*

grants which Congress may make under its power to regulate commerce among the several States. This will be conceded by all, the only question being as to the extent of the power. * We think it extends at least to the prohibition of contracts relating to interstate commerce, which would extinguish all competition between otherwise competing railroad corporations, and which would in that way restrain interstate trade or commerce.'

11 30

§ 107. Railroads as Highways.-Railroads built under authority of the law are public highways,31 established primarily for the convenience of the people, and to subserve public ends, and are subject to governmental control and regulation; and for these reasons the corporation owning it may, under legislative sanction, take private property for a right of way, upon making just compensation to the owner.32 "It is said that railroads are not public highways per se; that they are only declared such by the decisions of the courts, and that they have been declared public only with respect to the power of eminent domain. This is a mistake. In their very nature they are public highways. It needed no decision of courts to make them such. True, they must be used in a peculiar manner, and under certain restrictions, but they are facilities for passage and transportation afforded to the public, of which the public has the right to avail itself." 33 There is, however, a clear distinction between the cases of railroads and canals, and plank and turnpike roads; the occupation of the highway by the former being permanent and exclusive, whereas the latter are considered public highways, over which every citizen has the right to travel in his own mode of conveyance,

20 United States v. Joint Traffic Assoc., 171 U. S. 505, 570, 19 Sup. Ct. 25, 43 L. ed. 259, per Peckham, J.

31 Talcott v. Township of Pine Grove, 1 Flipp. (U. S. C. C.) 120, 146, Fed. Cas. No. 13,735, per Emmons, Cir. J.

Kansas Ry. Co., 135 U. S. 641, 34
L. ed. 295, 10 Sup. Ct. 965.

33 Olcott v. The Supervisors, 16 Wall. (83 U. S.) 678, 695, 696, 22 L. ed. 382 (per Strong, J., holding that State may impose a tax for public use); Kansas City, S. & G. Ry.

32 Cherokee Nation v. Southern Co. v. Louisiana Western R. Co., 116

the imposition of tolls being simply a means of keeping them in repair.34 Where, throughout an act of Congress, a railroad is referred to, in its character as a road, as a permanent structure, and designated, and required to be, a public highway, the term "railroad" cannot, without doing violence to language, and disregarding long-established usage of legislative expressions, be extended to embrace the rolling stock or other personal property of the company.3

§ 108. Reclamation Districts. 36-Reclamation districts are declared to be public corporations," and are also said to be quasi-public corporations.38

§ 109. Sleeping-Car Companies-Palace Cars. We have seen that sleeping-car companies are embraced within the provisions of the Public Service Commissions Law of New York, and also the Public Utilities Act of Wisconsin.40 But it is held, however, that such a company is not a common carrier, but that it rests under such obligations only as are based upon its contract to furnish the accommodations which it offers to the public and is liable only to the extent of its breach thereof.41

La. 178, 40 So. 627 (under const. 1898, art. 272.

34 Douglass v. Boonsborough Turnpike Road Co., 22 Md. 219, 85 Am. Dec. 647. See also Oliff v. City of Shreveport, 52 La. Ann. 1203, 27 So. 688.

Railroads and highways and distinctions as to use of, see McGregor v. Erie Ry. Co., 35 N. J. L. 89, 97, per Bedle, J.

35 Lake Superior & Miss. Rd. Co. v. United States, 93 U. S. 442, 23 L. ed. 965.

36 See 75, herein.

"People v. Williams, 56 Cal. 547. 38 Reclamation Dist. v. Turner, 104

Cal. 334, 37 Pac. 1038.

39 See § 74, herein.
40 See § 104, herein.

41 Calhoun v. Pullman Palace Car Co. (U. S. C. C.), 149 Fed. 546, 549. Examine Braun v. Webb, 65 N. Y. Supp. 668, 32 Misc. 243, aff'g 62 N. Y. Supp. 1037 (where the plaintiff obtained judgment in a case where he had purchased a ticket, been assigned a berth but it was occupied by another person and he was refused its occupancy by the conductor and was compelled to sit all night in a day coach); Pullman's Palace Car Co. v. King, 99 Fed. 380, 39 C. C. A. 573 (in this case plaintiff was sold accommodations in a particular car, virtually represented and warranted to pass over a particular line, but the car did not pass over the line specified in the ticket and upon refusal to pay extra fare plaintiff was ejected, and

A sleeping-car company may make reasonable regulations respecting the right to a passage or a berth on its cars, as such right of a person is held to be limited, and it is a reasonable regulation which excludes those who have infectious or contagious diseases or are insane.42

§ 110. Stockyards Company.-A stockyard business is one affected with a public interest when it is carried on at a large railroad and commercial center, and affords the only available market within the city and for an extensive territory, for resting, feeding and shipping of live stock. Such a business is also subject to public control and regulation as to the rates charged.43 But in Cotting v. Kansas City Stock Yards Company,44 wherein a statute defining certain duties in relation to public stockyards and regulating all charges thereof, was held unconstitutional as denying a certain company the equal protection of the laws, in that such enactment applied only to that particular company and not to other companies or corporations engaged in like business in the State, the court reviews the several cases bearing upon the subject and says: "As to those individuals who have devoted their property to a use in which the public has an interest, although not engaged in a work of a confessedly public character, there has been no further ruling than that the State may prescribe and enforce reasonable charges." 45

§ 111. Street Railways-Street Railway Companies.—A street railway is a public utility; it is an appropriate and necessary method of using the highway; and the municipalities may permit them to occupy and use portions of the street. Such occupancy is in common with that of the general public.46 45 See § 113, herein.

defendant was held liable for breach of contract).

46 City of Detroit v. Detroit United 42 Pullman Car Co. v. Kraus (Ala.), Ry., 133 Mich. 608, 611, 95 N. W. 736, per Hooker, C. J.

40 So. 398.

43 Ratcliff v. Wichita Union Stockyards Co., 74 Kan. 1, 86 Pac. 150. *183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. 30.

Definitions of street railroad or railway and street railway companies:

United States: Williams v. City

Street railway companies are public carriers of passengers, and are given corporate existence in order that they may be enabled

to provide, for convenience of the public, the means of rapid transportation and promote the public welfare.47 And any contract which disables a street railway corporation from performing its functions, under its franchise, without the consent of the State, and made to relieve the corporation of the burden which it has assumed, is void as against public policy. It is declared that street railway companies are not endowed with the right of eminent domain, and that stat

Thompson v. Schenectady Ry. 627, 628, 37 Atl. 119, per Williams, J.