Co., supra, speaks of this as the actual exercise of the power of eminent domain. Both cases were, however, referring to the conferring of a franchise not of common right and its acceptance imposing obligation to the public, the grantor of the franchise. But none of these cases pertained directly to the question of regulation of rates. They are only authority for the question of uniformity of right in the members of the public in the burden imposed by the acceptance of a charter conferring privileges. That this subject has taken on a greatly enlarged view it may be well to illustrate by reference to some still earlier cases. Thus, in a Connecticut case decided in 1862, it was held that a gas company was under duty arising out of privilege to use the public streets for its private advantage. A Louisiana case, however, decided in 1845,8 upheld the view expressed in the Gibbs case, as see also cases mentioned in this note, and many more might be cited. § 107a. Charter Authorizing Rate Regulation.—In an Ohio case decided in 1878,10 the validity of a statute restricting the price a gas company incorporated under a special charter might charge for the use of meters was attacked. The court, first referring to the principle in the Munn case that the public have an interest in property devoted to a public use, said: "The McCune v. Norwich City Gas Co., 30 Conn. 521. 8 New Orleans G. L. Co. v. Paulding, 12 Rob. (La.) 378. 10 State ex rel. v. Columbus G. L. & C. Co., 34 O. St. 572. principle applies with greater force to corporations when they are invested with franchises to be exercised to subserve the public interest. Deriving their powers by grant directly from the public, they are clearly subject to public control, in respect to the terms upon which their franchises are to be exercised, unless they are protected by their charters from such interference. As we find nothing in the terms of the charter of the defendant which protects it from legislative control in respect to the matter in question, the right, which it sets up to charge for the use of meters, in contravention of the statute, is without warrant in law." Later this court upheld a city ordinance regulating the price to be charged by a corporation for gas. Again reference was made to the Munn case and it was said: "The principle of the decision applied with much greater force to an incorporated company, enjoying a similar monopoly. And because prior to any legislation on the subject, it may have possessed the common law right of fixing its own prices, does not place it beyond the reach of any legislative control on the subject, whenever in the interest of the public good, it becomes necessary that such control be had." An Indiana case,12 decided in 1891, said: "The appellee in accepting its franchise and in entering upon its work, without exacting a stipulation reserving to itself the power to fix its own charges acted in full view of the reserved power of the city under the statute to regulate and establish maximum charges by which it should be governed." 11 Zanesville v. Zanesville G. L. Co., 47 O. St. 1. 12 Rushville v. Rushville Nat, Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321. It would seem, therefore, well within reason to assert that a franchise granted to a corporation enabling it to enjoy any privilege, which is not of common right, subjects its business to a corresponding control by the public and a sort of estoppel is raised against objection by it. The growth of corporations in our day and their rarity in common law days cause them to be differentiated, so far as the principles underlying control are concerned, or rather the application of these principles is intensified. If a corporation is created merely as an artificial entity-individuals to act merely in a corporate capacity-it is to be treated merely as an aggregation of individuals or as a partnership with limited responsibility as for corporate acts. Also the corporation is useful as a continuing entity notwithstanding death or any change in its corporate membership. But, in addition, its public character is defined aecording to the purposes for which it asks power to exercise any rights. 1 CHAPTER XXII. REGULATION BASED ON EXERCISE OF EMINENT DOMAIN § 108. Exercise of eminent domain based on public use. 109. Statutory declaration of public purpose. $108. Exercise of Eminent Domain Based on Public Use.-As seen in the cases cited1 the exercise of the right of eminent domain is alluded to among the privileges granted in chartering a corporation. It might be, however, that this right could be exercised by an individual, where a public use is to be subserved. It is well to reproduce here that part of the summary by Mr. Justice Lamar in his dissenting opinion in German Alliance Ins. Co. v. Lewis2 of businesses theretofore declared subject to rate regulation. As to that summary he further said: "It is to be noted that in each instance the power to regulate rates is exercised against a business which in every case used tangible property devoted to a public use. Some of them had a monopoly (Spring Water Co. v. Schottler, 110 U. S. 347, 354). Some of them had franchises, most of them used public ways or employed property which they had acquired by virtue of the power of eminent domain. They were therefore subject to the correlative obligation to have the use of what had been taken by law, fixed by law." A Georgia case, considered the constitutionality of an act giving to "any corporation 194, ante. 3 2 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915 C 1189. 3 Jones v. North Ga. Elec. Co., 125 Ga. 618, 53 S. E. 808. or individual" controlling any water power and operating a plant for generating electricity to be used for lighting cities, supplying motive power to railroads, and light, heat and power to the public the right of eminent domain. After sustaining the act the court proceeded to say that: "It is readily seen that one of the essential and constituent obligations of the individual who attempts to exercise the right of eminent domain under this act, is that he shall serve all the public fairly and without discrimination." It is to be noted that one of the cases cited to this principle is the Munn case and in that case it was expressly held that, where the owner of property is entitled to a reasonable compensation for its use, the question of what is reasonable compensation is more a legislative than a judicial question. In fact the common law rule which requires the charge to be reasonable is in itself a regulation as to price. "In countries where the common law prevails, it has been customary from time immemorial for the legislature to declare what shall be reasonable compensation. or to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially." A Minnesota case' says as to a corporation organized for a public purpose the same as described in the Jones case, supra, that by incorporation it obligated itself to "serve the public on equal terms and for a reasonable compensation," and "the state has granted the power of eminent domain in present terms 4 Minnesota C. & P. Co. v. Pratt, 101 Minn. 197, 112 N. W. 375. |