Ackley v. Chicago, Milwaukee & St. Paul Railway Co.

36 Wis. 252 | Wis. | 1874

Lyon, J.

This action was commenced before the late decisions of the railway injunction cases were announced, and was probably brought to test the validity of ch. 273, Laws of 1874, known as the “ Potter Act.” In those cases the court did not pass upon that act in detail, but held, generally, that the legislature has authority, under the constitution, to limit the rates which railway companies may charge and receive for carrying persons and property in this state. This case raises the question of the validity, in a certain contingency, of specific provisions of the act.

Premising that the railways of the defendant company and of the Chicago & N. W. R’y Co. are included in class A., and the car loads of lumber in controversy in class Gr., the provisions of the act applicable to the case are as follows: “No individual, company or corporation, owning, operating, managing Or leasing any railroad or part of a railroad designated in section one as class A. or B. shall charge for or receive a greater or higher rate for carrying articles named in the several special classes herein designated, than is hereafter provided, namely, * * * * class Gh, not exceeding eight dollars per car load for the first twenty-five miles, and not exceeding five dollars per car load for the second twenty-five miles, and not exceeding two dollars per car load for each additional twenty-five miles, or fractional part thereof, unless the fraction be less than thirteen miles, in which case the rate shall not exceed one and one-half dollars per car load for such fractional part. * * * * * In computing the rates for carrying any freights according to the provisions of this act, the distance for carrying such freight shall be computed from where it is received, notwithstanding it may pass from one railroad to another.” (Secs. 4 and 5).

Under the foregoing provisions, it is apparent that the maximum rate for carrying the lumber of the plaintiffs from Oshkosh to Oconomowoc is the same as it would have been had the carriage terminated at Watertown Junction. From this fact it is contended, on behalf of the defendant company, that the act seeks to compel it to transport the lumber from Water-town Junction to Oconomowoc without compensation, and it is argued that such an enactment is not a valid exercise of legislative power. We do not so understand the act. It is true that, had the lumber been consigned to Watertown Junction, the 0. & N. W. R’y Oo. would have been entitled, under the act, to demand and receive fifteen dollars per car load for the carriage thereof. But the lumber was consigned to Oconomo-woc, and that company received it so consigned. It received the same with full knowledge that the maximum legal rate for the whole carriage was fifteen dollars per car load, and that the defendant company was to perform a portion of the service. We are aware of no statute which assumes to give the whole freight to one company, and thus compel the other to render services without compensation. We are of opinion that fifteen dollars per car load is the highest rate of freight that can lawfully be demanded for the whole carriage, and that the same should be divided between the two railway companies on some equitable principle, to be determined by the courts in case the companies invoke the aid of the courts in the premises.

Because the act does not require the defendant to transport the plaintiff’s lumber without compensation, we are relieved from the duty of deciding what the effect would be, did the act so require.

The plaintiffs, having tendered to the defendant the full amount of freight which the statute permits to be charged, were entitled to the lumber; and the judgment of the circuit court awarding to them the possession thereof is correct, and must be affirmed.

By the Court. — Judgment affirmed.