to be said in this case. The plaintiffs claim to recover because the amount of freight money exacted by the defendant was in excess of the rate fixed by the law of Iowa. The contract of shipment was an entirety. It cannot be severed and made to apply partly to the shipment in Iowa and partly to that in Illinois. It was the right of the defendant to disregard any laws which sought to regulate shipments to points without the state, and make its own contracts. Having done so, the plaintiffs cannot recover under any state law, simply because it is void, as being repugnant to the Federal Constitution. Whether the plaintiffs are entitled to any relief, independent of the statute, we do not determine, because that question is not in this case. Affirmed. BECK, J., dissenting.—I am unable to concur in the arguments and conclusions announced in the preceding opinion of the court prepared by Mr. Justice ROTHROCK. The case is one of great importance, as the decision affects the interest of all the people of the state. This consideration has stimulated me in its careful examination with the purpose of preparing an extended discussion of the doctrines which, in my opinion, should control the decision of the important questions involved in the case. But I am unable, within the limited time which other judicial duties permit me to devote to the case, to carry out my purpose, and I am compelled to limit myself to a brief statement of the principles upon which I base my dissent to the opinion of the majority of the court. It is shown by the record before us that the defendant received the grain shipped by plaintiffs for transportation to the city of Chicago. A contract was thus entered into by the defendant for the carriage of the grain from Ackley to Chicago. This contract was made in Ackley, and is therefore subject to the laws of the state applicable thereto. It is competent for the state to enact the statute in question unless it should be found to be in conflict with the Constitution of the United States as a regulation of commerce. The statute is not in conflict with the Federal Constitution, for the following reasons: Conceding the statute has the effect of regulating commerce, it is enacted in the exercise of a power which is vested concurrently in the state and national governments; and as it is not in conflict with any law of the United States, and as Congress has not enacted any statute upon its subject, it cannot be regarded as an encroach ment upon the authority of the general government. Until Con gress assume the exercise of authority over the subject of the statute in question, the state is free to legislate upon it. In my opinion, regulations of commerce which impose burdens and restrictions thereon only, are forbidden to the states by the Constitution of the United States. The states are free to enact all laws which will aid in securing the expeditious and cheap transportation of property used in the commerce of the country. Of this character are statutes providing for the construction of the mediums of transportation of property, for its protection while in transit, and for the protection of the means of transportation used by common carriers. Enactments prescribing the duties and obligations of carriers are of the same character and class. It must be remembered that railroads do not constitute commerce. They are means used by commerce. The corporations operating them are common carriers employed in the commerce of the country. Burdens, impediments and restrictions may be imposed on commerce by these common carriers. This may be done by unnecessary delays, and by unreasonable and unjust charges for carrying goods and the like. Statutes which remove burdens and restrictions imposed in this way upon commerce and which protect it from unjust exactions by common carriers, are not regulations of commerce within the contemplation of the Constitution of the United States. The statute of the state brought in question in the case is of this character. It was intended and operated to protect and stimulate commerce by preventing oppressive and discriminating charges for the transportation of property used in the commerce of the country. These conclusions, in my opinion, are based upon doctrines well established by decisions of the United States Supreme Court and of this court. The right of the state to regulate railway charges has not been admitted in all cases. Thus it has been decided that the power of a railroad company to charge for the transportation of passengers and freight is one essential to the enjoyment of the franchise and must be presumed to have been the consideration for which the corporators accepted the charter, invested their money and assumed the obligations imposed on them; and the power to adjust its tariff of charges by its own officers, according to their views of the necessities of business and of justice to the public, without any reservation in the charter of legislative supervision or control over them, being a part of the franchise as it was granted, an act of the legislature which assumes for the state the right to regulate what under the charter was granted as an absolute discretion to the corporation, viz. the right to adjust its tariff of charges for the carriage of passengers and freight, undoubtedly impairs the obligation of the contract in the sense of the constitutional prohibition, and is inoperative and void: P. W. & B. Railroad Co. v. Bowers, 4 Houst. 507. See also Sloan v. Pacific Railroad Co., 61 Mo. 24. But in this case it was decided that, regardless of legislation, the company was responsible for its breach of duty as a common carrier in charging exorbitant freights or making unjust discriminations; and see AttorneyGeneral v. Railroad Company, 35 Wis. 428. And Ruggles v. People, 91 Ill. 256, holds that an express grant of power in a charter of a railway company to fix the rates of toll to be charged and to alter and change the same, does not confer unlimited power, but only the right to charge reasonable rates, and what is a maximum rate may be fixed by the statute. Other cases, constituting the clear weight of authority, affirm the constitutionality of regulations as to railway rates, and such right of regulation by the state appears now to be firmly established. Especially when the legislature, in granting the companies their charters, reserved the right to repeal or alter them: Shields v. Ohio, 95 U. S. 319; Peik v. C. & N. W. Railroad Co., 94 Id. 165; Munn v. Illinois, 94 Id. 113; Stone v. Wisconsin, 94 Id. 183; American Coal Co. v. Consol. Coal Co., 46 Md. 15; M. & M. Railroad Co. v. Steiner, 61 Ala. 559; V. & M. Railroad Co. v. F. Railroad Co., 9 Cush. 369; C. & A. Railroad Co. v. Peoples, 67 Ill. 11; People v. Ruggles, 91 Id. 256; Attorney-General v. Railroad Companies, 35 Wis. 428; Hinckley v. C. M. & St. P. Railroad Co., 38 Id. 196. Such regulation by the state is not prohibited by sect. 8, art. 1, United States Constitution, which gives power to congress to regulate commerce between the states and with foreign nations, nor by sect. 9, art. 1, United States Constitution, which prohibits preferences to the ports of one state over those of another. This provision applies only to th federal government: Munn v. Illinois, 94 U. S. 113. The legislature, in prescribing maximum rates of freight charges, may affix a money penalty-e. g., a fine of $1000 for violating the statute fixing the rates; but no opinion was expressed, whether the legislature had power to affix a forfeiture of the company's franchises as a penalty: St. v. W. & St. P. Railroad Co., 19 Minn. 434. Statutes regulating and limiting rates may classify corporations and establish different rates for different classes, provided the same regulations are made for all in a like situation, and such statutes do not conflict with state constitutional provisions requiring uniformity and equality in general laws: McAunich v. M. & M. Railroad Co., 20 Iowa 338; C., B. & Q. Railroad Co. v. Iowa, 94 U. S. 155. The legislature may part with its right of taxation and a fortiort with its right to regulate rates: Sloan v. Pacific Railroad Co., 61 Mo. 24. And where railway companies are exempt by their charters from state regulation as to rates, they may relinquish their right of exemption, or lose it by consolidation with, or merger in, other companies not so exempt: Peik v. C. & N. W. Railroad Co., 94 U. S. 164; Shields v. Ohio, 95 Id. 319; C., H. & D. Railroad Co. v. Cole, 29 Ohio St. 126. So, if a railroad corporation, though originally chartered without restrictions as to the right to fix tolls, accepts a limitation or restriction of such powers, on a valuable consideration, e. g., as one of the conditions on which it receives aid from the state, such limitation inheres in its organic law precisely as if originally incorporated therein; and a new corporation, formed by those purchasing its property, and succeeding only to the rights of the old, is bound by such limi tations: M. & M. Railroad Co. v. Steiner, 61 Ala. 559. It has been decided that the rate on freight carried over the whole line of its road," which furnishes the basis for the additional fifty per cent. allowed by the regulating act for the transportation of "local freight," is the, rate charged on freight taken on at one terminus and discharged at the other; and not the rate for freight brought from or carried to a point beyond the termini of the road. The rate which furnishes the basis on which local freight charges must be graduated is the rate prevailing at the time of shipment; and rates at any particular time in the past furnish no reliable guide for ascertaining present rates: M. & M. Railroad Co. v. Steiner, 61 Ala. 559. A statute providing that railroad companies "may, for the transportation of local freight demand and receive, not exceeding fifty per cent. more than the rate charged for the transportation of the same description of freight, over the whole line of its road," does not authorize the addition of fifty per cent. on the charge over the whole road, irrespective of the distance, the freight may be carried, but only an additional fifty per cent. more per mile, for the distance local freight is carried, than the per mile rate charged on goods carried over the whole line: M. & M. Railroad Co. v. Steiner, 61 Ala. 559. By an Act of Assembly it was provided that "rates for toll and transportation may be regulated in such manner as the company may deem most advisable; provided, that the maximum charges for toll and transportation shall not exceed four cents per mile for freight." A subsequent act amended the proviso so as to read "average charges for toll and transportation." It was held that the company might impose more than four cents per mile on some charges, so that by making others less the general average should not exceed four cents; that the adjustment of tolls was not required to be made so as to bear equally on each individual, but was to be made between the whole road and the entire public who used it; that the requirement of the statute was satisfied by fixing different charges per mile for different kinds of freight; that the company may discriminate in favor of longer distances; that " average charges" are charges at a mean rate ascertained by dividing the entire receipts by the whole quantity of tonnage, reduced to a common standard of tons moved one mile; that the charges against the plaintiff, averaged by the whole amount of business of the company, were less than four per cent.; by that done for him alone they were more than five per cent., and that the former was the proper estimate, and the charges were not excessive: Hersh v. N. C. Railroad Co., 74 Penn. St. 181. In Wisconsin, a railway company cannot, by showing that the amount charged was no more than a reasonable compensation for the service rendered, recover more than the maximum rate fixed by law C., M. & St. P. Railroad Co. v. Ackley, 94 U. S. 179. A statutory provision that no reduction shall be made in the rates of fare and charges for freight allowed to railway companies organized under such statute, unless where their net profits for the previous ten years amount to ten per cent. on their capital, is in the nature of a contract and binding on the state. There are railway companies who have not relinquished their right to be gov erned by such statutory provision, and not having realized a net profit of ten per cent. on their capital for the ten years next preceding the enactment of the statute they are not bound by provisions of the act reducing their rates of freight or fare: Iron Railroad Co. v. Lawrence F. Co., 29 Ohio St. 208. The grounds of the right of the government to regulate the prices of transportation are several : I. PUBLIC USE.-The devotion of the property of a person or corporation to a public use warrants governmental regulation of such use and the prices chargeable for it. See Lord HALE, De Jure Maris, 1 Harg. Law Tracts 6; Blot v. Stennett, 8 T. R. 606; Aldnutt v. Ingles, 12 East 527; Mobile v. Yuille, 3 Ala. (N. S.) 140; Munn v. Illinois, 94 U. S. 113, and cases supra. What is a public use of property? Chief Justice WAITE says, somewhat vaguely, that " property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large;" and he continues, "when, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control: Munn v. Illinois, 94 U. S. 113. He held that the business of a common carrier was so "affected with a public interest" as to be, on this ground, subject to legislative regulation. So also were held ferrymen, hackmen, wharfingers, bakers, millers, warehousemen and innkeepers. FIELD, J., dissented; said he, "there is no business or enterprise involving expenditures to any extent which is not of public consequence, and which does not affect the community at large. There is no trade or manufacture, and no avocation which does not, in a greater or less extent, affect the community and in which the public has an interest in the sense used by the court:" Stone v. Wisconsin, 94 U. S. 181, 185. "The public," said he again, “is interested in the manufacture of cotton, woollen and silken fabrics, in the construction of machinery, in the printing and publication of books and periodicals, and in the making of utensils of every variety, useful and ornamental; indeed there is hardly an enterprise or business engaging the attention and labor of any considerable portion of the community in which the public has not an interest, in the sense in which that term is used by the court" Munn v. Illinois, 94 U. S. 141; and he thought the principle of the court "subversive of the rights of private property." Whether or not this dissent rests upon solid foundations, the decisions of the courts pretty clearly establish the fact that in the eye of the law the property of railways is devoted to the use of the public, is "affected with a public interest," and that, therefore, its use and the prices chargeable therefor are subject to regulation by the state. The Supreme Court of Texas, speaking of the distinction between devoting property to a private and to a public use, decided that a business, which is strictly juris privati, does not become juris publici, by reason of the fact that those carrying it on have become incorporated by the legislature, nor merely by reason of the extent of such business. If the magnitude of a particular business is such, and the persons affected by it are so numerous that the interest of society demands that it should be relegated to the class of occupations juris publici, the exercise of such power is for the legislature (if not restrained by the Constitution) and not for the judicial department. In the absence of legislation a person who has not put his property and services to public use, by the character of the business in which he is engaged, does not do so by reason of combination with others in a like business, though he is enabled thereby to exact from those who may employ him unreasonable and extortionate charges for services rendered: Ladd v. Southern C. P. & M. Co., 12 Leg. News 418. II. USE OF PUBLIC PROPERTY.— |