hand all corporations are subject to the same police power regulations as are individuals, to protect or promote the public safety or the public health or to promote public convenience or the general prosperity or welfare.26 In other words the only effect of a business being affected with a public interest, so far as governmental regulation is concerned, is to give the government the added power to regulate rates and probably somewhat broader powers in some other respects as to regulation than it has in the case of other corporations.27

§ 4363. — Limitations upon the power to regulate public service companies. Certain limitations upon the power to regulate even public service corporations have been well stated as follows: "But broad as is the power of regulation, the State does not enjoy the freedom of an owner. The fact that the property is devoted to a public use on certain terms does not justify the requirement that it shall be devoted to other public purposes, or to the same use on other terms, or the imposition of restrictions that are not reasonably concerned with the proper conduct of the business according to the undertaking which the carrier [or other public service company] has expressly or impliedly assumed. If it has been held out as a carrier of passengers only, it cannot be compelled to carry freight. As a carrier for hire, it cannot be required to carry persons or goods gratuitously. The case would not be altered by the assertion that the public interest demanded such carriage. The public interest cannot be invoked as a justification for demands which pass the limits of reasonable protection and seek to impose upon the carrier and its property burdens that are not incident to its engagement." 28 4364. -Grant of charter as affecting police power. It is elementary that the granting of a charter to a corporation does not

this distinction, although a corporation was not involved, People v. Steele, 231 Ill. 340, 347, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321, 83 N. 236, where theater business held a private business and a statute preventing scalping in the sale of theater tickets unconstitutional.

28 Northern Pac. R. Co. v. North Dakota, 236 U. S. 585, 59 L. Ed. 735, L. R. A. 1917 F 1148, Ann. Cas. 1916 A 1, rev'g 26 N. D. 438, 145 N. W. 135.

preclude the legislature from a proper exercise of its police power over the company.29 The right to exist as a corporation is granted by the state subject to "the condition that the corporation shall 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 privileges the State has granted, and serve only to secure the ends for which the corporation was created." 30 Of course regulations enacted as an exercise of the police power cannot in effect repeal the charter of the company and revoke its franchises, or deprive the company of any of the essential rights conferred by its charter.31

§ 4365. Grant of special franchise to use streets or contract, as affecting police power. The grant by a municipality to a public service company of the right to use streets does not divest the municipality of its police power over the grantee in relation to its use of such streets.32 Furthermore it is well settled that it is not within

29 Boston Beer Co. V. Commonwealth of Massachusetts, 97 U. S. 25, 33, 24 L. Ed. 989; Milwaukee v. Railroad Commission, 162 Wis. 127, 155 N. W. 948.

30 Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 580, 28 L. Ed. 1084.

31 Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 197, 22 Am. Rep. 71, and see chapter on Amendment and Repeal of Charter, supra.

32 United States. Minneapolis St. Ry. v. Minneapolis, 189 Fed. 445, 454.

Illinois. St. Louis, A. & T. H. R. Co. v. Belleville, 122 Ill. 376, 12 N. E. 680; Quincy v. Bull, 106 Ill. 337.

Indiana. Grand Trunk Western R. Co. v. South Bend, 174 Ind. 203, 36 L. R. A. (N. S.) 850, 91 N. E. 809, 89 N. E. 885.

Kentucky. Louisville City Ry. Co. v. Louisville, 71 Ky. 415.

Louisiana. Capdevielle v. New Orleans & S. F. R. Co., 110 La. 904, 34 So. 868.

Michigan. Detroit v. Ft. Wayne & E. Ry. Co., 90 Mich. 646, 51 N. W. 688.

Missouri. Springfield Ry. Co. v. Springfield, 85 Mo. 674. See State v. Murphy, 134 Mo. 548, 34 L. R. A. 369, 56 Am. St. Rep. 515, 35 S. W. 1132, 34 S. W. 51, 31 S. W. 784.

New Jersey. See Jersey City v. National Docks Ry. Co., 55 N. J. L. 194, 26 Atl. 145.

New York. Albany v. Watervliet Turnpike & Railroad Co., 108 N. Y. 14, 15 N. E. 370, aff'g 45 Hun 442; People v. Geneva, W., S. F. & C. L. Traction Co., 112 App. Div. 581, 98 N. Y. Supp. 719, aff'd without opinion in 186 N. Y. 516, 78 N. E. 1109; Delaware, L. & W. R. Co. v. Buffalo, 4 App. Div. 562, 38 N. Y. Supp. 510.

Pennsylvania. Pittsburgh's Appeal, 115 Pa. St. 4, 7 Atl. 778; Frankford & P. Passenger Ry. Co. v. Philadelphia, 58 Pa. 119, 98 Am. Dec. 242; Philadelphia v. Western U. Tel. Co., 11 Phila. 327; McKeesport v. Citizens' Passenger Ry. Co., 2 Pa. Super. Ct. 249.

Franchises granted by a municipal corporation to corporations to occupy the streets for purposes of street rail

the power of a municipality, in any franchise it may confer upon, or contract made with, a public utility company, to divest itself of its governmental police power, the exercise of which is necessary for the public welfare and the preservation of the public safety.33 No contract between a municipality and a public service company, nor any franchise granted by a municipality to a public service company, can deprive the municipality of its police power to enact such legislation as is necessary for the general welfare, and the proper exercise of such power cannot be attacked as an impairment of the obligation of the contract, where designed for the public safety and convenience. 34

Constitutional limitations. The police power of a state is limited by the Federal Constitution forbidding states (1) to deprive any person of life, liberty or property without due process of

law,35 or (2) to deny to any person within its jurisdiction the equal protection of the laws,36 and (3) the provision forbidding impairment of contracts.37 Thus, a regulation is invalid if it operates as a confiscation of property or constitutes an arbitrary or unreasonable infringement upon property rights. So the police power is limited by the provisions of the state constitution.

II. WHO MAY EXERCISE THE POWER

§ 4367. In general. Regulations by the government of public service corporations may be either an act of Congress, an order of the Interstate Commerce Commission, an act of the state legislature, an order of a state or city public service commission, or an ordinance or resolution of a municipal corporation.

§ 4368. Federal government-In general. The United States has no police power within the states except in so far as its power to regulate commerce is concerned and then only by regulations applicable to commerce as such without reference to state boundaries. The Constitution of the United States expressly confers upon Congress the power to regulate commerce with foreign nations and among the several states. Pursuant thereto Congress has power to regulate corporations so far as their business constitutes "commerce" "among the several states," which is usually referred to as interstate commerce. The Constitution does not define commerce, and the word "has never been given any fixed, definite or circumscribed meaning by the Supreme Court" of the United States.38 However, it has been said that "commerce among the several States comprehends traffic, intercourse, trade, navigation, communication, the transit of persons, and the transmission of messages by telegraph-indeed, every species of commercial intercourse among the several States." 39 This power of Congress to regulate commerce is not only supreme but exclusive,40 and it cannot delegate to a state or municipal corporation the power to regulate interstate commerce,41 but it is lawful to delegate certain details of regulation to the Interstate Commerce Commission.42

35 See $4397, infra.

36 See § 4403, infra.

37 See § 4394, infra.

38 United States v. Burch, 226 Fed. 974, 975.

39 Adair v. United States, 208 U. S. 161, 177, 52 L. Ed. 436, 13 Ann. Cas. 764.

If

40 Cooley v. Philadelphia Board of Wardens, Port of Philadelphia, 12 How. (U. S.) 299, 13 L. Ed. 996.

41 In re Rahrer, 140 U. S. 545, 35 L. Ed. 572.

42 Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729.

interstate and intrastate commerce are so intermingled that Congress cannot fully and effectually regulate the one without incidentally affecting the other, it may regulate domestic commerce so far as is necessary for the complete exercise of its plenary power to regulate commerce among the states.43

It follows that Congress, or the Interstate Commerce Commission. so far as power has been lawfully delegated to it, has power to regulate public service or other corporations, so far as they are engaged in interstate commerce. This power extends not only to the regulation of interstate rates, but also to the regulation of their contracts which directly relate to such commerce,45 the regulation of the purchase, sale and exchange of commodities, the regulation of communication by telegraph or telephone, including wireless telegraphy, 46 and the regulation of all agencies and instrumentalities by which such commerce is carried on.47 For instance, regulations requiring safety appliances on railroads are upheld, as within the power of the federal government, as are regulations of the hours of service of employees of railroads engaged in interstate commerce,48 regulations of the liability of the carrier for personal injuries received by employees while engaged in interstate commerce, regulations of pipe line companies transporting oil from one state to another,50 etc. So Congress has power, in an emergency arising from a nation-wide dispute over wages between railroad companies and their train operatives, involving a threatened strike, not only to establish an eighthour day, but also to prescribe a standard of minimum wages, where not confiscatory in its effects, to be in force for a reasonable time.51

Commerce Commission, 221 U. S. 612, 55 L. Ed. 878.

49 Second Employers' Liability Cases, 223 U. S. 1, 47, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Howard v. Illinois Cent. R. Co., 207 U. S. 463, 52 L. Ed. 297.

50 The Pipe Line Cases, 234 U. S. 548, 58 L. Ed. 1459.

The transportation of oil through pipe lines from one state to another is interstate commerce so as to make the business of the corporation operating such lines subject to federal regulation. Pipe Line Cases, 234 U. S. 548, 58 L. Ed. 1459, modifying 204 Fed. 798.

51 Wilson v. New, 243 U. S. 332, 61