concurring in dissenting opinion of J ustioe BkowN : There is one reason that condemns this contract, which is, that it contravenes the settled public policy of the State. Every citizen holds his property, or his contract rights, which is precisely the same thing, subject to the exercise of'the police power by the State (Durham v. Cotton Mills, 141 N. C., 615; S. v. Whitlock, 149 N. C., 542; 1 Dillon Mun. Corporations (3 Ed.), sec. 141; Mugler v. Kansas, 123 U. S., 623), and though the exercise of this power by the State in any particular way may have lain dormant for a long time, it can be brought into activity whenever the State, in its judgment, thinks it necessary for the public welfare. It cannot now be doubted that railway corporations are subject to the control of the State in the exercise of this power, and with reference to the subject now under consideration, the State has seen fit to declare its policy and to take charge of the location of railroad depots or stations, a matter of great and vital importance to the public at large.
In the discussion of this question, so far, the injury to the public in the enforcement of this contract seems to have been overlooked, and especially the declared policy of the State in regard to the location of railroad stations. In one of the cases mentioned in the concurring opinion, Conger v. R. R., 120 N. Y., 32, the Court says that if the public will be delayed by the stoppage of trains or the public convenience will be injuriously affected, contracts such as this one will not be enforced; and so we said in Edwards v. Goldsboro, 141 N. C., 70, that the public has an interest in the location of railroad stations, its convenience and accommodation being involved. The State, recognizing this fact, has assumed control over railroad com-*317pañíes in matters of construction and operation, as well as in those of transportation. It has provided that stations shall be established within 5 miles of each other. Revisal, sec.. 1097 (Laws 1899, ch. '164, sec. 2). That is the minimum distance allowable, and the Corporation Commission, to which is committed the duty and general power to locate stations, with reference to the public convenience and accommodation, is prohibited from so exercising its power as to establish stations at shorter intervals than 5 miles. This prohibition was regarded as essential to the public accommodation, as the more frequent stoppage of trains to take on and let off passengers and freight than allowed by this -provision of the law would tend greatly to impede the making and enforcement of proper and convenient schedules. It was considered of -more importance to- serve the public expeditiously than to afford additional facilities to a single landowner for the use of the trains, whether for passengers or freight, or to enable a railroad company to acquire its right of way by a system of commutation rather than by paying the money °for it.
In this particular case the rights or interests of the public seem not to have been taken into consideration by the parties at all, or to have been counted in providing for the convenience of the landowner and the release of the railroad company, from the payment of pecuniary compensation for the right of way; and yet they are of paramount importance. Mere private convenience must give way to the public good, is not only a maxim of the law, but has been crystallized into a fixed principle in the government of railroads • and the location of stations by our statute.
It was evidently intended that no railroad company should establish a station within 5 miles of another station, -that being the minimum distance, in the judgment of the Legislature, which should separate them, so as to subserve the public interest and convenience in the furtherance of transportation of goods and passengers. If the Corporation Commission cannot require or compel the location of any two stations' nearer to each other *318than 5 miles, the railroad company surely should not be allowed to do so by its own act, in disregard of this declaration of the' public policy.
That the contract between these parties has always been subject to the police power, when the Legislature should choose to exercise it, is established beyond any doubt by the recent case of L. and N. R. R. v. Mottley, 219 U. S., 467 (55 L. Ed., 297), in which the following propositions were decided by the Court:
“1. An'.interstate carrier cannot make a valid contract to issue annual passes for life in consideration of a release of a claim for damages since the enactment of the act of 29 June, 1906, sec. 6, expressly prohibiting any carrier from demanding, collecting, or receiving ‘a greater or less or different compensation’ for the transportation of persons or property, or for any service in connection therewith, than that specified in its- public schedule of rates.
“2. An agreement by an interstate carrier to issue annual passes for life in consideration of a release of a claim for damages, though entered into prior to the act of 29 June,'11906, was made unenforcible by the- prohibition of section 6 of that act, against demanding, collecting, or receiving ‘a greater or less or different compensation’ for the transportation of persons or property, or for any service in connection therewith, than that specified in the carrier’s published schedule of rates.
“3. Congress, in the exercise of its power over commerce, - could enact the provisions of the act of 26 June, 1906, sec. 6, which rendered .unenforcible- a prior contract, valid when made, by which an interstate carrier agreed to issue annual passes for life in consideration of a release of a claim for damages.
“4. The- constitutional liberty of the citizen to make contracts was not infringed by the enactment by Congress, in the exercise of its power over commerce, of the provisions of the act of 29 June, 1906, sec. 6, which rendered unenforcible a prior contract, valid when made, by which an interstate carrier agreed to issue annual losses for life in consideration of a release of a claim for damages.”
*319It appears in the record of this case that there are three other stations within 5 miles of the one proposed to be established, which would seem to be a palpable violation of the spirit and intent of the statute, if not of its letter. Eevisal, sec. 1097, is very broad and comprehensive in conferring jurisdiction, so to speak, upon the Corporation Commission with reference to the location of stations. It is given thereby the sole power of deciding and directing where “the public necessity demands” that stations shall be established and “what depot accommodations will be commensurate” with the business and revenue of the railroad company, with the limitation, as we have pointed out, that stations shall not be nearer to each other than 5 miles. And it may order a change of stations and of depot facilities “to promote the security, convenience, and accommodation of the public.” This matter is not left to be determined by the personal whims or-selfish interests of individuals or'of the railroad company, but to an administrative body, supposed to represent impartially the great body of the people, and-especially the traveling public, whose interests it vitally affects, and which has a deep concern in the proper location of stations, so that their number and proximity may not seriously retard trans-XDortation. If these views are correct, and they seem clearly to be so, it will be unnecessary to inquire whether the contract was valid and enforcible in equity at the time it was made, as it has since become invalid, being against the expressed policy of the State, and is, therefore, unenforcible at this time.
The Legislature could not well have declared the State’s policy more plainly than it has in the section of the Eevisal to which I have referred. It has manifested its will in unmistakable language, that stations shall be 5 miles apart, arid this wag done for the sake of the public and without regard to private interests. If the Corporation Commission, having general charge of such matters, cannot authorize what is proposed to be done here, why should the railroad company and the plaintiffs, for their own convenience, be permitted to dp it, contrary to the evident policy of the statute which was passed, not to favor the railroad eompañy, but to prevent any too great restriction being placed *320on transportation for the sake of the public; and for that reason the legislature prescribed what distance between stations would subserve the desired purpose.
Agreements of this character introduce mercenary considerations to influence the conduct of parties, instead of those arising from the nature of their duties and the most efficient way of discharging them. They are, therefore, baneful in their tendencies, Woodstock Iron Co. v. R. and D. Extension Co., 129 U. S., 643; Providence Tool Co. v. Norris, 69 U. S., 48. As said in the latter case, at p. 58 : “The law looks to the .general tendency of such agreements, and it closes the door .to temptation by refusing them recognition in any of the courts of the-country.” A like rule was thus stated in Holladay v. Patterson, 5 Oregon, 177: “A railroad company is a gwosi-public .corporation, and the public have an interest in the location of their lines of road and depots. An agreement which tends 'to lead persons, charged with the performance of trusts or duties for the benefit of others, to violate or betray them, will not be enforced.” See, also, R. R. v. Marshall, 136 U. S., 393. We find it also stoutly maintained in R. R. v. Seely, 45 Mo., 212. The Court there said: “But the broad position is taken that the company 'is a private corporation, and has the right to buy and hold all kinds of property the same as an individual. This position is wholly indefensible. Whilst it is true, in one sense, that it is a private corporation, yet the public is deeply interested in it. Its chartered privileges and franchises were not granted solely and exclusively for private benefit and emolument, but to subserve a great public interest. In Walther v. Warner, 25 Mo., 277, this Court decided that the building of a railroad by a private corporation, under the authority of the Legislature, for the public accommodation, was a public use for which private property might be lawfully taken. In all these enterprises there is a mingling of both public and private benefit, and the interests of the public are not to be sacrificed to mere private gain.” That case also decides expressly that an agreement to give land in exchange for the location of a station at a specified place on plaintiff’s other land will not be enforced,' as it is contrary to public policy.
*321“The specific execution of a contract in equity,” the Court held in Marsh v. R. R., 64 Ill., 414, “is a matter not of absolute right in the party, but of sound discretion in the court, and in deciding whether specific performance should be enforced against a railway .company, the court must have regard to the interests of the public. Raphael v. R. R., Law Rep. 2 Eq. Cases, 37.
The location of railroad depots has much to do with the accommodation of the wants of the public. And when once established, a change of affairs may require a change of location, in order to suit public convenience. We cannot admit that an individual is entitled to call for the interference of a court of equity to compel a railroad company to locate unchangeably its depot at a particular spot to subserve the private advantage of such individual. Eailroad companies, in order to fulfill one of the ends of their creation — the promotion of the public welfare — should be left.free to establish and reestablish their depots wheresoever the accommodation or the wants of the public may require. To grant the relief asked for by the complainant, we would regard as against public policy; and he must be left, for whatever remedy he may have, to his suit at law for damages.” St. Joseph-and D. C. R. R. v. Ryan, 11 Kan., 302 (opinion by Brewer, /.), holds that, “Eailroad corporations are, as we have seen, public'agencies and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge, those obligations, is a breach of that public duty, and cannot be enforced.” It was also said that they are under an obligation to use the utmost human sagacity and foresight in the construction and operation of their roads, and this duty they must exercise impartially for the public good, and not neglect in any particular or degree, in order to advance, their own or other private interests. The purchased consent of the railroad to the establishment of a station, where it is discharging a duty owing to the public, is against the law’s policy, because it is unjust to that public, as it deprives the company of the freedom of action which it should *322always have in order to serve those from whom it derived its franchise, instead of its own selfish interests. This principle is profusely illustrated in Drain v. Chicago City Ry., 160 Ill., 22. In another case (Burney’s Heirs v. Ludeling, 47 La. Ann., 73), where it is held that contracts of the kind we -are now considering are void, as being against public policy, the Court said: “The railroad corporation was a gwasi-public agent, and it was its duty, independent of any agreement to secure an advantage to it, to establish its stations at points most convenient for the public interests. An agreement, therefore, by the corporation for a part of the land, to establish its depots or stations at particular points, is illegal. All agreements which tend to injure the public service are illegal.” For the very reason that where private interests are at stake the public welfare is sure to be overlooked, if it conflicts, the Legislature has wisely assumed control of this matter in this State by providing the minimum distance between stations, in the interest of the public convenience. It clearly had the power to do so. “The property of railroad corporations is devoted to a public use. The truth of this proposition is nowhere questioned. Such corporations may exercise the right of eminent domain by taking lands for their roads against the will of the owners. The business of providing highways and arranging conveniences to enable people easily to pass from place to place is a part of the public business which may be done by the State. If the State grants franchises and delegates the transaction of this business to corporations, it retains the right to regulate the business for the public good in any reasonable way. It may do this in the exercise of the police power, which is a power inherent in every well ordered .system of government.”
It will not answer this position to say that the railroad company and individuals may violate this provision of law so long as the Corporation Commission does not intervene in behalf of the public. The point is that the Legislature has declared its will to be that a proper distance for the public interests is 5 miles, as it was considering only the public welfare in passing *323the law, and prescribed a rule that would promote it. In' none of the cases cited in support of the Court’s conclusion had the Legislature thus spoken upon the matter.