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that in making this order, my associates were governed rather by what they thought the law should be, than what it is as expounded by the highest authority in the State. If the Federal Courts regard it as incumbent upon them to follow the rulings of the Supreme Court of the State, it seems to me that a Commission created by State authority is going beyond its powers when it attempts to do what the court says the State in its sovereign capacity cannot do.
Des Moines, Iowa, May 13, 1884.
The decision in the above case having been made March 31, 1884, and the order appearing to be one affecting public right, in May, 1884, inquiry was made as to whether the order heretofore made had been complied with.
E. Barber, complainant, April 16, 1884, informed the Board the overcharge had been paid him by respondent.
On the 17th day of May, H. C. Wicker, Freight Traffic Manager, informed the Board that the order had not been complied with.
May 21st, B. C. Cook, general solicitor of respondent, informed the Board that the officers of the company were considering the matter of the order heretofore made by the Board, but had not arrived at any conclusion in the matter, except so far as to remove any cause of complaint in the particular case referred to.
May 27, 1884, by order of the Board, the Secretary served a notice of the order in regular form upon Frank B. Garvin, station agent of the Chicago & Northwestern Railway Company at Des Moines, Iowa.
June 10, 1884, N. M. Hubbard, Esq., filed a petition for rehearing and reversal of the order heretofore made. On the same day the Commissioners addressed the following letter to the Governor:
STATE OF IOWA, OFFICE OF THE RAILROAD COMMISSIONERS,
DES MOINES, June 10, 1884.
HON. BUREN R. SHERMAN, Governor of lowa:
Dear Sir—On the 20th of February, 1884, Ed. Barber, Glidden, Iowa, Gled in this office a complaint against the Chicago & Northwestern Railway Company, and such proceedings were had, that on the 28th of March, 1884, a decision was rendered by the Board as then organized, Messrs. Coffin and Anderson concurring in said decision and Mr. Dey dissenting. The order of the Board as enunciated by the majority, was as follows: “It is there
fore ordered by the Board of Railroad Commissioners that the Chicago & Northwestern Railway Company, respondent herein, so revise and alter its inter-State distance tariff, so far as it relates to freight shipped from points within this 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."
Soon after the present organization of the Board, indeed, at their first meeting, it became necessary for them to arrive at some conclusion with regard to their duties under the requirements of chapter 133, of the acts of the Twentieth General Assembly, entitled
an Act authorizing actions against railroad companies, to be brought in the name of the State, upon recommendation of the Board of Railroad Commissioners," and it was, after due consideration thereof, believed by the Commissioners to be their duty to certify to the Attorney-General all cases of refusal to obey orders affecting public right made with reference to railroads or persons.
Finding the above order upon the records, and deeming it to be an order affecting public right, the Commissioners have been taking steps necessary to ascertain whether or not the Chicago & Northwestern Railway Company has been violating or refusing to comply with such order in order to discharge their duty under chapter 133, above cited.
To-day the Chicago & Northwestern Railway Company has appeared by counsel and filed a petition of said company, asking that the order heretofore made be vacated and set aside upon two grounds, namely, that the Board of Commissioners have no power, authority, or jurisdiction to make such order; and that the complaint of Barber raises no such questions as decided by the Board of Railroad Commissioners.
This petition being in the nature of a petition for rehearing, the Commissioners have requested the counsel for the Chicago & Northwestern Railway Company within two weeks to file a brief, showing the authority of the Board of Railroad Commissioners to grant a rehearing, it being a question in their minds whether such power exists in the absence of law granting the same. Further, it seems that so far as Mr. Barber is concerned, his connection with the case has ended, he having been paid all amounts claimed by him as an overcharge on the shipment in question. Now a rehearing, if granted, involves the presence of parties, and if the order be as it has been determined by the Commissioners to be, an order affecting public right, Mr. Barber having no further interest in the case, it would seem that the interests of the public alone are involved and that those interests should be represented by able counsel if any rehearing should be permissible. Referring to section 150 of the Code, we find it is the duty of the Attorney-General “to prosecute and defend all actions and proceedings, civil and criminal when requested so to do by the Governor."
In view of the above premises, we therefore respectfully ask that, if you deem the proceedings pending before us to be of sufficient public importance, you will request the Attorney-General to appear before us as counsel in be
half of the State, for the public, to resist the proceedings proposed by the Chicago & Northwestern Railway Company, and that you will advise us of your decision in relation thereto.
PETER A. DEY,
JAMES W. MCDILL.
E. G. MORGAN,
In accordance with the request contained in the foregoing letter, the Attorney-General, Hon. Smith McPherson, appeared for the public, June 19, 1884. Judge Hubbard, for respondent, filed his argument in support of respondent's motion for a rehearing and reversal of the order in the case.
July 8, 1884, Hon. Smith McPherson, Attorney-General, filed an answer to Judge Hubbard's argument, and August 9, 1884, Judge Hubbard filed his reply.
August 26, 1884, the Commissioners having duly considered the reasoning of counsel, rendered the following decision:
ED. BARBER, Glidden, Iowa,
Decision of the Commissioners in the matter of the application of counsel for respondents for a rehearing:
Complaint having been heretofore made in this case, it received consideration by the Commissioners and was by them.decided in terms as follows: "It is therefore ordered by the Board of Railroad Commissioners that the Chicago & Northwestern Railway Company, respondents herein, so revise and alter its inter-State distance tariff, so far as it relates to freight shipped from points within this 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.” In this order Commissioners Anderson and Coffin concurred; Commissioner Dey dissented.
On the 5th of April, 1884, chapter 133, acts of the Twentieth General Assembly, went into force and effect as a law of the State. By its terms, all orders made or to be made, affecting public right which have not been complied with by railroad companies are to be certified to the attorney-general that he may bring a suit in equity to enforce the same, and jurisdiction is given by the terms of said law to the District and Circuit Courts to hear and determine said cases and to find whether such orders are reasonable and just, and authorized to be made by the Commissioners.
The term of Commissioner Anderson having expired, Mr. McDill was appointed in May, 1884. The Board as thus newly organized finding this and other orders disregarded was proceeding to the discharge of its ministerial duty of certifying the case to the attorney-general when the Chicago & Northwestern Railway Company, by its attorney, on the 10th of June, 1884, filed its petition asking “that the order made in the above cause be vacated and set aside,” and in support of the petition sets forth the following:
First. The Board of Commissioners have no power, authority, or jurisdiction to make such order.
Second. The complaint of Barber raises no such questions as decided by the Board of Railroad Commissioners.
After hearing an oral argument from Judge Hubbard, representing the Chicago & Northwestern Railway, and believing that the determination of the Board upon the questions presented, involved important legal principles, and that as Mr. Barber had been paid his overcharges, the public alone was interested in their determination, the Commissioners asked the Governor to direct the attorney-general to represent the public. This request. was promptly complied with, and Judge Hubbard, for the petitioner, June 19, 1884, filed his written brief in support of his petition. The attorney-general filed answer thereto July 8, 1884, and Judge Hubbard his reply on the 9th of August, 1884.
The Commissioners having carefully considered the questions involved and the arguments of the attorney-general and counsel for the petitioner, have with entire unanimity reached a conclusion thereon.
Upon consideration of the petition it appears that the relief asked is that the former order be vacated and set aside on the ground that the Board had no jurisdiction to make the order, and the complaint did not raise any such questions as were decided by the Board. The vacation of the order is asked in June, 1884, the order having been made in the preceding month of March. The personnel of the Board had changed in May. Two members of the Board concurred in the order; one dissented. One of the concurring members and the dissenting member and the new appointee constitute the Board asked to yacate the order. It is apparent, if the petition is decided on its merits, that unless one of the two former members of the Board should change his views the fate of the petition in such event would, in fact, depend on the action of the new member. This is mentioned as one of the singular circumstances surrounding the case and one which must necessarily attract attention. It has ever been the view of that member that the State of Iowa has no power to regulate inter-State commerce. It seems to him this is the rule of the Constitution of the United States, sanctioned by a long line of decisions of the Supreme Court of the United States, as well as of the Supreme Courts of all the States called upon to pass upon the question. But it seems to the Commissioners that the private views of no member of the Board as to the merits, have anything to do with the question here presented. They are arrested in the discharge of a ministerial duty, the certification to the attorney-general of an order made by the Board affecting public right, by a petition to vacate that order, upon purely legal grounds. One, the want of jurisdiction; the other that the facts stated in the complaint did not warrant the order made. It is not claimed that either point was
raised before the Board at the time of the original hearing. It is not bedieved that a bill of review or a rehearing was ever granted by a court upon such grounds under such circumstances.
But further, the very grounds set forth, namely, that the Board had no authority to make the order, and that the facts stated in the complaint do not justify the order seem to the Commissioners to be by the express terms of the law, chapter 133, acts of the Twentieth General Assembly, the things to be determined by the Circuit and District Courts. They are, by the terms of that law, given jurisdiction to enforce the orders of the Board "authorized to be made.” The court is to find whether such order is "reasonable and just."
The Commissioners believe that they could not enter upon the inquiry invited by the petition without an usurpation; in their view that inquiry can alone be made by the courts. This seems to them to be the letter and spirit of the law above cited. It is urged by counsel for the Chicago & Northwestern Railway that the order made is so manifestly beyond the jurisdiction of the court, and so far from being warranted by the complaint made, that the company ought not to be put to the expense of a vexatious law suit, which counsel says must result disastrously to the State, as the order"is in the face of all the decisions of all the courts." But it will be seen that in the view of the Commissioners they are precluded from considering the question as to order itself, and if, as counsel so confidently asserts, the order is wholly without merit or legal standing. A legal issue by demurrer to the attorneygeneral's petition, if suit is brought, should at once, without vexation or great cost, forever settle the question.
We deem it to be our duty under the law, to certify this order to the attorney-general and without reference to the question whether or not the order is such an one as the courts can sustain.
In accordance with the above holding on the 16th day of September, 1884, the case was certified to the Attorney-General to the end that suit might be brought for enforcement of the order made.
The Commissioners are not advised what steps have been taken by the Attorney-General with reference to the matter.
MERRILL & KEENEY CASE.
The Merrill & Keeney case decided by this Board about a year ago, was during the session of the last legislature and subsequently a subject of controversy. Without informing themselves or studying the effect of the principle upon which the decision was based, a large number of the papers of the State, and that class whose occupation is to manufacture public sentiment, jumped at the conclusion that in giving the jobber better rates than the retailer, the railways were making unjust discriminations. While public opinion was worked