Tort to recover a penalty as provided in section 2 of chapter 338 of the acts of 1885. Trial in the superior court, before BARKER, J., where judgment was entered for the plaintiff, and the case reported to the supreme judicial court. The facts are stated in the opinion.

Justin Dewey, for defendant.

The defendant maintains that said statute, (chapter 338, Acts 1885,) and the said order of the railroad commissioners made by virtue thereof, are, so far as they relate to the matter of this suit, without legal force: (1) Because, upon general principles of law, they are in excess of the jurisdiction of the legislative authority of the state; (2) because, as applied to the facts of this case, they are an attempt to "regulate commerce among the several states, the exclusive power over which is, by section 8 of article 1 of the constitution of the United States, in congress; and (3) because, upon the facts agreed, they are in violation of section 7 of the charter of the Stockbridge & Pittsfield Railroad Company, and so are in conflict with that portion of section 10 of article 1 of the federal constitution which prohibits a state from passing any law impairing the obligation of contracts. See Story, Confl. Laws, (8th Ed.) 609; Com. v. Milton, 12 B. Mon. 212; S. C. 54 Amer. Dec. 532; Buckner v. Finley, 2 Pet. 586; Doyle v. Continental Ins. Co., 94 U. S. 541; Const. Mass. pt. 1, art. 4; Com. v. Clapp, 5 Gray, 98; St. Louis v. Ferry Co., 11 Wall. 423; Munn v. Illinois, 94 U. S. 132.

The defendant, being a corporation created by a law of the state of Connecticut, has no existence or powers beyond the jurisdiction of that state, except by the comity of other states. Folger v. Columbian Ins. Co., 99 Mass. 272; St. Louis v. Ferry Co., ubi supra; Runyan v. Coster's Lessees, 14 Pet. 122. As to the railroads and property situated in this state, which it is allowed to possess and use, it subjects itself to our rightful control; but it does no more. See Com. v. Standard Oil Co., 101 Pa. St. 147; Bank of Augusta v. Earle, 13 Pet. 588; Railroad Co. v. Koontz, 104 U. S. 12; Relfe v. Rundle, 103 U.S. 226; Canada Southern R. R. v. Gebhard, 109 U.S. 527; S. C. 3 Sup. Ct. Rep. 363.

Said statute and order of the commissioners are inconsistent with the provisions of section 8, art. 1, of the constitution of the United States, whereby exclusive regulation and control of foreign commerce, and of commerce among the states, is submitted to congress. See 6 Webster's Works, 10; Story, Const. Law, (4th Ed.) § 1057; 5 Elliott's Debates, 548; 2 Webster's Works, 205, 206; Railroad Co. v. Maryland, 21 Wall. 256.

The defendant contends that the law, as declared and decided by the supreme court of the United States, touching the right of a state to regulate or interfere with interstate commerce, may be stated with substantial correctness as follows: A state may regulate a business which affects the public at large, but which is carried on exclusively within the limits of the state, although these instruments may be employed by those engaged in interstate commerce. Until congress acts on the subject, a state may control such domestic business, and the property used in connection with it, within the state, although in doing so it may indirectly operate on a commerce outside of its jurisdiction and territory. In the absence of any legislation by congress, a state may, unless what is done amounts to regulation of interstate commerce, control the business carried on within the state, of a railroad situated within the state, whether operated by a domestic corporation, or leased to, and operated by, a foreign corporation, and may fix the rate or price to be charged for the transportation by it of merchandise within the limits of the state, including merchandise shipped from a point without the state to a point within it, or from a point within the state to a point without; but the authority of a state to do this is arrested at the boundary of its territory. Transportation of merchandise from state to state is commerce among the states; and an attempt, as in the case at bar, to fix the charge for such trans

portation for the whole distance from a point without the state to a point within it, or the reverse, especially on a main line of interstate transportation, is an attempt to regulate such commerce among the states. It is an attempt to establish a rule for the conduct of the business, which is the strict meaning of the word "regulate," (Railroad Co. v. Husen, 95 U. S. 472;) a rule that has a direct and vital bearing on the success of the business. It is the imposition of a burden which, if within the constitutional authority of the state, may be made too heavy to be borne; and if one state may thus extend its controlling power over a line of transportation stretching beyond its limits, so may another, and thus that embarrassing condition of conflicting and recriminatory legislation exist which it was the object of the constitution of the United States to prevent. Cooley v. Board of Wardens, 12 How. 299; Case of State Freight Tax, 15 Wall. 232; State Tax on Ry. Gross Receipts, 15 Wall. 284; Railroad Co. v. Maryland, 21 Wall. 456; Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor, etc., 92 U. S. 259; Sherlock v. Alling, 93 U. S. 99; Munn v. Illinois, 94 U. S. 113; Chicago, etc., Ry. v. Iowa, Id. 155; Peik v. Chicago, etc., Ry., Id. 164; Chicago, etc., Ry. v. Ackley, Id. 179; Stone v. Wisconsin, Id. 181; Railroad Co. v. Husen, 95 U. S. 465; Hall v. De Cuir, 95 U. S. 485; Company of Mobile v. Kimball, 102 U. S. 691; Transportation Co. v. Parkersburg, 107 U. S. 691; S. C. 2 Sup. Ct. Rep. 732; Ruggles v. Illinois, 108 U. S. 526; S. C. 2 Sup. Ct. Rep. 832; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; S. C. 5 Sup. Ct. Rep. 826; Brown v. Houston, 114 U. S. 622; S. C. 5 Sup. Ct. Rep. 1091; Stone v. Farmers' L. & T. Co., 116 U. S. 307; S. C. 6 Sup. Ct. Rep. 334, 388, 1191; Stone v. Illinois Cent. R. R., 116 U. S. 347; S. C. 6 Sup. Ct. Rep. 348, 388, 1191.

The provisions of the federal constitution refer to commerce conducted by corporations as much as that of natural persons. Paul v. Virginia, 8 Wall. 182, 183; Pensacola, etc., v. Western Union, etc., 96 U.S. 1. The state may determine on what conditions foreign corporations may do business here. Paul v. Virginia, ubi supra; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566. But this doctrine does not authorize the state to fix any such conditions as amount to an interference with the right of a foreign corporation, engaged in interstate commerce, to make contracts here relating to that business. 2 Mor. Priv. Corp. § 974; Paul v. Virginia, ubi supra; Pensacola, etc., v. Western Union, etc., ubi supra; Cooper Manufg Co. v. Ferguson, 113 U. S. 727; S. C. 5 Sup. Ct. Rep. 739. See, also, Kaeiser v. Illinois Cent. R. R., 18 Fed. Rep. 151; S. C. 16 Amer. & Eng. R. Cas. 40; Louisville & N. R. Co. v. Railroad Com. of Tenn., 16 Amer. & Eng. R. Cas. 1; Pacific Coast S. S. Co. v. Board Ry. Com'rs, 18 Fed. Rep. 10; Fargo v. Redfield, 22 Blatchf. 527; S. C. 22 Fed. Rep. 373; Ex parte Koehler, October 8, 1885, (U. S. district court Or.,) 21 Amer. & Eng. R. Cas. 58; S. C. 25 Fed. Rep. 73; Carton v. Illinois Cent. R. Co., 59 Iowa, 148; S. C. 13 N. W. Rep. 67; Hardy v. Atchison, T. & S. F. Ry. Co., 32 Kan. 698; S. C. 5 Pac. Rep. 6; Carpenter v. Grand Trunk Ry., 72 Me. 388; Merrill v. Boston & L. R. R. Co., 21 Amer. & Eng. R. Cas. 48. See, also, Higgins v. Lime, 130 Mass. 1; Wood, Rys. § 203; 2 Mor: Priv. Corp. (2d Ed.) § 1075d.

It can no longer be disputed that a charter granted by the state, and accepted and acted on by the incorporators, constitutes a contract. The obligations of the contract consist in its binding force on the party who makes it; and this depends on the terms of the contract, and the laws in existence when it is made. McCracken v. Hayward, 2 How. 608; Tomlinson v. Jessup, 15 Wall. 454; Walker v. Whitehead, 16 Wall. 314.

Defendant maintains that the statute, (chapter 338, Acts 1885,) and the order passed by the railroad commissioners under it, are unconstitutional and invalid, because they are prejudicial to the rights conferred on the Stockbridge & Pittsfield Railroad Company, and are inconsistent with and impair the obligations and restrictions which the state imposed upon itself by the seventh

section of the charter of said company. See Metc. Cont., Rules Const. 4, 5, pp. 285-287; Shep. Touch. 86, 87; Broom, Leg. Max. c. 8; Bish. Writ. Law, §§ 70, 72; Beals v. Hale, 4 How. 37; Home of Friendless v. Rouse, 8 Wall. 430– 437; Boston & L. R. Co. v. Salem & L. R. Co., 2 Gray, 1, 29. The state may, at pleasure, put this corporation to death; but, while it permits it to live, it must respect the right as to fares and profits which it has conferred on the company, for a sufficient consideration, by a solemn and specific contract. Townsend v. Little, 109 U. S. 504; S. C. 3 Sup. Ct. Rep. 357; State v. Stoll, 17 Wall. 425; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 696-698; S. C. 6 Sup. Ct. Rep. 265; Nichols v. Bertram, 3 Pick. 342; Pease v. Whitney, 5 Mass. 380; New Jersey v. Yard, 95 U. S. 104; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; S. C. 6 Sup. Ct. Rep. 252; Wilmington R. R. v. Reid, 13 Wall. 264; Bank v. Skelly, 1 Black, 436; Bish. Writ. Law, §§ 112a, 1126, 64.

The state having already conferred on the Stockbridge & Pittsfield Railroad Company certain rights as to fares and profits by the charter, cannot, by a general declaratory statute, not intended as a repeal of the charter, resume those rights, nor can it authorize the railroad commissioners to disregard them by an authority given without qualification. Raleigh & G. R. Co. v. Reid, 13 Wall. 269; Ruggles v. Illinois, 108 U. S. 526; S. C. 2 Sup. Ct. Rep. 832, (see, especially, the concurring opinion of Mr. Justice HARLAN;) Miller v. New York & E. R. Co., 21 Barb. 513; Farrington v. Tennessee, 95 U. S. 679; Boston & L. R. Corp. v. Salem, etc., Co., 2 Gray, 1; Com. v. Proprietors New Bedford Bridge, 2 Gray, 339; Shields v. Ohio, 95 U. S. 319. George F. Hoar, for the Commonwealth.

Many of the questions which may be raised upon this record have been determined by the final authority of the supreme court of the United States. It will be unnecessary to argue them. We treat the following propositions as settled: The legal regulation of public employments, such as those of ferries, carriers, hackmen, innkeepers, bakers, wharfingers, millers, including the regulation of their charges, is an accustomed function of government. It does not come within any of the constitutional prohibitions against interfering with private property. Munn v. Illinois, 94 U. S. 114. Statutes regulating the use, or the price of use, of private property employed in such vocations, do not necessarily deprive the owner of his property without due process of law. Munn v. Illinois, ubi supra. Common carriers exercise a sort of public office, and have duties to perform in which the public are interested. Munn v. Illinois, 94 U. S. 130; Com. v. Temple, 14 Gray, 69; Com. v. Eastern R. R., 103 Mass. 254; Parker v. Metropolitan R. R., 109 Mass. 506; Messenger v. Pennsylvania R. R., 36 N. J. Law, 407; McDuffee v. Railroad Co., 52 N. H. 430; New Jersey S. N. Co. v. Merchants' Bank, 6 How. 344, 382; Shelden v. Robinson, 7 N. H. 157, 163, 164; Gray v. Jackson, 51 N. H. 9, 10; Ansell v. Waterhouse, 2 Chit. 1, 4; Hollister v. Nowlen, 19 Wend. 234239.

Whenever any person sustains such a relation to the public that the public must of necessity deal with him, and are under a moral duress to submit to his terms, if unrestrained, then, in order to prevent an abuse of his position, the price he may charge for services may be regulated by law. Allnutt v. Inglis, 12 East, 527; Com. v. Duane, 98 Mass. 1; State v. Perry, 5 Jones, (N. C.) 252; State v. Nixon, Id. 258; Murray v. Hoboken, etc., Co., 18 How. 272; Kirkman v. Shawcross, 6 Term R. 17; Ogden v. Saunders, 12 Wheat. 259. Railroad companies are carriers for hire, and subject to legislative control as to their rates of fare and freight. Chicago, B. & Q. R. R. v. Iowa, 94 U.S. 155. It matters not that the business has been established, and the means of carrying it on provided, before the passage of the statute regulating it. It is, from the beginning, subject to the power of the body politic to regulate it for the common good. Munn v. Illinois, 94 U. S. 133.

What is reasonable compensation for the use of property devoted to such public purpose may be determined by the courts, if there be no statutory regulation; but it is a matter subject to legislative control. Munn v. Illinois, 94 U. S. 134, 135. Section 9, art. 1, of the constitution of the United States, so far as it prohibits preference to the ports of one state over those of another, operates only as a limitation of the powers of congress, and in no respect affects the states in the regulation of their domestic affairs. Munn v. Illinois, 94 U. S. 135. Such legislative provision, although it affect the business conducted in a single city only, is not a "denial to any person of the equal protection of the laws," within the meaning of the fourteenth amendment. Munn v. Illinois, 94 U. S. 134.

The supreme court of the United States has also decided that the power of the legislature of a state to fix maximum rates for railroads that are public carriers within the state includes the power to fix such rates for fare and freight for the transportation of persons and property taken up outside the state and brought within it, or taken up inside and carried without. Peik v. Chicago & N.W. Ry. Co., 94 U. S. 164; Chicago, B. & Q. Ry. Co. v. Iowa, 94 U.S. 155. It was not the purpose of the court, as we conceive, to intimate that this decision was to be reopened by the language in Stone v. Farmers' Loan & Trust Co., 116 U. S. 307-335; S. C. 6 Sup. Ct. Rep. 334, 388, 1191. See opinion of MCCRARY, J., in Kaeiser v. Illinois Cent. R. R., 5 McCrary, 496; S. C. 18 Fed. Rep. 151; Carton v. Illinois Cent. R. R., 59 Iowa, 148; S. C. 13 N. W. Rep. 67.

Hall v. De Cuir, 95 U. S. 485, is put upon the ground that the regulation in question must necessarily affect the carrier throughout his entire voyage. Conflicting provisions, made by 10 different states, would produce endless confusion. The same judge delivered the opinion in that case as in the Peik Case, and makes no suggestion of any conflict between them. In any event, it seems to us clearly sound upon principle. The carriage within the state, over its highways or railroads, by public carriers, is a matter of domestic concern, and subject to state authority, although the freight may be brought from outside, and the state may regulate it, if it make no discrimination against foreign freight. So much of the transportation as is within the state is distinguishable and separable from that which is without. The mingling the two by including them in one contract is the voluntary act of the carrier. He cannot thereby deprive the state of its lawful authority over its own concerns, especially in the absence of any action on the subject by congress.

The state has the power to limit the rate of freight from Lee to the state line, although the owner meant to send it thence to Bridgeport, or from the state line to Lee, although it be on its way from Bridgeport. It is not in the power of the carrier to avoid this authority by uniting in one contract the transportation within and without the state. He might as well attempt to evade the state laws regulating sale of merchandise by selling in one lot imported merchandise which the state cannot regulate, and merchandise of domestic production, and so exempt the whole from the operation of state laws. Commerce is the exchange of commodities. Foreign commerce is the exchange of commodities with foreign states. Commerce among states is the exchange of commodities among the states. Railroads, turnpikes, ferries, highways, are but the instruments of commerce. The price paid for their use is the price paid by commerce for an indispensable instrument. Railroad corporations are quasi public officers, created by the state that they may provide for the public a necessary means or instrument of commerce. The state may lawfully interpose to prevent the persons who control such instrument, so far as they are within its jurisdiction, from imposing undue burdens upon commerce, when it can do it without obstructing or interfering with commerce, and without interfering with any legislation which congress has enacted for the purpose of regulating interstate or international commerce.

If the foregoing proposition be sound, it will not be necessary to maintain that the power to regulate commerce among the states is a concurrent power, but only that the states may prevent the instruments of commerce within their jurisdiction from unduly burdening it, so long as they do not interfere with any action actually taken by congress within its constitutional sphere. See opinion of WAITE, C. J., in Hall v. De Cuir, 95 U. S. 485–488.

The statute under consideration was not enacted for the purpose of restraining or regulating commerce among the states. It imposes no hinderance or burden upon commerce and seeks no revenue from it. See Nathan v. Louisiana, 8 How. 73; Railroad Co. v. Fuller, 17 Wall. 560; Wabash, etc., Ry. Co. v. People, 105 Ill. 236–251.

The statute in question is not in conflict with any law of the United States. Congress has not dealt with the matter at all. To deny the authority of the state to pass this law is to deny its authority to pass any law to secure expeditious and cheap transportation, if such transportation include commodities which are the subject of interstate as well as domestic commerce. There is no common law of the United States. In the absence of national legislation, may not a state punish embezzlement by the carrier of property on its way to another state? If so, it may surely provide a means of preventing extortion. The various provisions of Pub. St. c. 112, §§ 180-191, apply alike to passengers and freight taken up or deposited within or without the state. constitutionality of sections 187-191 is involved in the decision in the present case. See Pierce, Rys. 463-465, for examples of state regulation of railroads. State v. Southern Pac. R. R., 24 Tex. 80; Frankford R. R. v. Philadelphia, 58 Pa. St. 119; Toledo R. R. v. Deacon, 63 Ill. 91; Chicago R. R. v. Reidy, 66 Ill. 43; Same v. Haggerty, 67 III. 113; Whitson v. Franklin, 34 Ind. 392; Haas v. Chicago R. K., 41 Wis. 44; Horn v. Chicago R. R., 38 Wis. 463; Railroad Co. v. Fuller, 17 Wall. 560-568. See opinion of GRIER, J., in Passaic Bridge Cases, 3 Wall. 782.

The

The power of regulation of charges for pilotage, wharfage, and the like, stands upon the same ground, and is conceded to be in the states. Wilson v. McNamee, 102 U. S. 572; Packet Co. v. Keokuk, 95 U. S. 88; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, Id. 430.

The states are permitted to erect bridges across navigable rivers, and regulate their use, provided they do not conflict with congressional action, and do not necessarily impede navigation. Willson v. Blackbird Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678; S. C. 2 Sup. Ct. Rep. 185; Middlesex R. R. v. Wakefield, 103 Mass. 261; Com. v. Essex Co., 13 Gray, 239.

The distinction between obstructing or embarrassing foreign or interstate commerce by imposing taxes or burdens upon it, or by discriminating against it, and preventing such burdens being imposed by those who monopolize any of its instruments, is clearly maintained through all the decisions.

Gibbons v. Ogden, 9 Wheat. 1, held that a state could not grant a monopoly in its navigable waters. The Passenger Cases decide that states cannot levy a tax upon persons coming within their jurisdiction from foreign countries. Passenger Cases, 7 How. 283; Henderson v. New York, 92 U. S. 259; Chy Lung v. Freeman, Id. 275; State Freight Tax, 15 Wall. 232; Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275; Crandall v. Nevada, 6 Wall. 35. See, also, Walling v. Michigan, 116 U. S. 446; S. C. 6 Sup. Ct. Rep. 454; Coe v. Errol, 116 U. S. 517; S. C. 6 Sup. Ct. Rep. 475; Pickard v. Pullman Southern Car Co., 117 U. S. 34; S. C. 6 Sup. Ct. Rep. 635; Tennessee v. Same, 117 U. S. 51; S. C. 6 Sup. Ct. Rep. 643. The Liquor Cases hold that a state cannot prohibit the sale of a commodity introduced from abroad while it retains its distinctive character, and before it has become mingled with the general mass of property of the state. Boston Beer Co. v. Massachusetts, 97 U.S. 25; Brown v. Maryland, 12 Wheat. 419. Hall v. De Cuir, 95 U. S. 485,