Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

many ages. A mistake of this kind is an evil of some magnitude. It unjustly weakens the confidence of the community in the wisdom and justice of the ancient system, and impairs its vigor. When the understanding prevails that equality, in a branch of the public service so vast as that of transportation by common carriers, depends upon the action of a Legislature declaring it by statute, and attempting the difficult task of accurately expressing the whole length and breadth of the doctrine in words not defined in the common law, public and common rights of immense value are removed from a natural, broad, and firm foundation to one that is artificial and narrow, and consequently less secure; and many results of ill consequence flow from such a misconception of the free institutions of the common law." In this connection the case of Tift v. Southern R. Co. (C. C.) 123 Fed. 789, is also pertinent. Said Mr. Justice Speer at page 791: "The difference in the obligation of a common carrier and that of a private individual is that the former has undertaken a duty to the public. Having undertaken that duty, it was settled by the common law that the common carrier must carry for all, to the extent of his capacity, without unjust or unreasonable discrimination either in charges or in the facilities for actual transportation."

pers. He has a right to demand that the railroad shall afford him the same treatment as his competitors. The question of relative rates is often of more importance than that of absolute charges."

So, while it may be true, as stated by Beal & Wyman, supra, that the cases announcing the modern doctrine are fewer in number, they are, nevertheless, too numerous to cite in full, and it is sufficient, in addition to those already mentioned, to refer to the following: Kansas, etc., R. Co. v. Bayles, 19 Colo. 348, 351, 35 Pac. 744; Chicago, etc., R. Co. v. People, 67 Ill. 11, 17, 16 Am. Rep. 599; Vincent v. Chicago, etc., R. Co., 49 Ill. 33; Kellogg v. Sowerby, 93 App. Div. 124, 87 N. Y. Supp. 412; Hays v. Pennsylvania R. Co. (C. C.) 12 Fed. 309; Samuels v. Louisville, etc., R. Co. (C. C.) 31 Fed. 57, 59; Louisville, etc., R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 L. R. A. 244; Lumber Co. v. Railroad, 141 N. C. 171, 176, 53 S. E. 823; Id., 136 N. C. 479, 48 S. E. 813; State v. Central Vermont R. Co., 81 Vt. 463, 71 Atl. 194, 130 Am. St. Rep. 1065.

The evils of rate discrimination need no comment, and the capacity of the common law, through its adaptability to changed conditions, to meet them, in a measure at least, would seem to be unquestionable, even though it should be conceded that at one time there was no common-law rule against discrimination as such. Our own decisions in this regard are well summarized by Mr. Dunnell as follows: "The common law is not a code of inflexible and logically consistent rules, but a body of broad and comprehensive principles, based upon reason, justice, and practical considerations, and its development has been determined by the social needs of the community." Dunnell's Minn. Dig. § 1502.

That the English statutes are merely declaratory of the common law is clearly announced and well sustained by many other American cases. See Messenger v. Pennsylvania R. Co., 36 N. J. Law, 407, 412, 13 Am. Rep. 457; Id., 37 N. J. Law, 531, 18 Am. Rep. 754; Shipper v. Railroad Co., 47 Pa. 338; New England Express Co. v. Maine Cent. R. Co., 57 Me. 188, 2 Am. Rep. 31. See, also, Baldwin on American Railroad Law, 350. And says In other words, the common law is the Beal & Wyman, on Railroad Rate Regulation, legal embodiment of practical sense. "The page 670: "The cases requiring the same rate common law," declared the present Chief to shippers who ask for the same transporta- Justice in State v. St. Paul, etc., R. Co., 98 tion of the same goods at the same time and Minn. 380, 400, 108 N. W. 261, 268 (28 L. R. under the same conditions may seem fewer A. [N. S.] 298, 120 Am. St. Rep. 581, 8 Ann. in number than those which are more con- Cas. 1047), "is not a codification of exact or servative. But this principle was made law inflexible rules for human conduct, for the in many states by an impatient public, who redress of injuries, or protection against demanded statutes, so that there could be wrongs, nor yet a mere figment of judicial in the future no equivocations, before many genius, but on the contrary, is the embodicourts had time to express their opinion, and ment of broad and comprehensive unwritten before other courts had time to recant. And principles, inspired by natural reason, an upon the whole it is claimed with confidence innate sense of justice, adopted by common that outright personal discrimination is op- consent for the regulation and government posed to modern common-law principles." of the affairs of men. It is the growth of So, also, Mr. Noyes, in his work on Amer- ages, and an examination of many of its ican Railroad Rates, remarks, at pages 104, principles, as enunciated and discussed in 105: "This rule of the common law, that if the books, discloses a constant improvement the rate given to one shipper be reasonable and development in keeping with advancing in itself he has no interest in the rate given civilization and new conditions of society. to other shippers, could only have been jus- Holmes, Common Law, 1-5, 36, et seq. Its tifiable in the days of carriers by wagon. It guiding star has always been the rule of right is fundamentally unsound when applied to and wrong, and in this country its principles railroads. The shipper does have demonstrate that there is in fact, as well as

We are content to align ourselves with | force equality of rate for like service in those courts which have declared that the modern common law imposes upon common carriers the duty of equality in tolls to all shippers similarly circumstanced, for the transportation of the same class of goods the same distance.

every case, and the mischief is done when for that service a shipper is charged more than any other shipper is charged for 'any service rendered, or to be rendered, in the transportation of passengers or property.' So long as it charges a lower rate for any shipment, the law is defeated, although on other shipments it may charge the proper rate."

rial whether the charge is reasonable or not; it is enough to show that the company carried for some other person or class of persons at a lower charge during the period throughout which the party complaining was charged more under the like circumstances."

[3-5] (2) The next question presented by the general demurrer, in the order above enumerated, is as to whether a shipper who has been discriminated against has, at common The same rule of damages follows from law, a right of action against the carrier the construction placed upon the so-called for damages, and, if so, what is the measure "equality clause" of the English statutes of his recovery. "Ordinarily," said Mr. Jus- and charters, after which sections 2 and 3 tice Wallace, in Menacho v. Ward [C. C.] of the federal act were patterned; a dis27 Fed. 529, 534, "the remedy against a criminating rate being deemed extortionate carrier is at law for damages for a refusal to the extent of the discrimination, without to carry, or to recover the excess charges." regard to its inherent reasonableness. Thus, In Hays v. Pennsylvania R. Co., supra, the in Great Western Railway Co. v. Sutton, 4 plaintiff recovered the amount of freight Eng. & Ir. App. 226, quoted in Scofield v. paid by him in excess of the rates accorded Railway Co., supra, 43 Ohio St. 615, 3 N. E. to his most favored competitor. In Louis- 927, 54 Am. Rep. 846, the court said: "When ville, etc., R. Co. v. Wilson, supra, a similar it is sought to show that the charge is exrecovery was allowed. In Samuels v. Louis-tortionate, as being contrary to the statutaville, etc., R. Co., supra, 31 Fed. 58, a de- ble obligation to charge equally, it is immatemurrer was overruled to an allegation of damages, that "by reason of such discrimination and charges for freight against them (plaintiffs) they were injured in their business as common carriers on the river, and were put to expense, trouble, and increased risk in carrying their freight long distances on the river, to obtain carriage for it to points of destination, for which alleged injury to them they bring this complaint and suit for damages." These cases involved the common-law remedy only. So, also, in Lumber Company v. Railroad, supra, which involved a statute declared to be merely an enact ment of the common law, but which made no provision for damages, the difference between the rates paid by the plaintiff and the more favored shipper was recovered. In Pennsylvania R. Co. v. International Coal Min. Co., 173 Fed. 1, 7, 97 C. C. A. 383, a recovery of the difference in the amounts paid by the plaintiff and by the favored shipper was sustained in an action for unjust discrimination in violation of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 382 [U. S. Comp. St. 1901, p. 3159]), though damages are provided for thereby merely in general terms, the provision being (section 8) that the carrier "shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act." In answer to the defendant's contention that the measure of recovery was "not the lowest rate charged by the railroad to another shipper, but the general average paid on all shipments made by such shipper," the court said (173 Fed. at page 7, 97 C. C. A. at page 389): "Whatever may be argued in support of the equity of such a rule, the simple answer is that Congress made no such rule. The purpose of the act is clear, viz., to en

As soon, therefore, as the duty of equality is established, by reference either to the common law or to statute, the general damages incident to a violation thereof obviously include the difference between the charges involved in the discrimination, whether, as in the English case cited, they be viewed as flowing from extortionate or excessive charges, or, as in our conception thereof, they be deemed as purely compensatory, by way of restoration of equality. The wrong complained of being unlawful discrimination, the damages inevitably incident thereto must include the difference between the amount paid by the shipper from whom the full rate is exacted and that accepted from the more favored one. Any other conclusion would, in many cases, deprive the shipper of the benefit of the rule of equality, and we would have the resultant anomaly of the invasion of a right coupled with the denial of a remedy. We will have occasion to discuss this subject further when we come to consider the effect of our statutes. The question as to whether other damages may be recovered is not involved on this appeal.

(3) This brings us to the third question raised by the defendant's second ground of demurrer, as outlined above, viz.: What is the effect of our statutes relating to the regulation of railroad rates upon the matters in hand?

These acts, so far as here material, are as follows: R. L. 1905, § 2007: "All charges made by any such carrier for the transportation of passengers or property, whether over

The effect of these statutes upon the rights of a shipper who has suffered an unjust discrimination has two aspects; the first being whether his common-law remedy had been abrogated thereby, and the second whether, independently of the common law, he has any right of action under the statutes, and, if so, what is the remedy? Before entering upon the specific discussion of the first, however, it will be well to advert to the general principles determinative of the effect of statutes generally upon existing rights and remedies. In Daniels v. Palmer, 41 Minn. 116, 119, 42 N. W. 855, 856, it was held that "the remedies specially created by the grain and warehouse law are not exclusive," but "were intended to be and are auxiliary to those previously afforded." In Eliason v. Sidle, 61 Minn. 285, 287, 63 N. W. 730, 731, the court shortly disposed of a contention that a cer

one or more railroads, or in connection there- [ just discrimination and shall be punished by with, or for the receiving, delivering, storage, a fine not exceeding five thousand dollars. or handling of such property, shall be equal And any person who shall knowingly either and reasonable; and every unequal or un- for himself or for any firm or corporation reasonable charge for such service is pro- directly or indirectly receive from any comhibited. One car load of freight of any kind mon carrier any such reduction of rate, reor class shall be transported at as low a rate bate, gratuity or other favor as is herein deper ton, and per ton per mile, as any greater clared to be an unjust discrimination by such number of car loads of the same kind and common carrier shall be guilty of a misdeclass from and to the same points of origina- meanor." G. L. 1909, c. 136 (Rev. Laws tion or destination." R. L. 1905, § 2009: "It Supp. 1909, § 2007-18) establishes maximum shall be unlawful for any common carrier to freight rates in this state, and chapter 195 make or give any unequal or unreasonable (section 2007-26) provides a remedy for the preference or advantage to any particular per- recovery of charges in excess of the estabson, company, firm, corporation or locality, lished rates. G. L. 1911, cc. 50, 87, relate to or any particular description of traffic in investigation of the equality, justness, and any respect whatsoever; or to subject any reasonableness of established rates and to particular person, company, firm, corporation the readjustment thereof when found necor locality or any particular description of essary. traffic, to any unequal or unreasonable prejudice in any respect whatsoever." R. L. 1905, § 2011, prohibits pooling. R. L. 1905, § 2012, as amended by Laws 1907, c. 377 (Rev. Laws Supp. 1909, § 2012), provides for the filing of schedules of rates at certain places convenient for inspection. R. L. 1905, $ 2015, reads: "No such carrier shall charge, demand, collect, or receive for any service a greater or less sum than that fixed in its published schedules." G. L. 1905, c. 176, 8 3 (Rev. Laws Supp. 1909, § 2007-5) provides: "The schedule of rates and charges for the transportation of freight and cars, together with the classification of such freights, mimimum weights and rules now in effect, and all rates, charges and classifications published by any common carrier after the passage of this act shall be deemed just and reason*able and shall not be changed except upon the order of or by the written consent of the Rail-tain statutory remedy was exclusive by deroad and Warehouse Commission, hereafter called the Commission. The terms of this act shall also apply to all schedules of rates and charges published by two or more common carriers jointly." G. L. 1905, c. 177 (Rev. Laws Supp. 1909, § 2010-1) provides: "It shall be unlawful for any common carrier in this state, by any special rate, rebate, drawback, or other device to directly or indirectly charge, demand, collect or receive from any person, firm or corporation a greater or less compensation for any service rendered in the transportation of any property within this state than its regular established schedule of rates and charges for like and contemporaneous service for any other person or for the public generally; and it shall be unlawful for any such common carrier directly or indirectly to offer or give any shipper in connection with, or as an induce ment or reward for receiving any property for transportation from any such shipper, any gift, gratuity or free pass whereby any passenger or freight shall thereafter be transported over the lines of such common carrier free, or at any rate less than that offered to the public, and in either case such

[ocr errors]

claring that "the plaintiff's right pre-existed the statute which simply gave a new remedy." In Wacholz v. Griesgraber, 70 Minn. 220, 73 N. W. 7, it was held that an evicted tenant's statutory remedy by way of restitution was not exclusive of his right to maintain trespass, the court observing (70 Minn. at page 224, 73 N. W. at page 9): "This is a cumulative remedy. It is not made exclusive by the statute, and the general rule applies that when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute." To the same effect, see Merz v. County of Wright, 114 Minn. 448, 451, 131 N. W. 635, 636, where the present Chief Justice declared it to be "elementary that common-law remedies may always be resorted to for the enforcement of rights, even where a remedy is provided by express statute, unless the statutory remedy is made exclusive." In Way v. Barney, 116 Minn. 285, 133 N. W. 801, 38 L. R. A. (N. S.) 648, Ann. Cas. 1913A, 719, it was declared that "if a man has a clear legal right he must have a remedy for its enforcement"; Chief Justice Start remarking further (116

Nor is the rule different where the statute imposes a criminal penalty. Eliason v. Sidle, supra, 61 Minn. 287, 63 N. W. 730; Daniels v. Palmer, supra. Said the court in the case last cited (41 Minn. at page 119, 42 N. W. at page 856): "But no sound reason can be advanced for holding that because the willful neglect or refusal before mentioned is declared a crime, or because relief is granted by statute which may result in the appropriation of the grain which has been deposited by one bailor to satisfy the claim of another, either or both of these persons are thereby deprived of such other rights and remedies as previously existed at common law or by statute, in case of the misappropriation or unlawful conversion of personal property."

L. R. A. [N. S.] 648, Ann. Cas. 1913A, 719), | stamp out the one began to draw apart from that "if the statute does not permit an ade- those relating to the other, until now with quate remedy, in cases where the right is not the exception of G. L. 1911, cc. 50, 87, they a statutory one, equity will find an efficient fall into two general classes; the one dealremedy." In Zetterburg v. Great Northern ing with the maximum charges allowable and Ry. Co., 117 Minn. 495, 498, 136 N. W. 295, with the establishment of fixed rates that 296, it was held that the common-law rights shall be deemed reasonable, and the other of shippers were not affected by the recipro- denouncing departure from the fixed rates cal demurrage law, the purpose of such law in particular cases, as distinguished from a being to create additional statutory rights, change in such rates, as being an unlawful and the common-law right of action for un- discrimination. Under the former the duties reasonable failure of the carrier to furnish of the Railroad and Warehouse Commission, cars being declared to be a valuable one, so the requirements imposed upon the carriers, that "it cannot be assumed that the Legisla- and the procedure prescribed for the enforceture intended to abrogate it unless such in- ment thereof, all look to the establishment tention is clearly expressed." and maintenance of rates that are reasonable and to the prevention of extortion by an upward departure therefrom; while under the latter the aim is clearly and exclusively to prevent unjust discrimination by any variance whatever in particular cases from the established rates. In the former, furthermore, we find a complete and comprehensive act relating to reasonableness of rates, even including a remedy to the shipper from whom rates in excess of those fixed by law are exacted, and in the acts of 1911 we have comprehensive provisions for readjustment of established rates that shall have been found to be either excessive or discriminatory; but in the acts directed at discrimination in particular cases, by departure, either way, from the established rates, we find merely an inhibition and a criminal penalty, but no civil remedy to the disfavored shipper whatever, and we find no reference to the subject of civil remedies for discrimination, either for or against the existence of the same, in any of our statutes. It would seem clear, therefore, that unless such conclusion be negatived by certain considerations, with which we will close this opinion, a shipper's common-law remedy for discrimination still obtains in this state, whatever may be the effect of our statutes upon his former remedy for extortion by exaction of unreasonable or excessive rates. One would have to be oblivious to the course of events to assume that the Legislature, though evidently fully realizing the evils of both excessiveness and discrimination in rates and prohibiting both under heavy penalty, intended to leave the individual shipper remediless in the latter case by depriving him of his theretofore existing remedy; and we affirm that no case can be found in the books declaring any such doctrine under similar circumstances.

The rule as announced in the above-cited cases is too well established in this state to require citation from other states to support it. It is well stated, however, in Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 437, 27 Sup. Ct. 350, 354 (51 L. Ed. 553, 9 Ann. Cas. 1075), in connection with a question closely analogous to the one before us. "We concede," said Mr. Justice White, in entering upon the discussion of the effect of the Interstate Commerce Act upon a shipper's common-law right of action grounded upon unreasonableness of rates, "that we must be guided by the principle that repeals by implication are not favored, and indeed that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory." With this rule in mind, let us then again refer to our statutes, cited above. As originally enacted they were obviously aimed at two distinct evils, namely, excessiveness in rates and discrimination therein as between different persons and localities; and in order to reach them both it was provided, sometimes in the same act, that rates must be both reasonable and equal. In the course of years, however, the statutes intended to

Coming, then, to the second phase of the question stated, and again passing for the moment the matter finally to be considered, as above indicated, and further assuming, for the purposes of discussion, that there was no common-law duty of equality in rates, and that the statutes prescribing the same impose a new obligation upon the carrier, it is still clear, we think, that a shipper who has been discriminated against has a right

of action for damages therefor. It is settled in this state that where a new obligation is imposed by statute, and no civil remedy is provided for its violation, a person of the class for whose benefit or protection the duty is imposed, as distinguished from the general public, may invoke the appropriate com. mon-law right of action. See Merz v. County of Wright, supra; U. S. & C. Land Co. v. Sullivan, 113 Minn. 27, 32, 128 N. W. 1112, Ann. Cas. 1912A, 51; Baxter v. Coughlin, 70 Minn. 4, 72 N. W. 797; Bott v. Pratt, 33 Minn. 323, 326, 23 N. W. 237, 53 Am. Rep. 47; McCarty v. St. Paul, 22 Minn. 527, 529. And this rule applies, even though the statute imposes a criminal penalty for the violation of the obligation so imposed. See Bott v. Pratt, supra; Baxter v. Coughlin, supra.

and the statutory inhibition against discrimination is thus accomplished, while the legal rates before and during and after the wrong sued for are unaffected. The contention under consideration is based entirely upon the fact that the rates charged the plaintiffs were fixed by statute and lawful; but as, under our statutes, the state has merely become the arbiter between the carrier and the shipper as to the reasonableness of rates, there is no substantial reason why a recov ery should not be allowed for discrimination, the same as would unquestionably be proper if the carrier, instead of the state, had fixed the rates. A different conclusion would be squarely in conflict with the construction placed by the federal courts upon section 8 of the Interstate Commerce Act, as to the damages recoverable for discrimination (see Pennsylvania, etc., R. Co. v. International Coal Min. Co., supra), and likewise would brand as self-contradictory the statutes of other states which expressly measure the damages for discrimination involved in departure from legally established rates by the difference between the legal rates and those accepted from the illegally favored shipper. See Scofield v. Railroad, supra. In short, this action is not to compel the defendant, as it claims, to do a second illegal act, but to compel it to suffer the consequence of its wrongful and unlawful discrimination against the plaintiffs. See Samuels v. Louisville, etc., R. Co., supra, 31 Fed. 60.

But we are met with the contentionwhich is the matter finally to be discussed as above indicated that because our Railroad and Warehouse Commission was authorized by statute to and did fix the rate here involved, "to grant plaintiffs the relief sought in this action would be, in effect, compelling defendant to do a second illegal act to favor plaintiffs, because it had by an alleged illegal act previously favored some other person or concern." In other words, it is argued that, if the plaintiffs be allowed to recover the difference in the rates in question, it would defeat the purpose of the Commission and give the plaintiffs carriage at less than the fixed rate, thus virtually requiring a violation of the law. In elabora- The common-law rule against discrimination of this position, the defendant contends tion was not for the benefit or protection of that a recovery in this action would consti- the carrier, nor were our rate-regulating tute a second wrong, if the acts complained statutes enacted for any such purpose. Both of may be deemed illegal, and further that are based upon the public character of the such a recovery would in effect fix a lesser services rendered by the carrier and the polirate than that established by law. But un- cy that all such service should be equal; less we have erred in the analysis which we and if at times it may be said that the have already made of our statutes, this con- remedies afforded by either are drastic, it is tention cannot stand. Only one wrong is sufficient to answer that they had their inhere and can be involved, and that is the ception and found their necessity in the undiscrimination; and it is counterfeit logic equal practices of these quasi public servto assert that the restoration of the equali- ants, when left to follow their own and unrety of rates commanded by the law and the strained will. Both the common law and the statutes, by recovery of the difference involv- statutes, therefore, must be deemed to be ed in the discrimination, is in any true primarily for the protection of shippers, and sense a fixing of a rate or an interference not to prevent the depletion of the treasuries with one previously established. How can of the carriers by either secret or open vioan action for damages, instituted and tried lations of the rules concerning rates. It is after the completion of the shipments in- a matter of common knowledge that ordivolved and the full payment of the charges narily railroads are under the management fixed by law, be deemed to be an interference of experienced and capable men, well qualiwith the established rates? The legal rates fied to look after the interests of their roads, remain the same, regardless of the infraction and that in a free and open struggle beof the law complained of, and can in no way tween shippers and carriers the former have be affected by the final outcome of this ac- almost invariably been the losers, a result tion; and a judicial readjustment of mat- largely due to the advantage derived by the ters between the parties hereto, by an allow- latter from their control of transportation ance of the most obvious damages which the facilities and their public franchises. It is plaintiffs have suffered from the defendant's also commonly known that every advance of violation of the law, cannot be held to be a the common law in its effort to protect the wrong. shippers, and every step taken by the Legis

« ΠροηγούμενηΣυνέχεια »