State v. Noyes , 47 Me. 189 ( 1859 )

The opinion of the Court was drawn up by

Tenney, C. J.

It is charged in the complaint, that, on January 10, 1859, the defendant was superintendent of the Penobscot and Kennebec railroad, which said railroad was then and there located and situated by authority of law, and in Fairfield crossed the railroad of the Somerset and Kennebec Railroad Company, a corporation established by-the laws of the State, &c., and that, at the time stated, the passenger trains on said railroads were both due at the point of crossing the same in said Fairfield, at the same hour, to wit, at five o’clock in the afternoon; and the passenger trains of the Penobscot and Kennebec Railroad Company arrived at said crossing before the passenger train of the Somerset and Kennebec Railroad Company arrived at said crossing, and the former train did not then and there wait at the station near said crossing until the arrival of the passenger train of the latter company, which train last named did then and there arrive at said crossing, within twenty minutes after the arrival of the said passenger train on the Portland and Kennebec railroad; contrary to the form of the statute, &c.

The defendant files a special plea, in which he recites the charter of the Penobscot and Kennebec Railroad Company, and the subsequent Acts, passed by the Legislature, in addition to the same; also the Act authorizing the lease of this road to the Androscoggin and Kennebec Railroad Company; together with the lease in pursuance of the provisions of the last named Act, alleging that they all were accepted, before the passage of the Act under which the complaint was made, and that there has been a compliance with all the requirements of the same. The plea also recites the 8th section of an Act, entitled “ an Act to provide for certain railroad connections for- the European and North American Railroad Company,” approved March 29, 1853, and the charter of the Androscoggin and Kennebec Railroad Company. And it is alleged in said plea, that although true it is, as set forth in the complaint, that the Somerset and Kennebec railroad, and the Penobscot and Kennebec railroad, did, on the 10th day of January, A. D., 1859, cross each other on the same level at Fairfield, but did not connect with each other. And it is alleged, that the Act of the Legislature, passed on March 26, 1858, if enforced in manner sought in said complaint and prosecution, is an infringement of the rights, powers, privileges and franchises granted in and by said Act of incorporation of said Penobscot and Kennebec Railroad Company, and said Act last named is contrary and repugnant to the 10th section and first article of the Constitution of the United States and contrary to the Constitution of the State of Maine, and is void. To this plea the government filed a general demurrer.

From the facts alleged in the plea, and confessed by the demurrer, it does not appear that the Somerset and Kennebec Railroad Company sustain any relation to the Penobscot and Kennebec Railroad Company, excepting that they crossed each other, and this by necessity, from the fact'that one terminus of the first named road is on a different side of the road last named from the other. And it may not be improper to remark that no other relation has been suggested ¿in argument.

The charter of the Penobscot and Kennebec Railroad Company provides, in section 1, “ that the company shall have and enjoy all proper remedies at law and in equity to secure and protect them in the exercise and use of the rights and privileges, and in the performance of the duties, hereinafter granted and required, and to prevent all invasion thereof, or interruption in exercising and performing the same, and said corporation shall be, and hereby are invested with all the powers, privileges and immunities, which are or may be necessary to carry into effect the purposes and objects of this Act, as hereinafter set forth.”

By section 4, the coi-poration shall have power to “ ordain and establish all necessary by-laws and regulations, consistent with the constitution and laws of the State, for their own government, and for the due and orderly conducting of their affairs, and the management of their property.”

Section 5 provides, that “the president and directors for the time being are authorized and empowered, by themselves or their agents, to exercise all the powers herein granted to the corporation, for the purpose of locating, constructing and completing said railroad, and for the transportation of persons, goods and property of all descriptions, and all such power and authority for the management of the affairs of the corporation, as may be necessary and proper to carry into effect the objects of this grant.”

By section 6, “a toll is granted and established for the sole benefit of said corporation, upon all passengers and property of all descriptions, which may be conveyed or transported by them upon said road, at such rate as may be agreed upon, and established from time to time by the directors of said corporation. The transportation of persons and property, the construction - of wheels, the forms of cars and carriages; the weight of loads, and all other matters and things in relation to said roads, shall be in conformity with such rules and; regulations and provisions, as the directors shall from time to time prescribe and direct.”

By section 12, “ the corporation, after they shall commence the receiving of tolls, shall be bound at all times, to have said railroad in good repair, and a sufficient number of suitable engines, carriages and vehicles, for the transportation of persons and articles, and be obliged to receive, at “all proper times and places, and convey the same, when the appropriate tolls therefor shall be paid or tendered,” &c.

By section 17, “ the Legislature shall, at all times, have the right to inquire into the doings of the corporation, and into the manner in which the privileges and franchises, herein and hereby granted, may have been used and employed by said corporation; and to correct and prevent all abuses of the same; and to pass any laws, imposing fines and penalties upon said corporation, which may be necessary more effectually to compel a compliance with the provisions, liabilities and duties herein before set forth and enjoined, but not to impose any other or further duties, liabilities or obligations. And this charter shall not be revoked, annulled, altered, limited or restrained, without consent of the corporation, except by due process of law.”

Of the statute approved by the Governor, March the 26 th, 1858, the 5th and 6th sections are as follows: — “When railroads cross each other, and passenger trains are due at such points of crossing at the same hour, it shall be the duty of the train first arriving to wait, at the station near such crossing, until the train upon the other road shall arrive; —provided, it shall so arrive in twenty minutes; and each train shall afford sufficient opportunity for such passengers as desire it, (with their baggage,) to be changed to, and transported on the other train.” Whenever the-provisions of section 5 shall be violated, “the superintendent of the road and the conductor and engineer of the train, so transgressing, shall each be subject to a fine, to the use of the State, of not less than ten dollars, nor more than fifty dollars for each offence, to be recovered on complaint, before any justice of the peace, or on indictment in tbe county where such violation shall occur.”

It is not doubted that, in (granting the charter of the Penobscot and Kennebec Railroad Company, the Legislature had in view public improvement and benefit. It was upon this ground alone, that the company was allowed to take private property in the construction of the road, on paying a just compensation. Without such adjudication by the Legisture, that the road was supposed to be what public necessity and convenience required, made in some mode, express or implied, no basis would exist for such provisions. And this judgment, touching the question, which must have been presented to the Legislature, was conclusive.

The work, contemplated by the Act, was of great magnitude, requiring the expenditure of large sums of money, before it could be put into the operation designed; and, whether the enterprise would be attended with a remunerating return for the outlay was a question upon which unanimity of opinion could hardly be expected. Hence it could not be assumed that capital would be thus employed, without some guaranty was given in the charter, that no modification thereof should take place so that the privileges granted should be less valuable. Hence, after providing what was deemed important for the public good, the rights, before mentioned, were secured to the company, and the power of alteration on the part of the Legislature, by which new duties, liabilities and obligations; or by which the charter should be revoked, annulled, altered, limited or restrained, without consent of the company, excepting by due process of law, was expressly inhibited. The right was conferred, so that' the directors of the company, in the matters enumerated, should prescribe rules and regulations according to their own judgment, without any interference of the Legislature, unless the company should in some way abuse the privileges granted. And, in determining whether they had been so abused, the power to judge is not left with the department of the government which conferred the privileges, but, according to the Act of incorporation itself, as before stated, “ by due process of law though the Legislature might provide, by general legislation, fines and penalties for abuses, and modes in which they might be imposed; but, whether abuses of the privileges granted had taken place, in given cases, is exclusively with another department of the government to find. Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339.

The company being thus secured in its independence of the Legislature, and having the right-by its directors to establish a toll, for the sole benefit of the corporation, upon all passengers and property of all descriptions, which might be conveyed and transported by them on the road, it was induced to construct the road and put it into operation, as the consideration of the grant in the charter. The Act of the Legislature thus became a contract between the government, acting in its sovereign capacity, with the company, founded on the mutual considerations moving from one party to the other. This contract is to be construed by the tribunal established for such purposes generally, on the same principles which are to be applied to contracts between private individuals; and, in both classes, the great question presented is, what was the intention of the parties ? And the answer to this question, and -the construction to be given to all such contracts, generally, is the appropriate and exclusive business of the judicial department.

The Act of incorporation was not only a contract between the Legislature and the company, but it was a private contract. It is true, that this is not admitted on the part of the government, but a reference to the cases cited on both sides will show that this question is.well settled both on principle and authority. And this has been done, so clearly and so extensively, by arguments to which no satisfactory answer has been given by those who have denied the doctrine, that it would be an useless expenditure of time .to do more than to refer to some of the numerous citations. And the result of them is, that- the charter is a contract binding equally upon the government and the corporation. The privileges granted thereby, absolutely, cannot be changed or impaired, by the Legislature alone, unless under a constitutional provision, which will be considered. Dartmouth College v. Woodward, 4 Wheat., 518; Allen v. McKeen, 1 Sum., 276; Fletcher v. Peck, 6 Cranch, 89; New Jersey v. Wilson, 7 Ib., 164; King v. Dedham Bank, 15 Mass., 454; Charles River Bridge v. Warren Bridge, 7 Pick., 344; Yarmouth v. North Yarmouth, 34 Maine, 411; Boston and Lowell Railroad Corporation v. Salem and Lowell Company & als., 2 Gray, 1.

It is insisted, on the part of the government, that the Legislature is limited in the exercise of this power, to some extent ; and that it is not competent for them to barter away absolutely, beyond recall, the rights of the public, which may afterwards become essential to its good, and if this department of government are not subject to some restraint in this respect, the power to provide for public improvement will be diminished, and may be eventually lost. This proposition has no support in right reason or sound law. The Constitution has guarded the rights of the people, so that they are exposed to no danger from the exercise of this authority, which is apprehended to be so perilous.

Private corporations are no more secured in the absolute and uncontrollable enjoyment of their property and franchises, granted by the sovereign power, than are individuals, who are possessed of property and privileges, independent of legislative grants. By the Constitution of the State, Art. 1, § 21, “private property shall not be taken for public uses, without just compensation; nor unless the public exigencies require it.” ’ By the Constitution of the United States, Art. 5, of the amendments, “ private property shall not be taken for public use, without just compensation.” The right to take private property, for public uses, under the circumstances and conditions mentioned in the citations just made respectively, has been acted upon by the Legislatures of individual States and by Congress. Without such power, government would be embarrassed in a State or Nation like our own,, where enterprize is attended in its operations with such great improvements for the public good. It is upon this very provision that railroads are established ordinarily. If this power was withheld, corporations for such an object might proceed, if they could, by contract, with individuals, acquire every thing essential to the prosecution and completion of the work; but it is not difficult to perceive that, in that case, obstacles would probably be presented, which would induce the corporation to abandon its designs or submit to enormous and uncertain exactions. In the language of the Court, in one of the citations from G-ray’s Beports, in reference to this subject, “Whatever exists, which public necessity demands, may be thus appropriated.” “Such appropriation is not regarded as impairing the right of property, or the obligations of any contract; on the contrary, it freely admits such right, and, in all just governments, provision is made for an adequate compensation which recognizes the owner’s right. Nor does it appear to us to make any difference whether the land, or other right, or interest thus appropriated, be derived directly from the government or acquired otherwise, for the reasons already stated, that it does not revoke the grant, or annul or impair the contract, but recognizes- and admits the validity of both.” West River Bridge v. Dix, 6 How., 507; Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 Haw., 83.

But, in the exercise of this power, it must appear distinctly, “by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent. It must also appear, by the Act, that they recognize the right of private property, and mean to respect it, and, under our Constitution, the Act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. In general, therefore, when any Act seems to confer an authority to another to take property, and the grant is not clear and explicit, and no compensation is provided by it, for the owner or party whose rights are injuriously affected, the law will conclude that it was not the intent of the Legislature to. exercise the right of eminent domain, but simply to confer a right to do the act, or exercise the power given, on first obtaining the consent of those thus affected.” 2 Gray, 1, before cited.

If the Legislature, having chartered a railroad or turnpike corporation, containing no provision that the Legislature may0 not confer similar privileges in another Act to others, and the same should be constructed and in operation, and it should subsequently pass another Act creating a body corporate, for the purpose of constructing and putting in operation a similar railroad or turnpike, which should have termini near those of the former, the object being to give additional facilities for communication from one terminus to the other, the proper power having adjudged it to be, of common necessity and convenience, the second grant is no infringement of any constitutional right of the first, and it becomes effectual as a contract.

But if the Legislature, in granting the charter to the former corporation, restrained itself from conferring a similar privilege upon another corporation of the same kind, within a specified distance, the restriction would be binding, and could not be revoked, excepting under the high prerogative of sovereignty, and by making just compensation. This doctrine has been solemnly announced in this State, in Moor v. Veazie, 32 Maine, 343, and, in Massachusetts, in 2 Gray, 1; before referred to.

It is not contended by the counsel for the State, that the Legislature has undertaken to appropriate the property and the franchise of the Penobscot and Kennebec Railroad Company under the constitutional provision referred to; there is no indication of an intention to do so. But it has required of this company a duty, which is not expressly enjoined by the charter, and prescribing a fine for the omission to comply, thus making the omission a crime. If this provision is authorized under the power, which it is insisted the Legislature possess, the defendant must submit, though it does not appear that the liability arises from any abuse of the privileges and franchises by the charter granted. And it is not upon that ground that the 5th and 6th sections of the law of 1858 is attempted to be sustained.

It is, however, contended, that the company being subject to a duty to receive, at all proper times and places, persons and articles and convey the same, &c., the Legislature, may properly take measures to see this duty fulfilled. The proper times for doing this service, must necessarily, be provided for by some rules and regulations, which shall be “ prescribed and directed” in the language of the charter. Some persons or body of persons must do this, or it must remain undone. The directors, by the charter, alone are intrusted with this power. That they have abused this power, cannot be contended; for no objection whatever is made to the propriety of the rule, fixing the time of departure from the station at Kendall’s mills. The Act of 1858 requires that trains shall wait beyond that hour, if the train of the crossing road do not arrive by that time. The place where the alleged omission of duty in the defendant occurred is in nowise the subject of complaint. The interference by the Legislature to modify the rules and regulations, touching the time of departure, is certainly in terms inconsistent with the power with which the directors are clothed in the 6th section of the charter. The rules and regulations were prescribed, upon this matter; they were complied with by the defendant, at the time in question. And some other power of the Legislature, than that existing in them by any reservation in the charter, must be found in order to hold him liable. If he had waited as required by the Act of 1858, and had thereby secured himself from the penalty affixed to the omission of that which is declared a crime, he must have been regarded by his employers as having neglected his duty to them, unless excused by some higher necessity. And if the statute of 1858 was not passed in obedience to this high necessity, it was the imposition of duties and obligations, and liabilities to punishment, for a neglect of those duties and obligations, additional to- those required by the charter.

Was there any thing, in the relative position of the two roads, crossing each other, or any duties arising therefrom, which authorized the legislative interference ? The Somerset and Kennebec Railroad, not being connected with that of the Penobscot and Kennebec Railroad Company, further than that one crosses the other, it is not perceived that the latter have any duties, under the charter, to perform, arising from that fact, further than to take all precautionary measures, enjoined by statute, or otherwise, to prevent collision of the locomotives and trains generally on the two roads, or any interference with the other. The cars of one are under no obligation to go upon the road of the other; they do not, and from the construction of the roads,, engines and cars, they cannot do so. If passengers or merchandize are offered at the places and times, when and where such are received, according to the rules and regulations of each respectively, they are to be taken and transported, whether they are brought or come to those places in one mode or another. The charter gives no power to require by the statute, that the train on one road shall wait for the train of the other, further than what safety demands, more than where such railroads having no connection with each other come in the same vicinity, without crossing.

In large cities, where numerous railroads centre, and where passengers and goods come thereto on one road, and go therefrom on another, both leading on the general course on which it is designed that the passengers and goods should proceed; and for the reason that the hours of departure of the trains of the latter are earlier than the hours of the arrival of the former, great inconvenience and loss may occur; but in a charter like that of the Penobscot and Kennebec Railroad Company, we do not perceive, in what way, according to the terms of the charter, the Legislature can prevent it by statute regulations.

But the ground on which the government’s counsel principally rely, to sustain the 5th and 6th sections of the statute of 1858, is that the Legislature are vésted with the power to establish rules and regulations for the safety and convenience of all persons, by suitable statute provisions; and that this power is incidental to the general authority of this important branch of the government; that corporations, public and private, without any reservation, are subject tp the exercise of this authority; that individuals are subject also to such restraints, by this power, as shall, in the judgment of the Legislature, be reasonable and conducive to the public good; and that private corporations, as they come into existence, with chartered rights and obligations, are not only bound to yield obedience to such statutes, which were in force at the time, but new provisions afterwards, looking to the same end, as police laws embrace such corporations, actually existing at the time, in the same manner as they do individuals; and that general railroad laws are of this character.

It is not denied, in behalf of the defendant, that the power contended for by the prosecuting officer of the State does actually exist in the Legislature, so far as it has reference to the safety of persons and property. But it is denied that the power exists, so that it can be exercised so far as to establish laws promotive of the convenience simply, of individuals, among themselves; and it is also denied that private corporations can be in any degree affected by laws passed by the Legislature, for the sole purpose of promoting the convenience of other private corporations, or the public generally, or any citizens of classes of citizens, in contravention of provisions in the charters of such private corporations respectively, unless it is by the constitutional provision of taking private property for public purposes, and upon compensation therefor.

With the Legislature, the maxim of the law, “ salus populi suprema lex,” should not be disregarded. It is the great principle on which the statutes for the security of the people is based. It is the foundation of criminal law, in all governments of civilized countries, and other laws conducive to safety and consequent happiness of the people. This power has always been exercised by government, and its existence cannot be reasonably denied. How far the provisions of the Legislature can extend, is always submitted to its discretion, provided its Acts do not go beyond tbe great principle of securing the public safety — and its duty, to provide for this public safety, within well defined limits and with discretion, is imperative. The principle is expressly recognized in the Constitution of this State, Art. 1, sections 1 and 20. All laws, for the protection of the lives, limbs, health and quiet of persons, and the security of all property within the State, fall within this general power of the government. The statute requirement, that the bell upon the engine of a railroad shall be rung as the train' approaches a crossing of other roads; the placing of signboards, to warn persons who may be at or near a crossing; the erection of gates and bars, and the employment of persons to guard the crossings at the time of the passage of locomotives and cars; and of faithful and skilful brakemen upon the trains, and the coming to a stop at a specified distance of the place of the crossing of another railroad before crossing the same, and many others are examples of the exercise of this power of the government, through the Legislature. Thorpe v. R. & B. R. R. Co., 27 Verm., 142.

Another class of cases has been the subject of legislation, under the power of the government to establish police regulations, and has been thought to be promotive of public -convenience, rather than public safety. Such cases are when two parties have the right to do things similar to each other at the same time and place, and laws are properly made to prevent interference and interruption. This class' of laws, which may be quite numerous, may be illustrated by what has been generally denominated the law of the road. Without any statute, or custom having the force of law, on the subject, difficulty might sometimes arise between 'travelers upon our highways. But when the subject is attentively considered, it will be found that such laws fall within the principle of promoting the public safety.

The counsel for the government has called our attention to many statutes and decisions which, it is contended, look more to public convenience than to public safety; and, judging from the ability and the untiring diligence manifested in his argument, we cannot doubt that authorities favoring his views would be found, if they exist. But we have been unable to discover in any of them the doctrine contended for, that legitimate police regulations will extend to matters conducive to the convenience of the public, when they conflict with the recognized rights of other parties.

It is not understood that the requirement contained, in the 5th section of the statute of 1858, is for the safety of the public, or for that of travelers upon railroads. The delay demanded extends only to the space of twenty minutes; and if this delay was really essential to the safety of travelers concerned, the necessity of a greater delay will exist in full force.

It cannot be doubted that the Legislature, in the passage of this statute was influenced by a laudable desire, that the travel of passengers, who wished, at crossings of different railroads, to go from one to the other, should continue unbroken without any suspension; that it was not supposed that the safety of such travelers demanded the delay is made apparent by the title of the statute, which has reference to .their convenience as well as their safety.

It is a well settled doctrine, that private corporations, without any express reservation of the powers over them in the Act of incorporation, by the Legislature, are subject, like individuals, to be restrained, limited and controlled in the exercise of powers granted, by such laws as the Legislature may pass, based upon the principle of safety to the public. Whether, in the exercise of power by the Legislature, for the security of this object, it would be bound by an express reservation, we have no occasion to consider. It may be that such a limitation of authority would be entirely nugatory, as a restraint upon the discharge of an imperious duty; but, of this, we give no opinion.

No reason is perceived for imposing upon private corporations, established from public necessity and convenience, more onerous duties, in police regulations, than those to which individuals in the same condition are made subject. “ The great object of an incorporation is to bestow the character and properties of an individuality on a collected and changing body of men.” This is said by C. J. Marshall, in Providence Bank v. Billings, Pet. S. C. Rep., 514; and Redfield holds, “ that, upon examination, this will be found to have placed the matter upon its true basis;” and, he adds, “ as to the general liability to legislative control, it places natural persons and corporations upon the same ground.” Redfield on Railways, 550, 551, 552, note.

If convenience to travelers on railroads will authorize the provisions under which this complaint is brought, it is not easy to perceive any limit to the power of the Legislature, in relation to its authority in matters of police. If travelers on railroads can invoke legislative aid for their,convenience, the right can be extended to natural persons in all their operations, perhaps to the great inconvenience of other natural persons or corporations, who shall be made subject to such servitude. And, if such laws can be made effectual in direct violation of the provisions of a charter to a company, as a police regulation, there seems to be no good reason for withholding the exercise of the same power, where a natural person is concerned.

It is not believed that those who travel, or cause goods to be transported upon railroads, have a legal claim for the security of convenience, by statute laws, requiring duties of the proprietors of such roads, which duties are additional to those prescribed in their respective charters, and which the Legislature has precluded itself from imposing, which those, who undertake to travel in stage coaches, or have goods carried by common carriers for-hire, have not.

But if railroads can be made subject to police regulation from which others are exempt, how far can this duty be extended ? If the power exist to impose it in the slightest degree, we know of no line of limitation. It would certainly be convenient for the travelers living in a country thickly set-tied with inhabitants, to be able to find stations where they can take passage within the shortest distances of each other; and have the train come to a stand against the dwelling of every one living near the railroad track, that he might be accommodated in taking his passage with greater convenience to himself, than it would be, if he were obliged to take another mode to reach a station. No one would probably contend that this should be done, and thereby subject the proprietors to burdens against which they were protected in the Act of incorporation, and if allowed, might be attended by ruinous results. Numerous examples might be mentioned showing the absurdity of the doctrine contended for on tbe ground of public convenience, which is often regarded as an argument quite as convincing as many others. For, if propositions will necessarily lead to absurd conclusions, they cannot be sound.

But from logical deductions of adjudged cases, which have been referred to, the doctrine that police regulations may be established by the Legislature for the convenience of the public, or travelers on railroads, cannot be upheld. It is not contended, or understood by the counsel for the State, in the imposition of duties under the police power, that it is taking private property for public use, and that, therefore, just compensation can be required therefor.

In the charter of the Boston & Lowell Railroad Corporation v. The Salem & Lowell Railroad Company & als., 2 Gray, 1, it was provided that no other railroad, than the one granted, should, within thirty years from and after the passing of the Act, be authorized to be made, leading from Boston, Charlestown or Cambridge, to Lowell, constituted a contract, by the Commonwealth with the Boston and Lowell Railroad Corporation, that no other should be lawfully made for thirty years, and was within the constitutional powers of the Legislature to make, and was binding on their successors. The same principle was enunciated in the case of Moor v. Veazie, 34 Maine, 343, in which the exclusive right was conferred by the Legislature to navigate parts of the Penobscot river by steamboats, in consideration of making improvements in the same river, which were treated by the Legislature as being for public benefit.

In neither of these cases could the Legislature create a new power to do the same thing, as that granted, consistently with the contract already existing, although it might be for public convenience that it should be done. And in the former of the two cases, just referred to, it was held that distinct railroads, of companies chartered afterwards, for other purposes, could not form an union of their roads, by which indirectly another road would exist within the limits prescribed for the whole distance, and the object, which could not be affected directly, thus in this mode attained.

This union, having in view the convenience of travelers on railroads, might have been deemed within the police power equally with that which we are now considering. But the case contains no intimation that the contract could be avoided in this manner.

But, as we have seen, if the sovereign power of the State, acting through the Legislature, adjudged that the property, the privileges and franchises of a private corporation could be taken, because public necessity and convenience required it, and thereupon create a new corporation for such a purpose, the Act is void, unless provision is made by which just compensation can be obtained. But, if chartered rights may be impaired, and new duties imposed upon a corporation, without compensation is effectually secured, with success, in contravention of stipulations in the charter, under .the principle that it is merely the exercise of the police power to promote public convenience, it is a new and easy mode by which this constitutional security of private property and privileges may be broken down.

From the best consideration which we have been able to give to the subject before us, and with a steady determination to sustain the action of a co-ordinate branch of the government, unless it clearly appeared beyond all substantial doubt that it could not be done, we have come to the conelusion, that the provisions under which the complaint against the defendant was made were in violation of the rights secured to the Penobscot and Kennebec Railroad Company in their charter, and ■ that they cannot be sustained on any of the grounds presented under the facts and the argument in behalf of the State. Exceptions sustained.

Demurrer overruled ; plea adjudged good.

Cutting, May, Goodenow, Davis and Kent, JJ., concurred.