held unconstitutional a law regulating the accommodation of passengers in transit through the state by steam-boat.

A state law limiting the rates of domestic transportation would operate as a discrimination against foreign commodities, unless it extended to them also. Into every commercial contract between two states or countries, the lex loci contractus, or the law of the place of performance, enters, giving the contract its construction, and imposing upon it unexpressed terms and conditions. The state or country may alter these laws at its pleasure, provided it do not discriminate, and impose upon extrastate commerce a burden or restriction. The following cases affirm the right of state regulation of the charges of railroads for transportation of freight brought in from outside: Munn v. Illinois, 94 U. S. 113; Chicago R. R. v. Iowa, Id. 155; Peik v. Chicago R. R., Id. 164; Chicago R. R. v. Ackley, Id. 179; Winona Co. v. Blake, Id. 180; Southern Minnesota R. R. v. Coleman, Id. 181; Stone v. Wisconsin, Id. 181; Shields v. Ohio, 95 U. S. 319; Ruggles v. Illinois, 108 U. S. 526; S. C. 2 Sup. Ct. Rep. 832; Illinois R. R. v. Illinois, 108 U. S. 541; S. C. 2 Sup. Ct. Rep. 839; Stone v. Farmers' Loan & Trust 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; Stone v. New Orleans & N. E. R. R., 116 U. S. 352; S. C. 6 Sup. Ct. Rep. 349, 391; People v. Wabash Ry. Co., 104 Ill. 476; Wabash Ry. Co. v. People, 105 Ill. 236.

The characteristics of a railroad corporation in this commonwealth are well stated by GRAY, J., in Central Bank v. Worcester Horse R. R., 13 Allen, 105, 106.

But, whatever may be the power of the commonwealth to regulate this subject, we claim that she has ample power to prescribe rules to this carrier. She may prescribe the conditions and rules under which foreign corporations may be admitted to transact business within her limits. She may deal with them by general laws, or by-laws specially affecting individual carriers. She may delegate the power of fixing rates to special tribunals. She has expressly reserved the power to regulate rates over the line of road in question. The defendant has acquired no right to avail itself of any contract in the charter of the Stockbridge & Pittsfield Railroad, limiting this reserved power. The transactions under consideration are no part of the business contemplated by that contract. Corporations are not citizens within the meaning of the clause of the constitution of the United States which declares that "citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Paul v. Virginia, 8 Wall. 168; Bank of Augusta v. Earle, 13 Pet. 519; Covington Draw-bridge Co. v. Shepherd, 20 How. 227; Lafayette Ins. Co. v. French, 18 How. 404; Ohio & M. R. R. v. Wheeler, 1 Black, 295; Hope Ins. Co. v. Boardman, 5 Cranch, 57. See opinion of Mr. Justice FIELD in Paul v.Virginia, ubi supra. See, also, Ducat v. Chicago, 10 Wall. 415; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 576; Washington Co. Ins. Co. v. Chamberlain, 16 Gray, 165.

A Massachusetts corporation making a contract in a foreign state acts only by virtue of the powers conferred on it here; and the obligation of its stockholders, under such contract, is determined by the law of Massachusetts. Hutchins v. New England Coal Min. Co., 4 Allen, 580; Baltimore & O. R. R. v. Glenn, 28 Md. 287; Marietta v. Pindall, 2 Rand. 465; Slaughter v. Com., 18 Grat. 767; New Hope Bridge v. Poughkeepsie Silk Co., 25 Wend. 648; Stout v. Sioux City, 8 Fed. Rep. 794-799. A railroad forming part of a line extending through two states, the portion of which lying in one state is leased by the corporation owning the road in the other where such corporation is incorporated, is subject to the control of the legislature of the former state as to its rates of fare and freight. Chicago R. R. v. Iowa, 94 U. S. 155.

Pensacola Tel. Co. v. West, 96 U. S. 1, decides that the act of congress of July 24, 1866, (Rev. St. U. S. § 5263 et seq.,) “An act to aid in the construc

tion of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes," so far as it declares that the erection of telegraph lines to all who accept its terms shall be free, is a legitimate regulation of commercial intercourse among the states, and is appropriate legislation to execute the powers of congress over the postal service, and that a state cannot exclude a foreign corporation which has complied with said terms. The question there was of the rights derived by the corporation from the act of congress, not of those derived from the state of its origin. See, also, Stone v. Farmers' Loan & Trust Co., 116 U. S., from bottom of page 333 to top of page 335; S. C. 6 Sup. Ct. Rep. 346, 347.

This corporation is here. It is as much subject to our laws as a Connecticut citizen domiciled there, but doing business here. It is entitled to no more privileges than if created here. The state may deal with such carriers by general laws, as the provisions of Pub. St. cited above, or by special laws affecting particular lines. Under a state constitution which provides that "all laws of a general nature shall have a uniform operation," a statute fixing the rates upon railroads by classes is constitutional. Chicago R. R. v. Iowa, 94 U. S. 155.

The state may delegate her power of prescribing such rates to a commission of experts. This has been repeatedly held by the courts in like cases. The practice to commit such powers of government to special tribunals is too well established to be questioned. Com. v. Temple, 14 Gray, 69; Com. v. Eastern R. R., 103 Mass. 254; Fitchburg R. R. v. Grand Junction, 4 Allen, 203; S. C. 1 Allen, 552; Com. v. Essex Co., 13 Gray, 250; Worcester v. Norwich & W. R. R., 109 Mass. 103. Water companies may be required to sell water at rates fixed by municipal authorities. Spring Valley Water-works v. Schottler, 110 U. S. 347; S. C. 4 Sup. Ct. Rep. 48; Railroad Com'rs v. Portland R. R., 63 Me. 269.

That the charter of a corporation constitutes a contract which is protected by the constitution of the United States against being impaired in its obligation by state legislation is unquestionable. Some recent opinions of eminent judges intimate a doubt of the power of a legislative body to divest itself by contract of its control over the rates of common carriers, which is a general power of legislation essential to the public welfare. It may reasonably be insisted that the reservation of the right to alter, amend, or repeal the charter of a railroad, which contains a stipulation that the legislature will not interfere to fix rates until the earnings of the road amount to a certain sum, authorizes the prohibition of further transaction of business except at rates fixed by the legislature. The power to compel the corporation to go on with its business, at the reduced rates, may not exist until the stipulated amount be earned. The state cannot barter away its essential powers. Cooley, Const. Lim. 346; Com. v. Holyoke Co., 104 Mass. 446, and cases cited; Parker v. Metropolitan R. R., 109 Mass. 506; Massachusetts Gen. Hosp. v. State Life Ins. Co., 4 Gray, 227; Com. v. Eastern R. R., ubi supra; Fitchburg R. Co. v. Grand Junction R. & D. Co., 4 Allen, 203; S. C. 1 Allen, 552; Parker v. People, 111 Ill. 584. The state cannot alien its power to build public ways. Can it alien its power to secure their use by the public at reasonable rates? See Greenleaf's note to 2 Cruise, Dig. 67.

The lease from the Stockbridge & Pittsfield Railroad to defendant was without authority, and void. "A corporation created for the very purpose of constructing, owning, or managing a railroad for the accommodation and benefit of the public cannot, without distinct legislative authority, make any alienation, either absolute or conditional, either of the general franchise to be a corporation, or of the subordinate franchise to manage and carry on its corporate business, without which its franchise to be a corporation can have little more than a nominal existence." Richardson v. Sibley, 11 Allen, 65; Shrewsbury & B. Ry. Co. v. London & N. W. Ry., 6 H. L. Cas. 136; York & M. L. R. Co. v. Winans, 17 How. 39; Pierce v. Emery, 32 N. H. 504-508; Hall v.

Sullivan R. R., 21 Law Rep. 138; Worcester v. Western R. R., 4 Metc. 566; Com. v. Smith, 10 Allen, 455; St. 1867, c. 298.

The consent, by the legislature, in St. 1873, c. 168, that defendant might receive, as lessee, the damage sustained by it in consequence of a grade crossing, does not amount to a ratification of this illegal contract. Thornton v. Marginal Frt. Ry. Co., 123 Mass. 32; Worcester v. Norwich & W. R. R., 109 Mass. 103. It therefore conveyed no exemption from legislative control, under the provisions of the charter of the former company. The objection of the want of authority to make this lease may be taken by the commonwealth in any suit in which it is a party properly authorized by the legislature, without resorting to quo warranto.

But, independently of the incapacity to make this lease, the right to avail itself of the stipulation restraining the legislature from reducing rates, is an especial privilege of the Stockbridge & Pittsfield road, and cannot be transferred to a foreign corporation. The personal management of the business by the road with whom the contract is made, the subjection to the general law of Massachusetts as to the organization, control, and financial regulation of the corporation, the obligation to make returns, and the liability to repeal or alteration of the charter, are essential to this stipulation. The returns made by the defendant in behalf of the Stockbridge road do not answer the same purpose; nor does a contract that a foreign corporation shall be subject to our authority take the place of actual subjection. The Stockbridge road cannot exempt itself from the liability to the control of the legislature, in this particular, by putting it out of its power to earn 10 per cent. by a contract that it shall receive but 7.

But the decisive answer to defendant's claim to avail itself of the provisions of the charter of its lessor is that the business it is carrying on is not the business to which that provision applies. The contract on which it relies is an engagement by the legislature not to interfere, under its general power, with the profits of the business of a road extending from Pittsfield to Van Deusen ville, in Great Barrington, a distance of about 20 miles, so as to reduce such profits below 10 per cent. The Stockbridge Railroad has made an arrangement by which the product of its road to it is wholly unaffected by this legislation. It is utterly impossible to tell whether this reduction would or would not reduce the income of the Stockbridge road below 10 per cent. These orders do not relate to the rates over the Stockbridge road, but to a business between Bridgeport and Lee. These exemptions were never intended to apply to a road which should be merged in a line. The original charter of the Western Railroad (St. 1833, c. 116) contains a similar provision, (section 4.) That corporation cannot avoid this obligation by including in its line a few miles beyond the boundary of the state.

The constitution of the United States can only be preserved by the preservation of the just rights and authority of the state, as well as of the general government. The courts will not permit public carriers to escape the lawful control of the states where they are found transacting their business, by mingling the subjects of state with those of national jurisdiction.

MORTON, C. J. St. 1885, c. 338, provides, in the second section, that the board of railroad commissioners "may fix a maximum charge and rate for any freight received in Missachusetts by said Housatonic Railroad Company for transportation to and delivery at any other point or place, and for any freight received by said company at any point or place for transportation to and delivery at any place in Massachusetts; and such orders shall be binding upon said company, and said Housatonic Railroad Company shall not receive or demand any greater sum för such transportation and delivery than the amount so fixed as a maximum." As the first section provides for fixing rates between any points in Massachusetts, we think it clear that the purpose of the

second section was to provide for fixing rates between points outside the state and points within the state. Otherwise it is useless. The fourth section provides a penalty for any violation of the statute, to be recovered in an action of tort.

Acting under the authority of the statute, the railroad commissioners, on July 25, 1885, passed an order fixing the maximum rates which the Housatonic Railroad Company might charge for the transportation of certain kinds of freight between various points or places in the state of Massachusetts and other points or places in the state of Connecticut. This action is brought to recover the penalties provided by the statutes for several violations of this order by the defendant corporation, each count alleging that the defendant unlawfully charged and received more than the maximum rate fixed by the order for the transportation of the freight therein named, between Lee, in the state of Massachusetts, and Bridgeport, in the state of Connecticut.

The defendant contends that the second section of the statute of this state, which we have quoted above, is invalid, because it violates the eighth section of the first article of the constitution of the United States, which provides that congress shall have the exclusive power to regulate "commerce among the several states." This question is conclusively settled by a recent decision of the supreme court of the United States, promulgated since the case at bar was argued. A statute of the state of Illinois, enacts that if any railroad company shall charge or receive for the transportation of passengers or freight of the same class, for any distance within the state, the same or a greater sum than is at the same time charged for the transportation, in the same direction, of any passenger or like quantity of freight, of the same class, over a greater distance of the same railroad, it shall be liable to a penalty. A suit was brought in Illinois to recover the penalty for violating this provision; the declaration alleging that the defendant charged certain parties 15 cents per hundred pounds for carrying a load of freight from Peoria, in the state of Illinois, to New York, 109 miles of the distance being in Illinois, while at the same time it charged certain other parties 25 cents per hundred pounds for carrying a like load of the same class of freight from Gilman, in the state of Illinois, to New York, 23 miles of the distance being in Illinois; both places being on the line of the road. The supreme court held that the provision of the constitution giving congress the power to regulate "commerce among the several states," is exclusive; that no state has the power to pass laws regulating interstate commerce, although congress has not acted upon the subject, and that the law of Illinois, so far as it applies to the transportation of freight from places is the interior of Illinois to places in another state under one contract, is unconstitutional and invalid; such transportation "being commerce among the several states." Wabash, St. L. & P. Ry. Co. v. State, 7 Sup. Ct. Rep. 4.

The principle of this case governs the case at bar. The statute of Massachusetts undertakes to fix the rates which the defendant shall charge for transportation of freight, not only within this state, but also within the state of Connecticut. It is a more clear and direct regulation of interstate transportation or commerce than is the law of Illinois against unjust discrimination. We are therefore of opinion that the second section of the statute we are considering, and the order of the railroad commissioners under it, are invalid and of no force. It necessarily follows that the plaintiff cannot maintain this action.

Judgment for defendant.

NOTE.

CONSTITUTIONAL LAW-REGULATING CHARGES OF RAILROADS. State legislation which attempts to regulate the charges of railroad companies between points within a state and points without it is unconstitutional. Wabash St. L. & P. Ry. Co. v. Illinois, 7.Sup. Ct. Rep. 4; Stone v. New Orleans & N. E. Co., 6 Sup. Ct. Rep. 349; Stone v.. Illinois Cent. R. Co., Id. 348; S. C. 20 Fed. Rep. 468; Stone v. Farmers' Loan and

1

Trust Co., 6 Sup. Ct. Rep. 334; S. C. 20 Fed. Rep. 270; Mobile & O. R. Co. v. Sessions, 28 Fed. Rep. 592; In re Koehler, 25 Fed. Rep. 73; Louisville & N. R. Co. v. Railroad Com'rs, 19 Fed. Rep. 679; Kaeiser v. Illinois Cent. R. Co., 18 Fed. Rep. 151; State v. Chicago & N. W. Ry. Co., (Iowa,) 30 N. W. Rep. 398; Carton v. Illinois Cent. R. Co., (Iowa,) 13 N. W. Rep. 67; Hardy v. Atchison, T. & S. F. R. Co., (Kan.) 5 Pac. Rep. 6; as is any state legislation which would amount to an attempt to regulate or hamper foreign or interstate commerce, Pickard v. Pullman Southern Car Co., 6 Sup. Ct. Rep. 635; S. C. 22 Fed. Rep. 276; Walling v. State of Michigan, 6 Sup. Ct. Rep. 454, and note; Brown v. Houston, 5 Sup. Ct. Rep. 1091; Gloucester Ferry Co. v. Pennsylvania, Id. 826; Edye v. Robertson, Id. 247; Wiggins Ferry Co. v. City of East St. Louis, 2 Sup. Ct. Rep. 257; People v. Compagnie G. T., Id. 87; S. C. 10 Fed. Rep. 357; Ex parte Hanson, 28 Fed. Rep. 127, and note; Weil v. Calhoun, 25 Fed. Rep. 865; Pacific S. S. Co. v. Railroad Com'rs, 18 Fed. Rep. 10; People v. Pacific Mail S. S. Co., 16 Fed. Rep. 344; State of Indiana v. Pullman Palace Car Co., Id. 193, and note; County of San Mateo v. Southern Pac. Ry. Co., 13 Fed. Rep. 722; Brown v. Memphis & C. R. Co., 5 Fed. Rep. 499; Ex parte Thomas, (Cal.) 12 Pac. Rep. 53, and note; Fecheimer v. City of Louisville, (Ky.) 2 S. W. Rep. 65.

(143 Mass. 274)

WESTON v. WESTON.

(Supreme Judicial Court of Massachusetts. Essex. January 6, 1887.) HUSBAND AND WIFE-DIVORCE-COHABITATION IN THIS COMMONWEALTH.

A libel for divorce on the ground of adultery cannot be maintained where the parties have never lived together in this commonwealth as husband and wife; and the injured party must reside in this state for the statutory time before a libel can be maintained.

This was a libel for divorce. Hearing in the supreme court before C. ALLEN, J., who found the following facts: Both parties lived in Massachusetts before their marriage to each other. They went to Portsmouth, New Hampshire, to be married, and were married there in May, 1884, he being 21 and she 17 years old. He obtained employment there immediately afterwards, and they remained there, and he intended to live there and to stay there, and they lived together there for about five and one-half months, when she left. him, and returned to Massachusetts, and he also returned to Massachusetts a few days later; but after the marriage they never had anything to do with each other, and no communication whatever with each other in the last-named state, but lived apart. She afterwards took up her residence in Lynn, and in the summer of 1885, committed adultery there. Upon these facts the case was reported for the determination of the full court. If the court has jurisdiction, a divorce is to be granted for the cause of adultery; otherwise the libel to be dismissed.

Niles & Carr, for libelant..

The question of jurisdiction in this case arises under the provision of Pub. St. c. 146, §§ 4, 6. The case at bar is like Eaton v. Eaton, 122 Mass. 276, except that in that case the marriage was solemnized in this commonwealth while the parties resided here. At the time the adultery was committed the only domicile of the parties was in Massachusetts; and the cause of action accrued here. Should the libelant go to New Hampshire to procure a divorce, such divorce would be invalid here under Pub. St. c. 146, § 41; and to refuse the libelant a divorce would leave him without remedy anywhere; for, if this court has no jurisdiction to dissolve that marriage, certainly the courts of all other states are closed against him. See Ross v. Ross, 103 Mass. 575. The intention of the fifth section of chapter 146, Pub. St., must have been to prevent persons residing in other states from coming into this state to gain some advantage under its laws, and, in spirit at least, has no application to this

case.

No brief was filed for libelee.

HOLMES, J. It was decided in Ross v. Ross, 103 Mass. 575, that the prohibition in Gen. St. c. 107, § 12, (Pub. St. c. 146, § 4,) against granting a