result in enforcing unreasonable and unjust rates.

general market, yet, because of the expense of transportation from Kansas City there, In this case, as heretofore indicated, a and the loss in weight by shrinkage during volume of testimony has been taken, mainly such transportation, the live stock shipped upon the question of the cost and value of to and sold at Kansas City in 1896 realized the stock yards, and the effect upon the in- for its owners more than $1,500,000 in excome of the company by reason of the pro- cess of the amount which would have been posed reduction. This testimony was taken realized if forwarded from Kansas City to before a master, with instructions to report and sold on the Chicago market." the cost of the stock yards, the present Now, in the light of these decisions and value of the property, the receipts and ex-facts, it is insisted that the same rule as penditures thereof, the manner of operation, to the limit of judicial interference must and such other matters as might be perti- apply in cases in which a public service is nent for a determination of the case. Stat distinctly intended and rendered and in ed in general terms, his findings were that those in which, without any intent of pubthe value of the property used for stock-lic service, the owners have placed their yard purposes, including the value* of cer-property in such a position that the public tain supplies of feed and materials which has an interest in its use. Obviously there were on hand December 31, 1896, is $5,388,- is a difference in the conditions of these 003.25; that the gross income realized by cases. In the one the owner has intentionthe stock-yards company during the year ally devoted his property to the discharge 1896, which was taken as representing its of a public service. In the other he has average gross income, was $1,012,271.22. placed his property in such a position that, The total expenditures of the company for willingly or unwillingly, the public has acall purposes during the same period quired an interest in its use. In the one amounted to $535,297.14,-thus indicating he deliberately undertakes to do that which a net income for the year of $476,974.08. is a proper work for the state. In the The court, however, increased the estimate of the net income by adding to the expenditures the sum of $113,584,65, expended in repairs and construction, thus placing the net income at the amount of $590,558.73. If the rates prescribed by the Kansas statute for yarding and feeding stock had been in force during the year 1896 the income of the stock-yards company would have been reduced that year $300,651.77, leaving a net income of $289,916.96. This would have yielded a return of 5.3 per cent on the value of property used for stock-yard purposes, as fixed by the master. Or if the capital stock be taken after deducting therefrom such portion thereof which represents property not used for stock-yard purposes, the return would be 4.6 per cent.

Counsel for appellants challenge the correctness of these findings, and seek to show by a review of the testimony that no such per cent of return on the real value of the investment would be received by the company in case the proposed reduction is put into effect. But, without stopping to enter into the inquiry suggested by their contention, it is enough for our present purpose to state in general the conclusions of the master and

the court.

On the other hand, it is shown by the findings, approved by the court, that the prices charged in these stock yards are no higher, and in some respects lower, than those charged in any other stock yards in the country, and finding 37 is

"The other stock yards heretofore enumerated are operated generally in the same manner as those at Kansas City, and there is and was for a long time prior to March 12, 1997, active and growing competition among their owners to attract and secure to each the shipment of live stock from competitive territories. Kansas City is the greatest stocker and feeder market in the world, and while Chicago exceeds it as a

other, in pursuit of merely private gain, he has placed his property in such a position that the public has become interested in its use. In the one it may be said that he voluntarily accepts all the conditions of public service which attach to like service performed by the state itself. In the other, that he submits to only those necessary interferences and regulations which the public interests require. In the one he expresses his willingness to do the work of the state, aware that the state in the discharge of its public duties is not guided solely by a question of profit. It may rightfully deter mine that the particular service is of such importance to the public that it may be conducted at a pecuniary loss, having in view a larger general interest. At any rate, it does not perform its services with the single idea of profit. Its thought is the general public welfare. If in such a case an individual is willing to undertake the work of the state, may it not be urged that he in a measure subjects himself to the same rules of action, and that if the body which expresses the judgment of the state believes that the particular services should be rendered without profit he is not at liberty to complain? While we have said again and again that one volunteering to do such services cannot be compelled to expose his property to confiscation, that he cannot be compelled to submit its use to such rates as do not pay the expenses of the work, and therefore create a constantly increasing debt which ultimately works its appropriation, still is there not force in the suggestion that as the state may do the work without profit, if he voluntarily undertakes to act for the state he must submit to a like determination as to the paramount interests of the public?

Again, wherever a purely public use is contemplated, the state may and generally does bestow upon the party intending such use some of its governmental powers.

It

⚫95

Such was the rule of the common law, even in respect to those engaged in a quasi-public service, independent of legislative action. In any action to recover for an excessive charge, prior to all legislative action, who ever knew of an inquiry as to the amount of the total profits of the party making the charge? Was not the inquiry always limited to the particular charge, and whether that charge was an unreasonable exaction for the services rendered? As said by Mr. Justice Bradley in Parkersburg & O. River Transp. Co. v. Parkersburg, 107 U. S. 691, 699, 27 L. ed. 584, 587, 2 Sup. Ct. Rep. 732:

grants the right of eminent domain, by | tions the amount of his profits is large. which property can be taken, and taken, not at the price fixed by the owner, but at the market value. It thus enables him to exercise the powers of the state, and, exercising those powers and doing the work of the state, is it wholly unfair to rule that he must submit to the same conditions which the state may place upon its own exercise of the same powers and the doing of the same work? It is unnecessary in this case to determine this question. We simply notice the arguments which are claimed to justify a difference in the rule as to property devoted to public uses from that in respect to property used solely for purposes of private gain, and which only by virtue of the conditions of its use becomes such as the public has an interest in.

"It is also obvious that, since a wharf is property and wharfage is a charge or rent for its temporary use, the question whether the owner derives more or less revenue from it, or whether more or less than the cost of building and maintaining it, or what dispo sition he makes of such revenue, can in no way concern those who make use of the wharf, and are required to pay the regular charges therefor; provided, always, that the charges are reasonable, and not exorbitant."

In Canada Southern R. Co. v. International Bridge Co. (L. R. 8 App. Cas. 723, 731) Lord Chancellor Selborne thus expressed the decision of the House of Lords:

But

In reference to this latter class of cases, which is alone the subject of present inquiry, it must be noticed that the individual is not doing the work of the state. He is not using his property in the discharge of a purely public service. He acquires from the state none of its governmental powers. His business in all matters of purchase and sale is subject to the ordinary conditions of the market and the freedom of contract. He can force no one to sell to him, he cannot prescribe the price which he shall pay. He "It certainly appears to their lordships must deal in the market as others deal, buy- that the principle must be, when reasonableing only when he can buy and at the price ness comes in question, not what profit it at which the owner is willing to sell, and may be reasonable for a company to make, selling only when he can find a purchaser but what it is reasonable to charge to the and at the price which the latter is willing person who is charged. That is the only to pay. If under such circumstances he is thing he is concerned with. They do not bound by all the conditions of ordinary mer- say that the case may not be imagined of cantile transactions he may justly claim the results to a company being so enor some of the privileges which attach to those mously disproportionate to the money laid engaged in such transactions. And while out upon the undertaking as to make that by the decisions heretofore referred to he of itself possibly some evidence that the cannot claim immunity from all state regu-charge is unreasonable with reference to the lation he may rightfully say that such regu- person against whom it is charged. lation shall not operate to deprive him of that is merely imaginary. Here we have the ordinary privileges of others engaged in got a perfectly reasonable scale of charges mercantile business. in everything which is to be regarded as maPursuing this thought, we add that the terial to the person against whom the state's regulation of his charges is not to charge is made. One of their lordships be measured by the aggregate of his profits, asked counsel at the bar to point out which determined by the volume of business, but of these charges were unreasonable. It was by the question whether any particular not found possible to do so. In point of charge to an individual dealing with him fact, every one of them seems to be, when is, considering the service rendered, an un- examined with reference to the service renreasonable exaction. In other words, if he dered and the benefit to the person receiving has a thousand transactions a day, and his that service, perfectly unexceptionable accharges in each are but a reasonable com- cording to any standard of reasonableness pensation for the benefit received by the par- which can be suggested. That being so, it ty dealing with him, such charges do not seems to their lordships that it would be a become unreasonable because by reason of very extraordinary thing indeed, unless the the multitude the aggregate of his profits legislature had expressly said so, to hold is large. The question is not how much he that the persons using the bridge could makes out of his volume of business, but claim a right to take the whole accounts of whether in each particular transaction the the company, to dissect their capital accharge is an unreasonable exaction for the count, and to dissect their income account, services rendered. He has a right to do to allow this item and disallow that, and, business. He has a right to charge for each separate service that which is reasonable compensation therefor, and the legislature may not deny him such reasonable compensation, and may not interfere simply because out of the multitude of his transac

after manipulating the accounts in their own way, to ask a court to say that the persons who have projected such an undertaking as this, who have encountered all the original risks of executing it, who are still subject to the risks which from natural and

26.

other causes every such undertaking is subject to, and who may possibly, as in the case alluded to by the learned judge in the court below, the case of the Tay Bridge, have the whole thing swept away in a moment, are to be regarded as making unreasonable charges, not because it is otherwise than fair for the railway company using the bridge to pay those charges, but because the bridge company gets a dividend which is alleged to amount, at the utmost, to 15 per cent. Their lordships can hardly characterize that argument as anything less than preposterous."

The authority of the legislature to interfere by a regulation of rates is not an authority to destroy the principles of these decisions, but simply to enforce them. Its prescription of rates is prima facie evidence of their reasonableness. In other words, it is a legislative declaration that such charges are reasonable compensation for the services rendered, but it does not follow therefrom that the legislature has power to reduce any reasonable charges because by reason of the volume of business done by the party he is making more profit than others in the same or other business. The question is always, not, What does he make as the aggregate of his profits? but, What is the value of the services which he renders to the one seeking and receiving such services? Of course, it may sometimes be, as suggested in the opinion of Lord Chancellor Selborne, that the amount of the aggregate profits may be a factor in considering the question of the reasonableness of the charges, but it is only one factor, and is not that which finally determines the question of reasonableness. Now, the controversy in the circuit court proceeded upon the theory that the aggregate of profits was the pivotal fact. To that the testimony was adduced, upon it the findings of the master were made, and in recognition of that fact the opinion of the court was announced. Obviously, as we think, in all this the lines of inquiry were too narrowly pursued.

may conclude that, if the claim can be sustained in point of law, it was in fact for a reasonable fee. If so, then, looking to the amount established for similar services by other officers, and remembering what fees have been paid and received within the memory of us all in the Courts of Westminster Hall and at the Assizes, we think there can be little doubt that the fees in question, so far as amount is concerned, are in fact reasonable."

In Louisville, E. & St. L. R. Co. v. Wil son, 119 Ind. 352, 358, 4 L. R. A. 244, 247, 21 N. E. 341, 343, is this language:

"The law makes it the duty of every common carrier to receive and carry all goods, and authorizes a reasonable reward to be charged for the service. The amount to be paid is, in a measure, subject to the agreement of the parties; but when the amount is not fixed by contract, the law implies that the carrier shall have a reasonable reward, which is to be ascertained by the amount commonly or customarily paid for other like services. Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 26 Am. Rep. 731; Angell, Carr. § 392; Lawson, Carr. § 125."

Again, the findings show that the gross receipts for the year 1896 were $1,012,271.22; that the total number of stock received during the same time was 5,471,246. In other words, the charge per capita was 18 cents and 5 mills. So that one shipping to the stock yards 100 head of stock was charged $18.50 for the privileges of the yard, the attendance of the employees, and the feed furnished. While from these figures alone we might not say that the charges were reasonable or unreasonable, we cannot but be impressed with the fact that the smallness of the charge suggests no extortion. Further, as heretofore noticed, the findings show that the establishment of these yards has operated to secure to the shippers during a single year $1,500,000 more than they would have realized in case of their nonexistence and a consequent shipment to Chicago, the other great stock market of the country.

pany's income about 50 per cent and that it prevents it from realizing on the capital invested in its plant such a per cent as is ordinarily realized on capital invested in other mercantile and business enterprises, still," etc.

It may be said that the conclusion of the court was directly against the plaintiffs, and therefore was a decision against all It is not to be wondered that the trial their contentions. It was found, however, court, in deciding the case, observed: that the charges made by the defendant were "Conceding, as we must, that the legis no greater (and in many instances, less)lation complained of was radical in its nathan those of any other stock yards in the ture and effect, that it reduced the comcountry. Nothing is stated to outweigh the significance of that finding. While custom is not controlling, for there may be a custom on the part of all stock-yards companies to make excessive charges, yet in the absence of testimony to the contrary a customary charge should be regarded as reasonable and rightful. In Gunning, Law of Tolls, the author says (p. 61): "Long usage and acquiescence in one uniform payment for toll is undoubtedly cogent evidence that it is reasonable." In Shephard v. Payne, 12 C. B. N. S. 414, 433, Willes, J., said:

"A fee need not be of a fixed and ascertained, but may be of a reasonable, amount; and, exercising the power conferred upon us by the case, to draw inferences of fact, we

But inasmuch as the inquiry in that court proceeded upon lines which we have indicated were too narrow, it might well be that if there were no other questions we ought to simply send back the case for further investigation upon the true lines of inquiry. There are, however, other questions which compel notice, and one is that suggested by the 7th section in the statute, which provides a punishment for the first offense of not more than $100, for the second offense not

*100

sonable loss? Let us make some illustrations to suggest the scope of this thought.

less than $100 nor more than $200, for the third offense not less than $200 nor more than $500 and imprisonment in the county Suppose a law were passed that if any jail not exceeding six months, and for each laboring man should bring or defend an acsubsequent offense a fine of not less tion and fail in his claim or defense, either than $1,000 and imprisonment not less in whole or in part, he should in the one than six months. The language of instance forfeit to the defendant half of the this section, taken in connection with amount of his claim, and in the other be, the balance of the statute, is not punished by a fine equal to half of the reentirely clear. The previous prescrip- covery against him, and that such law by: tions of the statute are of a certain charge its terms applied only to laboring men, per head. Now, does this section contem- would there be the slightest hesitation in plate a separate offense with a separate pen- holding that the laborer was denied the alty for each excessive charge per head, or equal protection of the laws? The mere does it contemplate a single penalty for a fact that the courts are open to hear his violation of the statute in respect to the claim or defense is not sufficient, if upon entire number of stock received in one ship-him, and upon him alone, there is visited a ment? The difference is significant. Tak-substantial penalty for a failure to make ing the total number shipped to these stock good his entire claim or defense. Take anyards in the year 1890, it amounted to an other illustration: Suppose a statute that average of about 15,000 head per day. every corporation failing to establish its enWould that, in case of an excessive charge tire claim, or make good its entire defense, for each head, mean 15,000 violations of should as a penalty therefor forfeit its corthe statute? If so, as after the third offense porate franchise, and that no penalty of the fine could not be less than $1,000 for any kind except the matter of costs was ateach offense, a single day's penalties would tached to like failures of other litigants, aggregate at least $15,000,000. While the could it be said that the corporations refact is not clearly disclosed by the testimony, ceived the equal protection of the laws? doubtless the shipments were made by sepa- Take still another illustration: Suppose a rate shippers in bunches all the way from law which, while opening the doors of the 50 to 500 in number. If the penalty at- courts to all litigants, provided that a failtaches simply to the charge for each ship-ure of any plaintiff or defendant to make ment as a single act, the burden, though good his entire claim or entire defense should large, might not be deemed excessive; but subject him to a forfeiture of all his if it attaches to that for each particular property or to some other great penalty; head of stock the penalties become enormous. then, even if, as all litigants were treated It may be said that this is a penal statute, alike, it could be said that there was equal and therefore it is to be construed in favor protection of the laws, would not such burof the delinquent, and that we have a right den upon all be adjudged a denial of due to expect that the state courts will construe process of law? Of course, these are exthe penalty as not attaching to the charge treme illustrations, and they serve only to for each head of stock, but only to that upon illustrate the proposition that a statute (althe separate bunches shipped by different though in terms opening the doors of the individuals. But is the language so clear courts to a particular litigant) which places that there is no doubt as to the construc- upon him as a penalty for a failure to make tion? Is there not enough in it to justify good his claim or defense a burden so great a construction which may be accepted by as to practically intimidate him from asthe trial courts and approved by the suserting that which he believes to be his rights is, when no such penalty is inflicted preme court of the state? And the construction of a state statute by the supreme equal protection of the laws. It may be upon others, tantamount to a denial of the court of the state is in a case like this con- said that these illustrations are not perticlusive upon us. Must the party upon nent because they are of civil actions, where whom such a liability is threatened take as this statute makes certain conduct by the chances of the construction of a doubt-the stock-yards company a criminal offense, ful statute? If the one construction is and simply imposes punishment for such ofplaced upon it, then obviously, even accept-fense; that it is within the competency of ing the largest estimate of value placed by the legislature to prescribe the penalties for any witness upon the property of the com- all offenses, either those existing at common pany, a single day's violation of the stat-law or those created by statute; and, furute would exhaust such entire value in sat-ther, that although the penalties herein imisfaction of the penalties incurred. In this posed may be large, yet obedience to a statfeature of the case we are brought face toute like this can only be secured by large face with a question which legislation of penalties; for otherwise the company, be other states is presenting. Do the laws se-ing wealthy and powerful, might defiantly cure to an individual an equal protection disregard its mandates,* trusting to the manwhen he is allowed to come into court and ifold chances of litigation to prevent any make his claim or defense subject to the serious loss from disobedience. A penalty condition that, upon a failure to make good of a dollar on a large corporation, whose asthat claim or defense, the penalty for such sets amount to millions, would not be very failure either appropriates all his property, deterrent from disobedience. It is doubt or subjects him to extravagant and unrea-less true that the state may impose penal

ties such as will tend to compel obedience | in our construction, we may refer to the to its mandates by all, individuals or cor- brief of the learned attorney general, in porations; and if extreme and cumulative which he says: penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented. But when the legislature, in an effort to prevent any inquiry of the validity of a particular statute, so burdens any challenge thereof in the courts that the party affected is necessarily constrained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.

But it is not necessary to rest our decision upon this consideration, which was not fully discussed by counsel, but pass to a question which is of a kindred nature, and in which there is presented no matter of the doubtful construction of a statute.

The act in terms applies only to those stock yards within the state "which for the preceding twelve months shall have had an average daily receipt of not less than 100 head of cattle, or 300 head of hogs, or 300 head of sheep."

It appears affirmatively from the testimony that there are other stock yards in the state, one at Wichita and one at Jamestown, and it is stated by counsel for ap pellants that there are many others scattered through the state, each doing a small business. Neither the yard at Wichita nor that at Jamestown, so far as the testimony shows, comes within the scope of this act. So it may be assumed from the record that the legislature of Kansas, having regard simply to the stock yards at Kansas City and the volume of business done at those yards, passed this act to reduce their charges. Undoubtedly the act is general in its terms, and we may not, therefore, stop to inquire whether it conflicts with the constitutional prohibition contained in article 2, § 17, of the Constitution of Kansas:

"Sec. 17. All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable no special law

"The legislature has by this act classified the stock yards of the state into two classes, and has adopted the most natural and reasonable basis for such purposes that could be used, namely, the volume of business done. The reason for this is obvious; the stock yards doing a large volume of business are necessarily more of monopolies than those doing a smaller business. The public has greater interest in the business of large stock yards than it has in the business of smaller ones.

"Another reason why the classification should be based upon the volume of business done is that rates which are reasonable and proper and furnish a sufficient return upon the capital invested can very properly be made lower and different in a plant where the volume of business is large, while in a smaller plant doing a smaller volume of business higher rates may be necessary in order to afford adequate returns."

If the average daily receipts of a stock yard are more than 100 head of cattle, or more than 300 head of hogs, or more than 300 head of sheep, it comes within the purview of this statute. If less than that amount it is free from legislative restriction. No matter what yards it may touch to-day or in the near or far future, the express declaration of the statute is that stock yards doing a business in excess of a certain amount of stock shall be subjected to this regulation, and that all others doing less business shall be free from its provisions. Clearly the classification is based solely on the amount of business done, and without any reference to the character or value of the services rendered. Kindred legislation would be found in a statute like this: requiring a railroad company hauling ten tons or over of freight a day to charge only a certain sum per ton, leaving to other railroad companies hauling a less amount of freight the right to make any rea sonable charge; or, one requiring a railroad company hauling 100 or more passengers a day to charge only a specified amount per It may be assumed, for the purposes of the mile for each, leaving those hauling 99 or question now to be considered, that so far less to make any charge which would be as the Constitution of Kansas is concerned reasonable for the service; or if we may inits legislature may enact a law general indulge in the supposition that the legisla its terms, and yet so phrased as necessarily ture has a right to interfere with the freeto have operation only upon a single indi-dom of private contracts, one which would vidual or corporation; but while making that concession we cannot shut our eyes to the fact that this act is precisely the same in its effect as though the legislature had said in terms that the Kansas City stock yards alone shall be subjected to its provisions. Accepting, however, the full force of the general language in which the statute is couched, it appears that a classification is attempted between stock yards do ing a large and those doing a small business. The express and only basis of classification is in the amount of business done by the two classes. As evidence that we are right

shall be enacted."

forbid a dealer in shoes and selling more than ten pairs a day from charging more than a certain price per pair, leaving the others selling a less number to charge that which they deemed reasonable; or forbid. ding farmers selling more than ten bushels of wheat to charge above a specified sum per bushel, leaving to those selling a less amount the privilege of charging and collecting whatever they and the buyers may see fit to agree upon. In short, we come back to the thought that the classification is one not based upon the character or value of the services rendered, but simply on the