66 Ark. 348 | Ark. | 1899
Lead Opinion
(after stating the facts.) We are of the opinion that the facts in this case, as found by the court, as set out in the statement of facts, show that the contract upon which the appellant relies is within the prohibition of sections one and two and three of the interstate commerce law enacted by congress. The sections of this law invoked by appellee are as follows:
“Section 1. All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.
“Section 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.
“Section 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Act of congress of February 4, 1887.
The shipments from Rankin to Texarkana for overcharges on which appellant brought this action were interstate commerce. The evidence tends to show, and the court found, that the appellant’s lumber could not have been shipped from Rankin to Texarkana at a less rate than four cents per hundred pounds without loss to the railroad; that appellee charged the appellant the same rate as it charged other shippers under like circumstances and conditions, and no more, which varied from two and three to four cents per hundred in accordance with the pro rata allowed it by connecting carriers. This contract on which appellant relies proposed to allow appellant a special rate, in no event to exceed two cents per hundred pounds. This would give appellant an unreasonable preference and advantage over other shippers of lumber in the same county, of from one to two cents per hundred pounds. There was no other railroad through that county, and there were several mills shipping lumber over said road between Rankin and Texarkana. This contract appears to be plainly within the above-quoted provisions of the interstate commerce law. These provisions place “special rates, rebates, drawbacks and other devices” under the same prohibition, and make such unlawful in express terms. “It has been adjudged in many cases ¡that when these circumstances arise, the contract which was entered into by the parties in this action is contrary to public policy, and cannot be enforced.” Bullard v. Northern Pacific R. Co. 45 Am. & Eng. R. Cases, 544, and cases there cited. “An agreement by a railroad company to carry goods for certain persons at a cheaper rate than it will carry under the same conditions for others is void as creating an illegal preference.” Messenger v. Pennsylvania Rd. Co., 36 N. J. L. (7 Vroom) 407; S. C. 13 Am. Reports, 457.
“In Atkinson v. Ritchie, 10 East, 530, Lord Ellenborough, C. J., said in the opinion “that no contract can he properly carried into effect which was originally made contrary to the provisions of the law, or which, being made consistently with the rules of law at the time, has become illegal in virtue of some subsequent law, are propositions which admit of no doubt.” Professor Pomeroy writes: “An illegal contract is, as a rule, void, not merely voidable, and can be the basis of no judicial proceeding. No action can be maintained upon it, either at law or in equity.” “The principles which have been stated are applicable to the act of congress to regulate commerce, and the contract which has been described.” Bullard v. Northern Pacific R. Co., 45 Am. & Eng. R. Cas. 245.
We think the contract relied on in this case is prohibited by the act of congress to regulate commerce, and is void.
The judgment is affirmed.
Concurrence Opinion
I concur in the decision and opinion of the court for the reasons therein stated, and for the additional reason that the defendant railway company, which is the successor of the company formerly owning the road, and alleged to have been represented by Whitaker, had no notice of the existence of the special freight contract said to have been made with the lumber company by Whitaker, as agent of the predecessor company, and the same not constituting a lien on the property of the road.
