, 1872-12-09
The Power Of the Legislature
to Regulate Them.
Decision Of Judge Wood, OF Kanka-
kee, Thereon.
The Act of the Legislature Declared I'm
constitutional and Void as to
Pre-existing Charters.
Stephen r. Moore .. The Illinois Central Raft-
road Conpany-In the Ka1.kukee Circuit Court,
Of the December Term, 1872.

o. Ne Deceh70Er Ie1"na l5I2-
DECISION.
This cause is submitted upon an agreed state
of facts, from which it appears that the plaintiff,
on the 2d day Of July, A. D. 1871, entered the
cars OF defendant at Chicago to take passage
therein over defendants road to Kankakee; that
the plaintiff rendered the conductor three cents
per mile Us fare, or one dollar and sizty-eight
cents for the whole distance; that the conductor
xefused to receive the money so rendered, and
demanded the sum Of two dollars and forty
cents, the regular fare then existing, and which
had been previously fixed BY the defendant; that
tie plaintiff, to avoid being elected from the
ears, paid the sum demanded under protest. and
row brings this suit to recover back the excesspad
lover three cents per mile. It is further admit
tied, along with other formal matters as state
Hneat Of which is unnecessary to an understand"
Afng Of this case: that the Board Of Railrood and
Warehouse Commissioners, during the month OF
4Septembe- A. D. 1871, assigned the railroad Of de-
tFendant to ''Class B., under act Of the General
xAssembly entitled An net to establish 3 rea-
Honable maximum rate Of charges for the trans
portation of passengers On railroads in this
Statc," approved April Is, 1871, by virtue Of
which act and classification the defendant would
have the right to charge passengers for carriage
three cents per mile only.
The defendant resists q recovery On tho
g12uua that Its charter gives it the right to es-
ta5Ash the rates Of toll for the conveyance Of
passengers, and because such charter is con-
tract and within the protection Of the provisions
rf the Federal Constitution, which de-
;s ssy law tnn prps ne tSe State oDgson ias
conrects, :" and that consequently Its right to
E2 is tolls go granted cannot be impaired by
the Last clause OF Sec. u 1T Article II Of the
~ u. r3,,4- -r1E
hhe General Assembly to pass laws establishin
leasolnble maximum rates Of charges for the
transportation of passengers on the different
1ailroaes in this State, For By the Railroad ect
in question passed pursuant thereto.
The ao2trine first ennuciatcd in Dartmouth
College q. Woodward, Wheaton, 625, that q
charter ofincorporation constitutes contract,
has been maintained by IN unbro1en chain Of
Bringlampton Bridge case, 8 Wallace, 70, "We
have supposed, If anything was settled In the
Federal and State Courts, it was that an act OF
incorporation was contract between the State
estopped from questioning the doctrine. The
security of property rests upon it, end every sue
cesEfGl enterprise is undertaken II the un-
broken belief that it will never be forsaken."
Tie charter Of defendant constitutes such O
coat1act. Neustadt rs. Illinois Central Railroad
Company, 81 H., 4s4. Being contract, no
law ca1 be passed to lessen or impair any of the
essential privileges conferred by the charter, OF.
as u
the Legislature which repeals, materially i'm
1airs, or alters tho rights Of The corporators
without their assent, would be in contrayentlon
OF the constitutional provision" Ohio d Mis-
RisEipi Railroad Company rs. McCleland, 70
in. 10. And State Constitution equally with
- statute is within the moaning OF the pro-
hibitiu Of the Federal Constitution: Gum
1,;ags rs. the State Of Missouri, Wallace,
s22- Railroad Company "s Mcclnre. u ihao'
615.
Thequestion, then, arises, whether this act,
f1inea maximum rate OF charges for the trans
ortaion of passengers, deprives the defendant
of ar material vested right secured to it BY ita
charsr, and, if SO, whether it can be justified
on tla ground Of tine nature Of its organization,
end he relations to the public which such 8 cor
raraton sustains OF wletherl it can be sustained
poweB WHICH are confessedly inalienable by the
1hteighth section Of the charter Of defend
ant declares '' that the Board OF Directors shall
havo lower to establish such rates of toll for
the conveyance Of persons and property upon
the ssne as theT shall from time to time, BY
their Iy-lawa, direct and determine, aud to levy
md Collect the same for the use OF said Com
any,"
Tie right to collect some toll in corporation
this character constitutes one of its essen
eial franchises, without the exercise of which it
would be impossible for it to continue long to
exist. Thorpe us. r. d B. L. +. Co., =! Yer
:,ont Rep. 146,
= And tic stipulation in this case shows that the
I in question reduces the rate of toll for pas
gers about one and one-fourth cents per mile
X the rate fixed by the Company between
1eo and Aankakee. It is, therefore, neces'
: Conclusion that the effect OF the act is tc
1aarerially restrict this Important franchise o1
he defendant conferred upon it By it's charter
. coustitntionally exercised by the Legislature
7er such corporations at onco arises: Some
.ficuIty is found in the solution OF this ques'
on from the dispute as to the nature p Of these NJ
H. IN sr,ESQ tfrCy
urblic corporations, The other that they are
::iTate; but neither view is wholly correct In
ie sense TINT it operates great highway fo1
the public uses Of transit and OF commerce, ano
sac hnd tie power of enln domain exercised
iv tho State IN it's behalf in the sense, too, thai
t. holds its franchises to be exercised for the
benefit Of tho whole public without i Par cr
t aizc5 hstiHR pnbc S5 oorpo1ation
Int in lie sense that it's road, with all it's rol]1nt
XIX. l11i1iiner, and fixtures, have been created
bvrlyato capital, and that it is owned and ope
ratd by the company for the exclusive Peseun
lar benefit and advantage Of it's stock holders
T. ; essentially private. In other words, SO tai
fsat11e reorganization Of the public in the car
E5a Of passengers and freight is concerned, tht
tErschises Of such corporation are pu6icl juris
anfar as they require capital and produce reVe
la,,s they are priuuti iu'-is.
) + wss held in Thorpe us. The Rutland q Bur
,1i,nton Railroad Company, before cited. tnat a
TO such corporations the privilege OF InnninE TN
road and collecting tolls, or fare and freight, IL
~ ~" ESSENTIAL franchise conferred, and thu
any m set essentially paralyzing this .3;ann fran
sze ES6Gf pa the a5aSt R5Sti6 b t9sGd eod
au FL heroud that the entire power Of Legis1atiy!
i IL sa Ess@tsR Is Rs aas sssf '9s,
para17on po11I - Uuon The question here made ths
noWcr IS limited in the charter, but that, it il
Sssas 5s be 7ss RssTfisp 6i Is
o1sare Eta hv The Legialat1re. What, then, are tn
poiice powers thai may be lawfully exercised i; i
this behalf? Plainly, they extend only to tn
regulation Of the exercise Of such franchises o
the corporation as are pa4blici juris.
In the proper exercise of this power, the Leg
isla.ure may pass such laws as may be reauire'
to punish neglect or misconduct in the manage
ment Of the road; to 1nsure the safety Of pas
and PrGRs to gnaFd mpostBen 1ns Baop
aegtefion to provide for the forfeiture Of tn
frnnilise for non-user or misuser, judiciall
: ascetained; OF, in the exercise Q
tie se7creisn powers Of eminent domain, ma
-ae77ua tha propertv for public use On making