case, before the same court, the doctrine is stated by Mr. Justice Miller, as follows: "That principle is that where a corporation, like a railroad company has granted to it, by charter, a franchise, intended in large measure to be exercised for the public good, the due performance of those * domain in the condemnation of real estate for right of way, depot grounds, round houses. freight yards, etc. Indeed, this power was thoroughly settled in the leading case of Beekman v. Railroad Co., 3 Paige, 45, and has never been questioned since. The State has always exercised the authority to tax the people to build and maintain highways and the authority is not questioned. It may do so itself, or through individuals or corporations, and,authorize the establishment of toll gates. It may build a road through the State or any part of it. It may authorize a town or county to build a town or county road, and tax its people for its construction and maintenance. This power has been recognized and practiced from very ancient days, and from the first dawn of civilized life. It was common in the times of the Roman Empire, and has come down to us from immemorial days, and through immemorial usage. It has always been exercised in this country from the first settlement of the colonies. The practice and the principle are older than the common law, or the present nations of the world, and bave been transmitted to us from a period now darkened to view by time and distance. Laying aside, then, the question of public policy, of which the State must judge, why should the naked authority be now questioned simply because the necessities of civilization have demanded a more commodious method of travel than the old common highway could afford? The following are some of the leading cases on the subject: Beekman v. Railroad Co., 3 Paige, 45; Brocaw v. Gibson Co., 73 Ind. 543; Allison v. Railway Co., 10 Bush, 1; Town of Bennington v. Park, 50 Vt. 192; Perry v. Keene, 56 N. H. 514; Walker v. City of Cincinnati, 21 Ohio St. 14; Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147; Railroad Co. v. Smith, 62 Ill. 268; Hallenbeck v. Hahn, 2 Neb. 377; Ex parte Selma & G. R. Co., 45 Ala. 696; Davidson v. Commissioners, 18 Minn. 482; Railroad Co. v. McDonald, 53 Miss. 240; People v. Mitchell, 35 N. Y. 551; Gibbons v. Railroad Co., 36 Ala. 410; Thompson v. Lee Co., 3 Wall. 327; Bloodgood v. Railroad Co., 18 Wend. 10; Worcester v. Railroad Corp., 4 Metc. 564; Stewart v. Polk Co., 30 Iowa, 9; Town of Queensbury v. Culver, 19 Wall. 83; Railroad v. County of Otoe, 16 Wall. 667; Louisville v. Bank, 104 U. S. 47; County of Moultrie v. Fairfield, 105 U. S. 370; St. Joseph Tp. v. Rogers, 16 Wall. 664; Rogers v. Burlington, 3 Wall. 664; Mitchell v. Burlington, 4 Wall. 270." Northern Pac. R. Co. v. Roberts, 42 Fed. Rep. 734, 746. "That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the functions being the consideration of the public grant, any contract which disables the corporation from performing those functions which undertakes, without the consent of the State, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the State, and is void as against public policy." In the case of Beekman v. The Saratoga & Schenectady Railroad Company, before the Court of Chancery of the State of New question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies property for a private use. Yet it is a doctrine universally accepted that a State legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it is built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one, is that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from government grant. It would be useless to cite the numerous decisions to this effect which have been made in the State courts. We may, how ever, refer to two or three which exhibit fully not only the doctrine itself, but the reasons upon which it rests. (Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 1; Worcester v. R. R. Co., 4 Metc. 564.) Whether the use of a railroad is a public or a private one depends in no measure upon the question who constructed it or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the functions performed is that of the State. Though the ownership is private the use is public. So turnpikes, bridges, ferries and canals, although made by individuals under public grants, or by companies, are regarded as publici juris. The right to exact tolls or charge freights is granted for a service to the public. The owners may be private companies, but they are compellable to permit the public to use their works in the manner in which such works can be used. (Charles River Bridge Co. v. Warren, 7 Pick. 495.) That all persons may not put their own cars upon the road, and use their own motive power, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use of which the legislature is the exclusive judge.” Olcott v. Supervisors, 16 Wall. 678, 694. 1 Thomas v. Railroad Co., 101 U. S. 71, 83. York, the doctrine is stated by Chancellor Walworth, as follows: "It is objected, however, that a railroad differs from other public improvements, and particularly from turnpikes and canals, because travelers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles; that the company in this case are under no obligation to accommodate the public with transportation; and that they are unlimited in the amount of tolls which they are authorized to take. If the making of a railroad will enable the traveler to go from one place to another without the expense of a carriage and horses, he derives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike road at the same expense, and if a mode of conveyance has been discovered by which the farmer can procure his produce to be transported to market at half the expense which it would cost him to carry it there with his own wagon and horses, there is no reason why the public should not enjoy the benefit of the discovery. And if any individual is so unreasonable as to refuse to have the railroad made through his lands, for a fair compensation, the legislature may lawfully appropriate a portion of his property for this public benefit, or may authorize an individual or a corporation thus to appropriate it, upon paying a just compensation to the owner of the land for the damage sustained. The objection that the corporation is under no legal obligation to transport produce or passengers upon this road, and at a reasonable expense, is unfounded in fact. The privilege of making a road and taking tolls thereon is a franchise as much as the establishment of a ferry or a public wharf and taking tolls for the use of the same. The public have an interest in the use of the railroad, and the owners may be prosecuted for the damages sustained, if they should refuse to transport an individual or his property, without any reasonable excuse, upon being paid the usual rate of fare. The legislature may also, from time to time, regulate the use of the franchise and limit the amount of toll which it shall be lawful to take, in the same manner as they may regulate the amount of tolls to be taken at a ferry, or for grinding at a mill, unless they have deprived themselves of that power by a legislative contract with the owner of the road." The doctrine appertaining to the relations of railway companies to the public, as above expounded, lies at the basis of all legislation and of all sound decisions of the courts, in regard to the attempts of such companies to create a monopoly or to suppress competition between competing or parallel lines. They are public servants, and their special privileges impose upon them the obligation, not only to serve the public, but also to make only fair and reasonable charges for such service. And, for this reason, the attempt to create a monopoly, by entering into a covenant for the suppression of competition, with a view of increasing or to maintaining either freight or passenger rates, is illegal and void. § 149. Combinations for the Purpose of Suppressing Competition. Any combination of railway companies, the object of which is to restrain competition by establishing and maintaining a uniform charge for the transportation of freight, or of passengers, is illegal and void. Where the agreement provides that any member of the pool or association that shall carry either freight or passengers for less than the rate fixed, shall be subject to a fine, such provision will not be enforced by the courts. It is the rule that contracts or agreements of this character are void as in contravention of public policy, and in many of the States such compacts are rendered nugatory by constitutional or statutory enactments. In a late case in Indiana, it was held that a contract, entered into between competing common carriers for the establishment and maintenance of freight rates, forming what is known as a "pool," being a combination for no other purpose than that of stifling competition, and providing means to accomplish that purpose, is illegal. Such a combination being void, any one of the associated 1 Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45, 74. See also Charles River Bridge Co. v. Warren Bridge, 11 Pet. 420; s. C., 7 Pick. 344; 6 Pick. 376. carriers has a right to provide by special contract for a special rate to a shipper, and such contract will be upheld when no element of partiality, oppression or improper favoritism entered into the contract.1 In delivering the opinion in this case, Mr. Justice Elliott said: "It is, however, both appropriate and necessary to adjudge that a combination between common carriers to prevent competition is, at least, prima facie, illegal. The doubt is as to whether any ultimate purpose can save it from the condemnation of the law; there can be no doubt that, unexplained, such a combination for such a purpose is condemned by public policy. If such a combination can, in any event, be admitted to be legal, it can only be so when it is affirmatively shown that its object was to prevent ruinous competition, and that it does not establish unreasonable rates, unjust discrimination or oppressive regulations. If such a contract can stand it must be upon an affirmative showing, and one so full, complete and clear as to remove the presumption (to which its existence, in itself, gives rise), that it was found to do mischief to the public by repressing fair competition. The burden is on the carrier to remove the presumption, and until it is removed the agreement providing for the combination gives way before this presumption, and 1 Cleveland, C., C. & I. Ry. Co. v. Closser, 126 Ind. 348; s. c., 26 N. E. Rep. 159. See also Texas, etc. Ry.. Co. v. Southern Pacific Ry. Co.. 41 La. Ann. 970; Woodstock Iron Co. v. Richmond, etc. Extension Co.. 129 U. S. 693; Central Trust, etc. Co. v. Ohio Central R. R. Co.. 23 Am. & Eng. R. R. Cas. 666; Boston Chamber of Commerce v. Lake Shore, etc. Ry. Co., 32 Am. & Eng. R. R. Cas. 618; Hare v. London, etc. Ry. Co., 2 J. & H. 80; Leslie v. Lorillard, 110 N. Y. 519; Chicago, etc. R. Co. v. Wabash, etc. Co., 61 Fed. Rep. 993; Gulf, etc. R. Co. v. State, 72 Tex. 404; S. C., 10 S. W. Rep. 81; State v. Standard Oil Co., 49 Ohio St. 137; s. c.. 30 N. E. Rep. 279; Central, etc. Co. v. Guthrie, 35 Ohio St. 666; Stanton v. Allen, 5 Denio, 434; Hooker v. Vandewater, 4 Denio, 349; Chicago. etc. Co. v. People's, etc. Co., 121 Ill. 330; s. C., 13 N. E. Rep. 169; West Virginia, etc. Co. v. Ohio River, etc. Co., 22 W. Va. 600; Western Union Tel. Co. v. American, etc. Co., 65 Ga. 160; Sayre v. Louisville Assn., 1 Duv. 143; Burke v. Concord R. Co., 61 N. H. 160; Pittsburgh, etc. R. Co. v. Keokuk, etc. Co., 131 U. S. 371: Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461; s. C., 40 Am. & Eng. R. Cas. 449; 43 N. W. Rep. 469. |