Swift v. Philadelphia & R.R. Co.

• Decision Date: 05 November 1894
• Citation: 64 F. 59
• Court: U.S. District Court — Northern District of Illinois
• Parties: SWIFT et al. v. PHILADELPHIA & R.R. CO.

64 F. 59

SWIFT et al. v. PHILADELPHIA & R.R. CO.

United States Circuit Court, N.D. Illinois.

November 5, 1894

A. H Veeder and Mason B. Loomis, for plaintiffs.

Ullman & Hacker and Osborn & Lynde, for defendant.

GROSSCUP District Judge.

This with other cases involving the same questions, now comes on upon motion of the defendant, for leave to withdraw pleas and file demurrers to the declaration. The disposition of the motion is dependent upon whether declaration sets out a good cause of action, and is practically, therefore, a demurrer to the declaration. The declaration differs in some respects from its predecessor, but, before entering upon the effect of this difference, I propose to revert to the original questions discussed in my former opinion. Swift v. Railroad Co., 58 F. 858. I do this because the conclusions of that opinion have been persistently and ably combated, not only in current legal periodicals, but also by some of the courts of the other circuits.

The conclusions to which I arrived in the former opinion may be summarized as follows: The right to recover from common carriers for unreasonable exactions must be found in some positive law of the land, applicable to the case in hand. Such a prohibition is in fact found in the common law; but it is not applicable to the case in hand, unless there be a common law of the United States, as a distinct sovereignty, because the regulation of the rates upon which the suit is dependent is within the scope of interstate commerce, and an exclusively national affair, in which the need of uniformity is imperative. There is no common law of the United States, as a distinct sovereignty; and there being no pronouncement of congress upon this subject, either expressly or impliedly, outside of the interstate commerce act, and this action not having been brought under the interstate commerce act, there is no law, either of the United States or the state, applicable to the case in hand, and there can therefore be no recovery.

The only link in the foregoing summary that has met with serious objection is the one which affirms the nonexistence of a United States common law. Indeed, it is conceded that unless a prohibition against the exaction of unreasonable rates is to be found in the body of the laws in force in the United States, outside of the scope of state jurisprudence, an action such as this cannot be sustained in the courts, either of the United States or the states, for, confessedly, the right to sustain them in the courts of the states is predicated upon the jurisdiction of state courts, in most instances, to enforce personal rights growing out of United States law. In my former opinion, I assumed that there was no common law of the United States, basing that assumption upon the repeated declarations of the supreme court. These declarations, I confess, were not decisive of the particular cases in which they occurred, and have not been accompanied by any discussion of the considerations upon which they are founded; but throughout the literature of that tribunal they have occurred often enough, without even the suggestion of a probable controversy, to justify their acceptance as the settled pronouncement of the court. I propose now, however, to consider the proposition as if it were wholly original and undecided.

Assuming that the regulation of freight rates upon interstate commerce is exclusively a national affair, is there any law of the United States applicable to the case in hand, except such as may be found to have arisen from the legislation of congress? Is there any common-law prohibition against unreasonable rates? Is there any United States common law at all? This inquiry can only be answered by taking a rapid glance at the whole sweep of our dual system of government, and its legal settings upon the jurisprudence of the past.

What is law? In the sense under review, it is a rule of civil conduct prescribed by the supreme power in the state. Mere definitions of right and wrong are not necessarily law. They may be so manifestly just that they ought to control civil conduct, but the citizen is under no legal obligation to obey them unless they are the expressed command of the supreme power in the state. A rule of civil conduct, to have the force of law, must emanate from some power that is supreme in the field to which the rule belongs. When we would know what the law is, therefore, we must inquire always from what power it proceeds, and the right of that power to prescribe it.

No one doubts the existence of some law of the land everywhere. No plain or valley, no nook or corner, to which the dominion of man has extended itself, is without some law of the land. Indeed, law is the breath of dominion. It commands are to be found in the express enactments of the sovereign legislative bodies, in the body of our judicial decrees, and in those ancient systems of law to which these later emanations are only supplementary. The last named were brought to the shores of America by the feet of the early emigrants; by the Englishmen, the common law; and, by the Frenchmen and Spaniards, the civil law. Each of these,-- the civil and the common law,-- within the respective boundaries into which they have settled, constitutes the fundamental rules of civil conduct; and there is no inch of our soil in which one of them is not in force. But, as we have seen, law is not simply a rule of civil conduct, but a rule prescribed by the supreme power in the state. Now, the supreme power of the state is, with us, divided. The line of division is not territorial, but topical. Each inch of soil is subject to the rule of two powers of state, overlapping each other in some respects, but never conflicting, and divided always according to prearranged constitutional adjustments. In some fields the nation is the sole power to prescribe rules of conduct, in other fields that power is exclusively in the state, and in still other fields it is concurrent. It is plain that in the first of these fields the emanation of a rule of conduct from the state, as, in the second, a like emanation from the nation, would not have the effect of law. Neither, in the field or the other, is a power in the state. The nation has not the power to prescribe rules of civil conduct within the field exclusively belonging to the state. The state has not the power to prescribe rules within the fields exclusively belonging to the nation. From each of these two fields the nation and the state, as the case may be, is excluded as a lawgiver. Now, this must apply as well to the system of law to which the sovereign succeeds as to that which it immediately creates; to the common or civil law as well as to that which comes from its own legislative or judicial will. In other words, the state or nation, having no power to give law in the fields exclusively belonging to the other, logically, can have succeeded to no law applicable to such fields. Neither can have a common law or a civil law within fields to which it can extend no law at all.

But the contention is that, the lawgiving power being divided topically between state and nation by the constitution, each of the participants is both the rightful current lawgiver, and the rightful successor to the common law, in the specific field apportioned to it; from which it would follow that the common law, like its own legislation, is prescribed by the state as a rule of civil conduct within the field of powers belonging to the state, and by the nation within the field of powers belonging to the nation. In other words, that the common law or civil law, as the case may be, prevails everywhere, and on every subject, but the source of the command is national or state according to the line of demarkation between the fields of power of the nation and state. This premise accepted, it would follow that the nation, having power to regulate interstate commerce, has succeeded within that field, as sovereign and lawgiver, to the commands embodied in the common law, and that within the field of the common law, attributable to the nation, as sovereign, is in force. The error, if there be any, is in the assumption of the premise. It is true that the state has, by succession or adoption, prescribed the common law to its citizens upon subjects within the field of power of the state. Whether the common law would prevail within the state in the absence of express adoption by statute, it is not now necessary to discuss. It is true, also, that upon subjects wholly beyond that field the state can prescribe no such rules of conduct. But it is not necessarily true that within its field of mere power the nation has succeeded to or adopted any code of laws as rules of civil conduct, except those to be found in its legislation. There is no express adoption of any system of laws by the constitution or by statute, and the theory of the national government does not necessarily imply that it, as sovereign, succeeds to any system of laws. The inquiry is one of fact, rather than speculation, and is to be solved by the intendments of the constitution. The inquiry is whether the constitution contemplated that within its field of power the nation should succeed, as sovereign, to the common law, or whether, within that field, no law should be prescribed by the nation, except by express or implied enactment.

It is plain to me that, so far as the nation is coterritorial with the states, the latter was intended. The great bulk of governmental regulation was meant to be left to the states. The field of power conferred upon the nation, outside of that essential to its functions and defense as a nation among nations, is principally a field of bare power. Over this field of bare power, unenforced by congressional enactment the...