where compulsory. If they who resist their enforcement were alone the victims of the disease, society could afford to let them die "as the fool dieth." The question is whether society shall suffer on account of their folly. The right of society to protect itself in this matter is as clear as that of placing under restraint a homicidal maniac.

Meanwhile, cases of small-pox must be effectually isolated, and thorough measures of disinfection employed, under the direction of intelligent health-officers clothed with authority sufficient to enforce their regulations. The disease may in this way be "stamped out" whenever and wherever it makes its appearance.

The practicability of stamping out small-pox was demonstrated a few years since in New York. In the winter and spring of 1877, the disease prevailed largely in that city. Efficient measures for vaccination, revaccination, the isolation of cases, and disinfection were pursued under the direction of the Health Board. The result was that from June, 1877, until April, 1879, not a single case occurred. During this period, a few cases escaped quarantine and were introduced into the city, but without communication of the disease to others. This result, and the brilliant achievement of stamping out epidemic cholera in 1866 and 1867, show what may be accomplished by sanitary science in the hands of those who, in addition to scientific qualifications, possess executive ability, together with adequate means and legal authority for carrying out efficiently preventive measures. The public will by and by come to an appreciation of how much of life and of property is to be saved by proper laws and organizations for the protection of public health. The glory of having triumphed over an invisible and deadly foe in the form of an epidemic disease is less conspicuous, but vastly more real, than that of the successful warrior. All honor to the past and present members of the New York Metropolitan Board of Health for their able and valuable services, which have been rendered without much approbation or encouragement from those for whom they have labored!

AUSTIN FLINT.

THE RIGHT TO REGULATE RAILWAY CHARGES.

A VAGUE notion prevails, even among educated men, that a corporation is in some sort an instrumentality of the Government, and is by its very nature possessed of certain undefined attributes of sovereignty, by virtue of which it has immunities, and may do many acts entirely beyond the reach of an individual. Every day we see railroads commit wrongs that the private citizen would not dare attempt, while the officers of the law, dazzled by the stupendous proportions of the property and labor wielded by these corporations, perform their duty with the cringing servility of a constable who serves a writ upon his king. It is within bounds to say that our modern railroad president, operating three thousand miles of track and working twenty thousand men, all in uniform, labors under the mischievous hallucination that he is part and parcel of the Government, and represents in his person no inconsiderable part of the sovereignty of the State. We propose to correct this pernicious mistake. A simple illustration will remove a wide-spread misapprehension: Suppose that two companies are formed to build a hotel; twenty men associated as a partnership, and twenty other men associated as a corporation,-what is the difference between the powers of the two? It is imperatively necessary to dispel the wild notions prevalent among laymen, and to popularize an accurate conception of what is imported by this term.

Corporate association is simply an improvement upon, and a substitute for, partnership. A corporation is "a body consisting of one or more natural persons, established by law, and continued by a succession of members." The charter is simply a statute, which invests a person with certain six powers called "the corporate faculties "-namely, the power to act by a corpo

rate name, to have succession, a common seal, etc. As the ancient contentions between the Crown and certain English cities inculcated many principles respecting the immunities and powers of governmental corporations, which principles are entirely foreign to this discussion, it will relieve the confusion to discriminate between public and private corporations. A public corporation is an instrumentality of the Government, as a city or town, and every corporation which is not public is private, as lyceums, factories, railroads, etc. It is unnecessary to examine the powers and immunities of a public corporation, because we are only concerned with private bodies, such as lyceum companies, railroad companies, etc.

As soon as we attain a clear-cut idea of what is imputed by the term corporation; as soon as we comprehend that it means simply a body endowed with certain six faculties, not possessed by a natural person, and with these faculties only; as soon as we understand that the mere possession of these six powers constitutes that legal entity called "a corporation," then we are prepared to recognize the bearing and full force of the proposition that if a railroad company has any other immunity or power not possessed by a lyceum, such other immunity or power is due solely to the fact that the legislature has given to it some particular right which is in addition to the corporate faculties. Hence, these private corporations, such as lyceums and factories, which have only the six faculties, are easily separated from those other private corporations, such as bridges, railroads, and ferries, which have the faculties and also certain additional powers. The charter of a company of the first class contains a single clause-a grant of the six faculties; the charter of a company of the second class consists of two distinct parts: (1) a grant of the faculties-namely, a clause creating the corporation; and (2) a clause giving the body so created power to do certain specified acts, which cannot be lawfully done without legislative authority.

It is familiar knowledge that there are many things that the private citizen may not do. He cannot obstruct the highway of a river or blockade a street; but the Government may, and, in fact, often does, give to an individual a right to do one or the other of these acts. Suppose the legislature authorizes a bridge from Washington city to the Virginia shore; as ships could not pass, the Georgetown wharf-owner would be ruined, and ruined VOL. CXXXII.-NO. 295.

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without redress, because the bridge-builder only exercises a power conferred by the Government.* Now, observe the difference between the powers of this bridge-builder and the powers of his neighbor: the latter is not possessed of this right to obstruct the highway. It is obvious that a grant of the common corporate faculties would not authorize this bridge, and it is also obvious that the legislature will give such a right as this as freely to an individual as to a corporation; hence, to simplify the discussion, we observe that an inquiry into the right of the sovereign to regulate railroad charges does not involve a consideration of the corporate faculties, but that the same issue exactly would be presented if the prerogative rights which have been given to railroads had been given to an individual instead of to a corporation; in other words, as regards the question before us, the railroad occupies precisely the status of an individual to whom the Government has given a power to exercise certain of the prerogative rights.

In order, therefore, to determine the powers and immunities of a railroad, we must ascertain the nature, character, and extent of the several prerogative rights with which they are invested; and this requires us to develop a distinction between public and individual property. There is a palpable difference between the property of the Government and the property of the citizen. There are many items of property which belong to the Government-to the people at large, as distinguished from that owned by individuals. We may enumerate, as examples, the right to obstruct a highway-the bed of a navigable river; the right to take private property for the use of the community. The right to take toll is a very valuable and a very common item of public property. And some of these items are of great value. The right to obstruct Broadway with a railroad will sell for more money than any ten thousand acres of land in the valley of Virginia.

This distinction between public and individual property must not be confounded with the difference between ownership by the Government and ownership by a citizen. A horse which belongs to the state is spoken of as public property, and when owned by

* The wharf is valuable only because the owner, confiding in the wisdom and integrity of the legislature, does not believe it will exercise its discretion unwisely or capriciously—does not believe it will authorize the highway to be obstructed.

a citizen, as private property; but it always belongs to the class designated as individual property. So a franchise may become private, viz., may be owned by a citizen,-but it belongs, none the less, to the class called public property.

It is easy to define with strict accuracy the nature, character, and extent of each one of these several items of public property, because the limits of either of them may be marked out with as much precision as the boundaries of a farm. For example: if we analyze that estate in the Government called the right to obstruct a highway, we readily perceive a very characteristic boundary, or limitation-namely, such a right must be so exercised as will, in the judgment of the sovereign, best attain the objects for which the highway was created; viz., the right is, and must ever remain, subject to be regulated, as to its use, by the sovereign. This continuing governmental control, which, like a division-fence between neighbors, separates public from individual property, is the essential principle of the estate. If it be taken away, the very nature of the estate is changed, and a new and a different estate will be created, which will be a prodigy entirely unknown to our scheme of civil polity.

If we fairly comprehend the nature and extent of this item of public property while it is in the hands of the Government, then we readily understand that its nature and extent are not altered, in the slightest particular, by the circumstance that it has been given to an individual, precisely as the boundaries of the farm remain the same after a sale.

We shall not enumerate the several items of public property; it is sufficient to remark that if a right cannot be legally exercised by a citizen unless and until he first obtains a gift of such right from the Government, and if, after such gift, the right continues subject to the supervision and regulation of the sovereign, then it belongs to the class under consideration.

Waiving an examination of that judicial reasoning which has departed from correct principle and which seems to establish certain conclusions different from the results of this paper, we may remark that many decisions, in apparent conflict with the views here advanced, rest upon a distinction between the acts of the Government as a corporation and its acts as a sovereign.* When the Government buys a horse or makes a contract, it acts

* U. S. v. Maurice, 2 Brock., 2 Greenleaf's Cruise, 67.