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rated right. It is a right or title which, if it exists at all, is purely a statutory right. It is created by law, it exists only in contemplation of law, it is invisible, intangible, and incapable of a physical possession, and depends on the law for its protection.


It was certainly a stipulation on the part of the government, regulating its own conduct, and putting a restraint upon its own power to authorize any other railroad to be built, with a right to levy toll; but without an authority from the government, no other company or person could be authorized so to make a railroad and levy tax toll, and of course no other such road could be lawfully made." Boston and Lowell Railroad Corporation v. Salem and Lowell Railroad Company, 2 Gray, 27, 30.

"A railroad company for popular use is publici juris; it cannot be legally erected without a legislative permission." Rar. & Del. Bay R. Co. v. Del. & Rar. Canal Co., 18 N. J. Eq. (3 C. E. Green), 570.

The principle was also affirmed by the same court in Del., Lack. & Western R. Co., v. Erie R. Co., 21 N. J. Eq. (6 C. E. Green,) 298.

And again in Mc Gregor v. Erie Railway Co., 35 N. J. Law (6 Vroom), 97, 98, where after quoting with approbation the language of the court of Vermont, the court says: "These references indicate the current of the judicial mind, and the principle of them arises from the very nature of a railroad. A public ferry is a franchise, and consists not merely in the building of the ferry and the furnishing of the boats, but in the running of them. The right of the public to use them is common, but the running of the ferry is a part of the franchise. The running of the ferry is a part of itself, and so the running of a railroad is part of itself. Whoever, therefore, is found running a public railroad for public purposes, is found exercising a function of government. Rights of this kind are only lodged in the hands of others by legislative action." See also Blake v. Railroad Co., 19 Minn. 418, 421, and authorities cited.

Such are some of the authorities to prove that the right to operate a railroad for the accommodation of the public, and to receive tolls or fares, is a right or franchise derived by the corporation under its charter from the State, and which can be derived from no other source. It is believed that no adjudications or even dicta to the contrary can be found. The right to demand tolls is, therefore, by the decision of this court, the proper subject of legislative regulation and control under the reserved power. It is a matter resting wholly in the discretion of the legislature, when and how such regulations shall be made, and what they shall be in every particular.

Another limitation attaching to the reserved power may be found to arise out of the nature of the corporation itself, or the business in which it is authorized to engage. If it be an ordinary commercial or manufacturing corporation, authorized to trade or traffic in or to manufacture some article or articles which every man has a natural right to buy or sell, or to manufacture, it would not seem

to follow that the prices at which the corporation should buy or sell or manufacture might be regulated under the reserved power. The distinction between mere private corporations of this kind and those endowed with and exercising certain public or quasi public functions, has frequently been noted by the courts. The right to buy, sell, and manufacture, being a private and natural one, and not a public one, or one pertaining to the functions and prerogatives of the State, like the demanding of tolls, it would not be a right or privilege granted by the State, and so not one to be regulated or controlled by it.

Other limitations upon the reserved power, or cases not falling within it, may suggest themselves; but it is unnecessary to pursue the subject further here.

Other courts have expressed the same views, and held the same doctrines as to the nature and extent of the reserved power.

In New York, the decisions have been quite numerous, and may be referred to as follows: McLaren v. Pennington, 1 Paige, 102; The Schenectady, etc., Plank Road Co. v. Thatcher, 10 N. Y., 102; Buffalo and N. Y. City R. R. Co. v. Dudley, 14 id., 336; In the matter of Oliver Lee & Co.'s Bank, 21 id., 9; In the matter of the Reciprocity Bank, 22 id., 9; The Albany Northern R. R. Co. v. Brownell, 24 id., 345; The Northern R. R. Co. v. Miller, 10 Barb., 260; White v. Syracuse and Utica R. R. Co., 14 id., 559; Hyatt v. McMahon, 25 id., 457; In the matter of the Reciprocity Bank, 17 How., Pr., 323.

In 21 N. Y., 20, the court say: "The power of the corporation to contract at all was a corporate franchise, and subject to the control of the legislature, by force of the reservation. They might wholly anihilate the power to control by repealing the act, or continue it, subject to such conditions or restrictions as they saw fit to impose. Where a party has a discretion to prohibit an act altgether, if he considers it best for his own interest, he is never bound, absolutely or unconditionally, to forbid it. He may allow it on such conditions as he supposes to be consistent with his interests."

"Regarding the reserve power to alter, modify or repeal, as a part of the compact, its literal and obvious interpretation is, that the franchises and privileges granted were at all times subject to abrogation or change by the legislative power of the State. The power reserved in this charter was one to be exercised at any time by the existing legislative authority, however constituted, and in auy mode conforming to the organic law of the State for the time. being." 22 N. Y., 14.

"It may be admitted that, under this reserved power to alter or repeal, the legislature would have no right to change the fundamental character of the corporation and convert it into a different legal being; for instance, a banking corporation, without absolving those who did not wish to be bound." 14 N. Y., 348.

And again, at pages 354 and 355 of the same report: "The power reserved to the legislature in the original act of incorporation, to alter or repeal the act, is as broad in this case as in that. It is, indeed, entirely unlimited. Under the rule established in that case, no

mere addition to or alteration of the charter, however great, would operate to discharge a stockholder from his obligation to the corporation. To work such a discharge the charter must be repealed, or the legislation must be such as to subvert the corporation itself; or, at least, to destroy its identity. A mere change in name has been repeatedly held not to have that effect."

In Massachusetts the question has been considered and the same general principles affirmed in the following adjudications: Crease r. Babcock, 23 Pick., 334; Roxbury v. The Boston & Prov. R. R. Cor., 6 Cush., 424; Boston & Lowell R. R. Cor. v. Salem & Lowell R. R. Co., 2 Gray, 1; Mass. General Hospital v. St. Mut. Life Ass. Co.. 4 Gray, 227, 234; Commonwealth v. Essex Company, 13 Gray, 239; Fitchburgh R. R. Co. v. Grand Junct. R. R. Co., 4 Allen, 198; Commonwealth v. Eastern R. R. Co., 103 Mass., 254; Commissioners of Fisheries v. Holyoke Company, 104 Mass., 446; Mayor, etc., of Worcester, v. Norwich & Worcester R. R. Co., 109 Mass., 103; Parker v. Metropolitan Railroad Company, ib., 506.

The case last cited confirmed the validity of an act reducing and limiting the rates of toll to be charged by ferry companies for passengers transported on the cars of street railway companies.

In Mayor, etc., of Worcester v. Norwich and Worcester R. R. Co., p. 113, the court say: "As the right of the legislature to alter, amend or repeal the charters of these corporations is absolute, and not dependent upon their consent, it is immaterial whether such consent has been given or not."

In Maine the question has been considered in the four following cases, and perhaps others: Proprietors, etc., v. Haskell, 7 Greenl., 474; Read v. Frankfort Bank, 23 Maine, 318; Meadow Dam Co. v. Gray, 30 ib., 547; Oldtown & Lincoln Railroad Co. v. Veazie, 39 ib., 571.

In New Jersey the decisions are the same. Story v. The Jersey City, etc., Pl'k R'd Co., 16 N, J. Eq. (1 C. E. Green ), 13; The State v. Miller, 30 N. J. Law (1 Vroom), 368; The State ex rel., etc.. v. Miller, 31 N. J. Law (2 Vroom), 521; The State ex rel., etc., v. The Mayor, etc., ib., ib., 575.

In the case first cited, p. 21. the Chancellor says: "When the charter of the company of which the complainant claims to be a stockholder, was granted, it was provided by general law of the State that the charter of every corporation, granted by the legislature, should be subject to alteration, suspension and repeal, in the discretion of the legislature. The legislature, therefore, in granting the charter to the plank road company, must be deemed to have reserved to themselves the right of altering, suspending or repealing the charter, whenever, in their discretion, the public good might require it, as fully as if the reservation were inserted in the charter. And all contracts, expressed or implied, resulting from the act of incorporation and its acceptance by the stockholders, must be deemed to have been entered into by both parties, subject to the reservation.

In the other cases it was resolved by the court:

1. "That no irrepealable contract can result from the provisions

in a charter which is made, in terms subject to alteration, amendment or repeal, by the power granting it."

"Where the right to alter or amend a charter, whenever the public good may require, is reserved, the legislature is the proper tribunal to determine when the right shall be exercised."

In Indiana the words, to alter or repeal, have received the same construction. Wilson v. Tesson, 12 Indiana, 285. The court say: "It was in the power, then, of the legislature to terminate the existence of bauks, created under said act, at its pleasure."

In Rhode Island a like construction has been given: Bailey r. Trustees, etc., 6 R. I., 491; Gardner v. Hope Insurance Co., 9 R. I., 194.

In Minnesota likewise, Perrin v. Oliver, 1 Minn., 202; Blake v. Railroad Co., 19 Minn., 418.

In Iowa, Miner's Bank r. The United States, 1 Green, 563.

In Kentucky, Sage, v. Dillard, 15 B. Mon., 347; Louisville v President, etc., ib., 642.

And in Pennsylvania, Erie & Northeast Railroad v. Casey, 26 Pa. St., 287, 302.

Such are the authorities, and when the question comes to be considered on principle, it is difficult to perceive how otherwise it could have been held and decided by the courts. The creation of corporations is a prerogative of sovereignty-an absolute, unqualified power of the State, to be exercised or not as the legislature shall see fit; and at such times, in such manner, and subject to such conditions and reservations as the legislature, in its own sovereign pleasure, shall determine, regard being had only to the restrictions upon the legislative power contained in the constitution of the State. The legislature may, there fore, by statute, or the people by fundamental law, reserve whatsoever control and authority over these beings of their creation they will, and there is no power lodged elsewhere under our system of government to deny this sovereign. right, or to interfere or prevent its exercise. The power which creates at its own free will and pleasure, may reserve the power to destroy the corporation or being created, or so prescribe the conditions upon which its future or continued existence shall depend.

This principle has been so recently and fully and clearly recognized by this court, that a quotation of the language of the court suffices to put the matter at rest. In Railroad Company vs. Maryland, 21 Wallace, 471, the court says: "This unlimited right of the State to charge, or to authorize others to charge, toll, freight, or fare, for transportation on its roads, canals, and railroads arises from the simple fact that they are of its own work, or constructed under its authority. It gives them being. It has a right to exact compensation for their use. It has a discretion as to the amount of that compensation. That discretion is a legislative-sovereigndiscretion, and in its very nature is unlimited and uncontrolled. The security of the public, against any abuse of this discretion resides in the responsibility of the public, of those who for the time being are officially invested with it. In this respect it is like all other legislative power when not controlled by specific constitutional

provisions, and the courts cannot presume that it will be exercised detrimentally."

The power of the state, when reserved as in this case, over the corporations to which it has given being, is in character and extent the same as its authority over its own works of internal improvement. It is a sovereign legislative power, in its very nature unrestricted and uncontrolled.

Nor is this control of the State over corporations, by which the value of their franchises may be destroyed or the value and productiveness of their property or of the property of their stockholders or creditors may be diminished or taken away, anything new in the history of American law upon this subject. In one sense, a broad political one, all citizens and subjects, corporations included, are indebted to the government for all their rights of property, as well of life and liberty,, for without the aid and protection of the State no such rights could exist or be maintained. Property in the legal sense, that is, the right of possession, enjoyment and transmission, according to the the concessions and provisions of municipal or particular law enforced by the present command and sanction of the State, is a creation of the State. In this sense the property of all citizens belongs to the State, and may be appropriated by it as the exigencies of its affairs demand. In this sense it is the duty of every citizens to yield all, and in the power of the state to take all, if the the necessities of the State require. The duty of the citizen arises out of the protection which the State has afforded and will afford in the future. This is the source of the taxing power and the ground on which it rests. That this is a power without restriction; one" which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it," is a principle which is well settled and well understood. "All subjects over which the sovereign power of a State extends, are objects of taxation. The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission. The power of taxing may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The power to tax involves the power to destroy." McCulloch v. Maryland, 4 Wheaton, 427, 428, 429, 431.

This power to destroy corporations of its own creation each State of the Union has always possessed, even where the charter of the corporation became a contract between the State and the corporation, within the protection of the clause of the Constitution of the United States prohibiting the State from passing any laws violating the obligation of contracts. The power to tax is not limited by that clause of the federal Constitution, but overrides it. This was expressly held by this court in Providence Bank v. Billings, 4 Peters, 513; "A power to tax the bank may unquestionably be carried to such an excess as to take all its profits, and still more than its profits, for the use of the State, and consequently destroy the institution. Now, whatever may be the rule of expediency, the

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