valuable in the property? To what purpose can the constitutional prohibition upon the State against impairing the obligation of contracts be invoked, if the State can, in the face of a charter authorizing a company to charge reasonable rates, prescribe what rates shall be deemed reasonable for services rendered? That decision will justify the Legislature in fixing the price of all articles and the compensation for all services. It sanctions intermeddling with all business and pursuits and property in the community, leaving the use and en- [187 joyment of property and the compensation for its use to the discretion of the Legislature. Having already expressed my objections to that decision in a dissenting opinion, I need not repeat them here. Strong, J. I concur in this dissent. the use, but so long as he maintains the use he must submit to the control." There is no business or enterprise involving expenditures to any extent which is not of public consequence, and which does not affect the community at large. There is no industry or employment, no trade or manufacture, and no avocation which does not in a greater or less extent affect the community at large, and in which the public has not an interest in the sense used by the court. There is no doubt of the power of the Legislature to prescribe in the charter of any corporation the compensation it may receive for services rendered, or to reserve the power to regulate such compensation subsequently. The power to prescribe the conditions of use and enjoyment necessarily accompanies the power to grant. But the charter of a corporation being a contract, a sufficient consideration for the privileges and franchises conferred being found in the duties and liabilities assumed by the cor porators, the subsequent power of the Legislature is restrained by its terms. This has been so often judicially declared, that it has been supposed to be no longer open to discussion. The first question, therefore, for consideration in all cases where legislation affects the constitution of a corporation or its beneficial operation. is: what is the true construction of its THE CHICAGO AND NORTHWESTERN charter and, consequently, what privileges does 186] it confer *and what restraint does it impose upon legislative interference? The rights and privileges implied in the contract are equally as inviolable as those expressed. This question is not met by the court in its opinion, the several cases being disposed of by the novel doctrine announced in Munn v. Illinois, that the Legislature has a right to regulate the compensation for the use of all property, and for services in connection with it, the use of which affects the "community at large;" and the further doctrine, equally novel, that although the charter of a company confers the power to make reasonable charges, the whole matter is reserved to be regulated by the State, in its discretion. If it be admitted that the reserved power to alter all laws creating corporations authorizes the Legislature to regulate the rates of charges of a railroad company for the transportation of persons and property, it should not, in common honesty, be so used as to destroy or essentially impair the value of mortgages and other obligations executed under express authority of the State. The reserved power has not generally been supposed to authorize the Legislature to revoke the contracts of the corporation with third parties, or to impair any vested rights acquired under them. But no considerations of this kind are of any weight under the decision in Munn v. Illinois. So long as that decision remains, it will be a waste of words to discuss the questions argued by counsel in these cases. That decision, in its wide sweep, practically destroys all the guaranties of the Constitution and of the common law invoked by counsel for the protection of the rights of the railroad companies. Of what avail is the constitutional provision that no State shall deprive any person of his property except by due process of law, if the State can, by fixing the compensation which he may receive for its use, take from him all that is 94 U. S. U. S., Book 24. WILLIAM FREDERICK PEIK, HENRY RAILWAY COMPANY et al. DE WITT C. LAWRENCE et al., Appts., V. GEORGE H. PAUL et al. (See S. C., Reporter's ed., 164-178.) Law regulating fare and freight on railroads. vide by law for a maximum of charge to be made The Legislature of Wisconsin has power to pro [Nos. 27, 40.] Argued Nov. 4, 1875. Decided Mar. 1, 1877. States for the Western District of Wisconsin. In each of these cases a bill was filed in the court below by the appellants, for an in,anction to restrain the appellees from taking any action under a certain statute for establishing rates of fare and freight for the railroad in question. A decree having been entered in each case against the complainants, they took an appeal to this court. The case is fully stated by the court. Messrs. C. B. Lawrence, B. C. Cook, John W. Cary, W. M. Evarts and E. W. Stoughton (printed opinions on the question prepared by John B. Felton, H. S. Brown and S. W. Sanderson, being also filed), for appel lants. These suits present the single question of the power of the Legislature of Wisconsin to provide by law for a maximum of charge to be made by the Chicago and Northwestern Railway Company for fare and freight upon the transportation of persons and property carried within the State, or taken up outside the State and brought within it, or taken up inside and carried without. That Company was by its charter authorized "to demand and receive such sum or sums of money for the transportation of persons and property, and for storage of property, as it shall deem reasonable." Charter of Wis. & Superior R. R. Co., sec. 6. Other forms of expression are used in charters granted by Wisconsin to other companies, which by consolidation have become merged in the present Corporation; but they are all the same in effect. None go beyond this. Mr. Chief Justice Waite delivered the opin- | solidation was perfected, "The consolidated comion of the court: pany shall be and remain subject to the laws of the State of Wisconsin and the State of Illinois, respectively, and shall have in all respects the same privileges as though this consolidation had not taken place; Provided, That the laws of Illinois shall have no force and effect in the State of Wisconsin." Wisconsin Consolidation Act, March 10, 1855, sec. 8. *The same [177 Act also provided, sec. 2, that the consolidated company should "Have all the rights, privileges and franchises conferred on the said companies (those in Illinois as well as those in Wisconsin) by the laws of the States of Illinois and Wisconsin, respectively, the same, and not otherwise, as though the said consolidation had not taken place." In this way, Wisconsin in effect said to the Illinois Companies: "You may con solidate your interest with those of the named companies in this State, and form one consolidated corporation in the two States; but, in so doing, you must, in Wisconsin, be subject to our laws. In Wisconsin, all corporations are liable to have their charters altered or repealed at the will of the Legislature. If you are willing to take this risk, we will care for you, within our jurisdiction, precisely as we do for our own corporations." The Constitution of the State in force when each of the several Acts of incorporation was passed, provides 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." Art. XI., sec. 1. It was conceded upon the argument that this reserved power of the Constitution gave the Legislature "the same power over the business and property of corporations that it has over 176] individuals," or, as it is expressed by one of the counsel, "Nothing more could have been intended than to leave the stockholders in corporations in such a position that the Legislature could place them on the same footing with natural persons before the law, and disable them from permanently evading the burdens on all others engaged in similar vocations, by appealing to the letter of their charter. Their object was not to open the door to oppression, but to secure simple equality between citizens of the State, whether working singly or in corporate associations." And, in another place, the same learned counsel says: "The privilege, then, of charging whatever rates it inay deem proper is a franchise, which may be taken away under the reserved power, but the right to charge a reasonable compensation would remain as a right under the general law governing natural persons, and not as a special franchise or privilege." Upon these terms the consolidation was finally perfected, and the consolidated Company now exists under the two jurisdictions, but subject to the same legislative control as to its business in Wisconsin as private persons. The Illinois companies might have stayed out. But they chose to come in, and must now abide the consequences. Thus Wisconsin is permitted to legislate for the consolidated Company in that State precisely the same as it would for its own original companies, if no consolidation had taken place. This is the contract by which the Illinois stockholders must abide. Having availed themselves of what they supposed to be the advantages of the consolidation, they cannot repudiate their corresponding obligations. There is nothing, therefore, in this objection. 2. The obligations of the consolidated Company, under the land grant to the Wisconsin & Superior Railroad Company, to keep that part of its road which formerly belonged to that Company open as a public highway for the use of the Government of the United States, free from toll or other charges upon the transportation of property or troops of the United States, and to transport the mails at such prices as Congress may by law direct. The United States do not complain. It will be time enough for us to consider this objection when they do. Without stopping to inquire whether this is the extent of the operation of this important constitutional reservation, it is sufficient to say that it does, without any doubt, have that effect. In Munn v. Illinois [ante, 77], and R. R. Co. v. Iowa [ante, 94], we have just decided 3. As to the effect of the statute as a regulathat the State may limit the amount of charges tion of interstate commerce. The law is conby railroad companies for fares and freights, fined to state commerce, or *such inter- [178 unless restrained by some contract in the char-state commerce as directly affects the people of ter, even though their income may have been Wisconsin. Until Congress acts in reference to pledged as security for the payment of obliga- the relations of this Company to interstate comtions incurred upon the faith of the charter. So far this case is disposed of by those decisions. It remains only to consider a few questions raised here which were not involved in the cases that have already been decided: merce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin, this Company has domestic relations. Incidentally, these may reach beyond the 1. As to the consolidation of the Wisconsin State. But certainly, until Congress underCorporations with those of Illinois. For the takes to legislate for those who are without the purpose of promoting this consolidation, the State, Wisconsin may provide for those within, Legislature of Wisconsin passed an enabling even though it may indirectly affect those withAct and, in so doing, provided that if such con- out. 4. As to the repeal of this Act by that of Messrs. I. C. Sloan, Finches, Lynde & MilMarch 12, 1874. The Supreme Court of Wis-er and L. S. Dixon, for defendants in error. consin has decided that there is no such repeal as is claimed. Atty-Gen, v. R. R. Co., 35 Wis., 42. This is binding on us. 5. As to the claim that the courts must decide what is reasonable, and not the Legislature. This is not new to this case. It has been fully considered in Munn v. People of Illinois [ante, 77]. Where property has been clothed with a public interest, the Legislature may fix a limit to that which shall in law be reasonable for its use. This limit binds the courts as well as the people. If it has been improperly fixed, the Legislature, not the courts, must be appealed to for the change. 6. The sale of the Chicago, St. Paul & Fon du Lac Railroad Company. The charter of the Company whose road was sold does not confer any right which has been impaired by this legislation. That Company, like other railroad companies in Wisconsin, was subject to regulation as to its fares, etc. It is. therefore, unnecessary to consider what might under other circumstances have been the effect of such a sale. This disposes of the case. No other questions need be considered. If the question ever arises whether the Company can be compelled to continue its business at the prices fixed, it will be time enough for us to pass upon it when it reaches here in due course of proceeding. It is not here now. The decrees are affirmed. Dissenting, Mr. Justice Field and Mr. Justice Strong. 179] *THE CHICAGO, MILWAUKEE & Mr. Chief Justice Waite delivered the opinion of the court: The only question presented by this record is, whether a railroad company in Wisconsin can recover for the transportation of property more than the maximum fixed by the Act of March 11, 1874, by showing that the amount charged was no more than a reasonable compensation for the services rendered. AS What we have already said in the cases of Peik & Lawrence v. C. & N. W. Railway Company [ante, 98], is applicable to this case. between the company and a freighter, the maximum of the statute is the limit of the recovery for transportation actually performed. If the company should refuse to carry at the prices fixed, and an attempt should be made to forfeit its charter on that account, other questions might arise, which it will be time enough to consider when they are presented. But for goods actually carried, the limit of the statute is the limit of the recovery. The judgment is affirmed. Dissenting, Mr. Justice Field and Mr. Justice Strong. (See opinion, ante, 96.) *THE WINONA and ST. PETER RAIL [180 ROAD CO., Plff. in Err., V. JOHN D. BLAKE et al. (See S. C., Reporter's ed., 180, 181.) ST. PAUL RAILROAD COMPANY, Plff. Railroad is common carrier-law regulating its in Err., HENRY M. ACKLEY and GEORGE M. VILAS. (See S. C., Reporter's ed., 179.) Statute as to freight on railroad. A railroad company in Wisconsin can recover for the transportation of property, no more than the maximum fixed by the State Act of March 11, 1874. [No. 352.] Argued Nov. 4, 1875. Decided Mar. 1, 1877. charges. Suit was brought by the defendants in error in the District Court of the Third Judicial DisIn Error to the Circuit Court of the County trict of Minnesota, to recover certain personal of Milwaukee, State of Wisconsin. property transported by defendant as a comThe defendants in error brought suit in the mon carrier. The plaintiffs tendered the amount court below, for certain personal property of the freight charges fixed by the statute of transported by defendants and held for freight. the State, but the defendant demanded a larger The plaintiffs had tendered the amount fixed by sum. The only question in the case is the constatute for such transportation. The matter institutionality of the statute, which attempted to dispute was the validity of the said statute. fix the rates of transportation. Judgment havJudgment was given in favor of the plaintiff, and upon appeal to the Supreme Court of the State it was affirmed and the case remanded; whereupon the defendants sued out this writ of error. Messrs. J. W. Cary, W. M. Evarts and E. W. Stoughton, for plaintiff in error. NOTE.-State control over railroads. See note to R. R. Co. v. Maryland, 22 L. ed. U. S., 678. ing been given for the defendant in the District Court and reversed upon appeal by the Supreme Court of the State, the defendant sued out this writ of error. Messrs. B. C. Cook, C. B. Lawrence, W. M. Evarts and E. W. Stoughton (a printed opinion, prepared for Central Pacific R. R. Co. NOTE.-State control over railroads. See note to R. R. Co. v. Maryland, 22 L. ed. U. S., 678. by S. W. Sanderson and H. S. Brown, being also filed) in No. 10, and Henry C. Horn and I. E. Cole in No. 74. for plaintiff in error: I. The charter of the plaintiff in error is a contract of such character as to fall under the protection of the 10th section of the 1st article of the Federal Constitution, which forbids a State to pass a law impairing the obligation of contracts. Dartmouth Coll. v. Woodward. 4 Wheat., 518; Minot v. R. R. Co., 18 Wall., 225, 21 L. ed., 894; R. R. Co. v. Reid, 13 Wall., 266, 20 L. ed., 569; Charles River Bridge v. Warren Bridge, 11 Pet., 536; Bridge Proprs. v. Hoboken, etc., Co., 1 Wall., 117, 17 L. ed., 571; Binghamton Bridge case, 3 Wall., 51, 18 L. ed., 137; Ang. & Ames, Corp., 7; State Freight Tax case, 15 Wall., 233, 21 L. ed., 146; Olcott v. Supervisors, 16 Wall., 688, 21 L. ed., 386; People v. Batchellor, 53 N. Y., 139; P. W. & B. R. R. Co. v. Bower, 13 Law Reg. (N. S.), 174; People v. Salem, 20 Mich., 477; Tomlinson v. Jessup, 15 Wall., 457, 21 L. ed., 205; Holyoke Co. v. Lyman, 15 Wall., 511, 21 L. ed., 137; Miller v. State, 15 Wall., 488, 21 L. ed., 101; Tinsman v. R. R. Co., 2 Dutch., 148; Donnaher v. State, 8 Sm. & M., 649; Thorp v. R. R. Co., 27 Vt., 140; Dearborn v. R. R. Co., 4 Fost., 179; Bailey v. R. R. Co.. 4 Harr. (Del.), 389. IV. The right to charge a reasonable compensation being implied in the charter, and also existing under the general law as an attribute of ownership of the corporate property, and an incident to the performance of corporate services, the question of what is a reasonable compensation is a judicial question, which cannot be decided by the Legislature. Its determination belongs to the courts, where the company can justify its charges by proper evidence and be heard in its own defense. P. W. & B. R. R. Co. v. Bower, March No. of Law Register, 1874; 13 Law Reg. (N. S.), 174; Com. v. Bridge Proprs., 2 Gray. 339; Chicago & Alton R. R. Co. v. People. 5 Chic. Leg. News, 266; State v. Noyes, 47 Me.. 203. V. The Act violates that provision of the charter of the plaintiff in error which gave the management of the affairs of the Company to the Board of Directors, and expressly authorized them, "For the purposes specified in this Act, to make and establish regulations and bylaws, and to do all things necessary to be done not inconsistent with the Constitution of the United States. or with the laws of this Territory, or this Act." Dartmouth Coll. v. Woodward, 4 Wheat., 418; P. W. & B. R. R. Co. v. Bower (supra). sengers upon reasonable terms." It also violates that provision in the Act of February 26, 1856, which says: "Such ComII. Although the charter of a railway company shall be bound to carry freight and paspany does not, in express terms, grant the right to demand compensation for the carriage of passengers and freight, yet the right to demand reasonable compensation is necessarily given by implication, as the only mode by which the object of the charter can be accomplished, and the only means by which the company can perform the obligations imposed upon it, and save its franchises and property from destruction. If this power exists by necessary implication, it can no more be taken away than if it had been granted in express terms, and an Act of the Legislature taking it away violates the con tract. 2 Kent, 298; Dartmouth Coll. v. Woodward, 4 Wheat., 518; Perrine v. Canal Co., 9 How., 177; People v. Manhattan Co., 9 Wend., 392; Enfield Bridge Co. v. R. R. Co., 17 Conn., 454; Beaty v. Knowler, 4 Pet., 162. III. Independently of the implied grant of power, the right to demand reasonable compensation for the use of its property belongs to the company, as an attribute of ownership and of existence. Therefore, the Act violates the 14th Amendment of the Constitution of the United States, which provides that "No State shall deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws." An Act which deprives the plaintiff in error of the right to demand reasonable compensation for the use of its property and the services of its agents deprives it of its property without "due process of law," and denies to it "the equal protection of the laws." State Freight Tax, 15 Wall., 233, 21 L. ed., 146; Von Hoffman v. City of Quincy, 4 Wall., 535, 18 L. ed., 403; Pumpelly v. Green Bay Co., 13 Wall.. 166, 20 L. ed.. 557; Green v. Biddle, S Wheat., 1; Wynehamer v. People, 13 N. Y., 392. VI. The Act violates, in principle, the terms of the Congressional Land Grant of Mar. 3, 1857, which required, as one of the conditions of the grant, that the roads receiving its benefit should transport the property or troops of the United States, "free from toll or other charges," and should also transport the mails “at such price as Congress may by law direct." If the Legislature of Minnesota can pass this Act, it can fix a rate of compensation which will prevent the operation of the road, or disable it from performing its duties to the General Gov ernment. Mr. W. P. Clough, (in No. 10) and E. C. Palmer (in No. 74), for defendants in error: The furnishing of the mears of communication between different localities of a State is a prerogative right; that is to say, one vested primarily in the sovereign power of the State. 1 Redf. Railways, p. 81, sec. 25. Νο mere subject or citizen can establish a road. bridge, ferry, canal or railroad, without the express leave of the ruling authority of the country in which it is to be done. Payne v. Partridge, 1 Salk., 12; Mills v. St. Clair Co., 8 How., 569; 2 Bl. Com. (marg.), p. 38. The fees exacted from the public for the passage of their persons or property over a public way of any character have, since the earliest periods of the common law, been termed in that law, tolls. Web. Dic.; Com. Dig., 457. Tolls are delegated taxation. People v. Mayor of Brooklyn, 4 N. Y., 419, per Ruggles, J. This Company is only empowered to furnish a highway; and any fees paid to it would, therefore, be for no other consideration than a liberty to pass over a highway; and, consequently, nothing besides tolls. The case of ferries is in this connection an authority completely in point. As a ferry has never been deemed anything other than a publie highway, although involving little else than the carriage of persons and property from place to place; so the fees charged by ferrymen have uniformly been termed, tolls. Gunning, Tolls, 2. The grant of the franchise to erect and maintain a public establishment of any description, does not carry with it a power to demand fees from the public on account of its enjoyment. When the right to compensation is expressly granted, the concession must be interpreted strictly against the grantee. Heddy v. Wheelhouse, Cro. Eliz., 558; Lightfood v. Lenet, Cro. Jac., 421; Proprs. of Stourbridge Can. v. Wheeley, 2 B. & Adol., 793; Corporation of Stamford v. Pawlett, 1 Cromp. & Jer., 57; Barrett v. Stock, & Dar. Ry. Co., 2 Eng. Ry. & Can. Cas., 324; Leeds & Liv. Can. Co. v. Hustler, 1 Barn. & C., 424; Dock Co. v. La Marche, 8 Barn. & C., 42; Same v. Brown, 2 B. & Ad., 58; Charles River Bridge v. Warren Bridge, 11 Pet., 420; Perrine v. Can. Co., 9 How., 172; Binghamton Bridge case, 3 Wall., 57, 18 L. ed., 137; Canal Bridge v. Gordon. 1 Pick., 296; R. R. Co. v. Briggs, 2 Zab., 623. To levy tolls is a franchise of itself; and not an incident of nor appurtenant to a franchise; nor something included within one. A State Legislature has jurisdiction to prohibit the use of property for particular purposes, and even to prohibit its use for any but certain specified purposes. It may go further, and make it unlawful to hold and own any particular kind of property at all. It may even absolutely forbid the sale of property. In short, it may pass any law regulating the tenure and enjoyment of private property, which leaves title and possession undisturbed, with liberty to use the property for some purpose beneficial to the owner. It is only because of the existence of such power that the sale, bestowal and even the right to own intoxicating liquors can be forbidden by law. Wynehamer v. People, 13 N. Y., 378. Nothing short of such power could have authorized the Legislature of the State of Louisiana to forbid the landing, yarding or slaughtering of animals at any point except one, within a district of country over one thousand square miles in area, and containing a population of several hundred thousand, and that one point be owned and controlled by a few specified individuals. Slaughter-House Cases, 16 Wall., 36, 21 L. ed., 394. There is probably not a city nor an incorporated town, in any State, but has power to and does actually legislate in regard to the fees of porters, draymen, hackmen, expressmen and the like. Municipal corporations do not derive this power from the fact of their being such, but from the fact that the State had the power, originally, and has, by special concession, committed it to them to exercise. How can legislative power over particular persons and objects be waived? Were the question new, it might be thought impossible to be done by any mode; but this court has repeatedly determined that it can be done by contract. This court, in a case of great celebrity, adjudged that a grant of the franchise to hold and manage private property for charitable purposes (in other words, to be an eleemosynary corporation) is a contract, within the intent of that provision of the Constitution Dartmouth Coll. v. Woodward, 4 Wheat., 518. By the common law, lay corporations were divisible into two distinct classes, eleemosynary and civil, possessing legal qualities widely different. Eleemosynary corporations were regarded as strictly private in character. 1 Bl. Com. (marg.), 481, 482; Philips v. Bury, 1 Ld. Raym., 5. Civil corporations were esteemed to be public in character. The decision in the Dartmouth College case seems to have been put by the court strictly on the ground that the college was a private charity. The Chief Justice, among other things, said: "The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government created for its purposes." The court in two other cases of hardly less celebrity and consequence than the Dartmouth College case, one of which was decided at the same Term with that case and the other so soon afterward that but a single change had occurred in the Judges composing the court, threw out all the light upon what are to be deemed “instruments of Government," which the purposes of the case at bar make at all desirable. McCulloch v. Md., 4 Wheat., 316; Osborn v. Bk., 9 Wheat., 738. If it be within the power of judicial decisions so to do, Dartmouth Coll. v. Woodward, McCulloch v. Md., and Osborn v. Bk., unitedly settle the following principles of constitutional In some States of the Union, perhaps in many, laws exist fixing rates of toll which mill-law: owners may take for grinding grain. Among 1. The States are supreme over all civil inBoch States are Michigan, Massachusetts and stitutions created by them to be instruments for Indiana; and their statutes are not founded upon peculiar constitutional provisions; but upon general principles of constitutional law. In Beekman v. R. R. Co., 3 Paige, 45, the learned Chancellor speaks of the power to limit the rolls by statute, which mill-owners may take tor grinding grain, to be a thing of course, something becoming apparent to the hearer by its bare mention. the accomplishment of public purposes. 2. Every civil institution created by the States to administer a public function or to perform a public duty thereof, or even to facilitate the administration of Government by the regularly constituted authorities thereof, is such an instrument. 3. Eecause a civil institution is a corporation the members whereof are private persons; the |