Gatton v. The Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 28 May 1895
• Citation: 63 N.W. 589,95 Iowa 112
• Parties: ISAAC GATTON, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

63 N.W. 589

95 Iowa 112

ISAAC GATTON, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

May 28, 1895

Appeal from Jasper District Court.--HON. D. RYAN, Judge.

Action to recover overcharges for freight shipped over defendants line of railway. Judgment on demurrer against plaintiff, and he appeals.

Affirmed.

Alanson Clark (with whom appear C. C. Nourse and Rickel & Crocker having like cases) for appellant.

Robert Mather, H. S. Winslow, and E. E. Cook for appellee.

OPINION

Kinne, J.

I.

The petition in this action is in two hundred and thirty-nine counts, all of which, save in dates of shipments, cars and kinds of stock shipped, and place from which shipped, are alike. The allegations are that the defendant is a railway corporation organized under the laws of the states of Iowa and Illinois, and engaged in the business of a common carrier, owning and operating its lines of railroad in and through said states, and that it has for more than ten years last past so owned and operated said road. It is then averred that, on live stock shipped from various points in Iowa over the defendant's line of road to Chicago, the defendant charged plaintiff's assignors the regular tariff rate per car, and that during the same time other parties were also engaged in shipping live stock over the defendant's road from the same places to Chicago, Ill to each of whom the defendant allowed and paid a rebate or drawback of seventeen dollars on each and every car of live stock so shipped, thereby requiring plaintiff's assignors to pay seventeen dollars per car more than the rate per car exacted of these other shippers; that said shipments so made by plaintiff's assignors were upon like conditions and similar circumstances as the shipments made by said other parties, and the services rendered by the defendant were the same in all of said cases; that the sums charged plaintiff's assignors were unreasonable and extortionate and seventeen dollars per car in excess of a fair and reasonable rate; that the rate charged was, under the circumstances, an unfair and unjust discrimination. Other necessary allegations are made. The plaintiff prayed for a judgment of ten thousand dollars. The defendant denies most of the material allegations of the petition, pleads the statute of limitations, in an amendment, and, as a separate defense, defendant pleads that all of said shipments were interstate shipments, and pertained exclusively to commerce between the states; that when said shipments were made the congress of the United States had not enacted any statute regulating or pertaining to shipments of that character; that the power to regulate commerce among the several states is vested exclusively in congress, and at the time said shipments were made there was no statute, or any rule of common law, governing or applicable to said shipments, or forbidding any discrimination or preference in rates. To this amendment plaintiff demurred, in substance because, in the absence of an act of congress, the common law was in force, and governed as to such shipments, and prevented unjust discrimination, or the charging of unreasonable rates; that the common law inhibitions were not regulations of commerce; that the state law prohibiting unjust discrimination by a common carrier is not obnoxious to the constitution of the United States; that such discrimination is contrary to public policy. The demurrer was overruled. The plaintiff excepted, and electing to stand upon his demurrer, and refusing to plead further, the court dismissed his petition, and rendered judgment against him for costs, to which he also excepted.

II. In this case we have had the benefit of exhaustive and able arguments, at the bar and in print, by eminent counsel. In addition to the printed argument filed by the appellant's counsel, we have been furnished with like arguments by C. C. Nourse and Messrs. Rickel & Crocker, who have cases pending involving the same question. We fully appreciate the importance of the question presented, and have devoted much time to its investigation, as well as to an examination of the large number of cases referred to by counsel. The question raised by the demurrer is whether overcharges by a common carrier on interstate shipments, made prior to the taking effect of the interstate commerce act, can be recovered by the shipper. On the one hand, it is insisted that prior to the enactment of that act the common law afforded a remedy in such cases; that the common-law rule forbidding common carriers from making unjust discrimination between shippers for like services rendered under the same circumstances was not violative of the provisions of the constitution of the United States which invested congress with the power to regulate commerce between the states. Appellee contends that as the right to regulate commerce between the several states was, by the constitution, vested exclusively in congress, and, as congress had enacted no law with reference thereto, there was afforded no relief in such cases; that there was no common law applicable to the United States, as a nation.

It is conceded that prior to the passage of the interstate commerce act there was no statute of the United States which affected the right of a carrier of interstate shipments to make discriminations in freight charges, or to give rebates to one shipper, and to withhold them from another shipper. We think it must also be held that, before congress legislated on this subject of interstate commerce, no state statute could affect charges or discriminations made by a carrier in respect to such shipments. Of this, however, we shall have more to say hereafter. Assuming, then, that the right of recovery, if any exists in this case, must be found outside of the statutes of the state, we inquire, where is it provided for? In determining as to whether there is, or rather was, any common law applicable generally to the United States, as a nation, we may be aided by a consideration of some facts connected with the early history of our country.

It is clear that prior to the Revolutionary War the common law was in force in all of the colonies. Each colony, subject to certain restrictions and limitations, determined its own system of local or municipal law. Each adopted so much of the common law of England as it deemed suited to the wants and necessities of its people. "The colonists who established the English colonies in this country undoubtedly brought with them the common and statute laws of England, as they stood at the time of their emigration, so far as they were applicable to the situation and local circumstances of the colony." U.S. v. Reid, 12 HOW 361, 13 L.Ed. 1023. "Our ancestors brought with them its general principles, and claimed it as their birthright, but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Peters 137-144. As is said In re Barry, 42 F. 113, in speaking of the common law, "it came to them, and was appropriated by them, and became an integral portion of the laws of the particular states, before the United States government had an existence." The congress of 1774 unanimously resolved that the colonies "are entitled to the common law of England." Journal of Congress, Declaration of Rights of the Colonies; Act 14, 1774, pp. 27-31. Story says that the uniform doctrine ever since the settlement of the colonies, and the uniform principle which has been conformed to in practice, has been that the common law is our birthright and inheritance, "and that our ancestors brought hither with them, upon their emigration, all of it which was applicable to their situation." 1 Story, Const., section 157; 1 Kent, Comm. 471, and notes. In Town of Pawlet v. Clark, 9 Cranch 292, it is said, "We take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges." In U. S. v. Worrall, 2 Dall. 384, F. Cas. No. 16,766. "There is no doubt that the common law is the basis of the laws of those states which were originally colonies of England, or carved out of such colonies. It was imported by the colonists, and established, so far as it was applicable to their institutions and circumstances." Norris v. Harris, 15 Cal. 226, at 227-252. In Cooley, Const. Lim. pp. 34-37, it is said: "From the first the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law, as then existing in England, was not suited to their conditions and circumstances in the new country, and these particulars they omitted as it was put in practice by them. They also claimed the benefit of such statutes as from time to time had been enacted in modification of this body of rules. * * * The evidence of the common law consisted in part of the declaratory statutes we have mentioned, in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the laws to actual controversies. While colonization continued--that is to say, until the war of the Revolution actually commenced--these decisions were authority in the colonies, and the changes made in the common law up to the same period were operative in America also, if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which has been adopted in America flowed on by itself, no longer subject to changes from across the ocean, but liable...