Railroad Commission Cases/Opinion of the Court

by Morrison Waite

United States Supreme Court

116 U.S. 307

Railroad Commission Cases

 Argued: January 4, 1886. ---

The argument in support of the decree below is: (1) That the statute under which the commissioners are to act impairs the obligation of the charter contract of the Mobile & Ohio Railroad Company; (2) that it is, so far as that company is concerned, a regulation of commerce among the states; (3) that it denies the company the equal protection of the laws, and deprives it of its property without due process of law; (4) that it confers both legislative and judicial powers on the commission, and is thus repugnant to the constitution of Mississippi; and (5) that it is void on its face by reason of its inconsistencies and uncertainties.

These several positions will be considered in their order.

1. The provisions of the charter on which the claim of contract rests are found in sections 1, 7, and 12, as follows: 'Section 1. And the said company is hereby authorized and empowered * * * to transport, take, and carry property and persons upon said railroad or way by the power and force of steam, of animals, or of any other mechancial or other power, or any combination of them which the company may choose to apply.' 'Sec. 7. That the directors shall have full power to make and prescribe such by-laws, rules, and regulations as they shall deem needful and proper touching the disposition and management of the stock, property, estate, and effects of said company, not contrary to this charter or the laws of this state or of the United States; the transfer of shares, the duties and conduct of their officers and servants, touching the election of and meeting of the directors; and all matters whatsoever which may appertain to the concerns of said company.' 'Sec. 12. That it shall be lawful for the company hereby incorporated, from time to time, to fix, regulate, and receive the toll and charges by them to be received for transportation of persons or property on their railroad or way aforesaid, hereby authorized to be constructed, erected, built, or used, or upon any part thereof.'

From this it is claimed that the state granted to the company, for the full term of its corporate existence, that is to say, forever, the right of managing its own affairs and regulating its charges for the transportation of persons and property free of all legislative control.

It is now settled in this court that a state has power to limit the amount of charges by railroad companies for the transportation of person and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456; Chicago. B. & Q. R. Co. v. Iowa, 94 U.S. 155; Peik v. Chicago & N. Ry. Co. Id. 164; Winona & St. P. R. Co. v. Blake, Id. 180; Ruggles v. Illinois, 108 U.S. 531; S.C.. 2 Sup. Ct. Rep. 832. This power of regulation is a power of government, continuing in its nature; and if it can be bargained away at all, it can only be by words of positive grant, or something which is in law equivalent. If there is reasonable doubt, it must be resolved in favor of the existence of the power. In the words of Chief Justive MARSHALL in Providence Bank v. Billings, 4 Pet. 560: 'Its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.' This rule is elementary, and the cases in our reports where it has been considered and applied are numerous. Thus, in Providence Bank v. Billings it was held that the incorporation of a bank without any special provision for taxation did not imply a contract on the part of the state not to tax at all. In Charles River Bridge v. Warren Bridge, 11 Pet. 419, the court said this rule of construction was not confined to the taxing power, and accordingly it held that the charter of a toll-bridge company did not imply a contract not to allow the building of another bridge in the immediate vicinity, which would materially interfere with its revenues. In delivering the opinion of the court, Chief Justice TANEY used this language, (page 548:) 'This of incorporation is in the usual form, and the privileges such as are commonly given to corporations of that kind. It confers on them the ordinary faculties of a corporation for the purpose of building the bridge, and establishes certain rates of toll which the company are authorized to take; this is the whole grant. There is no exclusive privilege given to them over the waters of Charles river above or below the bridge; no right to erect another bridge themselves, nor to prevent other persons from erecting one; no engagement from the state that another shall not be erected; and no undertaking not to sanction competition, nor to make improvements that may diminish its income.' In Minot v. Philadelphia, W. & B. R. Co., (know as the Delaware Railroad Tax Case,) 18 Wall. 206, it was held that a provision in the charter that the railroad company 'should pay annually into the treasury of the state a tax of one-quarter of one per cent. on its capital stock of four hundred thousand dollars,' without any words 'indicating the intent of the legislature that no further or different tax should be subsequently levied,' was not sufficient to show a contract binding the state not to make such a levy; the court remarking that 'the surrender, when claimed, must be shown by clear and unambiguous language which will admit of no reasonable construction consistent with the reservation of the power.' So, in Bailey v. Magwire, 22 Wall. 215, it was held that a clause in a charter which subjected a corporation 'to taxation at the rate assessed by the state on other real or personal property of like value' did not relieve the company from taxation for other than state purposes. And here the court said: 'Silence on such a subject,' that is to say, taxation for other purposes, 'cannot be construed as a waiver of the right of the state in this regard. There must be something said which is broad enough to show clearly that the legislature intended to relieve the corporation from a part of the burdens borne by other real or personal property.' In Fertilizing Co. v. Hyde Park, 97 U.S. 660, it appeared that a company had been incorporated, with authority to establish and maintain, for 50 years, 'chemical and other works at the place designated, * * * for the purpose of manufacturing and converting dead animals and other animal matter into an agricultural fertilizer, or into other chemical products, by means of chemical or other processes;' but this court held that the state was not thereby prevented from causing the works to be abated in case they should, within the time of the charter, become a public nuisance because of the growth of population in the neighborhood; and among the reasons assigned was the absence from the charter of any express exemption of the company from the operation of the powers of the state applicable to its existing condition for the time being. In Newton v. Commissioners, 100 U.S. 548, the seat of justice of a county had been fixed at Canfield, but the statute by which this was done provided 'that, before the seat of justice shall be considered permanently established at Canfied,' the citizens should donate a lot, and make certain provisions for the erection of public buildings thereon. The citizens complied with all the requirements of the law, and the seat of justice remained undisturbed at the place where it has been 'permanently established' until 1874, when a law was passed for its removal to another town. The citizens of Canfield then caused a bill to be filed for an injunction restraining the county commissioners from effecting the removal, on the ground that the original act, and what was done under it, constituted an executed contract on the part of the state that the seat of justice should remain forever at Canfield, and the later act impaired the obligation of that contract; but this court held otherwise; saying, among other things: 'If the legislature had intended to assume an obligation that it should be kept there in perpetuity, it is to be presumed it would have said so. We cannot-certainly not in this case-interpolate into the statute a thing so important which it does not contain.'

The cases in which it has been held that a contract was entered into are equally instructive. Thus, in Gordon v. Appeal Tax Court, 3 How. 133, the statute was: 'That upon any of the banks of this state complying with the conditions of this act, the faith of the state is hereby pledged not to impose any future tax or bonus on the said banks during the continuance of their charters under this act.' In State Bank of Ohio v. Knoop, 16 How. 369, the provision was that each bank organized under the act should semiannually, on the days designated for declaring dividends, set off to the state 6 per cent. on the profits, deducting therefrom the expenses and ascertained losses for the six months next preceding, which sum or amount so set off shall be in lieu of all taxes to which the company, or the stockholders therein, would otherwise be subject; and from the judgment that this was a contract of exemption from any further exercise of the power of taxation three justices dissented. In Bridge Proprietors v. Hoboken Co., 1 Wall. 116, the words of exclusion were: 'That it should not be lawful for any person or persons whatsoever to erect, or cause to be erected, [within certain specified limits,] any other bridge or bridges over or across the said river.' In Home of the Friendless v. Rouse, 8 Wall. 430, the provision was that all property of said corporation shall be exempt from taxation, and that a certain existing statute, to the effect that every act of incorporation should be subject to alteration and repeal, 'shall not apply to this corporation.'

Such being the rule, and such its practical operation, we return to the special provisions of the charter on which this case depends, and find, first, the authority given the corporation to carry persons and property. This of itself implies authority to charge a reasonable sum for the carriage. In this way the corporation was put in the same position a natural person would occupy if engaged in the same or like business. Its rights and privileges in its business of transportation are just what those of a natural person would be under like circumstances; no more, no less. The natural person would be subject to legislative control as to the amount of his charges. So must the corporation be. That was decided in Baltimore & O. R. Co. v. Maryland; Chicago, B. & Q. R. Co. v. Iowa; Peik v. Chicago & N. Ry. Co.; Winona & St. P. R. Co. v. Blake: and Ruggles v. Illinois.

Next follows the power of the directors to make by-laws, rules, and regulations for the managment of the affairs of the company, but it is expressly provided that such by-laws, rules, and regulations shall not be contrary to the laws of the state. This we held, in Ruggles v. Illinois, included laws in force when the charter was granted, and those which came into operation afterwards as well. It is true that the clause which thus limits the power of the directors is found in the middle of the sentence which confers the power, but it clearly was intended to refer to everything that might be done in this way 'touching * * * all matters whatsoever that may appertain to the concerns of said company.' There is nothing here, therefore, which in any manner implies a contract on the part of the state to exempt the company from the operation of laws enacted within the scope of legislative power for the regulation of the business in which it is authorized to engage.

The case turns, consequently, on section 12, which is 'that it shall be lawful for the company * * * from time to time to fix, regulate, and receive the toll and charges by them to be received for transportation,' etc. This would have been implied from the rest of the charter if there had been no such provision, and it is argued that, unless it had been intended to surrender the power of control over fares and freights, this section would not have been inserted. The argument concedes that the power of the company under this section is limited by the rule of the common law which requires all charges to be reasonable. In Munn v. Illinois, 94 U.S. 134, and Chicago, B. & Q. R. Co. v. Iowa, Id. 155, this court decided that, as to natural persons and corporations subject to legislative control, the state could, in cases like this, fix a maximum beyond which any charge would be unreasonable; and that such maximum, when fixed, would be binding on the courts in their adjudications, as well as on the parties in their dealings. The claim now is that by section 12 the state has surrendered the power to fix a maximum for this company, and has declared that the courts shall be left to determine what is reasonable, free of all legislative control. We see no evidence of any such intention. Power is granted to fix reasonable charges, but what shall be deemed reasonable in law is nowhere indicated. There is no rate specified, nor any limit set. Nothing whatever is said of the way in which the question of reasonableness is to be settled. All that is left as it was, Consequently all the power which the state had in the matter before the charter it retained afterwards. The power to charge being coupled with the condition that the charge shall be reasonable, the state is left free to act on the subject of reasonableness, within the limits of its general authority, as circumstances may require. The right to fix reasonable charges has been granted, but the power of declaring what shall be deemed reasonable has not been surrendered. If there had been an intention of surrendering this power, it would have been easy to say so. Not having said so, the conclusive presumption is there was no such intention.

This is not in conflict with the judgment of the supreme court of Mississippi in Railroad Commission v. Yazoo & M. R. Co., in which it was decided that the power had been surrendered in favor of that company because in that charter a maximum of rates was fixed. In the opinion, a copy of which has been furnished us in advance of its publication in the regular series of reports, the court says distinctly that 'a grant, in general terms, of authority to fix rates is not a renunciation of the right of legislative control so as to secure reasonable rates. Such a grant evinces merely a purpose to confer power to exact compensation which shall be just and reasonable. It is only where there is an unmistakable manifestation of a purpose to place the unrestricted right in the corporation to determine rates of compensation that the power of the legislature afterwards to interfere can be denied.' In Railroad Commission v. Natchez, J. & C. R. Co. it was held by the same court that the charter authority for the company 'from time to time to fix, regulate, and receive tolls and charges by them to be received for transportation of persons and property' did not amount to a contract of exemption, and the commission was allowed to proceed under the law.

From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of conflscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law. What would have this effect we need not now say, because no tariff has yet been fixed by the commission, and the statute of Mississippi expressly provides 'that in all trials of cases brought for a violation of any tariff of charges, as fixed by the commission, it may be shown in defense that such tariff so fixed is unjust.'

It is also claimed that the charter contains a contract binding the state to allow the company, at all times and in all ways, to manage its own affairs through its own board of directors, and that the obligation of this contract will be impaired if the provisions of the statute are enforced by the commissioners. As has already been seen, the power of the directors is coupled with a condition that their management shall be in accordance with the laws of the state. This undoubtedly means with such laws as may be constitutionally enacted touching the administration of the affairs of the company. The present statute requires the company (1) to furnish the commissioners with copies of its tariffs for all kinds of transportation; (2) to post in some conspicuous place at each of its depots the tariff approved by the commissioners, with the certificate of approval attached; (3) to conform to the tariff as approved, without discrimination in favor of or against persons or localities; (4) to furnish the commissioners with all the information they require relative to the management of its line, and particularly with copies of all leases, contracts, and agreements for transportation with express, sleeping-car, or other companies, to which they are parties; (5) to report all accidents within the limits of the state attended with any serious personal injury; (6) to make quarterly returns of its business to the commissioners, which returns shall embrace all the receipts and expenditures of its railroad; (7) to provide at least one comfortable and suitable reception-room at each depot, for the use and accommodation of persons desiring or awaiting transportation over its road; and (8) to keep at all times in such reception-rooms a bulletin board which shall show the time of the arrival and departure of trains; and when any passenger or other train for transporting passengers is delayed, notice of the extent of the delay, and the probable time of arrival, as near as it can be ascertained.

The second and third of these requirements relate only to the duty of the company to keep its charges within the limit of the tariff approved by the commissioners, without discrimination in favor of or against persons or localities. The first, fourth, and sixth are clearly intended as a means of furnishing the commissioners with the information necessary to enable them to act understandingly in fixing the tariff. Whether, under these provisions, the company can be required to make report of or give informantion about its business outside of Mississippi is a question we do not now undertake to decide. The second, fifth, seventh, and eighth are nothing more than reasonable police regulations for the comfort, convenience, and safety of those traveling upon the road or doing business with the company in the state.

The commissioners have power (1) to approve and, if need be, to fix the tariff of charges for transportation, both of persons and property, by which the company must be governed, and to exercise a watchful and careful supervision over such tariff; (2) to notify the company of the times and places when and where the propriety of a change in existing tariffs will be considerered; (3) to entertain complaints made by any person against a tariff which has been approved, on the ground that the same is in any respect for more than a just compensation, or that the charges amount to or operate so as to effect unjust discrimination, and, after due notice to the company and proper inquiry had, to make any changes that may be deemed proper; (4) to repair to the scene of an accident within the state, attended with serious personal injury, and inquire into the facts and circumstances thereof, to be recorded in the minutes of their proceedings and embraced in the annual report they are required to make to the governor for transmission to the legislature; (5) to inspect the depots of all railroads operated in the state, and to see that comfortable and suitable reception-rooms are provided; and (6) to institute all necessary suits for the recovery of the penalties prescribed by the statute for a violation of its provisions. The first three of these relate entirely to proceedings for fixing charges and supervising the tariff, and the rest, like the correlative requirements of the company, are mere police regulations which the commissioners are to enforce. All this comes clearly within the supervising power of the state in the administration of the affairs of its domestic corporations.

We conclude, therefore, that the charter of the company contains no contract the obligation of which is in any way impaired by the statute under which the commissioners are to act.

2. There can be no doubt that each of the states through which the Mobile & Ohio Railroad passes incorporated the company for the purpose of securing the construction of a railroad from Mobile, through Alabama, Mississippi, Tennessee, and Kentucky, to some point near the mouth of the Ohio river, where it would connect with another railroad to the lakes, and thus form a continuous line of interstate communication between the Gulf of Mexico in the south, and the Great Lakes in the north. It is equally certain that congress aided in the construction of parts of this line of road so as to establish such a route of travel and transportation. But it is none the less true that the corporation created by each state is, for all the purposes of local government, a domestic corporation, and that its railroad within the state is a matter of domestic concern. Every person, every corporation, every thing within the territorial limits of a state is, while there, subject to the constitutional authority of the state government. Clearly, under this rule, Mississippi may govern this corporation, as it does all domestic corporations, in respect to every act and everything within the state which is the lawful subject of state government. It may, beyond all question, by the settled rule of decision in this court, regulate freights and fares for business done exclusively within the state, and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. So it may make all needful regulations of a police character for the government of the company while operating its road in that jurisdiction. In this way it may certainly require the company to fence so much of its road as lies within the state; to stop its trains at railroad crossings; to slacken speed while running in a crowded thoroughfare; to post its tariffs and time-tables at proper places; and other things of a kindred character affecting the comfort, the convenience, or the safety of those who are entitled to look to the state for protection against the wrongful or negligent conduct of others. This company is not relieved entirely from state regulation or state control in Mississippi simply because it has been incorporated by, and is carrying on business in, the other states through which its road runs. While in Mississippi it can be governed by Mississippi in respect to all things which have not been placed by the constitution of the United States within the exclusive jurisdiction of congress, that is to say, using the language of this court in Cardwell v. Bridge Co., 113 U.S. 210, S.C.. 5 Sup. Ct. Rep. 423, 'when the subjects on which it is exerted are national in their character, and admit and require uniformity of regulations affecting all states alike.' Under this rule nothing can be done by the government of Mississippi which will operate as a burden on the interstate business of the company or impair the usefulness of its facilities for interstate traffic. It is not enough, to prevent the state from acting, that the road in Mississippi is used in aid of interstate commerce. Legislation of this kind, to be unconstitutional, must be such as will necessarily amount to or operate as a regulation of business without the state as well as within.

The commission is in express terms prohibited by the act of March 15, 1884, from interfering with the charges of the company for the transportation of persons or property through Mississippi from one state to another. The statute makes no mention of persons or property taken up without the state and delivered within, nor of such as may be taken up within and carried without. As to this, the only limit on the power of the commissioners is the constitutional authority of the state over the subject. Precisely all that may be done, or all that may not be done, it is not easy to say in advance. The line between the exclusive power of congress and the general powers of the state in this particular is not every where distinctly marked, and it is always easier to determine when a case arises whether it falls on one side or the other, than to settle in advance the boundary, so that it may be in all respects strictly accurate. As yet the commissioners have done nothing. There is certainly much they may do in regulating charges within the state, which will not be in conflict with the constitution of the United States. It is to be presumed they will always act within the limits of their constitutional authority. It will be time enough to consider what may be done to prevent it when they attempt to go beyond.

3. General statutes regulating the use of railroads in a state, or fixing maximum rates of charges for transportation, when not forbidden by charter contracts, do not necessarily deprive the corporation owning or operating a railroad within the state of its property without due process of law, within the meaning of the fourteenth amendment of the constitution of the United States, nor take away from the corporation the equal protection of the laws. Munn v. Illinois, 94 U.S. 134, 135; Railroad Co. v. Richmond, 96 U.S. 529; Spring Valley Water-works v. Schottler, 110 U.S. 354; S.C.. 4 Sup. Ct. Rep. 48. The great purpose of the statute now under consideration is to fix a maximum of charges, and to regulate in some matters of a police nature the use of failroads in the state. In its general scope it is constitutional, and it applies equally to all persons or corporations owning or operating railroads in the state. No preference is given to one over another, but all are treated alike. Whether, in some of its details, the statute may be defective or invalid we do not deem it necessary to inquire, for this suit is brought to prevent the commissioners from giving it any effect whatever as against this company.

4. The supreme court of Mississippi has decided in the cases of Railroad Commission v. Yazoo & M. R. Co., and Railroad Commission v. Natchez, J. & C. R. Co. not yet officially reported, that the statute is not repugnant to the constitution of the state 'in that it creates a commission and charges it with the duty of supervising railroads.' To this we agree, and that is all that need be decided in this case. As was said by the supreme court of Mississippi in the case first referred to above: 'Many questions may arise under it not necessary to be disposed of now, and we leave them for consideration when presented.'

5. It is difficult to understand precisely on what ground we are expected to decide that this statute is so inconsistent and uncertain as to render it absolutely void on its face. The statute of Tennessee which was under consideration in Louisville & N. R. Co. v. Railroad Commission of Tennessee, 19 Fed. Rep. 679, is materially different from this in many respects. That case was decided before this statute was passed, and it is not at all unlikely that the legislature of Mississippi made use of the decision in framing their bill so as to avoid some, if not all, of the objections which, in the opinion of the court, were fatal to what had been done in Tennessee. The argument on this branch of the controversy contains much that might have been useful if addressed to the legislature while considering the bill before its final enactment, but we find nothing in it to show that the statute as it now stands is altogether void and inoperative. When the commission has acted, and proceedings are had to enforce what it has done, questions may arise as to the validity of some of the various provisions which will be worthy of consideration, but we are unable to say that, as a whole, the statute is invalid.

The decree of the circuit court is reversed, and the cause remanded, with instructions to dismiss the bill.

BLATCHFORD, J., did not sit in this case, or take any part in its decision.

These cases are unlike that of Chicago, B. & Q. R. Co. v. Iowa, 94 U.S. 160, where the charter of the company was granted expressly subject to such rules and regulations as the legislature might, from time to time, enact and provide; or of Peik v. Chicago & N. W. R. Co., Id. 175, where, at the time the railroad charter was granted, the state constitution provided that all charters of corporations 'may be altered or repealed by the legislature at any time after their passage;' or of Winona & St. P. R. Co. v. Blake, Id. 180, where the charter prescribed no limit upon the legislative power to fix rates for transportation, and conferred no express power upon the company to fix or establish such rates as it might deem proper. Different questions from any of these are now presented.

The Mobile & Ohio Railroad Company was chartered on the third of February, 1848, by the state of Alabama, with authority to construct and maintain a railroad from the city of Mobile to the west line of that state, towards the mouth of the Ohio river, and to transport and carry property and persons under such regulations, as to time and manner, as its board of directors might establish. It was also invested by its charter with power, 'from time to time, to fix, regulate, and receive the toll and charges by them to be received for the transportation of persons and property over the line of railroad hereby authorized to be constructed and completed, or any part thereof.' Section 12. The legislature of Mississippi, in the same month, approved of the Alabama charter, except in certain particulars not important to be here mentioned, and consented to the extension of the road through that state to the Tennessee line; conferring upon the company, when organized, 'the same rights, powers, and privileges' that were granted to it within the state of Alabama. Like consent was given, and similar action was taken, by the states of Tennessee and Kentucky, with reference to the proposed road within their respective limits.

The Illinois Central Railroad Company is the lessee of the Chicago, St. Louis & New Orleans Railroad Company. By an act of the legislature of Mississippi, of April 18, 1873, the New Orleans, Jackson & Great Northern Railroad Company, owning a line of railroad from New Orleans, Louisiana, to Canton, Mississippi, and the Mississippi Central Railroad Company, owning a line running from the latter place northward to Jackson, Tennessee, were authorized to consolidate into one corporation; the latter to have all the rights, powers, privileges, immunities, and franchises in perpetuity then conferred upon the constituent companies, or upon either of them. Such consolidation took place under the name of the Chicago, St. Louis & New Orleans Railroad Company, and by an act of February 28, 1878, was ratified. But the same act provided that it should be of no force or effect until the debt due the state from the Mississippi Central Rairoad Company was adjusted by the Chicago, St. Louis & New Orleans Railroad Company. Subsequently, by an act approved March 1, 1882, the payment of this debt by the latter company to the state was acknowledged, and the Chicago, St. Louis & New Orleans Railroad Company was declared to be a corporation of Mississippi, 'with perpetual succession, and, as such, is invested with all the rights, powers, privileges, liberties, and franchises conferred by the act to which this is a supplement, and especially the rights and powers * * * of section 10 of an act entitled 'An act to incorporate the Mississippi Railroad Company,' approved March 10, 1852.' The tenth section of the act last named, to the rights and powers conferred by which particular reference was made, is in these words: 'That the president and directors be, and are hereby, authorized to adopt and establish such a tariff of charges for the transportation of persons and property as they may think proper, and the same to alter and change at pleasure.' The amount paid to the state by the Chicago, St. Louis & New Orleans Railroad Company on account of the debt due from the Mississippi Central Railroad Company was $158,978.82.

It is thus seen that the Mobile & Ohio Railroad company and the Chicago, St. Louis & New Orleans Railroad Company were given by their charters the power to fix and regulate rates for transportation of persons and property upon their respective roads. This power was, of course, not without limit; for the general grant of the franchises, rights, and privileges enumerated in these charters was attended by the condition, which the law always implies in such cases, that the charges for transportation established by the companies shall be reasonable. The Mississippi statute of 1884 provides for the appointment of three commissioners, and invests them with the power of establishing, upon the basis of 'just compensation,' and the protection of persons, localities, or corporations against 'unjust discrimination,' a tariff of charges for the transportation of persons and property on any railroad owned or operated in that state. The commissioners so appointed are required, in ascertaining such compensation, 'to take into consideration the character and nature of the service to be performed, and the entire business of such railroad, together with its earnings from the passenger and other traffic;' to so revise these tariffs 'as to allow a fair and just return on the value of such railroad, its appurtenances and equipments;' and to increase or reduce the rates so established 'as justice to the public and each of said railroad companies may require,' and 'as experience and business operations may show to be just.' Any person, company, or corporation operating a railroad in Mississippi, who fails to conform to the tariff of charges established by the commission, is made liable to a penalty of $500 for each violation, recoverable in the name of the state.

I am of opinion that this statute impairs the obligation of the contract which the state made with these companies, in this: that it takes from each of them the power conferred by its charter of fixing and regulating rates for transportation within the limit of reasonableness, and confers upon a commission authority to establish, from time to time, such rates as will give a 'fair and just return on the value of such railroad, its appurtenances, and equipments,' and 'as experience and business operations may show to be just.' In short, the companies are placed by the statute in the same condition they would occupy if their charter had not conferred upon them the power to fix and regulate rates for transportation. The whole subject of transportation rates is thus remitted to the judgment of commissioners who have no pecuniary interest whatever in the management of these vast properties, and who, if they had any such interest, would be disqualified under the statute from serving; and who are required to fix rates, according to the value of the property, whithout any reference to what it originally cost, or what it had cost to maintain it in fit condition for public use.

It is hardly necessary to discuss the proposition that the right to fix and regulate rates for transportation, within the limit of reasonableness, was and is one of great practical value to these companies: for the rates so fixed would have governed the conduct of parties interested in them, unless it was made to appear affirmatively, and in some legal mode, that they were unreasonable. The object of the construction of the roads operated by these companies was, as the bill avers and the opinion of the court admits, to establish a continuous line of interstate communication between the Gulf of Mexico and the Great Lakes of the north. In the accomplishment of that object the entire country took a deep interest; for congress, by grants of land and otherwise, gave those enterprises every possible encouragement. Does any one believe that private capitalists would have supplied the money necessary to establish and maintain these lines of interstate communication had they supposed that the states through which the roads were extended reserved the right, by commissioners, to take charge of the whole matter of rates, and abrogate, at their pleasure, such tariffs of charges as might be established by the companies under the power, expressly conferred, of fixing and regulating rates? Would they have risked the immense sums invested in these enterprises had the charters of the companies contained a provision making rates to depend, not on the capabilities, wants, and interests of the territory to be supplied with railroad service, or on the amount expended in constructing and maintaining these roads, but on their value as estimated by commissioners, and on such basis as the latter, from time to time, might deem to be justified by 'experience and business operations?' Their value, upon what basis, or at what period of their existence? When they were constructed? Or what they would bring at a sale under a decree of court? In the place of charter provisions, under which rates fixed by the companies would be deemed legal until the contrary was made to appear, the statute substitutes a system under which rates established by a commission, and by it increased or diminished from time to time, must be observed by the companies, unless it is made to appear affirmatively that such rates are 'unjust;' officers and agents of the companies, acting in conformity with express provisions of their charters, being made liable to heavy penalties, unless they prove that the commission have established an 'unjust' tariff of charges.

The court concedes that the power which the state asserts, by the statute of 1884, of limiting and regulating rates, does not involve the power to destroy or to confiscate the property of these companies; and consequently it is said the state cannot compel them to carry persons or property without reward, nor do that which in law would amount to a taking of private property for public use without just compensation. And reference is made to that clause of the statute which provides 'that in all trials of cases brought for a violation of any tariff of charges, as fixed by the commission, it may be shown in defense that such tariff so fixed is unjust.' But if I do not misapprehend the effect of the opinion, it means to declare that where the tariff of charges fixed by the commissioners does not certainly work the destruction or confiscation of these properties, or amount in law to taking them for public use without just compensation, the charges so established must be accepted by the courts, as well as by the companies, as reasonable, and therefore not be held or treated 'unjust' in any prosecution under the act for disregarding such tariff. I cannot otherwise interpret the observation that the legislature may establish a maximum, any charge in excess of which must be deemed by the courts and the parties to be unreasonable.

In expressing the foregoing views I would not be understood as denying the power of the state to establish a railroad commission, or to enforce regulations, not inconsistent with the essential charter rights of the companies, in reference to the general conduct of their merely local business. My only purpose is to express the conviction that each of these companies have a contract with the state, whereby it is exempted from absolute legislative control as to rates, and under which it may, through its directors, from time to time, within the limit of reasonableness, establish such rates of toll for the transportation of persons and property as they deem proper, such rates to be respected by the courts and by the public unless they are shown affirmatively to be unreasonable.

The bill, in my judgment, makes a case that justifies a court of equity in interfering to prevent the commissioners from imposing upon the defendants any such tariff of charges as the statute in question authorizes them to establish in reference to their business exclusively within the state of Mississippi. As the court withholds any expression of opinion as to the validity of the statute when applied to interstate commerce,-that is, to the transportation of persons and property taken up out of the state and put down in the state, or taken up in the state and put down out of the state,-I have no occasion to discuss that question. For the reasons stated, I dissent from the opinion and judgment of the court in these cases.

I concur with Mr. Justice HARLAN that the act of Mississippi impairs the obligation of the contract contained in the charter originally granted to the Mobile & Ohio Railroad Company by Alabama, and soon afterwards adopted by Mississippi. At that time it was a matter of great public interest to have railway communication between the Gulf of Mexico and the Ohio river, passing through Alabama, Mississippi, Tennessee, and Kentucky; and to secure it, these states, by legislative acts passed in February, 1848, incorporated the company, to construct, equip, and operate a railroad from Mobile, in Alabama, to a point opposite Cairo, in Illinois, at the junction of the Mississippi and Ohio revers. The road was to run, as thus seen, many hundred miles, part of which was in a country sparsely settled, and in some places covered by almost irreclaimable swamps. It would require several years, and the expenditure of many millions, for its construction. The return for the heavy investment was to be in the distant fature when the country should become more densely populated, and its resources better developed. It was a difficult matter to secure the necessary capital for an enterprise so costly in its character, so remote in its completion, and so uncertain in its returns. To effect this the severa acts of incorporation authorized the president and directors of the company to adopt and establish such a tariff of charges for the transportation of persons and property as they might thank proper, and to alter and change the same at pleasure. The bill alleges-and the allegation must be taken as true on the demurrer-that it was also understood by all parties that, when the road was completed, it should be mandaged by officers selected by the stockholders; and adds that this right of selecting its officers, and of charging and receiving what it should fix as its tariff, was not only a material part of the contract, but was the sole inducement or consideration upon which it was entered into by the company.

Certainly no one will deny that the right to adopt a rate of charges, subject, as such rate always is, to the condition that they shall be reasonable, was of vital importance to the company. Without that concession no one acquainted with the difficulties, expenses, and hazards of the projected enterprise can believe that it would have been undertaken. It was certainly the expectation of the constructors of the road that they should be allowed to receive compensation having some relation to its cost. But the act of Mississippi allows only such compensation as parties appointed by the legislature, not interested in the property, nor required to possess any knowledge of the intricacies and difficulties of the business, shall determine to be a fair return on the value of the road and its appurtenances, though they may be much less than the original cost. Within the last few years, such have been the improvements in machinery, and such the decline in the cost of materials, that it is probably less expensive by one-third to build and equip the road now than it was when the constructors completed it. Does anybody believe that they would have undertaken the work, or proceeded with it, had they been informed that, notwithstanding their vast outlays, they should only be allowed, when it was finished, to receive a fair return upon its value, however much less than cost that might be?

Under the charter the company could make such reasonable discriminations in its charges, dependent upon the amount of business done, the character of the material transported, the existence of competitive lines or points, as its interest might suggest, and which, to some extent, are indispensable to the successful management of the business of every railway company. Differences in the bulk of property of the same weight, differences in value and in liability to breakage or decay, exact different degrees of care and speed in its transportation, and consequently require and justify different charges. And all experience shows that where competition by water or otherwise exists, variations in charges must be made from time to time to secure any portion of the business. These considerations must have their influence with the stockholders when they accepted the charter and undertook the construction of the road. The act of Mississippi, which the court says is the exercise of a lawful right to interfere with the affairs of the company, never relinquished nor qualified by any stipulation, declares that no discrimination shall be made in the charges of the company in any case. Its language is that 'any person or corporation engaged in transporting passengers of freight over any railroad in this state, * * * who for his or its advantage, or for the advantage of any connecting line, or for any person or locality, shall make any discrimination against any individual, locality, or corporation, shall be guilty of extortion.' And in such cases the injured party can recover double the amount of damages sustained by him, and the offending party is declared to be guilty of misdemeanor, and subject to a fine of from ten to five hundred dollars. The harshness and impolicy of such legislation are well shown by illustrations mentioned by counsel. If, for instance, where its road touches a navigable stream, the company charges less per pound per mile for transportation to a distant point which can be reached by water than it does to an inland station, it makes a discrimination against the latter station, and is guilty of extortion, although the transportation would otherwise not be given to the company. If it charges more per pound per mile for local than through freights, it makes a discrimination, and may be punished for extortion. If it charges more per pound per mile for silks than for cotton goods, or for gold bullion than for cast iron, or for tea than for coal, it is guilty of a like discrimination and extortion. If it attempts to encourage the cultivation of fruits, or the manufacture of cotton, woolen, or silken fabrics, or any other industry along its line of road, by a reduction of rates until the business is established, it makes a discrimination; and, if higher rates are charged to others, the exaction of the difference is to them extortion. As well said by counsel, it makes no difference whether the discrimation be founded on value, volume, distance carried, return haul, competition, regularity of shipment, or whether the article transported is perishable or not, it is prohibited, and if made is extortion; and thus, as he well observes, the act of Mississippi pays no attention to the common sense of the world, to the laws of commerce, or to universal custom. Reductions of rates made in the interests of charity and benevolence, for the poor, sick, or infirm, if not also extended to others, would, under it, be criminal. Indeed, under the law, no cause can exist which would justify any discrimination.

I am aware that this court has held that, unless restrained by express contract, the legislature of a state has the right to prescribe a maximum for charges for transportation of persons and freight over railways within her limits; but it has not been generally supposed that different rates, under certain circumstances, may not be made within the maximum in the interest both of the company and of the public. And the right itself must necessarily be subject to the qualification that the prescribed maximum shall at least equal the cost of the service required.

Again, the right of the company to appoint all necessary officers, agents, or servants would seem to be essential to secure competent and efficient men for the successful management of its business. Few individuals or companies would undertake an enterprise requiring skill, experience, and large expenditures, if those who were to conduct it were not to be selected and controlled by them, but by parties appointed, perhaps, under political influences, and possibly without the requisite knowledge and experience. The efficiency and fidelity of employes would be better assured by leaving their appointment to those interested in the judicious management of the business of the company. Indeed, their usefulness and fidelity would seldom be secured in any other way. No one, therefore, can believe that the original stockholders would have accepted the charter and undertaken the work if this right of appointing those who were to carry out and manage it, when completed, was to be withdrawn from them. The act of Mississippi is so plain an impairment of this essential right that I should not have supposed there could be any question on the point did I not find that a majority of my associates are of opinion that it is an entirely constitutional proceeding on the part of the legislature, in nowise interfering with the contract of the company.

I have no doubt that commissioners may, for many purposes, be appointed by the legislature; but I am not prepared to say that the direction and control of the business of the company can, unless a cause of forfeiture or repeal of its charter exists, be taken from it and confided to them, any more than its business can be changed from transportation to manufacturing or banking. The right to elect officers to direct and control its affairs, and to pursue the same kind of business for which it was formed, must be maintained in any regulations prescribed for its government, or we must admit that the power of the legislature over the corporation is, in spite of constitutional limitations, as absolute as that of the parliament of Great Britain. Indeed, the argument which supports the statute of Mississippi seems to proceed upon the ground that such is the legitimate outcome of the decisions of this court with respect to the control which the legislature may exercise over such corporations, irrespective of any stipulation in their charters. If such be the result of the decisions, it is important that it should be known, in order that parties interested in railway property may see that their protection against unreasonable and vindictive measures is not by appeal to the courts, but by efforts to secure wise and intelligent action from the legislature.

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