after making the foregoing statement of facts, delivered the opinion of the court.
' A question has arisen at the outset as to the jurisdiction of a court of equity over a case like the one now presented. Assuming the right to relief in some form, has the complainant a plain and adequate remedy at law, or is the case such in its na *379 ture and in the relief demanded as would be cognizable in a court of equity ? The foundation of the right of action lies in the alleged invalidity of the ordinances of 1899, reducing the rates of fare on the railways of the complainant, because, as averred, those ordinances are in violation of the Federal Constitution, as impairing the obligation of contracts between the parties alréady existing, and therefore the claim is made that they should not be permitted to be enforced against the complainant where such enforcement might result in a multiplicity of suits, or in harassing and expensive litigation.
The аverments in the complainant’s bill upon this subject, which are set forth in the above statement of facts, show the additional and special grounds upon which the jurisdiction in equity is invoked. Of course, if the complainant obey these ordinances, no controversy can arise, but if in good faith it believe them to be invalid and hence not binding upon it, and without resorting to the courts for equitable relief, it refuses to obey them, the consequences may be not only embarrassing but may lead to much unnecessary and expensive litigation. Continuous demands for the tickets mentioned in the ordinances at the reduced price therein provided for. maybe made by passengers while in the cars of complainant, and they may refuse to pay fare at the old rate, and may carry such refusal to the point of suffering removal from the cars on account of nonpayment of faré. "What amount of force would be necessary in the opinion of the various passengers to demonstrate that their going was not voluntary would of course give rise to disputes between them and the conductors, and would possibly, if not probably, lead to frequent breaches of the peace in the course of these attempts at removal. If not removed, then the passengers would either pay no fare or the complainant would have to accept the fare as provided in the ordinances of 1899, and that would be the same in fact as submitting to their enforcement.
The roads operated by complainant are also indebted to an extent of over eight million dollars, secured by mortgages upon the railways, their franchises, rights and privileges, together with the tolls and fares, earnings and profits arising therefrom, *380 and some of this indebtedness is soon to mature, and it is admitted that the bonds issued as evidence of such indebtedness and secured by its mortgages were so issued and sold to and purchased by the holders thereof in the full fаith and belief that the various roads l'epresented by the complainant had the right to charge the rates of fare fixed by the'ordinances already mentioned ; such belief being based upon the existence and terms of such ordinances.
The ability of the complainant' to renew or extend its mortgage indebtedness might depend upon belief in the validity of the contracts as to the rates of fare agreed upon before the attempted alteration thereof by the ordinances of 1899. The immediate enforcement of these later ordinances might result in such a decrease of income as to seriously imperil the solvency of the complainant. An equitable action. like this would certainly be more adequate and offer more effective and immediate relief than for the complainant to await the various actions at law to which it would otherwise be subjected b}A the defendants and the individuals demanding the reduced rаtes for transportation.
The mayor and corporation counsel have, as is seen, been joined with the city as defendants in the suit. The reason for the joining of the individual defendants would seem to be that they are the officers upon whom would devolve the execution of the ordinances passed by the common council, and in the answer of the defendants it is admitted that they intend to enforce obedience by the company to such ordinances. The case is similar in some of its aspects to that of
Smyth
v.
Ames,
It is a matter of general public interest, as well as of vital importance to the complainant, that the question involved in this litigation should be determined at the earliest possible moment, and once for all, and thus a multiplicity of suits and other complications prevented.
Talcing аll these facts into consideration, and bearing in mind that the answer does not set up any defence of the lack of jurisdiction of a court of equity'over the subject-matter, and does not insist that there is an adequate and plain remedy at law, (and no such objection has'been taken at anytime, and has not been insisted upon before us,) we do not feel compelled, under the peculiar circumstances of the case, to ourselves take notice of it.
It is not such a case as on its face equity could have no jurisdiction over, such as an action to recover damages for an assault, or for a libel or slander, but the question between the parties as to the validity of various ordinances and the right of the city to enforce them, involving, as they may, the credit and possibly the solvency of the complainant, and taking into consideration the public interests involved in a speedy and final determination of the question, all these as well as other facts already mentioned, we think, make out a case for following the' general rule, that a defence of this nature will not be recognized where it has not been taken by answer or in any other manner and is not insisted upon on the hearing before the court.
Reynes
v. Dumont,
.. We do not mean to assert that in all cases of this nature,.in *382 volving simply the validity of a subsequent ordinance or law, a court of equity would be the proper forum, but confine our decision to the special facts of this case, including the fact that no objection has been taken to the jurisdiction of the court at any stage of the litigation, and is not now raised by any party to the same.
This brings us to a consideration.of the questions argued at the bar.
In furtherance of the claim by defendants that the ordinances of 1899 reducing the rates of fare are valid, it is urged that express authority from the legislature is required to enable the common council of a city to pass оrdinances such as those described in this case, providing for the consent of the city to the laying of tracks and the running and operation of a ..railroad through its streets and the fixing of rates of fare, and that no such power was granted in this case, and if there were, there has been no agreement made by the passage of the ordinances referred to in the statement of facts. It may be conceded that clear authority from the legislature is needed to enable the city to make a contract or agreement like the ordinances in question, including rates of fare. But there can be no question in this court as to the competency of a state legislature, unless prohibited by constitutional provisions, to authorize a municipal corporation to contract with a street railway company as to the rates of fare, and so to bind during the specified period any future common council from altering or in any way interfering with such contract.
New Orleans Gas Company
v.
Louisiana Light
Company,
It is, however, urged that the terms employed in the ordi-. *383 nances- under which the complainant runs its different lines of street railways are not sufficient to constitute contracts, which may not be-altered at the pleasure of the common council. It is said that at least in regard to the ordinances relating to those companies organized under the Tram-railway Act, no contract can be found in them, as there was no special provision in that act for an agreement between the city and a company applying for the use of its streets, as to the rates of fare, and therefore a statement in an ordinance upon that subject would amount to no more than a license which might be аltered or revoked at any time; and that if the language were a contract, it was in the power of the common council to alter or abrogate it under section 34 of the Tram-railway Act.
It will be seen that under section 34 of the Tram-railway Act, as it was enacted in 1861, a railway corporation organized under the act could not construct a railway through the streets of a city without the consent of the municipal authorities, “and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe.'” Hence, it is argued that any terms or conditions under which the railway company obtained the consent of the municipal authorities might'by the same authorities be from time to time altered as they should in their discretion think fit.
In
Pingree
v.
Michigan Central Railroad
Company,
*384 There is no provision in the act referred to in the above cited case, of a nature similar to the one in question here, providing for regulations, terms and conditions which might from time ■to time be prescribed. The case shows, however, that in the opinion of the Supreme Court of Michigan, language similar to that used in the ordinance, (omitting such provision,) amounted to a contract, and the question, remaining would be whether the further language contained in the ordinance permitted an alteration of the terms of the contract as the common council might from time to time prescribe. The rate of fare is among the most material and important of the terms and conditions which might be imposed by the city in exchange for its consent to the laying of railroad tracks and the running of cars thereon through its streets. It would be a subject for grave consideration and conference between the parties, and when determined by mutual agreement, the rate would naturally be regarded as fixed until another rate was adopted by a like agreement. Can it be possible that under this language- permitting consent upon such terms and conditions as the city might from time to time prescribe, the power was reserved to make a rate of fare which might ruin the whole enterprise ? That a rate once deliberately and. mutually agreed upon might be thereafter and from time to time altered at the pleasure of the city alone ? Will it be believed-the parties thus understood the meaning of that provision ? It would hardly be credible that capitalists about to invest money in what was then a somewhat uncertain venture, while procuring the consent of the city to lay its rails and operate- its road through the streets in language which as to the rate of fare amounted to a contract, and gave the company a right to charge a rate then deemed -essential for the financial success of the enterprise, would at the same time consent that such rate then agreed upon should be subject to change from time to time by the sole decision of the common council. It would rather seem that the language above used did not and was nоt intended to give the right to the common council to change at its pleasure from time to time those important and fundamental rights affecting the very existence and financial success of the company in the operation *385 of its road, but that by the use of such language there was simply reserved to the city council the right from time to time to add to or alter those general regulations or rules for the proper, safe and efficient running of the cárs, the character of service, the speed and number of cars and their hours of operation and matters of a like nature, such as are described in the opinion of the court below in this case. Such would seem to be a reasonable construction of the language. It is unnecessary to conclusively determine the question, because we think that under sections 20 and 29 of the Street-railway Act of 1867, above set out, and by the subsequent adoption of the ordinance of 1879, (set out in the foregoing statement of facts,) relating to the Detroit City Railway Company, (and by the adoption of similar ordinances thereafter with regard to the other- companies,) binding agreements were made and entered into between the city on the one side and the companies on the other relating to rates of fare, and such agreements could not be altered without the consent of both sides.
These agreements had express legislative authority, not only under the Tram-railway Act, but also and particularly under the Street-railway Act of 1867. By the twentieth section of the latter act it was provided that the rates of toll or fare, which any street railway may charge for the transportation of persons or passengers over its road, should be established by-agreement between the company and the corporate authorities of the city or village where the road is located, and should not be increased without the consent of such authorities. The provisions of this section, among others, were by the twenty-ninth section of the act transferred to “ all companies and corporations heretofore organized in this State for the purpose of building and operating street railways under the statutes then in force, and shall have the same powers, rights of protection and privileges and shall be subject to all the liabilities as hereby provided for companies organized under the provisions of this act.”
It is plain that the legislature regarded the fixing of the rate of fare over these street railways as a subject for agreement between the parties ar d not as an exercise of a governmental *386 function of a legislative character by the city authorities under a delegated power from the legislature. It was made matter of agreement by the express command of the legislature. Ordinances of a like nature/were passed by the common council relating to the other companies, and all of them were accepted in writing and they all had in them provisions relating, to, or referred to ordinances providing for, the rate of fare in language similar to the foregoing.
Coming to a consideration of the effect of the language used, we think it amounted to a contract as’ to rates of fare. The ordinance of 1879 and the similar ordinances thereafter passed relating to the other corporations, together with the Street-railway Act of 1867, and sections 20 and 29 thereof, make out plain agreements entered into between the parties in- relation, among other things, to-the rates of fare to be charged by those companies.. In the ordinance of 1879 and in the other ordinances under consideration, there were provisions made for special taxation of the companies which the Supreme Court of Michigan in
Detroit Citizens’ Street Railway Company
v.
Common Council of the City of
Detroit,
In
City Railway Company
v.
Citizens' Street Railroad Com
p
any,
Although in that case there was no provision in the statute directing that the rates of fare should be established by agreement, yet nevertheless it was held that the language used amounted to an agreement upon the subject matter which could not be altered during its continuance by either party.
Upon this question considerable stress has been laid in the brief and in the arguments of counsel for the defendants upon the case of
Georgia Railroad & Banking Company
v. Smith,
In the case at bar, however, the rates are fixed under the provisions of q. statute which declares that they shall be so fixed by agreement between the parties. The ordinance of 1879 adopts that of 1862 and reaffirms it. The rate of fare therein provided is made a rate under the ordinance of 1879, and that ordinance was adopted while the Street-railway Act was in force, and which specially provided for an agreement as to rates of fare, and the provisions of that act were transferred to the companies organized under the Tram-railway Act. It may very ' well be that language'uséd by a legislature in merely conferring authority upon a company to fix certain charges for fare might not be regarded as amounting to a contract, when the same language used by parties in fixing rates under a legislative authority and direction to agree upon them, would be regarded as *389 forming a contract because the statute provided specially for that mode of determining them. Under such direction, we are of opinion the language used in the ordinances amounts to an agreement, for that is the way in which the rates are to be arrived-at, and the reaffirmation of the previous language, by reaffirming and adopting the ordinance of 1862, by the ordinance of 1879, and its acceptance, constitute an agreement as of that time. The same as to the ordinances relative to the other roads. The rate of fare having been fixed by positive agreement under the expressed legislative authority, the subject is not open to alteration thereafter by the common council alone, under the right to prescribe from time to time the rules and regulations for the running and operation of the road.
Nor does the language of the ordinance,- which provides that the rate of fare for one passеnger shall not be more than five cents, give any right to the city to reduce it below the rate of five cents established by the company. It is a contract which gives the company the right to charge a rate of fare up to the sum of five cents for a single passenger, and leaves no power with the city to reduce it without the consent of the company. The language of section 20 in the Street-railway Act of 1867, which provides that the rate of fare agreed upon shall, not be increased without the consent of the city authorities, does not mean that the rate may be reduced without the consent of the railway companies, nor does it show the parties did not suppose there was a contract between them as to rates. That provision does not seem to perform any material function, because without it, the parties having agreed upon the subject of rates, it would follow that the agreement could not be аltered by either party without the consent of the other. It may be that it was meant that the company, while unable to increase the rates of fare without the consent of the city authorities, had the right to reduce the rates afe it might please without consulting the city.
It was probably inserted from abundant caution, but in no event can it properly or fairly be regarded as an implied permission to the city authorities to reduce the rates of fare as agreed upon without the consent of the railway company. The reasons are obvious and need not be restated.
*390 It is said, however, that section 34 of the Tram-railway Act was amended some twenty-two days after the passage of the Street-railway Act containing the above sections 20 and 29, and that, therefore, the provisions of the amended Tram-railway Act must apply exclusively.
The amendment made to section 34 of the latter act in 1867 has been set forth in the statement of faсts above made, but for convenience will be repeated here, as follows :
“ Provided further, that after such consent shall have been. given and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises granted shall be destroyed or unreasonably impaired, or such company or corporation be deprived of the right of. constructing, maintaining and operating such railway in the streets in such consent and grant named pursuant to the terms thereof.”
Referring to this amendment, it is argued that the city had the right to pass these ordinances of 1899 as a regulation and condition for the operation of the road, unless the rights or franchises already granted to the company should thereby be destroyed or unreasonably impaired, or unless the company would be thereby deprived of the right of constructing, maintaining and operating its railway pursuant to the terms of the original consent, and such impairment is not alleged in the complainant’s bill. It is obvious that the additions to the original Tram railway Act made in 1861 and 1867 were laws in pari materia with the Street-railway Act passed in 1867, and should therefore be construed together to obtain the legislative meaning. _ -
_ Bearing in mind the provision of section 29 of the Street-railway Act, granting to other corporations the same powers as are given to the companies organized under that act, and coming to a consideration of the amendment to section 34 of the Tram-railway Act made in 1867, we find no inconsistency or contradiction between the two acts. The amendment to the thirty-fourth section prohibited the city from making any regulations or conditions whereby the rights or franchises of the company should be destroyed or unreasonably impaired, or whereby it *391 should he deprived of the right of constructing, maintaining and operating its railway pursuant to the terms of the consent, while section 20 of the Street-railway Act provided'in terms for an agreement between the parties upon the question of rates of fare, and the parties having fixed such rate by agreement, entered into by authority of the legislature, there can' be no question of its binding force. Section 14 of the same act also safeguarded the rights of the companies, and that section might be referred to in aid of its rights, by the company. The Tram-railway Act amendment of 1867 is a general provision regarding regulations or conditions, destroying or unreasonably impairing rights or franchises already granted, or depriving the company of rights of construction and operation, and should be construed also in connection with section 14 of the Street-railway Act, while the matter of rates of fare is specially provided for by section 20 of the last named act, which provides for an agreement on that subject. The two acts are entirely harmonious and may be fully carried out so as to involve neither incongruity nor inconsistency.1
But the defendants raise the objection that section 29 of the Street-railway Act cannot be applied -to companies formed under any other act for the reason that to apply it to such companies would violate the state constitution, section 20 of article 4, which provides that “ no law shall embrace more than one object which shall be expressed in its title.”
The title of the Street-railway Act is “ An act to provide for the formation of street railways,” and the claim is made that the-provision of section 29, making the act applicable to other companies, is outside and beyond the object of the act as expressed in its title.
The meaning to be given to the constitutional provision was stated in
People ex rel. Secretary of State
v.
State Insurance
Company,
“We must .give the constitutional provision a reasonable construction- and effect. The cohstitution requires no law to embrace more than one object, which shаll be expressed in its title. Now, the object maybe very comprehensive and still be *392 without objection, and the one before us is of that character, Rut it is by no means essential that every end and means necessary or convenient for the accomplishment of the general object should be either referred to or necessarily indicated by the title. All that can reasonably be required is that the title shall not be made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a nécessary or proper connection.”
Similar provisions are to be found in the constitutions of several of the States, among them that of New Jersey, and the meaning of such provision was brought before this court in
Montclair
v. Ramsdell,
The constitution of Illinois contains a similar provision, the construction of which also came before this court in
Jonesboro City
v.
Cairo &c. Railway
Company,
“ The title of the act is {An act to amend the charter of the Cairo and St. Louis Railroad Company.’ The contention is, that the legalization of an election previously' held, and at which the people voted in favor of a subscription of stock to that company, and the granting of authority to issue bonds in payment of such subscription, is not a subject expressed by the title of the act. In this view we do not concur, and our conclusion is justified by the latér decisions of the Supreme Court of Illinois construing a similar provision in the state constitution of 1870. It was held in Johnson v. People, 83 Illinois, 431, that the constitution does not require that the subject of the bill must be specifically and exactly expressed in the title; hence we conclude that any expression in the title which calls attention to thе subject of the bill, although in general terms, is all that is required.”
We have examined the various cases cited by counsel for the defendants, arising in the State of Michigan under the constitutional provision in question, and it is sufficient to say that *393 we think not one of them extends that provision so as to embrace a case like the one'at bar. Narrowly considered, an act to provide for the formation of street railway companies should contain nothing but provisions relating to their formation and organization, but it would be absurd to hold that the constitutional provision would prevent the introduction into such an act of ‘various details in regard to the corporations after their formation and in regard to their government, operation, regulation and other matters which might be fairly considered as germane to.the particular object named in the title of the statute, and hence, we think it would be a most narrow construction of the constitutional provisiоn to hold that under such a title it was incompetent for the legislature to provide that the benefits and obligations conferred and provided for in the act should be made applicable to corporations of a like character already organized and in operation. It is germane and appropriate to the subject-matter of the act,, and to enact under such a title that all companies of the like nature should have the same privileges is fairly within the general object described in the title. This being true, the companies organized under the Tram-railway Act were equally, with those organized under the Street-railway Act, enabled' by the express authority of the legislature to enter into a contract for a rate of fare with the city, and when in 1879 and the subsequent years those companies which were organized under the .Tram-railway Act entered into further agreements with the-city in the way of ordinances, those agreе.ments Avere valid so far as the objections heretofore considered are concerned, and-not subject, in regard to this matter, to alteration at the will of one party only. The agreements being valid in the case of companies organized under the Tram-railAvay Act, it follows that those entered into with the other companies organized under the Street-railway Act were also valid.
Still another objection is raised by the defendants to the validity of the ordinances passed in 1879 and 1880 and 1885, by Avhich the poAvers and privileges conferred and the obligations imposed upon the railway companies by the former ordinances were extended and limited to thirty years from the date of the supplemental ordinances, the objection being that the extending of *394 the term of the consents beyond, the then limit of the corporate life of the companies was illegal and void. We are not of that opinion.
This was matter of agreement between the parties! The franchise to be a corporation came from the State, and all that the company required from the city was its consent to the laying down of the rails and the operation of the road through the streets of the city, and'such consent was to be given upon terms and conditions to be agreed on. This consent, when given, became a privilege or franchise granted to the corporation, and was property belonging to it. By the ordinance of 1879 the ' duties and obligations of the company therein mentioned were largely increased, additional taxes were provided for, and also extensions of its tracks' as stated in the ordinance. The company also agreed to furnish all the materials and do all the paving mentioned at its own expense. One inducement to the company t,o agree upon and accept this ordinance ivas that the term which the city had originally consented to for the use of its streets by the company should be extended to thirty years from the date of the new ordinance. Although the company ' itself, by the act under which it was incorporated, was limited in its corporate life to a term of thirty years from the date of its organization in 1862, the extension of the term of consent by the city cai’ried such.consent about sixteen years beyond its then corporate life. Of course, no one contends that this.extension of the term for the use of the streets of the city in any manner affected the limit of the term of the corporate life of the company,, but the limitation of its life did not prevent it from taking franchises or other property, the title to which would not . expire wit!, die corporation itself. A corporation whose corporate existence was limited to a term of years could always purchase the fee in property which'it needed for the operation of its business. If at the end of its tеrm its life wTere. not extended, the property which it owned was an asset payable to the shareholders after the payment of its debts,- and in a case like the present, where the consent was assignable and transferable, partiéularly by .virtue of section 15 of the Street-railway Act. abové set forth, any company itself having corporate exist
*395
ence for that purpose, could purchase the outstanding term and operate its road thereunder.
We
see no reason why the company could not take the extended term as provided for in the ordinance, and it formed a good consideration for the agreement on the part of the company to perform the other obligations contained in the ordinance. This exact proposition has been determined by the Circuit Court of Appeals for the Sixth Circuit in
Detroit Citizens' Street Railway Company
&c
Others
v.
City of Detroit,
The case above cited in the Circuit Court of Appeals for the Sixth Circuit, it.will be noticed, is between the same.parties as the case at bar, and if the judgment therein had been pleaded or put in evidence .upon the trial of this action, we cannot now see why it would not have been res adjudicata between the parties in this suit upon that question, at least as to the particular road then under discussion.
In City of Detroit v. Ellis, Attorney General, 103 Michigan, *396 612, upon an application for a mandamus the decision of the United States Circuit Court of Appeals was regarded as res adjudicaba of the question in issue in that suit on an application by the city and certain individual citizens for a mandamus to compel the attorney general to file an information in the nature of quo warranto to' inquire by what right the railway comрany maintained and used its tracks in the streets after the date named. Without treating the case in the Circuit Court of Appeals as strictly res adjudicaba, we regard the conclusion arrived at by that court upon the question under discussion as correct, and consequently the objection now urged by the defendants to the validity of the ordinance of 1879 and the other ordinances similar to it cannot be maintained.
The further objection is made that under the power of alteration and repeal, provided for in the constitution of Michigan and under the terms of the various ordinances giving power to the common council in certain cases to provide for further rules and regulations, the right is reserved to the common council to alter the rates of fare provided for in the various- ordinances under consideration, as it alone may regard reasonable and just, without the consent of the company.
The constitution of the State of Michigan, article 15, section 1, provides: “ Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All laws passed pursuant to this section may be amended, altered or repealed.” Counsel for the defendants contends “ that the regulation of rates of fare or toll upon the street railway is a governmental function, delegated by the legislature of the State of Michigan to the municipalities, and no matter in what form-such delegation of power may be exercised, whether by ordinance or an assumed contract, it is nevertheless a law, subject to alteration, amendment or repeal. It has not been the policy of the State of Michigan since the adoption of the present constitution to permit irrevocable legislation. The State cannot do it itself, and if it cannot, surely one of its creatures, like a city, cannot-be permitted to dо that'which its creator is prohibited from doing.”
We haye already-seen that the legislature was competent to
*397
grant to the city of Detroit the right to give its consent to the laving of the tracks of a street railway and the. operation of the same in and through its streets upon such terms and conditions as the parties might agree upon. The grant of this power was not the formation of a municipal corporation, directly or indirectly, either in substance or effect. The legislative act which granted the power to the city could not be altered, amended or repealed by the latter. No such power was given to it by the legislature and probably could not even be delegated in any event. It is sufficient to say that none was attempted.
City Railway Company
v.
Citizens’ Railway
Company,
The legislature has not attempted to- interfei’e with the rights of the street railway companies in Detroit, and hence the extent of its- power so to do is not involved in this case.
We are then- brought to the question of the reservations in the ordinances themselves. An examinatiоn of. them leads us to the conclusion that not one provided or was intended to pro.vide for a power to alter an agreement in relation to the rates of. fare entered into between the parties. The right from time to time to make such further rules, orders or regulations as to the common council may seem proper, cannot be held to extend to the alteration of a contract as to the rate of fare which shall be charged for the transportation of passengers. We think, as was stated by the court below,, that this reservation permitted the city to make further rules or regulations than ’those contained in the ordinances, in regal’d “ to all matters incident to the construction and operation of the road, such as the location of the tracks in the streets, the placing of switches and turn tables, the repair of the pavement between the tracks,. the removal or limitation of the number of tracks, in the interest of public travel, the frequency with which cars should be run for the public convenience, the stopping of cars at street crossings, the use of fenders, the rate of speed to be maintained, the sale of tickets, and generally to details of the conduct and operation of the railway, which experience might show to be necessary, in addition to or in amendment of those specified in the consent, for the protection of life, the accommodation of the pub-
*398
lie,'-and the avoidance of injury to private property. Such regulations are not invasions of the contract rights of the company and are just and reasonable.”
Lake Shore & Michigan Southern Railway Company
v. Ohio,
The fixing of rates is, as we have already said, among the most vital portions of the agreement between’the parties contained in thé ordinances. It cannot be supposed for one moment, with regard to a right so fundamental in its nature, that there was any intention to permit the cоmmon council in its discretion to thereafter make an alteration which might be fatal to the pecuniary success of the company. For the reasons already given, we think the language used does not, in fact, give any such power to the common council. The ordinances of 1899 are, so far as this record shows, the first wherein the common council has assumed to make any change in the rates of fare without the assent of the company to be affected thereby. From 1862 until 1899 there seems to have been no attempt to exercise this alleged power of alteration by the common council without the consent of the railway company. While the rate of fare existed as agreed upon between the city and" the railway company', expenditures involving millions of dollars -were entered upon, changing the mode of transportation from animal to electric power, and no claim seems ever to havе been made on the part of the city of a right of alteration to be exercised in accordance only with its own views of reason and propriety. This in itself is a strong implication of the want of any süch power under the various reservations set forth in the foregoing statement of facts and contained in the ordinances specified. But aside from that and considering only the nature of the right itself growing out of the agreement as to fares, we áre of the opinion that not one of the reservations of the right to make further rules or regulations could by any fair construction' be held, to include the right on the part of the city at its own pleasure to reduce the rates of fare agreed upon in those.ordinances.
We have thus answered the chief objections of the city to. the maintenance of this action. Some others have been made, which we have examined, but do not think it necessary to fur *399 .ther refer to them than to say they are in our opinion not well founded.
¥e think the conclusions arrived at by thé court below are correct, and its judgment is, therefore,
Affirmed.