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"Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris (1 Harg. Law Tracts, 6), 'The King has a right of franchise or privilege that no man may set up a common ferry for all passengers without a prescription time out of mind or a charter from the King. He may make a ferry for his own use or the use of his family, but not for the common use of all the King's subjects passing that way, because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under public regulation, namely, that it give attendance at due times, keep a boat in due order, and take but reasonable toll, for, if he fail in these, he is finable.""

Lord Kenyon, in Rorke v. Dayrell,' said:

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The prerogatives of the Crown are not given for the personal advantage of the King, but they are allowed to exist because they are beneficial to the subject.”

And it is said in Chitty on Prerogatives, 4:

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The splendor, rights, and power of the Crown were attached to it for the benefit of the people, and not for the private gratification of the subject."

And Lord Hale, in one of the passages referred to, in stating the reason why a man may not set up a ferry without a charter from the King, says:

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Because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation."

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The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord Hale says, could not be taken without lawful title by charter or prescription (De Portibus Maris, 77). But the King, if he maintained a public wharf, was under the same obligation as a subject to exact only reasonable tolls; nor could the King authorize unreasonable tolls to be taken by a subject. The language of Lord Hale is explicit upon both these points:

"If the King or subject have a public wharf into which all persons that come to that port must come to unload their goods, as for the purpose, because they are the wharves only licensed by the Queen, according to the statute of Elizabeth, chapter 11, or because there is no other wharf in that port, as it may fall out when a port is newly erected, in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, passage, etc. Neither can they be enhanced to an immoderate degree; but the duties must be reasonable and moderate, though settled by the King's license or charter."

In legislating upon this subject Congress has all the powers that the British Parliament, which is unrestricted by constitutional limitations, has in legislating upon any subject before that body. Congress has all the power to legislate upon this subject that the people of the several States 1 have in establishing or modifying their State constitutions over matters and things

But see the opinion of Mr. Justice Waite in Munn v. Illinois, 94 U. S. 124, to the effect that it is the State governments that have the powers of the British Parliament. That would leave the national government with less power than the States. See also Morawetz, The Power of Congress to Regulate Railway Rates, Harvard Law Review, Vol. XVIII, 572.

not inhibited by the Federal Constitution.' The limitation in Great Britain, the United States, and the States, is the same and arises out of the common law; it is not written in Great Britain, but it is the rule of law.2

§ 152. THE BASIS OF THIS POWER. The power to regulate the charges for railroad transportation rests, then, upon the following grounds:

1. Public necessity.

2. That these concerns often exercise a monopoly. 3. The fact that they have been specially franchised or chartered and so assumed obligations to the public. Said Judge Bradley, in the Sinking Fund Cases:3

"When an employment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen; in other words, when it becomes a practical monopoly to which the citizen is obliged to resort and by means of which a tribute can be exacted from the community, it is subject to regulation by the legislative power."

An investigation of the common law and the decisions of the State courts will show many occupations whose charges have been regulated, and the rule seems to be settled that once the occupation is classed a public call

McCulloch v. Maryland, 4 Wheat. 315; Stone et al. v. Farmers' Loan & Trust Co., 116 U. S. 307; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Gibbons v. Ogden, 9 Wheat. 1; United States v. Fisher (Fisher v. Bligh), 2 Cranch, 358, at p. 396; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Legal Tender Cases, 110 U. S. 436; Railroad Commission Cases, 116 U. S. 307.

Dicey, Privy Council, p. 8; Dicey, The Law of the Constitution, 26; see, however, the statement of Acworth, Hearings of Senate Committee on Interstate Commerce, May, 1905, p. 1843.

399 U. S. 700, 747.

ing, or is engaged in serving the public by reason of some power or franchise granted to it by the State, the legislature has the right to fix the price that may be charged.1

Said the Supreme Court of Illinois, in the case of Ruggles v. People: 2

"If, then, the legislature may fix the rate of charges by individuals as common carriers, warehousemen, or others exercising a calling or business public in its character, or in which the public has an interest to be protected against extortion or oppression, that body may do the same thing and fix the maximum charges of corporations exercising the same business. Of this there can, we apprehend, be no doubt."

This power of government was said by Justice Taney' to be

"inherent in every sovereignty the power to govern men and things. This is, however, not an uncontrollable, despotic power, subject to no limitations, exercisable without reason at the whim or caprice of the legislative body, but within its legitimate domain, the power is original, absolute, and indefeasible."

Lord Ellenborough said:"

"There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property or the use of it; but if, for a particular purpose, the public have a right to

1 People v. Budd, 117 N. Y. 1, S. C. 115 Am. St. Rep. 460, aff'd in 143 U. S. 517.

91 Ill. 262, 108 U. S. 525.
License Cases, 5 How. 583.
Allnut v. Inglis, 12 East, 527.

resort to his premises and make use of them and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly he must, as an equivalent, perform the duty attached to it on reasonable terms."

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§ 153. CONGRESS HAS THE SAME POWER TO FIX RATES ON INTERSTATE COMMERCE AS THE STATE LEGISLATURES HAVE OVER DOMESTIC COMMERCE. In Stone v. Farmers' Loan and Trust Company, Mr. Chief Justice Waite, delivering the opinion of the court, said:

"It is now settled in this court that a State has power to limit the amount of charges by railroad companies of the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce." 1

In this case rates were fixed by a commission. The act was approved by the Supreme Court of the United States. Not only the constitutionality of the statute, but the right to delegate the rate-making authority was presented.

In New York and New England Railroad Company v. Bristol," the court said:

1116 U. S. 307; see Railroad Co. v. Maryland, 21 Wall. 456; C. B. & Q. Railroad Co. v. Iowa, 94 U. S. 164; Winona and St. Peter Railroad Co. v. Blake, 94 U. S. 180; Ruggles v. Illinois, 108 U. S. 526-531; Hanley v. Kansas City S. Ry. Co., 187 U. S. 617. In the Schottler case, 110 U. S. 354, the municipal authorities were decided to have the right to regulate the price at which water should be sold by one who had a virtual monopoly. See also the case of Wabash R. R. Co. v. Illinois, 118 U. S. 569; Railroad Commission Cases, 116 U. S. 331.

2161 U. S. 556, 571.

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