manded to the court below, with directions to proceed in conformity with this opinion. Ordered accordingly. (128 U. S. 174) GEORGIA RAILROAD & BANKING Co. v. (October 29, 1888.) In Error to the Supreme Court of the State of Georgia. With to one William M. Wadley, for the term of On the 14th of October, 1879, the legisla By an act of the legislature of Georgia, passed December 21, 1833, the plaintiff in error was incorporated under the name of the "Georgia Railroad Company," and empowered to construct a "rail or turnpike road from the city of Augusta," with branches extend-ture of Georgia passed an act entitled “An ing to certain towns in the state, and to be carried beyond those places at the discretion of the company. Laws 1833, p. 256. By an act of the legislature, passed December 18, 1835, certain amendments to the charter were made, and among others one changing its corporate name to “The Georgia Railroad and Banking Company," its present designation. The twelfth section of the charter, among other things, declares that "the said Georgia Railroad Company shall, at all times, have the exclusive right of transportation or conveyance of persons, merchandise, and produce, over the railroad and railroads to be by them constructed, while they see fit to exercise the exclusive right: provided, that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every one hundred miles; and five cents per mile for every passenger: provided, always, that the said company may, when they see fit, rent or farm out all or any part of their exclusive right of transportation or conveyance of persons, on the railroad or railroads, with the privilege to any individual or individuals, or other company, and for such term as may be agreed upon, subject to the rates above mentioned. And the said company, in the exercise of their right of carriage or transportation of persons or property, or the persons so taking from the company the right of transportation or conveyance, shall, so far as they act on the same, be regarded as common carriers." In pursuance of the authority conferred by this section, the company, by a deed bearing date on the 7th of May, 1881, leased act to provide for the regulation of railroad freight and passenger tariffs in this state, to prevent unjust discrimination and extortion in the rates charged for transportation of passengers and freight, and to prohibit railroad companies, corporations, and lessees in this state from charging other than just and reasonable rates, and to punish the same, and prescribe a mode of procedure and rules of evidence in relation thereto, and to appoint commissioners, and to prescribe their powers and duties in relation to the same." Laws 1879, p. 125. In pursuance of this act a board was constituted, designated the "Railroad Commission," composed of three members, originally consisting of James M. Smith, Campbell Wallace, and Samuel Barnett; but to the place of Samuel Barnett the defendant Leander N. Trammell has succeeded. This commission has prescribed rates for the transportation of freight and persons by railroad companies in the state, which are less than the maximum of rates authorized by the twelfth section of the charter of the company. The act imposes a penalty of not less than one or more than five thousand dollars for every violation of the rules and regulations thus prescribed. The company and the executor of the lessee accordingly filed their bill, in the case before us, in the superior court of Fulton county, Ga., against the railroad commissioners and the attorney general of the state, contending, among other things, that the charter of the company is a contract between it and the state of Georgia, and that by it the company has the right to charge any rates for freight and passengers not exceeding those limited in the twelfth section of its 22T. 178 charter, and that the act of October 14, 1879, | track or branches, or upon any railroad which is in conflict with the clause of the constitution it has the right to use, shall be deemed guilty of the United States which prohibits a state of extortion, and upon conviction thereof from passing any act impairing the obliga-shall be subject to certain penalties prescribed. tion of a contract. They pray in their bill The commissioners appointed are required to that the act may be declared null and void, make reasonable and just rates of freight and and inoperative against them, and that the passenger tariffs, to be observed by all railcommission may be enjoined from prescrib-road companies doing business in the state ing rates of fare and freight over the railroad of the company and its branches, or in any manner enforcing the provisions of the act against them. To this bill the defendants demurred, on the ground that it disclosed no case entitling the complainants to relief in equity, and that they had an adequate and complete remedy at law. The court sustained the demurrer, and dismissed the bill. On being taken to the supreme court of the state, the decree was affirmed; and to review it the case is brought to this court by the railroad company. J. B. Cumming and Ed. Baxter, for plaintiff in error. Clifford Anderson, for defendants in error. Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court. | As appears from the statement of the case, the contention in the court below of the company, the plaintiff in error here, so far as it embraced any federal question, was that the twelfth section of its charter constituted a grant of a right to charge the rates therein named; that it built its road and established its business with this grant as a part of its charter; and that such a grant is a contract between it and the state of Georgia, the obli- | gation of which cannot be impaired by its egislation; and this contention is renewed in this court. on their roads, and to provide for each of the companies a schedule of just and reasonable rates of charges for the transportation of passengers and freight; and the act declares that in suits brought against any of the companies, involving unjust charges or discriminations, such schedule shall be taken in the courts of the state as sufficient evidence that the rates prescribed are just and reasonable. The commissioners are required from time to time, and as often as circumstances may call for it, to change and revise the schedules, and penalties are prescribed for the enforcement of their regulations. The supreme court of the state held, on an application for an injunction in this case, that this delegation of authority by the legislature to the commissioners, to prescribe what shall be reasonable and just rates for the carriage and transportation of persons and property over railroads within its limits, was a proper exercise of its own power to provide protection to its citizens against unjust rates for such transportation, and to prevent unjust discriminations; and that it was expected, not that the legislature would itself make specific regulations as*to what should in each case be⚫ a proper charge, but that it would simply provide the means by which such rates should be ascertained and enforced. It has been adjudged by this court in numerous instances that the legislature of a The constitution of Georgia, adopted in state has the power to prescribe the charges December, 1877, vested in the "general as- of a railroad company for the carriage of persembly of the state," the designation given sons and merchandise within its limits, in to its legislature, the power to regulate "rail- the absence of any provision in the charter road freights and passenger tariffs," so as to of the company constituting a contract vestprevent unjust discriminations, and require ing in it authority over those matters, subreasonable and just rates; and made it the ject to the limitation that the carriage is not duty of that body to pass laws from time to required without reward, or upon conditions time to accomplish this end, and to prohibit, amounting to the taking of property for pubby adequate penalties, the charging of other lic use without just compensation; and that than such rates. Article 4, § 2, App. Code what is done does not amount to a regulaGa. 1882. Pursuant to this provision of the tion of foreign or interstate commerce. constitution, the act of October 14, 1879, was Stone v. Trust Co., 116 U. S. 307, 325, 331, 'passed, providing for the appointment of 6 Sup. Ct. Rep. 334, 388, 1191; Dow v. Beidthree railroad commissioners, and authoriz- elman, 125 U. S. 680, 8 Sup. Ct. Rep. 1028. ing them to prescribe the rates of fare which The incorporation of the company, by which railroad companies might charge for the car- numerous parties are permitted to act as a riage of persons and merchandise within the single body for the purposes of its creation, limits of the state. The act does not extend or, as Chief Justice MARSHALL expresses it, to interstate railroad transportation. Laws by which "the character and properties of Ga. 1878-79, p. 125. After authorizing the individuality" are bestowed on a collective appointment of the three commissioners by and changing body of men, (Bank v. Billings, the governor, the act declares that any railroad 4 Pet. 514, 562;) the grant to it of special company doing business in the state, after its privileges to carry out the object of its incorpassage, which shall charge or receive more poration, particularly the authority to exer than a fair and reasonable toll or compensa-cise the state's right of eminent domain that tion for the transportation of passengers or freight of any description, or for the use or transportation of any railroad car upon its it may appropriate needed property,—a right which can be exercised only for public purposes; and the obligation assumed by the ac ceptance of its charter, to transport all per- ture upon such terms as may be prescribed sons and merchandise, upon like conditions by law and accepted by the company. This and upon reasonable rates,-affect the prop-period has long since expired, and we are not erty and employment with a public use; and informed that any renewal of the privilege where property is thus affected, the business has been made. in which it is used is subject to legislative The difficulty attending the construction of control. So long as the use continues, the the clause following this one arises from the power of regulation remains; and the regu- doubt attached to the meaning of the term lation may extend not merely to provisions "provided." The general purpose of a profor the security of passengers and freight viso, as is well known, is to except the clause against accidents, and for the convenience of covered by it from the general provisions of the public, but also to prevent extortion by a statute, or from some provisions of it, or unreasonable charges, and favoritism by un- to qualify the operation of the statute in some just discriminations. This is not a new doc-particular. But it is often used in other trine, but an old doctrine, always asserted senses. It is a common practice in legislative whenever property or business is, by reason proceedings, on the consideration of bills, for of special privileges received from the gov-parties desirous of securing amendments to ernment, the better to secure the purposes to them to precede their proposed amendments which the property is dedicated or devoted, with the term "provided," so as to declare affected with a public use. There have been that, notwithstanding existing provisions, differences of opinion among the judges of this the one thus expressed is to prevail; thus havcourt in some cases as to the circumstances ing no greater signification than would be ator conditions under which some kinds of tached to the conjunction “but” or “and” in property or business may be properly held to the same place, and simply serving to sepabe thus affected, as in Munn v. Illinois, 94 rate or distinguish the different paragraphs U. S. 113, 126, 139, 146; but none as to the or sentences. Several illustrations are given doctrine that, when such use exists, the bus- by counsel of the use of the term in this sense, iness becomes subject to legislative control showing, in such cases, where an amendment in all respects necessary to protect the public has been made, though the provision followagainst danger, injustice, and oppression. ing often has no relation to what precedes it. In almost every case which has been before It does not matter, in the present case, this court, where the power of the state to whether the term be construed as imposing regulate the rates of charges of railroad com- a condition on the preceding exclusive grant panies for the transportation of persons and to the company of the privilege of transportfreight within its jurisdiction has been under ing passengers and merchandise over its own consideration, the question discussed has not roads, or be considered merely as a conjuncbeen the original power of the state over the tion to an independent paragraph, declaring subject, but whether that power had not a limitation upon the charges which the combeen, by stipulations of the charter, or other pany may make. If considered as a condilegislation, amounting to a contract, surren- tion to the enjoyment of the exclusive right dered to the company, or been in some man-designated, then the section only provides ner qualified. It is only upon the latter that, so long as the maximum of rates specpoint that there have been differences of opinion. ified is not exceeded, the company or its les see shall have the exclusive right to carry The question then arises whether there is passengers and merchandise over its roads. in the twelfth section of the charter of the It contains no stipulation, nor is any implaintiff in error a contract that it may make plied, as to any future action of the legisla any charges within the limits there desig-ture. If the exclusive right remain undisnated. The first clause would seem to have turbed, there can be no just ground of combeen framed upon the theory, which obtained plaint that other limitations than those exvery generally at the date of the charter, pressed are placed upon the charges authorthat a railroad was subject, like an ordinary ized. It would require much clearer language wagon road, to the use of all persons who than this to justify us in*holding that, notwere able to place the necessary conveyances withstanding any altered conditions of the upon it. It was then generally supposed that, country in the future, the legislature had, in while the company constructing the road was 1833, contracted that the company might, for the owner of the road-bed, any one could run all time, charge rates for transportation of cars upon it upon payment of established tolls, persons and property over its line up to the and following the regulations prescribed for limits there designated. It is conceded that the management of trains; and some charters a railroad corporation is a private corporagranted at that period contained schedules of tion, though its uses are public, and that a charges for such use. But this notion has contract embodied in terms in its provisions, long since been abandoned as impracticable. or necessarily implied by them, is within the Railroad Co. v. U. S., 93 U. S. 442, 446-449. constitutional clause prohibiting legislation The section grants to the company the exclus- impairing the obligation of contracts. If the ive right of transportation of persons and charter in this way provides that the charges merchandise over its road, a right which in which the company may make for its services another part of the act is limited to 36 years, in the transportation of persons and property and then expires unless renewed by the legis-shall be subject only to its own control up to v.9s.c.-4 the limit designated, exemption from legis- thereabouts, now in New Orleans, and Mess. lative interference within that limit will be Gomila & Co., of New Orleans, merchants, maintained. But to effect this result, the that the said steamer shall, with all convenexemption must appear by such clear and un-ient speed, proceed to New Orleans, or so near mistakable language that it cannot be rea- thereto as she may safely get; and there, besonably construed consistently with the res- ing in hull, boilers, and machinery tight, ervation of the power by the state. There is staunch, and strong, classed 100 A 1, and no such language in the present case. The every way fitted for the voyage, shall load as contention of the plaintiff in error therefore customary at such safe loading berth, always fails, and the judgment must be affirmed. afloat, as ordered by charterers on arrival, (and, if afterwards required by them to shift, they to pay the ordinary expense of towing,) (128 U. S. 135) CULLIFORD et al. v. VINET et al.' SHIPPING -PER and a full and complete cargo of wheat maize and or and or or rye in bulk ship's sacks, as customA clause in a charter-party, that the charterers might cancel it if the vessel should not be ready to load by a day specified, was waived, and no ary, which is to be brought to and taken day specified for the readiness of the vessel to from along-side, as customary, at merchants' load. The charter-party provided that the 16 risk and expense, at ports of loading and disrunning lay-days were to commence after written notice given by the master of readiness to charge, (all lighterage required to be paid for receive cargo. It was guarantied that the ves- by cargo,) and at charterers' risk, not exceed. sel would carry 10,000 quarters of corn. No writing what she can reasonably carry over and ten notice was given, but the loading commenced above her tackle, apparel, fuel, provisions, on June 28th, with the consent of all parties, and continued until the afternoon of June 30th, when and furniture; and, being so loaded, shall the inspectors declared the vessel full all over, therewith proceed, under steam, to a safe and stopped further loading, only 9,635 quarters port, always afloat, in the United Kingdom having been loaded. After negotiation on both sides, and attempts by the charterers to dispose or on the Continent, between Bordeaux and of the incomplete cargo, the latter, on July 5th, Hamburg, both inclusive, excluding Rouen, notified the shippers that they would sell the calling at Queenstown or Falmouth for orcargo at the shippers' risk. The next day the ders, which are to be given within twelve shippers notified the charterers that they could make room for the balance of the cargo, and that hours of arrival, or lay-days to count, or so the vessel would be ready on the 7th. The char- near thereunto as she may safely get, one terers refused this proposal, and sold the cargo on port only to be used, and deliver the same on the 7th. On the 13th, room having been made, being paid freight, all in British sterling, as the vessel was again tendered to the charterers, and the balance of cargo demanded. This was follows: Five shillings and three pence sterfurnished by third parties, and the vessel sailed ling per quarter of 480 pounds weight, delivon the 18th. No notice was given by the char-ered in full, if calling at Queenstown or Falterers that they considered the charter-party mouth or ordered direct to Continent; if orat an end because of the breach of the guaranty, prior to the sale of July 7th. Held, that the dered to Continent from port of call, ten per shippers had complied with their guaranty with- cent. additional; if ordered to United Kingin a reasonable time, and were not liable for dam- dom direct, three pence off. Charterers having option of Elsinore for orders to discharge at Copenhagen or Aarhuns, at five shillings and nine pence per quarter of 480 lbs. Steamer is guarantied to carry not less than ten thousand quarters of 480 lbs. ages. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. J R. Beckwith and Jas. McConnell, for appellants. J. D. Rouse, Wm. Grant, and J. Ward Gurley, for appellees. BLATCHFORD, J. This is a libel in admiralty, in personam, filed in the district court of the United States for the Eastern district of Louisiana, on the 9th of July, 1883, by A. J. Gomila and Learned Torrey, composing the firm of Gomila & Co., against J. H. W. Culliford and John S. Clark, composing the firm of Gulliford & Clark, as owners of the steam-ship Deronda, a British vessel, to recover damages for the alleged breach of a charter-party entered into at New Orleans on the 19th of June, 1883, chartering that vessel to Gomila & Co. The material parts of the charter-party are as follows: "It is this day mutually agreed between De Wolf & Hammond, as agents of the steamship Deronda, of 1,090 tons net register or 'Reversing 20 Fed. Rep. 734. * "(13) Sixteen running days, Sundays excepted, are to be allowed the said merchants (if the steamer is not sooner dispatched) for loading and discharging, and ten days on demurrage, over and above the said lay-days, at six pence sterling per gross register ton per day. "(14) Should the steamer not be ready to load at New Orleans on or before the charterers or their agents have the option of canceling this charter. "(15) Lay-days to commence the day after 136 * * * the steamer is declared ready to receive cargo, | all parties, was canceled, and a new charter. and having been passed by the surveyor of party for the vessel was entered into, with E. grain vessels, and written notice given by Forestier & Co. as charterers; that the vesthe master to the charterers or their agents. sel was loaded under such new charter-party, which, in all of its conditions, had been performed on the part of the vessel; that the vessel carried and delivered the 10,000 quarters of grain, according to the guaranty contained in the charter-party with E. Forestier & Co.; and that the libelants had sustained no loss by any act of the respondents. There "(19) Penalty for non-performance of this agreement, estimated amount of freight." The charter-party was signed by De Wolf & Hammond, as agents of the vessel, and by Gomila & Co. reported as Gomila v. Culliford, 20 Fed. Rep. 734. The respondents and their sureties, and also the libelants, appealed from that decree to the circuit court. Further proofs were taken in the circuit court; and that court, on the 28th of February, 1885, filed its findings. of fact and conclusions of law, and rendered a decree in favor of the libelants, against the respondents, and against Miller and Carriere, as such sureties, for $23,993.76 damages, with 5 per cent. interest from June 30, 1883, until paid, and costs of suit. The libel alleges that on the 28th of June, 1883, the libelants provided and furnished afis also a denial of the allegations of the libel cargo of 10,000 quarters, of 480 pounds each, that the libelants had performed all the unof corn, to the vessel, for her voyage; that the dertakings on their part, in the charter-party loading was then commenced and proceeded with them. The case was tried in the diswith until June 30, 1883, when all further trict court, on proofs taken on both sides; loading of cargo was stopped by official order and on the 2d of June, 1884, that court enof the marine inspector of the port, who tered a decree in favor of the libellants for was present at the time, and who pronounced $9,360.97, with 5 per cent. interest from the vessel full all over, as in fact and truth it | June 30, 1883, until paid, and costs of suit, was; that when the loading was so stopped, against the respondents and against Thomas and the vessel declared to have a full and D. Miller and Emile L. Carriere, as sureties complete cargo, only 82,588 2-56 bushels, in the bond releasing the vessel from attachthe equivalent of 9,635 130-480 quarters of ment. The decision of the district court is. 480 pounds each, had been loaded on the vessel, and it was in fact impossible to properly stow in her any greater quantity, and she was entirely unable to carry the 10,000 quarters of 480 pounds each; that the respondents wholly failed to comply with the said guaranty; that, in consequence thereof, the libelants were prevented from fulfilling their contract of sale of the 10,000 quarters of corn of 480 pounds each, with special reference to which they had entered into the charter-party; that afterwards the libelants, in order to save loss as far as possible, offered the cargo, which was so loaded on the vessel, to the respondents at the price at which the libelants had sold it, which offer was refused by the respondents; that, all other negotiations for a settlement failing, the libelants were obliged to have the cargo sold, for ac- "Bought from Gomila & Co., by Messrs. count of whom it might concern, which was E. Forestier & Co., at the price of (60 cts.) done, at public auction, on the 7th of July, sixty cents per bushel of 56 lbs., on board 1883, after notice to the respondents, through seller's vessel, with freight at (6s.) six shilDe Wolf & Hammond, and advertisement lings per quarter, and to be shipped from in the newspapers of New Orleans, that be- New Orleans during the month of June, not ing in the opinion of the libelants for the later than the 30th, (midnight,) (seller's opbest interests of all parties concerned; that tion,) a cargo of not over 12,000 and not unthe libelants had performed all their under- der 10,000 quarters (480 lbs.) of No. 2 mixed takings in the charter-party, but the respond- corn of the standard of New Orleans inspecents, and their agents, and the master of the tion. Destination: Elsinore, for orders to vessel, had not performed the undertakings Copenhagen or Aarhuns. Any difference in of the respondents contained in the charter-freight for account of seller. Cash on delivparty; and that the libelants had thereby sus-ery of documents. tained damages to the amount of more than "New Orleans, June 7, 1883. $24,559.70. The vessel was attached on process, and the respondents appeared and answered the libel. The answer sets up that, shortly after the charter-party was signed, and before any cargo was offered to the vessel, the libelants informed De Wolf & Hammond that their interests and obligations in the charter-party had been transferred to Messrs. E. Forestier & Co.; that the charter-party was delivered back to the agents of the respondents by E. Forestier & Co., and, with the agreement of The material findings of fact by the circuit court were as follows: "First. On the 7th day of June, 1883, Gomila & Co., who were large grain dealers in the port of New Orleans, entered into the following grain contract: "GOMILA & Co.' "A similar copy was made at the same time, signed, E. FORESTIER & Co.' "Second. June 18, 1883, the steam-ship Deronda, of which J. H. Culliford was the sole owner, though Culliford & Clark, claimants, were the apparent owners and agents in England, and of which De Wolf & Hammond were the New Orleans agents, arrived in the port of New Orleans with a cargo of salt and fruit. Her agents in New Orleans, Messrs. De Wolf & Hammond, and Gomila 140 |