State ex rel. R.R. Comm'n of Indiana v. Adams Express Co.

• Decision Date: 23 June 1908
• Docket Number: 21,174,21,175.,Nos. 21,173,s. 21,173
• Citation: 171 Ind. 138,85 N.E. 337
• Parties: STATE ex rel. RAILROAD COMMISSION OF INDIANA v. ADAMS EXPRESS CO. SAME v. AMERICAN EXPRESS CO. SAME v. UNITED STATES EXPRESS CO.
• Court: Indiana Supreme Court

171 Ind. 138

85 N.E. 337

STATE ex rel. RAILROAD COMMISSION OF INDIANA

v.ADAMS EXPRESS CO.

SAME

v.AMERICAN EXPRESS CO.

SAME

v.UNITED STATES EXPRESS CO.

Nos. 21,173, 21,174, 21,175.¹

Supreme Court of Indiana.

June 23, 1908.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Separate proceedings by mandamus in the name of the state, on the relation of the State Railroad Commission, against the Adams Express Company, the American Express Company, and the United States Express Company. From judgments sustaining a demurrer to the petitions and alternative writs in each case, the state appeals. The appeals were heard together, and judgments affirmed.

James Bingham and A. G. Merrill Moores (Walter Myers and John Ogden, of counsel), for appellant. Baker & Daniels, for appellees.

GILLETT, C. J.

These appeals involve a single question, and will therefore be disposed of together. The state of Indiana, on the relation of the Railroad Commission of Indiana, has appealed in each of said cases from a judgment which followed the sustaining of a demurrer to the relator's petition and the alternative writ which issued thereon. Omitting the distinctive part of the name of the defendant express company, the command of each writ was as follows: “Now, therefore, you, the - Express Company, are hereby ordered and commanded to deliver free of any delivery charge, in all cities within the state of Indiana, having a population of 2,500 or more inhabitants, according to the United States census of 1900, in which you, the - Express Company, are engaged in the express business, and where you maintain an office for the transaction of such business, all express matter handled by you, consigned to persons living in any and all such cities at the proper residence or place of business or other address of the consignee in such cities, according to the address furnished by the consignor of such express matter, or, on failure so to do, that you appear,” to show cause, etc. The matters complained of relate, either to the imposing of delivery charges upon express matter delivered beyond certain territorial limits, to the refusal to deliver beyond certain limits, or to the practice of making delivery beyond certain limits by means of a local express company, which exacts a delivery charge. It is the settled practice, relative to the law of mandamus, that it is ground of demurrer if the command of the alternative writ exceeds the legal duty of the defendant as disclosed by the averments of the petition and writ. State ex rel. Good v. Johns (Ind. Sup.) 84 N. E. 1, and cases cited. If, therefore, it was not the duty of the companies in all circumstances to deliver express matter received by them free of any delivery charge in the cities described, the demurrers were properly sustained. Relator's counsel almost wholly rely upon the Act March 6, 1901 (Acts 1901, p. 97, c. 62, section 3312a, Burns' Ann. St. 1901), to support their contention that it is the duty of express companiesto make free delivery of express matter in said cities; but attention is called to the fact that, according to the common law, it was the intendment of a general undertaking upon the part of such a company that it would make personal, as distinguished from warehouse, delivery. We held in United States Express Co. v. State, 164 Ind. 196, 73 N. E. 101, that an express company, which refused to make delivery of express matter at the residence of the consignee, in a city of more than 2,500 inhabitants, in accordance with its implied undertaking, based on the receipt of a package so addressed, was liable to the penalty of said statute. It was pointed out in that case that there was no federal enactment relative to the interstate shipment of goods by express, and we expressed our conclusion so far as concerned the objection that the statute was invalid as an attempted regulation of interstate commerce, that it was competent for the state, under a penalty, to require such carriers to live up to their legal duties. Since the decision of said case, Congress has amended and supplemented the several acts known as the “Interstate Commerce Act” (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) by the enactment of what is termed the “Railroad Rate Act.” Act of June 29, 1906, c. 3591, 34 State 584 (U. S. Comp. St. Supp. 1907, p. 892 et seq.). It is well settled that the amendatory sections of the latter act are to be treated, as to matters occurring after the enactment of said statute, as if said sections had been in the original act. Walsh v. State ex rel., 142 Ind. 357, 41 N. E. 65, 33 L. R. A. 392;Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370;Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190;Given v. State, 160 Ind. 552, 66 N. E. 750. In section 1 of the railroad rate act it is provided that “the term ‘common carrier,’ as used in this act, shall include express companies.”

As the command of the alternative writs in the cases before us to deliver free of any delivery charge is broad enough to include interstate shipments, the question arises whether Congress has not so far legislated upon the subject-matter as to forbid interference therewith on the part of the state, either by its legislative department, or by its judicial writs. In the section above referred to it is provided that the term “transportation” shall include, among other things, “all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported.” It is further provided in said section that “all charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.” Section 2 of said act requires that the schedules, which the common carrier is required to file with the Commission, and to keep open to public inspection, shall show “all rates, fares, and charges for transportation between different points on its own route.” It is further provided by said section that the schedules “shall plainly state the places between which property and passengers will be carried *** and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper or consignee.” Said section also makes it unlawful to charge, demand, collect, or receive a greater or less or different compensation “for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs,” than the schedule rates, fares, and charges. The fourth section of said act provides that the Commission is authorized and empowered, upon complaint, if “it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged or collected by any common carrier or carriers, subject to the provisions of this act, for the transportation of persons or property as defined in the first section of this act, or that any regulations or practices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair, and reasonable to be thereafter followed; and to make an order that the carrier shall cease and desist from such violation to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed, and shall conform to the regulation or practice so prescribed.” (The above italics are ours.) Provision is made in this section for the suspension of the order, but this does not concern us. The third section of the original act has not been amended. It prohibits the giving of any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality. What is an undue or unreasonable preference or advantage is a question of fact; but, subject to militating circumstances, it may be said that under said section rates ought to be relatively equal and reasonable, and that the carrier has no right to make rates so as to overcome the natural advantage of one place over another, or so as to build up one place or section at the expense of another. See authorities cited in 17 Am. & Eng. Ency. of Law (2d Ed.) 143, 144.

There can be no doubt that, where an interstate shipment of goods is made, wherein it is the contemplation that, through the agency of a common carrier, delivery shall be made to the consignee (instead of being delivered at a warehouse), the goods continue a subject of interstate commerce until they are delivered to the consignee. This has, in effect, been decided by the cases wherein it is determined when intoxicating liquors shipped into a state become subject to the police power thereof under the Wilson law. Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088;Adams Express Co. v. Kentucky, 206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987. It is equally clear, in our opinion, that the interstate commerce act and the railroad rate law occupy the whole field, so far as any question is here raised concerning the...