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In the use of the words "without fraud," the court evidently means actual fraud participated

named in it as the beneficiary or beneficiaries, | effected without fraud directly and on their face
and that there is no power in the person pro- such policies are not fraudulent as to creditors, and
for the benefit of the wife, and payable to her;
curing the insurance, by any act of his, by deed are not touched by this decision."
or by will, to transfer to any other person the
interest of the person named. Bliss, Life Ins.
2d ed. p. 517; Glanz v. Gloeckler, 10 Ill. App.
486, per McAllister, J.; S. C. 104 Ill. 573; Wil-
burn v. Wilburn, 83 Ind. 55; Ricker v. Charter
Oak Life Ins. Co. 27 Minn. 193; Charter Oak
Life Ins. Co. v. Brant, 47 Mo. 419; Gould v.
Emerson, 99 Mass. 154; Knickerbocker Life Ins.
Co. v. Weitz, Id. 157.

This must ordinarily be so where the contract is directly with the beneficiary; in respect to policies running to the person insured, but payable to another having a direct pecuniary interest in the life insured; and where the proceeds are made to enure by positive statutory provisions.

in by all parties, and not fraud inferred from
the mere fact of insolvency; and, at all events,
in McCutcheon's Appeal, 99 Pa. 137, the court
say, referring to Elliott's Appeal:

"The policies in that case were effected in the name of the husband, and by him transferred to a trustee for his wife at a time when he was totally insolvent. They were held to be valuable choses in action, the property of the assured, liable to the payment of his debts; and hence their voluntary assignment operated in fraud of creditors, and was void as against them under the Statute of 13th in the name of the wife, and in point of fact was Elizabeth. Here, however, the policy was effected given under an agreement for the surrender of a previous policy for the same amount also issued in Mrs. Hume was confessedly a contracting the wife's name The question of good faith party to the Maryland policy; and as to the or fraud only arises in the latter case; that is, when the title of the beneficiary arises by assignment Connecticut contracts, the statute of the State When it exists by force of an original issue in the [207] where they were made and to be performed, name, or for the benefit of the beneficiary, the title explicitly provided that a policy for the benefit is good, notwithstanding the claims of creditors. There is no anomaly in this, nor any conflict of a married woman shall enure to her separate with the letter or spirit of the Statute of Elizabeth, use or that of her children; but if the annual because in such cases the policy would be at no time premium exceed three hundred dollars, the the property of the assured; and hence no question of fraud in its transfer could arise as to his credamount of such excess shall enure to the bene-itors. It is only in the case of the assignment of a policy that once belonged to the assured that the question of fraud can arise under this Act."

fit of the creditors of the person paying the
premiums.

The rights and benefits given by the laws of
Connecticut in this regard are as much part of
these contracts as if incorporated therein, not
only because they are to be taken as if entered
into there, but because there was the place of
performance, and the stipulation of the parties
was made with reference to the laws of that
place.

And see Etna Nat. Bank v. U. S. Life Ins.
Co. 24 Fed. Rep. 770; Pence v. Makepeace, 65
Ind. 345; Succession of Hearing, 26 La. Ann.
326; Stigler v. Stigler, 77 Va. 163; Thompson v.
Cundiff, 11 Bush, 567.

Conceding, then, in the case in hand, that
Hume paid the premiums out of his own
money, when insolvent, yet, as Mrs. Hume and
And if this be so as between Hume and the the children survived him, and the contracts
Connecticut companies, then he could not have covered their insurable interest, it is difficult to
at any time disposed of these policies without see upon what ground the creditors, or the ad-
the consent of the beneficiary. Nor is there ministrators as representing them, can take
anything to the contrary in the statutes or gen- away from these dependent ones that which
eral public policy of the District of Columbia. was expressly secured to them in the event of
It may very well be that a transfer by an in- the death of their natural supporter. The in-
solvent of a Connecticut policy, payable to him-terest insured was neither the debtor's nor his
self or his personal_representatives, would be
held invalid in that District, even though valid
under the laws of Connecticut, if the laws of
the District were opposed to the latter, because
the positive laws of the domicil and the forum
must prevail; but there is no such conflict of
laws in this case in respect to the power of dis-
position by a person procuring insurance pay-
able to another.

The obvious distinction between the transfer of a policy taken out by a person upon his insurable interest in his own life, and payable to himself or his legal representatives, and the obtaining of a policy by a person upon the insurable interest of his wife and children, and payable to them, has been repeatedly recognized by the courts.

Thus in Elliott's Appeal, 50 Pa. 75, where the policies were issued in the name of the husband, and payable to himself or his personal representatives, and while he was insolvent were by him transferred to trustees for his wife's benefit, the Supreme Court of Pennsylvania, while holding such transfers void as against creditors, Бау:

"We are to be understood in thus deciding this case that we do not mean to extend it to policies

creditors'. The contracts were not payable to
the debtor, or his representatives, or his cred-
itors. No fraud on the part of the wife, or the
children, or the insurance company, is pre-
tended. In no sense was there any gift or
transfer of the debtor's property, unless the
amounts paid as premiums are to be held to
constitute such gift or transfer. This seems to
have been the view of the court below, for the
decree awarded to the complainants the pre-
miums paid to the Virginia company from 1874
to 1881, inclusive, and to the other companies
from the date of the respective policies,
amounting, with interest to January 4, 1883, to
the sum of $2,696.10, which sum was directed
to be paid to Hume's administrators out of the
money which had been paid into court by the
Maryland and Connecticut Mutual companies.

But, even though Hume paid this money out
of his own funds when insolvent, and if such
payment were within the Statute of Elizabeth,
this would not give the creditors any interest in
the proceeds of the policies, which belonged to
the beneficiaries for the reasons already stated.
Were the creditors, then, entitled to recover
the premiums?

These premiums were paid by Hume to the

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insurance companies, and to recover from them conclusive, and inquiry into his motives is
would require proof that the latter participated inadmissible.
in the alleged fraudulent intent, which is not
claimed. Čases might be imagined of the pay-
ment of large premiums, out of all reasonable
proportion to the known or reputed financial
condition of the person paying, and under cir-
cumstances of grave suspicion, which might
justify the inference of fraud on creditors in
the withdrawal of such an amount from the
debtor's resources; but no element of that sort
exists here.

The premiums form no part of the proceeds of the policies, and cannot be deducted therefrom on that ground.

Mrs. Hume is not shown to have known of [210] or suspected her husband's insolvency; and if the payments were made at her instance, or with her knowledge and assent, or if, without her knowledge, she afterwards ratified the act, and claimed the benefit, as she might rightfully do (Thompson v. Am. Ins. Co. 46 N. Y. 675), and as she does (and the same remarks apply to the children), then has she thereby received money which ex æquo et bono she ought to return to her husband's creditors, and can the decree against her be sustained on that ground? If in some cases payments of premiums might be treated as gifts inhibited by the Statute of Elizabeth, can they be so treated here? It is assumed by complainants that the money paid was derived from Hume himself, and it is therefore argued that to that extent his means for payment of debts were impaired. That the payments contributed in any appreciable way to Hume's insolvency, is not contended. So far as premiums were paid in 1880 and 1881 (the payments prior to those years having been the annual sum of $196.18 on the Virginia policy), we are satisfied from the evidence that Hume received from Mrs. Pickrell, his wife's mother, for the benefit of Mrs. Hume and her family, an amount of money largely in excess of these payments, after deducting what was returned to Mrs. Pickrell, and that in paying the premiums upon procuring the policies in the Maryland and the Connecticut Mutual, Hume was appropriating to that purpose a part of the money which he considered he thus held in trust; and we think that, as between Hume's creditors and Mrs. Hume, the money placed in Hume's hands for his wife's benefit is, under the evidence, equitably as much to be accounted for to her by Hume, and so by them, as is the money paid on her account to be accounted for by her to him or them.

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But the circumstances of each particular case should be considered, as in Partridge v. Gopp, 1 Eden, 163; S. C. Amb. 596, where the Lord Keeper, while holding that debts must be paid before gifts are made, and debtors must be just before they are generous, admitted that "The fraudulent intent might be collected from the magnitude and value of the gift.'

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Where fraud is to be imputed, or the imputation of fraud repelled, by an examination into the circumstances under which a gift is made to those towards whom the donor is under nat ural obligation, the test is said, in Kipp v. Hanna, 2 Bland, 33, to be the pecuniary ability of the donor at that time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their then prospects of payment; and in considering the sufficiency of the debtor's property for the payment of debts, the probable, immediate, unavoidable, and reasonable demands for the support of the family of the donor should be taken into the account and deducted, having in mind also the nature of his business and his necessary expenses. Emerson v, Bemis, 69 Ill. 541.

This argument in the interest of creditors concedes that the debtor may rightfully preserve his family from suffering and want. It seems to us that the same public policy which justifies this, and recognizes the support of wife and children as a positive obligation in law as well as morals, should be extended to protect them from destitution after the debtor's death, by permitting him, not to accumulate a fund as a permanent provision, but to devote a moderate portion of his earnings to keep on foot a security for support already, or which could thereby be, lawfully obtained-at least to the extent of requiring that, under such circumstances, the fraudulent intent of both parties to the transaction should be made out.

And inasmuch as there is no evidence from which such intent on the part of Mrs. Hume or the insurance companies could be inferred, in our judgment none of these premiums can be recovered.

The decree is affirmed, except so far as it directs the payment to the administrators of the premiums in question and interest, and, as to that, is reversed, and the cause remanded to the court below, with directions to proceed in conformity with this opinion. Ordered accordingly.

THE GEORGIA RAILROAD AND BANKING COMPANY, Piff. in Err.,

We do not, however, dwell particularly upon this, nor pause to discuss the bearing of the laws of the States of the insurance companies upon this matter of the payment of premiums by the debtor himself, so far as they may differ from the rule which may prevail in the District of Columbia, in the absence of specific statutory JAMES M. SMITH ET AL., R. R. COMMIS

enactment upon that subject, because we prefer to place our decision upon broader grounds.

In all purely voluntary conveyances it is the fraudulent intent of the donor which vitiates. If actually insolvent, he is held to knowledge of his condition; and if the necessary consequence of his act is to hinder, delay, or defraud his creditors, within the statute, the presump; tion of the fraudulent intent is irrebuttable and

v.

SIONERS.

(See S. C. Reporter's ed. 174-182.)

Charges of a railroad company-legislative control over charter-proviso-contract-exemp tion.

prescribe the charges of a railroad company for the 1. The Legislature of the State has the power to carriage of persons and merchandise within its

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[175]

4imits, in the absence of any provision in the char-
ter of the company constituting a contract vesting
in it authority over those matters-subject to the
limitation that the carriage is not required without
reward, or upon conditions amounting to the tak-
ing of property for public use without just com-
pensation, and that what is done does not amount
to a regalation of foreign or interstate commerce.
2. Where property and employment is affected
with a public use, the business in which it is used is
subject to legislative control, in all respects neces-
sary to protect the public against danger, injustice
and oppression.

3. In the 12th section of the charter of the Georgia
Railroad and Banking Company, there is no con-
tract that it may make any charges within the limits

there designated.

4. The general purpose of a proviso is to except the clause covered by it from provisions of a statute or to qualify the operation of the statute. But it is often used as a conjunction to an independent paragraph.

5. A railroad corporation is a private corporation,
although its uses are public, and a contract em-
bodied in terms in its charter or necessarily implied
by it, is within the constitutional clause prohibit-
ing legislation impairing the obligation of con-
tracts.

6. But to effect this result the exemption must
appear by such clear and unmistakable language
that it cannot be reasonably construed consistently
with the reservation of the power by the State.
[No. 28.]

Argued Oct. 16, 17, 1888. Decided Oct. 29, 1888.

IN ERROR to the Supreme Court of the
State of Georgia, to review a judgment
sutaining a demurrer and dismissing a suit
brought to declare void an Act of the Legisla-
ture regulating railroad freight and passenger
tariffs, and to enjoin the Commission from pre-
scribing rates of fare and freight. Affirmed.

Statement by Mr. Justice Field:

By an Act of the Legislature of Georgia, passed December 21, 1833, the plaintiff in error was incorporated under the name of the Georgia Railroad Company, and empowered to construct a "rail or turnpike road from the City of Augusta," with branches extending to cer tain towns in the State, and to be carried beyond those places at the discretion of the Company. Laws of 1833, 256.

By an Act of the Legistature, passed December 18, 1835, certain amendments to the charter were made, and among others one changing its corporate name to The Georgia Railroad and Banking Company," its present designation.

or transportation of persons or property, or the
persons so taking from the Company the right
of transportation or conveyance, shall, so far
as they act on the same, be regarded as common
carriers." In pursuance of the authority con-
ferred by this section the Company, by a deed
bearing date on the 7th of May, 1881, leased
to ore William M. Wadley, for the term of 99
years, "all its privileges, general and exclusive,"
of transporting persons and property over the
lines of railroad owned and controlled by it, to
the full extent that it then enjoyed, or was en-
titled to enjoy, or might thereafter acquire,
subject to the obligations and duties imposed
by its charter. With these privileges the Com-
pany also leased to Wadley, for the same term,
all its railroads and their branches, "together
with its rights of way, roadbeds, depots, sta
tions, warehouses, elevators, workshops, wells,
cisterns, water tanks, and other appurte
"
nances. The lessee on his part covenanted to
pay the Company, as a consideration for the
lease, the sum of $600,000 annually, for the
full term of ninety-nine years, in two semi-
annual payments; also to pay the taxes on the
property and franchises; to return the property
on the termination of the lease in as good con-
dition as it was at its date; to keep the railroad
and its appurtenances and the means of trans-
portation in first class condition, and to indem-
nify the Company against any damages, losses
or liabilities in the operation of the roads.
This lessee has since died, and in the present,
case his interests were maintained in the court
below by his executor.

On the 14th of October, 1879, the Legislature
of Georgia passed an Act entitled "An Act to
Provide for the Regulation of Railroad Freight
and Passenger Tariffs in This State; to Pre-
vent Unjust Discrimination and Extortion in
the Rates Charged for Transportation of Pas-
sengers and Freight, and to Prohibit Railroad
Companies, Corporations, and Lessees in This
State from Charging Other Than Just and
Reasonable Rates, and to Punish the Same, and
Prescribe a Mode of Procedure and Rules of
Evidence in Relation Thereto, and to Appoint
Commissioners, and to Prescribe Their Powers
and Duties in Relation to the Same." Laws of
1879, 125.

In pursuance of this Act a board was con-
The twelfth section of the charter, among stituted, designated the Railroad Commission,
other things, declares that "The said Georgia composed of three members, originally consist-
Railroad Company shall, at all times, have the ing of James M. Smith, Campbell Wallace,
exclusive right of transportation or conveyance and Samuel Barnett; but to the place of
of persons, merchandise and produce, over the Samuel Barnett the defendant, Leander N.
railroad and railroads to be by them con- Trammell, hes succeeded. This commission
structed, while they see fit to exercise the ex- has prescribed rates for the transportation of
clusive right; Provided, That the charge of freight and persons by railroad companies, in
transportation or conveyance shall not exceed the State, which are less than the maximum of
fifty cents per hundred pounds, on heavy ar-rates authorized by the 12th section of the
ticles, and ten cents per cubic foot, on articles
of measurement, for every one hundred miles;
and five cents per mile for every passenger;
Provided, always, That the said Company may,
when they see fit, rent or farm out all or any
part of their exclusive right of transportation
or conveyance of persons, on the railroad or
railroads, with the privilege to any individual
or individuals, or other company, and for such
terms as may be agreed upon, subject to the
rates above mentioned. And the said Com-
pany, in the exercise of their right of carriage

charter of the Company. The Act imposes a
penalty of not less than one or more than five
thousand dollars for every violation of the rules
and regulations thus prescribed. The Com-
pany and the executor of the lessee accord-
ingly filed their bill, in the case before us, in
the Superior Court of Fulton County, Georgia,
against the Railroad Commissioners and the
Attorney-General of the State, contending,
among other things, that the charter of the
Company is a contract between it and the State
of Georgia, and that by it the Company has

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Mr. Justice Field delivered the opinion of the court:

the right to charge any rates for freight and | (27: 812); Stone v. Loan & Trust Co. 116 U. S. passengers not exceeding those limited in the 307, 347 (29: 636, 650). 12th section of its charter, and that the Act of October 14, 1879, is in conflict with the clause of the Constitution of the United States which prohibits a State from passing any Act impairing the obligation of a contract. They pray in their bill that the Act may be declared null and void, and inoperative against them, and that [177] the commission may be enjoined from prescribing rates of fare and freight over the railroad of the Company and its branches, or in any manner enforcing the provisions of the Act against them. To this bill the defendants demurred, on the ground that it disclosed no case entitling the complainants to relief in equity, and that they had an adequate and complete remedy at law. The court sustained the demurrer and dismissed the bill. On being taken to the Supreme Court of the State the decree was affirmed; and to review it the case is brought to this court by the Railroad Company.

Messrs. Ed. Baxter and Jos. B. Cumming, for plaintiff in error:

Unless an exemption is clearly established,
the Legislature is free to act as the public in-
terests may require.

Ruggles v. Ill. 108 U. S. 531 (27:815).
If there is a reasonable doubt, it must be re-
solved in favor of the existence of the power.
Stone v. Farmers Loan & Trust Co. 116 U.
S. 325 (29:642); G. W. R. Co. v. McCarthy, 29
Am. & Eng. R. R. Cas. 87; Knox v. R. Co. 5
S. C. 22; Bonham v. C. C. & A. R. Co. 13 S.
C. 267.

The whole purpose of the statute was to fix
an upward limit to railroad charges.

3 Am. & Eng. R. R. Cas. 311, 312; Ragan v. Aiken, 9 Lea, 609, 610, Platt v. Union Pac. R. Co. 99 U. S. 63, 64 (25: 429).

A carrier can, in the absence of all law,
make his rates at will but the charges should
be reasonable.

Munn v. Ill. 94 U. S. 134 (24: 87).
This rule of the common law was subject to
be changed by the statute.

Chicago, B. & Q. R. Co. v. Iowa, 94 U. S.
161, 162 (24: 95); Stone v. Loan & Trust Co.
116 U. S. 330 (29: 644).

As appears from the statement of the case,
the contention in the court below of the Com-
pany, the plaintiff in error here, so far as it
embraced any federal question, was that the
12th section of its charter constituted a grant
of a right to charge the rates therein named;
that it built its road and established its busi-
ness with this grant as a part of its charter;
and that such a grant is a contract between it
and the State of Georgia, the obligation of
which cannot be impaired by its legislation;
and this contention is renewed in this court.
The Constitution of Georgia, adopted in De-
cember, 1877, vested in the General Assembly
of the State, the designation given to its Legis-
lature, the power to regulate railroad freights
and passenger tariffs," so as to prevent unjust
discriminations and require reasonable and just
rates; and made it the duty of that body to
pass laws from time to time to accomplish this
end, and to prohibit, by adequate penalties,
the charging of other than such rates.
IV. § 2, Appendix to Code of Georgia, 1882.

Art.

Pursuant to this provision of the Constitution, the Act of October 14, 1879, was passed, providing for the appointment of three railroad [178] commissioners, and authorizing them to prescribe the rates of fare which railroad companies might charge for the carriage of persons and merchandise within the limits of the State. The Act does not extend to interstate railroad transportation. Laws of Georgia, 1878–9, 125.

After authorizing the appointment of the three commissioners by the Governor, the Act declares that any railroad company doing business in the State, after its passage, which shall charge or receive more than a fair and reasonable toll or compensation for the transportation of passengers or freight of any description, or for the use or transportation of any railroad car upon its track or branches, or upon any railroad which it has the right to use, shall be deemed guilty of extortion, and upon conviction thereof shall be subject to certain penalties prescribed.

The maximum rates were fixed in the char- The commissioners appointed are required to ter, for the express purpose of furnishing a make reasonable and just rates of freight and standard by which the disputes between ship-passenger tariffs to be observed by all railroad pers and the companies were to be settled.

Arnold v. Ga. R. & B. Co. 50 Ga. 304: Knox v. R. Co., Bonham v. C. C. & A. R. Co. and Ragan v. Aiken, supra.

Because the term "provided" is used in a law, it does not necessarily follow that the matter which may succeed it is a proviso in its technical sense.

Carroll v. State, 58 Ala. 396; Bouv. Law Dict. title, Proviso; 2 Rapalje & L. Law Dict. 1032; Stanley v. Colt, 72 U. S. 5 Wall. 166 (18:509).

Mr. Clifford Anderson, for defendants in error:

It is not to be presumed that the right of
legislative control was intended to be re-
nounced.

Barrett v. Stockton & D. R. Co. 40 Eng. C.
L. 298: Chicago, B. & Q. R. Co. v. lowa, 94 U.
S. 155 (24:94); Ruggles v. Ill. 108 U. S. 526

companies doing business in the State on their
roads, and to provide for each of the com-
panies a schedule of just and reasonable rates of
charges for the transportation of passengers and
freight; and the Act declares that in suits
brought against any of the companies, involv
ing unjust charges or discriminations, such
schedule shall be taken in the courts of the
State as sufficient evidence that the rates pre-
scribed are just and reasonable.

The commissioners are required from time
to time, and as often as circumstances may call
for it, to change and revise the schedules; and
penalties are prescribed for the enforcement of
their regulations.

The supreme court of the State held, on an application for an injunction in this case, that this delegation of authority by the Legislature to the commissioners, to prescribe what shall be reasonable and just rates for the carriage

and transportation of persons and property | the transportation of persons and freight withover railroads within its limits, was a proper in its jurisdiction has been under consideration, exercise of its own power to provide protection the question discussed has not been the original to its citizens against unjust rates for such power of the State over the subject, but whethtransportation and to prevent unjust discrimin- er that power had not been, by stipulations of ations; and that it was expected, not that the the charter, or other legislation, amounting to Legislature would itself make specific regula- a contract, surrendered to the company, or [179] tions as to what should in each case be a prop- been in some manner qualified. It is only upon er charge, but that it would simply provide the the latter point that there have been differences means by which such rates should be ascer- of opinion. tained and enforced.

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persons and merchandise over its road, a right
which in another part of the Act is limited to
thirty-six years, and then expires unless re-
newed by the Legislature upon such terms as
may be prescribed by law and accepted by the
Company. This period has long since expired,
and we are not informed that any renewal of
the privilege has been made.

The question then arises whether there is in
It has been adjudged by this court in nu- in the 12th section of the charter of the plaintiff
merous instances that the Legislature of a in error a contract that it may make any
State has the power to prescribe the charges of charges within the limits there designated.
a railroad company for the carriage of persons The first clause would seem to have been
and merchandise within its limits, in the ab- framed upon the theory, which obtained very
sence of any provision in the charter of the generally at the date of the charter, that a rail-
company constituting a contract vesting in it road was subject, like an ordinary wagon road,
authority over those matters, subject to the to the use of all persons who were able to
limitation that the carriage is not required place the necessary conveyances upon it. It
without reward, or upon conditions amounting was then generally supposed that whilst the
to the taking of property for public use with company constructing the road was the owner
out just compensation; and that what is done of the roadbed, any one could run cars upon
does not amount to a regulation of foreign it upon payment of established tolls and follow-
or interstate commerce. Stone v. Farmers ing the regulations prescribed for the manage-
Loan & Trust Co. 116 U. S. 307, 325 331 [29: ment of trains; and some charters granted at
636, 642, 644]; Dow v. Beidelman, 125 U. S. that period contained schedules of charges for
680 [31: 841]. The incorporation of the com- such use. But this notion has long since been
pany, by which numerous parties are permit- abandoned as impracticable. Lake Superior &
ted to act as a single body for the purposes of Miss. R. Co. v. U. S. 93 U. S. 442, 446-449 [23:
its creation, or, as Chief Justice Marshall ex-965, 968, 969]. The section grants to the Com-
presses it, by which "the character and prop-pany the exclusive right of transportation of
erties of individuality" are bestowed on a col-
lective and changing body of men (Providence
Bank v. Billings, 29 U. S. 4 Pet. 514, 562 [7:
939, 956); the grant to it of special privileges
to carry out the object of its incorporation, par-
ticularly the authority to exercise the State's
right of eminent domain that it may appropri-
ate needed property-a right which can be ex-
ercised only for public purposes;-and the
obligation, assumed by the acceptance of its
charter, to transport all persons and merchan-
dise, upon like conditions and upon reasonable
rates, affect the property and employment
with a public use; and where property is thus
affected the business in which it is used is sub-
ject to legislative control. So long as the use
continues the power of regulation remains; and
the regulation may extend not merely to provis-
ions for the security of passengers and freight
against accidents, and for the convenience of the
public, but also to prevent extortion by unrea-
sonable charges, and favoritism by unjust dis-
criminations. This is not a new doctrine, but
old doctrine, always asserted whenever property
or business is, by reason of special privileges re-
ceived from the Government, the better to secure
the purposes to which the property is dedicated
or devoted, affected with a public use. There
have been differences of opinion among the
judges of this court in some cases as to the cir-
cumstances or conditions under which some
kinds of property or business may be properly
held to be thus affected, as in Munn v. Illinois,
94 U. S. 113, 126, 139, 146 [24: 77, 84, 89, 91];
but none as to the doctrine that when such use
exists the business becomes subject to legislative
control in all respects necessary to protect the
public against danger, injustice and oppression.
In almost every case which has been before this
court, where the power of the State to regulate
the rates of charges of railroad companies for

The difficulty attending the construction of the clause following this one arises from the doubt attached to the meaning of the term "provided." The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them, to precede their proposed amendments with the term "provided," so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction "but" or "and" in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. Several illustrations are given by counsel of the use of the term in this sense, showing, in such cases, where an amendment has been made, though the provision following often has no relation to what precedes it.

It does not matter, in the present case, whether the term be construed as imposing a condition on the preceding exclusive grant to the Company of the privilege of transporting passengers and merchandise over its own roads, or be considered merely as a conjunction to an independent paragraph, declaring a limitation upon the charges which the Company may

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