in such act of incorporation an express limitation as to the duration of the same.'

This provision has continued in force substantially to the present time, and is now section 3 of chapter 105 of the Public Statutes.

The question thereupon at once arises whether this general law, subjecting all special charters thereafter enacted to amendment or repeal at the pleasure of the Legislature, is to be regarded as reserving to the Legislature the right to amend the provisions of section 5 of the charter of the railroad company, above quoted. There can be no doubt that as a general rule the statute above quoted, reserving to the Legislature the right to amend, alter or repeal charters, is to be regarded as being incorporated in subsequent charters, governing and limiting their provisions. On the other hand, however, it is equally certain that the Legislature may grant a charter which shall not be subject to the provisions of this general law. No Legislature can bind its successor; and it is clearly within the power of the General Court to enact a law containing an unalterable contract, notwithstanding the restraining provisions of a prior general statute like the one in question. A striking illustration of the exercise of this power is to be found in St. 1897, c. 500, relating to the Boston Elevated Railway Company.

There is much ground for the contention that the prior general law, reserving to the Legislature the right to repeal or amend all charters subsequently granted, is to be regarded as incorporated by implication into every subsequent charter, controlling it to the extent that, however absolute its provisions, they are enacted subject to the right of amendment by the Legislature. The question has been more than once discussed by the Supreme Judicial Court, but never determined; and it may be that when it becomes necessary the court may adopt the construction suggested. Should it be so held, there is nothing to prevent the Legislature from regulating rates of traffic upon the Boston & Albany Railroad, excepting certain general constitutional restrictions upon its authority, which will be hereafter considered.

Inasmuch, however, as the Honorable the House of Representatives is entitled to the opinion of the Attorney-General, however difficult or uncertain the question submitted, I am constrained to say that in my opinion the section relating to tolls and fares, above quoted, in the charter of the Boston & Worcester Railroad Company, was intended to constitute, and did constitute, a contract between the Commonwealth and the railroad company, which could not be annulled except by the waiver or consent of the com

pany. The same is true of the similar provisions in the charter of the Western Railroad Company. At the time these charters were granted, railroad transportation was in its infancy. Experience furnished no guide as to the probable profits which might accrue from such methods of transportation. The section in question was obviously a declaration by the Legislature that ten per centum upon the cost of the road should be regarded as a reasonable compensation, and the section in question so declared. It provided, upon the one hand, that from time to time rates of traffic might be regulated so as to reduce the profits of the company to ten per centum, and, on the other hand, that such regulation should not reduce profits below that figure. In consideration, therefore, of the reservation of authority to regulate fares so as to reduce profits to the percentage named, the Commonwealth agreed that it would not exercise its power of regulation so as to reduce such profits below that amount. This, being accepted by the company, clearly amounted to a contract. The fact that the estimate of reasonable and proper profits was a large one, and that consequently the bargain turned out to be an improvident one on the part of the Commonwealth, does not alter the question. Being such a contract, the State became subject to the provisions of the Constitution of the United States, that no State shall pass any law impairing the obligation of contracts.

The next inquiry is, whether this law has been amended or repealed by the consent, express or implied, of the corporation. The Revised Statutes, in chapter 39, section 83, provided substantially that the Legislature might regulate rates of toll upon any railroad, but with the proviso that such tolls should not be reduced so as to produce less than ten per centum per annum net profit to the corporation. The language of this section differs somewhat from the provisions of the charters of the railroad in question; but as, in my opinion, it could not operate to repeal the provisions of the charters, it is unnecessary to consider it further.

The provisions of the Revised Statutes remained substantially in force as the law of the Commonwealth until 1870, when in consequence of the recommendation of the Railroad Commissioners, it was provided (St. 1870, c. 325, § 1) that "any railroad corporation may establish for its sole benefit fares, tolls and charges upon all passengers and property conveyed or transported on its railroad at such rates as may be determined by the directors thereof, and may from time to time, by its directors, regulate the use of its road, provided that such rates of fares, tolls, and charges and regulations shall at all times be subject to revision and alteration by the legislature, or such officers or persons as the legislature may

appoint for the purpose, anything in the charter of such railroad corporation to the contrary notwithstanding." This section has continued in force as the law of the Commonwealth until the present time, and is incorporated in the Public Statutes as chapter 112, section 180.

This was clearly an attempt by the Legislature to repeal all charter provisions limiting the power of the Legislature to regulate rates of traffic. But, for the reasons I have already stated, I am of opinion that it was ineffectual to repeal any such limitations as amounted to a contract between the Commonwealth and a corporation, like the sections in the charters of the Boston & Worcester Railroad Company and the Western Railroad Company, relating to their right to regulate tolls, if those sections were then still in force.

I have examined with some care all the provisions of the statutes, general and special, prior to the year 1870, relating not only to the Boston & Worcester Railroad Company and to the Western Railroad Company, but to the other corporations which, by consolidation with it, became the Boston & Albany Railroad Company; and I do not find therein anything which can, in my judgment, be regarded as a waiver of the contract on the part of the railroad company. On the contrary, all the statutes so enacted appear clearly to have preserved, and to have intended to preserve, the special rights and contracts secured to it under its charter.

In my opinion, therefore, the provisions limiting the authority of the Legislature to regulate rates of traffic on the Boston & Albany Railroad Company, contained in the charters of the companies from which it was formed, remained in force and binding upon the Commonwealth until the statute of 1870.

It remains to consider whether anything has happened since that time to bring the corporation within the provisions of the laws giving to the Legislature full authority to regulate rates of traffic on railroads within its jurisdiction. There can be no doubt that the corporation may waive its right under the original charter, and subject itself to the provisions of the general laws. If it has accepted the benefit of legislation giving it important additional rights and privileges granted during the existence of general laws which are inconsistent with its original charter, the acceptance of such grants and privileges may well be deemed to be a consent that it shall be governed by such laws rather than by the terms of the original contract, entered into under different conditions and different laws.

I find that since the year 1870 many such statutes have been enacted. The most striking instance of such legislation is per

haps St. 1889, c. 163, authorizing the Boston & Albany Railroad Company to increase its capital stock by an amount not exceeding ten millions of dollars, and authorizing a capital of thirty millions of dollars in the whole. This act was accepted by the company, and its capital stock has been increased, although not to the full amount authorized by the act.

What was the effect of the acceptance of this act (and other like acts) by the company? When it was enacted, the general laws of the Commonwealth (St. 1870, c. 325, § 1, re-enacted in St. 1874, c. 372, § 179, now Pub. Sts., c. 112, § 180) gave to the Commonwealth the power to regulate rates and fares without regard to the amount of dividends to be earned upon the capital stock of railroad corporations, and declared that this right should be reserved to the Commonwealth, anything in the charter of any railroad company to the contrary notwithstanding. The corporation might have continued to stand upon its original charter and to adhere to the terms of its original contract; but when, under general laws inconsistent with its charter, it accepted a grant of additional capital, it must be taken, in my judgment, to have accepted such grant subject to the general laws applicable to the increased capital stock so granted. The charter of a railroad corporation is not merely the original act, but all the acts passed with reference to the corporation. I find no difficulty, therefore, in reaching the conclusion that, at least as to such additional stock, there existed no right to the corporation to earn upon it a ten per cent. dividend; and that, as to such additional stock, the provisions of the original charter are inapplicable.

It may be contended, however, that, even if it be conceded that stock issued under the authority of laws in force after 1870 must be taken to be subject to the general laws then in force, the rights of the original stockholders, for whose benefit the original charter was granted, are still preserved. But it is difficult if not impossible, to separate the corporation, which has accepted the benefit of general laws enacted since 1870, from its stockholders or any part of them, or to classify those stockholders so that a portion have rights that others do not have. Such a distinction is not possible. The different issues of stock have not been kept distinct. The holder of a share of the Boston & Albany Railroad stock of to-day has no way of knowing whether the share was part of the original issue or of some increase; nor would the corporation itself, if such a distinction should be attempted, have any method of determining who among its shareholders are entitled to the benefits of its original charter, and who are subject to the provisions of the general laws. It would, moreover, be unreasonable to sup

pose that it was the intention of the Legislature, or even the corporation, that there should be a distinction between increased stock, so that original stock should have the right to earn ten per cent. dividends, while as to stock authorized after the statute of 1870 the Legislature may regulate rates of traffic so that it could not earn that amount. Such a division of profits would be

impracticable.

I am of opinion, therefore, that, when the corporation accepted the benefit of statutes enacted in its favor by the Commonwealth, which were in fact amendments of original charter, it brought itself within the provisions of its general statutes in force at the time of such amendments, even though those statutes were inconsistent with its original charter.

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There are no direct adjudications by the court on this question; but in Attorney-General v. Old Colony Railroad, 160 Mass. 62, Field, C. J., in delivering the opinion of the majority of the court, says (p. 85): "In view of the many changes in the charters of nearly all the railroad corporations of the Commonwealth occurring since the year 1870, which have been accepted by the corporations, it may well raise a doubt whether these corporations have not consented to be subject to any laws which the Legislature, under its general powers, may constitutionally enact concerning fares or tolls." In the same case, Knowlton, J., delivering the opinion of the minority, says (p. 95): "By St. 1870, c. 325, § 1, .. the Legislature terminated the right of these railroad corporations to go on expending money and increasing the cost of their railroads under a contract which permitted them, without the possibility of legislative interference, to charge fares which would give them an income of ten per cent. on the cost of the road, if such a right had previously existed." These extracts, while not to be taken as determining definitely the question under discussion, may yet be said to indicate clearly the views of the court in the matter; and I have little doubt that, if the question were directly presented, the Supreme Judicial Court would have no difficulty in coming to the conclusions above indicated.

Assuming, therefore, that there are no special restraining statutes now in force, the Boston & Albany Railroad Company is subject to the general statutes (Pub. Sts., c. 112, § 180) authorizing the Legislature to fix tolls. There is no doubt of the constitutionality of the statute. The only limitation upon the power of the Legislature is that rates shall not be fixed so low as entirely to deprive the corporation of any profitable use of its property. In other words, they must be such as to permit the corporation to earn a reasonable profit. What is a reasonable profit must be