to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation; and that what is done does not amount to a regulation of foreign or interstate commerce. The incorporation of the company, by which numerous parties are permitted to act as a single body for the purposes of its creation, or, as Chief Justice Marshall expresses it, by which 'the character and properties of individuality' are bestowed on a collective and changing body of men;' the grant to it of special privileges to carry out the object of its incorporation, particularly the authority to exercise the State's right of eminent domain, that it may appropriate needed property,—a right which can be exercised only for public purposes; and the obligation, assumed by the acceptance of its charter, to transport all persons and merchandise, upon like conditions and upon reasonable rates, affect the property and employment with a public use; and where property is thus affected, the business in which it is used is subject to legislative control. So long as the use continues, the power of regulation remains, and the regulation may extend not merely to provisions for the security of passengers and freight against accidents and for the convenience of the public, but also to prevent extortion by unreasonable charges and favoritism by unjust discriminations. This is not a new doctrine, but old doctrine, always asserted whenever property or business is, by reason of special privileges received from the government, the better to secure the purposes to which the property is dedicated or devoted, affected with a public use. There have been differences of opinion among the judges of this court in some cases as to the circumstances or conditions under which some kinds of property or business may be properly held to be thus affected, as in Munn v. Illinois,' but none as to the doctrine that when such use exists the business becomes subject to

339; Reagan v. Farmers' Loan & 126, 139, 146. See also ProviTrust Co., 154 U. S. 362. dence Bank v. Billings, 4 Pet. 514,

1 Munn v. Illinois, 94 U. S. 113, 562.

legislative control in all respects necessary to protect the public against danger, injustice and oppression. In almost every case which has been before this court, where the power of the State to regulate the rates of charges of railroad companies for the transportation of persons and freight within its jurisdiction has been under consideration, the question discussed has not been the original power of the State over the subject; but whether that power had not been, by stipulations of the charter or other legislation amounting to a contract, surrendered to the company, or been in some manner qualified. It is only upon the latter point that there have been differences of opinion." In an earlier case, before the same court, the rule is stated by Chief Justice Waite, as follows: "This company, in the transaction of its business, has the same rights and is subject to the same control as private individuals under the same circumstances. It must carry when called upon to do so, and can charge only a reasonable sum for the carriage. In the absence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons, when controversies arise, what is reasonable. But when the legislature steps in and prescribes a maximum of charge, it operates upon this corporation the same as it does upon individuals engaged in a similar business. It was within the power of the company to call upon the legislature to fix permanently this limit, and make it a part of the charter; and if it was refused to abstain from building the road and establishing the contemplated business. If that had been done, the charter might have. presented a contract against future legislative interference.

1 Georgia Banking Co. v. Smith, 128 U. S. 174, 179. See also Chicago, etc. R. Co. v. Dey, 35 Fed. Rep. 866; Chicago, etc. R. Co. v. Becker, 35 Fed. Rep. 883; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; s. c., 14 Sup. Ct. Rep. 1047; Stone v. Farmers' etc. Co., 116 U. S. 307; s. c., 6 Sup. Ct. Rep. 334; Carton v. Illinois

But it was not; and the

Central R. Co., 59 Iowa, 148; s. C., 44 Am. Rep. 676; Wisconsin Cent. R. Co. v. Taylor Co., 52 Wis. 77; s. C., 1 Am. & Eng. R. Cas. 532; Sloan v. Mo. Pac. R. Co., 61 Mo. 24; Nelson v. Vt., etc. R. Co., 26 Vt. 717; Fitchburg, etc. R. Co. v. Grand Junction R., etc. Co., 4 Allen, 198.

company invested its capital, relying upon the good faith of the people and the wisdom and impartiality of legislators for protection against wrong under the form of legislative regulation."

§ 135.

power of

Power not Lost by Non-User.—The the government to regulate the business of railway companies is not acquired by exercise or assumption, and is not lost by any failure to exercise it. This power is inherent to the government; it existed from the beginning, and it will continue to the end. In the case of The Chicago, Burlington & Quincy Railroad Company v. Iowa, before the Supreme Court of the United States, the rule was stated by Mr. Chief Justice Waite, in delivering the opinion of the court, as follows: "It is a matter of no importance that the power of regulation now under consideration was not exercised for more than twenty years after this company was organized. A power of goverment, which actually exists, is not lost by non-user. A good government never puts forth its extraordinary powers, except under circumstances which require it. That government is the best which, while performing all its duties, interferes the least with the lawful pursuits of its people. In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendment, until 1827, when it was repealed, and it has never been reenacted. No one supposes that the power to restore its provisions has been lost. A change of circumstances seemed to render such a regulation no longer necessary, and it was abandoned for the time. The power was not surrendered. That remained for future exercise, when required. So here the power of regulation existed from the beginning, but it was not exercised until in the judgment of the body politic the condition of things was such as to render it necessary for the common good. Neither does it affect the case that before the power was exercised the

1 Chicago, etc. R. R. Co. v. Iowa, 94 U. S. 154, 161.

company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent. The company could not grant or pledge more than it had to give. After the pledge and after the lease the property remained within the jurisdiction of the State, and continued subject to the same govermental powers that existed before."

§ 136.

Power to Act Through a Commission.—It is now well settled that the power which a legislature exercises, directly, in the regulation of the business of a railroad, so far as relates to the charges for freight, and the rates of fair for passengers, etc., may be exercised through a board of commissioners. The manner in which this power shall be exercised is within the discretion of the legislature. In the Railroad Commission Cases, before the Supreme Court of the United States, it was held that 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 travelers and persons doing business with the company within the State. A railroad, forming a continuous line in two or more States, and owned and managed by a corporation whose corporate powers are derived from the legislature of each State in which the road is situated, is, as to the domestic traffic in each State, a corporation of that State, subject to State laws not in conflict with the Constitution of the United States. This court agrees with the Supreme Court of Mississippi, that a statute creating a commission, and charging it with the duty

1 Chicago, etc. R. R. Co. v. Iowa, 94 U. S. 155, 162.

of supervising railroads, is not in conflict with the constitution of that State. The provisions of the statute of Mississippi. creating a railroad commission, are not so inconsistent and uncertain as to necessarily render the entire act void on its face. In the case of The Charlotte, Columbia