for the convenience of the public in the transportation of persons and merchandise, they are empowered to charge and receive a reasonable compensation for such carriage. They are also subjected to burdens not imposed on the owners of mere private property used exclusively for private interests. As their franchises are granted on the ground of public good, or public service, which is common or equal in every citizen, unequal and unjust favors are precluded, they must exercise a perfect impartiality and cannot discriminate, and they assume the obligation to transport all persons and merchandise upon like conditions and at reasonable rates. They may be authorized to exercise the right of eminent domain, and are subject to reasonable and just legislative control for the common welfare; 4 nor can they by contract render themselves incapable

♦ United States v. Trans-Missouri thorized to charge reasonable comFreight Assoc., 166 U. S. 290, 321, pensation for the services they thus 332, 41 L. ed. 1007, 17 Sup. Ct. 540. perform. Being the recipients of See Chicago, Milwaukee & St. Paul special privileges from the State, to Rd. Co. v. Minnesota, 134 U. S. 418, be exercised in the interests of the 461, 33 L. ed. 970, 10 Sup. Ct. 462, public, and assuming the obligations 702, per Bradley, J., in dissenting thus mentioned, their business is opinion. Barton v. Barbour, 104 deemed affected with a public use.” U. S. 126, 135, per Woods, J. Charlotte, Columbia & Augusta Rd. Co. v. Gibbes, 142 U. S. 386, 393, 35 L. ed. 1051, 12 Sup. Ct. 255, per Field, J.

"Though railroad corporations are private corporations as distinguished from those created for municipal and governmental purposes, their uses are public. They are formed for the convenience of the public in the transportation of persons and merchandise, and are invested for that purpose with special privileges. They are allowed to exercise the State's right of eminent domain that they may appropriate for their uses the necessary property of others upon paying just compensation therefor, a right which can only be exercised for public purposes. And they assume, by the acceptance of their charters, the obligation to transport all persons and merchandise upon like conditions and at reasonable rates; and they are au

The franchise of a railroad corporation is intended to be exercised for the public good, the consideration for this public grant being the performance of these functions. Thomas v. West Jersey Rd. Co., 101 U. S. 71, 83, 25 L. ed. 950, quoted in Chicago v. People's Gas Light & Coke Co., 121 Ill. 530, 13 N. E. 169, 173. "It is clear that the privilege of making a railway or turnpike, * and taking tolls for the same, is a franchise, as the public have an interest in the same, and the owners of the privilege are liable to answer in damages if they refuse the use of the same, without any reason

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of performing their duties to the public, which are imposed upon them, nor can they absolve themselves from their obli

with the public has been subjected to burdens not imposed on the owners of mere private property, used exclusively for private interests. Railroad companies are

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able excuse, upon being paid or tendered the usual fare." People's Railroad v. Memphis Railroad, 10 Wall. (77 U. S.) 38, 51, 20 L. ed. 844, per Clifford, J., citing Beekman v. Saratoga & Schenectady Rd. Co., 3 Paige public corporations in a limited Ch. (N. Y.) 45, so holding; Wil- sense, although the right of way, loughby v. Horridge, 16 Eng. L. & roadbed, and the track thereon, are Eq. 437; 3 Kent's Comm. (11th for the exclusive use of the owners, ed.) 590; County Commissioners v. over which only their own conveyChandler, 96 U. S. 205, 209, 24 L. ances are propelled. * * * The ed. 625, per Bradley, J. fact that railroad corporations are granted exclusive franchises to conduct a business in its nature public must subject them to all reasonable control to secure the public safety and welfare. It is now the settled law that railroad corporations are within the operation of all reasonable police regulations." Illinois Central Rd. Co. v. Copiah County, 81 Miss. 685, 694, 33 So. 502, per Whitfield, C. J., quoting from Illinois Central Rd. Co. v. Willenborg, 117 Ill. 203, 209, 57 Am. Rep. 862, 7 N. E. 698, per Scott, J.

Railroad companies are by their charters "empowered, besides building and maintaining their roads, to carry passengers and property for a compensation; and at the same time a correlative duty is imposed, that they shall receive and carry passengers and freights over their roads, as they may be offered for the purpose. And when they accept their charters, it is with the implied understanding that they will fairly perform these duties to the public, as common carriers of both persons and property, under the responsibility which that relation imposes." Peoria & Rock Island Ry. Co. v. Coal Valley Mining Co., 68 Ill. 489, 494.

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"In the grant of a franchise of building and using a public railway, there is an implied condition that it is held as a quasi-public trust for the "All property devoted to public benefit of the public, and the corporause takes a nature or qualification tion possessed of the grant must quasi-public. * Where prop- exercise a perfect impartiality to all erty belonging to a natural person or who seek the benefit of the trust." to a corporation becomes 'affected It is true "that these railroad corporawith a public interest, it ceases to be tions are private, and, in the nature juris privati only.' Where a party of their business, are subject to, and devotes his property to a public use, bound by, the doctrine of common the community at large acquires such carriers, yet, beyond that in a pecua qualified interest as will subject it liar sense, they are intrusted with to legislative control for the common certain functions of the government, welfare. Accordingly, the property of in order to afford the public necessary railroads and other public corpora- means of transportation. The betions transacting business for and stowment of these franchises is

5

gations without consent of the State. Although its functions are public, a railroad company holds the legal title to the property employed in the discharge of its duties, and while it must under all circumstances do everything reasonably necessary for the accommodation of passengers and shippers, it may use its property to the best advantage of the public and itself, and for that end may make reasonable rules and regulations for the use of its property consistent with the purposes for which it is created, and not inconsistent with legally established regulations. When not unnecessary, unreasonable or arbitrary, a railroad may make arrangements with, including the granting of special privileges to, a single concern to supply passengers arriving at its terminals with hacks, and cabs, and it is not bound, at least in the absence of valid state legislation requiring it to do so, to accord similar privileges to other persons, even though they be licensed hackmen. Such an exclusive arrangement is not a monopoly in the odious sense of the

S. 1, 11 Sup. Ct. 9, 34 L. ed. 604.

justified only on the ground of public to railroads should be fostered by good, and they must be held and the courts. Joy v. St. Louis, 138 U. enjoyed for that end. This public good is common, and unequal and unjust favors are entirely inconsistent with the common right. So far as their duty to serve the public is concerned, they are not only common carriers, but public agents, and in their very constitution and relation to the public, there is necessarily an implied duty on their part, and a right in the public, to have fair treatment and immunity from unjust discrimination. The right of the public is equal in every citizen, and the trust must be performed so as to secure and protect it." Messenger v. Pennsylvania Rd. Co., 37 N. J. L. 531, 536, 537, 18 Am. Rep. 754. Examine note 3 Am. & Eng. Rd. Cas. 602, especially as to weight of English authority contra.

5 "It is well settled on the soundest principles of public policy that a contract, by which a railroad company seeks to render itself incapable of performing its duties to the public, or attempts to absolve itself from its obligations without the consent of the State, is void and cannot be rendered enforceable by the doctrine of estoppel, and any contract which disables the corporation from performing its functions without the consent of the State, and to relieve the grantees from the burden it imposes, is in violation of the contract with the State, and is void as against public policy." Paige v. Schenectady Ry. Co. (Thompson v. Same), 178 N. Y. 102, 115, 70 N. E. 213, per Martin, J. (citing several cases), case reverses

The rights of the public in respect 82 N. Y. Supp. 192, 84 App. Div. 91.

word, nor does it involve an improper use by a railroad company of its property."

§ 98. Railroad Companies as Public Corporations or “ Public Companies"-Statute.-Railroad companies "are public corporations in a limited sense." And they are "public companies" when incorporated under the English companies' acts, so as to come within the terms of a direction to trustees, under a will, to invest in securities of any railway or other public company. Where a statute provides that all railroad corporations, chartered by the State, which shall be unable to purchase lands for their roads, of the owners of the respective routes, at agreed upon rates, shall be public corporations, and an earlier statute provides that members of public corporations shall be competent witnesses in cases affecting the interests of such corporations, it is held that railroad corporations are not such public corporations, within the meaning of the earlier enacted statute, that the stockholders can be witnesses for the corporation."

§ 99. Railroad Companies as Private Corporations.-Technically, railroad companies are private corporations, they are private as distinguished from those created for municipal and governmental purposes.10 They are also private in the nature of their business,11 and in the sense that, even though their 6 Donovan v. Pennsylvania Co., L. ed. 382, per Strong, J. See note to 199 U. S. 279, 50 L. ed. 192, 26 Sup. § 99, herein.

Ct. 91.

7 Illinois Central Rd. Co. v. Copiah County, 81 Miss. 685, 694, 33 So. 502, per Whitfield, J.

"It is not seriously denied that railroad, though constructed and owned by a private corporation is a matter of public concern, and that its uses are so far public that the right of eminent domain of the State may be exerted to facilitate its construction." Olcott v. Supervisors, 16 Wall. (83 U. S.) 678, 695, 696, 22

8 Sharp, In re (C. A.), L. R. 45 Ch. D. 286.

9 Dearborn v. Boston, Concord & Montreal Rd., 24 N. H. (4 Fost.) 179, 189.

10 Charlotte, Columbia & Augusta Rd. Co. v. Gibbes, 142 U. S. 386, 393, 12 Sup. Ct. 255, 35 L. ed. 1051; Burhop v. City of Milwaukee, 21 Wis. 257.

11 Messenger v. Pennsylvania Rd. Co., 37 N. J. L. 531, 536, 537, 18 Am. Rep. 754.

uses are public, the contract embodied by implication in their charters is within the constitutional provision which prohibits the impairment of obligations of contracts.12 Although a railway company is technically a private corporation, yet it is designed to promote the general public good as well as advance private speculation. So, too, are turnpike and canal companies, and other like corporations, designed to enhance the public prosperity. The interest, therefore, which the public may have in a corporation, unless it has all the interest, does not necessarily make it a public corporation.13 It is declared in a Pennsylvania case that: "A railroad company is not public, nor does it stand in the place of the public; it is but a private corporation over whose rails the public may travel if it choose to ride in its cars. Indeed, we regard it as a misnomer to attach even the name 'quasi-public corporation' to a railroad company, for it has none of the features of such corporations, if we except its qualified right of eminent domain, and this is because of the right reserved in the public to use its way for travel and transportation. Its officers are not public officers, and its business transactions are as private as those of a banking house. Its road may be called a quasi-public highway, but the company itself is a private corporation and nothing more."

" 14

§ 100. Railroad Companies as Quasi-Public Corporations. In the circumstances of their origin and in their powers, uses and duties, railroad corporations are clearly distinguishable from other merely private corporations. There is no analogy between railroad corporations, and manufacturing, mining and other like corporations, evoked by no public necessity, exercising no sovereign powers, subserving no public uses, and subject to no public duties. And these distin

12 Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. 377, 16 Wash. L. Rep. 749.

13 Board of Directors for Leveeing Wabash River v. Houston, 71 Ill. 318, 322, per Scott, J.

14 Pierce v. Commonwealth, 104 Pa. 150, 155, 13 Am. & Eng. Rd. Cas. 74, 79, per Gordon, J., citing Presbyterian Society v. Auburn & Rochester Rd. Co., 3 Hill (N. Y.), 567.