should be construed by New York decisions under which the pressure provision is not severable from the body of the statute. See People v. Porter, 90 N. Y. 68; Trustees Saratoga Springs v. Gas Co., 191 N. Y. 123.

The provisions of said acts as to penalties are unconstitutional on their face and invalidate both statutes. Such penalties operate as a denial of the equal protection of the laws. Cotting v. Stockyards Co., 183 U. S. 79; Ex parte Young, 209 U. S. 123; Chicago Ry. Co. v. Minnesota, 134 U. S. 418.

Both statutes are unduly discriminatory, and therefore unconstitutional upon their face.

This corporation has, as every one has, the liberty of contract guaranteed by the Fourteenth Amendment. Lochner v. New York, 198 U. S. 53; Allgeyer v. Louisiana, 165 U. S. 589. The State, therefore, has no general and unlimited right to interfere between the producer and the consumer as to the price upon which they would otherwise mutually agree, and while, as to public utility corporations the supervisory power of the State, subject to the guarantees of the Constitution, has been recognized since Munn v. Illinois, yet the State, when it seeks to interfere with the rights of property and the liberty of the citizen to contract for the sale of the products of his labor, only has power to prevent extortion by maximum charges of general and uniform application.

Under the police power to regulate rates, the State is without power to direct a public utility corporation to sell to one customer at a less price than to another. Its power to step between the public service corporation and its customers is exhausted when it fixes a general and uniform maximum price for the public service. Lake Shore R. R. Co. v. Smith, 173 U. S. 684. See also Wilson v. United Traction Co., 72 App. Div. 233; Beardsley v. Railroad Co., 162 N. Y. 230.

The rate fixing power is one of prohibition. In strictness, it does not fix rates, but simply provides that any sum beyond a given maximum is unreasonable. In so doing, it in effect declares that the maximum is a reasonable price. Brooklyn

Argument for Appellee.

212 U. S.

Union Gas Co. v. New York, 188 N. Y. 334; Lake Shore Ry. Co. v. Smith, 173 U. S. 684, 695.

When, therefore, the State provides that as to all other consumers, 80 cents per thousand feet is a reasonable charge, and provides that, as to one consumer, no greater charge than 75 cents shall be made, it in effect declares that to the favored consumer gas must be sold at less than a reasonable rate. This the State cannot do.

The finding of the Circuit Court that the rates prescribed would yield the complainant less than a just and reasonable rate of return is a finding of fact and not a conclusion of law, and this court should therefore give to such finding the controlling weight of a special verdict of a jury and not reverse such finding except for clear and indubitable error. Turnpike Co. v. Kentucky, 164 U. S. 578; C., M. & St. P. R. R. Co. v. Tompkins, 176 U. S. 167; Davis v. Schwartz, 155 U. S. 631, 636; 1 Foster's Fed. Prac., § 315, p. 690; Green v. Bishop, 1 Cliff. 186, 194; Mason v. Crosby, 3 Woodb. & Minn. 258, 269; Donnell v. Columbia Ins. Co., 2 Sumn. 366, 371; Welling v. La Bau, 34 Fed. Rep. 40; Moline Plow Co. v. Carson, 72 Fed. Rep. 387, 388; Fidelity &c. Co. v. St. Matthew's Savings Bank, 104 Fed. Rep. 858, 860; Paddock v. Commercial Ins. Co., 104 Massachusetts, 521, 531; Richards v. Todd, 127 Massachusetts, 167, 172; Penna. R. R. Co. v. Philadelphia County, 220 Pa. St. 100.

The Fourteenth Amendment invalidates a rate if it yield less than just remuneration, even though it yield some return. Cotting v. Stockyards Co., 183 U. S. 91; Railroad Commission Cases, 116 U. S. 307; Monongahela Navigation Co. v. United States, 148 U. S. 312, 326; Munn v. Illinois (dissenting opinion of Field, J.), 94 U. S. 141; Chicago R. R. Co. v. Minnesota, 134 U. S. 418, 458; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 397; Smyth v. Ames, 169 U. S. 466; San Diego Land Co. v. National City, 174 U. S. 739; Minneapolis R. R. Co. v. Minnesota, 186 U. S. 257; Atlantic Coast Line R. R. Co. v. N. C. Corp. Com., 206 U. S. 1.

A composite statement of this court, therefore, is that legis

lative rates, to be constitutional, must yield a "compensation" that is "full," "fair," "just," "reasonable" and "adequate and one that is not less than the "market value" of such use. The rule that the fair return must not be less than the legal rate of interest is justified on reason and authority. Brunswick Water District v. Maine Water Co., Beale and Wyman on R. R. Rate Regulation, § 401; Brymer v. Water Co., 179 Pa. St. 251; Pennsylvania R. R. Co. v. Philadelphia County, 220 Pa. St. 100, 115; Chicago Union Traction Co. v. State, 114 Fed. Rep. 557, 561; Louisville Ry. Co. v. Brown, 123 Fed. Rep. 946; Central R. R. of Ga. v. Alabama, 161 Fed. Rep. 925; Milwaukee Ry. & Light Co. v. Milwaukee, 87 Fed. Rep. 577; Southern Pacific R. R. Co. v. Commonwealth, 78 Fed. Rep. 236; Spring Valley Water Works v. San Francisco, 124 Fed. Rep. 598; Bridge Co. v. Canada Southern Ry., 7 Ont. App. 226.

The basis of calculation should be the present value of the property and not its original cost. San Diego Land Co. v. National City, 174 U. S. 739, 757; Cotting v. Stockyards Co., 183 U. S. 79, 91; Smyth v. Ames, 169 U. S. 547; San Diego Land Co. v. Jasper, 189 U. S. 439, 442; Stanislaus County v. Irrigation Co., 192 U. S. 201, 215; Cotting v. Kansas City Stockyards Co., 82 Fed. Rep. 850, 854.

Mr. Garver: Special franchises must be included among the assets upon which the company is entitled to a return. The special franchises which are involved in the case at bar are the identical franchises which were under consideration by this court in the Special Franchise Tax Cases. Metropolitan Street Ry. Co. v. New York, 199 U. S. 1, affirming 174 N. Y. 417; Consolidated Gas Co. v. New York, 199 U. S. 53.

The law of New York controls as to nature of special franchises. Ohio Oil Co. v. Indiana, 177 U. S. 190, 205, 207; Muhlker v. Harlem R. R. Co., 197 U. S. 544; Vicksburg v. Vicksburg Water Works Co., 206 U. S. 496, 509.

In New York, special franchises are property in the fullest sense. Sixth Ave. R. Co. v. Kerr, 72 N. Y. 330; People v. O'Brien,

111 N. Y. 1, 40; Suburban Rapid Transit Co. v. New York, 128 N. Y. 510, 520; People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 532; Parker v. Elmira, C. & N. R. Co., 165 N. Y. 274; People v. Tax Commissioners, 174 N. Y. 417, 437; Matter of White Plains Commissioners, 176 N. Y. 239; Matter of Long Acre El. L. & P. Co., 188 N. Y. 361; Hatfield v. Straus, 189 N. Y. 208, 219; Coney Island &c. R. Co. v. Kennedy, 15 App. Div. 588, 592; Rochester &c. Turnpike Road Co. v. Joel, 41 App. Div. 43, 45; Wakefield v. Village of Theresa, 125 App. Div. 38.

A corporation cannot be deprived of its special franchises, except under the power of eminent domain and upon payment of their full value. Sixth Ave. R. Co. v. Kerr, 72 N. Y. 330; Matter of White Plains Commissioners, 176 N. Y. 239; Coney Island &c. R. Co. v. Kennedy, 15 App. Div. 588, 592; Spring Valley Water Works v. San Francisco, 124 Fed. Rep. 574; Monongahela Nav. Co. v. United States, 148 U. S. 312.

While the point has not been directly passed upon by this court, yet, wherever it has been referred to in the general discussion of the subject of rate regulation, it has been stated or assumed that, in fixing a rate, the value of the special franchises must be included in valuing the property of a public service corporation. Smyth v. Ames, 169 U. S. 466; Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Chicago &c. Ry. Co. v. Tompkins, 176 U. S. 167; Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368.

In addition to the fact that these franchises are regarded as "property in the highest sense," in New York there are some special considerations which would make it peculiarly flagrant for the legislature of that State to disregard them, in establishing a maximum rate for a public service corporation, and particularly for the appellee. People v. O'Brien, 111 N. Y. 1,

40.

In New York, special franchises are assessed for the purposes of taxation, under a special statute passed for that purpose. Laws 1899, Ch. 412; People v. Tax Commissioners, 174 N. Y.

417, 437. The right to capitalize special franchises has been recognized by the law of New York. Laws 1907, Ch. 429, §§ 55, 69. The capitalization of special franchises was expressly sanctioned in 1884. Laws 1884, Ch. 367.

An unconditional grant by a State constitutes a contract, which is entitled to protection under the Constitution just as fully as a grant made by an individual. Fletcher v. Peck, 6 Cranch, 87; Sinking Fund Cases, 99 U. S. 700, 719; New Orleans Water Works Co. v. Rivers, 115 U. S. 674, 681; People v. O'Brien, 111 N. Y. 1.

Good will should have been included among the assets upon the value of which the company was entitled to a return. Good will is a valuable property right, growing out of the successful establishment of a business, over and above the actual capital invested and employed in the business. Franchises Tax Cases, 174 N. Y. 417, 424; Gue v. Tidewater Canal Co., 24 How. 261; State R. R. Tax Cases, 92 U. S. 575, 606; Slater v. Slater, 175 N. Y. 143; Matter of White Plains Commissioners, 176 N. Y. 239; People v. Roberts, 154 N. Y. 101; Cleveland &c. Ry. Co. v. Backus, 154 U. S. 439; Express Company Cases, 166 U. S. 171, 185; Western Union Tel. Co. v. Gottlieb, 190 U. S. 412; Fargo v. Hart, 193 U. S. 490; San Francisco Bank v. Dodge, 197 U. S. 70.

Mr. Matthewson dealt exclusively with the facts in the cases.

By leave of court, Mr. W. Bourke Cockran, representing certain interested parties, and Mr. Nathan Matthews, representing the complainant in the case of Haverhill Gas Light Company v. Barker, pending in U. S. Circuit Court for the District of Massachusetts, filed briefs herein, as amici curiæ.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

At the outset it seems to us proper to notice the views regarding the action of the court below, which have been stated