Wellman v. Chicago & G.T.R. Co.

• Decision Date: 24 December 1890
• Citation: 47 N.W. 489,83 Mich. 592
• Parties: WELLMAN v. CHICAGO & G. T. RY. CO.
• Court: Michigan Supreme Court

47 N.W. 489

83 Mich. 592

WELLMAN v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

December 24, 1890

Error from circuit court, Clair county.

E W. Middaugh, Otto Kirchner, and W. L. Webber for plaintiff in error.

B W. Huston, Atty. Gen., John Atkinson, and W. T. Mitchell, for defendant in error.

MORSE J.

By Act No. 202 of the Public Acts of 1889, section 3323 of Howell's Statutes, being a part of the general railroad law of this state, was amended. This amendment, for the purposes of this case, is given here in so far as it affects it. It is enacted that every railroad corporation shall possess the general powers, and be subject to the liabilities and restrictions, following, that is to say: " Ninth. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor; but such compensation for transporting any passenger, and his or her ordinary baggage, not exceeding in weight 150 pounds, shall not exceed the following prices, viz.: For a distance not exceeding five miles, three cents per mile; for all other distances, for all companies, the gross earnings of whose passenger trains, as reported to the commissioner of railroads for the year one thousand eight hundred and eighty-eight, equaled or exceeded the sum of $3,000 per mile of road operated by said company two cents per mile; and for all companies, the earnings of whose passenger trains reported as aforesaid were over $2,000 and less than $3,000 per mile of road operated by said company, two and a half cents per mile; and for all companies whose earnings, reported as aforesaid, were less than $2,000 per mile of road operated by said company, three cents per mile: provided that in future, whenever the earnings of any company doing business in this state, as reported to the commissioner of railroads at the close of any year, shall increase so as to equal or exceed the sum of $2,000 or $3,000 per mile of road operated by said company, then, in such case, said companies shall thereafter, upon the notification of the commissioner of railroads, be required to only receive as compensation for the transportation of any passenger, and his or her ordinary baggage not exceeding in weight 150 pounds, a rate of two cents and a half, or two cents per mile, as hereinbefore provided: provided, that roads in the upper peninsula which report, as above provided, passenger earnings exceeding $3,000 per mile, shall not charge to exceed three cents per mile, and roads reporting less than $3,000 per mile shall be allowed to charge not to exceed four cents per mile." Pub. Acts 1889, pp. 282, 283. The gross earnings of the defendant corporation, as shown by the report of said corporation to the railroad commissioner, for 1888, exceeded the sum of $3,000 per mile. The law took effect the 2d day of October, 1889. On that day, the plaintiff applied at the office or station of the defendant at Port Huron for a ticket of passage from Port Huron to Battle Creek, a distance of 159 3/4 miles, and tendered therefor the sum of $3.20 in legal tender money of the United States. The money was refused, and the agent of the defendant company refused a ticket to plaintiff for such sum, which refusal the plaintiff avers was of damage to him, and brings suit. The suit was commenced in the circuit court for the county of St. Clair, and the plaintiff recovered judgment. The circuit judge charged the jury as follows: "I charge you, gentlemen, that by Act No. 202 of the Public Acts of this state of 1889, all railroad corporations, owning or operating railroads in this state, the gross earnings of whose passenger trains, as reported to the commissioner of railroads for the year 1888, equaled or exceeded the sum of three thousand dollars for each mile of road operated by said company, were required to transport passengers at the rate of two cents per mile. It is admitted that the defendant's earnings, per mile, as reported to the commissioner, exceeded that sum. It is claimed by the defendant that this law is unconstitutional and void, but I charge you the law is valid, and that under that law the defendant was bound to transport the plaintiff at the rate of two cents per mile, and for its refusal so to do the plaintiff may recover; and it is for you to assess his damages at such sum as you think him entitled to under all the circumstances; and such as will compensate him for the injury he is shown to have sustained." It being evident from the record that this was a friendly suit between the plaintiff and the defendant to test the constitutionality of this legislation, the attorney general, when it was brought into this court upon writ of error, very properly interposed, and secured counsel to represent the public interest. In the stipulation of facts, or in the taking of testimony in the court below, neither the attorney general nor any other person interested for, or employed in the behalf of, the people of the state took any part. What difference there might have been in the record, had the people been represented in the court below, however, under our views of the case, is not of material inquiry.

We are not informed what questions were raised in the court below except that the constitutionality of the statute was attacked. In this court it is urged that the legislature has no power to prescribe absolutely a maximum rate for passenger fares; that a railroad corporation is a common carrier, and the legislature has no right to fix arbitrarily the limit of its charges. It is admitted that the franchise and privilege conferred by the state upon these corporations to build, own, maintain, and operate a railroad, and the power also conferred to exercise the right of eminent domain in securing the right of way for the road, and the right of locating the road-bed and tracks along and across public highways and other thoroughfares, clothes such railroad property with a semi-public character, and subjects it to the control of the state, in regard to the compensation for its use, to the extent that its charges must be reasonable, and that the legislature has the right, as to such property, to pass such reasonable rules and regulations as will accomplish that result. But it is insisted that in its ownership it is private property, and the granting of these privileges does not take from the company its right, as owner, to make and fix its own tariff of charges, but only requires, for the protection of the public, that such tariff shall be reasonable. Within the bounds of reasonableness, the owner has full power and right to make such tariff. Leaving out of view for the present the decisions of the supreme court of the United States upon this question, which will be considered hereafter, (as this must be conceded to be in some of its phases a federal question, and controlled by such decisions, if applicable,) we will examine our own constitution, policy, and laws as regards this subject. This is the first time, we think, that the right of the state to control and fix the maximum rates of freight or passenger fares has been denied in Michigan. The statute amended by the act under consideration provided that "the compensation for transporting any passenger, and his or her ordinary baggage not exceeding in weight 100 pounds, shall not, except on railroads operating less than 20 miles of road, exceed the following prices, viz.: For a distance not exceeding five miles, four cents per mile; for all other distances, not exceeding three cents per mile; and no fare shall be less than five cents; and that amount, in any case, may be charged and collected: * * * provided, that, in the upper peninsula, five cents per mile may be charged and collected on all railroads." How. St. subd. 9, � 3323, p. 841. The first general railroad law of the state provided that "the compensation for any passenger, and his ordinary baggage, shall not exceed three cents a mile, unless by special act of the legislature, and shall be subject to alteration as hereinafter provided." Sess. Laws 1855, subd. 9, � 17, p. 160; 1 Comp. Laws 1857, p. 638. In 1869, the legislature amended this subdivision so that the compensation on roads over 25 miles in length should not exceed three cents per mile; not over 25 miles in length, four cents. 1 Sess. Laws 1869, p. 179; 1 Comp. Laws 1871, p. 752. In 1873, after the adoption of the constitutional amendment, (article 19 a,) there was a general revision of the railroad laws. In that revision the rate was fixed as found in Howell's Statutes. See 1 Sess. Laws 1873, p. 506. Section 11 of article 5 of this revision provided that this act might at any time be altered, amended, or repealed, but such alteration, amendment, or repeal should not affect the rights of property of companies organized under it. 1 Laws 1873, p. 542; How. St. � 3395. It will thus be seen that the right of the legislature to fix the maximum rate for passenger fares has been exercised ever since the first general enactment as to railroads, in 1855. The defendant corporation holds its franchise, and enjoys its privilege to do business in this state, under this general railroad law, and for many years has acquiesced in the statute fixing the maximum rate of its passenger fares; nor has it, or any other road in the lower peninsula, complained of the distinction made in such law between such roads and the roads in the upper peninsula. And in 1870 the people of the state amended the organic law, the constitution of the state, expressly conferring upon the legislature the power to fix such maximum rates. "The legislature may from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on different railroads in...