performing state functions, with the aid of state franchises, "He expresses his willingness to do the work of the state, aware that the state in the discharge of its public duties is not guided solely by a question of profit. It may rightfully determine that the particular service is of such importance to the public that it may be conducted at a pecuniary loss, having in view a larger general interest. At any rate, it does not perform its services with the single idea of profit. Its thought is the general public welfare." Cotting v. Kansas City Stock Yards Co., 183 U. S. 79. When however the business is in the nature of a private enterprise and becomes subject to governmental control, solely because it is affected with a public interest, the rule is otherwise, as its owner is not doing the work of the state, nor can he appropriate its powers. Under such conditions it is but just that the owner of such a business should be "subject to the ordinary conditions of the market and the freedom of contract. He can force no one to sell to him, he can not prescribe the price he shall pay. He has a right to do business. He has a right to charge for each separate service that which is a reasonable compensation therefor, and the legislature may not deny him such reasonable compensation; and may not interfere simply because out of the multitude of his transactions, the amount of his profits is large." Cotting v. Kansas City Stock Yards Co., 183 U. S. 79.

§ 190. Recent cases on the subject of rates and due process. In Peoria Gas & Electric Co. v. Peoria, 200 U. S. 48, it was held that a contract to fix the price of gas between rival gas companies, made in violation of Illinois antitrust act of June 11, 1891, did not, after they had ceased to act under it, take away their right to invoke the due process of law clause of the Fourteenth Amendment in order to defeat a municipal ordinance having the effect, through the establishment of unremunerative rates, of taking private property for public use without

compensation. In Seaboard A. L. Railway v. Florida, 203 U. S. 261, it was held that due process of law was not denied to a railway company whose transportation of phosphates constitutes about one-sixth of its local freight business, by an order of a state railroad commission commanding that the local freight rate for phosphates should not be more than 1 cent per ton per mile, when the rate so fixed was nearly 2 mills per ton greater than the average local freight rate of the company. In Ex parte Young, 209 U. S. 123, it was held that as the act of a state legislature fixing rates for the transportation of either freight or passengers is deemed prima facie valid, the burden of proof rests on the carrier who undertakes to maintain the contrary. In Railroad Commission v. Cumberland Teleph. and Teleg. Co., 212 U. S. 414, it was held that a telephone company seeking to enjoin, as unreasonable and confiscatory, the enforcement of rates fixed by a state commission, must assume the burden of proving what part, if any, of the depreciation fund accumulated by it from receipts, was added to the capital upon which dividends are to be paid. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210, it was held that although the Virginia State Corporation Commission is, for some purposes, a court, acting only after hearing and inquiry, the establishment by it of railway passenger rates is not res adjudicata in a suit seeking injunctive relief on the ground that such rates are confiscatory, because proceedings to establish rates are in their very nature legislative and not judicial. In Northern P. R. Co. v. North Dakota, 216 U. S. 579, it was held that where a state court has enjoined a carrier from further violations of a state law fixing rates for the transportation of coal within the state, against the contention that the maximum rates so fixed are confiscatory, the Federal Supreme Court will affirm the judgment, if the evidence leaves the question of reasonableness in doubt, without prejudice however to the right of the carrier to reopen the case, if, after a further trial, it believes it can demonstrate more clearly

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the fact that such rates are confiscatory. In Simpson v. Shepard, 230 U. S. 352, the Court said: "Are the state's acts and orders confiscatory? The rate-making power is a legislative power and necessarily implies a range of legislative discretion. We do not sit as a board of revision to substitute our judgment for that of the legislature, or of the commission lawfully constituted by it, as to matters within the province of either. San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 446. The case falls within a well defined category. Here we have a general schedule of rates, involving the profitableness of the interstate operations of the carrier, taken as a whole, and the inquiry is whether the state has over-stepped the constitutional limit by making the rates so unreasonably low that the carriers are deprived of their property without due process of law, and denied the equal protection of the laws." It was held that an interstate carrier's intrastate rate may not be fixed so low by the state that its entire revenue from all sources, interstate and intrastate, after deducting only operating expenses and taxes, shall amount to only about 4 per cent on the value of its property within the state. "In view of the actual results of the business in the state, and the clearly established facts with respect to the conditions of traffic upon this road, the conclusion can not be escaped that the rates prescribed by the acts and orders of Minnesota would not permit a fair return to this company." United States v. Atchison, T. & S. F. R. Co., 234 U. S. 476, involved the correctness of a decree of the Commerce Court, enjoining the enforcement of an order of the Interstate Commerce Commission, based upon the long and short haul clause of the act to regulate commerce. After construing that act the Supreme Court held that the Commerce Court had erred; that the due process of law clause of the Federal Constitution had not been violated because the act in question, as construed by said commission, does not authorize the arbitrary destruction of the rights of persons or communities.

In Northern P. R. Co. v. North Dakota, 236 U. S. 585, it was held that a state law was confiscatory and due process as guaranteed by the Fourteenth Amendment denied, where the maximum intrastate rates fixed for the transportation of coal in carload lots, taking into account the entire traffic to which such rates are applied, compel the carrier to transport the commodity for less than cost, or without substantial compensation in addition to cost, even when the return to the carrier from its entire intrastate business may be adequate. In Milwaukee Elec. R. and L. Co. v. Railroad Com., 238 U. S. 174, it was held that a street railway company was not deprived of its property without due process of law by the exercise of a state's lawful power to fix street railway rates, notwithstanding a municipal rate ordinance, called a "contracting ordinance." See, by way of illustration, O'Keefe v. United States, 240 U. S. 294, holding that where Congress has forbidden them from considerations affecting the public welfare, a trunk line railway has no right protected by the due process clause of the Fifth Amendment to build up its business by paying tap line railroads rebates or bonuses. And also United States v. Merchants & M. Traffic Asso., 242 U. S. 178.

§ 191. Police power to promote public convenience. In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, a case involving the police power and due process, it was held that a state's police power embraces regulations framed to promote the public convenience or the general prosperity, as well as those designed to promote the public health, the public morals, or the public safety. In the case in question the Court said: "The learned counsel for the railway company seem to think that the adjudications relating to the police power of the state to protect the public health, the public morals, and the public safety are not applicable, in principle, to cases where the police power is exerted for the general well-being of the community apart from any question of the public health, the

public morals, or the public safety. Hence, he presses the thought that the petition in this case does not in words suggest that the drainage in question has anything to do with the health of the drainage district, but only avers that the system of drainage adopted by the commissioners will reclaim the lands of the district and make them tillable or fit for cultivation. We can not assent to the view expressed by counsel. We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 292; Gilman v. Philadelphia, 3 Wall. 713, 729; Pound v. Turck, 95 U. S. 459, 464; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 470." See to the same effect, Bacon v. Walker, 204 U. S. 311, governing Bown v. Walling, 204 U. S. 320.

§ 192. Police power and the exclusion of suicide as a defense on policies of life insurance. In Whitfield v. Aetna L. Ins. Co., 205 U. S. 489, it was held that, unless suicide was contemplated at the time application was made for the policy, the exclusion of suicide as a defense in suits on policies of life insurance, effected by the Mo. Rev. Stat. of 1879, is a legitimate exercise of police power by the state. In that case the Court said: "That the statute is a legitimate exercise of police power by the state can not be successfully disputed. An insurance company is not bound to make a contract which is attended by the results indicated by the statute in question. If it does business at all in the state, it must do so subject to such valid regulations as the state may choose to adopt. Even if the statute in question could be fairly regarded by the court as inconsistent with public policy or some morality, it can not, for that reason alone, be disregarded; for it is the province of the state, by its legislature, to adopt such policy as it deems best, provided it does not, in so doing, come into conflict with the Constitution of the state or