after making the foregoing statement, delivered the opinion of the court.
There have been two statutes in Wisconsin relating to *498 letting down the upper berth when the lower was occupied. The first 1 left the matter to the decision of the occupant of the lower berth. The second 2 absolutely prohibits the upper from being let down before it is engaged or occupied.
Concerning the act of 1907, which provided that the occupant of the lower “should have the right to direct whether the unoccupied upper should be opened or closed,” the Suprеme Court (State v. Redmon, 134 Wisconsin, 89, 103) held that the statute was “not a police regulation, but an unwarranted interference with property rights; an attempt . . . to give any person at 'his optiori who pays for a part of a section in a sleeping car the use, free of charge, of the balance thereof; an obvious . . . attempt ... to appropriate the property of one for the benefit of another in violation of several constitutional safeguards that might be referred to, but particularly the guarantee thаt no person shall be . . . deprived of life, liberty or property without due process of law.” . . . “It follows that the arbitrary appropriation in the name of law of the space of an upper berth in a sleeping car for the greater comfort and safety, as regards the health of the occupant of the lower berth at his option, ... is highly oppressive. ...”
1. But the language of the Act of 1911, now under re *499 view, does not remove the fundamental objection to that class of legislation. . For as the State could not authorize the occupant of thе lower berth to take salable space without pay, neither can the present statute compel the Company to give that occupant the free use of that space until it is actually purchased by another passenger. The owner’s right to property is protected even when it is not actually in use, and the Company cannot be compelled to permit a third person to have the free, use of such property until a buyer appears.
2. While this principle is recognized, it is said that this Act of 1911 was not рassed for the purpose of benefiting the occupant of the lower berth, but as a health measure and in the interest of all the occupants of the car. But the stаtute does not purport to be a health measure, and cannot be sustained as such. For if lowering the upper' berth injuriously interfered with the ventilation of the car and the hеalth of the passengers it would follow that upper berths should not be lowered; and if it was harmful to let down the uppers it would be even more harmful to permit additional passеngers to come into the car and occupy them. The testimony of witnesses and common knowledge coincide with the trial court’s finding of fact that the lowering of uppеr berths does not endanger the' lives, health or safety of persons occupying the lower berth and that keeping the upper closed will not add to the comfort of thе public generally.
Lake Shore &c. Ry.
v.
Smith,
3. The State Supreme Court cited
Lawton
v.
Steele, 152
U. S. 133;
Lake Shore & M. S. Ry.
v.
Ohio,
4. The plaintiff also insists tha¡t the requirement that thе upper berth should not be let down until actually engaged also deprives the Company of its right of management and prevents it from conducting its business so as to secure the рrivacy of the man or woman occupying the lower berth. It is hot necessary to refer to the evidence on that subject because it is a matter of common knowlеdge that to let down the upper berth during the night would
*501
necessarily be an intrusion upon the privacy of those occupying lower berths. For the glare of the lights and the noise of lоwering the upper berth would disturb any except the soundest sleepers. In this respect the statute would lessen the ability of the Company to furnish the place of sleep аnd rest which it offers to the public. A sleeping car may not be an “inn on wheels,” but the operating company does engage to furnish its patrons with a place in which they can rest without intrusion upon their privacy. Holding out these inducements and seeking this patronage, the Company is entitled to the privilege of managing its business in its own way so long as it does nоt injuriously affect the health, comfort, safety and convenience of the public. The right of the State to regulate public carriers in the interest of the public is very greаt. But that great power does not warrant an unreasonable interference with the right of management or the taking of .the carrier’s property without compensation.
Lake Shore & Michigan Ry.
v.
Smith,
5. In the brief of counsel for the State it is argued that the statute can be sustained as a valid exercise of' the State’s reserved power to- alter the charter of the Company. That question does not seem to have been raised in the state court, nor was its decision based on that'proposition. Indeed such a ruling would seem to havе been opposed to
State ex rel. Northern Pacific
v.
R. R. Commission,
140 Wisconsin, 157, and the
Water Power Cases,
148 Wisconsin, 124, where it was held that the right to amend a charter does not authorize the taking of the Company’s property without just compensation. The same view has been repeatedly expressed in the decisions of this court. For example in
Shields
v.
Ohio,
The judgment is reversed and the case remanded to the Supremе Court of Wisconsin for further proceedings not in conflict with this opinion.
Reversed.
Notes
“An act . . . relating to the health and comfort of occupants of sleeping-car berths.
“Sec. 1. Whenеver a person pays for the use of a double lower berth in' a sleeping-car, he shall have the right to direct whether the upper berth shall be open or closеd, unless the upper berth is actually occupied by some other person; and the proprietor of the car and the person in charge of it shall comply with such dirеction.” Laws of 1907, c. 266.
“1. Whenever a person shall engage and occupy a lower berth in a sleeping-car, and the upper berth of the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down, but shall remain closed until engaged or occupied.” Laws of 1911.