its power to construct a public highway to a corporation or an individual and with that power its right of eminent domain in order to secure the public use; and may make the traffic of the highway common to all on such terms as it may impose. In such case it is its duty to secure that common traffic, when refused, by the authority of its courts. (People v. Collins, 19 Wend. 56; People v. Commissioners of Salem, 1 Cow. 23.) Or it may grant the same powers of construction and maintenance with the exclusive enjoyment of use which the manner of use requires, and if that excludes all common travel and transportation it may impose on the corporation or person, the duty to furnish every requisite facility for carrying passengers and freight, and to carry both in such manner and at such times as public needs may require. Why is that duty, in respect of the power to compel its performance through the courts, not in the category of all others intrusted to such a body? The writ of mandamus has been awarded to compel a company to operate its road as one continuous line (Union Pacific R. R. Co. v. Hall, 91 U. S. 343); to compel the running of passenger trains to the terminus of the road (State v. H. and N. H. Ry. Co., 29 Conn. 538); to compel the company to make fences and cattle guards (People ex rel. Garbutt v. Rochester State Line R. R. Co., 14 Hun, 373; S. C., 76 N. Y. 294); to compel it to build a bridge (People ex rel. Kimball v. B. and A. R. R. Co., 70 N. Y. 569); to compel it to construct its road across streams, so as not to interfere with navigation (State v. N. E. R. R. Co., 9 Richardson, 247); to compel it to run daily trains (In re New Brunswick, etc., R. R., 1 P. & B. 667); to compel the delivery of grain at a particular elevator (Chicago and Northwestern R. R. Co. v. People, 56 Ill. 365); to compel the completion of its road (Farmers' Loan and Trust Company v. Henning, 17 Am. Law Reg. (N. S.) 266); to compel the grading of its track so as to make crossings convenient and useful (People ex rel. Green v. D. and C. R. Co., 58 N. Y. 152; N. Y. C. and H. R. R. R. Co. v. People, 12 Hun, 195; S. C. 74 N. Y. 302; Indianapolis R. R. Co. v. The State, 37 Ind. 489); to compel the re-establishment of an abandoned station (State v. R. R., 37 Conn. 154); to compel the replacement of a track taken up in violation of its charter (Rex v. Severn and Wye Ry. Co., 2 Barn. & Ald. 646); to prevent the abandonment of a road once completed (Talcott v. Pine Grove, supra, 1 Flippin, 145); and to compel a company to exercise its franchise (People v. A. and V. R. R. Co., 24 N. Y. 261). These are all ex

press or implied obligations arising from the charters of the railroad companies, but not more so than the duty to carry freight and passengers. That duty is, indeed, the ultima ratio of their existence; the great and sole public good for the attainment and accomplishment of which all the other powers and duties are given or imposed. It is strangely illogical to assert that the State, through the courts, may compel the performance of every step necessary to bring a corporation into a condition of readiness to do the very thing for which it is created, but is then powerless to compel the doing of the thing itself.

"We cannot bring our minds to entertain a doubt that a railroad corporation is compellable by mandamus to exercise its duties as a carrier of freight and passengers; and that the power so to compel it rests equally firmly on the ground that that duty is a public trust, which having been conferred by the State and accepted by the corporation may be enforced for the public benefit; and also upon the contract between the corporation and the State, expressed in its charter or implied by the acceptance of the franchise (Abbott v. Johnstown R. R. Co., 80 N. Y. 31); and also upon the ground that the common right of all the people to travel and carry upon every public highway of the State has been changed in the special instance, by the legislature for adequate reasons into a corporate franchise, to be exercised solely by a corporate body for the public benefit, to the exclusion of all other persons, whereby it has become the duty of the State to see to it that the franchise so put in trust be faithfully administered by the trustee."

As to railroads, the legal ground on which rests this right of state control, is comparatively simple, and is easily comprehended. Railroad companies get their existence, and their property, largely under grant from the state.

But in Munn v. People of Illinois, there arose a most interesting and novel question, as to the right of the State of Illinois to fix by statute the rates of compensation to be charged by the owners of grain elevators for the use of those elevators, it being the conceded fact that the elevators were private property, owned by private individuals, acquired by ordinary private purchase. The legislature of the State of Illinois had passed a statute fixing the

maximum rates to be charged for the use of the elevators in the storage and transportation of grain in transit from the interior to the seaboard, and making it an indictable misdemeanor to charge any rate above the rates so fixed. There had been an indictment and conviction in the State court below for such an overcharge; and from the judgment on such conviction an appeal was taken to the United States Supreme Court. The position taken by the defense, which especially comes under our notice, was that the enforcement of this statutory regulation "deprived" the owners of the elevators" of their property without due process of law." It appeared in the case, though the Supreme Court appeared to give no considerable weight to the point, that a provision of the Illinois constitution (Art. XIII., sec. 5) required all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit connections with elevators to be made with their tracks; so that all these elevators might be reached by the cars on their railroads. The inference was fair, that the elevators in question had been connected with different railroads by virtue of these constitutional provisions. It also appeared, that the elevators in question, with a limited number of other similar ones, had virtually the entire control of the transit of grain in bulk through the city of Chicago. The decision of the Supreme Court, sustaining the conviction in the State court, went on the ground of the public nature of the employment, that the owners of the warehouses exercised "a sort of public office," that their property, though conceded to be private property, was "devoted to a public use." To give an adequate idea of the reasoning of the court, it will be well here to give an extract from the opinion. It is as follows :(a)

66

This brings us to inquire as to the principles upon which this

power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. L. Tr., 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.

in his treatise De Jure A right of franchise or

"Thus, as to ferries, Lord Hale says, Maris, 1 Harg. L. Tr., 6, the King has privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the King. He may make a ferry for his own use or the use of his family, but not for the common use of all the King's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz.: that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable.' So if one owns the soil and landing-places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the King, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare.

66

And, again, as to wharves and wharfingers, Lord Hale, in his treatise, De Portibus Maris, already cited, says:

"A man, for his own private advantage, inay, in a port or town,

...

set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage, for he doth no more than is lawful for any man to do, viz.: makes the most of his own. If the King or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the Queen, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the King's license or charter. For now the wharf, and crane and other conveniences are effected with a public interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest.'

"This statement of the law by Lord Hale was cited with approbation and acted upon by Lord Kenyon at the beginning of the present century, in Bolt v. Stennett, 8 T. R., 606.

"And the same has been held as to warehouses and warehousemen.'

"From the same source comes the power to regulate the charges of common carriers, which was done in England as long ago as the third year of the reign of William and Mary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive preamble, to wit:

666

And whereas, divers wagoners and other carriers, by combination amongst themselves, have raised the prices of carriage of goods. in many places to excessive rates, to the great injury of the trade : Be it, therefore, enacted,' etc. 3 W. & M. ch. 12, sec. 24; 3 Stat. at L. (Gt. Britain), 481.

"Common carriers exercise a sort of public office, and have duties to perform in which the public is interested. N. J. Nav. Co. v. Merch. Bk., 6 How., 382.

"Their business is, therefore, affected with a public interest,' within the meaning of the doctrine which Lord Hale has so forcibly stated.

"But we need not go further. Enough has already been said to show that, when private property is devoted to a public use, it is