order, that have become a part of the law of the land and are as firmly established as the original principles themselves. The case of Dartmouth College v. Woodward, though it has been attacked from almost every conceivable standpoint, is the foundation of the law in this country on the subject of State interference with charter contracts. It still stands as firmly imbedded in the laws and institutions of the country as the constitution itself. 23 Yet it has been limited and modified and explained away to such an extent as to leave but a mere shadow of its original proportions.

1. By its own language it was limited as "not being in restraint of the States in the regulation of their civil institutions, adopted for internal government," and was not to embrace "other contracts than those which respect property of some object of value."

2. This property test was afterwards abandoned by the same court and the rule placed on the distinction between public and private corporations. 24

3. It has been held not to apply to that class of powers which belongs to the State as defined in the license cases. 25

4. In another class of cases it has been

held not to apply, because it would obrogate the police power of the State, which is åbsolutely inalienable.26

5. The application of the rule was again limited in the Munn case and held not to apply to that class of corporations where the use of whose property was "affected with a public interest," which interest must be controled by the public for the public good.

6. The effect of the principles therein enunciated have been defeated by inserting in the charters or organic laws the reserved right to alter, amend or repeal.27

Applying the above limitations and restrictions of the Dartmouth College case to the qaestion under consideration and we find the legislature may pass laws regulating the charges upon railroads within its jurisdiction:

23 Ch. J. Waite, in Munn v. Illinois, supra.

24 East Hartford v. Hartford Bridge Co., 10 How. 511; Charles River Bridge v. Warran Bridge, 11 Peters 420.

25 5 How. 583.

26 Stone v. Mississippi, 101 U. S. 814.

27 This practice, now almost universal, was suggested

First. If the power to alter or amend be reserved in the charter, or in some general law existing at the time of granting the charter, or in the constitution.

Second. And whether this power be reserved or not the legislature may regulate charges of railroad corporations, because of the public nature of the business in which they are engaged.

Third. And in many of the States upon the ground that it is a legitimate exercise of the police power, which cannot be surrendered.

However, if the charter by its terms vests in the corporation the exclusive right to fix its rates for carriage then in such case the legislature is powerless to act. But there must be a deliberate purpose of the legislature to abandon the right expressed in the charter. It must be a positive grant or something which in law is equivalent. Its abandonment ough not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear.29

28

A reference to the language of some of the charters, wherein it has been held that the legislature has not divested itself of the right to regulate and control private corporations, may not be without interest in this

connection.

1. Where a charter provided: "It shall be lawful for the company hereby incorporated from time to time to fix, regulate and receive the toll and charges by them to be received for the transportation of persons and property," it was held not to give the corporation exclusive control of charges.30

2. A charter provided that a railroad company "should pay annually into the treasury of the State a tax of one-quarter of one per cent. on its capital stock," without words indicating the intent of the legislature that no further or different tax should be subsequently levied, it was held not to be a contract. 31

by Justice Story, in his opinion in that case,as a probable result of the decision.

28 Stone v. Farmers Loan and Trust Co., Sup. Court Rep. Vol VI. p. 334, 116 U. S., 307; R. R. Co. v. Maryland, 21 Wall. 456; R. R. Co. v. Iowa, 94 U. S. 155; Peik v. R. R. Co., Ibid, 164; R. R. Co. v. Blake, Ibid, 180; Ruggles v. Illinois, 108 U. S. 526.

29 Ch. J. Marshall in Bank v. Billings, 4 Pet. 560. 30 Stone v. F. L. & T. Co., supra.

31 Minot v. R. R. Co., 18 Wall. 206.

3. So, where a charter subjected a corporation "to taxation at the rate assessed by the State on other real and personal property of like value" it was held to be no waiver of taxation for other than State purposes.

4. Where a statute provided that a county seat should "be considered as permanently

established at Canfield" if the citizens should make a certain donation, which was done, and the county seat "permanently established," and afterwards by another law the county seat was changed to another locality it was claimed that the last act was in violation of an executed contract, but it was held not to be. 32

5. A charter exempted the company from taxation, and from the operation of the statute providing for alteration, amendment and repeal, but it was held not to be a contract.33

6. A corporation formed under a general law expended a large amount of money in the erection of water-works, under a statute which provided for a commission, whose duty it should be to fix water rates. A constitution subsequently adopted provided that such rates should be fixed by a different board, selected without the co-operation of the company, held not to be a contract, and the mode of fixing rates could be changed.*4 7. A charter provided that the company "should, from time to time, fix, regulate and receive tolls and charges for the

transportation of persons and property," held that the legislature retained the power to fix reasonable rates, through a commission.35

8. A charter authorized a company "to demand and receive such sum or sums of money for the transportation of persons and property as it shall deem reasonable,"

held not to be a contract.36

9. A company was authorized "to charge for the transportation of persons and produce such charges or rates as it may deem just, provided the charge for transporting oil shall in no case exceed 75 cents per barrel," held not to prohibit the legislature from pass

32 Newton v. Comm., 100 U. S. 548.

& Home of Friendless v. Rouse, 8 Wall. 430.

34 Spring Valley Water Works v. Schottler, 110 U. S.

348.

35 Stone v. Natchez R. R. Co., 62 Miss. 646.

36 Peik v. R. R. Co., 94 U. S. 164.

On the contrary, in the following instances the words of the charter were held to be contracts not subject to future modification or change by the legislature.

1. Where a statute provided, "that upon any of the banks of this State complying with the conditions of this act the faith of the State is hereby pledged not to impose any future tax or bonus," held to be a contract of exemption.39

2. Where a corporation was authorized to set off to the State six per cent. of its profits, in lieu of all taxes, it was held by a divided court to be an exemption.40

3. In a charter of a bridge company it was provided: "It shall not be lawful for any person or persons, whomsoever, to erect any other bridge or bridges over or across said river," held to be a contract.41

At common law, independent of the statute, a common carrier can charge only reasonable rates for his services. Where a charter authorizes a corporation "to fix reasonable rates" it is for the court to say whether the rates are reasonable or not,42 and in such case the legislature may fix a maximum charge. 43 If the power is to "fix, regulate and receive the toll and charges," there is no additional right given above what the company had at common law, which requires all rates to be reasonable, and in such case the legislature has a right to fix a reasonable maximum rate, beyond which all charges will be unreason

able.44

If the charter does not fix the rates,

37 R. R. Co. v. Transportation Co., 25 W. Va. 324.

38 Stone v. F. L. & T. Co., Vol. VI. Sup.Court Rep.p. 334.

39 Gordon v. Appeal Fox Court 3 How. 133.

40 Bank v. Knoop, 16 How. 369.

41 Bridge Proprietors v. Hoboken, 1 Wall. 116.

42 Campbell v. Marietta R. R. Co., 23 Ohio, 168; Smith

v. Pittsburg R. R. Co., 23 Ibid, 10.

43 Peik v. R. R. Co., 94 U. S. 164.

44 Stone v. F. L. & T. Co.,supra, citing Munn v. Illinois, and R. R. Co. v. Iowa, supra.

or specify the limits, the common law doctrine of reasonable rates is implied, and "the power to charge being coupled with the condition that the charge shall be reasonable, the State is left free to act on the subject of reasonableness within the limits of its general authority as circumstances may require. * The power of declaring what shall be deemed reasonable has not been surrendered." 45 It is only where there is an unmistakable manifestation of a purpose to place the unrestricted right in the corporation to determine rates of compensation that the power of the legislature afterwards to interfere can be denied.46

The rate legislation of the States has also been attacked of late upon the ground that it is an interference with inter-state commerce, and, therefore, invading the domain of Congressional action. But to make such legislation objectionable upon this ground it must necessarily amount to, or operate as, a regulation of business without the State as well as within.47 Even if State legislation, to some extent, encroaches upon the sphere of Congressional action, yet, until such time as Congress shall pass a general law regulating inter-state commerce, the State laws will be enforced as tending to promote general welfare. 48 State legislation must not be carried to such extent as to impose a direct burden upon inter-state commerce, or interfere directly with its freedom and thus encroach upon the exclusive power of Congress.49 Such laws are none the less objectionable to the commerce clause of the constitution, though by their terms they purport to relate only to, and are intendad to affect only, domestic affairs, for in their results they may reach beyond the local business of the State and seriously affect inter-state commerce, which would render them unconstitutional.50 Especially will this be true when Congress shall have taken action on the subject," which will probably be in the near future. 52 The guarded

45 Note 44.

46 Comrs. v. Yazoo R. R. Co., 62 Miss. 607; Comrs. v. Natchez R. R. Co., Ibid, 646.

47 Stone v. F. L. & T. Co., supra.

48 R. R. Co. v. Iowa, 94 U. S. 155; Peik v. R. R. Co., Ibid, 164.

49 Hull v. DeCuir, 95 U. S. 485.

50 Chy Lung v. Freeman, 92 U. S. 275.

51 Henderson v. Mayor, 92 U. S. 259.

52 Congress by wise and judicious legislation may do

expressions of the Supreme Court when the commerce clause of the constitution has been under consideration in connection with railway legislation, i. e. "in the absence of Congressional action," "until Congress shall have passed a uniform law upon the subject," etc., leaves the constitutionality of many of the rate laws in some doubt, until the question shall have been finally passed upon 58

This class of legislation has also been attacked as being in contravention of the Fourteenth Amendment to the constitution, and, therefore, depriving corporations of their property without due process of law. This position, however, has been determined to be untenable.54 JOHN W. SMITH. Chicago, Ill.

much toward adjusting and harmonizing the relations between the public and railway companies, so that each may work in harmony in its appropriate sphere. If on the contrary, owing to the magnitude and diversity of the interests at (stake, and the great variety of State laws in existence upon the subject, congressional action shall not be marked by wisdom and foresight, it is greatly to be feared that railroad litigation is but in its infancy.

53 As tending to throw light upon this subject. See R. R. Co. v. Husen, 95 U. S. 465; Chy Lung v. Free

man, 92 U. S. 275; Henderson v. Mayor, 92 U. S. 259.

54 Munn v. Illinois, supra; R. R. Co. v. Richmond, 96 U. S. 529; See also the some effect; Spring Valley Water Works Co. v. Schottler, 110 U. S. 354.

MUNICIPAL CORPORATION-HIGHWAYSSTREETS-LIABILITY OF CORPORATION FOR INJURIES CAUSED BY NEGLIGENCE OF ABUTTING PROPRIETORS.

LANGAN V. CITY OF ATCHISON.

Supreme Court of Kansas, May 7, 1886.

Where a person, passing along the sidewalk of a much traveled street, in a city of the first class, is injured by the falling of a bill or show board, blown down by a strong wind, which bill or show board was negligently and imperfectly constructed on private property, but was partly supported by studding or uprights nailed to the sidewalk, and was so near to and adjoining the sidewalk as to be dangerously contiguous thereto, and the officers of the city knew, before the falling of the bill or show board, that it was not put up in a safe and proper manner, and that it was so insecure as to endanger persons passing on the street. Held, The city will be liable in damages therefor, if the person [so injured used ordinary care and prudence to avoid the danger.

Messrs. Jackson & Royse, attorneys for plaintiff in error; John C. Tomlinson, Esq., and W. R. Smith, Esq., attorneys for defendant in error.

HORTON, C. J., delivered the opinion of the court:

The plaintiff, passing along the south side of Commercial street, near Sixth street, in Atchison, was injured by a bill or show board which, having been placed on a lot adjoining the south side of the sidewalk, had been blown down by a strong wind and fell upon him. Upon the trial, a demurrer to plaintiff's evidence was sustained, the jury discharged, and judgment rendered for the defendant. A motion for a new trial was made by the plaintiff and overruled.

The record is before us for review, and the question presented is as to the liability of the city of Atchison to the plaintiff, if he was without fault, for the injuries inflicted upon him, as disclosed in the evidence. The show or bill board, extending east and west upon Commercial street thirty-six feet, and twelve feet high, stood upon an old foundation from which a building had been burned, and was built on private property close to and adjoining the south side of the sidewalk of the street. At the back of the structure were braces, and these were nailed to stakes driven into the ground, covered with bricks and ashes where the building had been burned. The braces were nailed against the stakes, and the stakes were three or four feet lower than the bottom of the bill board. To further support the structure, there were several places or notches cut in the sidewalk about three inches in size, and studding slipped in and nailed. Some of the witnesses testified that uprights assisted to support the structure and were spiked into the stringers of the sidewalk; and others, that parts of the structure were actually upon the south edge of the sidewalk. There was evidence introduced tending to show that the structure was negligently and imperfectly constructed, and that before,and at the time of its fall, it was in such a weak and insecure condition as to be unsafe for persons passing in front upon the sidewalk. There was also evidence tending to show that the officers of the city knew the structure was not put up in a safe and proper manner, and that before its fall it was in a condition to endanger persons passing on the sidewalk.

The contention on the part of counsel for the city is that the bill board was private property, on private property, and used for private purposes only; and that if it were in close proximity to,or even upon the edge of the sidewalk, the city would not be liable for injuries resulting from its negligent construction or its unsafe condition at the time of its fall.

We do not concur with this view. The decisions in this State are numerous, that cities having the powers ordinarily conferred upon them respecting streets and sidewalks within their limits, owe to the public the duty of keeping them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for injuries resulting from the neglect to perform this duty. Jansen v. City of Atchison, 16 Kas. 358, and cases there cited; City of Salina v. Trosper, 27 Kas. 544.

The injury occurred to plaintiff in September, 1881; at the time Atchison was, as now, a city of the first class. Under chap. 37, Session Laws of 1881, entitled "An act to incorporate and regulate cities of the first class, etc.," among other things, the following duties and powers of the mayor and council of such cities are stated:

"To adopt all such measures as they may deem necessary for the protection of strangers and the traveling public, in person or property." Art. 3, sec. 11, sub-div. 7.

"To make regulations *

to prevent and remove nuisances." Art. 3, sec. 11, sub-div. 11. "To compel owners of property adjacent to walks and ways, where dangerous, to erect and maintain railings, safe guards and barriers along the same." Art. 3, sec. 11, sub-div. 15.

"To enter into and examine all dwelling-houses, lots, yards, enclosures and buildings of every description and other places, in order to ascertain whether any of them are in a dangerous state, and to take down or remove buildings, walls and superstructures that may become insecure or dangerous, and to require the owner of insecure and dangerous buildings, walls, and other erections to remove or render the same secure and safe, at the cost of the owner or owners of such property." Art. 3, sec. 11, sub-div. 18.

"To require and regulate the planting and protection of shade trees in the streets and on public grounds of the city; the building of bulk-heads, cellar and basement-ways, stair-ways, railings, window and door-ways, awnings, hitching-posts and rails, lamp-posts, awning posts, and all other structures projecting upon or over or adjoining the street or sidewalk, and all excavations through and under the sidewalks of the city." Art. 3, sec. 11, sub-div. 27.

"To cause to be constructed all sidewalks, determine the material, plans and specifications of the same, and to levy and collect special taxes for the payment thereof." Art. 3, sec. 11, sub-div. 43.

"To compel owners or occupants of real property to keep in good order and proper place any of the improvements of any sidewalks, gutters, and also to clean and remove from sidewalks and gutters ice, snow, or other substances." Art. 3,

sec. 26.

ence.

Under the powers conferred upon the corporate authorities of citizens of the first class by the provisions quoted, and other provisions of the statute, it is their duty to keep the streets and sidewaks in such a condition that persons passing over or along them may do so with safety and conveniIt is also the duty of the mayor as the ex-' ecutive officer of the city, to see that all laws and ordinances are enforced, and that all subordinate officers perform their duties. That the streets and sidewalks may be in a reasonably safe condition, it is the duty of the corporate authorities to remove or abate any nuisance from the streets or sidewalks. We think, in this case, that the city,

especially under its power to prevent and remove nuisances and to regulate all structures projecting upon or over, or adjoining the street or sidewalk, was bound to remove or protect the sidewalk from the imperfectly constructed and insecure bill board standing so near the sidewalk as to fall upon it. It was so close to or upon the edge of the sidewalk that it could not fall in that direction without falling upon it. Having failed to take the necessary steps to remove the bill board, or to protect the sidewalk therefrom, the city is liable for the damages caused by the falling of the board upon any person passing in front thereof along the sidewalk, if such person was injured without fault on his part. We do not think it is very material whether the bill board was so close to and adjoining the sidewalk as to be dangerously contiguous thereto, or was actually supported by braces or uprights resting upon the south edge of the walk. The liability of the city would be the same in either case. Grove v. City of Ft. Wayne, 45 Ind. 429; Parker v. Mayor, etc. of Macon, 39 Ga. 725; Duffy v. City of Dubuque, 18 N. W. Rep. 900; 2 Dillon on Municipal Corporations, secs. 789, 794, 795; Jones v. New Haven, 34 Conn. 1; Kiley v. City of Kansas, 69 Mo. 102; Wood on Nuisances, sec. 744; Bassett v. City of St. Joseph, 53 Mo. 290. As announcing a contrary doctrine, we are referred by counsel of the city of Atchison, with apparently great confidence, to the cases of Taylor v. Peckham, 8 R. I. 349; Hickson v. Lowell, 79 Mass. 59; Jones v. Boston, 104 Mass. 75.

In Taylor v. Peckham, the town officials had not the same authority to enter upon or control the uses of property adjoining the street or highway as have the officials of cities of the first class in this State, and in that case the alleged liability was one created by statute alone; and it was decided that the courts could not enlarge the liability beyond the scope and intention of the statute. In Hickson v. Lowell, the statute relating to the liability of towns was construed, and it was held that a town has discharged its duty under the statute, when it has made the surface of the ground over which the traveler passes sufficiently smooth, level and guarded by railings to enable him to travel with safety and convenience, by the exercise of ordinary care on his part; and, therefore, that an injury resulting to a person on a sidewalk, by the falling of an overhanging mass of snow and ice from the roof of a building now owned by the city, did not constitute a defect or want of repair in the way or street for which the town would be responsible.

The decision in Jones v. Boston followed Hickson v. Lowell, and the court there held that an insecure sign suspended over the sidewalk on an iron rod fastened to a building was of the same character as overhanging ice. These, and other like decisions, cannot be held as controlling under the statutes of our State, and the general principles of law which have already been announced by this court as to the liability of cities concern

ing streets and sidewalks. However, in Drake v. Lowell, 13 Metcalf, 292, and Day v. Milford, 5 Allen, 98, the city of Lowell in the one case, and the town of Milford in the other, were held liable for the injuries received by reason of defective awnings projecting over and across sidewalks, and the decisions do not appear to have been made upon the ground that the awnings, or posts upon which they were supported, were of themselves obstructions in the street; but those decisions are put exclusively on the ground of the insufficient strength or defective condition of the awnings, whereby persons passing upon the sidewalks were exposed to danger.

The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed.

And

NOTE-By the common law of England the charge of repairing highways lay upon the inhabitants of the parish of common right,and could rest upon other corporations of individuals only by tenure or prescription.11 Gray, C. J., in Hill V. Boston, 122 Mass., p. 346, cites from Brooke's Abridg.: "Common highway is out of repair, so that I mire my horse, and shall be reformed by presentment." the case might at first sight be supposed to be but a statement of the general rule, that a public nuisance can be prosecuted by an indictment only, and not by private action, and it was so treated in some of the year books. "But it has been uniformly understood in modern times as showing that it was because the highway ought to be repaired by the public, that the common law did not make an injury, arising from neglect to repair, a subject of private action but only of indictment by the government."3 No action lies at common law against a town for damages sustained through the defect of a highway in such town, unless given by the statute. The reason assigned in some of the cases is that there are no funds. But this does not hold good as to regular corporations. And it makes no difference with the above rule that the town is quasi-corporate and has a fund, and they are obliged to repair. Nor is a city liable except by statute. The

1 Austin's Case, 1 Ventr. 183 189; Com. Dig. Chimin, A 4; Bac. Abridg. Highways, E; 13 Rep. [ed. 1826] 33, note B.

2 Quod. note per Heidon, 5 E. IV. 3; Bro. Ab. Accion sur le Case, Pl. 93; See 5 E. IV 2 pl. 24.

3 Russell v. Men of Devon, 2 T. R., 667; McKinnon v. Parson, 8 Exch. 319, 321; Gibson v. Mayor. T. R. 5 Q, B. 218 222; Bartlett v. Croner, 17 Johns. 439 454; Freehold ers v. Strader, 3 Harrison, 108 121; Weet v. Brockport, 16 N Y. 161; See Thomas v. Sorrell, Vaugh. 330 340; See also Bro. Ab. Nuisance, pl. 29; William's Case, 5 Rep. 72 b. 739; Moore, 180 pl. 321.

4 Mower v. Leicester, 9 Mass. 247; White v. Phillipston, 10 Met. 108 110; Sawyer v. Northfield, 8 Cush. 490 494; Bigelow v. Randolph, 14 Gray 541 543; Adams v. Wescasset Bank, 1 Greenl. 361 364; Reed v. Belfast, 20 Me. 246 248; Farnum v. Concord, 2 N. H. 392; Hyde v. Jamaica, 27 Vt. 443 457; Young v. Yarmouth, 9 Cush. 386; State v. Burlington, 36 Vt. 521 524; Chidsey v. Canton, 17 Conn. 475 478; Taylor v. Peckham, 8 R. I. 349; Ekenberry v. Bazaar, 22 Kan. 556; Frazer v. Lewiston, 76 Mo. 531.

5 Riddle v. Prop. &c. Merrimac River, 7 Mass. 187. 6 Mower v. Leicester, Supra. See Com. v. Martin, 4 Mich. 557; Cooley v. Freeholders, Dutcher 415; Hedges v. Madison, 1 Gilman 567; White v. Bond, 58 Ill. 297; Waltham v. Kemper,55 II!. 346; Bushnell v. Siention,57 Ill. 35 7 Hill v. Boston, supra; Brady v. Lowell, 3 Cush. 121; Harwood v. Lowell, 4 Cush. 310; Hixon v. Lowell, 13