by John Marshall Harlan

“ If a corporation cannot maintain such a highway and earn dividends for stockholders, it is a misfortune for it and them which the constitution does not require to be remedied by imposing unjust burdens upon the public. So that the right of the public to use the plaintiff's turnpike upon payment of such tolls as, in view of the nature and value of the service rendered by the company, are reasonable, is an element in the general inquiry whether the rates established by law are unjust and unreasonable. ”

“ Is it any less a departure from the obligations of justice to seek to take, not the title, but the use, for the public benefit, at less than its market value? * * * It is unnecessary to decide, and we do not wish to be understood as laying down, as an absolute rule, that in every case a failure to produce some profit to those who have invested their money in the building of a road is conclusive that the tariff is unjust and unreasonable. ”

“ When a corporation succeeds to the rights, powers, and capacities of another corporation, it does not thereby or necessarily become entitled to an exemption from taxation. An exemption or immunity from taxation so vitally affects the exercise of powers essential to the proper conduct of public affairs and to the support of government that immunity or exemption from taxation is never sustained inless it has been given in language clearly and unmistakably evincing a purpose to grant such immunity or exemption. ”

“ It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other of any rights of person or property. ”

“ It is as vital that the state should retain its control of tolls upon public highways as it is that it should not surrender or fetter its power of taxation. We admit there is some ground for the contention that, by the grant in the act of 1851 to each of the two corporations named in it of 'the powers, rights, and capacities' granted to the corporation of 1834, the legislature intended to exempt the new corporations, as it did the original one, from all legislation that would prevent them from earning as much as 14 per cent. ”

“ It is settled law that in grants by the public nothing passes merely by implication, and if a contract with a state, relating to the exercise of the franchises, is susceptible of two meanings, 'the one restricting and the other extending the powers of a corporation, that construction is to be adopted which works the least harm to the state.' The Binghampton Bridges, 3 Wall. ”

“ The legislature has the authority, in every case where its power has not been restrained by contract, to proceed upon the ground that the public may not rightfully be required to submit to unreasonable exactions for the use of a public highway established and maintained under legislative authority. ”

“ This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under the pretense of regulating fares and freights, the state cannot require a railroad to carry persons and property without reward. ”

“ For the reasons stated, we are of opinion that, when the act of 1890 was passed, the power of the general assembly over the subject of tolls to be exacted by the plaintiff in error was not impaired or restrained by any contract with the state in reference to the amount which the company might earn from the use of its road. ”

“ That the stockholders in said road, residing north of Williamstown, shall have power, also, to elect a separate board of directors, for the purpose of controlling and superintending that portion of the road extending from Williamstown to Covington; and each board so chosen shall exercise separate control over its own portion of the road ”

“ The general assembly of Kentucky, by an act approved May 24, 1890, made it unlawful to demand, charge, collect, or receive tolls in excess of the rates specified in that act for travel on that portion of the Covington & Lexington Turnpike Road which was then maintained. ”

“ That so much of the second section of said act to amend the charter of the Covington and Lexington Turnpike Road Company [meaning the act of 1839] as declares that the stock in said road shall continue joint and common to all the stockholders, after the completion of said road, is hereby repealed ”