35 F. 866 | U.S. Circuit Court for the Southern District of Iowa | 1888
Tliis is a bill filed by the complainant, a railroad corporation, organized under the laws of the state of Illinois, against Peter A. Dey and others, they being the railroad commissioners of the state of Iowa, and seeks to enjoin them from putting in force a certain schedule of rates prepared by them for all transportation within the limits of the state. The matter is now submitted on an application for a preliminary injunction. The defendants have filed a protest, something in the nature of a plea to the jurisdiction, in which they represent that they have no personal interest in the matter; that all they have done or intend to do is as officers of the state, and that the only real party in interest is the state; and therefore urge that this court has no jurisdiction. No one can be insensible to the importance of this as well as the other questions in the case. On the one hand are vast properties invested in the legitimate business of railroad transportation, insisting that their rights are threatened with irreparable injury, and that this court alone can afford them adequate protection. On the other hand are defendants, claiming to represent the sovereign state of Iowa, insisting that she should be permitted to enforce her own laws upon property within her jurisdiction, free from any judicial interference,, Not only are the interests at stake large, but, beyond that, the questions discussed are many of them of exceeding difficulty, and the paths to be trod in their examination ones upon which the lamps of precedent have as yet thrown but a feeble and glimmering light.
Of course, as jurisdiction is challenged, it presents the first matter of inquiry. The objection is that the state is really, though not nominally, the defo idant, an l that, under the eleventh amendment, federal courts cannot take jurisdiction of suits by individuals against states. The records of the supreme court disclose many cases in which this defense has been presented, and to those cases we turn for light upon the question. The early rule of that court was laid down by Chief Justice Maeshall, in the case of Osborn v. Bank, 9 Wheat. 738, in which he said:
“It may, we think, be laid down as the rule, which admits of no exception, that in all eases where jurisdiction depends upon party, it is the party named in the record; consequently the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against states, is of necessity limited to those suits in which the state is the party on the record.”
Similar language is found in Davis v. Gray, 16 Wall. 203. But recent cases set aside that rule, and establish a more reasonable one,—that that amendment covers not only suits brought against the state by name, but those against its officers, agents, and representatives, where the state, though not named as defendant, is the real party against which relief is asked, and the judgment will operate. In re Ayers, 123 U. S. 443, 8 Sup. Cf. Rep. 164. In this case the matter is discussed at length, and previous decisions examined and explained. The state is not here a nominal party. Is it the real party against which relief is asked, and upon which the judgment will operate? And here must be noticed the manifest distinction which exists between the state and the citizens of the state. A judgment may affect and operate upon one or more citizens with
It is useless to cite the authorities; they are carefully collected, and may be found in the briefs of counsel, and the opinion of the court in lie Ayers, supra. The defendants claim that they are simply attempting to carry into effect the mandates of the state, as expressed in one of its laws; hut if that law he unconstitutional, it is no law, and they have no authority for their actions. This proceeding is a judicial inquiry to see whether they have authority for their actions; whether the law upon which they rely is valid and constitutional, or sufficient to justify the actions which they are taking. In the case of Poindexter v. Greenhow, 114 U. S. 290, 5 Sup. Ct. Rep. 908, 962, the court draws a very important distinction between the state and tire government of the state, and shows how an unconstitutional statute is not an act of the state, and affords no justification for acts done or attempted to be done under it. The discussion of this matter is too long for quotation, but it is forcible and suggestive, and to be commended to the consideration of every thoughtful student of the value of written constitutions in securing protection to person and property. Beyond these general considerations all the adjudications of the federal courts in suits against railroad commissioners make against the defense of the want of jurisdiction. In Piek v. Railway Co., 6 Biss. 177, jurisdiction was sustained by the circuit court in a suit similar to this, and perpetual injunction granted against the railroad commissioners of the state of Wisconsin. A similar ruling was made in the circuit court of Tennessee, in the case of Railroad Co. v. Commissioners, 19 Fed. Rep. 679. Also in the circuit court of Mississippi, in the case of Trust Co. v. Stone, 20 Fed. Rep. 270. The first and last of these eases were taken to the supreme court of the United States, and, while the judgments of the circuit courts were reversed, it was not on the ground of a lack of jurisdiction; nothing, indeed, was said by that court
Neither is there, in sustaining the jurisdiction of this court, any invasion of the powers of the legislature. Whether the preparation of the schedule was the exercise of legislative power or not is a question for further consideration; but, so far as the legislature itself is concerned, its action was complete before this suit was commenced. The law had been passed with all the proper forms of legislative proceedings, and had been duly published, and the legislature had adjourned. So far as the legislature is concerned, its action was finished, and nothing is here sought in the way of interference with its proceedings or its action. The only question is whether that which it has done—and it has done all that it can do—is valid or invalid in the face of constitutional provisions. Neither is it any interference with the executive in the discharge of his duties. Defendants cite the case of Mississippi v. Johnson, 4 Wall. 475, in which the supreme court held that the president could not be restrained by injunction from carrying into effect an act of congress alleged to be unconstitutional. Giving full scope to the doctrines of that case, it in no manner conflicts with the right to maintain this suit. That case was limited narrowly to the president,—the general executive, —and it was nowhere intimated in the opinion that subordinate officers of the United States could not be restrained from acts trespassing upon private rights. In that case there was no question of property rights; a mere question in respect to some act of political administration. Here no matter of political administration is challenged, and the bill is rested upon the proposition that the property rights of the complainant are invaded by the threatened action of the defendants, under, as alleged, an unconstitutional law, or beyond the constitutional limits of power. This is all that I think I need say on the question of jurisdiction. I am aware that some expressions here and there to be found in the opinions of the supreme court, taken apart from the case in which they were uttered, make against the jurisdiction of this court in the present case. Indeed, the. question of jurisdiction is a doubtful one; but the fact that it is doubtful is no ground for refusing to entertain jurisdiction. I can close this branch of the case in no better way than by quoting the language of Chief Justice Marshall, in the case of Qohens v. Virginia, 6 Wheat. 264:
“The judiciary cannot, as the legislature may, avoid a measure because it approaches the coniines of the constitution. Ve cannot pass it by because it is doubtful. With whatever doubts, with whatever diftieulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given; the one or the other would be treason to the constitution.”
I commend these words of America’s greatest judge to the thoughtful consideration of those who, realizing that the primary duty of the courts
Coming now to the questions other than those of jurisdiction, on April 5th of this year the legislature of this state enacted a law to regulate railway corporations and other common carriers, and to increase the powers and further define the duties of the board of railroad commissioners in respect to the same, and to prevent and punish extortion and un-, just discrimination, etc. Section 2 declares that all charges made for transportation shall be reasonable and just, “'and every unjust and unreasonable charge for such service is prohibited and declared to bo unlawful.” By section 17 the railroad commissioners are required to make a schedule of reasonable and maximum rates, and such schedule is declared to be prima facie evidence that the rates therein charged are reasonable and just maximum rates and charges for transportation, etc., in all suits brought against the railroad corporations. Section 23 provides that, “if any railroad corporation or common carrier subject to the provisions of this act shall charge, collect, demand, or receive more than a fair and reasonable rate of toll or compensation for the transportation of passengers or freight of any description, or for the use or transportation of any railroad car upon its track, or any of the branches thereof, or upon any railroad within the state, which it has a right, license, or permission to use, operate, or control, or shall make any unjust or unreasonable charge prohibited in section 2 of this act, the same shall he deemed guilty of extortion, and shall he dealt with as is hereinafter provided; and if any such railroad corporation or common carrier shall be found guilty of any unjust discrimination, as defined in section 8 of this act, upon conviction thereof it shall be dealt with as hereinafter provided.” Section 26 makes the penalty a fine of not less than one thousand nor more than five thousand dollars for the first offense, and for each subsequent offense not loss than five nor more than ten thousand dollars. By section 9, any person injured by any act of the railroad company in violation of this law is allowed to recover treble damages and a reasonable counsel fee. Now, the first proposition of counsel for complainant is that the provisions of this law, authorizing the railroad commissioners to make and put in effect a schedule of rates, are unconstitutional, because of an attempted delegation of legislative power. Their argument is brief and clear. It is that the power of fixing rates is purely legislative, and, in support of that, several decisions of the supreme court are cited, particularly in what are known as the Granger Cases, 94 U. S. 113-187 Thus, in Chicago v. Iowa, Id. 161, the court says: “Railroad companies are subject to legislative control as to their rates of fare and freight.” In the case of Peik v. Railway Co., 94 U. S. 178, it is said: “Where property has been clothed with public interest, the legislature may fix the limit to that which in law shall be reasonable for its use.” And in the Munn Case, 94 U. S. 113, the court says: “In countries where the common law prevails, it has been customary from time immemorial for the legislature to say what shall be a reasonable compensation
In the recent case State v. Railroad Co., 37 N. W. Rep. 782, the supreme court of Minnesota considered this question, and sustained a similar enactment. Bee, also, the case of State v. Railroad Co., 35 N. W. Rep. 118, and 36 N. W. Rep. 308, (decided by the supreme court of Nebraska.) In the case of Tilley v. Railroad Co., 5 Fed. Rep. 641, Mr. Justice Woods of the supreme court of the United Btates, sitting on the circuit, also considered the question in a carefully prepared opinion, and sustained a similar enactment. Boo, also, other cases cited in the opinion of the supreme court of Minnesota, supra. Beyond that, in the case of Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, the validity of the act of the state of Mississippi, delegating like power to a board of railroad commissioners, was before the supremo court of the United Btates, and, though this specific objection -was made by counsel to its validity, the act was sustained. True, no special reference was made to this question in the opinion, and it was intimated that there might be questions arising under portions of the act thereafter to be determined, so that possibly that case cannot be taken as an authoritative determination by that court of this question; still, as I said, all the authorities that have been cited, or that I have been able to find, bearing upon this precise question, are in favor of the constitutionality of such a delegation of power. For these reasons I conclude that this contention of the complainant cannot be sustained.
The next proposition of complainant is that the law is a penal one; that it imposes enormous penalties without clearly defining the offenses.
“Whoever is guilty of improper conduct, and of such as is contrary to the spirit of the laws, though not a breach-of any specific part of jt, shall be punished at least forty blows; and when the impropriety is of a serious nature, with eighty blows. ”
There is very little difference between such a statute and one which would make it a criminal offense to charge more than a reasonable rate. See another illustration in Ex parte Jackson, 45 Ark. 158. On the other hand, it is contended by defendants that the law, taken as a whole, make’s the commissioners’ schedule the test, and that the state is estopped to say that any charge equal to or less than that prescribed in the schedule was unreasonable. With such a construction there is definiteness and certainty, and the other provisions are a mere act of favor to the railroad companies, enabling them, in case a charge above the schedule rate is made, to show that such higher charge was in fact reasonable, and therefore the party guilty of no crime. Railroad Co. v. People, 77 Ill. 443; Sorrell v. Railroad Co., 75 Ga. 509. Another proposition of complainant is that the provisions making the schedule prima facie evidence in all suits: is an infringement of the right to trial'by jury guarantied by the constitution of Iowa, and those provisions of the Iowa and federal constitutions to the effect that no person shall be deprived of property without due process of law; the argument being that in trials by jury all questions of fact are to be determined by a jury, and should not be prejudged by the action of any other board or officer; that the state should be compelled to prove that the charge was unreasonable, and not compel the defendant, after this prima facie evidence, made by strangers to the litigation, and not from examination of the facts in the particular ease, had been received, to prove that the charge was reasonable. In
Complainant claims that the schedule of rates prescribed is unreasonable. Defendants insist that the courts may not inquire whether it be reasonable or not; that the power of the state is absolute, and without limit; that when it is once determined that the state has acted in accordance with the form of law, all inquiry in the courts is at an end. Reliance is placed by them upon the decisions of the supreme court in the so-called Granger Cases, 94 U. S. 113-187. It is not open to question that some expressions in the opinions fully sustain their contention. Thus, in the first case, (Munn Case,) Chief Justice Waite, after holding that the power of fixing the rates is vested in the legislature, uses this language:
“We know that this is a power which may be abused, but that is no argument against its existence; for protection against abuses by legislatures the people must resort to the polls, and not to the courts.”
In the next case he uses this language:
“It was within the power of the company to call upon the legislature to fix permanently this limit, and make it a part of the charter, and, if it was refused, to abstain from building the road and establishing the contemplated business. If that had been done, the charter might have presefited a contract against future legislative interference, but it was not, and the company invested its capital relying upon the good faith of the people and the wisdom*878 and impartiality of legislators for protection against wrong under the form of legislative regulation.”
And in the third case this language is found:
“ Where property has been clothed with a public interest, the legislature may-fix a limit to that, which shall in law be reasonable for its use. This limit binds the court as well the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change.”
But this language must be construed in connection with the question-at issue. That .question was this: The railroads were insisting that the legislature was without power; that the question of what were or not reasonable rates was purely a judicial question, and to be determined by the courts alone. The- court overruled the claim of the companies and sustained the power of the legislature. What was the power accorded to the legislature? Simply the power to fix reasonable rates. That it was not intended to decide that the legislature had power to fix any rates, reasonable or unreasonable, is obvious from the subsequent language of the same chief justice in the later case of Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, in which, delivering the opinion of the court, he says:
“Prom what lias thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use, without just compensation, or without due process of law.”
This language is quoted with approval by Mr. Justice Gray in delivering the opinion of the supreme court in the case of Dow v. Beidelman, 125 U. S. 689, 8 Sup. Ct. Rep. 1028. It is obvious from these last quotations that the mere fact that the legislature has pursued the forms of law in prescribing a schedule of rates does not prevent inquiry by the courts; and the question is open, and must be decided in each case, whether the rates prescribed are within the limits of legislative power, or mere proceedings which in the end, if not restrained, will work a con-. fiscation of the property of complainant. Of course, some rule must exist, fixed and definite, to control the action of the courts, for it cannot be that a chancellor is at liberty to substitute his discretion as to the reasonableness of rates for that of the legislature. The legislature has the discretion, and the general .rule is that, whore any officer or board has discretion, its acts within the limits of that discretion are not subject to review by the courts. Counsel for complainant urge that the lowest rates the legislature may establish must be such as will secure to the owners of the railroad property a profit on their investment at least equal to the lowest current rate of interest, say 3 per cent. Decisions of the supreme court seem to forbid such a limit to the power of the legislature in respect to that which they apparently recognize as a right of the owners of the railroad property to some reward; and the right of judicial interference exists only when the schedule of rates established will fail to-
The question is then one alone of policy. Whether, by reducing the compensation to a minimum, railroad enterprises shall be discouraged, or, enlarging, encouraged, is a matter for legislative, and not judicial, determination. Take a kindred matter. It is within the power of the legislature to prescribe the rate of interest and to punish by severe penalties tlie exaction of larger than the legal rate. What that legal rate shall be is not for the courts, but the legislature, to determine. Suppose the legislature of Iowa should reduce the legal rate of interest to 1 peícent., although such legislation would prevent capital from coming into the state, would the courts have power to declare the law unconstitutional? In like manner the rulings of the supreme court imply that the legislature may reduce railroad rates until only a minimum of compen.sation is secured to the owner. The rule, therefore, to be laid down, is this: That whore the proposed rates-will give some compensation, however small, to the owners of the railroad property, the courts have no power to interfere. Appeal must then be made to the legislature and the people. But where the rates prescribed will not pay some compensation to the owners, then it is the duty of the courts to interfere, and protect the companies from such rates. Compensation implies three things: Payment of cost of service, interest on bonds, and then some dividend. Cost of service implies skilled labor, the best appliances, keeping of the road-bed and the cars and machinery and other appliances in perfect order and repair. The obligation of the carrier to tlie passenger and the shipper requires all these. They are not matters -which the carriers can dispense with, or matters whose cost can by them be fixed. They may not employ poor engineers, whose wages would ho low, but must employ competent engineers, and pay the price needed to obtain them. The same rule obtains as to engines, machinery, roadbed , etc., and it may be doubled whether even the legislature, with all its power, is competent to relieve railroad companies, whose means of transportation are attended with so much danger, from the full performance of this obligation to the public. The fixed charges are the interest on the bonds. This must be paid, for otherwise foreclosure would follow, and the interest of the mortgagor swept out of existence. The property of the stockholders cannot be destroyed any more than the property of the bondholders. Each has a fixed and vested interest, which cannot be taken away. I know that often the stockholder and the bondholder are regarded and spoken of as having but a single interest; but the law recognizes a clear distinction. A mortgage on a railroad creates the same rights in mortgagor and mortgagee as a mortgage on my homestead. The legislature cannot destroy my property in my homestead simply because it is mortgaged, neither can it destroy the stockholders’ property because the railroad is mortgaged. It cannot interfere with a contract between the company mortgagor and the mortgagee, or reduce the stipulated rate of interest; and so, unless that stipu
Let me notice some objections which are made to this limit of the ' power of the legislature, both generally and as applied to the present case. It is said that the complainant is a foreign corporation, permitted simply as an act of grace to do business in this state, and that the legislature may therefore impose such terms and conditions upon its doing business in the state as it sees fit; that the carrier is not hound to continue in business, and, if he finds the rates imposed hy the state not remunerative,- may abandon the business. Whatever of force there may be in such arguments, as applied to mere personal property capable of removal and use elsewhere, or in other business, it is wholly without force as against railroad corporations, so large a proportion of whose investment .is in the soil and fixtures appertaining thereto, which cannot be removed. For a government, whether that government be a single sovereign or one of the majority, to say to an individual who has invested his means in so laudable an enterprise as the construction of a railroad, one which" tends so much to the wealth and prosperity of the community, that, if he finds that the rates imposed will cause him to do business at a loss, he may quit business, and abandon that road, is the very irony of despotism. Apples of Sodom were fruit of joy in comparison. Reading, as I do, in the preamble of the federal constitution, that'it was ordained to “establish justice,” I can never believe that it is within the power of state or nation thus practically to confiscate the property of an individual invested in and used for a purpose in which even the Argus eyes of the police power can see nothing injurious to public morals, public health, or the general welfare. I read also in the first section of the bill of rights of this state that “ all men are by nature free and equal, and have .certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness;” and I.know that, while that remains as the supreme law of the state, no legislature can directly or indirectly lay its withering or destroying hand on a single dollar invested in the legitimate business of transportation. Nor is it certain that the owner can abandon his business of transportation, even if he wishes. More than once a party receiving such a franchise has been compelled by the courts, by the summary remedy of mandamus, to continue his business, and to perform the duties of the franchise which he has received. Again, it is said that this complain
Coming now to the question of the schedule as presented, I remark that the schedule as a whole must control, and its validity or invalidity does not depend upon the sufficiency or insufficiency of the rates for any few particular subjects of transportation. Secondly, the fact that it is higher or lower than other schedules in force elsewhere, or at other times in this state, does not necessarily determine its validity. I have had presented to me a volume of testimony in the way of affidavits, schedules, and comparisons, much of which testimony in my mind has only an indirect bearing upon the question. It is not established clearly that this schedule will deprive the complainant of compensation, and yet it seems probable that it will. Confessedly, the schedule is a reduction from that heretofore in force in the state. It is undoubtedly less than that in force in the neighboring states. The affidavit of Henry C. Wicker, the traffic manager of complainant, shows that he has made examinations of the gross earnings of the road in several states on local and also on part of the interstate business during the year 1887, and from such comparison finds that the reduction in revenues, if this schedule be applied uniformly to all business of the company, would be a sum exceeding the amount paid out in dividends in each of the three preceding years, and that the effect would be to prevent the railroad company from declaring any dividends. Other affidavits are filed showing the amounts of dividends heretofore paid, and the difference between the schedule of the commissioners and those heretofore in force. Of course I know that affidavits are unsatisfactory testimony, and that it would be the height of folly to say that this testimony clearly shows that such w'ould be the effect of this schedule. But this is an application only for a preliminary
I have endeavored in this case to discuss only the three most important questions; those which seem to me vital to the controversy. Before closing, I must, however, notice two objections made by defendants: First, that the publication of this schedule is, of itself, no invasion of complainant’s rights; that no immediate trespass -is threatened, and therefore no injunction should issue. But equity interferes to prevent a multiplicity of suits, and where one act may be the foundation of many suits, courts have a right, and it is their duty, in the first instance, to stay that act if unlawful. Take this illustration: Suppose a board of assessors was charged with a duty of assessing property of the complainants, and that, after such assessment was made, an apportionment of the property between a hundi'ed different townships was to follow, and then warrants of collection be issued and served.by officers of these townships. Now, if the property of the company was in fact exempt from taxation, would it be contended that it might not have injunction to stay the assessment, rather than wait to litigate with the hundred different collectors the validity of their warrants? And in this case, beyond the mere matter of multiplicity of suits, is the fact that the penalties imposed are large, and, while that of itself might not justify interference, it certainly adds force to the argument of multiplicity of suits. Another matter is this: Defendants say that publication of the schedule was in fact complete, and, therefore there is nothing for the court to act upon. The law requires publication of notice for two successive weeks. As a matter of fact, a notice was published on June 14th and June 21st that the schedule would go into effect on the 28th day of June. On June 21st the complainant and three other corporations telegraphed to the defendants requesting that the date fpr taking effect for the schedule of
These are all the matters that require notice. A preliminary injunction will issue in accordance with the terms of the restraining order, and complainant will give bond in the sum of 850,000 to answer for all damages which the defendants or any persons injured by this restraining order may sustain if it shall turn out finally to have been improperly issued.