The first section of the act (Act No. 42, Laws 1846) created the corporation. The second provided for the purchase of the road and property pertaining thereto for the sum of $2,000,000. Section 3 provided for a forfeiture and dispossession in case of a failure to meet the payments as agreed upon. Section 12 provided:

"The said company * * * shall have power to regulate the time and manner in which goods and passengers shall be transported, taken, and carried on said railroad, as well as the manner of collecting all tolls and dues on account of transportation, carriage, and storage."

Section 15 provided that it should be lawful for said company, from time to time, to fix, regulate, and receive the tolls and charges taken for the transportation of property and persons on said railroad, subject only to a limitation as to passengers of three cents a mile, and ten cents in addition on distances not exceeding thirty miles.

The following provisions of sections 36 and 39 may be mentioned in this connection:

1. The State reserves the right, at any time after January 1, 1867, to purchase said railroad, and all the property, effects, and assets of the company, upon terms named, based upon the market value of the property at the time. of such purchase.

2. The rights and franchises vested or which may vest in the company under or by virtue of said act "shall not in any manner be prejudiced or affected save as herein provided, or by judicial proceedings, or by a repurchase of said railroad, to be made by the State" as in said section (36) provided.

"3. The State reserves the right, at any time after thirty years from the passage of this act, by a vote of twothirds of each branch of the legislature, to alter, amend, or repeal the same: Provided, that said company shall be compensated by the State for all damages sustained by reason of such alteration, amendment, or repeal."

Section 15 makes it lawful for the company to use its own judgment in fixing tolls, and provides that it shall not receive more than three cents per mile for the transportation of passengers, and imposes a penalty for charging

more. In the case of Georgia, etc., Banking Co. v. Smith, 128 U. S. 174, a charter containing the following provision was before the court:

"The said Georgia Railroad Company shall, at all times, have the exclusive right of transportation or conveyance of persons, merchandise, and produce over the railroad and railroads to be by them constructed, while they see fit to exercise the exclusive right: Provided, that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every one hundred miles, and five cents per mile for every passenger."

At first blush this might seem to authorize the fixing of rates within the limit of five cents a mile. But the court held otherwise. It will be noticed that the provision there construed gave to the railroad an exclusive use of the road, which theretofore was supposed to be open to use by others, upon the proviso that the charge for transportation should not exceed five cents. So long as this price was not exceeded, the right would continue exclusive; but it did not follow that a contract right to fix tolls up to five cents was conferred. The section contained no express grant of power, and none is necessarily implied. Such was the construction of the court, but it was careful to say:

"If the charter in this way provides that the charges which the company may make for its services in the transportation of persons and property shall be subject only to its own control up to the limit designated, exemption from legislative interference within that limit will be maintained."

Again, there is a class of cases where charter provisions give the right to fix rates in general terms. That is no more than the common carrier would have by implication were the charter silent upon the subject of compensation. In Stone v. Trust Co., 116 U. S. 307, the charter under consideration granted to the company the right, “from time to time, to fix tolls and charges." It prescribed no limit.

The court held that, in the absence of words of

positive grant, or their equivalent in the law, the power of the State to regulate would not be cut off, and that reasonable doubts should be resolved in favor of the State; citing the words of Mr. Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 561, that "its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear;" citing, also, Charles River Bridge v. Warren Bridge, 11 Pet. 420; Minot v. Railroad Co., 18 Wall. 206; Bailey v. Magwire, 22 Wall. 215; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Newton v. Commissioners, 100 U. S. 548. Referring to the provision of the charter, the court said:

"We find, first, the authority given to carry persons and property. This of itself implies authority to charge a reasonable sum for the carriage. In this way the corporation was put in the same position a natural person would occupy if engaged in the same or like business. Its rights and privileges in the business of transportation are just what those of a natural person would be under like circumstances; no more, no less. The natural person would be subject to legislative control as to the amount of his charges; so must the corporation be."

In short, the provision that it might, from time to time, fix tolls, was a grant of nothing that it would not have had the right to do had it not been inserted, and did not have the effect of enlarging its rights, as no intention to do so was apparent.

In Stone v. Illinois Cent. R. Co., 116 U. S. 347, the charter granted power "to establish such rates for transportation as they may deem proper, and to alter and change them at pleasure;" and it was held that it did not show an intent on the part of the legislature to part with the power to regulate. The provision was substantially the same as that in Stone v. Trust Co., supra. The other railroad commission case- Stone v. New Orleans, etc., R. Co., 116 U. S. 352-needs no discussion further than to say that the charter there discussed expressly reserved to the legislature the power to regulate rates.

The charter of the respondent contains a direct grant of power to fix, regulate, and receive tolls. It also fixes what it evidently considered a reasonable rate as to passengers, viz., three cents per mile. It clinches the matter by providing that the respondent's right to fix tolls should be limited by this rate of three cents, and by that only. It was not, then, a general grant of power, and therefore limited to fixing rates the reasonableness of which should be determined by the usual methods, and consequently the same power as any individual or corporation would have without it, but was intended to confer a contract right to fix tolls, within the limit of three cents a mile, as plainly as though it had provided that said road should have the right to charge three cents a mile, or less, in its discretion, for transportation of passengers. It will be noticed in the cases cited that in no case where a maximum rate was fixed has the right of the company to fix tolls to that amount been denied. This case is even stronger than such, inasmuch as the charter expressly fixes the limitation, and unqualifiedly states that such shall be the only limitation of the company's power.

But our attention is called to the provisions of sections 11 and 30, which are said to limit the power conferred by section 15. Section 11 contains the provision that "the said company shall have power to charge for tolls and transportation such sums as shall be lawfully established by the by-laws of said company." Section 30 confers upon the board of directors the power to do many acts, and concludes as follows: "And shall have power to pass all by-laws which may be necessary for the carrying into execution all the powers vested in the company hereby incorporated: Provided, such by-laws shall not be contrary to the Constitution or laws of the United States or of this State." It is contended that these provisions negative any contract right, to the exclusion of regulation of rates by the legislature, that otherwise might be conferred by section 15, and we are cited to Ruggles v. Illinois, 108 U. S. 526, in support of the contention. The charter

provisions in that case conferred only a general power to fix rates, and we have already shown that such provisions do not confer a right to do more than fix reasonable rates within the limits that the legislature may, from time to time, prescribe. The provision was as follows:

"Shall have power to make, ordain, and establish all such by-laws, rules, and regulations as may be deemed expedient and necessary to fulfill the purposes and carry into effect the provisions of this act, and for the well ordering, regulating, 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 of this State, or repugnant to this act."

The court, after quoting the above provision, which was a part of an amending section (section 6), proceeds as follows:

"By section 5 all the powers of the company were vested in and could be exercised by the directors. Clearly, under this authority no by-law can be established by the directors that does not conform to the laws of the State, and this whether the laws were in force when the amended charter was granted or came into operation afterwards. The power of the company for the regulation of its own affairs was thus in express terms subjected to the legislative control of the State. The corporate power was a continuing one, and intended for the ordering of the affairs of the company as circumstances might, from time to time, require. The reserved control by the State was also continuing in its nature, and manifestly intended for the protection of the public whenever, in the judgment of the legislative department of the government, the necessity should arise.

"Then follows the special provision on which the claim of a contract is predicated. It is as follows:

The board of directors shall have power to establish 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 the company.'"

. In commenting upon this the court said:

"Grants of immunity from legitimate governmental control are never to be presumed. On the contrary, the