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The Constitution vesting in this court the authority, when a case is properly before it, to pass upon all questions involving the rights or jurisdiction of the General Government, which state legislation may attempt to defeat or impair, or the rights or jurisdiction of state government which Congress, by its legislation, may attempt to defeat or impair, did what was absolutely necessary to secure the harmonious operation of both governments. The very purpose of this tribunal (and it has from the first faithfully discharged the duty) is, to avert such peril by keeping the two governments within their respective domains. Notwithstanding the admitted ability and undoubted integrity of the state tribunals, such is the frailty of our nature that, without being aware of it, their judgments have been influenced to maintain the legislation of their respective States, and in almost every instance in which this court has held a state law to be unconstitutional, the same law had been upheld by the unanimous decision of the state judiciary.

Such were the cases of McCullough v. Mary land, in 4 Wheat., 316; Brown v. Maryland, 12 Wheat., 419; Dartmouth College v. Woodward, in 4 Wheat., 518, and Gibbons v. Ogden, in 9 Wheat., 1.

The state court which decided this last case, was at the time, and has been ever since, admitted to have been equal in ability to any court in this country or in Europe, and it maintains the validity of the legislation of New York, which secured to Fulton the exclusive right to navigate the Hudson River by steam power. Yet, their decision was reversed by the unanimous judgment of your predecessors, which judgment has never been called into serious question, while its beneficial effect upon trade and commerce cannot be overstated, nor the injurious influence on both, which the affirmation of the decision of the state court would have had, be exaggerated.

It has been rather intimated than seriously contended that, after so long a period had elapsed, the question of its constitutionality cannot now be made. The objection has no support, either in principle or on authority. If the Acts were unconstitutional at first, they have been so up to the present time, and must be so until the Constitution is changed. The rights of the citizens of the United States, or the power of the government, cannot be frustrated by the conduct of a State or any of its chartered companies. The question, then, is open: are not these laws unconstitutional?

ment to construct, where the public interest and convenience demand it. Davidson v. Coms. &c. 18 Minn., 482; Sharpless v. Mayor, &c., 21 Pa. St. 147.

State law, that railroad companies shall fix their rates of compensation annually and post up the same in their depot buildings, is a police regulation, and not a regulation of commerce. R. Co. v. Fuller, 21 L. ed. U. S. 710.

The regulation of tolls on bridges and turnpike roads, and fares on railways and ferries which are used for commerce between States, is part of the powers reserved to the States and is not delegated to the General Government. Hudson v. State, 4 Zab., 718.

Where the charter of a railroad company conferred upon the company the power to regulate its tolls for a certain length of time, an Act of the Legislature regulating the same tolls during that time is unconstitutional. Sloan v. Pacific R. Co., 61 Mo. 24, 21 Am. Rep., 397.

A railroad company in which the State had a

I understand that they are supposed to be constitutional upon three grounds: first, that the payment to the State of one fifth of the amount received for the transportation of passengers upon the branch road was one of the considerations upon which the Leislature passed the Act; second, that it was in the nature of a bonus, third, that it was a tax upon the gross receipts of the Company.

Suppose the provision in question did induce the State to pass the law, does that make it constitutional? The proposition that it does, necessarily concedes that if the provision had been found in a distinct Act, after the Company's charter was granted, its legality could not be maintained. If this be so, then it is in the power of a State and its corporations to avoid the constitutional inhibitions by making any provision in conflict with the Constitution, a matter of contract. Such a doctrine as this would place the operations of the restrictions entirely within the power of a State and, practically frustrate it. These remarks are equally applicable to the second objection, that the provision is in the nature of a bonus. A bonus, may, no doubt, be exacted of a corporation, and may be one of the conditions upon which its charter is granted. But where the direct and immediate effect of a bonus is to interfere with the rights of citizens, or a power of the General Government, it falls before the paramount authority of the United States. In the words of Mr. Justice Miller, in the Nevada case, this court would be very reluctant to admit that any form of words, having the effect to compel every person traveling through the country, by the common and usual modes of public conveyance, to pay a specific sum to the State, was not a tax upon the rights thus exercised." Now, why is it that the Nevada case does not It is apply to and control the present one? admitted by the counsel for Maryland that it was correctly adjudged. But it is said that it is not like the present case, because the former imposed a tax which is called a capitation tax. In the Nevada case, the railroads, stage-coaches, or other means of conveyance of passengers and collect for the State, $1 for every passenger into or out of the State were directed to charge so transported. This tax would certainly have been a capitation tax, if it had not been so called. That the tax in this case is a tax upon the passenger is obvious. It is said that it is not, because the Company is authorized by charter to charge each passenger for the whole distance from Baltimore to Washington $2.50; and that when that sum

controlling interest and which had a right to change its gauge, leased its road and a statute passed thereafter forbidding the lessees to change the gauge, was held unconstitutional as impairing the obligation of contracts. State v. Richmond, etc., R. Co., 73 N. C. 527, 21 Am. Rep. 473.

Railroad companies, as carriers for hire, are engaged in a public employment and are, unless protected by their charters, subject to legislative control as to their rates of fare. Chicago, etc., R. Co. v. Iowa, 94 U. S. 155, 24 L. ed. 94.

The State may limit the amount of charges by railroad companies for fares and freights unless restrained by some contract in the charter. Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Peik v. Chicago, etc. R. Co. 94 U. S. 164, 176, 24 L. ed. 97; Shields v. Ohio, 95 U. S. 319, 24 L. ed. 357; Chicago, etc. R. Co. v. Iowa, 94 U. S. 155, 24 L. ed. 94; 9 West Jur. 347; Chicago etc. R. Co., v. Ackley, 94 U. S. 179, 24 L. ed. 99; Winono, etc. R. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99.

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SUPREME COURT OF THE UNITED STATES.

received it is received account of, and belongs to the Company. for, and on This, I submit, is a clear misapprehension of the law. It is true that, by the 8th section of the Act of 1832, the Company is and would be authorized to charge each passenger a sum not exceeding $2.50 for the whole distance between the two cities. But it is equally true, that one fifth of that sum is charged for and on account of the State, and belonged to the State. The meaning of the section, therefore, is the same as if it had been said that the Company might charge $2 for itself, and fifty cents for the State. The charge, therefore, of that fifty cents, is a tax upon each passenger, and the Company is constituted the agent of the State to collect it. The third ground upon which the constitutionality of the Act is maintained, is upon the gross receipts of the Company. In my judgment, this is a palpable misapprehension. It is certainly not a tax upon the franchise. It is equally certain that it is not and does not profess to be a tax upon the gross or net receipts of the Company, as receipts belonging to the Company. I concede that a State may tax a corporal franchise and corporate property, unless it has engaged by contract not to do so. In order to ascertain whether the tax in dispute is a tax upon the franchise or upon the property of the Company, we are to inquire: Upon whom or upon what does the tax directly fall? That it falls upon the passenger I have endeavored to prove, and think I have satisfac torily done so. That it does not fall upon the property of the Company, clearly appears in the fact that the Company has no interest whatever in the one fifth. This, the moment it is received, becomes the property of the State; and the Company, as long as it holds, holds it as trustee for the State. In order to discover upon what or upon whom a tax falls, you are to determine who or what pays it. When that is ascertained, you, of course, ascertain upon whom or upon what the tax does fall. This was established as the test in the case of Bank of Commerce v. N. Y. City, in 2 Black, 620, 17 L. ed. 451, and in the subsequent one, known as the Bank Tax Case, in 2 Wall., 200, 17 L. ed. 793.

In each case the law imposing the tax used general terms, and the court decided, notwithstanding this, that as a portion of the funds of the bank were invested in United States securities, the tax, as far as they affect those securities, was unconstitutional. In the first case, the court states that where a state law imposed a tax upon property which it had no authority to tax, the law was invalid, notwithstanding the general phraseology which might be adopted. Or, to use the words of the court substantially, such a law is unconstitutional, "Whether it im poses the tax on United States stock, eo nomine, or includes it in the aggregate of the tax paying property, to be valued, like the rest, at its worth." This principle is recognized as a sound one in the case of Reading Railroad Company v. Pennsylvania, in 15 Wall., 272, 21 L. ed. 160, where Mr. Justice Strong, speaking for the court, announced that "It has been repeatedly held that the constitutionality or unconstitutionality of a state tax is to be determined, not by the form or agency through which it is to be collected, but by the subject upon which the burden is laid." The next question is, whether 680

OCT. TERM,

grounds in no way connected with the constitu
the judgment of the court below can stand upon
tional difficulty.
Court of Appeals of Maryland were of opinion
Two of the judges of the
that it could not, and that the suit should have
been a special action upon the Maryland Acts.
The other judges, however, thought that it
federal question; that is to say, upon principles
could rest upon grounds irrespective of the
of law with which that question has no connec-
tion, and for this, they principally relied upon
the case of Brooks v. Martin, 2 Wall., 70, 17
L. ed. 732.

ors, are, in my judgment, entirely dissimilar.
That case and the one now before Your Hon-
The whole contract there had been carried out.
The fruits of the contract were in the hands of
the partners. There was no one to contest their
title to such fruits.
been sold and were in the possession of inno-
The soldier's lands had
cent holders. The only question, therefore, was:
to whom did the funds in controversy belong?

counsel for the State, or in the opinions of the
The other cases cited in the arguments of the
judges of the court below, will be found, upon
examination, not to have any application to the
case at bar.

N. Steele, P. F. Thomas and S. T. WalMessrs. A. K. Syester, Atty. Gen. of Md., I. lis, for defendant in error:

merated in the first prayer of the plaintiff in The Statutes of the State of Maryland, enuerror, hereinbefore specially referred to, are not in conflict with the Constitution of the United States.

tion of Maryland is said to violate, are those The constitutional rights which this legislawhich are announced and maintained to this court, in the case of Crandall v. Nevada, 6 Wall., 35, 18 L. ed. 745.

a right to require the services of its citizens at It was there held that the United States had the seat of government, and at all the points in the States where the functions of government were to be performed; that citizens had the correlative right to approach the great Departments of the Government, the ports of entry and the various federal offices in the States; that there should be levied and collected a capand that the Statute of Nevada, which enacted itation tax of one dollar upon every person leaving the State by any railroad, stage-coach transporting passengers to Ohio, was an invaor other vehicle engaged in the business of tutional. sion of these rights and, therefore, unconsti

its decision on the ground that the State of
The majority of this court placed
Nevada taxed every traveler for the privilege
of leaving the State by the ordinary mode of
transit, and that as the right to tax involved
the right practically to prohibit, the law was
tion, of the rights of the government and the
an obstruction and might be made a prohibi-
citizen above set forth.

stead of imposing a tax on the traveler, pro-
The Maryland Legislature, by its terms, in-
vides only that the Company shall semi-annual-
ly pay to the State one fifth of the amount re-
ceived for "the transportation of passengers"
Company to collect a tax from any person, for
or "passage money." It does not authorize the
any privilege, but requires it to pay to the
State, every six months, a tax of one fifth
of the amount received by it for its services in

carrying passengers. The passage money re- | 473, and the case of "Erie Railroad Company ceived belongs to the Company, to be used and expended as it pleases. After the expiration of each period of six months, and only then, the amount of the tax is to be ascertained and the State becomes entitled to demand and receive that amount. This is simply a tax on its gross receipts from passenger fares, and the amount of the tax is to be ascertained, every six months, by the amount of its business during that period in passenger transportation.

In reference to the justice and propriety of such a mode of ascertaining the amount of the tax, we refer to the opinion of this court in the case of Society for Savings v. Coite, 6 Wall., 608, 18 L. ed. 903.

It is worthy of observation, too, that the tax is imposed by the Maryland Statutes, only on the amount actually received for carrying passengers, leaving the Company at liberty to issue free tickets, or transport persons without charge or at reduced rates, on occasions where its interest or inclination or duty may so dictate. What, in such cases, becomes of the cap itation tax on the traveler for leaving the State? If such a tax was meant, this power would not have been left with the Company.

v. The Commonwealth of Pennsylvania," decided at the present term [ante, 575], and they are now to be taken as a settled law. In the Nevada case, a capitation tax was expressly imposed on the traveler leaving the State. In the case of the State Freight Tax, 15 Wall., 273, 21 L. ed. 161, the tax was expressly laid upon the freight carried; but in the case at bar, it is sought to make out a constructive violation of implied constitutional rights. It is respectfully submitted that the authority of these cases goes to no such dangerous extent.

Even if the statutes in question are held to be unconstitutional, the case presents another matter adjudged by the Court of Appeals of Maryland suflicient and broad enough to maintain its judgment.

Conceding the statutes to be void for the reason assigned, the Company was liable, nevertheless, for what it had already collected, and what the passengers, whose rights only were affected, had already paid to it without dispute, and waiving their rights, as this court has held they might do.

R. Co. v. Trimble, 10 Wall., 382, 19 L. ed. 953.

The laws here in question were a contract These propositions of the State were founded, made with the Company by the State, at the too, on what for thirty years had been estaburgent entreaty of the Company, and for its aid lished law in its course. In 1843, in the case and benefit. They constituted a contract, not of Waters v. State, 1 Gill, 308, in a suit of the merely because Acts of incorporation are from State against a delinquent tax collector, the their nature contracts, but because they were Court of Appeals had laid it down in the folsupported by good and valuable considerations; lowing unequivocal language: "It is admitted because they were eminently fair and just; be by the demurrer in this case, that the collector cause the Company not only solicited but joy-has received all the taxes levied on the assessfully accepted them, and built, finished and has enjoyed the vast profits of its road under them and by means of them.

It is clear, that if the State had exacted from the Company, as a bonus or price for the franchise which it granted and the privileges which it relinquished, a large sum of money payable in cash, or by installments, or at some distant day with interest payable semi-annually, which might have borne heavily on the Company, and indirectly on the traveler, it would have been but the exercise, on the part of the State, of a reconized constitutional power.

Gordon v. Appeal Tax Court, 3 How., 145. It is difficult to understand how the bonus becomes unconstitutional, because its amount is to be ascertained semi-annually, according to the gross receipts from the transportation of passengers.

But, it is contended that under the decision in Crandall v. Nevada, 6 Wall., 40, 18 L. ed. 746, and the language used by Chief Justice Taney in the Passenger Cases, 7 How., 283, as the burden of the exaction may fall, here, upon the passenger, it is practically a tax on him and, therefore, a restraint on his constitutional rights. Non sequitur. The usual fare exacted by any railroad company which pays any tax to the State, would, if this were true, be unconstitutional.

The constitutionality of such a tax is, we respectfully submit, directly established by this court in the case of State Tax v. Railway Gross Receipts, 15 Wall., 284, 21 L. ed. 164.

The principles on which this decision rests have been re-affirmed by this court, in the case of Osborne ▼. Mobile, 16 Wall., 482, 21 L. ed.

able property of Montgomery County, the nonpayment of which furnishes the subject of this suit. Having thus admitted the receipt of the money, the collector, who is in the light of an agent of the State, could not be heard to urge in his defense to a suit that the money he had received was on account of taxes which the Legislature had no constitutional power to impose. The question of constitutional authority to levy the tax would properly arise between the collector and the person taxed before payment, or after payment, between the State and such person."

This ruling was pointedly affirmed in 1867, by the present Court of Appeals, in O'Neil v. School Commissioners, 27 Md., 240, and has never been brought into question in the State since the decision in 1 Gill. The doctrine which it applies and the propriety of such application have had the sanction of this court in Bell v. Railroad Co., 4 Wall., 598, 18 L. ed. 338. We beg leave to refer to the report of the present case in State v. Balt. & O. R. Co., 34 Md., 365 to 367, where it will be seen that the principle asserted in Waters v. The State, supra, and in the prayers of the defendant in error in this case, was held to be supported, not merely by text writers of the highest authority (see, Paley, Ag., 28 Law Lib., 62), but by the ablest English judges in decisions cited and adopted by this court, in the leading cases of McBlair v. Gibbes, 17 How., 236, 237, 15 L. ed. 134; Brooks v. Martin, 2 Wall., 70, 17 L. ed. 732; and Planters' Bank v. Union Bank, 16 Wall., 500, 21 L. ed. 480, where the point distinctly arose.

Whether an agent who has received money for his principal, or an official or special col

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lector who has received money for the State, under a law repugnant to the Constitution, but to which he was a willing and interested party, should, on grounds of public policy, be permitted to set up his own wrong, or his participation in the wrong, as an excuse for appropriating the fund, is a question, it is respectfully submitted, which belongs to the state courts, in cases properly before them.

To collect from passengers an unconstitutional state tax, and then retain it, from both the State and the passengers, because the tax is unconstitutional, is to assert a claim not founded on the Constitution, or upon any legislation of Congress; not in any sense meritorious, but standing nakedly on the common law maxim, In pari delicto, potior est conditio defendentis.

Walworth v. Kneeland, 15 How., 353; Udell v. Davidson, 7 How., 769.

Mr. Justice Bradley delivered the opinion of the court:

This was an action of indebitatus assumpsit, brought originally in the Superior Court of Baltimore City by the State of Maryland against the Baltimore and Ohio Railroad Company. The declaration contained two counts: the first, for money due and payable; the second, for money had and received. In answer to a demand of the defendant for a bill of particulars, the following was filed by the State: "The plaintiff in answer to the demand of the defendant for a bill of particulars, says that its said claim is for the particulars following, viz.: for $500,000, being the one fifth part of the whole amount of moneys received by the defendant for the transportation of pas sengers upon the Washington Branch of the Baltimore and Ohio Railroad from the first day of January, 1860, to the first day of January, 1870; which said sum of $500,000 was received by the defendant for the use of the plaintiff, and was due and in arrears to the plaintiff at the time of the institution of this action."

The case was tried upon the general issue pleaded by the defendant.

The claim of the State in brief was based on the charter, by virtue of which the Railroad Company constructed the branch railroad be tween Baltimore and Washington, one condition of which was that the Company should pay to the State at the end of every six months, one fifth of the whole amount received during that period for transporting passengers on said road by said Company. The charter was accepted and the payment made for many years; but the Company finally disputed the constitutionality of the stipulation and refused further payment. This action was brought to recover the arrears claimed to be due to the State, and the Railroad Company has brought this writ of error to test the constitutional question.

The record shows that, at the trial of the cause, after all the Acts of Assembly constituting the charter referred to and bearing on the question had been submitted, the defendant, by its counsel, prayed the court to instruct the jury that these Acts, so far as they provide that the defendant shall pay to the Treasury of the Western Shore of Maryland on the first Monday of January and July in each and every year, for the use of the State, one fifth of the whole >mount that may be received for the transpor

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tation of passengers on the branch road mentioned in said Acts during the six months last preceding, are unconstitutional because in conflict with the Constitution of the United States; and secondly, that the defendant was not estopped from setting up the defense.

The plaintiff, on the other hand, prayed the court to *instruct the jury in substance [*459 that, even if the said provision was unconstitutional, still the defendant, by accepting the terms of the charter, was bound to pay to the State the one fifth part of the passage money in question. The court granted the prayer of the defendant, and refused that of the plaintiff, and a verdict and judgment were rendered for the former.

The Court of Appeals of Maryland reversed the judgment and awarded a venire de novo. Upon the second trial the same instructions were asked by each party respectively, and the court below, in conformity with the decision of the Court of Appeals, refused the instruction asked for by the defendant and granted that asked for by the plaintiff, and a verdict and judgment were rendered for the latter. This judgment was affirmed by the Court of Appeals, and is brought here by writ of error.

It thus appears that the question of constitutionality was distinctly raised by the defendant, with a denial of any estoppel precluding such a defense.

The counsel for the plaintiff contend, and the Court of Appeals of Maryland held, that whether the stipulation by the State for one fifth of the passage money was constitutional or not, it was received by the Company for the State, and was the money of the State, the Company being merely the agent of the State to collect it; and that the Company was, therefore, bound to respond to the State for it, on the ground that an agent or receiver cannot withhold the money of his principal under pretense of illegality in the transaction, by virtue of which it was obtained. The general doctrine referred to is a sound one, and if it were applicable to this case it would follow that the constitutional question was not necessarily involved; but as this question was in fact passed upon by the Court of Appeals, and ruled against the defendants, though not the principal ground on which it placed its judgment, it would be our duty, under our recent rulings on the construction of the Act of 1867, to assume jurisdiction of the case, and review the judgment of the state court ov the constitutional point. But, with great respect for the opinion of that learned court, we are compelled to differ with it as to the applicability to the present case of the doctrine referred to. We cannot concur in the po- [*468 sition that any part of the passenger money, when received by the Company, became or was the money of the State. It was money of the Railroad Company alone. The Railroad Company was authorized by its charter to charge the passenger for transporting him between Baltimore and Washington what it did charge him. The State cannot be permitted to deny that it had power to confer upon the Company such a franchise; nor can it be permitted to say that the passenger could complain of any extortion practiced upon him; for the fare, so far as he was concerned, was perfectly legitimate. It might have been greater than it was, and yet he would have had no right to complain.

oughfares in the country for interstate travel is conceded, and, indeed, may be judicially assumed. As, however, nearly all the railroads in the country are or may be used to a greater or less extent as links in through transportation, this road cannot in principle be regarded as an exceptional one in that respect.

*Commerce on land between the differ- [*470 ent States is so strikingly dissimilar, in many respects, from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the State and Fed

The State, at least, is estopped from saying that he could justly do so. The Company, then, charged a lawful fare. The money all went into its treasury together, and one portion was not distinguished from another. The Company was simply under a contract to pay to the State one fifth of the whole amount received for the transportation of passengers. If there was anything unconstitutional in the arrangement it was this contract. The grant of the right to build the road and operate it was constitutional; the right to charge fare and freight was constitutional; the amount of such fare and freight would have been entirely in the discre-eral Governments. No doubt commerce by tion of the Company if it had not been limited by the grant. There is, in short, nothing in the whole transaction between the State and the Company to which, in a constitutional point of view, the slightest exception can be taken, except this contract to pay to the State a portion of the amount received. In the cases in which it has been held that parties engaged in an illegal undertaking are answerable to one another for moneys received therein, it was the undertaking, and not the agreement to pay over the moneys received, which was obnoxious to the law or its policy. In this case it is not the transaction out of which the money grew, but the agreement to pay over a portion of it, which is vicious, if anything is vicious; and the transaction is only vicious, if at all, because of the reflected effect of the agreement upon it. We think no case can be found where the 469*] *agreement itself, to divide a common fund or to pay over money received, as contradistinguished from the transaction out of which the money arose, was illegal, in which it has been held that a recovery could be had. If it be said that the vice, if any, lies back of the agreement, namely: in the reservation by the State of one fifth, it would amount to the same thing. The right to recover would then stand on the reservation, and would be no better than before.

We think, therefore, that the constitutionality of the stipulation came directly in question, and could not properly be avoided in determining the case.

water was principally in the minds of those who framed and adopted the Constitution, although both its language and spirit embrace commerce by land as well. Maritime transportation requires no artificial roadway. Nature has prepared, to hand, that portion of the instrumentality employed. The navigable waters of the earth are recognized public highways of trade and intercourse. No franchise is needed to enable the navigator to use them. Again; the vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the National Legislature. So that state interference with transportation by water, and especially by sea, is at once clearly marked and distinctly discernible. But it is different with transportation by land. This, when the Constitution was adopted, was entirely performed on common roads, and in vehicles drawn by animal power. No one at that day imagined that the roads and bridges of the country (except when the latter crossed navigable streams) were not entirely subject, both as to their construction, repair and management, to state regulation and control. They were all made either by the States or under their authority. The power of the State to impose or authorize such tolls, at it saw fit, was unquestioned. No one then supposed that the wagons of the country, which were the vehicles of this commerce, or the horses by which they were drawn, were subject to national regulation. The movement of persons and merchandise, so long as it was as free to one person as to another, to the citi

State in which it was performed, was not regarded as unconstitutionally restricted and trammeled by tolls exacted on bridges or turnpikes, whether belonging to the State or to private persons. And when, in process of time, canals were constructed, no amount of [*471 tolls which was exacted thereon by the State or the companies that owned them, was ever re

In approaching the merits of the case it is unnecessary to examine in detail the various laws which constitute the charter of the Rail-zens of other States as to the citizens of the road Company in reference to the construction of the Washington branch. They were all ac cepted by the Company, and no question of impairing the obligation of contracts is raised. The substance is simply this: that the State granted to the Railroad Company the franchise of constructing a railroad from Baltimore to Washington, and of employing machinery and vehicles thereon for the transportation of pas-garded as an infringement of the Constitution. sengers and merchandise, and of charging therefor certain rates of fare for the one, and freight for the other, the passenger fare not to exceed $2.50 per passenger for the entire distance, and in that proportion for less distances; and it was stipulated that the Company should, at the end of every six months, pay to the State one fifth of the whole amount which might be received for the transportation of passengers. The question is, whether such a stipulation is or is not a violation of the Constitution of the United States, as being a restriction of free intercourse and traffic between the different States.

That the road is one of the principal thor

When constructed by the State itself, they might be the source of revenues largely exceeding the outlay without exciting even the question of constitutionality. So when, by the improvements and discoveries of mechanical science, railroads came to be built and furnished with all the apparatus of rapid and all-absorbing transportation, no one imagined that the State, if itself owner of the work, might not exact any amount whatever of toll or fare or freight, or authorize its citizens or corporations, if owners, to do the same. Had the State built the road in question it might, to this day, unchallenged and unchallengeable, have charged $2.50 for carrying a passenger between Balti

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