papers complains, in speaking of these two cases, that the community is growing "Americanized." This is one point in which imitation of this country should not be recommended. We wish the other States would imitate Texas in the perseverance and efficiency with which her officers and courts follow up such criminals, although we do not admire the technical ieaning of her court of criminal appeal. When we read the accounts of that young devil's capers on the Central railroad the other day, we remembered Punch's recipe to prevent railroad accidents, namely, to tie a railway director on the cowcatcher; and it occurred to us that it might be well to run a pioneer express train every day, filled with express company directors, newspaper reporters, story-writers and female Sunday-school teachers and fruit-and-flower missionaries, just to make the track safe for the rest of the public. IN NOTES OF CASES. N Greenville Ice & Coal Co. v. City of Greenville, Supreme Court of Mississippi, December 14, 1891, it was held that "An act to encourage the establishment of factories in this State, and to exempt them from taxation," and declaring exempt from taxation for ten years the machinery used for the manufacture of cotton or woollen goods, yarns or fabrics composed of these or other materials, or for the making of all kinds of machinery or implements of husbandry, "or all other things or articles not prohibited by law," exempts only machinery used for making articles of like character with the articles enumerated, and does not exempt ice factories. The court said: "The words 'not prohibited by law' convey no meaning, and may be disregarded in any effort to ascertain the construction of the statute, inasmuch as neither the manufacture of any textile fabrics, nor machinery nor agricultural implements, nor any other manufactured product are prohibited by law. The general words, all other articles or things not prohibited by law,' by a well-known rule of statutory interpretation, must be referred to the particular words which they immediately follow, and will include only articles or things ejusdem generis with those specifically enumerated, unless the context clearly requires that the general words shall be construed in their larger signification. We nowhere find in the act any words or provisions indicative of a clear legislative purpose to extend the exemption further than the specifically enumerated cases, and It must not be forgotten too that this well-known rule of interpretation is of special application and force in seeking to ascertain the legislative intent in statutes which require strict construction. Statutes imposing burdens of taxation receive strict construction, and statutes exempting from the common burden of taxation must likewise receive such construction. Furthermore, if we look to the fourth section of this very others of like character. obscure and imperfect statute, the foregoing view will receive strong confirmation. This fourth section, if it means any thing, declares that all capital hereafter employed in canning factories and capital employed in the operation of the Clement's attachment shall be exempt from taxation, as provided in the first and second sections of the act. Now canning factories and the Clement's attachment are not ejusdem generis with the specifically enumerated cases exempted from taxation in the first section of the act. They were not included in the words, all other articles or things not prohibited by law,' and are therefore themselves specifically named for exemption in the fourth section. This exemption of canning factories, etc., in the fourth section, is wholly idle and meaningless if all factories, of every character and description, had already been exempted by the general words in section 1 which we have been considering. The statute must be held to mean all those other manufactured articles or things of character similar to the particular classes just then enumerated, to-wit, machinery used for making machinery or implements used in husbandry. The party pleading exemption from taxation has imposed upon him the burden of clearly showing his title to the immunity claimed, and if his right may be fairly said to remain in doubt, the claim must be denied. We are of opinion that factories for the manufacture of ice are not entitled to the exemption provided by the statute." In Ex parte Rapier and Ex parte Dupre, Federal Supreme Court, February 1, 1892, it was held that the act of Congress, September 19, 1890, excluding lottery matter from the mails, is within the constitutional power conferred by the grant of authority to establish post-offices and post-roads, and in no way abridges the freedom of the press or the right of free communication. Chief Justice Fuller said: "In Ex parte Jackson, 96 U. S. 727, it was held that the power vested in Congress to establish postoffices and post-roads embraced the regulation of the entire postal system of the country, and that under it Congress may designate what may be carried in the mail and what excluded; that in excluding various articles from the mails the object of Congress is not to interfere with the freedom of the press or with any other rights of the people, but to refuse the facilities for the distribution of matter deemed injurious by Congress to the public morals; and that the transportation in any other way of matters excluded from the mails would not be forbidden. Unless we are prepared to overrule that decision, it is decisive of the question before us. It is argued that in Jackson's Case it was not urged that Congress had no power to exclude lottery matter from the mails; but it is conceded that the point of want of power was passed upon in the opinion. This was necessarily so, for the real question was the existence of the power, and not the defective exercise of it. And it is a mistake to suppose that the conclusion there expressed was arrived at without deliberate consideration. It is insisted that powers of Congress are THE DERBY ELECTION CASE. N the Derby Election Case, 41 N. St. Rep. 932, itst in their exercise to the objects for which they I Judge cray states that because of section 60361 were intrusted, and that, in order to justify Congress in exercising any incidental or implied powers to carry into effect its express authority, it must appear that there is some relation between the means employed and the legitimate end. This is true; but while the legitimate end of the exercise of the power in question is to furnish mail facilities for the people of the United States, it is also true that mail facilities are not required to be furnished for every purpose. The States, before the Union was formed, could establish post-offices and postroads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish post-offices and post-roads was surrendered to the Congress, it was as a complete power; and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime or immorality within the States in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime or immorality. The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offense of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of petitioners, since it would be for Congress to determine what are within and what without the rule; but we think there is no room for such a distinction here, and that it must be left to Congress, in the exercise of a sound discretion, to determine in what manner it will exercise the power it undoubtedly possesses. We can not regard the right to operate a lottery as a fundamental right infringed by the legislation in question; nor are we able to see that Congress can be held, in its enactment, to have abridged the freedom of the press. The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged, within the intent and meaning of the constitutional provision, unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matters condemned by its judgment through the governmental agencies which it controls. That power may be abused furnishes no ground for a denial of its existence, if government is to be maintained at all." the Code of Civil Procedure, relative to an injunction the mandamus issued in the Derby case by the Special Term was a nullity, and that only because of the stipulation of the parties accompanying the record and the failure of the State canvassers to raise the objection, did he proceed to determine the questions at issue in that case upon the merits. The following is his language on this point: "If we were free to consider and determine the right or propriety to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the Supreme Court at a Special Term. Though the writ is in form one of peremptory mandamus, yet it is by force of its terms and commands, in effect, an order which restrains a board of State officers engaged in the performance of, or about to perform, a duty imposed by the statute. We think that this provision of the Code (§ 605) is applicable to all cases where the object of the proceeding is to restrain State officers or boards while engaged in the performance of a legal or statutory duty, and that its effect cannot be evaded by issuing a writ of mandumus, by the terms of which the State officers are restrained. *However, because of the stipulation of the parties, which accompanies the record here, and because of the failure of the defendants to the proceeding to raise the objection, we have concluded to overlook the question of jurisdiction, and to determine the questions at issue upon their merits." These remarks were clearly obiter. Indeed the learned judge himself admits this. I shall endeavor to demonstrate that his construction of the stipulation was incorrect and that his construction of the Code is unsound. First, as to the stipulation. There was nothing in the stipulation that foreclosed counsel from raising the question of jurisdiction. Here is a copy of it, omitting the titles of the proceedings: "It is hereby stipulated in each of the above-entitled proceedings that an appeal shall be immediately taken from each of the orders granted therein, at the Columbia Special Term, commencing December 5, 1891, and entered in Albany county clerk's office December 7, 1891, that the relators therein will print the papers upon such appeals and furnish them so that the appeals shall be submitted to the General Term now being held in the Third Department, on Tuesday, December 8; that the respondents, upon such appeal, will accept notice of argument thereof for that day and Term to put such appeals upon its calendar for that unite with the appellants in a request to the General day, and immediately hear and decide such appeals; that the defeated party at General Term shall immediately appeal to the Court of Appeals, and the prevailing party shall accept short notice of argument of lants in a request to the court to place the appeals upon the appeals in that court, and unite with the appelthe present calendar and hear them upon some day to be fixed by the court therefor as early as practicable, and that the proceedings of the State board of canvassers relating to the canvass of votes for senator in the fifteenth, sixteenth, twenty-fifth and twenth-seventh senatorial districts be suspended until the decision of the Court of Appeals upon such appeal, providing such decision be made prior to December 30, 1891, and that such canvass shall be completed, and the certificates of the result, and of election made and issued by the State board of canvassers in accordance with the decision of the Court of Appeals in these cases, if so made, and also in the twenty-fifth district, in accordance with the decision of the Court of Appeals in this and other appeals." Not a word here against raising any conceivable point or objection. The question of jurisdiction was raised and argued by Judge Maynard before Judge Edwards at Hudson. He there argued that the Special Term had no power to issue the mandamus, because of section 605 of the Code of Civil Procedure, which provides that where a duty is imposed upon a State officer or board, an injunction order to restrain from the performance of that duty, or to prevent the execution of the statute, shall not be granted except by the General Term. What was there in the stipulation to prevent counsel from again pressing that point in the Court of Appeals? They raised every other conceivable technical objection. They argued in their points at page 5, that a mandamus ought not to issue to restrain public officers, because that was not the office of a mandamus. They argued that there had been no refusal of the State canvassers to perform their duty, and therefore mandamus could not issue. Brief, pp. 6, 8. They argued at page 6 that "the writ of mandamus cannot take the place of an injunction." They argued at page 7, that a mandamus would not be granted in anticipation of a defect of duty or error in conduct. They argued that there should be a demand and refusal of a public officer, before mandamus could issue. Brief, p. 7. They argued at pages 9 and 10, that the writ of mandamus against the State board of canvassers "is an entirely new thing in this State;" that "to credit such a precedent as this would be to invite an unlimited number of such cases upon the part of the persons who might suspect," etc. They argued at page 10, "The order asked for in this action is of a mixed and mongrel character, part injunction, part writ of mandamus and part writ of prohibition. Such a combination is unknown in our practice." I have thus outlined the substance of the entire argument made by Messrs. Maynard and McCurdy in their printed brief in the Derby case. They therefore did not refrain from raising the question of jurisdiction under section 605 of the Code, on account of the stipulation pursuant to which the cases were precipitated upon the Court of Appeals. The probability is that the reason they failed to raise this question was that the argument at Hudson showed the point to be untenable. Procedure, a mandamus to compel the State canvassers to perform a statutory duty "can be granted only at a Special Term of the court." Upon the part of the relators in the Derby case, the objection that the writ of mandamus was operating as an injunction was answered by quoting from Commissioners v. Boone County, 82 Ky. 632, that a mandamus "is ordinarily to compel an executive or ministerial officer to perform an act, or omit to do an act," and from Virginia v. Rives, 100 U. S. 313, 324, "One of its peculiar and more common uses is to restrain inferior courts and to keep them within their lawful bounds." Other cases were cited to show that it was the province of the writ of mandamus to compel the State canvassers to follow the pathway created for them in the statutes, and to prevent them from going outside the lines thereof. The mandamus in the Derby case did not prevent the State canvassers "from the performance of that (statutory) duty;" nor did it "prevent the execution of the statute." The order for the mandamus (record, p. 24), directed that a "Peremptory mandamus issue * * * commanding the State board of canvassers to issue a certificate of election in accordance with certified statements as to the result of the election for senator in the sixteenth senatorial district of the State of New York, held No vember 3, 1891, filed with the said board, and now in its custody, and as certified to them by the board of county canvassers of the counties composing the said district, in pursuance of the statute, and to make a determination of the result of said election upon the said certified statements, disregard ing and without considering any other papers of any nature whatever relating to the said election, or the result thereof, as to said office, whether said papers are attached to the said certified statement, or on file, or in the custody of the said board, or any member thereof, and without taking any proofs or considering any papers with reference to the determination of the said election in the said senatorial district, except the said certified statements made pursuant to the statute, by boards of county canvasscomposing the said senatorial district." ers, * * * The Court of Appeals decided in the Derby Case that "there is no latitude afforded by the law for any determination by boards of county canvassers outside of the official returns which the statute prescribes, as the duty of county canvassers to make and file. * * * It is perfectly evident from the provisions of the statute that the limits for the action of the State board of canvassers are fixed, and that there is an utter absence of warrant for their proceeding upon any thing but the certified statements required by the statute to be made and filed by the county boards;" and the order granted by Judge Edwards was affirmed. Second. It is not difficult to show that Judge Gray has misconstrued the Code. Section 605 of It seems then that the writ of mandamus did not that Code reads: * "Where a duty is imposed by "restrain him or them, * from the performstatute upon a State officer, or board of State ance of that duty, nor prevent the execution of the officers, an injunction order to restrain him or them, statute;" and that the inhibition of section 605 or a person employed by him or them, from the would not have applied to this case, even if an performance of that duty, or to prevent the execu- injunction eo nomine had been applied for. tion of the statute, shall not be granted, except by The Court of Appeals decided that the relator was the Supreme Court at the General Term thereof," not seeking to restrain the State canvassers from etc. An injunction order of course only issues in the performance of a statutory duty, and did not, by an action. By section 2068 of the Code of Civil | the mandamus, prevent the execution of the statute. On the contrary, the State canvassers could, with safety and satisfaction to Derby, have canvassed the official certificates from the counties composing that district, and issued their certificate to Derby, without protest and without fear of punishment, notwithstanding the order of Judge Edwards. They did not issue a certificate to Derby, pending the proceedings before Judge Edwards, because they wished to get outside the statute. They wished to assume prerogatives not conferred upon them by the statute and argued (see Maynard and McCurdy's brief in the Sherwood case, p. 26), that by virtue of section 843 of the Code of Civil Procedure "the State board of canvassers may also receive affidavits." It seems to me clear that only by mandamus can the State canvassers be compelled to perform a statutory duty, and that such mandamus can only issue out of the Special Term, and that such a mandamus operating to prevent the State canvassers from considering extraneous matters, does not fall within the inhibition of section 605. in the Constitutions or statutes of most of the States, and such was also the obligation imposed upon comthat the words "reasonable and just," when used with mon carriers by the common law. But it is obvious reference to railway rates, must be susceptible of great elasticity of interpretation. The infinitely varying circumstances of transportation of necessity make the question of reasonableness of rates an indefinite one. And it would not be strange that a question which is continually puzzling the minds of trained railway experts, whose lives are devoted to its solution, should have given much trouble to the courts and railway commissioners of this country and England. It is the purpose of this article to examine some of the decis ions upon the question of reasonableness of rates, and eral rules and their qualifications which have been state with as much brevity as possible some of the gen enunciated and applied by tribunals having jurisdiction to determine the question. All controversies over the reasonableness of railway rates are ostensibly, and as far as the form of the proceeding is concerned, controversies between the carrier on the one hand and the aggrieved shipper on the other. But as a matter of fact in many cases the real defendant is some other shipper whom the complainant is endeavoring to strike at through the carrier. If we analyze the cases we find that they may be broadly divided into two classes, those in which the unreasonableness complained of can benefit only the carrier, and those in which it may benefit some other individual, corporation, locality or class of business, at the expense of the complainant. In the second class of cases it is the element of discrimination which com The only possible evasion of this reasoning is in the line of Judge Gray's contention that the mandamus was practically an injunction. This he argues in spite of the clear distinction in the Code between the two remedies and in the tribunals respectively invested with power to grant them. The one issues only in a special proceeding, the other in an action, and the provisions vesting juris-plicates the situation and makes it so difficult of solu It may be noted by way of preface that the right to have a judicial inquiry into the reasonableness of rates cannot be taken away from a railroad by legislation. Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418. Nor can the government, under pretense of regulating transportation charges, require a railroad corporation to carry persons or property without reward. Stone v. take an extreme case, if the interests of the carrier and diction are addressed to the remedies as thus defined and authorized. Judge Gray, by a charitable stretch of construction, would change their name and office, and hold that the Code authorizes the General Term to grant an injunction, when the Code expressly provides that the Special Term alone shall have that power! A tithe of this charity and liber-Farmers' Loan & Trust Co., 116 U. S. 307, 311. And to ality of construction on the part of the learned judge and three of his associates in the Onondaga case would have saved the disfranchisement of twelve hundred voters. In the Onondaga case, by strict construction, the court read a mandatory effect into mere directory provisions, and say that the ballots were void although the statute does not say so; but in the Derby case, Judge Gray goes out of his way to hold, by liberal construction, that a mandamus may be an injunction in spite of the Code. shipper in respect to rates are irreconcilable, that is, if the highest rate which the shipper can afford to pay carrier clearly could not be compelled to carry, for will not recompense the carrier for cost of service, the that would be taking private property for private uses, or at any rate for public uses, without just compensation, as well as an infraction of certain other constitutled to charge a rate which will pay the cost of service. tional provisions. So that the carrier is at least entiThis proposition would seem to be elementary under the constitutional guarantees of our form of government. But it is necessary to allude to it on account of the feeling that exists in some sections of the country that railroads are, or should be, compelled to carry at such a rate as will enable the shipper to prosper though it ruin the carrier. The power to regulate does not mean the power to destroy, and the extreme doctrine of the legislative power over corporations engaged in public employment affecting the public interest, enunciated in Munn v. Illinois, 94 U. S. 113, has been substantially modified if not overruled in the case of Stone v. Farmers' Loan & Trust Company, already cited. See dissenting opinion in this case, 134 United States, 418. Not only may the shipper not exact a rate which will not pay the cost of service, but it may be unlawful for the carrier to agree to carry at a loss, as for instance where carriage at a loss results in the carrier recouping itself by imposing a burden on like traffic at other points, or on other traffic. Such a course might constitute destructive and illegitimate competition and therefore be unlawful. Lehman v. Southern Pacific Co., 4 I. C. C. 1. Starting therefore with the proposition that the rate which may be prescribed by the legislative or judicial power must be just and reasonable to the carrier as well as to the shipper, and that a rate which does not pay the cost of service is unreasonable and unjust, and therefore not prescribable, let us examine first some of the factors in the situation which a carrier may rely on to defend its rates when attacked in a specific instance. It may rely upon the cost of service. Rice v. W. N. Y. & P. R. Co., 2 I. C. C. 436. This is an important element in the situation, and it is therefore necessary to understand the elements which go to make it up. In the business of railroad transportation the items which may be ordinarily charged against the cost of moving freight are the pay of the traiumen and handlers of freight, the cost of fuel, and the expense of track repairs, and the cost of loss and damage, calculated in the ratio of tou miles made by the car or train, to the total tou miles of road. So a carrier may charge a higher rate for a more expensive kind of service. But if the more expensive service enhances the market price of the commodity it is not reasonable and just that the carrier should absorb all the additional profit in the article carried. The carrier should be amply compensated, but the producer should share the profit. Delaware State Grange v. N. Y., Phila. & N. R. Co., 4 I. C. C. 588. It is here interesting to note the well-known principle of transportation, that while the aggregate cost of carriage increases with the distance, the cost per ton per mile decreases, so that the rate for transportation for a long distance should be relatively less than that for a short distance. Manufacturer, etc., Union v. Minneapolis & St. L. R. Co., 4 I. C. C. 97. But like almost all general rules in transportation business, this is subject to qualifications arising from special conditions, and it is not always safe to defend a relatively lower rate for a long than for a short time on this principle. An absolutely lower rate for a long and for a short haul is, as is well known, forbidden "under substantially similar circumstances and conditions" by the fourth section of the Inter-State Commerce Act. As certain elements in the cost of service vary in inverse ratio to the volume of business, that is to say, as the expense of transporting freight which is offered for transportation regularly and in large quantities is less than where it is offered for transportation irregularly and in small quantities, it might seem to follow that the volume and regularity of the business is an element upon which the carrier may defend a rate as reasonable and not open to the objection of discrimination. But the inter-State commerce commission holds that while these circumstances may be allowable factors to determine the classification of different though similar kinds of freight, it does not imply that a large shipper of the same or like traffic can have any advantage over a shipper of smaller quantities. Like traffic of large shippers and of small shippers must have the same classification for car loads and for less than car loads." Warner v. N. Y. Central R. Co., 4 1. C. C. 32. It has however been held in England that a special agreement discriminating in favor of a large and regular shipper and against small and irregular shippers is allowable, provided the real object of the railway company is to obtain a greater remunerative profit by the special agreement, and it is willing to make the same agreement with all others upon the same terms, and provided the consideration given to the company in return for the advantages offered by it are adequate. Nicholson v. G. W. R. Co., 4 C. B. (N. S.) 366; Nicholson v. G. W. R. Co., 1 Ry. & Ca. Traff. Cas. 143. These cases afford a good illustration of the tendency of the English tribunals to attach weight to the pecuniary interest of railroads in deciding between the carrier and the shippers, for while the English tribunals attach, as has been pointed out elsewhere by the author of this article (Railway Gazette, vol. 24, No. 5), supreme importance to the consideration of public convenience in determining questions arising under the Railway and Canal Traffic Acts, still the right of the railway to make such arrangements as will fairly inure to its pecaniary profit, although resulting in discrimination, is recognized to an extent to which it has not been as yet in the United States. It has been held in England however that it is not a valid consideration for a reduced rate that the favored shipper is a customer of the same railway company in goods of a different kind (Bellsdyke Coal Company v. North British Ry. Co., 2 Ry. & Ca. Traff. Cas. 105), nor that the shipper has agreed to use no other means of transportation for his goods for a long term of years. Diphwys Co. v. Festiniog Ry. Co., 2 Ry. & Ca. Traff. Cas. 73. But the right of a carrier to charge such rates as will enable the railway investor to profit on his investment has been recognized in the United States, for a carrier may justify its rates on the ground that they are necessary to enable it to meet its fixed charges and pay a dividend on its capital stock. But its obligations of this nature must be actual and in good faith (In re Excessive Freight Rates, 4 I. C. C. 48; Coxe Bros. v. Lehigh Valley Ry. Co., id. 535), or to put the proposition in concrete form, a carrier cannot defend rates on the ground that they are necessary to enable it to pay dividends on watered stock. Nor can a railroad select a part of its system, as for instance a small subsidiary road, and maintain that a given rate is reasonable because a less rate would make the operation of such subsidiary road unprofitable. "A selected fractional part of any great railroad might be taken, and a showing made, by an apportionment of earnings and cost of operation and fixed charges, that it is unprofitable, but this would furnish no indication of its value and profitableness as an important part of the whole property." Delaware State Grange v. N. Y., Phila., etc., R., 4 I. C. C. 588, 606. The railroad is entitled to have taken into consideration its geographical situation, and the proportion, resulting therefrom, of its through business to its local business. For instance, if it run through a sparselysettled country it will be principally dependent for its expenses and profits upon its through traffic, and thus be entitled to charge a higher rate upon such through traffic than another railroad running through a thicklysettled country would be entitled to charge for a carriage of similar distance. Evans v. Oregon Ry. Navigation Co., 1 I. C. C. 325. To this extent therefore the comparison of rates of railroads doing the same kind of transportation, but differently situated, is not a safe criterion by which to determine reasonableness of rates. Other considerations which enter into the determination of the question of the reasonableness of rates are the character of the commodity, the cost of its production, the extent and nature of the competition in the business itself, the competition by other transportation lines and the interests of the public in the use of the commodity. Imperial Coal Co. v. Pittsburg & Lake Erie R. Co., 2 I. C. C. 618. It would be impossible in the compass of an article like this to adequately discuss the relative importance of all these various factors, and the precedents already cited will illustrate the qualifications to which any general rules must be subject. The interests of three classes have always to be questioned, namely, producers, carriers and consumers, and it may be said that in no class of cases with which our judicial tribunals have to deal is there greater need of comprehensiveness of view and L |