to it, were public services, within the meaning of the bill of rights of Kentucky, then the grant of such privileges was not forbidden by the State Constitution. In New Orleans Gaslight Co. v. Louisiana, etc. Co., just decided, it is held that the supplying of gas to a city and its inhabitants by means of pipes and mains laid under its public ways, was a franchise belonging to the State, and that the services performed as the consideration for the grant of such a franchise are of a public nature. Such a business is not like that of an ordinary corporation engaged in the manufacture of articles that may be quite as indispensable to some persons as are gas-lights. The former articles may be supplied by individual effort, and with their supply the government has no such concern that it can grant an exclusive right to engage in their manufacture and sale. But as the distribution of gas in thickly populated districts is, for the reasons stated in the other case, a matter of which the public may assume control, services rendered in supplying it for public and private use constitute, in our opinion, such public services as, under the Constitution of Kentucky, authorized the legislature to grant to the defendant the exclusive privileges in question. This conclusion is justified, we think, by the decisions of the Court of Appeals of that State. In O'Hara v. Lexington & 9. R. Co., 1 Dana, 232, the point was made that an inquisition for the assessment of damages for the taking of land by a railroad corporation was void upon certain grounds, one of which was that the company's charter granted exclusive privileges, without any consideration of public services. Chief Justice Robertson, speaking for the court, said that, in the true sense of the Constitution, no exclusive privileges were granted to the corporation; observing that "if the charter be on that ground unconstitutional, it would be difficult to maintain the validity of any statute for incorporating any bridge company or any bank, or even for granting a ferry franchise." But the principles announced in Gordon v. Winchester, 12 Bush, 114, seem more directly applicable to the present case. Judge Cofer, speaking for the whole court, after observing that there were unquestionably cases in which the State may, without violating the Constitution, grant privileges to specified individuals, which from the nature of the case could not be enjoyed by all, and in respect of which the State could designate the grantee, said: "But in all such cases the person, whether natural or artificial, to whom the privilege is granted, is bound, upon accepting it, to render to the public that service the performance of which was the inducement to the grant; and it is because of such obligation to render service to the public that the legislature has power to make the grant." In illustration of this principle, he proceeds to say: "Permission to keep a tavern or a ferry, to erect a toll-bridge over a stream where it is crossed by a public highway, to build a milldam across a navigable stream, and the like, are

special privileges, and, being matters in which the public have an interest, may be granted by the legislature to individuals or corporations; but the grantee, upon accepting the grant, at once becomes bound to render that service to secure which the grant was made; and such obligation on the part of the grantee is just as necessary to the validity of a legislative grant of an exclusive privilege as a consideration, either good or valuble, is to the validity of an ordinary contract. Whenever, by accepting such privilege, the grantee becomes bound, by an express or implied undertaking, to render service to the public, such undertaking will uphold the grant, no matter how inadequate it may be; for the legislature being vested with power to make grants of that character when the public convenience demands it, the legislative judgment is conclusive, both as to the necessity for making the grant and the amount of service to be rendered, and the courts have no power to interfere, however inadequate the consideration or unreasonable the grant may appear to them to be. But when they can see that the grantee of an exclusive privilege has come under no obligation whatever to serve the public in any manner, in any way connected with the enjoyment of the grant, it is their duty to pronounce the grant void, as contravening that provision of the bill of rights which prohibits the granting of exclusive privileges, except in consideration of public services." These observations were made in a case in which it was held that a statute giving a building association the right to receive a greater rate of interest than was allowed by the general law was unconstitutional, in that it conferred exclusive privileges not in consideration of any public services to be pe formed.

In Com. v. Bacon, 13 Bush, 212, the question was as to the constitutionality of an act giving a strictly private corporation, which owed no duty tʊ the public, a monopoly of an ordinary business in which every citizen was entitled to engage upon terms of equality. Its validity was attempted to be sustained on the same principle upon which the grant of ferry privileges was upheld. But the act was held to be unconstitutional; the court, among other things, saying: "Ferries are parts of highways, and the government may perform its duty in establishing and maintaining them through the agency of private individuals or corporations, and such agencies are representatives of government, and perform for it a part of its functions. And in consideration of the service thus performed for the public, the government may prohibit altogether persons from keeping ferries and competing with those it has licensed. The establishment of public highways being a function of government, no person has a right to establish such a highway without the consent of the government; and hence, in prohibiting unlicensed persons from keeping a ferry, the goverment does not invade the right of even those who own the soil on both sides of the stream."

In the later case of Com. v. Whipps, 80 Ky. 272, where the validity of a statute of Kentucky authorizing a particular person to dispose of his property by lottery was assailed as a violation of the before-mentioned clause in the bill of rights, Pryor, J. (Chief Justice Lewis concurring), said: "This constitutional inhibition was intended to prevent the exercise of some public function, or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service; and if made to apply to the exercise of mere private rights or special privileges, it nullifies almost innumerable enactments that are to be found in our private statutes, sanctioned in many instances by every department of the State government."

The precise question here presented seems not to have been directly adjudicated by the highest court of the State. But, as the exclusive privileges granted to the Louisville Gas Company affected the rights and interests of the public generally, and related to matters of which the public might assume control, we are not prepared to say that the grant was not in consideration of public services, within the meaning of the Constitution of Kentucky. We perceive nothing in the language of that instrument, or in the decisions of the highest court of that commonwealth, that would justify us in holding that her legislature, in granting the exclusive privileges in question, exceeded its authority.

2. On behalf of the Citizens' Gaslight Company, it is contended that the charter of the Louisville Gas Company, granted January 30, 1867, and amended by the act of January 22, 1869, was at all times subject to alteration or repeal at the pleasure of the legislature. As-uming that the act of 1867 was not a prolongation of the corporate existence of the original Louisville Gas Company, but created a new corporation by the same name, it is clear that such charter was granted subject to the provisions of a general statute of Kentucky enacted on the fourteenth of February, 1856, entitled "An act reserving power to amend or repeal charters and other laws." That statute is as follows: "Section 1. That all charters and grants of or to corporations, or amendments thereof, and all other statutes, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed provided, that while privileges and franchises so granted may be changed or repealed, no amendment or repeal shall impair other rights previously vested. Sec. 2. That when any corporation shall expire or be dissolved, or its corporate rights and privileges shall cease, by reason of a repeal of its charter or otherwise, and no different provision is made by law, all its works and property, and all debts payable to it, shall be subject to the payment of debts owing by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before, for the

purpose of settlement and distribution as aforesaid. Sec. 3. That the provisions of this act shall only apply to charters and acts of incorporation to be granted hereafter; and that this act shall take effect from its passage."

The language of this statute is too plain to need interpretation. It formed a part of the charter of the new Louisville Gas Company when incorporated in 1867, and the right of the legislature, by a subsequent act, passed in 1872, to incorporate another gas company to manufacture and distribute gas in Louisville, by means of pipes laid, at its own cost, in the public ways of that city, so far from impairing the obligation of defendant's contract with the State, was authorized by its reserved power of amendment or repeal, unless it be that the act of January 22, 1869, "plainly expressed" the intent that the charter of the new Louisville Gas Company should not be subject to amendment or repeal at the mere will of the legislature. The judges of the State court all concurred in the opinion that no such intent was plainly expressed. As this question is at the very foundation of the inquiry whether the defendant had a valid contract with the State, the obligation of which has been impaired by subsequent legislation, we cannot avoid its determination. Whether an alleged contract arises from State legislation, or by agreement with the agents of a State by its authority, or by stipulations between individuals exclusively, we are obliged, upon our own judgment, and independently of the adjudication of the State court, to decide whether there exists a contract within the protection of the Constitution of the United States. Jefferson Branch Bank v. Skelly, 1 Black, 436; Wright v. Nagle, 101 U. S. 794; Railroad Co. v. Palmes, 109 U. S. 257; s. C., 3 Sup. Ct. Rep. 193. After carefully considering the grounds upon which the State court rests its conclusion, we have felt constrained to reach a different result. We are of opinion that the act of 1869 plainly expresses the intention that the company should enjoy the rights, privileges and franchises conferred by the act of 1867, as modified and extended by that of 1869, without its chaiter being subject to amendment or repeal at the will of the legislature. In ascertaining the legislative intent, we attach no consequence to the negotiations between the Louisville Gas Company and the city council of Louisville as to the provisions to be embodied in any amended charter giving the company exclusive privileges from January 1, 1869; for the words of the act of 1869 being, in our opinion, clear and unambiguous, effect must be given to them according to their ordinary signification. The clause in that act declaring that "no alteration or amendment to the charter of the gas company shall be made without the concurrence of the city council and the directors of the gas company,” plainly expresses, as we think, the intention that the company's charter should not, as provided in the statute of 1856, be amended or repealed "at the will of the legisla

ture." When the legislature declared that there shall be no alteration or amendment without the concurrence of the city council and the directors of the company, it must have intended to waive, with respect to that company, its absolute power reserved by the act of 1856, of amending or repealing charters of incorporations thereafter granted. The language used is wholly inconsistent with any other purpose than to withdraw the charter of that particular company from the operation of the act of 1856, so far as to make the right of amendment or repeal subject, not to the mere will of the legislature, but, in the first instance, to the concurrence of the city council and the directors of the gas company. If there can be no amendment or repeal without the concurrence of the city council and the directors of the company, then it cannot be said that such amendment or repeal depends entirely upon the will of the legislature, as declared in the act of 1856. It was as if the legislature had said: "As the municipal government of Louisville and the company are agreed, the latter may enjoy the rights, privileges and franchises granted by its charter for the whole term of twenty years, unless before the expiration of that period the city council and its directors concur in asking alterations or amendments, which will be made if, in the judgment of the general assembly, the public interests will be thereby promoted."

3. But it is argued that, as the defendant's charter of 1867 conferred upon it no exclusive privileges, the granting of such privileges in the act of 1869 was without consideration, and is to be deemed a mere gratuity. To this it is sufficient to answer that, apart from the public services to be performed, the obligations of the company were enlarged by the act of 1869, and its rights under that of 1867 materially lessened and burdened in the following particulars: The amended charter limited the profits of the company to twelve per cent. per annum on the par value of its stock, two per cent. of which were required to be used for extensions, and not to be capitalized except at the end of each five years, while under the original charter the only limitation upon the prices to be charged private consumers was that they should not exceed the average charges in Philadelphia, Baltimore, Cincinnati, Chicago and St. Louis; the amended charter limited the amount to be annually charged the city per lamp to $35, no matter what its actual cost was, while under the original charter the company was entitled to charge the city for the actual cost of supplying, lighting and extinguishing lamps, not, however, exceeding the average charges in the before-mentioned cities; and by the amended charter the company was required to extend its mains when its income from lights would amcunt to seven per cent. on such extensions, while under the original charter such extensions were not required unless its income therefrom would pay eight per cent. These concessions upon the part of the

company seem to be of a substantial character. and constituted a sufficient consideration to uphold the grant of exclusive privileges. If the consideration appears now to be inadequate upon a money basis, that was a matter for legislative determination, behind which the courts should not attempt to go.

4. These preliminary matters being disposed of, and without referring to some matters discussed by counsel, but not fairly arising on the pleadings or in any evidence in the cause, it is clear that. upon the main issue, this case is determined by the principles announced in New Orleans Gaslight Co. V. Louisiana Light, etc., Co.. just decided. For the reasons there stated, and which need not be repeated here, we are of opinion that the grant to the Louisville Gas Company by the act of January 22, 1869, amendatory of the act of January 30, 1867, of the exclusive privilege of erecting and establishing gas-works in the city of Louisville during the continuance of its charter, and of vending coal gas-lights, and supplying that municipality and its people with gas by means of public works-that is, by means of pipes, mains, and conduits placed in and under its streets and public ways, constituted a contract between the State and that company which was impaired by the charter of the Citizens' Gaslight Company. The charter of the latter company is therefore inoperative, in respect of these matters, until, at least, the exclusive privileges granted the Louisville Gas Company cease, according to the provisions of its charter. As the object of the plaintiff's suit was to obtain a decree enjoining the defendant from claiming and exercising the exclusive privileges so granted to it, the judgment of the Louisville Chancery Court dismissing the bill should have been affirmed by the Court of Appeals. The. judgment of the latter court, reversing that of the court of original jurisdiction, is itself reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

NOTE.-While it is settled beyond cavil that a private charter is a contract between the legislature and the corporation, within the meaning of the constitutional prohibition against State legislation impairing the obligation of contracts, it is equally a recognized principle of law that the State may reserve the right to repeal, alter, or amend the charter (in respect to corporations created thereafter), and that when this is done, a subsequent repeal, alteration, or amendment does not fall within the constitutional objection, inasmuch as that provision becomes a condition of the grant and one of the terms of the contract. 1 The importance of this reservation, from the possible results

1 Tomlinson v. Jessup, 15 Wall. 454; Miller v. State, 13 Wall. 478; Holyoke v. Lyman, 15 Wall. 500; S eiman v. Smith, 1 Black (U. S.) 587; Chincleclamouche Lumber Co. v. Comm., 100 Pa. St. 438; State v. Person, 32 N. J. L. 134; Perrin v. Oliver, 1 Minn. 202; Gardner v. Hope Ins. Co., 9 R. I. 194; Comm. v. Fayette Co. R. R., 55 Pa. St. 452; Miners' Bank v. United States, 1 Greene (lowa) 553.

of irresponsible action on the part of great corporations, began to be felt at an early day. In fact (as remarked by Chief Justice Waite, in Spring Valley Water Works v. Schottler,2 as soon as the decision in the Dartmonth College case gave the sanction of the supreme federal tribunal to the inviolability of charters, many of the States began to act on the suggestion of Mr. Justice Story in that case, and to reserve the power to alter and repeal. The right to alter and amend is said to include authority both to withdraw powers granted to the corporation and to confer new powers upon it and require their exercise. But on the other hand,"under the pretence of amending its charter, the legislature cannot compel a company to embark upon a new enterprise radically and essentially different from that contemplated in the original grant of corporate franchises."4 Where two railroads, each incorporated under a statute containing no reservation of the right to alter or repeal, are consolidated, the new corporation is amenable to the provisions of a law passed in the meantime expressly reserving that power. The power of revocation may be reserved in the constitution of the State, in force when the corporation is organized, and in that case it need not be repeated in the charter. And where several charters are contained in one act, it is enough if the power of repeal be reserved in any part of the same act, provided the language of the clause is sufficient to embrace the whole act. Of course the State is not prohibited from altering a charter, even in its most material features, if the changes are accepted and agreed to by the corporation.8 And the assent of a corporation to legislative changes in its charter may be inferred from such circumstances as would raise a similar presumption in the case of a natural person.9

And further it must be observed that this constitutional immunity from legislative interference cannot be carried so far as to relieve the corporation from the proper and reasonable control of the State, in cases where its franchises have been perverted or abused, or the rights of third persons are in danger of being compromised through its actions. "While private charters are thus protected, it is also true that corporations, like natural persons, are subject to those regulations which the State may prescribe for the good government of the community. There is no reason why corporations should not be subject to police regulations as well as natural persons.10 To the same effect are the remarks of Mr. Justice Harlan in Chicago Life Ins. Co. v. Needles. "The right of the plaintiff in error to exist as a corporation, and its authority, in that capacity, to conduct the particular business for which it was created, were granted subject to the condition that the privileges and franchises conferred upon it should not be abused, or so employed as to defeat the ends for which it was established, and that, when so abused or misemployed, they might be withdrawn or reclaimed by the State, in such way and by such modes of procedure as were consistent with law. Although no such condition is expressed in the company's charter, it is necessarily implied in every grant of corporate exisEqually implied in our judgment is

tence.

the condition that the corporation should be subject to such reasonable regulations in respect to the general conduct of its affairs as the legislature may, from time to time, prescribe, which do not materially interfere with, or obstruct the substantial enjoyment of the pri vileges of the State has granted, and serve only to secure the ends for which the corporation was created." And see Bank of the Republic v. Hamilton,12 Mobile & c. R. R. v. State, 13 Louisville &c. Co. v. Ballare.14 So a law which gives a workman, employed by a sub-contractor on a railroad, the right to recover against the corporation, applies to existing companies and is not unconstitutional.15

And "there is no implied contract between a State and a corporation that there shall be no change in the laws existing at the time of the incorporation which shall render the use of the franchise more burdensome or less lucrative, any more than there is between the State and an individual that the laws existing at the time of the acquisition of property shall remain perpetually in force." Day, J., in Rodemacher v. Railroad.16 Finally, when the legislature limits its power to impose any further duties, liabilities, or obligations on a corporation, it does not restrict its power to make enactments as to the mode, the time when, and the courts where, such liabilities shall be enforced.17 H. CAMPBELL BLACK.

12 21 Ill. 53.

13 29 Ala. 573.

142 Met. (Ky.) 165.

15 Granahan v. Railroad, 30 Mo. 546.

16 41 Iowa, 301.

17 Gowen v. Railroad, 44 Me. 141.

CRIMINAL LAW- LARCENY.

REGINA v. ASHWELL.

Court for Crown Cases Reserved. Dec. 5, 1885. The prisoner asked one K. to lend him a shilling, and K. gave him what he supposed to be a shilling, but which was in fact a sovereign. The prisoner changed the sovereign, kept the change, and when told by K. of the mistake, denied receipt of the sovereign, but afterwards admitted that he had the sovereign and had spent half the money. Held, larceny.

This case had b en twice argued, on the first occasion on the 20th of March, before five judges, who, being divided in opinion, directed it to be re-argued before all the judges, which took place on the 13th of June last, when, being still divided in opinion, they took time to consider their judgment. The case raised a highly technical point in the law of larceny. The point was shortly this, whether, if a man hands another a sovereign for a shilling, and the other seeing it in a short time, though not at the moment, keeps it, he can be convicted of stealing it. The case, which was reserved by Denman J., at the assizes at Leicester in January last, was shortly stated this, that the prisoner asked one Keogh to lend him a shilling, and Keogh put his hand in his pocket and pulled out what he believed to be a shilling, but what was in fact a sovereign, and handed it to the prisoner, who went away, and in an hour afterward

changed it and kept the change, and next day when Keogh told him of the mistake, denied the receipt of the sovereign, and gave contradictory accounts as to where he got the sovereign, but afterward admitted that he had the sovereign and had spend half the money. It was objected that there was no larceny, as there was no evidence that the prisoner, when he received the coin, knew it to be a sovereign. The jury found that the prisoner did not know it at the time, but that he discovered it "soon" afterward, and fraudulently appropriated it, knowing that the owner had not intenden to part with it.

Several of the judges before whom the case had been argued were not able to be present, and their judgments were read by others. It will be seen that seven judges were for affirming the conviction, and seven were for reversing it; and the rule of this court being that the presumption is to be in favor of the conviction-presumitur pro negantethe conviction was affirmed.

SMITH, J., delivered his judgment to the effect that it was not a case of stealing, as stealing must be a taking against the will of the owner, with a felonious intent at the time of the taking. For this he cited authorities. In the present case it seemed to him that there was no taking against the will of the owner, nor with a felonious intent, and the case he thought came within the law as laid down by the judges in Reg. v. Middleton, L. R., 2 C. C. R. 45, that the prisoner must have been aware of the mistake at the time of the taking in order to render him guilty of felony. It was not, he thought, a mere case of finding, for Keogh delivered the coin to the prisoner who took it honestly. It was a confusion of terms to suppose the finding out of the mistake some time after the taking made it like a case of finding, knowing the owner or knowing he might be found. He did not think the cases cited for the prosecution, Cartwright v. Green. 8 Ves. 405; Merry v. Green, 8 M. & W. 623, were in point. In those cases there was no intention to deliver the thing, here there was, and the prisoner was not guilty of larceny at common law. And as to his liability as bailee, it was necessary that the thing should have been delivered as a bailment, whereas here it was not, and there was no condition expressed or implied to return the coin delivered. The real obligation on the prisoner was to return 19s when he found the coin was a sovereign, but he was not bound to return the sovereign. He came, therefore, to the conclusion that the conviction ought to be quashed.

CAVE, J.'s judgment, (which was read by the Lord Chief Justice, he being unable to attend,) was to the contrary effect as to larceny at common law. It was impossible, he thought, that the prisoner, who at the moment of taking the coin was under a mistake as to what it was, could be guilty of taking it feloniously. As there was a mistake as to the coin, no property passed; and the question was as to possession, as to which he

thought the person taking the thing could not acquire possession of it until he found what it was. Here the prisoner, when he took the coin, was not aware what it was,and did not become aware of it until afterward. He was unable to reconcile the cases, and thought the law correctly laid down in Merry v. Green, 7 M. & W. 623. In his judgment a man could not be presumed to assent to the possession of a thing until he knew what it was, and here the prisoner did not assent to the possession of the coin until he knew it was a sovereign. He had consented to the responsibility of the possession only of a shilling. In this case the prisoner did not at the time of taking, render himself responsible for the possession of a sovereign, and therefore could not set up a lawful possession of it, for at the moment he knew what it was he elected fraudulently to keep it, and therefore was guilty of larceny at common law.

MATHEW, J., declared that he was of the same opinion as Smith, J., that is, that the prisoner was not guilty of larceny. There was no dishonest act in the taking, and it would not do, he thought, by a sort of fiction to refer the taking to the time of changing the sovereign. And certainly, even if that was a taking, it was not a felonious taking, for he might honestly have changed the coin, and it would only be dishonest if he meant to keep the whole. In his view there was no evidence of a felonious taking at any time; and if this conviction could be supported, then any one guilty of any dishonesty could be convicted of larceny. That was a change in the law which could only be effected by statute. He thought, therefore, that the conviction should be quashed.

STEPHEN, J., read a lengthy and elaborate judgment, in which he said, Day and Wills, JJ., concurred, to the same effect. From the earliest time, in the history of our law, larceny had been defined to be a felonious taking against the will of the owner and with the animus furandi—that is the intention to steal-at the time. For this he cited Glanville, Bracton, and the Year-books, from Edward III. to Edward IV. He especially cited Bracton defining larceny as contrectatio rei alieni fraudulenter, cum animo furandi, and he dwelt upon the case in the 13 Edw. 4, the case of the carrier, in which all the judges held that a carrier was not liable for taking the whole bulk of a package, though he would be if he "broke bulk," as it was called, that is, opened the package and took out something. So that if he took a pint of wine out of a cask he was guilty, but not if he took the whole pipe. The rule of law he had stated was established, he said, by all the authorities, and he cited 3 Coke Inst., 1 Hale's Pleas of the Crown, Hawkins' Pleas of the Crown, and Foster's Crown law. That being the rule of law, he said, here the prisoner took the coin innocently, and though he dealt with it dishonestly an hour afterward, that did not make him guilty of larceny at common law. In cases of finding, it had been laid down that there was no larceny,