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The real trouble is found in the fact that in this case the"business is strictly inter-State,” or in other words, that this freight, in the course of transit, crossed a State line. It is conceded by the Company's agent that had the shipment all been in Iowa, “the rate of 57 cents per hundred pounds for 265 miles, per Iowa local freight tariff,” would have applied, and that consequently, the gross sum of the freight charge would have been but $11.40. But Morrison is not in Iowa, but in Illinois, fifteen miles east of the State line, though on the same line of defendant's road on which Glidden is situated. Thus it appears that 27 cents per 100 pounds, or $5.40 in gross, is added to the freight charge in this case, for the sole reason, so far as any reason has been given, that a State line has been crossed during the transit, for it is said that the “Iowa local freight tariff does not apply as the business is strictly inter-State."

If the reason given in this case for an increase of the rate over the local rate be good, it is indeed a serious question whether State lines are not an expensive luxury, and costing the people of the country more than they are worth.

But I take it that this answer of Mr. Wicker is not intended to go to the merits of the case, but to the jurisdiction of this Board to entertain and pass upon the question involved. This Board is not prepared to say that the constructive weight charged for in this case is unreasonable in amount, or unjust in discrimination in that regard, as compared with like shipments in other cases; and we are alike agreed that the rate charged on this constructive weight is unreasonably high, as compared with the rate per 100 lbs., per the Iowa local freight tariff, and that there is no sliowing that such excess in the charge is all due for carriage entirely beyond the limits of this State.

As to the question of jurisdiction, the majority of this Board hold that the fact that the freight, the charge on which is here complained of, crossed a State line in the course of shipment, is immaterial. In support of the opposite view, the case of John A. Carton & Co. v. The Illinois Central Railroad Company, 59 Iowa, 148, which was an action brought under the tariff law of 1874, fixing maximum rates for the transportation of freight by rail, is sometimes cited. But the question before the court in that case was so different from the one we have here that it is not anything in point. It seems that there is a clear distinction, on principle, between a statute fixing maximum rates for the transportation of freight, and a statute prohibiting unjust discrimination among shippers. The former is fixing a rate or toll which the common carrier may charge for the transportation of freight from one point to another, while the latter makes no attempt to fix maximum rates, or any other rates, but is pure and simple the legislative exercise of the public power of the State, to protect its citizens from extortion or oppression at the hands of the common carrier. In the first instance a rate is established within which all rates must be fixed, while in the second instance the carrier is left to fix any rate he may see fit for a given service, so long as it is within the common law limit of being a reasonable compensation for the


service performed. It can make no possible difference in this case, so far as the question of jurisdiction is concerned, that the freight, the subject of the alleged over-charge, crossed a State line. The Carton case, surra, is not in point, as can be clearly shown by decisions from our own Supreme Court. The precise question presented in this case has been virtually passed upon in this State. Paxon, et al. v. The Illinois Central Railroad Company, was an action brought under section 10, of chapter 68, of the laws of 1874, for discrimination in charges for cars between different shippers of stock. Said section 10 provides:

"No railroad shall charge any person, company or corporation for the transportation of any property a greater sum than it shall charge and collect from any other person, company or corporation for a like service from the same place, and upon like conditions, and all concession of rates, drawbacks, and contracts for special rates founded upon the demands of commerce and transportation shall be open to all persons, companies and corporations alike."

The shipments of freight were from Manchester, Iowa, to Chicago, Illinois. A State line was crossed, yet we hear nothing in that case about the "business being strictly inter-State," and for that reason beyond the jurisdiction of the State courts.

One of the very ablest firm of lawyers in this State, witli a State reputation as such, appeared for the defendant, and it is not to be presumed they would have overlooked so important a point, if there had been anything in it. Their contention was that defendant was not liable for the reason that plaintiffs had not established the facts that the charges paid by them were “for a like service from the same place, and upon like conditions, and the court says:

“As the petition does not allege that the shipments made by the plaintiffs and Gannon were made “upon like conditions,' such fact has not been established,

"and the judgment of the District Court must be affirmed."

The necessary implication is that the section under which the action was brought was not in contravention of Article 6, section 8, of the Constitution of the United States, and is not obnoxious to the objection that it is an attempt to regulate inter-State commerce even in a case like this, when the freight, the subject of the overcharge, may go beyond the boundary of the State. This statute was repealed and in its stead we have section 11, of chapter 77, of the laws of 1878, which is as follows:

"SEC. 11. No railroad corporation shall charge, demand, or receive from any person, company or corporation, for the transportation of persons or property, or for any other service, a greater sum than lit shall at the same time charge, demand, or receive from any other person, company or corporation for a like service from the same place, or upon like condition and under similar circumstances; and all concession of rates, drawbacks and contracts for special rates shall be open to and allowed all persons, companies and corporations alike, at the same rate per ton per mile by car-load, upon like


condition and under similar circumstances, unless by reason of the extra cost of transportation per car-load from a different point, the same would be unreasonable and inequitable; and shall charge no more for transporting freight from any point on its line than a fair and just proportion of the price it charges for tbe same kind of freight transported from any other point.”'

It will be seen that as to the question of discrimination this section is substantially the same as said section 10, under which the action of Paxon v. The Illinois Central Railroad Company, supra, was brought, and it is reasonable to presume that the holding of the court on this question, as the law now stands, would be the same. As to the question of overcharge, the same doctrine is applicable.

Section 12, of chapter 17, of the laws of 1878, declares that no railroad company shall charge an unreasonable price for the transportation of property. If an unjust discrimination has been made in this case between local and inter-State rates, in violation of said section 11, an overcharge is the result, which is in violation of said section 12. On principle these statutes stand or fall together, and will be so treated here.

An authority in point is found in the case of The People of the State of Illinois v. The Wabash, St. Louis & Pacific Railway Company, 104 Illinois, 476. The substance of the complaint was that the defendant carried the same class of freight from Peoria to New York for a less sum of money than it carried similar (freight from Gilman to New York, and that Peoria was a greater distance from New York than Gilman. The answer, as in the case before this Board, was that “the business was strictly inter-State,” and that the Illinois statute, in so far as it sought to prohibit discrimination as to that class of business, was in contravention of Article 1, section 8, of the Constitution of the United States, and therefore void. The contention of the corporation was that if the law was broad enough to include unjust discrimination in rate charges for transportation of property from a point within to a point without the State, then the statute was void, for the reason above named. On this point the court says:

“There is no doubt in regard to the right and power of Congress to regulate commerce among the States, but a law of the State which incidentally affects commerce araong the States has never, so far as we are informed, been regarded as falling within the inhibition of the Federal Constitu



In Tall v. Decuir, 95 U. S., 487, where this question was under discussion, it is said: “There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States.” The difficulty has never been as to the existence of this power, but as to what is to be deemed án encroachment upon it, for, as has been often said, “legislation may, in a great variety of ways, affect commerce and persons engaged in it, without constituting a regulation of it within the meaning of the Constitution.” It is no doubt true that the statute to prevent unjust discrimination in the rates of charges of railroad companies, under which this action was brought, may affect commerce, but in our judgment it cannot be said to be a law regulating commerce among the States, within the meaning of the Federal Constitution. The law does not purport to exercise control over any railroad corporation, except those that own or operate a railroad in the State—such companies as have domestic relations with the people of the State—and as we understand the decisions of the Supreme Court of the United States, similar laws enacted by State authority have been upheld and sustained, although such laws may affect com

merce. .

Peck v. Chicago & Northwestern Railway Company, 94 U. S., 164, is a case in point. The Chief Justice, in delivering the opinion of the court, as respects the question involved, said: “These suits present the single question of the power of the legislature of Wisconsin to provide by law for a maximum of charge to be made by the Chicago & Northwestern Railway Company for fare and freight upon the transportation of persons and property carried within the State, or taken up outside the State and brought within it, or taken up inside and carried without.” In regard to the act of the legislature being in conflict with the Constitution of the United States, the court said:

As to the effect of the statute as a regulation of inter-State commerce, the law is confined to State commerce, or such inter-State commerce as directly affects the people of Wisconsin. Until Congress acts in reference to the relations of this company to inter-State commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations. Incidentally, these may reach beyond the State, but certainly until Congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without."

A similar question arose in Chicago, Burlington & Quincy Railroad Company v. Iowa, 94 U. S., 155, and it is there said: "The objection that the statute complained of is void, because it amounts to a regulation of commerce among the States, has been sufficiently considered in the case of · Mann v. Illinois.' This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic concern. It is employed in State as well as inter-State commerce, and until Congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in doing so those without may be indirectly affected."

But it is said the cases cited are not authority as the question involved here did not, and could not arise in those cases. In the Peck case, one of the allegations of the bill upon which complainant relied to defeat the law of the State was, “that the 18th section is a regulation of inter-State commerce;” and in the argument before the Supreme Court, one of the points relied upon, as shown in the statement of the case, was as follows: act is a regulation of inter-State commerce, and for that reason imconstitu

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tional.” In the other case (Chicago, Burlington & Quincy Railroad Company v. Iowa), we find a similar allegation in the bill, and the same question raised in the argument. When a question is presented by a bill in equity, urged and relied upon in the argument, and passed upon by the court in the opinion, it cannot with reason be said that the point was not involved, and the opinion of the court on the question is obiter. The question was made by the pleadings urged by counsel and decided by the court. Under such circumstances we perceive no good reason why the decision of the court may not be relied upon as authority. The statute in question, as before observed, was not passed for the purpose, or with the view of regulating commerce among the States—its object was to reach railroad companies which derived their powers to transact business from this State—those that were organized under the laws of this state, and those that were organized in another State and doing business in this State. The regulation imposed by the statute is a matter of domestic concern, pertaining to the people of the State and the railroads of the State. The Wabash Railroad Company which was sued in this case, is engaged in State as well as inter-State commerce, and, as was said in the Burlington case, supra. The State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in doing so those without may be incidentally affected. Should Congress, under the provisions of the Constitution which authorizes the regulation of commerce among the States, pass a law regulating the charges of all railroads engaged in inter-State commerce, it may be that the law of this State might then be confined to charges for the transportation of property wholly within the State; but no such law has been passed and that question does not arise here. In conclusion we are of the opinion that the question involved is controlled by the decisions in the two cases cited, which so far as we can find have not been modified by any subsequent decision of the Supreme Court of the United States.

“The judgment of the circuit court will be reversed and the cause remanded."

104 Ill., 476. This cause having been sent back to Ford county and judgment being rendered against the railroad company, the case was again brought to the Supreme Court at the January term, and tried upon its merits.

The court sustained the principle laid down in their former decision, and on January 29, 1883, filed the following opinion:

Per Curiam: "We see no reason to depart from the conclusion reached in this case when it was here before.” See People v. W. H. L. & P. R’y Co., 104 Ill., 479).

“But to avoid misapprehension, we deem it desirable to state especially that we disclaim any idea that Illinois has any authority to regulate commerce in any other State. We understand, and simply hold that in the absence of anything showing to the contrary, a single and entire contract to carry for a gross sum from Gilman in this State to the city of New York, implies necessarily, that that sum is charged proportionately for the car

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