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to time, to establish, demand and receive such rates of toll or other compensation for the use of their road and for the motive power, and for the transportation of passengers, merchandise and commodities, as to the president and directors shall seem reasonable, not exceeding a maximum prescribed. There is no express stipulation that the rates and charges shall be equal to all who may offer goods for transportation over the road. Such stipulations are common in English railway charters, and they are found in some charters of railway companies in this country. They are, however, but declaratory of what the common law is. It was so said in Sandford v. The Catawissa R. R. Co., 12 Harris, 378, and there is certainly good reason for denying such companies the power of discriminating between persons offering goods for transportation. It seems to be implied in the power given them to establish reasonable rates that the rates must be fixed equal and impartial."1

§ 430. It is thus manifest, from an examination of the authorities, both English and American, that railway companies, in their capacity as common carriers, are hedged about by certain definite limitations, subject to which they hold and exercise their franchise, and beyond which they dare not pass without rendering themselves amenable to the process of the courts. Foremost of these limitations is their obligation to carry for reasonable rates and without unjust discrimination, either as to persons or localities. It is an obligation ante-dating charters and statutes, and finding its origin only in the common law. Statutes (and

Ibid.; Shipper v. Pennsylvania R. R. Co. 47 Pa. St. 338.

charters) have simply declared and emphasized what already existed.

$431. From all this it follows that every railroad, whatever its charter on the one hand, or the statutory law on the other hand, is entitled to receive only a fair and equitable compensation for the business transacted as common carriers. Oppression, whether by a corporation or by an individual, is not to be tolerated. All our railroads, then, are upon essentially the same basis. The new companies can claim under common law all that really belongs to the old companies, under their charters. When subjected to close judicial analysis it is found that, while the charters emphasize the rights of the railroads, and the constitution the rights of the people, neither does more than to recognize and bring out conspicuously a feature of the common law. One is the counterpart of the other, so far, at least, as concerns the principle of justice on which railway tariffs must be based to be lawful. However variant with this interested parties may maintain, no intelligent controversy upon this fundamental point is possible. The doctrine, as laid down in the decisions quoted, has never been denied in any decision, English or American.

CHAPTER IX.

CHICAGO AND ALTON CASE.

I. PRELIMINARY STATEMENTS AND ARGUMENT OF COUNSEL II. OPINION OF THE COURT.

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I. PRELIMINARY STATEMENTS AND ARGUMENT OF

COUNSEL.

§ 432. Importance of and interest in the case.

433. Misapprehensions of its nature.

434. The bench; Full title of the case.

435. Argument for the appellant.

436. The company's right to regulate its own charges.
437. The charter contract.

438. Discrimination may be just.

439. Exclusive jurisdiction claimed for the judiciary.

440. Police power of the state restricted.

441. Argument for the respondents.

442. Corporations subject to the government.

443. Legislative authority inalienable.

444. Limitations of legislative authority.

445. The legislation and unjust discrimination.

446. Presumption and charters.

447. Railways, highways; Consequent deduction.

§ 432. No railroad company in Illinois so much as 1 retended to pay any heed to either the passenger or freight statutes of 1871. There is some semblance of espect for the statute of 1873. The difficulty in the way of enforcing those laws was stated by the Railroad and Warehouse Commissioners in their first report.1 The only case which reached final adjudica

1 See note to section 372

tion was that of the Chicago & Alton R. R. Co. v. The People. The opinion filed in that case attracted more attention than any state decision ever rendered in this country. It was, or rather is, essentially national in the range of its importance. The issue of law joined was so broad and vital that the case might fitly be called Railroad v. People. Popular interest had not been so generally drawn to and centered in a judicial utterance since the rendering of the Dred Scott decision of nearly twenty years ago.

$433. With the exception of the Dartmouth College decision, no case was ever more thoroughly misunderstood and misrepresented, and that without being at all obscure in its utterances. The scope of its positive declarations is narrow, as compared with the propositions enunciated by counsel.

$434. The opinion of the court was delivered by Chief Justice LAWRENCE. It was filed on the 22d day of February, 1873, the full bench concurring. The court as then constituted consisted of CHARLES B. LAWRENCE, PINKNEY H. WALKER, SIDNEY BREESE, WILLIAM K. MCALLISTER, ANTHONY THORNTON, BENJAMIN R. SHELDON and JOHN M. SCOTT.1 The complete title of the case is "The Chicago and Alton Railroad Company vs. The People, ex. rel. Gustavus Koerner, Richard P. Morgan, Jr., and David S. Hammond, Railroad and Warehouse Commissioners."

1

§ 435. As the facts in the case are given in the decision, it is only necessary in presenting the arguments of counsel to state the propositions laid down

1 Hon. SIDNEY BREESE is at the present time Chief Justice, and the places of Messrs. LAWRENCE and THORNTON are now filled by ALFRED M. CRAIG and JOHN M. SCHOFIELD.

and the authorities cited, as given in the Chicago Legal News. It was contended by the counsel for the appellants as follows, viz.: 1

$436. The appellant, by the several acts of the general assembly set forth in its plea, was expressly authorized to fix, charge and receive such rates of toll for all passengers and property transported, as its president and directors should from time to time establish. Cases were cited in the court below to show that legislative grants are strictly construed a proposition not denied but having no application in a case where nothing is claimed by construction or implication.

$437. The authority granted to the appellant to charge and receive such rates of toll for the transportation of freight and passengers as its president and directors should from time to time establish, was a contract between the state and the appellant.3

$438. Charging a greater compensation for trans

'The counsel for the company was Hon. Corodon Eeckwith. Billings v. The Providence Bank, 4 Peters, 514; Charles River Bridge v. Warren Bridge, 11 Peters, 548; The Binghampton Bridge Case, 3 Wallace, 51.

Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Dartmouth College v. Woodward, 4 Wheaton, 518; Richmond, etc. R. R. Co. v. Louisa R. R. Co. 13 Howard, 71; Binghamnot Bridge Case, 3 Wallace, 73; Home of the Friendless v. Rouse, 8 Wallace, 430; 3 Parsons on Contracts, p. 527, 531 ct seq.; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co. et al. 2 Gray, 1-32; Sweatt v. Boston, Hartford and Erie R. R. Co. et al. Am. Law Review, Oct. 1871, p. 169; 1 Redfield on Railways, p. 53; Whiting v. Sheboygan and Fond du Lac R. R. Co. 15 Wis. 181; Talbot v. Hudson, 16 Gray, 417; Reddall v. Bryan, 14 Md. 444; People v. Salem, 20 Mich. 496; Railroad Co. v. McClure, 10 Wallace, 511.

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