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Perhaps the most striking illustrations of the principle [* 575] here stated will be found among the judicial decisions which have held that the rights insured to private cor- [* 576] porations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may

No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reasoning may all railways be required so to conduct themselves as to other persons, natural or corporate, as not unreasonably to injure them or their property. And if the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often required of natural persons under such circumstances.

"There would be no end of illustrations upon this subject. . . . It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety-beams in case of the breaking of axletrees, the number of brakemen upon a train with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co. 16 Barb. 353.

"2. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should be made a serious question." And the court proceed to consider the various cases in which the right of the legislature to regulate matters of private concern with reference to the general public good has been acted upon as unquestioned, or sustained by judicial decisions, and quote, as pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts, the language of Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheat. 518, 629, that "the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed." See, to the same effect, Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer and Saratoga R.R. Co. 8 Barb. 390; Galena and Chicago U. R.R. Co. v. Loomis, 13 Ill. 548; Fitchburg R.R. v. Grand Junction R.R. Co. 1 Allen, 552; Veazie v. Mayo, 45 Me. 560; Peters v. Iron Mountain R.R. Co. 23 Mo. 107; Grannahan v. Hannibal, &c., R.R. Co. 30 Mo. 546; Indianapolis and Cincinnati R.R. Co. v. Kercheval, 16 Ind. 84; Galena and Chicago U. R.R. Co. v. Appleby, 28 Ill. 283; Blair v. Milwaukee, &c., R.R. Co. 20 Wis. 254; State v. Mathews, 44 Mo. 523.

be made by the State with a view to the public protection, health, and safety, and to properly guard the rights of other individuals and corporations. Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the chartercontract, removed from the sphere of State regulation, and that the

charter implies an undertaking, on the part of the State, [* 577] that in the same way in which their exercise is permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far; but, on the contrary, the rights and privileges which it confers are only thereby placed upon the same footing with other legal rights and privileges of the citizen in respect to proper rules for their due regulation, protection, and enjoyment.

The limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, 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. The maxim, Sic utere tuo

ut alienum non ladas, is that which lies at the foundation of the

I Washington Bridge Co. v. State, 18 Conn. 53; Bailey v. Philadelphia, &c., R.R. Co. 4 Harr. 389; State v. Noyes, 47 Me. 189; Pingrey v. Washburn, 1 Aiken, 268; Miller v. N. Y. and Erie R.R. Co. 21 Barb. 513; People v. Jackson and Michigan Plank Road Co. 9 Mich. 307. In Benson v. Mayor, &c., of New York, 10 Barb. 245, it is said, in considering a ferry right granted to a city: Franchises of this description are partly of a public and partly of a private nature. So far as the accommodation of passengers is concerned, they are publici juris; so far as they require capital and produce revenue, they are privati juris. Certain duties and burdens are imposed upon the grantees, who are compensated therefor by the privilege of levying ferriage and the security from spoliation arising from the irrevocable nature of the grant. The State may legislate touching them, so far as they are publici juris. Thus, laws may be passed to punish neglect or misconduct in conducting the ferries, to secure the safety of passengers from danger and imposition, &c. But the State cannot take away the ferries themselves, nor deprive the city of their legitimate rents and profits." And see People v. Mayor, &c., of New York, 32 Barb. 102,

116.

power; and to whatever enactment affecting the management and business of private corporations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their road, a subsequent statute authorizing a certain class of persons to go toll free was void.1 This was not a regulation of existing rights, but it took from the corpora

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tion that which they before possessed, namely, the right [* 578] to tolls, and conferred upon individuals that which before they had not, namely, the privilege to pass over the road free of toll. "Powers," it is said in another case," which can only be justified on this specific ground [that they are police regulations], and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it."2 And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, was void as violating the obligation of contracts.3 And even a provision in a corporate charter, empowering the legislature to alter, modify, or repeal it, would not authorize a subsequent act which, on pretence of amendment, or of a police regulation, would have the effect to appropriate a portion of the corporate property to the public use. And where Pingrey v. Washburn, 1 Aiken, 268. This decision, and those which follow, assume that there is nothing in the original charter of the corporation which would warrant an amendment of the charter to this effect.

1

2 Christiancy, J., in People v. Jackson and Michigan Plank Road Co. 9 Mich. 307.

3 lbid. And see State v. Noyes, 47 Me. 189.

4 The reservation of a right to amend or repeal would not justify an act requiring a railroad company to cause a proposed new street or highway to be taken across their track, and to cause the necessary embankments, excavations, and other work to be done for that purpose at their own expense; thus not only appropriating a part of their property to another public use, but compelling them to be at the expense of fitting it for such use. Miller v. N. Y, and Erie R.R. Co.

21 Barb. 513.

by its charter the corporation was empowered to construct over a river a certain bridge, which must necessarily constitute an obstruction to the navigation of the river, a subsequent amendment making the corporation liable for such obstruction was held void, as in effect depriving the corporation of the very right which the charter assured to it. So where the charter reserved to the legislature the right of modification after the corporators had been reimbursed

their expenses in constructing the bridge, with twelve per [* 579] cent interest thereon, * an amendment before such reimbursement, requiring the construction of a fifty-foot draw for the passage of vessels, in place of one of thirty-two feet, was held unconstitutional and void. So a power to a municipal corporation to regulate the speed of railway carriages would not authorize such regulation except in the streets and public grounds of the city; such being the fair construction of the power, and the necessity for this police regulation not extending further.3

On the other hand, the right to require existing railroad corporations to fence their track, and to make them liable for all beasts killed by going upon it, has been sustained on two grounds: first, as regarding the division fence between adjoining proprietors, and in that view being but a reasonable provision for the protection of domestic animals; and second, and chiefly, as essential to the protection of persons being transported in the railway carriages.*

'Bailey v. Philadelphia, &c., R.R. Co. 4 Harr. 389.

2 Washington Bridge Co. v. State, 18 Conn. 53.

3 State v. Jersey City, 5 Dutch. 170. In Buffalo and Niagara Falls R.R. Co. v. Buffalo, 5 Hill, 209, it was held that a statutory power in a city to regulate the running of cars within the corporate limits would justify an ordinance entirely prohibiting the use of steam for propelling cars through any part of the city. And see Great Western R.R. Co. v. Decatur, 33 Ill. 381.

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Thorpe v. Rutland and Burlington R.R. Co. 27 Vt. 156; New Albany and Salem R.R. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, ib. 10; Same v. McNamara, 11 Ind. 543; Ohio and Mississippi R.R. Co. v. McClelland, 25 Ill. 145; Madison and Indianapolis R.R. Co. v. Whiteneck, 8 Ind. 230; Indianapolis and Cincinnati R.R. Co. v. Townsend, 10 Ind. 38; Same v. Kercheval, 16 Ind. 84; Corwin v. N. Y. and Erie R.R. Co. 13 N. Y. 42; Horn v. Atlantic and St. Lawrence R.R. Co. 35 N. H. 169, and 36 ib. 440; Fawcett v. York and North Midland R. Co. 15 Jur. 173; Smith v. Eastern R.R. Co. 35 N. H. 356; Bulkley v. N. Y. and N. H. R.R. Co. 27 Conn. 479; Jones v. Galena, &c., R.R. Co. 16 Iowa, 6; Winona, &c., R.R. Co. v. Waldron, 11 Minn. 515; Bradley v. Buffalo, &c., R.R. Co. 34 N. Y. 429. A subsequent statute making railroad companies liable for injuries by fire communicated by their locomotive-engines was sustained in Lyman

Having this double purpose in view, the owner of beasts killed or injured may maintain an action for the damage suffered, notwithstanding he may not himself be free from negligence.1 But it would, perhaps, require an express legislative declaration that the corporation should be liable for the beasts thus destroyed

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to create so great an innovation in the common law. The [* 580] general rule, where a corporation has failed to obey the

police regulations established for its government, would not make the corporation liable to the party injured, if his own negligence contributed with that of the corporation in producing the injury.2

The State may also regulate the grade of railways, and prescribe how, and upon what grade, railway tracks shall cross each other; and it may apportion the expense of making the necessary crossings between the corporations owning the roads. And it may establish regulations requiring existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places where their approach might be dangerous to travel. And it has even been intimated that it

v. Boston and Worcester R.R. Co. 4 Cush. 288. And see Camden and Amboy R.R. Co. v. Briggs, 2 Zab. 623.

1 Corwin v. N. Y. and Erie R.R. Co. 13 N. Y. 42; Indianapolis and Cincinnati R.R. Co. v. Townsend, 10 Ind. 38; Suydam v. Moore, 8 Barb. 358; Fawcett v. York and North Midland R. Co. 15 Jur. 173; Waldron v. Rensselaer and Schenectady R.R. Co. 8 Barb. 390; Horne v. Atlantic and St. Lawrence R.R. Co. 35 N. H. 169.

2 Jackson v. Rutland and Burlington R.R. Co. 25 Vt. 150. And see Marsh v. N. Y. and Erie R.R. Co. 14 Barb. 364; Joliet and N. I. R.R. Co. v. Jones, 20 Ill. 221; Tonawanda R.R. Co. v. Munger, 5 Denio, 255, and 4 N. Y. 255; Price v. New Jersey R.R. Co. 31 N. J. 229; Drake v. Philadelphia, &c., R.R. Co. 51 Penn. St. 240. In Indianapolis and Cincinnati R.R. Co. v. Kercheval, 16 Ind. 84, it was held that a clause in the charter of a railroad corporation which declared that when the corporators should have procured a right of way as therein provided, they should be seised in fee-simple of the right to the land, and should have the sole use and occupation of the same, and no person, body corporate or politic, should in any way interfere therewith, molest, disturb, or injure any of the rights and privileges thereby granted, &c., would not take from the State the power to establish a police regulation making the corporation liable for cattle killed by their cars.

3 Fitchburg R.R. Co. v. Grand Junction R.R. Co. 1 Allen, 552, and 4 Allen, 198.

"The legislature has the power, by general laws, from time to time, as the public exigencies may require, to regulate corporations in their franchises, so as to provide for the public safety. The provision in question is a mere police regulation, enacted for the protection and safety of the public, and in no manner