The Chicago v. People Ex Rel. Gustavus Koerner Comrs.

• Decision Date: 31 January 1873
• Citation: 1873 WL 8118,16 Am.Rep. 599,67 Ill. 11
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.THE PEOPLE ex rel. GUSTAVUS KOERNER et al. COMRS.
• Court: Illinois Supreme Court

67 Ill. 11

1873 WL 8118 (Ill.)

16 Am.Rep. 599

THE CHICAGO AND ALTON RAILROAD COMPANY

v.THE PEOPLE ex rel. GUSTAVUS KOERNER et al. COMRS.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an information in the nature of a quo warranto on the relation of Gustavus Koerner, Richard P. Morgan, Jr., and David S. Hammond, railroad and warehouse commissioners, against the Chicago and Alton Railroad Company, to have a forfeiture of its franchises declared for the reasons given in the opinion of the court. The court below rendered judgment of ouster against the company, from which this appeal was taken.

Messrs. BECKWITH, AYER & KALES, and Messrs. WILLIAMS & BURR, for the appellant.

Mr. J. H. ROWELL, Mr. HAMILTON SPENCER, and Mr. R. M. BENJAMIN, for the relators. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This record brings before us the proceedings upon an information in the nature of a quo warranto, filed by the railroad commissioners of the State against the Chicago and Alton Railroad Company, under the act which went into operation July 1, 1871, entitled “An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State for the transportation of freight on said roads.” The information set forth that the company, in violation of this act, had repeatedly charged and received for transporting lumber from Chicago to Lexington, a distance of one hundred and ten miles, the sum of five dollars and sixty-five cents per one thousand feet, while, at the same time, it had only charged for transportation of like lumber from Chicago to Bloomington, a distance of one hundred and twenty-six miles, the sum of five dollars per one thousand feet. The company, by way of defense, pleaded its charter and alleged that the rates of toll from Chicago to Lexington were in fact reasonable, while the rates from Chicago to Bloomington were unreasonably low, and were established because of the competition at the latter point with the Illinois Central Railroad Company. To this plea the relators demurred. The demurrer was sustained, a judgment of ouster was pronounced against the company, and its franchise was declared forfeited. From this judgment the company has prosecuted an appeal to this court.

The question involved in this record is the constitutionality of the act of the legislature under which the information was filed. The object of the general assembly in passing the law is indicated by its title, which we have already given. The substance of the first section of the act is, that no railroad corporation in this State shall charge a larger compensation for the transportation of freight over any distance than it is charging at the same time, for freight of the same class, over a less distance, nor shall it charge the same amount that it charges over a less distance. Another clause of the same section provides, that no railroad company in this State shall charge a larger compensation for freight over any portion of its road, than is charged for freight of the same class over any other portion of equal length.

The second section of the act merely defines what is meant by the phrase ““railroad corporation.”

The third section makes the rates of the year 1870 the standard for freight charges. This section is not brought before us by this record.

The fourth section provides for the recovery of a penalty of one thousand dollars, in an action of debt, together with a reasonable attorney's fee, by any person aggrieved by the violation of this act.

The fifth and last section provides, that any wilful violation of this act, by any railroad corporation, “shall be deemed and taken a forfeiture of its franchises,” and authorizes a proceeding to that end, such as is before us in the present record.

Very elaborate arguments have been filed by counsel, but they are chiefly devoted to a discussion of the power of the legislature to control the rate of railway charges or to fix their maximum limit. It is urged by counsel for the company that its charter is a contract with the State, by which the latter has irrevocably granted to the corporation the right to establish its rates of toll, subject only to an implied condition, which is admitted by counsel, that they shall not be unreasonable or excessive. It is further urged that this charter, with all the privileges it granted, is protected under that clause of the constitution of the United States which prohibits the States from enacting any law impairing the obligation of contracts. On the other hand, it is contended by counsel for the relators that railroad corporations, which obtain their right of way through the exercise of the right of eminent domain--a right belonging only to the sovereign power of the State, and to be delegated by that power only for public purposes--must be regarded as quasi public corporations, and therefore subject to legislative control, so far as may be necessary for the public welfare, of which the legislature must necessarily be the judge. It is further contended that the right to control and regulate their tolls is a species of police power which the legislature can not alienate from the State even if it should so desire, because essential to the proper sovereignty of the State.

These propositions of counsel invite us to a wide field of discussion, upon which we do not at present propose to enter. We have stated them for the purpose of saying, in terms, that we express no opinion in regard to them, and do not propose to do so until a case shall come before us demanding their discussion. There are laws upon our statute book involving their consideration, but the act before us does not necessarily do so in its application to the present case, and the expression of an opinion in regard to legislation not involved in this record would be obviously improper.

Conceding, for the purposes of this appeal, all that is claimed by counsel for the appellant in regard to the inviolability of railroad charters regarded in the light of contracts, we are still of opinion that the legislature has the clearest right to pass an act for the purpose of preventing an unjust discrimination in railway freights, whether as between individuals or communities, and to enforce its observance by appropriate penalties. The grounds of this opinion may be briefly stated, and they are as follows:

A railroad company is chartered, and is chartered solely, for the purpose of exercising the functions and performing the duties of a common carrier. The duties and liabilities of common carriers are clearly defined by the common law, and have been so defined for centuries. In all commercial countries the law upon this subject is one of the most important branches of legal science, and its leading principles were established by the courts of England at an early day. One of these principles is, that nothing excuses the carrier for the non-delivery of the goods received by him for carriage, except the act of God, or the public enemy. We do not find it written in the charters of railroad corporations in this State, that they shall exercise their franchises subject to this stringent liability; yet, nevertheless, this court has firmly held them to it, not permitting them to evade it, even by a notice, or by any means short of a special contract with the shipper to which his free assent must be shown to have been given. Another perfectly well settled rule of the common law in regard to common carriers is, that they shall not exercise any unjust and injurious discrimination between individuals in their rates of toll. In the language of Chief Justice HOLT, when delivering the opinion of the court of King's Bench, in the celebrated case of Coggs v. Bernard, 2 Lord RAYMOND, decided in 1703, the common carrier ““exercises a public employment,” and it necessarily follows that he must deal with the public fairly and without unjust discrimination. This common law duty of common carriers is not prescribed in the charters of railroad corporations, but, like the other duty of delivering goods in safety, unless prevented by the act of God or the public enemy, it attaches to them by virtue of their function as common carriers, the moment they commence the transportation of freight. In accepting their charters, which gave them an artificial existence as common carriers, they necessarily accepted them with all the duties and liabilities attached, by the existing law, to the function of a common carrier. This proposition seems to our mind so plain as hardly to admit of more argument than an axiom in mathematics. While the law now imposes, and always has imposed, upon individuals exercising the vocation of a common carrier, the obligation of rendering service to all persons without injustice to any, how utterly unreasonable it is to claim that a corporation is to be permitted to discriminate in its tolls at its own discretion and without regard to justice, merely because the legislature in the charter that created it for the purpose of exercising a like vocation, has authorized it to establish rates of toll without, in terms, providing that they shall be free from unjust discrimination. What was the import of that grant, made, as it was, in broad and general terms? Clearly nothing more than that the corporation should have the same right of establishing tolls that a natural person has, when acting as a common carrier--a right to be exercised within the same limitations that the common law, in behalf of justice and public policy, imposes upon the natural man.

This case has been argued on both sides with commendable ability and candor, and we avail ourselves of an admission made by counsel for the company to illustrate the position we are enforcing. It is conceded by counsel, in express terms, that “a natural person is not allowed to make...