plainants thirty days in which to plead further; and they thus had opportunity for amending their bill so as to present additional averments which would correct deficiencies in the original allegations and remove any possible misapprehension as to the facts intended to be set forth. But the complainants informed the court that they did not desire to avail themselves of this opportunity and accordingly the bill was dismissed. We think that it cannot be said that any error was committed in thus disposing of the contention as to confiscation.

It is also urged that the railroad commission act of Oregon (February 18, 1907 Laws of 1907, chap. 53, p. 67), and the order in question, were void as against the Oregon & California Railroad Company, and the lessee of its property, upon the ground that the act and order impaired the obligation of the contract contained in the charter of the first-mentioned company. That company was incorporated in 1870, under the general incorporation act of Oregon, approved October 14, 1862, which, in § 34, provided: "Every corporation formed under this act for the construction of a railroad, as to such road shall be deemed common carriers, and shall have power to collect and receive such tolls or freight for transportation of persons or property thereon as it may prescribe." Reference is also made to the following provision of the constitution of Oregon pursuant to which this incorporation act was enacted: "Corporations may be formed under general laws, but shall not be created by special laws except for municipal purposes. All laws passed pursuant to this section may be altered, amended or repealed but not so as to alter or destroy any vested corporate rights.” (Art. XI, § 2.) The sole question presented on this branch of the case, it is said by counsel for the appellants, "is whether the judgment of the carrier in fixing rates for transportation of persons or property shall be supervised,

regulated and supplanted by the judgment of the State exercised through a Railroad Commission, or shall it remain as it was at common law, within the exclusive power and jurisdiction of the carrier to fix these rates, subject only to the power of the courts upon judicial inquiry, to denounce and decline to enforce rates that are excessive and unreasonable?"

As to this question, it is sufficient to say that it is well established that a general charter provision such as the one quoted, giving power to charge and collect tolls, necessarily implies that the charges shall be reasonable and does not detract from the power of the State through its legislature, or the agency lawfully constituted thereby, to prescribe reasonable rates to be observed by the carrier. State v. Southern Pacific Co., 23 Oregon, 424, 432, 433; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 330; Dow v. Beidelman, 125 U. S. 680, 688; Georgia R. R. & Banking Co. v. Smith, 128 U. S. 174, 181; Chicago, M. & St. P. Railway Co. v. Minnesota, 134 U. S. 418, 455; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 215; Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, 696; Owensboro v. Owensboro Waterworks Co., 191 U. S. 358, 370. In the case of Stone v. Farmers' Loan & Trust Co., supra, where the charter empowered the railroad company "from time to time to fix, regulate, and receive the toll and charges by them to be received for transportation of persons or property on their railroad," and it was insisted that a subsequent statute creating a railroad commission with authority to fix maximum rates was an impairment of contract obligation, the court said (p. 330): "The claim now is that by § 12" (the provision referred to) "the State has surrendered the power to fix a maximum for this company, and has declared that the courts shall be left to determine what is reasonable, free of all legislative control. We see no evidence of any such intention. Power is granted to fix reasonable charges,

but what shall be deemed reasonable in law is nowhere indicated. Consequently, all the power which the State had in the matter before the charter it retained afterwards. The power to charge being coupled with the condition that the charge shall be reasonable, the State is left free to act on the subject of reasonableness within the limits of its general authority as circumstances may require. The right to fix reasonable charges has been granted, but the power of declaring what shall be deemed reasonable has not been surrendered."

The remaining questions may be briefly disposed of. The complainants were not entitled to have the court below substitute its judgment for that of the commission or determine the matters which properly fell within the province of that body. The conditions of traffic, the adjustment of rates with respect to the different commodities transported, and the appropriate basis for classification, were subjects for the consideration of the commission, and there was nothing shown which would have warranted the court in overriding the decision of the commission upon the ground that its action was of such an arbitrary character as to constitute an abuse of

power.

The criticism made in the bill that the railroad commission act violated the state constitution in conferring upon the commission authority to exercise legislative, executive and judicial powers, has been answered by the decision of the state court, sustaining the statute. State v. Corvallis & Eastern R. R. Co., 59 Oregon, 450; 117 Pac. Rep. 980. The provision of the statute that suit might be brought in the state court to set aside orders of the commission upon the ground that the rates fixed were unlawful, or that the regulation or practice prescribed was unreasonable, did not infringe the rights of the complainants. The procedure permitted by the statute is consistent with the Fourteenth Amendment. Portland

Railway, Light & Power Co. v. Railroad Commission of Oregon, 229 U. S. 397. And, finally, the penal provisions, of which complaint is made, are separable; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 395; Willcox v. Consolidated Gas Co., 212 U. S. 19, 53, 54; Western Union Telegraph Co. v. Richmond, 224 U. S. 160, 172; they furnish no ground for denying effect to the rates, if otherwise valid.

Our conclusion is that the demurrer was properly sustained.

Decree affirmed.

ALLEN ET AL., RAILROAD COMMISSIONERS OF THE STATE OF ARKANSAS, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.

SAME v. ST. LOUIS SOUTHWESTERN RAILWAY

COMPANY.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

Nos. 440, 441. Argued April 12, 15, 1912.-Decided June 16, 1913.

Minnesota Rate Cases, ante, p. 352, followed to effect that an intrastate rate fixed by State Railroad Commission is not an unconstitutional interference with interstate commerce.

A carrier has the right to contest the validity of rates prescribed by a body clothed by the legislature with power to establish rates on the ground they are confiscatory, and this right is not impaired by putting the rates into effect if they prove to be confiscatory. Minnesota Rate Cases, ante, p. 352, also followed to effect that where the proofs submitted by a carrier attacking rates as confiscatory are

not sufficient to justify a finding that the rates are confiscatory, the bill should be dismissed.

187 Fed. Rep. 290, reversed.

THESE two suits were brought to restrain the enforcement of the act of the legislature passed February 9, 1907, fixing the maximum fare for passengers at two cents a mile, and also the orders of the Railroad Commission made June 4, 1908, prescribing maximum freight and passenger rates. The facts involved in both cases are stated in the opinion.

Mr. Joseph M. Hill for appellants.

Mr. John M. Moore, with whom Mr. Martin S. Clardy and Mr. Samuel H. West were on the brief, for appellees.

MR. JUSTICE HUGHES delivered the opinion of the

court.

The legislature of Arkansas, on February 9, 1907, passed an act fixing the maximum passenger fare within the State, on railroads over eighty-five miles in length, at two cents a mile. On June 4, 1908, the Railroad Commission of the State adopted Standard Distance Tariff No. 3, which superseded the former freight tariff and established maximum intrastate freight rates for all classes and commodities. The requirement with respect to maximum passenger fares as provided by the legislature was also promulgated by the commission.

In July, 1908, the appellees, the St. Louis, Iron Mountain & Southern Railway Company and the St. Louis Southwestern Railway Company, respectively, filed their bills in the Circuit Court, alleging that the action of the legislature and the commission, in fixing these rates, was unreasonable and confiscatory, and also that it amounted