nor less than the powers of government inherent in every sovereignty to the extent of its dominions; the power to govern men and things. It is a rule of the common law, that, when one devotes his property to a use in which the public has an interest. he, in effect, grants to the public an interest in the use, and his property thereby becomes "affected with a public interest,” and ceases to be "juris privati only," and becomes subject to regulation by the state in the interest of the public. This rule of the common law became a part of the municipal law of the American colonies and also of the states, and in the exercise of it they have prescribed regulations, including maximum rates to be charged, controlling common carriers, ferries. warehousemen, wharfingers, millers, and others whose property is devoted to a public use; and the principle has been applied by the state of Illinois to grain elevators or grain warehouses by a statute fixing the maximum of charges for the storage of grain in the city of Chicago and other places in the state having not less than one hunderd thousand inhabitants. It was claimed, upon writ of error, that this Illinois statute was repugnant to certain provisions of the federal constitution, among others the fourteenth amendment, in that it deprived the owners of the elevators of their property, without due process of law, and denied them the equal protection of the law; but the supreme court overruled these contentions and upheld the validity of the statute. In a subsequent case, in which it was alleged, en writ of error, that a statute of New York fixing the maximum charge for elevating, receiving, weighing and discharging grain, by floating and stationary elevators, was unconstitu tional, because contrary to the provisions of the first section of the fourteenth amendment to the constitution of the United States, and in which the decision in the Illinois case was questioned, the supreme court, after reviewing the cases, in an opinion upholding the New York statute, said: "It is thus apparent that this court has adhered to the decision in Munn against Illinois and to the doctrines announced in the opinion of the court in that case; and those doctrines have since been repeatedly enforced in the decisions of the courts of the states."' 43

42

42 Munn v. Illinois, 94 U. S. 113, 154 (24:77).

43 Budd v. State of New York, 142 U. S. 517, 552 (36:247).

§ 194. Same-Regulation of railroads.-Railroad companies are common or public carriers for hire, incorporated as such with extraordinary powers in order that they may the better serve the public in that capacity, engaged in a public employment affecting the public interest, and their property is devoted to a public use and affected with a public interest, and has ceased to be jus privati only; and, therefore, the state, in the exercise of its police power, may, within constitutional limits, by general statutes, or by administrative bodies, regulate he use of railroads within the jurisdiction of the state, and fix maximum rates of charges for the transportation of persons and property, when not forbidden by valid charter contract, without depriv ing the corporations owning and operating railroads within the state of their property without due process of law, or denying them the equal protection of the laws, within the meaning of the fourteenth amendment to the constitution; and this power may be exercised in relation to a railroad although the act incorporating the company owning and operating it granted to such company the power from time to time to fix, regulate and receive the tolls and charges to be received by it for the transportation of persons and property," and the fact that a railroad company has been organized and created under the laws of the United States does not exempt its railroad property from the police power of the state, nor from its taxing power. But the state cannot, under pretense of regulating fares and freights, require a railroad corporation to carry persons or property without just and reasonable compensation; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law, nor which amounts to an unconstitutional denial of the equal protection of the laws. Legislation by the

44 Chicago & Northwestern Rail. way Co. v. Fuller, 17 Wall. 566, 570 (21:710); Chicago, Burlington & Quincy Railroad Company v. Cutts, 94 U. S. 155, 187 (24.94); Peik v. Chicago & Northwestern Railroad Co., 94 U. S. 164, 178 (24:97); Stone v. Farmers Loan & Trust Co., 116 U. S. 307, 347 (29:636); Railroad Co. v. Rich

47

46

mond, 96 U. S. 529 (24:737); Munn V. Illinois, 94 U. S. 134 (24:77).

45 Reagan v. Mercantile Trust Co., 154 U. S. 413, 418 (38:1028).

46 Union Pac. R. Co. v. Peniston, 18 Wall. 5, 36 (21:787); Thompson v. Union Pac. R. Co., 9 Wall. 579 (19:792).

47 Reagan v. Farmers Loan &

state, regulating and supervising the operation of railroads is not, in the sense of the constitution, a regulation of commerce; it is a police regulation, and, as such, forms "a portion of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves." 48

§ 195. Same-Same-The state may prohibit consolidation of parallel railway lines.-In the judicial delimitation between the commercial power of the United States, and the police power of the states, a general rule of constitutional construction, reeognized and acted on by the courts is, that whatever is contrary to public policy or inimical to the public interest, is subject to the police power of the state, and within legislative control, and in the exercise of such power the legislature is vested with a large discretion, which, if exercised bona fide for the protection of the public, is beyond the reach of judicial inquiry; and the fact that state legislation, not directed against interstate commerce, but establishing police regulations of interstate railways, interferes indirectly and remotely or collaterally with that commerce, by imposing a burden upon its instrumentalities, and adds something to the cost of transportation by the expense incurred in conforming to such regulation, does not constitute such state legislation an interference with the commercial power of the United States; and while it is true. that the police power cannot be exercised over interstate commerce, yet it may be exercised over the instrumentalities of that commerce.49 And it is, accordingly, established, that the state may, in the exercise of its police power, forbid and restrain the consolidation of rival, parallel and competing railway lines situated within its territorial limits, whenever, in the

Trust Co., 154 U. S. 362, 413 (38:1014); Atlantic Coast Line R. Co. v. North Carolina Corp. Com., 206 U. S. 1-27 (51:930), and authorities cited.

48 Chicago & Northwestern Railway Co. v. Fuller, 17 Wall. 560, 570 (21:710); Louisville & Nashville Railroad Co. V. Commonwealth of Kentucky, 161 U. S. 677, 704 (40:849).

49 Louisville v. Nashville Railroad Co. v. Commonwealth of Ken. tucky, 161 U. S. 677, 704 (40:849); Sherlock v. Alling, 93 U. S. 99 (23:819); Munn v. Illinois, 94 U. S. 113, 154 (24:77); R. Co. v. Cutts, 94 U. S. 155 (24:94); Smith v. Alabama, 124 U. S. 465, 483 (31:508).

opinion of the legislature, such consolidation is calculated to injuriously affect the public interest, although such railways are instrumentalities of, and are engaged in interstate commerce.50 A railway company has no power to purchase or acquire the capital stock, franchise and property of another railway company, unless such power is granted by the state; and such power, when granted, is, so long as it remains unexecuted, not a contract, but a mere license, and is revocable by the state; and a provision in a state constitution, prohibiting the consolidation of the capital stock, franchises or property, or the acquiring by purchase or lease of parallel or competing lines of railroad, which was adopted after the granting of a charter power authorizing a railroad company to purchase a parallel line, but before the power was executed, does not impair the obligation of any charter contract.51 And where by a railway charter, a general power is given to the company incorporated by it to consolidate with, purchase, lease, or acquire the stock of other railroads, which power has remained unexecuted, it is within the competency of the legislature to declare, by subsequent acts, that this power shall not extend to the purchase or lease of or consolidation with parallel or competing lines.52 A statute authorizing two railroad companies to consolidate upon "such terms as they may agree upon," or other words of similar import, means such terms as they may agree upon "consistent with the law as announced in their charters and otherwise."' 53 A consolidation of the stock of two or more railroads results uniformly and necessarily in the creation of a new corporation, and as of the date of the deed of consolidation; and where the charters of the constituent companies contain an exemption of their property from taxation, and, during the time intervening between the incorporation of the constituent companies and the consolidation, a state constitutional provision

50 Louisville v. Nashville Railroad Co. V. Commonwealth of Kentucky, 161 U. S. 677, 704 (40: 849); Pearsall v. Great Northern R. Co., 161 U. S. 646, 677 (40:836). 51 Louisville & Nashville Railroad Co. v. Commonwealth of Kentucky, 161 U. S. 677, 704 (40:849);

Adams v. Railroad Co., 77 Miss. 194, 24 S. R. 200.

52 Pearsall v. Great Northern R. Co., 161 U. S. 646, 677 (40:838).

53 Adams V. Railroad Co., 77 Miss. 194, 24 S. R. 200; Railroad Co. v. Adams, 180 U. S. 1, 25 (45:395).

is adopted inhibiting the exemption of railroad property from taxation, the new corporation comes into existence subject to the existing constitution, and the exemptions of the constituent companies are lost.54

§ 196. Same-Maintaining safety of railroad crossing.-The states, in the exercise of the police power, may enact all laws and prescribe all regulations necessary and proper to secure the safety of the public against the dangers arising from the crossing of streets and public highways by railroads, without violating the inhibitions of the constitution of the United States againts the impairment of the obligation of contracts, the deprivation of property without due process of law, and the denial of the equal protection of the laws; and where a railroad crosses a street at an important point in a populous city, it is not competent for the city and the railroad company, by entering into an agreement between themselves, to withdraw the subject from the police power of the state, and substitute their views of the public necessities and the public safety for those of the legislature. In all such cases, it is the paramount duty of the state legislature to secure the safety of the community by appropriate legislation, and it has the power to supervise, control and change any such agreements as may be from time to time entered into between cities and railroad companies in respect to such crossings, saving any rights previously vested. The governmental power of self-protection belonging to the states, called the police power, cannot be contracted away; nor can the exercise of rights, nor the use of property, be withdrawn from the liability to governmental regulation and control in particulars essential to the preservation of the community from danger. The state is vested with the govern

54 Adams v. Railroad Co., 77 Miss. 194, 24 S. R. 200; Ry. Co. V. Berry, 113 U. S. 465, 476 (28:1055); Keokuk & W. R. Co. v. Missouri, 152 U. S. 308 (38:454); Railroad Co. v. Adams, 180 U. S. 1, 25 (45:395). For a full and learned discussion of the subject of railway consolidation, see the opinion of Mr. Justice Whitfield in Adams v. Railway Co., 77 Miss. 194, supra. 55 Chicago, Burlington & Quincy

Railroad Co. v. State of Nebraska ex rel. City of Omaha, 170 U. S. 57, 77 (42:948); New York and New England R. R. Co. v. Town of Bristol, 151 U. S. 556, 571 (38:269); Mooney v. Clark, 69 Conn. 254, 37 Atl. 509; Newton v. New York, etc., Railroad, 72 Conn. 429, 44 Atl. 816; Norwood v. New York, etc., Railroad, 161 Mass. 265, 37 N. E. 201.