Swift v. Philadelphia & R.R. Co.

• Decision Date: 27 November 1893
• Citation: 58 F. 858
• Court: U.S. District Court — Northern District of Illinois
• Parties: SWIFT et al. v. PHILADELPHIA & R. R. CO. SAME v. CENTRAL VT. R. CO. SAME v. DELAWARE, L. & W. R. CO. SAME v. FITCHBURG R. CO. SAME v. NEW YORK, C. & ST. L. R. CO.

58 F. 858

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

SAME v. CENTRAL VT. R. CO.

SAME v. DELAWARE, L. & W. R. CO.

SAME v. FITCHBURG R. CO.

SAME v. NEW YORK, C. & ST. L. R. CO. ^[1]

United States Circuit Court, N.D. Illinois.

November 27, 1893

E Walker, Albert H. Veeder, and Mason B. Loomis, for complainants in all the cases.

John G Milburn, S. E. Williamson, and Gregory, Booth & Harlan, for defendants Fitchburg R. Co., New York, C. & St. L. R. Co. and the Delaware, L. & W. R. Co.

Ullman & Hacker and Osborn & Lynde, for defendant Philadelphia & R. R. Co.

Schuyler & Kremer, for defendant Central Vt. R. Co.

GROSSCUP District Judge.

The declarations in these cases are substantially alike. The first three counts, with some variations, aver that the plaintiff is a corporation engaged in the business of shipping dressed beef and other provisions from the Union Stock Yards, in Chicago, to New York, Montreal, and other points in the eastern states and Canada; that after the 4th day of April, 1887, (the date the interstate commerce law went into effect,) and until April, 1888, the plaintiff, from time to time, delivered and the defendant accepted for transportation to such terminal points certain of its manufactured products; that the defendants were common carriers, engaged with other common carriers, in transporting continuously from Chicago to the eastern terminal points at certain rates established and then in force as the rate between such points; that the plaintiff was compelled to pay these defendants, according to the schedule rates, the sum of 65 cents per 100 pounds from Chicago to New York or Boston and other rates in like proportion to other points; and that the rates so taken and exacted were unjust and unreasonable. Two of these counts allege that these rates were established by combination between defendant and other corporations, and that the plaintiff paid the same under protest. The other special counts, except the fifth and seventh, are substantially the same, except that they aver that the defendants, and the other common carriers engaged with them in transporting the goods, used bills of lading for such shipments in the name and style of the Great Eastern Fast Freight Line, or other fast freight lines. The fifth and seventh counts are substantially the same as the others, except that they proceed expressly under the interstate commerce act. Most of the defendants demurred to all of the special counts, one of them, the Delaware, Lackawanna & Western Railroad Company, in place of a demurrer, filed a plea to the jurisdiction to the fifth and seventh counts. The cases are removed here, on the petition of the defendants, from the state courts, on the ground of diverse citizenship.

The general question raised by the demurrer is whether there is any law, common or statutory, applicable to the transactions set forth, which prohibits the exaction of unreasonable rates, or affects any contract between the shipper and carriers whereby unreasonable rates are stipulated for and taken. There can be no question that, in the absence of such prohibition or restraint, a common carrier can lawfully demand or contract for such compensation for carriage as he may be able to obtain. His privileges would, in such cases, be like those of any other person, and subject only to the economic laws which flow from trade and competition. If there is any municipal law which supersedes or supplements these economic laws, and subjects the carrier to restraints or regulations not imposed upon general business, it must be found either in the municipal law of the states or in a law of the United States.

It is not disputed that within the territory of the states, and upon subjects affected by state law, such a prohibition exists. It is one of the restraints embodied in the common law of England, and is therefore in force within every jurisdiction where the common law is the law of the land. It seems to me equally clear that, outside of the interstate commerce act, there is no law of the United States, as a distinct sovereignty, imposing such restraint. The United States, as a distinct sovereignty, imposes no laws upon its subjects, except such as are expressly or impliedly enacted by congress. Congress has not adopted the common law of England as a national municipal law. The courts of the United States have had many occasions to enforce the common law, but in every instance it has been as the municipal law of the state by which the subject-matter was affected. Outside of the interstate commerce act, there...