Hardy v. Atchison, Topeka & Santa Fé Railroad

32 Kan. 698

• Court: Supreme Court of Kansas
• Decided: July 15, 1884
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

It appears from the agreed statement of facts that while the maximum-freight-rate law of 1868 was in force in this state, the goods and merchandise mentioned in plaintiff’s bill of particulars were shipped from St. Louis, Missouri, under a contract made there for transporting the same from St. Louis, Missouri, to Hutchinson, Kansas, upon the usual through rates charged upon such class of goods; that on the shipments of the goods, only one receipt or bill of lading was issued to the plaintiff; that the through rate for the freight charged and collected was, in every instance, the same as charged by mutuál arrangements of all the railroads connecting with the defendant’s railroad for similar shipments from St. Louis to Hutchinson; that in the division of the freight among the railroad companies transporting the goods, the Atchison, Topeka & Santa Eé railroad company received an amount thereof in excess of its ordinary local freight rates, and an amount in excess of that authorized by the maximum-freight-rate law of Kansas, at that time in force. (Comp. Laws of 1879, ch. 23, §57.)

Plaintiff claims to recover the alleged overcharges paid by him for the transportation of his goods. It is admitted, if he is entitled to recover anything, he shall recover an amount equal to that received by the defendant, or its proportion of the through rate on the shipments, less the amount of its local rates from the point where the goods and merchandise were delivered to it by the connecting line to Hutchinson.

On the part of the railroad company it is contended that § 57, ch. 23, Comp. Laws of 1879, had no application to the transportation of freight from another state into this state. Sec. 57 is as follows:

“Every such railway shall arrange and classify all property usually carried by them over their roads, and shall affix thereto the rates respectively at which the same shall be transported between the several stations, or points of connection or intersection of other roads, which rate shall be per one hundred pounds, and shall not exceed, for distance less than fifty miles, 'twenty cents per ton per mile, fifteen cents per ton for second class, and ten cents per mile per ton for third-class articles; for distances of fifty miles and over, but less than one hundred miles, fifteen cents per ton per mile for second class, and seven cents per mile for third-class articles; for distances of one hundred miles or more, ten cents per mile per ton for first class, eight cents per ton per mile for second class, and five cents per ton per mile for third or other classes.”

The contention is, that any statute fixing or limiting the charges for transportation of goods from a place in one state to a place in another, is an attempt to regulate commerce between the states, and that such a statute is invalid as a regulation of inter-state commerce. In support of this it is asserted that the exclusive right to regulate inter-state commerce is expressly confided by the constitution of the United States to Congress by art. 1, §8, which declares that: “The congress shall have power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

The federal courts have established that the transportation of merchandise from place to place by railroad is commerce; that the transportation of merchandise from a place in one state to a place in another is commerce among the states, or inter-state commerce; that to fix or limit the charges for such transportation is to regulate commerce; that a statute fixing or limiting such charges for transportation from places in one state to places in another, is a regulation of commerce among the states; that by the terms of the constitution of the United States, congress has the power to regulate such commerce. (Keiser v. Ill. Cent. Rld. Co., 16 Am. and Eng. Railroad Cases, 40; Louisville & N. Rld. Co. v. Railroad Comm’rs of Tenn., 16 Am. and Eng. Railroad Cases, 1; Carton v. Ill. Cent. Rld. Co., 59 Iowa, 148, 6 Am. and Eng. Railroad Cases, 305, and the authorities there cited.)

The debatable question is, whether this power is concurrent with that of the states? Is the power of congress exclusive? May a state act until its legislation is superseded or interfered with by congress? May Kansas, in the absence of action by congress, control or regulate, within its limits, the charges for the transportation of goods shipped from another state, under a contract made in that state, to a place in this state? We suppose it will be conceded that Kansas can pass no law which seeks to fix or limit the charges for the carriage of goods over the lines of its railroads which pass over its territory, but neither originate nor terminate within it; as, for instance, goods passing'from Missouri to Colorado, Texas, or New Mexico. We suppose it will be conceded also, that it is beyond the power of Kansas to fix the whole charge for the carriage of goods from a point in the state to a point in another.' This would be an attempt to give our laws an extra-territorial force. If, however, the power of congress to regulate commerce among the states — inter-state commerce — which consists, among other things, in the carriage of persons and the transportation of goods from one state to another, is exclusive, then §57 could, not fix or limit the charges in controversy. This question is one upon which the decisions of the supreme court of the United States are final. We shall therefore refer to the more important of these adjudications:

In Crandall v. State of Nevada, 6 Wall. 35, a statute of-Nevada which in effect laid a tax upon every traveler passing through or beyond its territorial limits, was adjudged to be invalid, but not on the ground that it was a regulation of interstate commerce. Chief Justice Chase and Mr. Justice Clifford dissented from this conclusion, and pronounced the act to be a regulation of inter-state commerce exclusively within the jurisdiction of congress.

In the case of The State Freight Tax, 82 U. S. 232, a statute of Pennsylvania, which in effect laid a tax upon all freight taken up within the state and carried out of it, or taken up without and brought within it by any railway, was adjudged to be void. The decision was placed solely upon the.ground that the law was a regulation of commerce among the states, and was invalid, although congress had never legislated in reference to the same subject-matter. Mr. Justice Strong, in delivering the opinion, said:

“The tax upon freight transported from state to state is a regulation of inter-state transportation, and therefore a regulation of commerce among the states. It is a rule prescribed for the transporter by which he is to be controlled in bringing the subjects of commerce into a state and in taking them out. . . . If, then, this is a tax upon freight carried between states, and a tax because of its transportation, and if such tax is in effect a regulation of inter-state commerce, the conclusion seems to be inevitable that it is in conflict with the constitution of the United States. It is not necessary to the present case to go at large into the much-debated question, whether the power given to congress by the constitution to regulate commerce among the states is exclusive. In the earlier decisions of this court it was said to have been so entirely vested in congress that no part of it can be exercised by a state. It has, indeed, often been argued, and sometimes intimated by the court, that so far as congress has not legislated on the subject the states may legislate respecting inter-state commerce; yet if they can, why may they not add regulations to commerce with foreign nations beyond those made by congress, if not inconsistent with them, for the power over both foreign and inter-state commerce is conferred upon the federal legislature by the same words. And certainly it has never yet been decided by this court that the power to regulate inter-state, as well as foreign, commerce is not exclusively in congress. . . . Inter-state transportation of passengers is beyond the reach of a state legislature. . . . Merchandise is the subject of commerce. Transportation is essential to commerce; and every burden laid upon it is pro tanto a restriction. Whatever, therefore, may be the true doctrine respecting the exclusiveness of the power vested in congress to regulate commerce among the states, we regard it as established that no state can impose a tax upon freight transported from state to state, or upon the transporter because of such transportation.”

In Welton v. State of Missouri, 91 U. S. 275, Mr. Justice Field said:

“ It will not be denied that that portion of commerce with foreign countries and between the states which consists in the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation. The very object of investing this power in the general government was to insure this uniformity against discriminating state legislation. . ■ . . The fact that congress has not seen fit to prescribe any specific rules to govern inter-state commerce, does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-state commerce shall be free and untrammeled.”

In Railroad Co. v. Husen, 95 U.S. 465, Mr. Justice Strong said:

“Whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is inter-state than that which is with foreign nations. Power over one is given by the constitution of the United States to congress in the same words in which it is given over the other, and in both cases it is necessarily exclusive. That the transportation of property from one state to another is a branch of inter-state commerce is undeniable, and no attempt has been made in this case to deny it. . . •. This court has heretofore stated that inter-state transportation of passengers is beyond the reach of a state legislature, and if, as we have held, state taxation of persons passing from one state to another, or a state tax upbn inter-state transportation of passengers, is prohibited by the constitution because a burden upon it, a fortiori, if possible, is a state tax upon the carriage of merchandise from state to state. Transportation is essential to commerce, or rather, it is commerce itself, and every obstacle to it or burden laid upon it by legislative authority is regulation.”

In Hall v. De Cuir, 95 U. S. 485, Chief Justice Waite said:

“We think it may safely be said that state legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of congress. ... If each state was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each state could provide for its own passengers and regulate the transportation of its own freight, regardless of the interest of others. Nay, more, it could prescribe rules by which a carrier must be governed within the state, in respect to passengers and property brought from without. On one side of the river or its tributaries, he might be required to observe one set of rules, and on the other, another. Commerce cannot flourish in the midst of such embarrassments.”

■ In The Telegraph Co. v. Texas, 105 U.' S. 460, Chief Justice Waite said:

“A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself.- ... A specific tax on each message, so far as it operates on private messages sent out of the state, is a regulation of foreign and inter-state commerce, and beyond the power of the state.”

. In Steamship Co. v. Board of Railroad Comm’rs, 18 Fed. Rep. 10, Mr. Justice Field said:

“It was at one time a subject of discussion and some disagreement among judges whether the power conferred upon congress to regulate commerce is exclusive in its character, or concurrent with that of the states. By recent decisions, this question has been put at rest. When the subject upon which congress can act under this power is national in its character arid admits and requires uniformity of regulation affecting alike all the states, then the power is in its nature exclusive; but when the subject upon which the power is to act is local in its operation, then the power of the state is so far concurrent that its action is permissible until congress interferes and takes control of the subject. Of the former class is all that portion of commerce with foreign countries and among the states, which consists in the carriage of persons and the transportation, purchase, sale and exchange of commodities. From necessity there can be but one rule in such cases for all the states, and the only power competent to prescribe a uniform rule is one which can act for the whole country. Its inaction in such cases is, therefore, an equivalent to a declaration that such commerce shall be free from state interference.”

(See also Pullman Southern Car Co. v. Nolan, 19 Cent. L. J. 369; Gibbons v. Ogden, 9 Wheat. 1; The Daniel Ball, 10 Wall. 565; City of Council Bluffs v. Rld. Co., 45 Iowa, 338; Passenger Cases, 7 How. 283; State of Pennsylvania v. Wheeling Bridge Co., 18 id. 481; Cooley v. Board of Wardens, 12 id. 299; Gilman v. Philadelphia, 3 Wall. 713.)

From these authorities and the cases therein cited, we think it is conclusively settled that the portion of either inter-state or foreign commerce which consists in transit or traffic, including transportation in all forms, by land or by water, and the purchase, sale or exchange of goods, is national, and susceptible of a uniform plan of regulation, and is therefore under the ex-elusive control of congress. Even if congress has not seen fit to prescribe any specific rules to govern inter-state commerce, that does not affect the question. “ Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-state commerce shall be free and untrammeled.” (The State v. Saunders, 19 Kas. 127; Welton v. State of Missouri, supra.)

Our opinion is, therefore, that § 57 — which was repealed by the legislature in 1883- — -if intended to apply to inter-state commerce, was in violation of the constitution of the United States, and therefore void.

The conclusion we have reached could not be disputed, were it not for the case of Peik v. Chicago & Northwestern Rly. Co., 94 U. S. 164, and the language of the court in Munn v. State of Illinois, 94 U. S. 138, and Railroad Co. v. Iowa, id. 155. We confess it is difficult to reconcile these three cases with thfe principles which have been settled by the prior and subsequent course of decision of the United States supreme court, if they decide that, until congress acts in reference to inter-state commerce, the legislature of ,a state may regulate the transportation of freight and passengers among the states. These cases were decided -in 1876, and the opinion in the Peik case was delivered by Chief Justice Waite; yet, in the case of Hall v. De Cuir, supra, decided the next year — 1877—the chief justice quotes approvingly what was said by Mr. Justice Field, speaking for the court, in Welton v. State of Missouri, 91 U. S. 282, that “inaction [by congress] ... is equivalent to a declaration that inter-state commerce shall remain free and untrammeled.”

' Referring to those decisions, the supreme court of Iowa, in Carton v. Railroad Co., supra, uses the following language:

“The cases of Munn v. State of Illinois, 94 U. S. 113; Railroad Co. v. Iowa, id. 155; and Peik v. C. & N. W. Rld. Co., id. 164, do not appear to us to sanction the validity of acts of the state legislature regulating the transportation of freight and passengers between the states. They merely determine the power of the statutes to fix; reasonable warehouse charges, and, reasonable charges for transportation of freight within the boundaries of the states respectively, and that when such power is exercised, although it may incidentally affect commerce between the states, yet the laws of the states are not regulations of inter-state commerce because of such incidental results. That it was not intended in those cases to approve legislation like that under consideration in this case, it appears to us is conclusively shown by the reasoning in the later cases of Hall v. De Cuir, 95 U. S. 485, and Railroad Co. v. Husen, id. 465.”

In the case of L. & N. Rld. Co. v. Rld. Comm’rs of Tenn., supra, Hammond, J., in commenting on the Peik case, says :

“ In the Wisconsin case, the next in the series of the granger cases, the court mainly deals again with what were evidently considered by all more important questions. Circuit Judge Drummond tells us the question was scarcely argued at all in the court below, and evidently it was only incidentally considered in the supreme court, 6 Biss. 177. The Wisconsin act, unlike ours, contained an exception which excluded from its operation all rates of charges for 1 carrying freight which comes from beyond the boundaries of the state, and to be carried across or through the stated Possibly, notwithstanding its terms, the act may have been construed, within the purview of this exception, not only to persons and property coming from other states into Wisconsin or going from that into other states, which was not thought, however, to be its construction in the court below, though the question whether it could so apply under the State Freight Tax Cases, 15 Wall. 232, was reserved and not decided in that court.”

In the Peik case, the chief justice speaks of the power of Wisconsin to regulate its fares, etc., so far as they are a domestic concern, even though, incidentally, they may reach beyond the state. Clearly, a statute of the state-prescribing rates of freight for goods, which shall be binding upon the railroad companies with respect to goods brought from another state, is a regulation of inter-state commerce as much as a law imposing a tax upon such goods. Therefore it cannot be said that such a statute acts incidentally. It acts directly upon a commerce which is inter-state. It does not, like laws imposing a tax upon gross receipts from traffic, affect such commerce indirectly. It assumes to regulate and control it as commerce, and has no other object and design. Therefore we cannot say, as was stated in the Peik case, that said § 57, if intended to apply to inter-state commerce, merely ineidentcilly, affected such commerce.

"We have examined the case of The People v. W. St. L. & P. Rld. Co., 104 Ill. 476. That portion of the case that is in any way applicable to this is largely based upon the construction given by that court to the three cases cited, and reported in 94 U. S. Eep. For the reasons before stated, we think the supreme court of the United States never intended to establish the doctrine as broadly as contended in the Illinois case.

Thus far we have discussed the question presented as though congress had remained entirely passive upon the subj ect. Such, however, is not the fact. In 1866 it passed an act authorizing all railroad companies to transport passengers and freight from state to state, and empowering them to receive and accept compensation therefor. It seems to us that the existence of this statute must be considered in discussing the power of a state to regulate inter-state commerce. (See 14 U. S. Statutes-at-Large, 66; Eev. Stat. of U. S. [2d ed. 1878], p. 1017, § 5258.)

If congress undei'took by this statute to legislate upon inter-state commerce, the exceptional decisions of the United States supreme court decided in 1876, including the Peik case, do not militate in the slightest degree against the views announced herein. That each railroad company in the case before us issued its own way-bill to and from the connecting point with the defendant, and that each company was liable for the loss and damage occurring on its own road only, does not affect the question of inter-state commerce. From the time the goods began to be moved from St. Louis, Mo., until they were delivered at Hutchinson, in this state, they were the subject of commerce, and commerce among states, and therefore inter-state commerce.

After a careful consideration of the whole record, and the important questions involved, we decide that the plaintiff is not entitled to recover. The judgment, therefore, of the district court, must be affirmed.

All the Justices concurring.