Company owns the right in perpetuity to transport persons and property on its lines of railroads and to charge for every passenger not exceeding five cents per mile and freight for property at a rate not exceeding fifty cents per hundred pounds for heavy articles and ten cents per cubic foot for articles of measurement for every one hundred miles." The bill also avers: "Notwithstanding said deed of lease, your orator, the Georgia Railroad and Banking Company remains liable to the public and to the third parties, whose persons and property are transported over the leased railroads, for any breach or failure of duty in and about the management and operatiion of said railroads and might incur, as well as your orator, William M. Wadley, the penalties hereinafter mentioned." The company has not attempted by the lease to avoid the performance of any duty owed, under its franchise, to the public, or to escape the failure of performance. The deed of lease recognizes the continuance of the company's duty and legal responsibility. See Lease. ments. It could not have relieved itself if it had sought to do so. The evidence submitted to the Chancellor at the hearing I for an injunction, viz: the affidavit of defendants (answer and cross-bill) and the affidavits of complainants (answers to cross-bill) do not vary the facts set forth in these averThese averments, we think, show that the complainant company has an interest, which gives it a standing in a Court of Equity-a vital interest, a present interest, an interest, which must be protected now or be forever lost. For it is the owner of the franchise, which it is sought to protect from invasion. Non constat, that its lessee would go to the trouble and expense of protecting it. This would be. perhaps, more apparent in a bill filed by the company alone, but the joinder of the lessee does not change the principle. Even now the lessee might withdraw. There is no obligation on him to fight the battle of his lessor. In any view the lessor has in no way parted with its right to defend its own property. It has only parted with its use of the property for a term of years. If the term were six months instead of ninetynine years, the interest of the complainant company would be more apparent; but the length of the term does not, in contemplation of law, affect the legal interest. Moreover, many contingencies attend the contract of lease, which might at any time bring it to an end. We have already shown that the protection of the franchise is a favorite exercise of equity jurisdiction. Who will protect its franchise if the company does not? 2. When should it protect it? The position is taken by defendants that the company must wait until the termination, for some cause, of the lease. On the contrary, it would then be too late. Already it is averred, feebly it is true, by the defendants, that they can claim acquiescence by this company in the order of the Commissioners, up to the time of the filing the bill, as an estoppel. While this position of defendants is untenable for the reason that such acquiescence, as there has been, in the regulations of the Commission, has been of short duration, and for the most part under protest, and as to CireuJars Nos. 20 and 21 no acquiescence at all; still the principle is true that: Laches, delay in prosecuting one's right will be assumed to be acquiescence in the assertion of adverse rights. Story's Com. on Equity, page 735-737. "It is requisite that a complainant, seeking the aid of a Court of Equity by injunction, shall not have been guilty of laches or delay in the assertion of his rights: for while delay may not amount to proof of acquiescence in the wrong for which he seeks redress, it may yet suffice to prevent his obtaining relief by injunction." "High on Injunctions, section 7. "In all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one's own negligence and delay in seeking protection." Ibid, 397. The relief even against a void assessment of taxes is lost by acquiescence. Ibid. 364. "He who seeks the aid of equity to enjoin the violation of an agreement, or for the protection of his contract rights * must show that he has used reasonable diligence in asserting his rights and demanding their pro tection, and unreasonable delay in seeking the aid of a court of equity, or acquiescence in the violation of the agreement in question, will generally prove a bar to the exercise of the jurisdiction." Ibid, 707. "As in all cases where the preventive jurisdiction of equity is invoked for the protection of rights, he who seeks relief against a violation of his franchise, must make his application promptly and without delay, and must use reasonable diligence in the assertion of his rights." Ibid, 575. So this company, which owns this franchise, can protect it only by prompt present action. The argument to show that the company has a standing in court to maintain this bill, has proceeded thus far on the assumption, that the company was not in the present possession of the franchise. But this is not the fact. For the purpose of being responsible to the public and to all persons using its road as passengers or shippers, and for the purpose of being liable to the multiplicity of suits, al lowed and even required by the Commission act, the com- The company cannot in the absence of special statute authority and exemption, divest itself of responsibility for the torts (extortion') of persons, operating its road, by transferring its corporate power or leasing the roads, to them. It cannot by its own act absolve itself from its public obligations without the consent of the Legislature." Pierce on Railroads, 283. The same principle is set forth in Railroad Co. vs Barron, 5 Wallace. 90, and in a number of cases there cited. In Railroad Co. vs. Brown, 7 Wallace. 455, the court say on page 450: "It is the accepted doctrine in this country, that a railroad corporation cannot escape the performance of any duty or obligation, imposed by its charter or the general laws of the State, by a voluntary surrender of its road, into hands of lessees." In Macon and Augusta R. R. Co. vs. Mayes, 49 Ga., 355, the court, in the head note, say: "Where a railroad company permits other companies or persons to exercise the franchise of running cars, drawn by steam, over its read, the company owning the road, and to which the law has entrusted the franchise, is liable for any injury done as though the company owning the road were itself running the cars. This last decision elaborates the principle fully, and es tablishes it by most satisfactory reasoning and abundant authority. Indeed, it is questionable under the decision in the Cen tral R. R. & Banking Co. vs. Brinson, 61 Ga., 475, whether a suit against the lessee alone would be good. Such being the law on this branch of our argument, we ask against whom could and would the multiplicity of suits, which are threatened by the Commission act, be brought? And if they could and would be brought against the railroad company, has it not, notwithstanding the lease, a present interest in this suit? B. Status of the Lessee. 1. It will hardly be disputed, that the legality of the arrangements between the lessee and The Central Railroad and Banking Company and the Louisville and Nashville Railroad Company, as disclosed by the affidavit (answer of the lessee to the cross-bill) is not a subject of legitimate inquiry in this proceeding, except so far as it affects the question, whether the lessee has or has not any interest, calling for the protection of the court. Whenever the legality and validity of these arrangements, or of the lease from complainant company, to the complainant lessee, are called in question by persons, authorized to question them, and in a proceeding, instituted for that purpose, they will be defended, and we humbly but confidently believe, defended successfully. But at present they are not subjects of legitimate consideration, except for the purpose of ascertaining the status of the lessée before the court. The bill and uncontroverted affidavits, (answers to cross bill) of both complainants, sustaining it, show: First, That the Lessee, while giving certain artificial persons an interest in the workings of the leased property, and a voice in its control, has not assigned the lease to any one. Second, That the complainant company knows no one in this business but the complainant Lessee. Third, That the complainant Lessee alone is responsible to the complainant company for the payment of the ren, tal, and for the performance of the covenants of the leaseand to him alone and to the $1,000,000 of securities deposited by him, and for which he must account, does the complainant company look. These facts certainly show the lessee as having such an interest in subject matter of this suit, as would give him a standing in the proper tribunal. If the standing of the complainant in court is otherwise good, it cannot be injuriously affected upon any idea that the lease from the company to Mr. Wadley, or the arrangements of the latter with other persons are illegal or against public policy. For even were this true, (and the contrary 'is maincorporations concerned in them, can be called in questained by complainants) the alleged illegal acts of the tion only by the sovereign, acting through the proper officers, (not the Railroad Commissioners who are special agents for a different purpose and with limited authority), and in a proceeding instituted for that purpose. These alleged illegal acts cannot be attacked collaterally. Field on Corporations, 493; 6 Ga., 130; 32 Ga., 273; the terms "transportation," "carriage" or "conveyand numerous authorities. III. CONSTRUCTION OF CLAUSES OF THE COMPLAINANT COMPANY'S CHARTER. A. Rules of construction of charters. 1. It is admitted that language in a charter, relied on to sustain an exemption from the operation of general tax laws must be clear and unequivocal. 2. That grants of exclusive privilege will not be presumed, and must be based upon express words. 3. That the grant of franchises, which affect the public interest will be construed strictly, Pierce on Railways, pages 154 and 452; 9 Ga., 475; 49 Ga., 475. 4. But these authorities (especially the first citation from Pierce) also hold that rights are taken from the public and given to corporations, when such would be the effect of "the words naturally and properly construed." B It hardly is necessary to combat the position of one of the counsel for defendants, viz: That the charter of the Georgia Railroad and Banking Company expired several years ago. Counsel seems to have been, misled by the 2d section of the charter, which is in these words: "The company shall have the exclusive privilege of constructing railroads from any point in this State, within twenty miles of the road herein designated as the Union Road and its branches, leading to Eatonton, Athens and Madison, continuously to the city of Augusta, for and during the term of thirty-six years." This exclusive privilege of constructing roads has expired. It expired in 1869 or 1870. But the charter, as to all other parts of it, continues in full force Having been granted before the Code of 1863 changed the common law in this respect, the corporation had the com. mon law attribute of perpetual succession. The silence of the Legislature would have been sufficient to leave it possessed of this attribute. But the Legislature was, in fact, not silent; but on the contrary, expressly declared in the 9th section of the charter, that the company should have perpetual succession of members. C.-THE POWER TO MAKE A LEASE. 1. Defendants seem to admit that the complainant company has a qualified right to make a lease. It is true, that there is some intimation that the right to lease was abrogated by the S'ate Constitution of 1877. But this can hardly be seriously claimed For if the company had, prior to that Constitution, the vested right to make a lease, the Constitution could no more take away that right than could a statute. 2. But it is contended with great earnestness, that the power to lease extends only to the passenger traffic; and the following language of the 12th section is relied on to support that view, viz: "The said company may, when they see fit, rent or farm out all or any part of their said exclusive right of transportation or conveyance of persons, etc. If this were the only language, used in the charter, on this subject, there might be some color for defendants' position. But let us try this question by reason, and in connection with all parts of the charter in pari materia, instead of by the letter of a fragment of one sentence. A. There would seem to be no reason why the company should have the right to lease the privilege of conveying persons, and not have the same right as to the transportation of property. On the contrary, there would seem to be controlling reasons why they should not be separated. Obviously there would be more danger of the accidents, peculiar to railroads, by having a divided management. Moreover there could not be that combination of the transportation of both persons and property, so advantageous to the Company and convenient to the public; but each train must be exclusively a passenger train, or exclusively a freight train. B. This view of defendants would make both the words "transportation or conveyance" in part of the sentence selected for their purpose apply to passengers only. Complainants say that the true meaning is "transportation (of property) or conveyance of persons." Nowhere else in dealing with the right to lease, does the charter use two terms in speaking of one subject; but in every other instance, where any two of ance" are used, the two subjects, property (freight) and "persons" (passengers) are clearly meant. The words in the fragment of a sentence, selected by defendant to sustain their position, are, in the same section, preceded twice and followed twice by the use of two terms indicating the act of transporting applied to the two subjects, (freight and passengers of transporta tion, having an irresistible inference that in the isolated instance, relied on by defendants, the two terms of transportation were meant to apply, as in the other four instances to the two subjects of transportation. which contains these vaunted words, three rates of C. Again, in the sentence next preceding that one, charges are fixed-two of them as to freight, one of them as to passengers. Now if the right to lease the passenger business only, was given, it would have been "subject to the rate above mentioned;" for there was only the one single rate "above mentioned" as to passengers. But the language actually used is subject to the rates above mentioned." Now, if only persons and not property were referred to, the use of the plural was strikingly incorrect, only one rate having been named for persons. But if both persons and property were intended, the use of the plural rates was necessary-three rates having been above mentioned." D Again, the very next sentence after that relied on by defendants, speaks of the company themselves "in the exercise of their right of carriage or transportation of persons or property, or the persons so taking from the company the right of transportation or conveyto be taken (leased) from the company? Certainly the ance," etc. What right does this language import was same right which the company themselves were exer cising. And what was that right? "The right of carriage or transportation of persons or property.' E. Again, the sentence just quoted provides that "the persons so taking from the company the right of transportation or conveyance" (that is the lessee) "shall be regarded as common carriers" It is not denied tha this phrase "common carriers" might have been used with reference to the carrier of passengers only, but it is not at all likely. When the term is used without qualifying words, the idea of property, freight, and of these only, naturally rises to the mind. F. Again, the fourteenth section of the charter, treating of the subject of leasing says: "Whenever the company aforesaid shall see fit to farm out, as aforesaid, to any person or persons, or body corporate” (not the right of transportation or conveyance of persons only, but) "any part of their exclusive rights of conveyance and transportation," etc In this language we find a clear and distinct recognition of the right to farm out freight as well as passenger business. It will be seen from the foregoing review of the provisions of the charter, relating to the leasing power, that they are seven in number, and that in only one of them is found any color for the position taken by the defendants, and in that one only, so long as it is considered alone and without reference to the other provisions in pari materia. while all the other six references, in order to make sense, require the leasing power to apply both to freight and passengers. G. But we are not left entirely to our own views of these provisions of the charter, or to rely only on such aid as we can get from general rules of construction. We think that we have in the reasoning of the Supreme Court of Georgia in Arnold & DuBose vs the Georgia Railroad and Banking Company, 50 Ga., 304, ample support for our views That was a suit, brought by plaintiffs against this railroad company for charges greater than those fixed in the 12th section of the charter. In arriving at a decis ion, the court, on pages 3 7 and 308, comment on the leasing power, and derive the reasons for their decision from a consideration of the duty of a lessee in the transportation of freight. After citing the very sentence relied on by the defendants to this bill, the court assume that the provisions apply to a lessee in transporting property. Considering this very provision, along with another provision of the charter, the court say: "Each implies that less than one hundred miles of the road might be used more or less permanently; but if it was, the owner, or the lessee, as the case might be, should be subject to the rate of fifty cents per hundred pounds for one hundred miles.” So we claim confidently that reason, the language used and the authority just quoted establish beyond controversy, that the power to lease includes the freight as well as the passenger business and that the lease actually made was not in excess of the power of the complainant company. H. But even if the lease were void as to the freight business, what effect would that legal conclusion have on this suit? Only this: The complainant company, being left in the full possession of its freight business, would simply gain in its status before the court what the lessee had los from his status. While such a conclusion might deprive the lessee of a cause of complaint, it would, at the same time, furnish an unquestionable ground of complaint to the company. IV. Section 1. Describes the roads to be built. Section 4. Opens books and appoints commissioners Section 5. Provides how long the books shall be kept Section 9. Names the corporation, gives it (what it would have had without this section) perpetual succes RIGHT OF THE COMPLAINANT COMPANY TO FIX ITS OWN Sion and the usual attributes of corporations generally. RATES FOR FREIGHT AND PASSENGERS WITHIN CERTAIN Section 10. Authorizes the obtaining by purchase, contract, etc., of lands, right of way, etc. Section 11. Provides the means for exercising the right of eminent domain And then comes this 12th section, after the corporation, by the preceding sections, is completed and the means provided to perform the purposes of its creation, and says what that business shall be, and grants the franchise to carry it on. 1. This right is claimed under the following language of the 12th section of the company's charter: "The said Georgia Railroad Company shall at all times have the exclusive right of transportation or conveyance of persons, merchandise and produce over the railroad and railroads, to be by them constructed, while they see fit to exercise the exclusive right: Provided, that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement for every hundred miles, and five cents per mile for every passenger," etc., etc. Complainants say that this language gave to the rail-in this section. The franchise here granted would have road company the franchise of transporting freight and passengers, but by the proviso limited the rates, which the company could charge. Defendant's claim that this language does not limit the rates to be charged but makes those rates a condition of the exclusiveness of the grant. In other words: The company claim that this section defined their business, and, inasmuch as it was a business, subject to regulation by the Legislature-the Legislature did, in fact, in the language of the proviso, reglate it; and The defendants claim that the only object of the proviso was to prescribe the terms, on which the company So that, were to have the exclusive use of their roads under the construction, claimed by defendants, this section would mean: The company shall have the right to transport freight and passengers, subject, like other common carriers, to control as to their rates, provided, however, that whenever the company shall charge higher rates than those named in this section, the exclusiveness of their use of their road shall be forfeited. That is to say, the language of the proviso was not the limitation, which the Legislature put upon the right of the company to make rates, but was simply a condition, upon which the company was to have the excluWe state fairly the position of sive use of their roads. defendants' counsel. Now under this construction, claimed by defendants, the effect of charging more than the prescribed rates wou'd not be a violation by the company of the law of their charter; but the consequence would be to lose their exclusive right and to throw open their roads to use by others -not to lose their own right to use them, but to admit others, individuals or corporations, to share that use with them on equal or unequal terms. However crude the ideas about railroads may have been at the date of this charter the court will hardly impute to the Legislature so impracticable a scheme-not to say so great a folly-when the language of the charter does not require it, and when nothing extrinsic to the charter suggests it, except a vague, floating, misty tradition of wha was the expectation of the corporators at that early day. The error of this construction by defendants has grown out of their misapprehension of the purpose of this 12th section. They have treated the section as if its purpose was not to grant to the company the franchise to pursue the business of common carriers, but to secure exclusiveness in the business of the company. In the orderly Whereas, this section is one of granting. arrangement of the provisions of the charter, the point is reached at this 12th section, where the Legislature for the first time in the charter grants the franchise to carry on business. Up to this point nothing has been said in the charter as to the business. which the company is to carry on. And this all-important section, bringing into life the business of the corporation, the defendants, seizing upon a word, having, as we shall show, no special sig nificance, treat as if its purpose was to name the condition upon which the business was to be "exclusive," We say this word has no special significance as used been no less effectual if this word had been left out. From the nature of things, but one person, whether natural or artificial, could have enjoyed such a franchise. There is nothing shown to the court in reference 10 those existing facts, circumstances or ideas, which would warrant us in imputing to our fathers, whether as legislators or corporators, any such impracticable fancies as those made necessary by the defendants' construction. The Georgia Railroad was one of the first in 'ime, but i had some predecessors and many successors; and it is not shown or hinted, that, at any time iu the history of railroads, was there any view of them which gave the control and management of the same road to more than one person, natural or artificial, the exclusive management. This 12th section simply contains a grant (or rather, as we have already seen and shall presently show again, two grants) with limitations upon the grant-not a condition of exclusive enjoyment. The grant is not of exclusiveness but of the franchise of carrying on the business of common carriers, and the first proviso is the limitation which the Legislature put upon this grant. The grant and the limitation together mean that the company may transport freight and passengers, and may charge for such service the rates named. 2. Further considering this 12th section, as one granting powers and privileges, we say that it is not denied that the second proviso gives a right to lease though the extent of that right is indefinite. But if the first proviso is a condition of exclusive enjoyment, why is not the second proviso, found in the same section, and in the same sentence, and commencing with the same word, "Provided"-which word, in the view of the defendants, stamps it with the quality of a conditionwhy is not this second proviso also a condition of exclusive enjoyment? It has the same right as the first proviso to be so considered. But to give to it this meaning, would be to make the power to lease also a condition of exclusive enjoyment-i. e., exclusive enjoyment would be granted on the condition of parting with the enjoyment; or the enjoymeat would be exclusive on consideration that it was not exclusivewhich is the reductio ad absurdum. 3. But we say as to this question, also, we are not left solely to reasoning and the general rules of construction. We refer again to Arnold & We think we have direct authority in a decision of the Supreme Court of Georgia DuBose vs The Georgia Railroad and banking Co., 50 Ga.. 304. The construction claimed by defendants is that the com any can charge greater rates than those named in the 12in section withou. violating a y law, or failing in be the loss of the exclusive feature of the company's any legal duty to snippers; but that the penalty would enjoyment. But this suit, Arnold & DuBose vs. The Railroad Co., was brought on the theory that the Legislature had prescribed those rates as binding on the company to govern its business. The court so decided and held (see second head note). "The Georgia Railroad and Banking Co, under the 12th section of its charter, can only charge for freight fifty cents per one hundred pounds on heavy articles for one hundred miles, and in proportion to that rate for a less distance than one hundred miles." In this case we find the court deciding directly in accordance with our views of this section, that it was the law of freight and passenger rates for this company It did not occur to the court, or to any of the large array of counsel on both sides in that case, that this section had any such meaning as that suggested by the ingenuity of counsel for defendants in the case at bar. V. no sense fixed the maximum rates or contracted with the corporation. We say, then, that if the Legislature did, as we claim it did, permanently fix the maximum charges and make them a part of the charter of the company, the barrier of a contract was thus presented against future legisla tive interference. This proposition, so fully supported by principle, is also very clearly implied, if not expressly decided, in Chicago, etc., Railroad Co. vs. lowa. 94 U.S. 155; Munn vs. Illinois, Ibid., 113; Peik vs. Chicago, ete.. Railroad Co., Ibid., 165; Shields vs. Ohio, 95 C. S..919; and in Judge Woods' decision, (so much relied on by defendants), in Till y vs. Railroad Commission In the cas Chicago, etc., Railroad Co. vs Iowa, 91 U. S., 155, Chief Justice Waite says, on page 162: “It was within the power of th company to cal upon the Leg islature to fix permanently this limit, and make it part of the charter; and if it was refused, to abstain from building the road, and establishing the contemplated business. If this had been done, the charter might have WHATEVER PROVISION ON THE SUBJECT OF MAXIMUM presented a contract against future legislative interfer RATES BECAME INCORPORATED IN THE CHARTER AND It would be inexcusable to consume time in arguing a proposition, brought down from the Dartmouth College case (4 Wheaton,) to the present hour by an unbroken line of authority, that the charter of a private corporation is an executed contract between the government and the corporators, and that the Legislature (in the absence of power reserved for that purpose) cannot repeal, impair, or alter it against the consent of the corporation, or without its default judicially declared. Embarrassed by the limitless mass of authority, sustaining this proposition, we confine ourselves to citing the following from the reports of our own Supreme Court, to-wit: 6 Ga., 130; 19 Ga., 325; 51 Ga., 423; 62 Ga., 485. The cases cited by one of the counsel for defendants. viz: Ruggles vs. Illinois, 91 Ill.; Illinois Central Railroad Co. vs. The People, 95 Ill., 313, do not conflict with this principle; for in those cases the Legislature had not, as in the case at bar, permanently fixed the maximum rates and made them a part of the charter; but the provision on the subject of rates in these Illinois charters was, that the Directors might fix rates. This is a power inherent in Directors, and the charters simply declared what already existed without such declaration, and in If, as we claim and have endeavored to show, the charter of the railroad company fixes maximum rates, which the company and their lessee are authorized to charge, no legal application of the pol ce power can reach this purely pecuniary right. For the limit to the exercise of the police power in these cases must be this: The regulations must have referenc⚫ to the com fort, safety or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must no', under pretence of regulation, take from the corporation any of the essential rights and privileges, which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise." Cooley's Con. Lin., 577; 70 Ill., 191. VII. EMINENT DOMAIN. If this franchse of the Georgia Railroad and Banking Company is an incubus on the welfare of the public, the public is not remediless. If there was previously any difficulty on this print. it has been removed by the State Constitution of 1877, which provides that the " franchises," as well as the other property of corporations, may be taken for public If the public good require that this franchise of the Georgia Railroad and Banking Company should cease, let it be taken in the exercise of the right of eminent domain. use. Then there will be "just compensation" instead of unjust confisca io. BRIEF OF MYNATT & HOWELL, The Georgia Railroad and Banking Company, and then any man may enjoin another who has cause of ge- 1st. The Court will not enjoin the officers of the State who are proceeding under authority of law, and the allegations that the statutes in questioa is unconstitutional is no ground for granting the injunction. Thompson vs. Commissioners of Canal, Find. 2. Abb. Par. 248; 2 High on Injs, secs, 1326 and 1327; Peeple vs. Canal Board, 55 N. Y., 390. | is upon the merest apprehension, so far as any act of the Commissioners is concerned. It is a grave request of the Court to sit in judgment upon the constitution ality of a law not being enforced. It is equivalent to asking the Court to exercise the veto power. 3d. The company insists upon the right to fix its own rates, not to exceed the maximum rates mentioned in its charter, and that the State cannot deprive it of that right by any law it may ass. On this subject the language of its charter is this: "The Georgia Railroad Company shall at all times have the exclusive right of 2d. There is no charge in this bill that the Commis- transportation or conveyance of persons, merchandise sioners are doing more than prescribing rates as pro-and produce over the railroad and railroads to be by vided by the statutes they are executing. It is not them constructed, while they see fit to exercise the exstated that they have commenced proceedings against clusive right: Provided, that the charge of transportathe plaintiffs, or either of them for a violation of the tion or conveyance shall not exceed fifty cents per hunrates fixed, or that they have intimated that they in-dred pounds on heavy articles, and ten cents per cubic tend to do so. If an injunction can issue in this case, foot on articles of measurement, for every one hundred years. ." Incorporate for no specified period after the thirty-six miles, and five cents per mile for every passenger." At the end of that time it is simply to exist. It order to put a proper construction on this proviso, we must see what was the common law on the subject of is then at the will of the Legislature. Regarding the Pates. It will hardly be disputed that at common law charter as a contract between the State and the corpothe carrier was not allowed to charge what he pleased, ration, the State says on the one side to the corporaAngel on Carriers. tion, "you shall have certain exclusive privileges for but his rates must be reasonable. The State has This is accepted sections 124, 129 and 356; Harris vs. Packwood et al, 3 thirty-six years, and after that time you may remain Taunt., 264; Fitchburg Railroad Company vs. Gaye et and be incorporate." al., 12 Gray, 298; 23 Kent. 6th Ed. Marg., 599; Chic. not said you may remain and be incorporate forever, or for ten years, or for any particular time. If the State T. A. R. R. Co. vs. Peeple, 67 Ill. That this common has not said so, how can the corporation claim such a law entered into and made a part of the charter is too Accom- right? If the corporation is claiming the obligations well settled to need citation of authorities. of its contract, what are those obligations? Simply panied with that principle the foregoing proviso would read, "that the charge of transportation or conveyance that it may be incorporate. That is all. Now, it may *shall be reasonable,' and shall not exceed fifty cents be said that corporations are immortal unless restricted It has perpetual succesper hundred on heavy articles, and ten cents per cubic in their being. But there is no such principle of law foot on articles of measurement, for every one hundred as this, written or unwritten miles, and five cents per mile for every passenger." sion, and in this sense may be immortal. Grant on Cor. 3, Angels Ames on Corporations. If you give the corThe law explicitly says the rates shall be reasonable." It says they shall not exceed "the figures mentioned. poration the benefit of its contract as it made it, it had If the maximum rates mentioned are reasonable, then that to the letter when it remained in existence after they may be charged. But it cannot be contended the end of thirty-six years. How would such a contract that they may be charged if they are not reasonable. be construed between individuals? Suppose one agrees The maximum mentioned is a limit beyond which the with another that he shall remain in and occupy his road cannot charge in any event, but it may charge house after the expiration of a certain rental period? that much if reasonable: if unreasonable, then it could Would this give him a house forever? Under every rule If before the Act of Octo- of law custom or common sense the tenant would be not charge the maximum ber, 14, 1879 a shipper bad desired to make the ques-tenant at will, and liable to be evicted after a reasontion of unreasonable charge, he would have done so by able time if the rules of law fixed no particular period. It was then a judicial question. So innumerable instances might be given of the conresort to the courts. But since the Act 1879 the question is to be determined struction of similar contracts between individuals. But for the sake of argument, we will consider the This is settled by the by the provisions of that Act Granger cases. The question was made that the Legis- charter without reference to the common law. It is lature was assuming judicial functions, and depriving then a charter granting the right to the corporation to corporations of their property without due process of charge rates not to exceed certain amounts mentioned. The power to fix rates law, in violation of the fourteenth amendment. It was This is no greater authority in the corporation than to held, however, that legislative regulation of rates of give it power to fix the rates public carriers was not a violation of said amendment, absolutely is as great, and it seems greater indeed, than and that the Legislature of Illinois had a right to create the power to fix rates limited by a maximum mena commission with power to fix rates. Munn vs. Illi- tioned. In the case of power to fix rates without renois, 94 U. S. R., 113. See also Tilley vs. Georgia Rail- striction, the Supreme Court of Illinois has held twice, road Commission, where Judge Woods cites Peek and that notwithstanding this absolute power, and with no Munn, two of the Granger cases on this subject, and restrictions whatever in the laws or charter, the State had the right to alter the rate fixed and prescribe declares it to be the right of the Legislature to fix reaIt pertains to the demeanor of the corporasonable and just rates. The argument then is that un- others. It is a power inherent in the sovereignty of tion in its dealings with the public. It is like providIt is like the der the plain language of the charter of the complain- the State ant company, read in connection with the common law, its rates must, in any event, be reasonable; that ing for the comfort of the passengers. the courts had the right prior to the Act of 1879 to make duty of providing good crossings at the highways. These things must necessarily be under the control of them reasonable. and that the Legislature under the Constitution of 1877 has succeeded to the power of the the Legislature. Just as individuals exercising the courts, and it is now, not only the province but duty of rights of carriers are subject to the control of the Legthe Legislature to make them reasonable, which it is islature, so are corporations, unless the State has expressly contracted that they shall not be. Indeed, it is doing through the Commission. questionable whether or not the State may contract its sovereignty to that extent. No Legislature has the right to bind its successors in these particulars more than in the passage of any general law. 4th. We contend that when the Act of October 14, 1879, was passed, the Georgia Railroad and Banking Company was subject to the provisions of said Act on another ground apparent in the 15th section of the Act of 1837. The part of said section necessary to quote is as follows: 44. SEC. XV. The exclusive right to make, keep up, and use the railroads and transportations authorized by this Act, shall be for and during the term of thirty-six years, to be computed from the time when the said road from Augusta to either of the points herein before des. ignated, shall be completed for transportation: Provided, that the subscription of stock or shares of said company to the amount of at least five thousand shares, as aforesaid, be filled up within six months from the passing of this Act, and the work from, or between Augusta and either of the places hereinbefore first mentioned, be commenced within two years, and be completed within six years after the five thousand shares shall be subscribed. And after said term of thirty-six years shall have elapsed, though the Legislature may authorize the construction of other rail-, roads, for the trade and intercourse contemplated Nevertheless, the Georgia Railroad Company herein: shall remain and be incorporate, and vested with all the estate, powers and privileges as to their own works herein granted and secured, except the exclusive right to make, keep up, and use railroads over and through such parts of the country, that shall so have expired by the foregoing limitation; but the Legislature may renew and extend that exclusive right, upon such terms as may be prescribed by law, and be accepted by the said incorporated company It is plain that the company is to remain and be in On this subject Judge Cooley says: "It would seem, therefore, to be the prevailing opinion, and one based upon sound reason, that the State could not barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, to the well-being of organized society; and that any and the existence of which in full vigor is important contrets to that end, being without authority, cannot be enforced under the provisions of the national Constitution now under consideration." Cooley's Const. The occasions to consider this subject in its Limitations, 283. Again, at page 574, the same author says: bearings upon the clause of the Constitution of the United States, which forbids the States passing any laws violating the obligations of contracts have been frequent and varied; and it has been held without dissent this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts as to relieve them from the operations of such eneral regulations for the good government of the State and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this power, and not only may regulations which affect them must be subject to change from time to time, as the be established by the State, but all such regulations general well-being of the community may require, or as demonstrate the necessity." Chief Justice Marshall, in the circumstances may change, or as experience may the Dartmouth College case, uses this language. "The |