street paving by street railways; conditions and regulations § 337 same; exemption from assessment for street paving; consolidation § 338 impairment of; illustrative decisions; instances; banks; rates of interest; Pullman cars s 339 impairment of; illustrative decisions continued; tunnel; ferries; bridges; canals § 34Q regulation of water rates §§ 393 394 street railways; rate regulation § 39s exemption from taxation §§ 457-461 See Rate Regulation; Taxation. OFFICE, "public office or franchise" in statute § 9 public office as franchise § 21 right to preside, as franchise § 21 right of mayor to preside is franchise § 21 when not a franchise § 21 of alderman when not a franchise note, § 21 attorney or counsellor docs not hold an, but exercises franchise. . § 21 OFFICERS, power to appoint board of inspectors is franchi.so § 21 president of county bf)ard, franchi.se not conferred on § 21 negligence of private governmental; private action for § r)6 visitation and inspection Ijy pui)lic officials does not make private corporation a public one § 02 See State Officers. OIL, inspection of; interstate commerce § 404 1078 INDEX "OPEN BOARD OF BROKERS," membership in as franchise ..: §11 OPINION EVIDENCE. See Expert Testimony. ORDINANCES, grant by, to railroad is franchise § 14 does not create taxable franchise of telegraph company. ....... § 16 granting rights to use of conduits; property rights of grantees. . . § 33 when grant by, is and is not franchise § 48 only intended to regulate; when not franchise granted thereby. § 48 may require compulsory service by natural gas companies § 83 lawful, if enforced so as to work discrimination, Avill be invalidated by courts § 137 valid which requires railroad viaduct to be repaired, notwith- standing contract relieving railroad from repairs § 138 regulating street railways, when may be enacted, although rail- road commission exists § 167 grant by, to street railway; power of court to restrain § 184 approved by electors; validity of; not aided when unreasonable, etc §195 of town trustees granting lighting franchises invalid; obligation of town to pay for lights ceases § 198 for track elevation; subway construction § 200 delegation by, to street commissioner. § 203 granting franchise and making contract with heat, etc., company; void part inseparable § 235 partial invalidity of; terms of waterworks franchise § 235 "track;" "track or tracks" in construction § 241 when incorporated as part of charter § 243 relating to extension of street railway franchise; construction of. . § 286 requiring street railway to accept transfers; due process of law clause violated § 299 whether a "law" under obligation of contract clause § 305 obligation of contract § 313 granting extension to street railway companies; franchises expir- ing at different times; contract obligations § 330 See Common Council; Resolution. "OTHER APPLIANCES," street railroads; term construed § 241 "OTHER STREET RAILWAYS," in statute construed § 241 P. PACIFIC RAILROAD COMPANIES, franchises conferred by Congress § 129 INDEX 1079 PACIvTNG HOUSES, license, etc., tax § 361 PALACE CAR COMPANIES, additional franchise tax. . .- § 427 PALACE CARS. See Sleeping-Car Companies. PARI MATERIA, statutes in. See Construction or Interpretation of Statutes. PARISHES, as public corporations § 61 PARK, right of city to take and improve lands for, is franchise. . . . note, § 12 street railway in; power of park commissioners to grant franchise note, § 14 See Yellowstone National Park. PARK ASSOCIATION, when a private corporation § 94 PATENT RIGHT, as franchise § 21 PENAL CODE, procuring insurance for resident from insur-ince company not complying with State's conditions § 354 PENAL STATUTES, construction of § § 252, 253 rulings as to, in state courts; effect of, in Federal courts § 280 PENALTIES, actions for; railroad commission's powers § 167 constitutional provisions as to, when not self-executing § 227 right of legislature to remit § 2S6 regulation of gas rates § 302 defense to action for; rate regulation §'110 excessive; railroad rates § 410 so enormous as to prevent resort to courts; equal protection of law; Federal question note (p. 099), § tlO when void; other parts of statute may be valid Appendix C (pp. 987, 1002) PENNSYLVANIA COLLEGE CASES § 331 PARK COMMISSIONERS. See Commissioners. PARTIES, status of party plaintiff; Federal question; obligation of con- tracts , § 304 state officer as defendant; joinder note (p. 700), § 416 lOSO INDEX PARTNERSHIP, joint-stock companies § 52 shareholders in joint-stock associations; considered as. . . . note, § 52 whether joint stock is a § 53 building and loan associations as § 71 when included under "electrical corporation" in statute § 76 express companies a species of § 79 included under "gas corporations; " statute § 82 when included as "railroad corporation;" statute § 104 PASSENGERS, right to carry, on railroad, is franchise § 14 taxation of; regulation of rates § 404 PATENT, when franchise not involved in connection with right of appeal. . § 36 PERMITS, from county commissioners for use of streets § 194 See Consent. PERSON, right to build, etc., a railroad may be enjoyed by natural person. . § 14 right of natural person to engage in corporate business, to build railroads, etc § 30 right of any person, natural or artificial, to carry on business not necessarily a franchise § 32 to what extent corporations are § § 60, 64 corporations as, under statutes § 65 commonwealth not a note, § 65 private corporation is under statutory remedy for usurping, etc., "any franchise" § 16 PERSONAL ESTATE, valuation of as basis of rate regulation largely matter of opinion Appendix C (pp. 986, 991) PERSONAL PROPERTY, franchise as § 27 rails and other materials of street railway embedded in street as note, § 33 PIERS, right to construct and receive tolls for use is franchise § 17 as a structure not a franchise § § 17, 34 erected as part of boom for saw-logs differ from wharves, etc., made to aid navigation and from piers for railroad bridges. ... § 146 erected without authority in navigable waters; unlawful struc- ture; owner's liability § 146 PIKE. See Streets. INDEX 1081 PIPE-LINE COMPANIES, cousent of local authorities to use of streets, etc § 187 additional franchise tax x 427 PLANK ROAD COMPANIES. See Turnpike Companies; Toll Roads. PLANK ROADS, nature of right; easement; franchise; public duty § 95 "PLANT," in charter of electric light, etc., company construed § 241 PLAT, when incorporated by reference in railroad grant § 243 PLEADING, when "limited partnership association" not shown to be a "citi- zen" §53 POLES AND WIRES, charge upon telephone poles as a "consideration for the privi- lege" not a tax or license J 241 included in term "plant" § 241 of electric companies. See Streets. POLICE JURIES, delegation of power to; ferries, bridges and roads § 201 POLICE POWER, railroad companies subject to reasonable police regulations, note, § 97 statute fixing charge for elevating, storing, etc., grain is within. . §113 extent of J 131 of State; telegraph companies; Post Roads Act § 131 exercise of, subject to judicial review § 137 neither State nor subordinate agency can permanently divest itself of, by action or inaction; waiver § 138 reserved to States; must be exerci.sed in subordination to constitu- tion and powers of national government § 149 delegation of § 149 and Federal Constitution 5 149 essential qualities of; embraces what § 149 Fourteenth Amendment; when docs not limit subjects for exor- cise J 1 JO right of telephone company to its exercise as to approval of plans, etc { 1 S 1 of State; legislative discretion; extent of judicial interference or inquiry' §181 of cities over franchise of tel(;phone company § 187 Eight-Hour Law; mining employees of corporations note, 5 298 regulation; obligation of contracts § 335 1082 INDEX POLICE POWER— Continued: railroad crossings at new streets at company's expense § 346 requirement that returns be made by insurance companies § 354 imposing new conditions § 362 extent, nature, and definition of note, § 366 regulation and control § 366 regulation of public warehouses and charges § 391 See Delegation of Power; Regulation and Control. POLITICAL CORPORATIONS. See Corporations. POLITICAL INSTITUTION, corporation as a 8 60 POLITICAL RIGHTS, as franchise § 21 POST ROADS ACT, taxation of telegraph company § 16 extent of authority granted by; telegraph companies § 131 hostile state legislation; telegraph companies § 131 permissive only 8 131 See Statutes. POST-ROUTE, what it includes as to bridge § 128 power of Congress to declare bridge a post-route § 128 POSTS, and lines in streets. See Poles and Wires; Streets. POWER COMPANIES, nature of, as corporations, etc § 76 when property of, is devoted to public use § 76 when "manufacturing;" when not §§ 77, 78 as public utilities Appendix B (§ 1, p. 941) POWERS, franchises not mere naked powers, but vested legal estates § 29 and franchise; to what extent distinguished § 32 of corporation; how ascertained § 42 of corporation; resort to charter necessary to ascertain § 45 municipality when no power to grant franchises § 48 Federal, constitutional and legislative; source of franchise. . §§ 120-131 national and state; generally § 120 distinction between limitations on powers of Federal and state governments § 121 grants or source of franchises; governmental or legislative powers; generally § 122 implied powers; creation of corporation § 124 power to create corporations distinct from power to make war, levy taxes, or regulate commerce. note, § 124 INDEX 1083 POWERS— Continued: of Congress over franchises of state corporation § 125 of Congress; bridge corporation; bridges; commerce § 127 of Congress to declare bridge lawful structure after being held a nuisance; or after injunction suit; post-route § 128 of Congress; grants of franchises to railroads § 129 of Congress to charter savings institution in District of Columbia. § 130 of national government; police power of State does not neces- sarily encroach upon § 131 source of franchise; state, constitutional and legislative powers §§ 132-146 of government; distribution and division; legislative, executive and judicial department § 135 grants of franchises, etc.; what matters exclusively within legis- lative discretion; power of courts • § 136 of State to legislate as to corporations on high seas § 137 governmental power; every presumption in favor of continuance of § 138 abdication or surrender of essential or. distinctive legislative powers § 138 of legislature not exercisable to bind future legislatures § 138 waiver; encroachments on sovereign powers; exercise of fran- chises; acquiescence in § 138 no department of government can abdicate or resign its distinctive powers to another department ^ . . . § 138 of state legislature; limitations upon. § 138 exemption from exercise of power; when presumption against.. . § 138 extent of legislative powers of Territories § 139 consent of subordinate agency or body unnecessary to exercise of power by legislature §1-11 of legislature; grants of additional franchises; amendments § 143 of Congress over bridge franchises § 145 of Congress; navigable waters within a State; bridges. , § 145 of State over bridges; bridge corporation § 145 of States over foreign corporations §§ 351-362 of States to act where Congress has not acted; interstate com- merce §§ 367, 368 of Interstate Commerce Commission ; • I • ,• ^ "^^'^ non-user of legislative ,• . ; •■ -j. § 405 to exempt from taxation; state, municipality and bo^fd of iussess- ment 4, • -.r •'■ § '^-''^ surrender of power of taxation; presumptions; statutory con- struction 5 '**'" legislative power; forfeiture of franchi.se ,. • . . § 485 See Alienation; Congress; Constitutional Law; Corporations; Delegation of Power; Crants; Municipality; ()l)iigation f)f Con- tracts; Police Power; Regulation and Control; Rate Regulation; Taxation. 1084 INDEX PRACTICE, findings; reasonableness of rates § 409 PRESIDENT, delegation of power to § 151 of county board, franchise not conferred on § 21 PRESCRIPTION, or charter necessary to ferry franchise note, § 15 franchises held by § 122 ferry franchise § 133 franchise or charter held by § 133 PRESSURE, of natural gas; State may regulate § 83 PRESUMPTIONS, that statute constitutional § 231 as to corporations being composed of citizens of State of creation note, § 291 that rates fixed by legislative action are reasonable § 408 state rate statute -prima facie valid and burden on carrier to prove contrary note (p. 701), § 416 that all property subject to taxation; surrender of power of; ex- emption from § 455 legislative authorization; alienation of franchises; construction of statutes § 467 PRIMARY FRANCHISE, of corporation; what is § 8 PRIVATE CORPORATIONS, municipalities may possess certain powers in the nature of § 55 distinct in that object for emolument of members note, § 55 corporators of in one sense trustees note, § 55 as quasi-public corporations, when authorized to carry on certain works § 56 effect of ownership of stock in determining whether public or pri- vate corporation § 60 distinguished from public corporation §§ 60-62 defined and distinguished from others §§ 61-62 not made public one by beitig subject to visitation and inspection § 62 liability for negligence § 62 what corporations, etc., are and are not §§ 68-119 See Name -of. "PRIVILEGES," in constitution § 9 meaning of exclusive privilege note, § 24 See Definitions. INDEX 1085 PRIVILEGES AND IMMUNITIES OF CITIZENS, in the several States §§ 291-293 of United States x 296 PROBATE COURTS, delegation of power to; use of streets for telephone lines; power as to construction j I79 PROCESS, of Federal Circuit Courts to aid Interstate Commerce Commission § 177 service of; foreign corporations; conditions imposed by State § 353 PROFESSOR, appointment of; right to, as franchise. . . § 21 PROFITS, "excessive" or "enormous;" value of property; rate regulation Appendix C (p. 995) PROPERTY, corporate right to acquire and sell land is note, § 12 right of corporation to hold, is franchise § 32 or franchises which corporation may acquire, distinct from fran- chise to be § 33 rights of telegraph, telephone and electric light companies to use conduits § 33 consent of abutting owners to use streets; when creates rights of. . § 33 corporate property and capital stock distinguished note, § 425 franchises of public service corporations are Appendix C (p. 986) "PUBLIC COMPANIES," when railroad companies are , § 98 PUBLIC CORPORATIONS, and their nature and class note, § 55 quasi-public corporations as subdivisions of § 56 includes board of chosen freeholders note, § 58 distinction between and private corporation § 60 ownership of stock as determining whether public or private cor- poration § 60 quasi-public and private corporations, distinguished § 61 power of legi.slature over, to impose modifications, etc note, 5 (il private corporation not made public one by being suljject to visita- tion and inspection I 62 liability for negligence § 62 what corporations, etc., are and arc not §§ 68-1 19 Sec Names of. PUBLIC FRANCHISE, in statute as to usurping office or franchise § 9 of city to take possession of park §11 1086 INDEX PUBLIC FUNDS, . grant of right to receive portion of, not exclusive franchise, etc. note, § 24 PUBLIC IMPROVEMENT, grant to construct; monopoly not implied § 22 PUBLIC LAND GRANTS, strict construction against grantee § 256 PUBLIC LANDS, and aid to railroads note, § 129 PUBLIC MARKET, as franchise § 21 PUBLIC MARKETS, right of city to control note, § 92 See Market Company. "PUBLIC OFFICE," or franchise in statute; what is § 9 as franchise. ; § 21 PUBLIC SERVICE COMMISSION, delegation of power to • • • • § 166 PUBLIC SERVICE COMMISSIONS LAW, of New York; term corporation includes what § 52 (Appendix A, pp. 878-937) classification of statutes § 59 "electrical corporation" in; includes what corporations, etc § 76 "common carrier" includes what corporations; etc.. .... . . '. ; .... § 74 "gas corporation" in, includes what corporations, etc § 82 public service commissions; general provisions ' Appendix A _(pp. 880-894) short title '.'.'. .'.[.',. !.'.'... .. .p. 880 definitions ■ • ,• i ........ p. 880 public service districts p. 882 commissions established; appointment; removal; terms of office p. 882 jurisdiction of commissions. ..... .'. . . . . .'.' p. 883 counsel to the commissions ". p. 885 secretary to the commissions. p. 885 additional officers and employees , -.■ P- 885 oath of office; eligibility of commissioners and officers p. 886 office of commissions; meetings; official seal; stationery. . . .p. 886 quorum; powers of a commissioner p. 886 counsel to the commissions; duties p. 887 salaries and expenses. . .■ . p. 887 payment of salaries and expenses. . . . .\ . : p. 888 certain acts prohibited p. 890 INDEX 1087 PUBLIC SERVICE COMMISSIONS LAW— Continued: general provisions — continued : annual report of commissions p. 890 certified copies of papers filed to be evidence p. 891 fees to be charged and collected by the commissions p. 891 attendance of witnesses and their fees p. 892 practice before the commissions; immunity of witnesses. . . .p. 893 court proceedings; preference p. 893 rehearing before commission p. 894 service and effect of orders p. 894 railroads, street railroads and common carriers Appendix A (pp. 896-906) application of article.. .- p. 896 adequate service; just and reasonable charges .p. 896 switch and side-track connections; power of commissions, .p. 896 tariff schedules; publication p. 897 changes in schedule; notice required p. 898 ^ concurrence in joint tariffs; contracts, agreements or ar- rangements between any carriers p. 899 unjust discrimination p. 899 unreasonable preference p. 899 transportation prohibited until publication of schedules; rates as fixed to be charged; passes prohibited p. 900 false billing, etc., by carrier or shipper p. 902 discrimination prohibited; connecting lines p. 902 long and short haul p. 903 distribution of cars p. 904 liability for damage to property in transit p. 904 continuous carriage p. 905 liability for loss or damage by violation of this act p. 906 powers as to common carriers, railroads and street railroads Appendix A (pp. 907-921) general powers and duties of commissions in respect to com- mon carriers, railroads and street railroads p. 907 reports of common carriers, railroad corporations and street railroad corporations p. 908 investigation of accidents p. 909 investigations by commission p. 910 rates and service to. be fixed by the commissions p. 91 1 power of conimi.ssions to order repairs or changes p. 912 power of commi.'^Kions to order changes in finic schedules; running of additional cars anrl trains p. 913 uniform system of accounts; access to accounts, etc.; for- feitures p. 911 franchises and privileges p. 911 transfer of franchi.ses or stocks p. 91 T) approval of issues of stock, bonds an 1092 INDEX PUBLIC UTILITY LAW— Continued: commission's work; rules, orders, acts and regulations of; tech- nical omissions not to invalidate P- 975 other rights of action; release or waiver; penalties cumulative. . .p. 975 rates of April 1, 1907, to govern, unless; reports thereof; proceed- ings to change PP- 975, 976 employees of commission and their compensation p. 976 appropriation P- 976 conflicting laws repealed P- 977 PULLMAN CARS. See Sleeping-Car Companies. PULLMAN CAR COMPANIES. See Obligation of Contract; Sleeping- Car Companies. PURCHASERS, liability for torts and debts of corporation § 464 Q. QUASI-CORPORATIONS, may be public or private § 61 QUASI-JUDICIAL POWERS. See Board of Equalization; Dental Board. QUASI-MUNICIPAL CORPORATIONS. as including counties, towns, school districts, etc § 56 fire engine company as a § 81 QUASI-PUBLIC CORPORATIONS, consent to use of streets by § 47 counties, towns or townships, school districts, etc § 56 term used generally to designate subdivision of public corporations § 56 defined and distinguished from public, etc., corporations §§ 61-62 liability for negligence § 62 what corporations are and are not §§ 68-119 See Names of. QUO WARRANTO, to restrain use of corporate name §11 right to operate, etc., waterworks is franchise which may be an- nulled by § 16 as remedy; unlawful exercise of rights to license sale of liquors. ... § 21 lies to test franchise right of appointment of professor of college. . § 21 lies to test franchise right of mayor of city to preside § 21 to test right to exercise franchises; statutes; validity of § 230 obligation of contracts § ^24 forfeiture of franchise § 486 R. RACE TRACK ASSOCIATION, as a private and not a quasi-public corporation § 96 INDEX 1093 RACE TRACK ASSOCIATION— Continued: as a public corporation; subject to conditions imposed by legis- lature § 96 RACING ASSOCIATION. See Race Track Association. RAILROAD ACT, of Wisconsin; title of note, § 59 See Public Utility Law. RAILROAD AND WAREHOUSE COMMISSION, delegation to; extent of powers; railroads; carriers; increase of capital stock § 169 RAILROAD BRIDGES, as public use .' § 70 as included in " bridge " § 145 removal of; power of drainage commissioners § 159 crossing highways; delegation of power to courts of equity § 172 See Bridges. RAILROAD CARRIERS. See Common Carriers; Railroad Corpo- rations. RAILROAD COMMISSION, is an administrative body § 167 power granted to when does not exclude city's powers regulating street railways § 167 delegation of power to not unconstitutional as delegation of leg- islative powers § 167 delegation of power to; Public Utility Law of Wisconsin § 168 disputed matters between it and railroad; adjudication of by Su- preme Court is judicial and not supervisorj^ etc § 1S4 statute partially invalid; separable provisions; rate regulation. ... § 214 right to create § 412 See Rate Regulation. RAILROAD COMMISSIONERS, consent reeiuired and refu.sal of to give; legislature may cure de- fect § MO consent not prerequisite to grant of franchise by State to strt-et railway § 1 67 rea.sonableness of rules and regulations § 167 delf^gation of power to § 167 extent of powers § 167 determination of necessity of certificate of f>ul)lic convenience, etc., as to railroads not sul)jecf to judicial revision § 18 1 partial invalidity of stnlute including certain property nf rail- roads for assessment for taxes . § 235 See Rate Regulation. 1094 INDEX RAILROAD CORPORATIONS, special franchise of defined § 7 franchises of, embrace what note, § 12 right to carry passengers is franchise § 14 right of to be and to build road is franchise § 14 right to receive tolls or fares is franchise § 17 rates and tolls; distinction § 17 right of shareholders in; an incorporeal hereditament § 28 what franchises of, are subject to mortgage § 30 has different franchises; rolling stock, etc., distinguished from right to take fares, etc § 34 extent of powers of note, § 42 franchise resides primarily in State; but city may act as agent of State § 48 how classed; nature of § 55 term quasi-public corporation held a misnomer when applied to. . § 56 ownership of stock as affecting classification as private corpora- tions § 62 right to exerciise eminent domain; obligations imposed by assum- ing note, §63 are quasi-public servants note, § 63 extending road into another State; not a citizen of such State note, § 67 are "common carriers; " statute § 74 rights to construct bridge not superior to public rights as to drainage § 75 distinguished from express companies § 79 as public, corporations or "public companies;" statute § 98 as private corporations § 99 misnomer to attach name "quasi-public corporation " to them. . . § 99 nature of as affected by their relation and duty to the public § 97 may make reasonable rules for the use of its property § 97 empowered to charge reasonable rates § 97 within operation of all reasonable police regulations note, § 97 property subject to burdens not imposed upon owmers of purely private property note, § 97 cannot discriminate § 97 subject to reasonable regulation and control § 97 may make arrangements granting special privileges to single con- cern as for use of hacks, etc § 97 obligated to perform duties or may be held liable in damages note, § 97 right to construct railway and take tolls is a franchise note, § 97 cannot by contract render themselves incapable of performing their duties or absolve themselves from obligations without consent of State § 97 as quasi-public corporations § 100 as forming distinct class by themselves; distinct from public, pri- vate or other quasi-public corporations § 101 INDEX 1095 RAILROAD CORPORATIONS— Continued: taxable s io2 as public use § 102 machine for unloading coal; public use; branch track § 103 test whether branch railroad track is for public or private purposes § 103 in statute includes what § 104 private railroads not within Public Utility Act § 104 railroads as public utilities; Public Service Commissioners Law; Public Utility Act § 104 as common carriers; obligations imposed § 105 when not common carriers § 105 when business within control of Congress; interstate commerce. . . § 106 railroad carriers business as part of trade or commerce; interstate commerce § 106 business of public nature and must perform service on equal terms to all § 106 state franchise not merged in Federal franchises granted § 129 pdwer of Congress to grant franchises to; interstate commerce; the Pacific railroads companies § 129 when corporation de facto under acts of Congress § 129 public lands and aid to note, § 129 Federal aid to § 129 power of Congress as to right of way for through Indian Territory § 130 relieved from making repairs, when still obligated to repair via- duct § 138 franchise; power to grant may be delegated § 148 long and short hauls; competition; Interstate Commerce Commis- sion § 153 commissioners of bridges authorization of railroads over bridges; contract does not create franchise § 158 duty of to remove bridge at own expense; power of drainage com- missioners § 159 subject to state regulation § 167 created by State; extent of power to regulate and control § 167 interstate commerce not interfered with by decree of stale court requiring construction of lines, etc § 167 delegation to Railroad and Warehouse Commission; regulation, etc., of § 169 order of State Corporation Commission to dcliv<'r cars; wlieti a burden on interstate commerce 5 170 invoking jurisdiction of Federal court under impiiirtnciit of obli- gation of contract clause and none is slK)\vn; bill dismissed, ... § 177 right to use city streets; county court's authority to grant § 178 certificate of public convenience, etc.; determination of railroad commissioners as tf), not subject to judicial revision § 184 disputed matters between it and railroad commission; adjudica- tion of by Supreme Court is judicial and not supervisory, etc.. . 5 184 grant to; delegated power to cities; restrictions imposed % 187 1096 INDEX RAILROAD CORPORATIONS— Continued : consent of local authorities to use streets § 187 extent of power of selectmen of town over conditions as to con- struction, repairing, etc § 197 constitutional provisions as to when not self-executing § 227 construction of statutes; delivery of county bonds to, in aid of. . § 228 partial invalidity of statute directing railroad commissioners to include certain property for assessment § 235 partial invalidity of statute as to hens § 235 bonds in aid of; construction of statutes § 238 land grant acts in aid of; "granted lands" construed § 241 words in statute, "for its government" imply regulation and control § 241 construction of telegraph lines along "any railroad" or "along and parallel" to railroads § 241 conflicting grants of land; undivided moiety; construction of statute § 242 reference to plat incorporated in grant to § 243 status of foreign; "act" to incorporate note, § 244 sufficiency of title to act incorporating note, § 245 sufficiency of title of statute note, § 245 lien on and sale of railroad; sufficiency of title to statutes § 247 sufficiency of title to statutes § 247 bonds in aid of; sufficiency of title to statutes § 247 grants to; strict construction of, against grantee § 255 aid grants; construction of § 256 statute providing for state board of inspection, etc., of, is reme- dial § 264 jurisdiction of court of visitation over telegraph and railroad com- panies; rule in pari materia § 265 subscription to capital stock of; state court decisions; Federal jurisdiction § 276 validity of issue of bonds in aid of; state court decision; Federal jurisdiction § 276 liability to employees; fellow servants; construction of statute by state courts; effect of § 276 land grants; Federal courts not bound to follow state court de- cision as applied to corporation created by Congress § 276 grade crossings; state court decision that statute requiring is constitutional; Federal jurisdiction § 276 taxation of cars under New York Franchise Tax Law; state court decision; Federal jurisdiction § 277 taxation of; state court decisions; Federal question § 277 exemption of from taxation; whether irrepealable; when a local and not Federal question § 278 earlier and later statutes as to branch lines and terminus; no im- plied repeal § 282 repeal or amendment of statutes, and construction thereof § 284 INDEX 1097 RAILROAD CORPORATIONS— Continued: liability for death by negligence arising before repeal of statute providing for liability § 284 general taxation statute does not repeal charter exemption from. § 285 fire negligently caused by; statutory limitation of damages not retrospective § 287 city subscription to stock of, made without authority; confirma- tion of act by subsequent statute § 288 police power; extinction of grade crossings; Fourteenth Amend- ment § 295 police power to regulate; damages for killing stock; Fourteenth Amendment § 295 tunnel of, under navigable waters; power of city to regulate § 298 liability for damages to employees; due process of law § 298 requirement as to payment by them of attorney's fees; when un- constitutional § 299 when and when not denied equal protection of laws; instances. . § 300 liability of, for damages to employees; equal protection of laws. . § 300 tax on gross receipts; obligation of contracts § 305 vested franchise rights under Rapid Transit Act § 306 amendment, etc., of charter of subsidized; obligation of contract. § 321 implied reservation to incorporate companies to transport other than passengers § 323 exemption; eminent domain; obligation of contracts § 327 reorganization; new company; obligation of contract § 329 condemnation of minority shares of; obligation of contracts. ... § 332 use of team, track and delivery space of; obligation of contracts. . § 333 crossing track of other railroads; obligation of contract § 333 constitution subsequently adopted; obligation of contracts. ... § 334 right to use streets for switch track § 344 obligation to pay expenses for gates, etc., at railroad crossings of streets § 346 new streets and crossings; implied conditions § 346 conditions as to payment of expenses of ordinance, etc § 347 filing certificates; citizenship; jurisdiction note, § 353 requirement as to foreign corporations become residents § 354 license, etc., tax § 359 imposing new conditions upon § 362 conditions subseciuent which will work forfeiture; wlien city can- not impr)se § 363 stopping interstate trains; reguiatifm of comtnerce § 375 railroad interests are of great magnitude and court should at all times be open for tlicir jjrotcctioii r'qually with otliers note (!>. 701), § 116 steam surface railroad; additional franchise tax § 427 See Alienation; liridges; Eminent l)r)m.iin; Obligation of Con- tracts; Railroad Bridges; Rate Regulation; Receivers; Regula- tion and Control; Special Acts. 1098 INDEX RAILROADS, right to build, etc., may be enjoyed by natural persons § 14 right to construct, etc., is franchise § 14 and ferry franchises may be granted to one corporation. . . . note, § 15 is not a ferry note, § 15 right to build, etc., and take tolls not necessarily of corporate character § 17 when transportation company also, twofold franchise exists § 17 no private person can establish, and collect tolls without au- thority note, § 17 charter to construct along line of canal; monopoly § 22 construction of one across another § 26 right to build, own and manage not necessarily a corporate right, but exercisable by natural persons § 30 license to operate; license defined note, § 47 includes what; Public Utility Act § 104 as public highways § 107 "railroad" in act of Congress; when does not embrace rolling stock or other personal property § 107 city may be authorized to construct § 186 construed § 241 RAILROAD TOLL BRIDGES, legislature may grant franchise for § 145 RAILWAY, is not a street railway note, § 111 See Railroad; Railroad Corporation. RAPID TRANSIT ACT, vested franchise rights under; railroads; obligation of contract. . § 306 RAPID TRANSIT BOARD. See Board of Rapid Transit Railroad Commissioners . RATE REGULATION, common carriers subject to § 74 irrigation companies obligated to render services at reasonable rates § 88 right of irrigation companies to fix rates § 88 boom company subject to, of fees or tolls § 90 railroad companies empowered to charge reasonable § 97 business of stockyards company when subject to; when not §110 rebates; construction of Interstate Commerce Act § 153 Interstate Commerce Commission; powers of, as to § 153 gas and electric light companies § 160 when statute fixing rates constitutional § IfiO when statute fixing rates violative of Fourteenth Amendment. . § 160 statute appointing railroad commission not unconstitutional as to joint rates, etc § 167 INDEX 1099 RATE REGULATION— Continued: by railroad and warehouse commission § 169 duty to fix rates cannot be forced upon courts § 171 water companies may be required to charge only reasonable rates. § 173 power of appellate court on appeal as to reasonableness of rates. . § 174 of gas; delegation of power to city which is itself a consumer, when void r jgg contract with city as to maximum rates; consideration; use of streets k Ij^y when exclusive power to regulate fees, etc., cannot be delegated to city council; ferries » § igS water companies; power of county commissioners § 195 powers of board of aldermen or selectmen as to fares; street rail- ways § 197 by board of gas trustees § igg statute partially invalid; separable provisions; railroad commis- sions § 214 delegation of power to villages; water companies; partial in- validity of statutes § 235 long and short haul clauses in state constitution; effect of state court decision in Federal courts § 276 passenger and freight charges; statute regulating; implied repeal. § 284 municipal right to set off taxes against water rates § 298 gas rates; due process of law § 298 tolls for use of improved waterway; due process of law § 298 water rates as charge upon land; due process of law § 298 reasonable profit allowed; due process of law § 298 stockyards; due process of law § 298 obligation of contracts § 336 congress cannot abolish or limit tolls so as to impair bondholders' rights § 340 regulation of rates; general rules § 390 regulation of public warehouses and their charges; Munn v. Illinois § 391 basis of rates; elements and method of valuation; real estate; franchises; good will; subsidiary companies, etc § 392 rates must not be confiscatory § 392 regulation of gas rates; method of valuation; penalty; equity; injunction § 392 regulation of water rates; obligation of contracts; due process of law; e(|ual protection of laws; reservation of power to amend. . § 393 regulation of water rates continued; obligation of contracts; de- fense that franchise has expired § 394 regulation of water rates continued; illustrative decisions § 395 regulation of ferry fares an. 995) method of arriving at value upon which rate must be based Appendix C (p. 997) reasonableness of depends upon circumstances and locality Appendix C (p. 997) whether investment is hazardous or safe is an important consid- eration in determining rates Appendix C (pp. 997, 998) increased cost of gas; basis of fixing rate Appendix C (p. 1001) See Tolls. RATES, for use of water as a franchise § 9 right to collect water rates is franchise § 16 right to collect is franchise § 1 " for railroads and toll for turnpikes; whether distinguished 5 17 in Interstate Commerce Act; meaning of note, § 17 right to collect water rates is franchi.se independent of creative franchise § -^7 REAL ESTATE, franchise right to acquire may never be exercised § 1- 1102 INDEX REAL ESTATE— Continued; power to acquire is franchise § 12 corporate right to acquire and sell land is property note, § 12 corporation created to deal in; incidental powers of note, § 12 corporation cannot purchase and hold indefinitely note, § 12 power of foreign corporations to acquire note, § 12 city's right to take and improve lands for park is franchise. . note, § 12 franchise not § 25 franchise as § 29 as element of value; basis on which fair return of investment rests § 392 franchise as, or personal property §§ 25-27 franchises classed as § 26 value of in fixing rates; evidence Appendix C (pp. 990, 991, 999) REALTY. See Real Estate. RECEIVERS, under foreclosure proceedings cannot destroy rights acquired by consents of abutting owners to use streets § 33 of railroads; questions under state constitutions and statutes as to duties of, foreclosed by state court decisions § 276 RECLAMATION DISTRICTS, as public or quasi-public corporations § 108 REGULATION AND CONTROL, power of supervisors to regulate tolls on toll roads § 116 of State over railroads created by State § 167 reasonableness of rules; constitutional law; jurisdiction; Federal question § 167 railroad companies subject to by State § 167 State's power to regulate and control public service corporations § 170 reasonableness of regulations; courts may pass upon § 171 "regulate" and "prevent" distinguished § 187 constitutional provisions as to when not self-executing § 227 Fourteenth Amendment does not deprive State of police power. . . § 295 stockyards; due process of law § 298 obligation of contracts §§ 336, 337 by State of foreign corporations; conditions imposed §§ 351-362 regulation and control; general statement § 364 regulation and control; generally § 365 regulation and control; police power; generally § 366 foreign and interstate commerce defined; power to regulate §§ 367, 368 power of States where Congress has not acted; interstate com- merce §§ 367, 368 regulation of commerce; state control of business within jurisdic- tion § 369 regulation of commerce; transportation of persons or property; generally § 370 INDEX 1103 REGULATION AND CONTROL— Continued: regulation of conomerce; transportation of railroad cars; transpor- tation over river; distinction as to ferries; police power § 371 regulation of commerce; transportation of cattle; inspection law; police power §§ 372, 373 regulation of commerce; transportation of natural gas § 374 regulation of commerce; stopping interstate trains § 375 regulation of commerce; telegraph messages; police power § 376 regulation of commerce; examination and license of locomotive engineers; color blindness; due process of law § 377 regulation of commerce; tracing lost freight § 378 regulation and control; requiring governmental consent. ... §§ 379, 380 regulation of railroads; delegation to commissioners; constitu- tional law; discrimination; generally § 381 regulation of railroads; protection against injury to persons and property § 382 regulation of railroads; providing stations or waiting rooms; police power § 383 regulation of railroads; Sunday trains; interstate commerce; po- lice power § 384 regulation of railroads; safety appliances and devices; heating cars § 385 regulation of railroads; general decisions; extra trains for connec- tions; removal of tracks; keeping open ticket offices; limitation of liability; adjusting claims; separate cars § 386 regulation of street railroad companies; police power § 387 regulation of gas and natural gas companies; police power § 388 regulation of rates; general rules < § 389 See Corporations; Municipalities; Ordinances; Railroads; Rate Regulations; Sleeping-Car Companies; State. REINSURANCE, reciuiremcnt of approval of Secretary of State to contract of, not a delegation of legislative or judicial powers § 157 REMEDIAL STATUTES. See Construction or Literpretation of Statutes. REMEDIES, for usurping, etc., "any franchise;" meaning of term § 14 change of; ol)ligation of contract § 300 for assessment by board of equalization in excess of authority note, \ 423 taxation; franchise assessments; capital stock; constitutional law § 420 See Courts; Equity; Injimction; Law; Quo Warr.-uito. REMOVAL OF SUITS, condition or agreements that foreign corporation sh.ill not re- move suits; waiver of rifjht . 5 355 1104 INDEX RENEWAL OF FRANCHISE, construction of ordinance relating to § 286 REORGANIZATION, of corporation; purchaser; mortgaged franchise; obligation of contract § 329 See Alienation. RES ADJUDICATA, judgment of county court as, in granting or refusing ferry fran- chise § 178 exemption from taxation § 461 RESOLUTION, of trustees of town granting right to make roadway and erect bridge confers franchise § 48 REVENUE. See Taxation. RIPARIAN OWNERS, on Ohio river; ferry franchise grantable by Kentucky note, § 15 constitutionality of statute giving damages for overflowed lands. . § 298 RIPARIAN PROPRIETOR, right of to erect drawbridge is franchise § 15 "ROAD AND ITS FRANCHISES," in mortgage embraces what § 12 ROADS, exemption from working on public roads as franchise § 20 See Highway; Plank Roads; Streets. ROADWAY, right to make, and erect bridge granted by town trustees confers franchise ; § 48 s. SAFETY APPLIANCE ACT, rule in pari materia when inapplicable § 267 SAFETY APPLIANCES AND DEVICES, regulation and control; railroads § 385 SAFETY DEVICES, sufficiency of title to acts note, § 245 telephone companies; new conditions § 362 SALES, what street railway franchises may be sold §31 of railroad; sufficiency of title to statutes § 247 as doing business within State; taxation § 425 See Alienation; Foreclosure; Judicial Sales; Stock. INDEX 1105 SAVINGS BANKS, franchise tax k 43g SAVINGS INSTITUTION, Congress may charter § 1 30 SCHOOL DISTRICTS, as quasi-pubhc, or quasi-municipal corporations § 56 SCHOOLS, reduced rates by street railroads; construction of statutes § 240 SEAL, right to use corporate seal, is franchise § 32 SECONDARY FRANCHISES, of corporation, what are § 8 privileges granted by city to use streets; when are § 48 SECRETARY OF INTERIOR, delegated power to, by Congress, as to grants to certain corpora- tions note, § 130 authorization of, to grant rights of way for telegraph and tele- phone lines through Indian Territory, exclusive § 130 SECRETARY OF STATE, duties devolved upon, in insurance matters § 157 SECRETARY OF WAR, delegated power by Congress; use of electricity in Yellowstone National Park note, § 130 delegation of power to; bridges § 152 SECURITIES, of United States tax on banks which includes § 443 SECURITY COMPANIES, franchise tax § 437 SELECTMEN, of town; right of, to apply to court to have reasonableness of rates determined § 1 73 of towns; powers of, as to telephone and other electrical coni- panies, railroad companies, paving, etc § n>7 of towns; delegation of power to; use of streets § l'.)7 SET-OFF, of taxes against water rates § 29.S SHAREHOLDERS, franchises of as property J 2cS in joint-stock associations; when partners note, § 52 70 1106 INDEX SLAUGHTER HOUSES, of corporation; police power; regulation; Fourteenth Amend- ment §295 SLEEPING-CAR COMPANIES, are " common carriers; ' ' statute § 74 within Public Utilities Act § 104 palace cars § 109 not common carriers § 109 may make reasonable regulations as to right of passage or a berth, § 109 obligations rest upon contract to furnish accommodations § 109 additional franchise tax § 427 See Palace Car Companies; Pullman Car Companies. SOLE CORPORATIONS, division into § 57 SOURCE OF FRANCHISES, Federal, constitutional and legislative powers §§ 120-131 state, constitutional and legislative powers §§ 132-146 See Grants. SOUTHERN PACIFIC RAILROAD, land grants to aid note, § 129 SOVEREIGN. See State. SOVEREIGN POWER. See Congress; Legislature; State. SPECIAL ACTS, meaning of term " joint-stock association " under § 53 act conferring corporate powers on board of directors of levee districts not a violation of Constitution § 89 Constitution prohibiting, not retroactive § 215 incorporating taxing district not repealed by subsequent Consti- tution § 215 subsequent constitution; bank charter § 215 creating corporations; construction of constitutional prohibition. § 218 title insurance company organized under, prior to adoption of new constitution; non-acceptance of; non-estoppel § 220 may impose taxes upon receipts of corporations § 324 imposing restrictions upon a railroad; obligation of contracts. §324 reservation of power to alter, etc.; obligation of contracts § 324 SPECIAL CHARTERS, constitution prohibiting, not retroactive. § 215 SPECIAL FRANCHISES. grant of, should l)e clear; strict construction § 257 See Definitions; Exclusive Franchise; Taxation. SPECIAL LAWS. See Special Acts. INDEX 1107 SPECIAL PRIVILEGES, enjoyed by citizens in ovm States not secured in other States. ... § 291 STATE, may exclude foreign insurance companies or impose conditions on *^^™ §§13,87 may mquire mto title by which franchise held § 14 ferry franchise derived from no^g x 15 authority of necessary to franchise for transmission of electricity. § 16 when authority of, not necessary; gas and electricity § 16 franchise right of railroad resides primarily in State; but city may act as agent of « ^g legislative control of railroad companies note, § 63 powers of, and powers of national government § 120 not empowered to retard, burden, or control constitutional laws of Congress to carry out powers vested in national government. . § 120 distinction between limitations on powers of Federal and state governments t j9j as source of franchises § 1''2 stands in place of king and has succeeded to prerogatives and franchises S 1*^2 powers of, as to bridges note § 127 hostile state legislation; Post Roads Act; telegraph companies, . § 131 may legislate within its limits § 131 constitutional and legislative powers; source of franchise. . §§ 132-146 civil institutions of; constitutional restraints; obligation of con- §302 tracts foreign corporations; situs of; interstate comity; conditions § 351 powers as to exemption from taxation § 453 taxation by, of franchises upon overvaluation immaterial upon question of rate regulation Appendix C (pp. 986, 999) Sec Grant; Police Power; Powers. STATE BOARD OF AGRICULTURE, as private corporation § 68 STATE CORPORATION COMMISSION, appointment of certain officers; insurance § 163 when may declare statute imposing fine or forfeiture unconstitu- tional; judicial acts § 1 70 order of, to deliver cars when a burden on interstate commerce, . § 170 a valid and legal tribunal S '70 delegation of power to; extent of § 170 STATE OFFICERS', injunction again.st, to prevent enforcement of uncoiislitutionul statute note (p. 700), § 410 joinder as party defendant; when unnecessary, . note (p. 700), §416 attempt of, to enforce an unconstitutional statute; liable in person for consequences note (p. 700), § 410 1108 INDEX STATE OFFICERS— Continued: forfeiture of franchises; powers § 486 See Attorney General. STATIONS, or waiting rooms; regulation of railroads; police power § 383 STATUTE OF LIMITATIONS, privileges of citizens in the several States § 293 STATUTES, definition of franchises under § 9 meaning of "any franchise" or "special privilege" in § 14 provision as to "rates of toll or fare; " meaning of note, § 17 grants of franchises strictly construed § 23 special law authorizing city to issue bonds for waterworks, not grant of "corporate powers and privileges" note, § 31 articles of incorporation under general laws have effect of charter note, § 42 general corporation law, effect as to "corporate franchise" of company organized under § 44 Post Roads Act; telegraph company; effect of attempted grant of franchise by city § 48 as to what the terms "corporation" and "joint-stock associa- tion" include § 52 meaning of terms "joint-stock association" or "company" as used in § 53 of New York classifying corporations note, § 57 "corporations" in, includes board of chosen freeholders. . . note, § 58 classification of corporations under § 58 to what extent corporations are "persons" under § 65 may define and limit meaning of "public corporation" § 61 railroad corporations as "public corporations" § 98 "railroad" in act of Congress; when does not embrace rolling stock and personal property § 167 fixing charge for elevating, storing, etc., grain §113 Constitution and laws of United States made in pursuance thereof are supreme law of land § 120 of Territories; powers of Congress § 130 acts of Congress granting rights of way through Indian Territory note, § 130 presumption that legislature acts advisedly in passing statutes. . § 136 in revising state court's ruling that statute valid; Federal Su- preme Court proceeds with caution § 137 curative acts; waiver by statute § 140 certain laws of New York embraced in one scheme note, § 144 curative acts; defects in consent of railroad commissioners § 167 Circuit Court of Appeals Act, section five; when legislative acts of municipality those of State within said act § 177 IXDEX 1109 STATUTES— Continued : amendment of city charter as to grants of franchises by city; delegation of power § 189 partly invalid; separable provisions; rate regulation; railroad commission § 214 when and when not incorporated as part of charter § 243 acts of incorporation; sufficiency of title to §§ 245-247 See Construction, etc. validating statutes; lease § 473 rate regulation when no illegal discrimination. . . .Appendix C (p. 1003) See Civil Service Law; Constitutional Law; Construction and In- terpretation of; English Companies Act; Joint-Stock Associa- tion Laws; Ordinance; Post-Roads Act; Public Service Com- missions Law; Public Utility Law; Rate Regulation; Names of Corporations. STEAMBOAT COMPANIES. See Canal Steamboat Companies. STEAM CONDUITS. See Conduits. STOCK, ownership of, as affecting character of corporation as public or private § 60 owned by individuals; effect as to making corporations private. § 62 of railroad company; subscription to; delegation of power to fiscal court; subdelegation to county judge § 175 tax on transfers of; due process of law § 298 sales on margin, or on future delivery; equal protection of law. . . § 300 .condemnation of minority shares of; railroad corporation; obliga- tion of contracts § 332 ftee Capital Stock. STOCKHOLDERS, corporation is entity entirely distinct from note, § 11 includes members of what corporations note, § 52 as witnesses for corporation § 98 extent of liability fixed; constitution self-executing § 226 liability; constitutional provisions as to when not self-executing. § 227 liability; construction of statutes § 253 liability for debts of corporation; new constitution; obligation of contracts § 334 suit by, for injunction note (p. 699), § 416 tax on cash value of shares of capital stock not tax on sliarcs of note, 5 425 STOCKYARDS, regulations of; due process of law § 29S STOCKYARDS COMPANIES, when business subject to public rontml and rr^nilatinn; rates. ... §110 business of, affected with public indn st § 1 10 1110 INDEX STORAGE AND ELEVATOR COMPANIES, as public or private corporation § 113 STREET COMMISSIONER, delegation to, by ordinance § 203 STREET RAILROAD, general and special franchise of; defined §§ 6, 7 grant to run a in city is void without proper legislative au- thority § 14 in park; power of commissioners of park to grant franchise. note, § 14 franchise to construct connecting switch note, § 14 contract with city to run, etc., not a franchise § 14 right to construct, etc., and take tolls is franchise note, § 14 exclusive right to operate is property right note, § 26 consent of abutting owners to use streets; when creates property rights § 33 connecting switch with for express company § 79 included under "railroad;" Public Utility Act § 104 is public utility § HI in city streets not a "commercial" railroad note, § 111 defined note, § 111 nature and purpose of §111 term in Public Service Commissioners Law includes what § 112 delegation of power to commissioners by Supreme Court to de- termine construction of § 183 "other appliances" construed § 241 STREET RAILROAD COMPANIES, franchise embraces what § 12 rights of as franchise §14 franchise must have its source in sovereign power §14 nature of franchise § 14 rails, etc., embedded in street remain personal property. . . . note, § 33 what non-essential franchises may be sold or assigned § 31 what franchises of may be lost by forfeiture § 31 when grant to by city not grants of "corporate powers or privi- leges" essential to corporate existence § 31 right to use city streets when a license and not franchise. . . . note, § 47 right to use streets a license or lease and assignable § 47 when grant by city is license and not a franchise § 47 right to construct spur connecting track not a franchise but li- cense § 47 defined note, § 111 are "common carriers; " statute § 74 are public carriers of passengers §111 cannot by contract disable itself from performance of public du- ties § 111 term includes what in Public Service Commissions Law § 112 INDEX 1111 STREET RAILROAD COMPANIES— Continued: statute prohibiting laying of tracks on certain streets may be re- pealed § 138 statute tliat no franchise shall be granted to another railway company to lay tracks on certain streets may be repealed § 138 power of board of equalization to make original assessment on. . . . § 182 when court cannot restrain grant to by ordinance § 184 when city can and cannot grant franchise to § 185 delegation of power to city council to make grants to § 188 dock department no power to grant franchises § 193 powers of selectmen of towns as to § 197 track elevation ordinance; subway construction; powers of city officials X 200 reduced rates; pupils of public schools; construction of statutes. . . § 240 "other street railways; " construction of words in statute § 241 duration of term; "during Hfe hereof" construed § 241 constitutional requirement as to paving streets self-executing. ... § 226 sufficiency of title of act as to formation of note, § 245 sufficiency of title to statutes § 247 grants to; strict construction against grantee § 255 permission to occupy other streets not a new franchise § 286 laws governing apply to urban and interurban railways when classified together § 286 municipal ordinances relating to renewals or extension of franchise of; construction of enactment § 286 statutory authority to become carrier of freight; validating stat- utes § 288 tracks; city may resume control of streets; due process of law. ... § 298 ordinance as to transfers; property taken without due process of law § 299 vested rights § 30(5 right to u.se city streets; obligation of contract § 313 right to lay tracks in streets implied reservation to modify grant. . § 323 extension of franchise; obligation of contracts § 330 condition as to consent for construction of; obligation of con- tract § 335 revocation of licen.se of; obligation of contracts § 336 street paving; conditions; obligation of contracts §§ 337, 338 franchise rights ir) streets § 344 evidence of acceptance of ordinance § 350 license, etc., tax § 3,ii9 regulation of; police power § 387 See Alienation; Interurban Railways; Obligation of Contract; Rate Regulation; Stnjct Railway; Taxation. STREETS, right to u.se, is franchise J 82 right to build in or upon is franchise J 14 1112 INDEX STREETS— Continued: consent of abutting owners to use streets; when creates prop- erty rights § 33 right by contract with city to use is in nature of property an in- corporeal right § 14 right to use the pubhc streets or highways is property right and has assessable value note, § 33 property rights of telegraph, telephone, and electric light com- panies in conduits in § 33 right of way granted by municipality when not a franchise § 48 grant by ordinance to railroad to use streets is franchise § 14 right by contract with city to use, when not a franchise § 14 right to dig up streets of city or town to supply water, gas or elec- tricity is franchise § 16 grant of right by ordinance to use streets when is and is not a franchise § 48 right of railway in is franchise § 14 franchise right of railroad company in; city acts as agent of State in granting franchise § 48 "secondary franchises" in § 48 lines and posts in streets for purposes of electricity; when not a franchise § 47 general franchise; consent necessary to use city streets § 47 right to use of by street car company at least a license coupled with an interest and assignable § 47 right to use; when license not a franchise § 47 use of by connecting switch; express companies § 79 of city; right of telegraph companies in; Post-Roads Act § 131 right of gas and electric company to maintain poles at certain place; prescription § 133 refusal of commissioner to designate location of poles § 140 power to grant use of may be delegated § 148 use of; court's powers as to regulations concerning § 171 grant to use city streets; county court's authority § 178 right to use for gas pipes; county commissioner's authority § 178 grant to use; county or village; county commissioner's author- ity §178 use of by telephone company; power of probate courts as to § 179 of New York, title to in city of § 183 when court cannot restrain grant by ordinance to street railway to use § 184 failure of common council to act as to occupancy of by telephone company; power of courts § 184 consent of local authorities to use of; municipality, etc § 187 use of power to "prevent" distinguished from power to "regu- late" §187 filling up and repaving; gas companies § 194 paving between rails § 197 INDEX 1113 STREETS— Con tinued : track elevation in; subway construction; delegation of power as to, to city officials § 200 constitutional requirement that railroads pave right of way is self- executing § 22G authority to use; general and specific clauses; construction of statute § 240 railroad tracks; city's power to resume control of § 298 easements in; obligation of contract § 313 paving by street railways; conditions and regulations; obligation of contracts §§ 337, 338 rights of corporations to use § § 344-347 municipal control over; franchise rights § 344 across railroad tracks; condemnation § 346 railroad companies' rights; opening new streets § 346 obligation of railroad companies to pay expenses for crossings at streets § 346 See Consents; Easement; Highway; Permits; Street Commissioner. STRUCTURE, such as pier or bridge not a franchise § 34 SUBMARINE RAILWAY, grants to; strict construction against grantee § 255 SUBSURFACE RAILWAYS. See Subways. SUBURBAN RAILROADS. See Street Railway Companies. SUBWAYS, and conduits; consent of city for use of § 187 powers of rapid transit board to contract; city ownership and ob- ligations; change of construction plans § 190 wires in; consent; board of aldermen and not board of electrical control note, § 191 elevation of tracks in streets; delegation of power to citj' officials as to §200 submission of plans to commissioners as prerequisite to operate electrical conductors § 335 See Underground Tunnel Railroad. SUFFRAGE, "elective suffrage" as franchise § 21 SUNDAY TRAINS, regulation of railroads; interstate commerce; police power § 3S 1 SUPERINTENDENT OF INSURANCE, delegation of power to J 1 63 SUPERVISORS. See Board of; County Supervisors. 1114 INDEX SUPREME COURT, of New York, appellate division; appointment by, of commis- sioners to determine whether street railroad can be constructed, § 183 acts as judicial and not as supervisory or administrative board in disputes between railroad commission and railroads § 184 SUPREME COURT OF UNITED STATES, when will refuse to interfere with decision of highest state court. § 184 SUPREME JUDICIAL COURT, delegation of power to; reasonableness of rates § 173 SURETY COMPANIES, sufficiency of title of statute § 245 SWITCH, franchise to construct connecting note, § 14 See Street Railroad Companies. T. TANEY, Chief Justice; definition of franchise by § 1 Chief Justice, definition by, of franchise; "which do not belong to the citizens of the country generally of common right" ex- plained note, § 2 TAXATION OF FRANCHISES, special franchise of railroad § 7 statute; "franchise" under, defined § 9 assessment must be against corporation itself §11 franchise in view for, is any special or exclusive privilege, etc.. . § 16 of franchise of telegraph company § 16 right of city to tax liquors, as franchise § 21 right to use public streets is property which has assessable value note, § 33 corporate property of bank may be taxed § 34 California constitution classifies franchises as property subject to. § 37 franchise to be and franchise to do business; distinction § 39 "corporate franchise or business" in New York Tax Law means what § 39 when joint-stock company is and is not taxable as a corporation. § 52 associations formed under general banking law held liable as corporations to § 52 when furnishing natural gas is a public use within taxing power. . § 83 power of levee district to levy tax § 89 when levee district is state local tax or assessment district § 89 market company is private corporation, and buildings of are not exempt from local taxation § 92 of railroads as public use § 102 INDEX 1115 TAXATION OF FRANCHISES— Continued: ot state railroad with Federal franchises § 129 delegation of power.of § 150 delegation of taxing power to levee district when excluded § 164 delegation of power to equalize taxes; board of equalization. ... § 182 power of board of equalization to make original assessment on corporations § 182 jurisdiction of Federal courts over action of taxing bodies or state agencies § 182 taxing district incorporated by special law; subsequent constitu- tion does not repeal § 215 tax scheme as condition to amendment of Constitution § 219 certain requirements mandatory; self-executing constitutional provisions § 226 constitutional provisions as to, when not self-executing § 227 to meet deficiencies from water receipts; partial invalidity of statutes § 235 of railroad; statute empowering inclusion by railroad commis- sioners for assessment; partial invalidity § 235 for water supply to city; general and specific words, etc.; statutory constitution § 240 charge upon telephone poles as a "consideration for the privi- lege" not a tax on property § 241 sufficiency of title to statutes note, § 245 statutes; state court decisions; Federal jurisdiction § 277 sale by county treasurer for n«n-paj7nent of taxes; erroneous decision of assessor § 278 of telegraph and railroad and telegraph companies as a whole; effect of statute as repealing power of cities to tax § 285 effect of repealing clause in new enactment and inconsistent clauses in prior statutes § 285 specific tax upon foreign corporations may be imposed when no discrimination § -91 of capital stock of foreign corporation; discrimination § 291 discrimination; resident and non-resident corporations; deduc- tion of debts § 292 on transfer of stock; due process of law § 298 set-ofT of taxes against water rates § 298 of national banks; equal protection of laws § 300 on gross receipts of railroad company; obligation of contracts, . . § 305 may be impo.scd upon receipts of corporations by spcciiil acts. . 5 -^24 reorganization by purchasers at foreclosure sale; obligation of contract § 329 stipulation in bank charter as to amount of; obligation of con- tract § :^3i condition as to license, privilege, business or occupation charge, rental or tax §§ 356-301 of freight or passengers § 404 1116 INDEX TAXATION OF FRANCHISES— Continued: power of State; limitation thereon; constitutional law; general principles § 417 nature of tax; not a debt or contractual obligation note, § 417 delegation of power to tax note, § 417 power to levy and collect does not belong to court of equity, note, § 417 Federal franchises; agencies of the Federal government; state taxation of § 418 power of States to tax corporations; agencies of Federal govern- ment; interstate commerce § 419 same; application of principles; illustrative decisions § 420 diversity, uniformity and equality of taxation § 421 uniformity and equality of taxation; constitutional law; board of equalization; illegal discrimination; jurisdiction in equity. .. . §422 to what extent franchises taxable; generally §§ 423, 424 franchise tax; capital stock; meaning of terms; nature of tax; construction of statute § 425 of gross receipts; whether franchise tax note, § 425 on value of capital stock is tax on property in which capital in- vested note, § 425 on cash value of shares of capital stock not tax on shares of in- dividual shareholders note, § 425 capital stock and shares in joint-stock company represent what property note, § 425 sales as doing "business" § 425 state taxation; franchise assessments; capital stock; constitu- tional law; remedy § 426 franchise tax; capital stock; gross receipts; additional franchise; interstate commerce § 427 additional franchise tax; transportation and transmission corpo- tions § 427 franchise tax; capital stock; who liable; generally § 428 franchise tax; capital stock; who not liable; generally § 429 taxation of intangible property of interstate bridge; constitu- tional law § 430 taxation of ferry franchise; legal situs of property; constitutional law § 431 franchise tax; telegraph companies; constitutional law § 432 franchise tax; tax on gross receipts; street railroads § 433 franchise tax; water companies § 434 franchise tax; gross receipts; dividends; gas and electric light and power companies § 435 franchise tax; insurance companies § 436 franchise tax; guaranty or security company; trust company. ... § 437 franchise tax; savings banks § 438 franchise tax; national banks § 439 capital stock; tangible and intangible property; franchises; situs of; for taxation § 440 INDEX 1117 TAXATION OF FRANCHISES— Continued: franchise tax; what is included as capital stock; exempt, property. § 441 franchise tax; what is not included as capital stock § 442 exemptions; tax upon state banks in which United States secu- rities are included § 443 special franchises; taxation § 444 franchises; exemption from tax on capital stock § 445 franchise tax; capital stock, etc.; valuation; basis of computa- tion § 446 franchise tax; capital stock, etc.; valuation; basis of computation continued § 447 franchise tax; capital stock, etc.; valuation; basis of computa- tion; continued § 448 franchise tax; capital stock, etc.; valuation; basis of computa- tion; deductions § 449 value of special franchi.se § 450 deduction from special franchise tax § 451 exemption or immunity from, as franchise § 20 exemption or immunity from, not a transferable franchise § 20 exemption from, repeal of statute § 61 exemption from, under charter; effect of constitution repealing exemption § 215 exemption from; construction of constitutions § 218 exemption from; constitutional provisions as to, when not self- executing § 227 exemption from; .state decision as to; whether a Federal qucjstion. § 278 exemption or immunity from taxation; whether a franclii.se or privilege § 452 power to exempt from taxation; State, municipality and board of assessment; local taxation § 453 duration and extent of exemption from taxation § 454 surrender of power of taxation; presumptions; exemption from taxation; statutory construction § 455 constitutional law; validity of exemption from taxation § 456 obligation of contracts; exemption from taxation; preliminary statement § 457 obligation of contract; reservation of power to alter, amend or re- peal; exemption from taxation § 458 obligation of contracts; what is a contract; exemption from taxa- tion § 459 obligation of contracts; what is not a contract; exemption from taxation § HiO obligation of contracts; reservation of power (o alter, etc.; ex- emption from taxation; res adjudicata § 401 exemption from; whether transferable §§ 479-485 TAX LEVY, strict construction of statute as to § 252 1118 INDEX TAXPAYER, action by, to restrain trustees of village from constructing, etc., lighting system § 160 TELEGRAPH COMPANIES, taxation of franchise of § 16 property rights in conduits § 33 Federal franchise; effect of attempted grant of city franchise. ... § 48 included under "railroad;" Public Utihty Act § 104 messages of and charges, included under Public Utility Act § 104 nature, powers, duties and obligations of § 114 may condemn private property § 114 as public or quasi-public servant § 114, note, § 63 is instrumentality of public character § 114 to what extent common carriers note, § 115 all commercial intercourse between citizens of different States by telegraph cannot be excluded by a State § 120 Federal aid to § 129 extent of authority grant by Post-Roads Act § 130 lines through Indian Territory § 130 under Post-Roads Act subject to reasonable and lawful regula- tions of States, etc § 131 Post-Roads Act permissive only § 131 franchise is from State; even though it derives certain rights un- der Post-Roads Act § 131 when power to refuse grant to is given cities § 140 constitutional provisions conferring rights to; when not self- operative but require legislative action to give effect § 140 use of streets; city's power to "prevent" or "regulate" distin- guished • § 187 consent of local authorities as prerequisite to use of streets § 187 what constitutional requirements as to are not self-executing. ... § 227 when statute void as to receiving, etc., telegraph messages § 232 construction of along "any railroad;" words construed § 241 construction of lines "along and parallel" to railroads; construed. § 241 discrimination; sufficiency of title to statutes note, § 245 jurisdiction of court of visitation over telegraph and railroad companies; rule in pari materia § 265 statute taxing telegraph and railroad companies as a whole; effect as repealing power of cities to tax § 285 license, etc., tax § 360 additional franchise tax § 427 See Alienation; Obligation of Contract; Regulation and Control; Streets; Taxation. TELEPHONE, system in Territory of Hawaii; act of Congress note, § 130 in District of Columbia; acts of Congress note, § 130 INDEX 1119 TELEPHONE COMPANIES, right of, to occupy streets is property note, § 33 property rights in conduits § 33 privilege granted to, by city, when not a charter § 44 are quasi-public servants note, § 63 nature, powers, duties and obligations of § 114 as public or quasi-public servants § 114 is instrumentality of public character §114 may condemn private property § 1 14 to what extent common carriers note, § 115 lines through Indian Territorj' § 130 constitutional grant of rights to; when not self-operative but re- quires legislative action § 140 refusal of commissioner to designate location of poles § 140 when power to refuse grant to, in given cities § 140 delegation of power to Circuit Court to designate route, where city fails to do so, is void § 176 lines in and use of streets; delegation of power as to, to probate courts § 179 failure of city council to act as to occupancy of streets; power of courts § 184 right to have police power exercised as to approval of plans, etc.. . § 184 consent of local authorities as prerequisite to use of streets § 187 use of streets, city's power to "prevent" or "regulate" distin- guished § 187 powers of sclectnien of towns as to § 197 what constitutional requirements as to are not sclf-cxecuting. ... § 227 strict construction of grant against grantee § 255 power of city to order wires placed in conduits; deprivation of property § 298 rights in streets for poles, etc.; obligation of contract § 313 imposing new conditions upon; safety devices § 362 additional franchise tax. i § 427 as public utilities Appendix B (§ 1 , p. 941) See Streets. power of Congress over § 130 statutes of; powers of Congress § 130 power of Congress to grant rights of way through Indian Terri- tory for railroads § 1 30 telephone and telegraph lines through; delegation of power to Secretary of Interior by Congress exclusive § 130 powers of generally; Federal restrictions § l-^O extent of legislative powers of § 139 corporations created by follow them into the I'nion 5 139 niay estalilish l)oard of loan commissioners § ">5 construction of statute by court of; admission of as State after ap- peal taken; state construction given preference by Federal court § 2"3 1120 INDEX TEXAS AND PACIFIC RAILWAY, Federal franchises; land grants § 129 TICKET OFFICES, keeping open; railroads; regulation and control § 386 TITLE, by which franchise held may be inquired into by State § 14 TITLE INSURANCE COMPANY, organized under special act prior to new constitution; non-ac- ceptance of by company; non-estoppel § 220 TOLL BRIDGES, legislature may grant franchise for § 145 power of police juries over § 201 TOLL ROAD COMMISSIONERS, powers as to toll roads § 200 TOLL ROADS, county supervisors may regulate tolls on § 116 powers of highway or toll road commissioners § 200 franchise; what is not acceptance of § 350 TOLLS, right to collect is franchise § 17 right to construct, etc., street railway and to take tolls is fran- chise note, § 14 ferry franchise is privilege to take note, § 15 defined and distinguished note, § 17 when cannot be demanded for automobile, by bridge company note, § 17 on logs in river; right to is franchise § 17 for turnpike and rates for railroad; whether distinguished § 17 franchise to take distinct from corporate franchise § 30 right to take a distinct franchise from other franchises of corpora- tion § 34 right to take is consideration for ferry franchise § 80 county supervisors may regulate, on toll roads §116 franchise; power to grant may be delegated § 148 franchise or license to collect conferred by board of supervisors. . . § 199 See Rate Regulation; Rates. TORTS, alienation of franchises; liability for § 464 TOWN COUNCIL, delegation of power to; use of streets § 196 limitation upon powers of gas trustees; rate regulation § 198 TOWNS, consent of authorities to lay conductors for gas is franchise § 16 INDEX 1121 TOWNS— Continued : consent of as prerequisite to use of streets, etc § 44 consent of to use streets when a franchise § 4S classed as political corporations; nature of § 55 as quasi-public or quasi-municipal corporations § 56 as public corporations § 61 delegation of taxing power to incorporated; when excludes levee district § 164 power to grant ferry franchise § 195 delegation of power to; regulation of water rates § 195 See Selectmen; Trustees of Towns. TOWNSHIPS, as quasi-public or quasi-municipal corporations § 56 consent of § 380 TOW^N TRUSTEES, resolution authorizing riparian proprietor to make roadway and erect Sridge confers franchise § 48 See Trustees of Towns. TRACTION COMPANIES. See Street Railroads. "TRACK," "track or tracks" in ordinance construed § 241 TRADE, or commerce; railroad carriers' business as part of § H);i TRADE-MARK, as franchise * ~ TRADING COMPANIES, classed as private corporations § 55 TRANSFER COMPANIES, additional franchise tax § 427 transfp:ree, of corporation; liability as to torts and debts § 464 TRANSPORTATION, of passengers and property; within Public Utilities Act § H)l facilities; construction of statutes as to § -5- TRANSPORTATION COMPANY, which is also railroad; twofold franchise 5 1 < TRANSPORTATION CORPORATION LAW, consent of local authorities to occupy strcct.s and highways § 1.S7 TRANSPORTATION CORPORATIONS, ^ ^^ additional franchise tax 71 1122 INDEX TRUST COMPANIES, franchise tax .• § 437 TRUSTEES, corporators of private corporations are in one sense note, § 55 company incorporated as trustees of fund to invest it and give income to public schools is private corporation § 115 of corporation; state court decisions as to acts of, although not in final judgment; effect of in Federal court § 280 See Town Trustees; Trustees of Towns; Board of Gas Trustees; Village Trustees. TRUSTEES OF POOR, are a public corporation § 115 TRUSTEES OF TOWNS, may authorize construction of drawbridge § 198 See Town Trustees. TUNNELS, as part of railroad corporation; statute § 104 of railroad under navigable waters; municipal power to order it lowered; due process of law, etc § 298 obligation of contracts § 340 TURNPIKE COMPANIES, right to require tolls of wheelmen is franchise § 17 receive franchises in consideration that public is served. . . . note, § 63 publici juris note, § 63 not a public corporation within statute exempting from executions § 116 as agent of State § 117 grant of franchises to by board of supervisors; effect of grant § 199 strict construction of grant against j^rantee § 255 city no right to regulate and grade street so as to injure company § 345 See Plank Road Company; Rate Regulation. TURNPIKES, tolls for and rates for railroads; distinction § 17 right to collect tolls is franchise § 17 how classed; nature of § 55 exclusive grants for are grants of franchises of public character note, § 63 as public highways § 117, note, § 63 TURNPIKE ROADS. See Plank Roads. U. ULTRA VIRES LEASE, ratification; estoppel; equity; validating statutes § 473 UNDERGROUND TUNNEL RAILROAD, not a street railway note, § 111 INDEX 1123 UNINCORPORATED VOLUNT.AJIY ASSOCIATION, membership in as franchise «jj UNION PACIFIC RAILROAD, Federal franchises M'>9 UNITED STATES SECURITIES, tax on banks which includes x 443 UNIVERSITY, state imiversity is public corporation § 73 See Colleges. USAGE, long continued; construction of constitutions ^219 of government; construction of constitutions note, § LM9 V. VALUATION, franchise tax; basis of computation, deductions §§ 44G-451 method of. See Rate Regulation; Taxation. VALUE, of franchise in itself; depends on profit to be made § 1 2 franchise only of value in connection with its use note, § 3«) franchise or bare right to do a thing is of itself of no vahie. . note. § VJ See Rate Regulation. VENDEE, power of corporation to purchase franchises § ITO under judicial sale of franchises; rights and obligations of § 478 VENDIBILITY. See Alienation. VILLAGES, classed as political corporations; nature of § .'5.') classified as public corporations note, § .W incorporated, as distinct from counties, towns, etc § ^(i certificate of autht)rity as prereriuisitc; for liglitiiig system § UiO extent of power of courts to infjuire into validity of lighting con- tract § 1 SI grant of franchise to waterworks company; contract for hyilrani rentals; sulwefjuent incorporation as city; liability § MKI .delegation of powers to, as to water companies; partial invalidity of statute 5 J.'l.'i See Streets. VILLAGE TRUSTEES, tckphone companies; conduits utile, § l')'.( W. WAITING ROOMS. or stations; regulation of railroatls; ikiIjcc power ''H.'! 1124 INDEX WAIVER, surrender of legislative powers, or police powers § 138 or correction of defect or irregularity; validating .statutes § 288 condition or agreement that foreign corporation shall not remove suit into Federal courts § 355 WAREHOUSE AND GRAIN COMMISSION, delegation of power to § 161 WAREHOUSE COMMISSION. See Railroad and Warehouse Com- mission. WAREHOUSES, franchise to construct switch connecting it with street railway note, § 14 public warehouses are what, as embracing all warehouses, ele- vators and granaries note, § 114 for grain; police power to regulate; Fourteenth Amendment. ... § 295 and their charges; regulation of § 391 WATER, right to supply is franchise § 16 statute as to supplying water, gas, etc., when does not include electric lighting § 23 right to furnish, when exclusive note, § 24 use of for irrigation a public use § 88 WATER COMPANIES, right to supply water, when not strictly a "corporate franchise." § 44 may be compelled to furnish water at reasonable rates § 173 city's power to contract for water supply § 187 consent of city to exercise of franchise § 187 delegation of power to village as to; partial invalidity of statute. § 235 water supplied city under contract; taxation to pay same; general and specific words, etc.; statutory construction § 240 strict construction of grant against grantee § 255 rates of, a charge upon land; due process of law § 298 municipal right to set off taxes against rates § 298 vested rights § 306 right to use city streets; obligation of contract § 313 regulation of rates; obligation of contracts § 336 regulation of; police power § 388 regulation of rates; generally §§ 393-395 regulation of rates; obligation of contracts; due process of law; equid protection of laws §§ 393-395 as public utilities Appendix B (§ 1 , p. 941) See Alienation; Rate Regulation; Regulation and Control; Taxa- tion; Waterworks Company. WATER RATES, for use of as a franchise § 9 See Rate Regulation; Rates. INDEX 1125 WATERS, control of Congress over navigable waters within a State; bridges. § 145 piers erected without authority in; unlawful structure; owner's hability § 14G obstruction to navigable; bridges; delegation of power as to, to Secretary of War § 15'.i river between two States or counties; grant of ferrj' franchise; jurisdiction of courts § 178 railroad tunnel under; power of city over § 29.S Mill Act giving damages for overflowed lands; constitutionality of law § 298 right of way over batture to navigable § 345 See Bridges. WATERWAYS, tolls for use of improved; due process of law § 298 WATERWORKS, special law authorizing city to issue bonds for; not a grant of "corporate powers or privileges" note, § 31 water pumped and stored without city is only a means of exercis- ing franchise as distinguished from franchise itself § 40 right to use streets for system of; when a license and not franchise. § 47 grant by ordinance to, when a franchise § 48 franchise to construct conferred by direct or delegated legislative power § 1 1 8 franchise; power to grant may be granted § 148 exclusive grant of franchise by city; partial invalidity of enact- ment § 235 partial invalidity of statute effecting change in system § 235 franchise; attempted validation of void part of, by statute § 235 franchise; duration of term of; ordinance partially invalid § 235 taxation; sufficiency of title of statute 5 245 sufficiency of title to statute note, § 245 plant; construction of by city; taking property of corporation; due process of law § 298 See Commissioner of Waterworks; Irrigation Companies. WATERWORKS COMPANIES, secondary franchise of; defined § '^ right to exist and collect water rates is franchise 5 !•> as public or riuasi-public in nature 5 11*^ cannot diHcriminate 5 I > 8 consent of local authorities to use streets § 1 ^7 See Waterworks. WHARF. See Wharves. WHARFAGE, defined and distinguished note, S 17 right to, in fraftchise 5^7 1126 INDEX WHARFAGE— Continued : right to differs from other franchises of corporation § 34 See Wharves. WHARFINGERS, when not common carriers § 119 WHARVES, owners of and of railroads have similar rights §14 right to construct and take wharfage is franchise §17 and franchise together give the use which makes franchise valu- able note, § 39 sufficiency of title of statute note, § 245 "public wharf" when impressed with public interest; public use. § 119 WHEELMEN, right of turnpike company to collect wharfage is franchise § 17 WILLCOX V. CONSOLIDATED GAS CO pp. 983 ei seq. WIRES, and poles included in term " plant" § 241 See Streets. WITNESSES, stockholders as, for corporation § 98 See Expert Testimony. WORDS AND PHRASES, "act of Parliament;" incorporation by §122 "act incorporate;" status of foreign railroad corporation. . note, § 244 "additional franchise or privilege" acquired after incorporation. § 44 "all money or stock corporations" does not include joint-stock companies § 52 "along and parallel" to railroads; construction of telegraph lines, § 241 "any business in which electricity over or through wires may be applied to any useful purpose" § 241 "any franchise" in statute § 14 "any franchise" in statute as to usurping, etc § 16 "any railroad;" construction of telegraph lines along § 241 "appoint and settle ferries; " power of county commissioners. ... § 194 "approve" and "ratify" not equivalent to words "to adopt" or "to incorporate into;" constitutional amendment note, § 220 "Bank of the United States;" act of Congress to incorporate the. § 12G "bridge" as including railroad bridges § 145 " by act of Parliament; " incorporation § 122 " capital stock," meaning of § 425 "charter;" meaning of word §41 "charter" as synonymous with "franchise" § 46 "chartered; " boom company is a lawfully chartered corporation. § 90 INDEX 1127 WORDS AND PHRASES— Continued: "citizens" corporations when arc; when are not § 67 "citizens;" insurance companies not; Federal constitution § 87 "citizen;" privileges and immunities of, in the several States. ... § 291 "commodities," as franchise § 21 "commercial" railroad; street railway for carriage of passengers is not a note, § 11 1 "common carrier;" meaning of under Public Service Commi.ssions Law § 74 "consideration for the privilege;" charge upon telephone poles; not a tax or license § 241 "constating instruments" constitute charter § 41 constitutional power of making all laws "necessary and proper" meaning of note, § 124 "corporate franchise" § 45 "corporate franchise" distinct from franclu.ses which corporation or individual may exercise § 39 " corporate franchise; ' ' right to supply water when not strictly a. . § 44 "corporate franchise or business," meaning of note, § 30 "corporate franchise or business" under New York Tax Law means what § 39 "corporate franchise or business;" franchise to be and to carry on bu.siness distinguished § 39 "corporate franchi.se or business;" taxation § 425 "corporate franchises" § 31 "corporate powers or privileges" not franchises essential to cor- porate existence § 3 1 "corporation " includes what § 52 "corporation" and "incorporation;" distinction § 00 "corporations" includes board of chosen freeholders note, § 5S "corporations organized under general laws" includes what § 53 "damnum ahscjue injtiria" injury to grantee of ferry franchise. ... § 24 "during the life hereof;" corporate privileges; duration of term. . § 241 ejusdem generis; statutes § 240 "elective franchise" or freedom § 21 "elective suffrage" as franchise § 21 "electrical corporation; " includes what under Public Service Com- missions Law § 70 "employed within this State;" taxation on capital .sidck § 425 "essentially corporate franchises" § -^0 "exclusive;" meaning of word note, § 23 "for its government" implies regulation and control; railroads. . . 5 241 "for the privilege of exercising" corporatf; franchises; taxation. . 5 425 "franchise" § *-'2« "franchisf;" synonymous with "charfcr" 5 40 " franchise of forming a corporation " what is note, § 1 1 franchise tax 5 '-•'' "gas corporation " includes what corporations, etc 5 ^2 1128 INDEX WORDS AND PHRASES— Continued: "good will;" valuation of property for rate regulation Appendix C (p. 986) "granted lands" in land grant acts in aid of railroads § 241 "horse and steam railroads " § 241 "incorporated or organized under any law of this State" in stat- ute includes what companies § 52 "incorporate the subscribers to the Bank of the United States". . § 126 "incorporation" and "corporation;" distinction § 60 incorporation "by act of Parliament" § 122 "indemnity lands" construed § 241 "joint-stock association" does not include corporations § 52 "joint-stock company" nature of § 52 juris privati when property devoted to public use ceases to be note, § 97 "jus publicum" § 24 "landing" when synonymous with "levee" § 89 "laws" what are; obligation of contracts § 305 "levee" when synonymous with "landing" § 89 "manufacturing" company; electric light, heat and power com- panies as §§ 77, 78 "manufacturing" company; natural gas company is not § 84 "monopoly" defined note, § 22 "municipal authorities" § 379 "municipal corporations" as including counties and towns, note, § 56 "municipal council" defined in Public Utihties Law Appendix B (pp. 941,942) "news contract" as franchise § 21 "noscitur a sociis," maxim applicable in construing word "priv- ilege § 9 "no special privileges or immunities" § 185 "other appliances;" term construed; street railroads § 241 "other corporate bodies" in statute, when means boroughs, cities, etc note, ' § 56 "other street railways" in statute § 241 pari materia; statutes in § 239 pari materia rules as to construction §§ 265-267 pari materia act of incorporation; amendatory act § 283 "person" includes private corporation in statute as to usurping, etc., "any franchise" § 16 "personal franchise" distinguished from property franchise § 35 "persons" corporation as §§ 60, 64-66 "plant" in charter of electric light, etc., company construed § 241 "police power" § 149 "political fnstitution" corporation as a § 60 "post-route;" bridge declared a; what is meant § 128 "prevent" power to distinguished from power to "regulate;" lo- cal authorities § 187 INDEX 1129 WORDS AND PHRASES— Continued: "primary franchise" § 8 "private," after words "public schools;" construction of statute § 240 "private juris" taking of tolls is § 80 "public companies;" railroads as § 98 "public corporations;" statute may define and limit meaning of. . § Gl "public * * * franchise" in remedial statute § 9 "publici juris" what corporations regarded as note, § 73 "publici juris;" ferry franchise § SO "public office or franchise;" how construed § 9 "public schools;" "private" after word "public;" construction; ejusdem generis § 240 "public use;" railroad bridge as § 70 "public use" in eminent domain statute § 241 "public utilities" defined Appendix B (§ 1, p. 941) "public wharf" when impressed with public interest; public use. . § 119 "quasi-public corporation" as applied to private corporations. . . § 56 "quasi-public corporation" as misnomer for railroad companies. . § 99 "railroad" construed § 241 "railroad" includes what; Public Utility Act § 104 "railroad" in act of Congress; when does not embrace rolling stock or personal property § 107 "railroad corporation" in statute includes what § 104 "rate," meaning of in Interstate Commerce Act note, § 17 "rates of toll or fare" under statute note, § 17 "rates of toll or fare" chargeable by street railway companies note, 5 17 "ratify" and "approve" not equivalent to words "to adopt" or "to incorporate into;" constitutional amendment note, § 220 "regulate," power to, distinguished from power to "prevent;" local authorities § 1S7 salus populi suprema lex § 30G "secondary franchises" §§ 8, 48 "special privilege" in statute § 14 "street railroad," in Public Service Commissions Law, includes what § 1 12 "street railroad corporation," in Public Service Commissions Law, includes what § 1 1 2 "to adopt" or "to incorporate," not equivalent of "approve" or "ratify;" constitutional amendment note, § 220 "to grant corporate powers or privileges" means in principio donaiionis equivalent to phrase to grant corporate charters note, § 31 "to incorporate" nr "to adopt," not equivalent to "approve" or "ratify" constitutional amendment note, § 220 "toll " flefined also distiriguinhed from rates note, § 17 "track;" "track or tracks" in ordinan'cc; construction §241 "immunity" note, {9 1130 INDEX WORDS AND PHRASES— Continued: "within the limits prescribed by law; statute fixing rates § 160 "which do not belong to the citizens of the country generally of common right" explained note, § 2 Y. YELLOWSTONE NATIONAL PARK, use of electricity in; act of Congress granting right note, § 130 l-NIVERS.TV OF CAL.FORNU LIBRARY This book is DUE Los Angeles «" the last date stamped below. W^R 5 1976 NOV 3 1983 Form L9-Series 493£ LAW LIBRARY UNIVERvSn Y OV CALIFORNIA LOS ANGELES SOUTHER.VKEGIOX,LUBR..Pvp,ciUTV See Spine for Barcode Number llllll