Protection of Public Service Company Property istence. "A railroad," for example, "is a public highway and none the less so because constructed and maintained through the agency of a corporation deriving its existence and powers from the state."* "A railroad's right of way has, however, the substatUiality of a fee and it is private property even to the public in all else but an interest and benefit in its uses.'"f Both corporations performing public services and the peo ple beneficially interested have rights in the property used in the exercise of public franchises, t It is nowhere as serted that the property of a public service corporation is held as absolutely as that of a private individual. Whether the limitation is viewed as upon the property of the public or upon that of the corporation, that of the corporation is something other than private. That a public service corporation administers its property as the servant primarily of the public was held in Erie & N. E. R. R. Co. v. Casey, by the Supreme Court of Pennsylvania.il Though the author ities certainly afford a pretext for con troversy upon the nature of the corpora tion's property, the only real basis for discussion is found in dicta of judges who did not sound the depths of the question of property. That it is funda mental and preliminary to discussion of the justice of a particular public regula tion was clearly shown by Jeremiah S. Black in his address delivered before the Judiciary Committee of the Pennsyl vania Senate, at the session of 1883, on "Corporations under Eminent Domain." The cases leave no doubt as to the char acter of the property interest of the pub lic service corporation. A truer public appreciation thereof is evidenced by the • Mr. Justice Harlan, in Smyth v. Ames, 169 U. S. 466. t Western Union Telegraph Co. v. Pennsylvania, 195 U. S. 540. t Smyth v. Anus, 169 U. S. 466. I 2 Casey, pp. 307-324.
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creation of franchise bureaux, watch fulness against private encroachment upon public property of municipalities, the limitation of franchises to short terms, and the requirements that the accounts of public service corporations shall expose transactions in public prop erty to constant publicity.* Everything used by a public service corporation is impressed with a trust in favor of the public. The franchises of corporations having public duties to perform, such as railway companies, canal companies, turnpike companies, gaslight companies, and the like, cannot be alienated or seized under judicial process by creditors, without the con sent of the legislature, because this would disable them from discharging the public duties they have assumed, and in consideration of which they have been granted to them.t Nor can a railway, without legislative authority, turn over to another company its road and the right to use its franchises in respect of the same, and thereby ex empt itself from the responsibility of the conduct and management of the road, and from the performance of its public duties in connection therewith. t Whatever property the corporation uses, it must acquire from the prior owner, whether an individual or a municipality, and in the acquisition the purposes for which the property is to be used must be defined. Protected as property, not even the dissolution of the corporation by the legislature will divest the owner ship. || There is a distinction between the estate which a corporation may take for the purposes of alienation and the • Order issued December, 1908, by New York Public Service Commission. t Cyclopedia of Law and Procedure, vol. 10, p 1090, and cases cited. } Cyclopedia of Law and Procedure, vol. 10, p 1092, and cases cited. | People v. O'Brien. Ill N. Y. 1.
