Ir an Inn-keeper taketh down his Signe, and yet keepeth a hosterie, an Action upon the Case will lie against him, if he do deny lodging unto a travailer for his money; but if he taketh down his Signe, and giveth over the keeping of an Inn, then he is discharged from giving lodging. SATTERLEE v. GROAT. 1 Wend. 272. 1828.1 Intrupe may ritue at willy implication. By the Court, SUTHERLAND, J. The defendant was a common carrier between Schenectady and Albany, previous to 1819. He then sold out all his teams but one, which he kept for agricultural purposes on his farm. One witness, however, testified, that defendant employed his team in the carrying and forwarding business, as occasions offered, until 1822 or 1823. But subsequent to that period, there is no evidence whatever of his carrying or forwarding a single load, until April, 1824, when one John Dows applied to him, very urgently, to bring some loads for him from Albany to Schenectady, to which the defendant reluctantly consented, and despatched one Asia with his team for the purpose, with special instructions to bring nothing for any other person; if Dows' goods were not ready, to come back empty. He brought two loads and returned for a third, under the same instructions, repeated again and again; but Dows' third load not being ready, instead of returning empty as he was directed to do, he applied to the plaintiffs for a load, which they furnished him, to be carried to Frankfort, in Herkimer county. He arrived at Schenectady late at night. The next morning it was discovered that one of the boxes had been broken open, and a part of the goods stolen, 1 Only an extract from the case is here reprinted.- ED. 1 The statement of the case is omitted.- ED. at C. h. any The defendant disavowed all responsibility for the goods, before it was discovered that any of them had been taken, and declared that Asia had violated his express instructions in bringing them. Asia was subsequently convicted of the theft, and sent to the state prison. The defendant gave immediate notice to the plaintiffs of all the facts, and that he did not hold himself responsible for the goods. The judge charged the jury, that if the defendant was responsible at all, it was either on the general liability of a common carrier, and that depended upon the fact, whether he was, at the time, a common carrier or not; or upon a special contract for carrying the goods. That it was for the jury to determine, whether the defendant was, at the time, acting in the capacity of a common carrier; and if they believed that the teamster had been specially employed by the defendant, for a particular purpose and object, then he could not bind the defendant by a contract beyond his special employment. The jury found for the defendant. The law was correctly laid down by the judge. The defendant stood upon the same footing, as though he had never been engaged in the forwarding business. He had abandoned it entirely certainly one year, and according to the weight of evidence, four years previous to this transaction. He makes a special contract with Dows to bring goods for him from Albany, and gives his teamster express instructions to bring goods for no one else. He was acting under a special contract, and not in the capacity of a common carrier. Is he then responsible for the act of his servant, done in violation of his instructions, and not in the ordinary course of the business in which he was employed? If a farmer send his servant with a load of wheat to market, and he, without any instructions from his master, applies to a merchant for a return load, and absconds with it, is the master responsible? Most clearly not. It was an act beyond the scope of the general authority of the servant, quoad hoc, therefore he acted for himself and on his own responsibility, and not for his employer. The verdict is according to the weight of evidence. There is nothing in the ground of surprise; if there was, it should have been the subject of a special motion. Motion for new trial denied. 2" 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 created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use he must submit to the control." Munn v. Illinois (1876), 94 U. S. 113, 126. from tresiness KELLY, J. The paramount question in this case is whether public service corporations created and existing under the laws of this state have, under those laws, the same right of voluntary dissolution which is accorded to all other business corporations. The constitutional and statutory provisions on the subject seem to us to plainly answer the question in the affirmative. "The creation of corporations, and the extension and amendment of charters (whether heretofore or hereafter granted), shall be provided for by general laws, and no charter shall be granted, amended or extended by special act, nor shall authority in such matters be conferred upon any tribunal or officer, except to ascertain whether the applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment or extension applied for, and to issue, or refuse, the same accordingly. Such general laws may be amended or repealed by the General Assembly; and all charters and amendments of charters, now existing and revocable, or hereafter granted or extended, may be repealed at any time by special act. Provision shall be made, by general laws, for the voluntary surrender of its charter by any corporation, and for the forfeiture thereof for non-user or mis-user. The General Assembly shall not, by special act, regulate the affairs of any corporation, nor, by such act, give it any rights, powers or privileges." (Italics added.) Virginia Constitution 1902, § 154. . . . [The court points out that chapter 2 of the Virginia "Act concerning corporations" provides that they "shall have all the general powers and be subject to all the general restrictions conferred and imposed on corporations by chapter 5 of this act," and that chapter 5 in subsection (2) provides that "Every corporation of this state shall have power: ... (i) To wind up and dissolve itself, or to be wound up and dissolved in the manner provided in this act."] The specific statute with which we are concerned in this case is subsection 30 of the same chapter (Code, § 1105e), in which it is provided that "whenever, in the judgment of the board of directors it shall be deemed advisable, and for the benefit of any corporation 1 The statement of the case and parts of the opinion are omitted.- ED. organized under this act, or under any charter heretofore granted by any court, or by the General Assembly of Virginia, that it shall be dissolved," the board may take certain steps therein provided, which, if two-thirds in interest of the stockholders shall consent, will result in a voluntary dissolution and a settlement of the affairs and business of the corporation by the board of directors; and it is therein further provided that "whenever all of the stockholders shall consent to the dissolution, no meeting or notice thereof shall be necessary, but on filing the said consent in the office of the state corporation commission, the said commission shall issue a certificate of dissolution, and the said corporation shall thereupon stand dissolved and the said board shall proceed to settle up and adjust the business and affairs of the said corporation: Provided, however, that no such dissolution shall affect the rights of any creditor of the said corporation existing at the time of such dissolution." (Italics added.) Acts 1906, c. 327. The appellants in this case, being all of the stockholders of the Tidewater & Western Railroad Company, which obtained its charter from the corporation commission in 1905, filed their unanimous consent to the dissolution of that corporation with the state corporation commission. . . . A number of persons including the boards of supervisors of Powhatan and Cumberland counties, all claiming to be interested in and affected by the proposed dissolution, asked leave to file their petitions protesting against the granting of the certificate of dissolution: and, the matter having been formally presented and heard before the commission, that body, on the 5th of June, 1917, entered an order rejecting the petitions of the interveners, but also refusing to issue the certificate. In this result, HON. CHRISTOPHER B. GARNETT, Chairman, and HON. J. R. WINGFIELD, Commissioner, concurred. The remaining member of the commission, HON. Wм. F. RHEA, dissented. ... We have given to the vast array of authorities cited by the commissioners and by counsel to support the view that public service corporations may not voluntarily and arbitrarily suspend or withdraw their public service, the careful consideration which the importance of the subject and the earnestness and ability of those presenting that view demand. They deal, however, with perfectly familiar principles, and we fail to find therein anything in conflict with the conclusion that public service corporations may, under the laws of this state, voluntarily surrender their charters and cease to do business. Those authorities, in the main, if not entirely, relate to corporations not intending to dissolve and go out of business altogether, but to those proposing to suspend only in part the exercise of some particular public service which they have undertaken, still holding on to their corporate franchises; and, even so, the clear result from such authorities as a whole is that public service corporations, so far as the general public is concerned, may always suspend their corporate functions in part or in whole, temporarily or finally, with the consent of the state. It is abundantly safe to say, unless for fear of stating what ought to go without saying, that all the authority for the proposition that such corporations may not on their own accord cease to exist, presupposes the absence of consent to that course by the state which created them. This principle, indeed, is necessarily conceded in the contention that if subsection 30 of section 1105e applies to railroad companies, the dissolution cannot be perfected until the corporation commission has been satisfied that good reason for it exists. If the commission has the power to give consent, it has such power only as the alter ego of the state; and the fault in the argument lies in the failure to observe that in this instance the state, through its Constitution and statutes, has given the consent by a general and uniform law applicable to all corporations, and has left no discretion with the commission in regard to it. Bearing in mind what all must concede that the lawmaking power in the state must always provide, in such manner and upon such terms as it may deem best, for the voluntary dissolution of corporations of every kind, it is difficult to see how this power could have been more plainly conferred than has been done in the language of the statutes already quoted; and this conclusion does not become less apparent upon a consideration of the reasons urged to the contrary The one common ground upon which the advocates of the decision appealed from unite in their arguments is the assumption that it would be unwise and unsafe to permit public service corporations to dissolve without some notice to the public and some inquiry into the circumstances. They have realized, however, that before this consideration can be brought into play as an aid to the construction of the constitutional and statutory provisions which we have discussed, they must show some other constitutional or legislative declarations indicating that the former provisions, despite their plain terms, were not intended to mean what they say; since, if they do mean what they say, that is the end of the inquiry, the very questions of expediency and prudence having been expressly delegated to and finally passed upon by the Legislature. With a view, therefore, to showing that the provisions of sections 154 of the Constitution and 1105e, subsection 30, of the Code were not intended to embrace public service corporations, in so far as |