that while this rule has been without dispute or controversy applied to private persons, who are common carriers, it has been most strenuously resisted when applied to railroad companies. But in these Granger cases it was decided, as I understand them, and very properly decided to be equally applicable to railroad companies. The reason, I apprehend, of this strenuous resistance was simply the fact, that railroad companies have become very rich and powerful corporations, who were unwilling to have their charges for transporting goods and persons regulated by the public, though all other common carriers had ever submitted without controversy to have their charges regulated by the courts or by the legislature. These decisions in these Granger cases Justice Field thought would "have a great influence in repelling in the future investment in railroads;" and he regarded, that property invested in railroads was made subject "to practical confiscation" by these decisions. (94 U. S. p. 184.) I can not see that these decisions are calculated to produce any such effect. "All railroad property is devoted to a use, in which the public has an interest." The interest, which the public has in this use, is of the greatest importance to the well-being of the public. If the legislature was to so reduce the charges of railroad companies as to operate as a practical confiscation of railroad property, as Justice Field seems to have feared, is it not obvious, that the legislature would inflict on the public, by whom they were elected, and whom they represent, a great wrong and injury? For in so reducing the charges of railroad companies far below what was just is it not obvious, that they would cripple these companies and finally break up and destroy the railroads? What greater injury could the legislature inflict on the public? I can not believe that the fixing of railroad charges could be put in safer hands to guard against injustice to railroad companies than in those of the legislature, who would be very cautious not to cripple or destroy railroads, on whose continuance and prosperity the public so much depend. These Granger cases were decided in 1876; and almost every railroad company, which has been incorporated in the United States since that time, has been subject to the control of its charges by the legislature not only by reason of these decisions but by express provisions inserted in their charters or in the constitutions of many of the States, which have granted these charters, yet it is notorious, that the amount of capital invested in railroads in the United States is increasing every year. The increase of late has been enormously rapid. The fact is conclusive, that no practical mischief can result from its being universally admitted, that every railroad company in the United States is subject to have its charges regulated and fixed by statute-law. So far from any mischief resulting from this acknowledgment by all, that this is the law, I do believe, that much good would result and especially would good result to the railroad companies. For so long as they insist in fixing their rates of charge according to their own pleasure in defiance of statute-law, so long will bitter prejudices be stirred up, and injustice and wrong will be done to them by a public, who but for this unwarrantable claim would regard the companies with favor as general benefactors. So far I have considered the question involved in this case without reference to any provisions in the Constitution of the United States. There is no provision in that constitution or in the constitution of our State, which in any manner affects the questions I have been discussing. In Munn v. Illinois it was claimed, that this fixing by the legislature of the charges made by private persons for the use of their property, which they had devoted to a use, in which the public had an interest, was a violation of the Fourteenth Amendment of the Constitution of the United States. But the court decided otherwise for reasons, which seem to me to be entirely satisfactory. The court says on page 123, that the laws of Illinois fixing the maximum of charges for the storage of grain in warehouses at Chicago is not repugnant as claimed to that part of the Fourteenth Amendment of the Constitution of the United States, which ordains 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 law." On this subject Chief Justice Waite in delivering the opinion of the court says: "Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is a doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word 'deprive' as used in the fourteenth amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or like connection. While this provision of the amendment is new in the Constitution of the United States, it is old as a principle of civilized government. It is found in the Magna Charta, and in substance, if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union." By the fifth amendment it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the fourteenth as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. When one becomes a member of society, he necessarily parts with some rights or privileges, which as an individual not affected by his relation to others he might retain. A body politic as aptly defined in the preamble of the constitution of Massachusetts, is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Company, 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure others. This is the very essence of government, and has found expression in the maxim sic utere tuo non alienum lædas. From this source come the police-powers, which, as was said by Mr. Chief Justice Taney in the license cases, 5 How. 583, 'are nothing more nor less than the powers of government inherent in every sovereignty that is to say * * * the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one toward another, and the manner each shall * * * use his own property, when such regulations become necessary for the public good. In their exercise it has become customary in England from time immemorial, and in this country from its first organization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charges to be made for services rendered, accommodations furnished, and articles sold. * * * * * "To this day statutes are found in many States upon some or all of these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the fifth amendment in force Congress in 1820 conferred powers upon the city of Washington 'to regulate the rates of wharfage at private wharves, * *the sweeping of chimneys, and to fix the rate of fees therefor * * * * and the weight and quality of bread,' 3 stat. 587, sec. 7, and in 1848 to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commissioners, of auctioneers, Id. 724 sec. 2. From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not all. The amendment does not change the law in this particular, but simply prevents States from doing that which will operate as such deprivation." The Chief Justice then at length proceeds to inquire into the principles, upon which such power of regulation rests, and to determine what is within and what without its operative effect. The conclusion he reaches is, that "when the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use and must to the extent of that interest, submit to be controlled by the public for the common good." This conclusion is reached by the reasoning and on the authorities I have before cited in reaching the same conclusion. In fact my reasoning as well as my authorities to uphold this conclusion is to a very great extent but a conclusion of his. Under this case it must follow, that the public has a right to control the charges of common carriers; for unquestionably they have devoted their property to a use, in which the public has an interest, as has been universally admitted; and this right of the legislature to fix the charges of common carriers is in no manner affected by the Fourteenth Amendment of the Constitution of the United States. Of course it must follow that the legislatures have a right to fix the charges of railroad companies; and that this right is in no manner affected by the Fourteenth Amendment of the Constitution of the United States. Railroad companies are but common carriers and like all other common carriers can have their charges regulated by the legislature from time to time; and this right to so regulate their charges is in no manner affected by the Fourteenth Amendment of the Constitution. decided in the Granger cases before referred to. This was In the last of these cases, Stone v. Wisconsin, 94 U. S. R. p. 185, Justice Field in his dissenting opinion says: "The charter of a corporation being a contract, a sufficient consideration for the privileges and franchises conferred being found in the duties and liabilities aforesaid by the corporators, 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 charter, and, consequently, what privileges does it confer and what restraint does it impose upon legislative interference? The rights and privileges implied in the contract are equally inviolable as those expressed." This is unquestionably true when applied to a strictly private corporation. The charter of such private corporation is almost universally admitted to be a contract; and the legislature cannot without the consent of such private corporation alter its charter in a material respect, for such act would impair the obligations of such charter, which is a contract, and would therefore be unconstitutional and void. This was |