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or some act of negligence, on the part of the railroad company, in order that the company may be held liable for damages suffered from the running of trains. A statute which makes a railroad responsible “ for all expenses of the coroner and his inquest, and of the burial of all persons who

may die on the cars, or who may be killed by collision or other accident occurring to such cars, or otherwise,” is, therefore, properly declared to be unconstitutional, so far as it is applied to cases of loss, in which the company has not been guilty of negligence or of a violation of some legal duty. The State may in like manner regulate the grades of railways, generally, and particularly at the points where they cross highways or other railways, and provide for an apportionment of the expense of making the crossings;and prescribe the rate of speed at which highways and other railways may be crossed,3 and while running within the corporate limits of a city or town. The State may institute other regulations, having the protection of life in view, such as requiring all railroad companies to ring their bell or blow the whistle of the engine on approaching a crossing or highway;" or to place and keep flagmen at such places, and at such times of the day, when the traffic and the passage of numbers of people make such a regulation reasonable and necessary. It is also a lawful exercise of police power to require a rail. road to construct a bridge in passing over a public bighway, instead of crossing it at the same grade; ? or to prohibit a railroad from constructing its tracks or running cars on any street so near the depot of another railroad, as to interfere with a safe and convenient access to the latter road.:

i Obio & Mississippi R. R. Co. v. Lackey, 78 Ill. 55 (20 Am. Rep. 259). But see Pennsylvania R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360), in which it was held to be competent for the legislature to compel an existing railroad to repair all fences along its route that may be destroyed by fire from its engines. See, to the same effect, Lyman o. Boston, etc., R. R. Co., 4 Cush. 288; Gorman v. Pac. R. R. Co., 26 Mo. 441; Rodemacher v. Milwaukee, etc., R. R. Co., 41 Iowa, 297 (20 Am. Rep. 592).

2 Fitchburg, R. R. Co. v. Grand Junction R. R. Co., 1 Allen, 652; 8. C., 4 Allen, 198; Pittsburg, etc., R. R. Co. v. S. W. Penn. R. R. Co., 77 Pa. St. 173.

3 Mobile, etc., R. R. Co. v. State, 51 Miss. 137.

4 Rockford, etc., R. R. Co. v. Hillmer, 72 Ill. 235; Chicago, Rock Island, etc., R. R. Co. v. Reidy, 66 Ill. 43; Mobile & Ohio R. R. Co. v. State, 51 Miss. 137; Horn o. Chicago, etc., R. R. Co., 38 Wis. 463; Haas v. Chicago & N. W. R. R. Co., 41 Wis. 44.

5 Veazie v. Mayo, 46 Me. 560; 8. C. 49 Me. 156; Commonwealth v. Eastern R. R. Co., 103 Mass. 254 (4 Am. Rep. 555); Bulkley v. N. Y. & N. H. R. R. Co.. 27 Conn. 486; Stuyvesant v. Mayor, etc., of New York, 3 Portland, S. & P. R. R. Co. v. Boston and Maine R. R. Co., 65 Me. 122.

The State may also make all kinds of reasonable regulations for insuring a fair and impartial carriage of all persons and property. The right to regulate the charges of corporations in general has already been fully explained, and the railroad companies may be subjected to such regulations, as well as any other corporation. In consequence of the racial prejudice, there is a disposition in some parts of the country to make invidious distinctions in the accommodations provided for the white and black passengers. While it is in violation of the common-law rights of the negro, as well as of the constitutional and statutory provisions, which guarantee to the negro equal privileges in the use and enjoyment of the public conveyances, hotels,

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7 Cow. 588; Pittsburg, Cin. & St. L. R. R. Co. o. Brown, 67 Ind. 45 (33 Am. Rep. 73); Galena v. Chicago U. R. R. Co. o. Dill, 22 III. 264; Ohio & M. R. R. Co. v. McClelland, 25 Ill. 140; Chicago, etc., R. R. Co. o. Triplett, 38 III. 482; Clark's Administrator v. Hannibal & St. Jo. R. R. Co., 36 Mo, 202.

1 Toledo, etc., R. R. Co. v. Jacksonville, 67 III. 37; Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604.

People v. Boston & Albany R. R. Co., 70 N. Y. 569. But it would be unconstitutional to require railroad companies to build crossings at the intersection of their road with a highway, which had been constructed after the railroad has been built. City of Erie v. Erie Canal Co., 59 Pa. St. 174; Ill. Cent. R. R. Co. v. Bloomington, 76 III. 447.

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• See, ante, $ 192. The State may uire all railroad companies to post up in its stations schedules of the rates of fare and freight, without violating any constitutional provision. Railroad 0. Fuller, 17 Wall. 560.

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and places of amusement, if the railroad company should deny to him the use of the first-class and sleeping cars;? yet it is lawful for them to provide separate cars for the two races, provided their appointments and conveniences are equally good. It is also held to be a lawful exercise of police power to require railroads to draw the cars of other corporations as well as their own, at reasonable times and for a reasonable compensation, to be agreed upon by the parties or fixed by the railroad commissioners."

In order that the inhabitants of the country, through which a railroad passes, may be assured a reasonable use of the regular trains, the legislature may determine at what stations and for what length of time, all trains shall be required to stop, and all agreements of railroad companies, which limit the location of stations, are void because against public policy.

It has also been held to be competent for a State to prohibit the running of freight trains on Sundays.?

Indeed, it would be impossible to mention in detail all the police regulations to which railroad corporations are now subjected in the interests of the public. The test of their constitutionality is, in every case, whether they are designed, and do tend, to protect some public or private right from the injurious act of the railroad company. And the most complete legislation of this kind is that which provides for the general supervision of the railroads by commissioners, appointed by the State, and given full power to make inspection of the working and management of the roads. The constitutionality of this State supervision cannot well be doubted. “Our whole system of legislative supervision through the railroad commissioners acting as a State police over railroads, is founded upon the theory that the public duties devolved upon railroad corporations by their charter are ministerial, and, therefore, liable to be thus enforced.” 1

1 As to the constitutionality of these laws in general, see, ante, $ 92.

2 Alexander & Washington R. R. Co. v. Brown, 17 Wall. 445; Chicago & N. W. Ry. Co. v. Williams, 55 III. 185; Coger v. N. W. Union Packet Co., 37 Iowa, 145.

3 West Chester & P. R. R. Co. v. Miles, 55 Pa. St. 209; Central R. R. Co. v. Green, 86 Pa. St. 421; Chicago & N. W. Ry. Co. v. Williams, 55 ni. 185.

• Rae v. Grand Trunk Ry. Co., 14 Fed. Rep. 401.

5 Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208); State v. New Haven, etc., R. R. Co., 43 Conn. 351; Davidson v. State, 4 Tex. Ct. App. 545 (30 Am. Rep. 166); Chicago & Alton R. R. Co v. People, 105 III. 657.

6 St. Joseph & Denver City R. R. Co. o. Ryan, 11 Kan. 602 (15 Am. Rep. 357); Marsh v. Fairburg, etc., R. R. Co., 64 Ill. 414 (16 Am. Rep. K64); St. Louis, etc., R. R. Co. v. Mathers, 71 Ill. 592 (22 Am. Rep. 122). ? State v. Balt. & Ohio R. R. Co., 24 W.Va. 783 (49 Am. Rep. 290).

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I Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208).

§ 194

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THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM OF

GOVERNMENT.

SECTION 200. The United States government one of enumerated powers.

201. Police power generally resides in the States.
202. Regulations affecting interstate commerce.
203. Police control of navigable streams.
204. Police regulation of harbors Pilotage laws.
205. Regulation of weights and measures.
206. Counterfeiting of coins and currencies.
207. Regulation of the sale of patented articles.
208. War and rebellion.
209. Regulation of the militia.
210. Taxation.
211. Regulation of offenses against the laws of nations.
212. The exercise of police power by municipal corporations.

$ 200. The United States government one of enumerated powers. Very frequently, during the first century of our national existence, the government of the United States has assumed powers, which were highly essential to the promotion of the general welfare, but which were not expressly delegated to the Federal government. The exercise of such powers has always met with the vehement objection of the party in opposition (although each of the great national parties has in turn exercised such questionable powers, whenever public necessities or party interest seemed to require it); the objection being that the constitution did not authorize the exercise of the power, since there was no delegation of it by the constitution. Popular opinion, concerning the fundamental character of the Federal government, was formulated in the adoption of the tenth amendment to the constitution, which provides that “the powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States

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