freight at one end of the line, the other would have the same right on its side to prescribe another and a different rate for the same transportation, and conflicts most absurd and disastrous to commerce might ensue in consequence. This feature is referred to and pointed out in many of the cases as vindicating the necessity of the restriction and that it must be in its nature exclusive of State legislation.

Another argument insisted on by the appellant is, that the charter of this railroad is a contract, and that by the terms of the charter the railroad is allowed to carry freights at a rate not exceeding fifty cents per hundred pounds, and twenty cents per cubic foot, which rates are not exceeded in the charges sought now to be reduced by the Commissioners. Nor do they exceed the rates allowed by the charter of the King's Mountain Railroad Company.

This company was protected as to the 41st Section of the Act of 1841, subjecting all chartered companies to legislative control, by the 32d Section of its charter, which expressly declares that it shall in no wise be subject to its provisions (11 St., 408.) The Act to produce conformity in the charters granted to the Charlotte and South Carolina Railroad Company by the States of North and South Carolina declares that the charter theretofore granted to said company "shall continue of force, except in so far as it may be repugnant to the provisions of this Act." (11 St., 542, Sec. 33.) By Section 30 of the same Act it is declared that "the said company shall be entitled only to such powers and privileges as shall be granted to it by the Legislature incorporating it, * * and shall be subject to all the restrictions and liabilities which may be imposed on it by either of the Legislatures by the Act of incorporation, so that its powers and disabilities may be similar in each of the States, unless the provisions of this Section be repugnant to the clause of the former charter exempting the company from the operations of the Act of 1841." I do not discover any such repugnancy in the Act. But it may be that some such repugnancy may have arisen under this (the 30th) Section in consequence of the provisions of the Act of North Carolina in regard to this company.

*

That Act is not before me, nor at present accessible. It is insisted, however, by the counsel for the railroad that the effect of Section 33 is to continue in force the chartered exemption from the Act of 1841, Section 41.

By the Act consolidating the Charlotte and South Carolina Railroad Company with the Columbia and Augusta Railroad Company, creating the Charlotte, Columbia and Augusta Railroad Company, it is declared that said company shall possess all the rights, powers, privileges, immunities and franchises conferred upon said companies by the several Acts

heretofore passed and now of force incorporating said companies and amending the charters thereof. (14 St., 232.)

It is further insisted that these immunities have never been waived by the company or withdrawn by their acceptance of any amendment or modification of the charter, and therefore it is claimed that the Legislature can make no law interfering with rates of freight charged by said. company so long as they are not in excess of the limit fixed in the char

ter.

I do not agree with this proposition. If the company had been authorized to transport passengers and property, and to receive compensation therefor without any restrictions as to amount, the company would have been confined in their charges to reasonable rates, and unless restrained by the charter the Legislature would have had power to declare what were reasonable rates.

In this charter there was a provision which qualified the general power conferred to receive compensation and establish rates of freights and fares, and declared that these should not exceed the limit prescribed. In other words, instead of a general grant of the right to make such charges without limit, and afterward by another Act declaring what should be a reasonable rate, the reasonable rate is fixed by the charter. If a general grant in the charter of the right to make these charges without any specified limit leaves the State at liberty to interfere and say what shall be the rate, how can the State powers over the subject be less where the grant of the power is not unlimited, but qualified and limited? If the latter is to be construed a contract limiting the power of the State, why not the former? Yet it is well established that the Legislature may establish reasonable limits to such charges when there is a general grant of the power, and upon like principles I am of the opinion that when at the time a maximum is fixed by the charter, which is then deemed reasonable, but which by the change of circumstances becomes unreasonable subsequently, the State may prescribe another and different maximum in order to conform to the progress of commerce and the public necessities. The object of the proviso in the charter in relation to charges for freight and passengers was not to control or limit the power of the Legislature, but to limit the company. The principle is that "a State may limit the amount of charges by railroad companies for fare or freights, unless restrained by some contract in the charter," and I find no such contract here.

The authorities on the subject are all collected in the case of Ruggles vs. Illinois, 108 U. S., 531, to which I refer.

There are other objections made by the company to the exercise of this power of control by the State of the railroads as violating the State Constitution in several particulars. These the limited time at my disposal

will not allow me to discuss severally, and I must content myself by say. ing that in my opinion they are probably answered by what has already been said so far as the present question is concerned. If they have not, they would not affect the result of this appeal.

It is, therefore, ordered and adjudged that the finding by the Railroad Commissioners in the matter of the items of charges by the said railroad company for the transportation of fertilizers from Columbia, S. C., to the stations on the Chester and Lenoir Railroad, bearing date the 10th of April, 1884, from which this appeal was taken, be reversed, and the said appeal sustained.

THE CHARLOTTE, COLUMBIA AND AUGUSTA RAILROAD COMPANY. TO JAMES H. RION, ESQ., General Counsel for the C., C. and A. R. R. Company:

Please take notice that the Railroad Commissioners intend to appeal to the Supreme Court from the decree of the Hon. J. B. Kershaw in the above entitled case, in relation to freight rates to points beyond the limits of the State of South Carolina, (inter-State commerce,) filed in Clerk's office on 3d June, 1884.

5th June, 1884.

CH. RICHARDSON MILES,
Attorney General.

Service acknowledged 9th June, 1884.

JAS. H. RION, Defendant's Attorney.

EXCEPTIONS.

STATE OF SOUTH CAROLINA, Į

COUNTY OF RICHLAND.

THE RAILROAD COMMISSIONERS

V8.

THE CHARLOTTE, COLUMBIA AND AUGUSTA RAILROAD COMPANY.

The Railroad Commissioners except to the decree of His Honor Judge J. B. Kershaw in the case entitled as above, in relation to charges made by the appellants for freight on merchandise shipped by their road from Columbia, S. C., to points in North Carolina on the Chester and Lenoir Railroad, filed in the Clerk's office in the County aforesaid on the 3d day of June, 1884, upon the following grounds:

I. Because His Honor held "that any regulation of freights for the transportation of merchandise from Columbia, in this State, to points in the State of North Carolina, by the Statutes of this State, would be beyond the power of the State, because of its being an invasion of the power exclusively vested in Congress by the Constitution of the United States, and hence would not be binding upon the appellants (the C., C. and A. R. R. Co.) in this case."

Whereas, it is respectfully submitted His Honor should have held that the "General Railroad Act" (under the provisions of which the finding of the Railroad Commission appealed from was made) operates upon every company in this State engaged in the transportation of property by railroads, and "extends and applies to every railroad which such company has the right, license, or permission to use, operate or control, wholly or in part, within this State." That, therefore, "the regulation of such company is a matter of domestic concern. It is employed in State as well as inter-State commerce, and until Congress acts the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected." (Chicago R. R. Co. vs. Iowa, 94 U. S., 163.)

II. Because His Honor, having found that the Chester and Lenoir Railroad is one of the roads consolidated, under an Act of the State of South Carolina, with and controlled by the appellant, (the C., C. and A. R. R. Co.,) a corporation of said State, should have held that "thus the State of South Carolina is permitted to legislate for the consolidated company in this State precisely the same as it would for its own original companies if no consolidation had taken place;" and that, therefore, the law of South Carolina regulating the charges of the Charlotte, Co

lumbia and Augusta Railroad for transportation undertaken by it to points upon the Chester and Lenoir Railroad "applies to State commerce or such inter-State commerce as directly affects the people of South Carolina. Until Congress acts in reference to the relations of this company to inter-State commerce, it is certainly within the power of South Carolina to regulate its fares, etc., so far as they are of domestic concern. With the people of South Carolina this company has domestic relations. Incidentally these may reach beyond the State, but certainly until Congress undertakes to legislate for those who are without the State, South Carolina may provide for those within, even though it may indirectly affect those without." (Peik vs. Chicago Railroad Co., 94 U. S., 177.)

III. Because, it is respectfully submitted, His Honor erred in following the decisions of some of the Circuit Courts of the United States, inconsistent with the decisions of the Supreme Court of the United States, in relation to the question involved in the appeal, of the right of the State to regulate its railroad companies.

IV. Because His Honor held that the General Railroad Act "does not authorize the Railroad Commissioners to regulate freights upon merchandise committed to railroads for transportation from a point in this State to a point beyond the limits of the State."

Whereas, it is respectfully submitted, this point was not made in the grounds of appeal from the finding of the Railroad Commissioners, and His Honor erred in deciding it.

Because Sections 1451a and 14516 of General Statutes expressly require all railroad companies in this State to submit to the Railroad Commissioners for their scrutiny and revision copies of the schedules of "all through rates and joint rates with other roads," as soon as adopted; and the said Railroad Commissioners are required to examine the same and determine whether they are in any particular a violation of any of the provisions of the law intended to prevent discrimination and to secure to all persons just and reasonable rates of charges for transportation of passengers or freight of any description; and it is from the findings of the said Commissioners under these Sections that the appeal heard by His Honor is taken. But His Honor, in quoting all the Sections of the General Railroad Act which he considers affect the subject under consideration, omits to allude to these Sections. And His Honor also omits to quote Section 1445 General Statutes, which declares that "each and all the provisions of the Act shall apply to all property and the receiving, delivery, loading, unloading, handling, storing or carriage of the same on one actually or substantially continuous carriage, or as part of such continuous carriage, * * * and the compensation thereof, whether such property be carried wholly on one railroad or partly on