toll lawfully taken." The canal company, it was further remarked, is not the absolute owner of the works; it has no rights of property except those derived from the provisions of the charter, and holds its property only for the purposes for which it was created. And, in answer to the second question, it was held, that the company had not a right to refuse permission for passengers to pass through the canal. On the contrary, any one had a right to navigate the canal for the transportation of passengers, with passenger-boats, without paying any toll on the passengers on board, upon his paying, or offering to pay, the toll prescribed by law upon the commodities on board, or the toll prescribed by law upon a vessel or boat, when it was empty of commodities. For the word "empty," it was said, as used in the charter, must be interpreted in the light of its context; and, as the law was speaking of cargo, and of cargo only, and not of persons or passengers, looking at its connections, that word evidently meant without cargo. And inasmuch as by the charter every vessel suited to the navigation of the canal, was authorized to pass through, upon the payment of the toll imposed by law, and there being none imposed by law on persons or passengers, nor any distinction in the charter between vessels with or without passengers, there was no reason why the canal, contrary to usage, should be limited to a highway solely for the transportation of merchandise.1

4. Travel upon Railroads.

370. Public railroads, like turnpike roads and canals, are

1 Perrine v. Chesapeake and Delaware Canal Co. 9 How. (U. S.) R. 172. Though a canal company is forbidden by its act of incorporation from charging a higher rate of tolls than is specified in the act, this does not prevent it from entering into a special agreement to charge a less rate. Delaware and Hudson Canal Co. v. The Pennsylvania Coal Co. 21 Penn. (9 Harris,) R. 131. When a boat is induced by the canal company to enter the canal, in the expectation that, for a fair compensation, it shall have a passage through, the law implies an agreement on the part of the company, that the boat shall get through in a reasonable time. Muir v. Canal Co. 8 Dana, (Ky.) R. 161.

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the creatures of statutes; and, as with turnpike roads and canals, the rights and duties of their proprietors and of the public, flow directly from these statutes, and from the mutual relations thereby created between them. They are open to the travel of the entire public, upon the payment of the prescribed rate or toll; and, as in the case of turnpike roads and canals, if there be any ambiguity in the language of the acts, by which the right to the rate or toll is granted, that construction is to be adopted which is most favorable to the public, as against the grantee. The public, however, while entitled without distinction to travel upon railroads, are entitled to do so only in a particular manner, in vehicles controlled and managed by the company, and of the control and management of which, it would seem, the company are not allowed to divest themselves, even for the purpose of giving them up to another company.3

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§ 371. The Power of Railroad Corporations to adopt Rules and Regulations. The relation which a railroad company holds to the public, is that of a common carrier; and, as such, independently of express statute authority, they are entitled and

1 Ante, § 18. With reference to the legal obligation of railway companies to transport upon their roads property and passengers at a reasonable expense, Chancellor Walworth, in Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, Ch. Rep. 45, says: "The privilege of making a road and taking tolls thereon, is a franchise as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same. The public have an interest in the use of the railroad, and the owners may be prosecuted for the damage sustained, if they should refuse to transport an individual, or his property, without any reasonable excuse, upon being paid the usual rate of fare. The legislature may, from time to time, regulate the use of the franchise of railway companies, and limit the amount of toll which they may take, in the same manner as they may regulate the toll to be taken at a ferry, or for grinding at a mill, unless a legislative contract with the company intervenes." Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, Ch. Rep. 45.

2 Barrett v. Stockton and Darlington Railway Co. 2 M. & Gr. R. 134; 2 Scott, N. R. 337, affirmed in Exchequer Chamber, 3 Scott, N. R. 803; 2 Railway Cases, 467, affirming judgment of C. P. 2 Ib. 443; Parker v. Great Western Railway Co. 7 Scott, N. R. 835; ante, § 368.

3 Beman v. Rufford, 6 Eng. Law and Eq. R. 106.

bound to adopt and enforce reasonable and suitable regulations in reference to the use of their road, as well for the good of the public as their own; and this right and duty extend not only to the regulation of their cars and of the passengers in transit, but likewise to the use of the houses and buildings connected with the road. This authority, it has been remarked, is incident to the ownership of such houses and buildings, and to the employment of the company as passengercarriers; and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment; and also such as are necessary and proper to ensure the safety and promote the comfort of passengers. The reasonableness of such regulations, must in some measure be judged of with reference to the particular depot at which they are adopted. Regulations may be proper and necessary at one of the termini of the road, where there is usually a great throng of passengers and other persons connected with the business of the road, which would not be required at a waystation, where few persons enter or leave the cars, and where they stop but a few moments. The duty of a railroad company has been compared, in this respect, to that of an innkeeper, whose premises are open to all guests, and who is not only empowered, but bound, so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and who, of course, has a right, and is bound to exclude from his premises, all disorderly persons, and all persons not conforming to regulations necessary and proper to secure such quiet and good order.2 These regulations, being such as the company have the power to make, in virtue of their ownership of the depot

"1

1 Per Shaw, Ch. J., in Commonwealth v. Power, 7 Met. (Mass.) R. 596. 2 Markham v. Brown, 8 N. Hamp. R. 523.

buildings, and of their employment as carriers of passengers, are not necessary to be made in the form of by-laws, to be carried into effect by penalties and prosecutions. They may make them as an individual carrier might make them, and may delegate to their superintendent authority to make them, and, by himself and his assistants, to enforce their observance. Accordingly, it has been held, where the entrance of innkeepers or their servants into a railroad depot, to solicit passengers to go to their inns, is an annoyance to passengers, or a hindrance and interruption to the railroad officers in the performance of their duties, the superintendent of the depot may make a regulation to prevent persons from going into the depot for such purpose; and if, after notice of the regulation, they refuse to comply with it, he and his assistants may forcibly remove them, using no more force than is necessary for that purpose. And, even if such a person has a ticket, and enters with the bona fide intention of taking passage in the cars, unless he exhibits his ticket, or discloses his intention, he may be justifiably removed by the superintendent.' But the mere opinion of the superintendent, that a person has violated the regulations of the road, without proof of the fact, or the fact that he has conducted himself offensively towards the superintendent, will not alone justify his forcible removal.2

1 Commonwealth v. Power, supra.

2 Hull v. Power, 12 Met. (Mass.) R. 482; and see Barker v. The Midland Railway Co. 18 Com. B. R. 46, and 5 Am. Law Reg. 57. This was an action by the plaintiff, an omnibus proprietor, who carried passengers and their luggage for hire, to and from a railway station of the defendants, for a refusal by the defendants' servant to allow him to drive his vehicle into the station-yard. There were demurrers and cross-demurrers raised by the pleadings, and the Court decided in favor of the defendants, on the ground, that no duty was shown on the defendants' part, to permit the plaintiff to come upon their land. Where the superintendent exceeds his power, in such case, it seems that he alone is liable, and that the company will not be held responsible, unless it authorizes or commands the acts complained of, or subsequently ratifies them. The Eastern Counties Railroad Co. v. Broom, 3 Eng. Law and Eq. R. 406; Roe v. The Birkenhead, &c. Railroad Co. 7 Ib. 546.

§ 372. The rules and regulations which the proprietors of railroads may adopt, it has been said, in another case, "have no limits, except that they must be reasonable, lawful, and within the limits of the charter. And these regulations may be adopted by the board of directors, in the form of by-laws or resolutions, under their corporate seals, or by any officer or agent having charge of any particular branch of their business, in relation to the business committed to his charge. In this manner, the company, or its officers, may regulate the number of trains to be run daily, the time of departure, the rate of speed, the quantity and kind of loading for each car, the mode and time of receiving freight, giving receipts, issuing tickets, taking fare, &c. And they may, in like manner, establish trains exclusively for passengers, and exclusively for freight, or mix and divide them as they see fit." And, in this case, it was held, that the railroad company were justified in refusing to carry a passenger, who tendered a proper pass, if his object, in using the road, was to violate one of the rules of the road, which excluded freight or "express matter" from the passenger train, or if they had good reason to believe that he was going out with that purpose, and he did not disclaim it.1

§ 373. The law, as laid down by Mr. Justice Story, in Jencks v. Coleman,2 in reference to steamboats, is, without doubt, equally applicable to railroads, unless it be varied by statute. "The right of passengers," he remarked, "to a passage on board of a steamboat, is not an unlimited right, but is subject to such reasonable regulations as the proprietors may prescribe, for the due accommodation of passengers, and for the arrangements of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to admit pas

1 Menihew v. The Milwaukie and Mississippi Railroad Co. 5 Am. Law Reg. 364. 2 Jencks v. Coleman, 2 Sum. (Cir. Ct.) R. 221.