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charge, imposed upon a commodity of commerce between our State and that of Illinois. It amounts to a duty imposed on commerce sought for by a citizen of ;ur State. When the defendant was informed of the complaint, and asked to explain why this charge was made, the reply is, that it was "strictly inter-State,” implying that this Commission could have no control or jurisdiction over the matter. See letter of General Freight Agent, Mr. Wicker.
The General Manager of defendant road was courteously asked by letter to state on what principle this extra charge was made, as this Commission wanted all the light possible on this very important question. The General Manager has chosen to make no reply.
Is not this a duty or tax of $5.40 imposed by the State, not directly, but indirectly by a creature of the State in the form of a railroad co:poration? Is not the State at fault in the matter? In effect, is it not doing what it pledged to all the States it would not do, viz.: impose any restrictions upon commerce between it and other States? Clearly, the State should and must throw around its corporations, which, as common carriers working by and under its laws, and are the instrumentalities of its commerce, such restrictions which will prevent them from doing what the State itself cannot do directly.
If the State allows railroads, corporations or individuals operating railroads and acting as common carriers, to impose duties and taxes upon this inter-State commerce in the shape of excessive freight rate charges, it is in effect, and in fact, regulating or imposing burdens upon inter-State commerce, which is clearly repugnant to Article 1, Section 8, of the Federal Constitution.
A wrong, by omission, can be just as clearly a wrong as a wrong done by the actual act of commission. Clearly, the State can traverse the Federal Constitution by failing to take proper action in preventing any of her citizens or any of her corporations over which she has control and supervision, from imposing unnecessary burdens upon the movement of commerce within her borders, as effectually as by direct imposition of restrictive regulations.
Applying these views to the case under investigation, we are clearly of the opinion this Board has jurisdiction of the complaint made.
The article of freight-a buggy-estimated at 2,000 pounds, and charged first-class rates, came from Morrison, a town on the defendant road fifteen miles beyond the borders of our State, and in the State of Illinois east of Clinton. By the open distance tariff rate, as published by the defendant road, the rate of freight charge for that distance (15 miles), in Illinois, is 18 cents per cwt., for that class of freight. By the published distance tariff rates for inter-State freight the rate for the same distance, or from Morrison to Clinton, Iowa, which is 15 miles, is the same as the Illinois rate, viz.: 18 cents per cwt., showing (when nothing to the contrary is offered) that there is no extra charge for extraordinary costs in crossing the Mississippi River
and the boundary of the State at Clinton or for the distance it is carried in Illinois.
Now, when the car, having this buggy in, reaches Clinton, suppose a man living 15 miles west of Glidden, where Mr. Barber lives, that ordered his buggy from Morrison, has a buggy estimated at the same rate (bought, it may be, in Clinton), which he has placed in this same car, to be taken to his home.
According to the distance tariff rates of this railroad company, the one from Morrison costs just $7.40 more to go the same distance than the one from Clinton. Showing beyond all shadow of doubt as far as anything to the contrary has been offered by defendant, that it is the common practice of the company to impose extra charge on all inter-State freight. But in this case, as shown by a letter from Mr. Wicker, Traffic Manager, that by giving Chicago rates to manufacturers on their line, a deduction of $2.00 was made, leaving still $5.40 more from Morrison to Glidden than from Clinton, the same distance or to a place 15 miles west of Glidden. Showing beyond all question, again, an extra charge on this buggy of $5.40 for no other reason than it came under the head of “inter-State freight." Not that the cost of carrying was any more, but arbitrarily so much more is put upon the charge just because it could be done and no known law to prevent, or no known way by which a citizen of the State could be protected from the imposition. If this is not levying a tax upon inter-State commerce it is difficult to define what it is. If the State stands idly by and sees this done by an instrumentality of commerce, brought into being by its aid and sufferance, then it is open to the charge of violating its faith to the National compact and also of neglecting to protect the weak against the corporate power of the strong. To conclude that the State cannot control this matter and secure to her citizens equal and just rates, is to admit that it can confer a power greater than it has in itself. To presume that because a State may act to help and facilitate commerce between it and a sister State, it implies a power to interfere with and hinder, is to our minds a violent presumption. We are not deciding upon what a State may or may not do in reference to what is known as through commerce. Commerce—that comes to and passes across the State in its trans-continental journey. We are deciding upon what concerns an individual citizen of our own State. To conclude otherwise than we have, virtually and in fact places a large majority of the commerce of the State beyond all reach of any present law, either State or National, and all the citizens at the mercy of the common carriers as far as they may be affected by freight charges. Surely the people of any State must have the right, and if the right the power, to protect themselves against the greed or encroachments of instrumentalities of their own creation when the exercise of that power interferes in no way with the rights and privileges of citizens of other States.
As far as rates are concerned the only possible presumption is that the citizens of our State would seek the best and cheapest, both for whatever they wish to export or import; and what would be true of our State would
be for every State. Hence then it must be seen that to assist in the movement of the commodities of commerce is not a regulation of commerce. Such as is contemplated in Article 1, Section 8 of the Federal Constitution.
To assume that it is, and hence that a State cannot control its own instrumentalities created by it for the purpose of facilitating the movement of the commodities of commerce, so as to protect its own citizens against any extortion of these instrumentalities is monstrous in the extreme, for the results flowing from such conclusions are vicious. This must prove conclusively that such construction of Article 1, Section 8, of the Federal Constitution is erroneous—for the design of all law is for the good of the people.
The legitimate results flowing from a construction of a law is the best criterion of the wisdom of that construction-construing the law as we do, we are enabled to protect the rights of each individual citizen of our State, without in any way infringing upon the rights of any citizen in any other, which can not be done on any other construction.
If the defendant road should claim that it is a foreign corporation and therefore not subject to the laws of Iowa, we reply just so long as it remains and acts as a foreign corporation outside of our State we agree, but when it comes into our State and asks to do business here, while we must give to it as we do to all outside citizens, all the privileges and freedom we give to our own corporations and citizens, we know of no law that compels us to give it any more.
When once within our State it must do as Iowa corporations and Iowa citizens do, and become amenable to Iowa laws as far as it has any transactions with Iowa citizens. Our State laws do not allow of unjust discriminations or extortionate rates in charges by common carriers for services rendered to lowa citizens by Iowa corporations.
All foreign corporations doing business in our State for our citizens must conform to the same law.
We are not deciding, as intimated above, what an Illinois corporation might charge a citizen of Illinois for carrying goods from Illinois across our State to a point in Nebraska. But we must decide as to what the rights of a citizen of our State are in relation to any common carrier employed by him in the State, be it domestic or foreign, especially so when that common carrier exists by virtue of the good will and aid of these very citizens of our State.
As a Board erected by the State to supervise her railroads so as to secure to each of her citizens and to her corporations equal and just rights, we feel that it not only is within the power conferred upon us, but our duty, to interpose and say to the defendant that it matters not where the goods may come from or who delivers them to, or at the State line to the common carrier or railroads of this State, or as in this case, at Clinton and to the Chicago & Northwestern Railroad, be it done by teams or by an Illinois corporation who may control and operate the Chicago & Northwestern Railroad in this State, that once within the borders of this State and for citizens of this State, they must be carried for all parties upon equal terms-that like goods in like quantities over like distances must be carried for like rates over the same road.
It is right to presume the distance freight tariff rates as published by the defendant company for Iowa gives a fair compensation for the service rendered.
Therefore, as the defendant has failed to show why the rates should be higher while in the State because of the fact of the goods having been taken up from without the State and brought in, than for the identical service and distance wholly within the State (though respectfully asked to do so) we conclude that the extra charge on such freight for no other reason than just because it is called “inter-State,” is oppiessive, discriminating and exorbitant, against the best interests of the citizens of the State, against the highest ultimate and lasting good of railroad corporations, and contrary to a wise and sound public policy, and cannot be allowed.
It is, therefore, recommended that the Chicago & Northwestern Railroad Company no longer make discriminations against goods coming into or going out of the State by charging higher rates on such goods while being carried on their roads in Iowa than on goods seeking carriage between points in the State.
DISSENTING OPINION BY PETER A. DEY, COMMISSIONER.
ED. BARBER, Glidden, Iowa,
Filed February 20, 1884.
The undersigned in this case is compelled to dissent from the conclusions that have been reached and given expression in the order issued by his associates, Commissioners Anderson and Coffin.
The order is as follows: "It is therefore ordered by the Board of Railroad Commissioners that the Chicago & Northwestern Railroad Company, respondent herein, so revise and alter its inter-State tariff, so far as it relates to freight shipped from points within this State to points without the State, and from points outside of the State to points within the State, as to make it correspond to the Iowa local distance tariff, which it is here assumed, is arranged on a sufficiently remunerative basis." I understand that any decision of the Supreme Court of the State has the effect of law, and that unless reversed, the inferior courts, Commissioners and all citizens are bound by it as by statute law, irrespective of their views of its soundness or justice. The order above recited seems to me to be in direct conflict with the decision of the Supreme Court in the case of Carton v. Illinois Central Railroad, Iowa Reports, volume 59, page 151. This action was brought to enforce the provisions of the tariff in the “Granger law,” or the law of 1874, which it was claimed attempted to fix maximum rates for the transportation of freight by rail from “points within the State to points without the State.” The court holds that if the law intended to fix the rates, as this order of the Commissioners attempts to do, it is in violation of Article I, Section 8, of the Constitution of the United States.
In rendering the opinion, the court says:
It is not claimed that the fixing of rates of freight shipped from one State into another is not a regulation of commerce.
But that the court (the Supreme Court of the United States) has always held the power to enact laws upon subjects in their nature national and not merely local, is exclusively with Congress. In Cooley v. Board of Wardens, 12 Howard, 299: “Whatever subjects of this power are in their nature national or admit of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.” That the act of this State, assuming that its object and purpose was to control and regulate the shipments of freight to other States is of the character last defined appears to us to be very clear.
The plaintiffs claim to recover because the amount of freight money exacted by the defendant was in excess of the rate fixed by the law of Iowa. The contract for shipment was an entirety. It cannot be severed and made to apply partly to the shipment in Iowa and partly to that in Illinois. It was the right of the defendant to disregard any laws which sought to regulate shipments to points without the State, and make its own contracts; having done so the plaintiffs cannot recover under any State law simply because it is void, as being repugnant to the Federal Constitution."
Judge McCrary, of the Circuit Court of the United States, rendered an opinion in Des Moines, October 24, 1883, in the case of Wm. Kaiser v. The Illinois Central Railroad Company, from which we extract the following:
“ Since no State law can have any extra territorial force, is it not clear that the attempt to enforce the statutes of each of the several States, in so far as the carriage within such State is concerned, would lead to disputes and conflicts which no State authority would be competent to adjust and determine? These considerations, I think, lead inevitably to a conclusion not only that such commerce is the subject only of national control and regulation, but that any attempt to devolve upon a single State the power to regulate it in part would necessarily give to such State the right to discriminate against other States of the Union. My conclusion is, therefore, that the statute in question, if held to apply to inter-State commerce, is in violation of the Constitution of the United States. In this view I am supported by the recent decision of the Supreme Court of this State (Carton v. Illinois Central Railroad Company), in which the act now under consideration was held to be unconstitutional. If I were in doubt on the subject I would not hesitate to follow that ruling. I am not aware that the Federal Courts have ever in the course of our history undertaken to enforce a State statute which has been held void by the supreme judicial authority of the State.”
The order of the Commissioners in this case, if I understand it, fixes the rates of inter-State commerce and is mandatory, requiring the Northwestern Railway Company “to so revise and alter its inter-State distance tariff so far as related to freight shipped from points within the State to points without this State and from points outside the State to points within the State as to make it correspond to the Iowa local distance tariff, which it is here assumed is arranged on a sufficiently remunerative basis.” I have believed