The other important modifications of the rule are not relevant to the issue in this case, and were announced in a number of cases in which the rule was variously formulated, many of which are exhaustively reviewed by Mr. Justice Harlan in Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418, 42 L. ed. 819, where that learned judge states the doctrine, as established by the adjudications of the court, as follows: "1. A railroad corporation is a person within the meaning of the fourteenth amendment, declaring that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; 2. A state enactment, or regulations made under the authority of a state enactment, establishing rates for the transportation of persons or property by railroads that will not admit of the carrier earning such compensation as under all the circumstances is just to it and to the public, would deprive such carrier of its property without due process of law and deny to it the equal protection of the laws, and would therefore be repugnant to the fourteenth amendment of the constitution of the United States; 3. While rates for the transportation of persons and property within the limits of a state are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the constitution secures, and therefore without due process of law, cannot be so conclusively determined by the legislature of the state, or by regulations 73 adopted under its authority, that the matter may not become the subject of judicial inquiry." We are wholly unable to perceive the antagonism claimed on behalf of the commonwealth to exist between the cases we have mentioned and a number of others not necessary to be adverted to, recognizing the rule in Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, with its modifications, and the principle announced in the Michigan case (173 U. S. 684, 19 Sup. Ct. Rep. 565, 43 L. ed. 858). The fact is that the last-named case refers to Munn v. Illinois and the cases modifying the rule announced therein, and recognizes the existence of the rule as modified; but, while recognizing the power of the legislature to prescribe maximum charges which may be made. by public service corporations, held that the Michigan mileage statute did not belong to that class of legislation enacted Am. St. Rep., Vol. 117-63 in the exercise of this admitted power, but was a taking of the property of the company without due process of law— legislation which is prohibited by the fourteenth amendment, and therefore violated the constitutional rights of railroad companies to due process of law, and the equal protection of the laws. It was contended in that case, as in the case here, that as the legislature would have the power to reduce the maximum charges to the same rate at which the Michigan statute provided for the purchase of thousand mile tickets, the railroad company could not be harmed nor its property taken without due process of law when the legislature only reduced the rate in favor of a few citizens instead of all; but the opinion denied the right of the legislature to make such an alteration, upon the ground that to do so might involve a reduction of rates to an amount insufficient to give remuneration to which the railroad company was legally entitled under the decisions of the court. It will be observed that while the Michigan statute required thousand mile tickets to be sold by railroad companies for less than the ordinary rates of fare, for use by the purchaser and his wife and children, if named on the ticket, and made them valid for two years after the date of purchase, the Virginia 74 mileage act requires the companies at all times, day and night—at all stations, regular and flag-to keep on sale books of five hundred miles and over, and that “it shall be unlawful for any transportation company or corporation operated by steam to charge or collect a greater sum than two cents per mile on such mileage-books, and such mileage-books shall be good and valid for the use of any dependent household member of the family of the party to whom issued, dwelling under the same roof, within one year from the date of same." As it appears to us, the provisions of the two statutes are practically the same, and fall within the purview of the Michigan case, as the reasoning for holding the one violative of the provisions of the fourteenth amendment of the constitution of the United States applies as well to the other. As stated in the opinion of the state corporation commission, above, the incident that the Michigan statute had fixed a maximum scale of passenger rates is mentioned in the Michigan case, but the conclusion reached was in no way rested upon that incident. On the contrary, the opinion says: "The power of the legislature to enact general laws regarding a company and its affairs does not include the power to compel it to make an exception in favor of some particular class in a community and to carry the members of that class at a less sum than it has the right to charge for those who are not fortunate enough to be members thereof. This is not a reasonable regulation." And again: "Regulations for maximum rates for present transportation of persons, or property, bear no resemblance to those which assume to provide for the purchase of tickets in quantities at a lower than the general rate, and to provide that they shall be good for years to come. This is not fixing the maximum rate, nor is it proper legislation. It is an illegal and unjustifiable interference with the right of the company." Clearly the dominant idea running through the whole opinion is that this is class legislation, and is not for the equal benefit of the whole people; therefore, the conclusion is irresistible that the 75 same judgment would have been rendered by the court had the legislature of Michigan not fixed a maximum scale of passenger rates. It is true that the Michigan case was decided by a divided court, as was the case of Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, and nearly all of the cases sanctioning the doctrine of that case, but instead of the Michigan case being discredited by any subsequent decision of the court, in Wisconsin etc., R. Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. Rep. 115, 45 L. ed. 194, in referring to the power of a state to regulate, etc. railroad companies, the Michigan case is cited as authority for the proposition of law that "while this power of regulation exists, it is also to be remembered that the legislature cannot, under the guise of regulation, interfere with the proper protection of the business of railroad corporations in matters which do not fairly belong to the domain of reasonable regulation." And the court adds: "The distinction between this case and that of Lake Shore etc. R. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. Rep. 565, 43 L. ed. 585, is very plain. There we held that the statute in question was not a reasonable regulation of the business of the company; that it was the exercise of a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road, permitting them to do so at less expense than others, provided they could buy a certain number of tickets at one time. It was not legislation for the safety, health or proper convenience of the public, but an arbitrary enactment in favor of the persons spoken of, who, in the legislative judgment, should be carried at a less expense than the other members of the community; and there was no reasonable ground upon which the legislation could be rested, unless the simple decision of the legislature should be held to constitute such reason." We have, then, in Wisconsin etc. R. Co. v. Jacobson, the court's own construction of its decision in Railway Co. v. Smith (the Michigan case), 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858. 76 In Bardsley v. New York ete. R. Co., 162 N. Y. 230, 56 N. E. 488, holding a New York statute, similar to the Michigan and the Virginia mileage statutes, in conflict with the fourteenth amendment of the constitution of the United States, the opinion, while indicating that the court was not disposed to agree with all of its reasoning, says: "The supreme court of the United States, in Lake Shore Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. Rep. 565, 43 L. ed. 858, has practically foreclosed all discussion on the question of the constitutionality of statutes of the character of the one before us." We fully recognize, as did the court in Beardsley v. New York etc. Co., 162 N. Y. 230, 56 N. E. 488, that the decision in the Michigan case is conclusive upon us on the question of the constitutionality of the statute under consideration; and, therefore, the judgment of the state corporation commission complained of must be affirmed. In the Case of Winchester etc. R. R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692, the supreme court again decided that although the state corporation commission created by the state constitution is invested with certain legislative, executive and judicial powers, that fact does not render it an invalid tribunal, and such grant of powers is not in conflict with the Bill of Rights expressly providing that "except as hereinafter provided the legislative, exeeutive and judicial departments shall be separate and distinet." Also that the constitution of the state and the laws passed in pursuance thereof subjecting common carriers, in the matter of their public duties and charges, to the control of such state corporation commission, are not in conflict with that provision of the national constitution forbidding any state to deny to any person the equal protection of the laws, nor do they constitute class legislation, as they apply to all carriers alike, nor do they deprive the carrier of his property without due process of law, as they provide for a full and fair trial before any decision or action adverse to the carrier's interest can be rendered, and give the right of appeal in every case without limit as to the amount involved. The state has the inherent power of regulating and controlling public service corporations operating within her borders, and of prescribing the facilities and conveniences which shall be furnished by them, and may confer this power upon a commission, such as a state corporation commission, and vest it with legislative, executive and judicial powers. In exercising its legislative powers in making rules and regulations, the state corporation commission is not bound to give notice to the carriers affected thereby, but if it exercises its judicial powers by seeking to enforce such rules and regulations, and to adjudge the penalties for their violation, then such carriers are entitled to notice and an opportunity to be heard, without which there is not due process of law, and this right is not satisfied by a notice given to the carriers before such rules and regulations were adopted. The Constitutionality of Statutes regulating the sale of railway tickets is discussed in the note to Jannin v. State, 96 Am. St. Rep. 828. HERRING v. WILTON. [106 Va. 171, 55 S. E. 546.] NUISANCE-Noise of Dogs-Injunction.-The annoyance and inconvenience arising from the barking and howling of dogs and the whining of puppies to such an extent as to greatly annoy and break the rest and sleep of an adjoining family, and seriously disturb them in the reasonable use and enjoyment of their home, constitutes a nuisance which may be enjoined, although a town ordinance may afford an easy and expeditious remedy at law for the inconvenience suffered by such family. (p. 1000.) of Jurisdiction.-If EQUITY JURISDICTION-Retention courts of equity have once acquired jurisdiction, a subsequent statute which gives to or enlarges the jurisdiction of the common-law courts over the same subject does not deprive the equity courts of their jurisdiction, although the statute may furnish a complete and adequate remedy at law unless such statute uses prohibitory or restrictive words. (p. 1000.) EQUITY JURISDICTION.-If courts of equity have once acquired jurisdiction, they do not lose it merely because courts of law have been subsequently authorized to administer the same or similar relief. (p. 1001.) J. B. Stephenson and H. W. Bertram, for the appellant. |