If either of the defenses set up in this-answer is a bar to the action, the court erred in sustaining the demurrer, and its judgment should have been reversed. The defenses are needlessly separated, and might, as it seems to me, have been conjoined as a single ground of defense. Without undertaking to decide upon the value or sufficiency of each of the several defenses, separately considered, it is sufficient to say that, in our judgment, the second, which alleges that the company’s profits for the ten years next preceding the date of the act of 1875 was less than ten per cent., is a bar to the action, unless avoided by some matter in reply. To' *213¡deny that the charter of the company, granted and accepted under the constitution of 1802, is to be regarded as in the nature of a contract between the company and the state, would be to unsettle established law. By this charter, the state expressly agreed, that if the company would accept the charter, organize -under it, and build and operate the road, no reduction should be made in the specified rates of charges until its net profits for ten consecutive years should amount to ten per cent, per annum upon its capital. The demurrer to the second ground of defense admits that this contingency has never happened, and that to reduce the defendant’s rates of fare, under the circumstances existing .at the date'of the act of 1875, would be a direct violation ■of the contract made by the state.

The validity of this defense is denied on three grounds :

1. It is said that the regulation of rates of fare and charges for freight are mere matters of police, and that legislative power over the subject is implied in all charters. Whether fhis may be the law in cases where the charter is silent as to rates of charge, or where it merely specifies them, without any special agreement as to their alteration, we need not now decide. Here there is a special agreement that they shall not be reduced except on the happening of a named contingency, and then only to a specified extent. Jn such a contract there is no room for implication. The power claimed is expressly relinquished by the state.

2. It is contended that the power to regulate charges for freight and fare is in such a sense a police power that the legislature can not part with. We think the contrary is well established as the law. The right to take tolls, fare, or charges for freight is of the essence of such a charter. Its value depends almost exclusively upon that right. The power to take away the right to receive tolls, or to reduce them to a minimum, is substantially equivalent to an unlimited power of repeal.

3. It is claimed that the 'legislature having made the act •of 1875 applicable to this company, we must presume that flie legislature found the existence of the contingency dn *214which it might be passed, namely, that the profits of the-company for the previous ten year's had exceeded ten per cent., and that that finding is conclusive of the fact. Had the act been prefaced by a preamble reciting such a finding, or had the act been made specially applicable to this company, by name or otherwise, we do not say that such would not have been the law of the case. But here there is no preamble or express finding, nor can any such finding be-reasonably presumed. The act is made applicable to all railroad companies alike. If we’ presume any finding at all, it must be a finding that all the railroad companies chartered under the old constitution are making ten percent. net profits on their capital, and that their future profits under the act of 1875 would amount to ten per cent. This would be quite an unwarranted presumption. The utmost effect that can be given to the act of 1875, so far as regards these old companies, is to make it applicable where the contingency authorizing legislative interference has in fact occurred.

We think, therefore, that the act of March 30, 1875, in so far as it assumes to reduce the rates allowed to companies organized under the act of 1848, and prior to the adoption of the present constitution, whose net profits for the ten previous years were in fact below ten per cent, on their capital, and who have not relinquished their right to be governed by the last named act, is unconstitutional and inoperative.

Judgment reversed, demurrer sustained, and cause remanded.