People v. the Wabash

• Decision Date: 28 September 1882
• Citation: 104 Ill. 476,1882 WL 10440
• Parties: THE PEOPLE OF THE STATE OF ILLINOISv.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY.
• Court: Illinois Supreme Court

104 Ill. 476

1882 WL 10440 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS

v.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Ford county; the Hon. OWEN T. REEVES, Judge, presiding.

This was an action of debt brought in the court below, in the name of the People of the State of Illinois against the Wabash, St. Louis and Pacific Railway Company. The declaration contained several counts, but the alleged cause of action is substantially set forth in the first count, which is as follows:

“For that whereas, heretofore, to-wit, on the 29th day of August, A. D. 1881, at, to-wit, the county of Ford, aforesaid, the said defendant was a railroad corporation, duly organized and incorporated under the laws of the State of Illinois, and was then and there owning and operating a certain railroad lying partly within the State of Illinois, and running from Peoria, in the county of Peoria, in the State of Illinois, eastward through the stations of Gilman and Sheldon, in said Iroquois county, to Toledo, in the county of Lucas, and State of Ohio, commonly known as the Wabash, St. Louis and Pacific railroad, and was then and there doing business as a common carrier of freight and passengers upon and over said railroad, and afterwards, to-wit, on the day and year aforesaid, to-wit, at the county of Peoria aforesaid, the said defendant, at the request of Joseph Elder and D. McKinney, partners, doing business under firm name of Elder & McKinney, and residents and citizens of said State of Illinois, carried and transported eastward, upon and over said line of railroad owned and operated by it as aforesaid, and upon and over railroads connected with said defendants, for said Elder & McKinney, from Peoria aforesaid, a station upon said railroad, through said Gilman to New York City, in the State of New York, a large quantity of freight, to-wit, one car-load of corn, of a great weight, to-wit, of the weight of 26,000 pounds, of the goods and chattels of said Elder & McKinney, and that defendant afterwards, to-wit, on the day and year aforesaid, at, to-wit, the county of Peoria aforesaid, charged, demanded, received and collected of and from said Elder & McKinney, as and for said defendant's entire toll and compensation for the said carriage and transportation of said one car-load of corn upon and over said railroad, and said connecting lines of railroad, from said Peoria to said New York City, a large sum of money, to-wit, the sum of $39. And afterwards, to-wit, on the same day and year last aforesaid, at, to-wit, the county of Iroquois aforesaid, the said defendant, at the request of Isaac Bailey and F. O. Swannell, partners, as Bailey & Swannell, and residents of said county, carried and transported for said Bailey & Swannell, eastward upon and over said line of railroad owned and operated by the said defendant as aforesaid, and upon some other lines of railroad connected therewith, over which said corn was transported from Gilman aforesaid, in the county of Iroquois, and State of Illinois, a station upon said railroad, to New York City, in the State of New York, a certain other large quantity of freight, to-wit, one car-load of oil cake, of a great weight, to-wit, of the weight of 26,000 pounds, of the goods and chattels of said Bailey & Swannell, and that defendant afterwards, to-wit, on the same day and year aforesaid, at, to-wit, the county of Iroquois aforesaid, charged, demanded, received and collected of and from said Bailey & Swannell, as and for said defendant's toll and compensation for the said transportation and carriage of said one car-load of oil cake last aforesaid, upon and over its said railroad, and said connecting lines of railroad, from said Gilman to said New York City, a large sum of money, to-wit, the sum of $65, which the said Bailey & Swannell then and there paid to defendant for such carriage and transportation of said one car-load of oil cake last aforesaid, from Gilman aforesaid, to said New York City, as aforesaid.

And plaintiffs aforesaid aver that said goods and chattels,--oil cake,-- last aforesaid, carried and transported by said defendant as aforesaid, was of like quantity, and of the same class of freight as the freight first aforesaid, to-wit, the one car-load of corn carried and transported by said defendant as aforesaid, and was carried and transported, to-wit, at the same time, and in the same direction, and over the same lines of railroad, by said defendant, as said car-load of corn hereinbefore mentioned. And the plaintiffs further aver, that the distance over and upon the line of said defendant's railroad over and upon which said corn was carried and transported from said Peoria eastward to Sheldon, a station on the line of said road near the eastern boundary of the State of Illinois, is, to-wit, one hundred and nine miles, and that the distance from said Gilman, a station upon the line of said railroad, over and upon the line of said railroad over and upon which said car-load of oil cake was carried and transported to said station of Sheldon, near the eastern boundary of said State, is only, to-wit, twenty-three miles, and that the distance from said Gilman to said New York City, upon the route or railroads over and upon which said goods and chattels,--oil cake aforesaid,-- were carried and transported, is less than the distance from said Peoria to the city of New York aforesaid, upon the route or railroads over and upon which said goods and chattels,--corn,--were transported, by eighty-six miles. And the plaintiffs further aver, that the said defendant's rate of freight so charged, collected and received as aforesaid, for the carriage and transportation of said car-load of corn from Peoria aforesaid to said city of New York, was only fifteen cents per 100 pounds per car load, making the sum, to-wit, of $39 aforesaid, and that the said defendant's rate of freight so charged, collected and received, as aforesaid, for the carriage and transportation of said car-load of oil cake, from Gilman aforesaid to said New York City, a less distance, was twenty-five cents per 100 pounds per car load, making, to-wit, the sum of $65 aforesaid. And the plaintiffs further aver, that the said defendant made, demanded, collected and received, to-wit, the same proportionate discrimination in the said rates of freight for the transportation of said goods and chattels, to-wit, said oil cake and corn, upon and over its line of railroad in the State of Illinois, that was made, demanded, collected and received, as heretofore alleged, for said transportation between said Peoria and New York City, and said Gilman and New York City, whereby, and by means of the premises aforesaid, the plaintiffs aver that the said defendant has been guilty of making an unjust discrimination in the rates of freight in the State of Illinois, in the carriage and transportation of said goods and chattels, to-wit, one car-load of corn and one car-load of oil cake aforesaid, to the great injury of the citizens of said State, and contrary to the form of the statutes of said State in such cases made and provided, and against the peace and dignity of the People of the State of Illinois, whereby an action hath accrued unto the said plaintiffs, to have and demand of and from the said defendant the sum of $5000, parcel of the said sum above demanded.”

A demurrer was sustained to the several counts in the declaration, and the People thereupon sued out this writ of error.

Mr. JAMES MCCARTNEY, Attorney General, for the People:

The statute against unjust discrimination is not confined in its force to the carriage of freights, etc., wholly within this State. The words “within this State,” in section 2, have reference to the roads which any company has the right or license to operate or use in this State. The act was intended to apply to any discrimination made in this State, no matter where the carriage is to be done. The State, until Congress shall provide a law governing inter-State commerce, may pass such a law affecting railroad companies in this State, or operating here, even though such regulation may incidentally reach beyond the State. Peck v. Chicago and Northwestern Ry. Co. 94 U. S. 164; Chicago, Burlington and Quincy R. R. Co. v. Iowa, Id. 155; Railroad Co. v. Fuller, 17 Wall. 560.

Unjust discrimination in the carriage of freights was an offence at common law. McDuffee v. Portland and Rochester R. R. Co. 52 N. H. 430; Messenger et al. v. Pennsylvania R. R. Co. 36 N. J. L. 407; Chicago and Alton R. R. Co. v. People ex rel. 67 Ill. 11.

Mr. A. SAMPLE, also for the People, took the same ground, and further contended that the exercise of the police power by the State, to prevent unjust discrimination in the transportation of property from within the State to points in another State, is not in violation of that provision of the Federal constitution which gives to the Congress the right to regulate inter-State commerce, citing Railroad Co. v. Fuller, 17 Wall. 560; Munn v. Illinois, 93 U. S. 113; Peck v. Chicago R. R. Co. Id. 175.

Mr. H. S. GREENE, and Mr. F. T. HUGHES, for the defendant in error:

Freight delivered to a carrier, to be transported from a point within this State to a point in a distant State, can not be regarded as local or domestic freight. The very moment it is so delivered and marked, the character of inter-State commerce attaches to it, even while passing through this State. The Daniel Ball, 10 Wall. 557.

The power to regulate commerce between the States is vested solely in Congress. Gibbon v. Ogden, 9 Wheat. 196; Homes v. Jennison, 14 Pet. 570; Brown v. State of Maryland, 12 Wheat. 446; New York v. Miln, 11 Pet. 158; Wilson v. Black Creek Marsh Co. 2 Id. 250.

The non-exercise of that power by Congress is equivalent to a declaration by that body that such commerce shall be free from any restriction. Welton...