140 Ga. 817 | Ga. | 1913
Lead Opinion
The controlling questions involved may be considered under three general heads: (1) Did the State railroad commission
Did the State railroad commission have statutory authority to make a regulation of this character? By section 2638 of the Code of 1910, it is declared that “All contracts and agreements between railroad companies doing business in this State, as to rates of freight and passenger tariffs, shall be submitted to said commissioners for inspection and correction, that it may be seen whether or not they are a violation of the law or of the provisions of the constitution, or of this article, or of the rules and regulations of said commissioners; . . and said commissioners may make such rules and regulations as to such contracts and agreements as may be then deemed necessary and proper.” The plaintiff alleges that it issues interchangeable mileage books by agreement with other railroads. In section 2663, among other things, it is declared that the commission is authorized “to require all common carriers and other public-service companies under their supervision to establish and maintain such public service and facilities as may be reasonable and just.” Large powers of regulation as to freight and passenger carriage are also declared to exist in the commission, by section 2630. In Wadley Southern Ry. Co. v. State, 137 Ga. 497 (73 S. E. 741), Mr. Justice Evans, delivering the opinion, said (p. 505): “The power of the legislature to create a commission to regulate public-service corporations, and to prevent unjust discriminations by them is too well established in the jurisprudence of this State to be contested at this late day.” Again he said (p. 509): “It is contended that section 2657 [which prohibits discrimination against any connecting line and requires the furnishing of the usual and customary facilities for the interchange of freights to the patrons of all lines] does not require the affording of facilities of the character required by this order of the commission, but that its requirement is only applicable to physical connections and physical appliances. We do not think the section should be so restricted in its
In Perry v. Atlantic Coast Line Railroad Co., 9 Ga. App. 260 (70 S. E. 1122), the ease arose before the railroad commission passed the order now attacked. A person with a mileage book presented it to a conductor, who- declined to accept the coupons in payment of fare. The passenger refused to pay his fare otherwise, and was ejected. Whereupon he brought an action for damages. The Court of Appeals held: “There is no law or regulation of the railroad commission in this State which prevents a common carrier from making with members of the general public a contract by which the carrier sells to a member of the public at a reduced rate a mileage book, which shall not be good for passage on trains except from non-agency stations, or from agency stations not kept open for the sale of tickets, unless it is first exchanged for a ticket.” In the opinion Powell, J., said (p. 264): “With the inconvenience which results from passengers being required to exchange mileage coupons for tickets, we, as judges, have no right to concern ourselves. That is a matter which addresses itself initially to the transportation companies, and finally to the legislature or to the railroad commission. So long as the law and the railroad commissioners’ rules remain as they are, it is our duty to enforce these contracts as they are made; and decisions from other States, where they have different laws or different regulations adopted by the railroad commission, are neither persuasive nor controlling.” This clearly recognized the fact that the railroad commission had legisla
In State v. Atlantic Coast Line R. Co., 61 Fla. 799 (54 So. 900), it was declared: “The difficulty of making 'a specific enumeration of all such powers as the legislature may intend to confer upon railroad commissioners for the regulation of common carriers in the interest of the public welfare renders it necessary to confer some power in general terms; and general powers given are intended to confer other powers than those specifically enumerated.” In the case before us the legislature conferred upon the railroad commission authority to make rules and regulations in regard to such carriers. The order of the railroad commission under consideration provides that all railroads selling mileage or penny scrip books shall “pull the same on the trains of the company selling the same, when presented by the holders for transportation between points wholly within the State of Georgia, except where passengers board trains in cities of 10,000 population or more according to the United States census of 1910, in-which places mileage or penny scrip shall be exchanged for tickets.” This was a regulation, and clearly fell within the power of regulation conferred by the statute on the commission.
The next question is whether the statute, in so far as it confers such power, and the order in pursuance thereof, are unconstitutional. Is this order in violation of the fourteenth amendment of the constitution of the United States, in that it interferes with freedom of contract, which is a part of “the liberty” guaranteed thereby ? In support of this theory several cases are cited, but they are not sufficient to establish the contention. It is settled by the decision in Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684 (19 Sup. Ct. 565, 43 L. ed. 858), that where a State had fixed a reasonable maximum rate, it could not compel railroad companies to sell thousand-mile tickets at' a less rate, and require them to issue such tickets in the name of the purchaser and his wife and children, upon application, and declare that each ticket of that character should be valid for two years after its issuance. It was said that after the State had formally declared a reasonable maximum rate which railroad companies might charge within its boundaries, to then declare that they must sell tickets of certain kinds to
This asserted right of liberty to contract has been again and again put forward in opposition to regulation by legislatures and railroad commissions. In Minneapolis & St. Louis R. Co. v. Minnesota, 186 U. S. 257 (22 Sup. Ct. 900, 46 L. ed. 1151), it was held: “The act of the legislature of Minnesota, creating a railroad commission, is not unconstitutional in assuming to establish joint through rates or tariffs over the lines of independent connecting railroads, and apportioning and dividing the joint earnings. Such a commission has a clear right to pass upon the reasonableness of contracts in which the public is interested, whether such contracts be made directly with the patrons of the road or for a joint action between railroads in the transportation of persons and properly in which the public is indirectly concerned. Without deciding whether or not connecting roads may be compelled to enter into contracts as between themselves, and establish joint rates, it is none the less true that where a joint tariff between two or more roads has been agreed upon, such tariff is as much within the control of the legislature as if it related to transportation over a single line.” In delivering the opinion Mr. Justice Brown said: “It is insisted that it is beyond the constitutional power of the legislature to compel companies to enter into involuntary, unreasonable, and unprofitable contracts with other companies at the instance of third parties, or to fix terms and conditions upon which such contracts shall be performed. This argument in its various applications is one which has been addressed to and considered by this court in nearly every case in which the power of the State to regulate railway charges has been called in question, and the answer made to it in those cases is equally pertinent here. Indeed, it is impossible for the State to exercise this power of regulation without interfering to some extent with the power of a railway to contract either
The idea that the regulation of common carriers is altogether new is erroneous. In England in the third year of the reign of William and Mary (A. D. 1691) a statute was enacted which declared: “And whereas divers waggoners and other carriers, by combinations. amongst themselves, have raised the prices of carriage of goods in many places to excessive rates, to the great injury of trade; be it therefore enacted,” etc. 3 W. & M. c. 12, §'24. This remained in force until 1827. Kegulating rates is only the exercise of one branch of the power of regulation.
■ In the celebrated and often cited case of Munn v. Illinois, 94 U. S. 113 (24 L. ed. 77), the subject of control and regulation, where an owner of property devotes it to a use in which the public has an interest, was thoroughly considered. In the opinion Chief Justice Waite said (pp. 125, 126): “This brings us to inquire as to the principles, upon which this power of regulation rests, in order that we may determine what is within and what is without its operative effect. Looking, then, to the common law, from whence came the right which the constitution protects, we find that when private property is * affected with a public interest, it ceases to be juris privati only.’ Thiá was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the. common good, to the extent of the interest he
In the absence of regulation by the State, the whole subject of the making of rules and regulations is left to the common carrier, subject only to control by the courts of their reasonableness or discriminatory character. By way of illustration, the location of depots, whether a railroad will make physical connections between its road and others, how long it will keep open its stations before the arrival of trains, whether it will stop trains at certain points, whether it will discontinue trains without notice, and many other like subjects might be mentioned. But when the legislature by itself, or through the medium of a commission, has investigated
Our code recognizes the common-law rule as it exists in the 'absence of regulation by the legislature or the railroad commission. Civil Code (1910), §§ 2729, 2750. It also provides for such regulation by the commission. Sections 2630 et seq., 2662 et seq., in which a later act is codified. Construing these sections in harmony, it is evident that the power of a common carrier to make reasonable regulations must yield where regulations have been made by authority of the State, unless they are invalid.
Pursuing further the subject of liberty to contract, and the power of State regulation to affect the carrying out of contracts and the right to make them, in Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U. S. 549 (31 Sup. Ct. 259, 55 L. ed. 328), it was held that the State had power to prohibit contracts limiting liability for injuries by railroads, made in advance of the injury received, and to provide that the subsequent acceptance of benefits under such •a contract should not constitute satisfaction of the claim for injuries received after the contract.' It was said: “Freedom of contract is a qualified and not an absolute right. There is no absolute freedom to contract as one chooses. Liberty implies the absence of arbitrary restraint — not immunity from reasonable regulations. Where police legislation has a reasonable relation to an object within governmental authority, the legislative discretion is not subject to judicial review.” In Schmidinger v. City of Chicago, 226 U. S. 578 (33 Sup. Ct. 182, 57 L. ed. ), it was declared that “There is no absolute liberty of contract, and limitations thereon by police regulations of the State are frequently necessary in the interest of public welfare, and do not violate the freedom of contract guaranteed by the fourteenth amendment.” That case involved an ordinance of the City of Chicago, enacted under legislative authority, fixing standard sizes of bread loaves, and prohibiting the sale of other sizes.
Under the Dartmouth College case charters were held to be contracts. Thereupon in various States constitutional or statutory provisions were made, to the effect that all charters thereafter granted should be subject to modification or change. It has been held that all charters thereafter granted were subject to such, reservation. Central Railroad & Banking Co. v. State, 54 Ga. 401; Macon & Birmingham R. Co. v. Gibson, 85 Ga. 12 (11 S. E. 442, 21 Am. St. R. 135). See also Beer Co. v. Massachusetts, 97 U. S. 25 (24 L. ed. 989); Patterson v. Kentucky, 97 U. S. 501 (24 L. ed. 1115). As has already been shown, the Supreme Court of the
It may be remarked that under the allegations of the plaintiff’s petition mileage and penny scrip books are only issued for one year at a time. As more than a year has elapsed since the order of the commission was passed, the question of prior contracts is of little practical application. So far as the argument relates to checking baggage nothing is said in the order on that subject, and we need not deal with such suggestion.
We now come to consider the limitation upon the power of the legislature to regulate common carriers, so far as it may be necessary for the determination of the present case. If the rule of the railroad commission under consideration violates a provision of the constitution of the United States, it would be equally void whether it was passed by the commission under legislative authority, or enacted by the legislature itself. The trial judge apparently entertained too contracted a view of the power of a sovereign State to legislate for the welfare of its people, which frequently goes under the name of the police power, and too broad a view of the absolute right to contract. In the case of Thurlow v. Commonwealth of Massachusetts, 5 Howard (46 U. S.), 504 (12 L. ed. 513), and other cases, known as the License Cases, Chief Justice Taney said (p. 582): “But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, except in so far as it has been restricted by the constitution of the United States.” This is recognized as a part of the police power in Lake Shore etc. Railway Co. v. Smith, supra; Lake Shore etc. Railway Co. v. Ohio, 173 U. S. 285, 297 (19 Sup. Ct. 465, 43 L. ed. 702). In Kundling v. Chicago, 177 U. S. 183 (20 Sup. Ct. 633, 44 L. ed. 725), the court had under con
The decision in Munn v. Illinois, supra, substantially laid down three propositions: (1) That the legislature had power to regulate common carriers, and as a part of such power to establish rates of charges by them. (2) That the fixing of such rates was a matter for the legislative discretion. (3) That when this discretion had been exercised by the legislature, it could not be overthrown by the courts. In the opinion Chief Justice Waite used
In the Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334 et seq., 29 L. ed. 636), Chief Justice Waite said (p. 331) : “From what has 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 can not 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.” In Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (10 Sup. Ct. 462, 702, 33 L. ed. 970), it was held that an act which provided that rates of charges for the transportation of property, recommended and published by a railroad commission, should be final and conclusive as to what were equal and reasonable charges, and that there could be no judicial inquiry as to the reasonableness of such rates, was unconstitutional. . In the opinion Mr. Justice Blatchford used some broad language as to the question of reasonableness being a proper one for judicial investigation. Three Justices dissented, on the ground that the decision was in conflict with that in the Munn case. Without discussing the various decisions of the Supreme Court of the United States in which the subject has been under consideration, it may be stated that sometimes the word “reasonable” has been used, and sometimes the expression “reasonable in a legal sense,” and sometimes other expressions; but when the decisions are considered as a whole, they do not mean either that the legislature is deprived of all discretion ■in the exercise of this branch of the police power of the State, or
In Gladson v. Minnesota, 166 U. S. 427 (17 Sup. Ct. 627, 41 L. ed. 1064), it was held that a statute of a State, which required every railroad company to stop all regular passenger-trains, running wholly within the State, at its stations at all county seats long enough to take on and discharge passengers with safety, was a legitimate exercise of the police powers of the State, and did not take property of the company without due process of law. In Atlantic Coast Line R. Co. v. North Carolina Corporation Commission, 206 U. S. 1 (27 Sup. Ct. 585, 51 L. ed. 933), it was held that railroad companies, “from the public nature of the business by them carried on, and the interest which the public have in their operation, are
In Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452 (30 Sup. Ct. 155, 54 L. ed. 280), referring to the interstate commerce commission, it was held: “In determining whether an order of the interstate commerce commission shall be suspended or set aside, power to make — and not the wisdom of— the order is the test, and this court must consider all relevant questions of constitutional power of right, all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to be made, and also whether even if in form it is within such delegated authority it is not so in substance because so arbitrary and unreasonable as to render it invalid.” Shall not the courts of the State give as much consideration to the State railroad commission in dealing with intrastate business ?
In Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88 (33 Sup. Ct. 185, 57 L. ed. ), is conined a very recent utterance on the subject of the weight to be ven to the determination of the interstate commerce commission
The case of Platt v. Leeoeq, 158 Fed. 723, was cited by counsel for the defendant in error. It was a decision of the Circuit Court of Appeals of the Eighth Circuit, in which the opinion was prepared by Sanborn, J. That ease did not involve a general rule regulating common carriers for the convenience *of the public, but arose on the' application of a bank to compel an express company to receive specie and currency after the departure of trains during the morning, and store them until the departure of trains on the next day. In the present case the evidence discloses that there are about 7,000 persons who travel as salesmen to a greater or less extent in Georgia, and who, as well as, others using thousand-mile tickets, are affected by the practice of the railroad company concerning which a regulation was made by the State railroad commission after a hearing. In the opinion in the case cited, Judge San-born indulged in some broad expressions; but it should be noted ■that Mr. Justice Van Devanter, then circuit judge, declined to concur generally in the opinion of Judge Sanborn, and concurred only in the result.
In the year 1912 the South Carolina legislature passed an act which provided that any railroad company selling mileage books for transportation should receive coupons from books sold by such road on its trains for transportation within the State, and to check baggage for passengers upon presentation of such mileage books. A railroad operating in South Carolina caused to be stamped upon all interchangeable mileage books thereafter sold a statement that coupons therefrom would not be accepted in exchange for tickt for a journey wholly within that State. A new form of milea
When the matter now under consideration was before the State railroad commission, after a full hearing, it passed the order which is attacked. It is true that two members of the commission dissented, but the majority of the commission passed the regulation, and that becomes the official action of the body, and must be so treated by this court, and given force accordingly. The evidence before the commission was doubtless conflicting. But they solved the conflict. It is not shown that the commission acted arbitrarily under the evidence before them. In the record brought to this court there is no lack of evidence as to the large number of people affected and the extent of the inconvenience imposed upon them. The courts ought not to interfere. The issuance of mileage books is not attacked. What is said in regard to the Federal constitution applies also, to a large extent, to the due-process clause of the State constitution, mutatis mutandis.
In view of the decision of the Supreme Court of the United States that railroads can not be compelled to issue mileage books at a rate below the general maximum rate established according to law, and in view of the ruling of the Interstate Commerce Commission in the South Carolina case, it may be questioned whether the regulation of the railroad commission of this -State now under consideration will have as extensive an effect as may have been anticipated by its advocates. But that is not a question for this court, in determining the power of the commission to make the regulation.
As to the contention that this order of the State railroad commission is invalid as being an interference with interstate commerce, it will appear from some of the decisions cited above that such contention is not well founded. See also Southern Railway Co. v. Melton, 133 Ga. 277, 298 (65 S. E. 665), and cases cited; Southern Railway Co. v. Atlanta Sand &c. Co., 135 Ga. 35 (68 S. E. 801).
We have not discussed in detail all the questions raised by the defendant in error; but none of the contentions authorize the grant of an injunction, under the facts of the case.
Judgment reversed.
Dissenting Opinion
dissenting. Upon the back of the mileage books and penny scrip books which are dealt with by the rule of the railroad commission (hereinafter referred to as the commission) are certain conditions and stipulations These are signed by the purchaser at the time of the purchase, and thus between him and the railroad company selling the tickets, whether for scrip or interchangeable mileage, is created an express contract. Under that contract and by virtue of it the purchaser obtains certain advantages which are not enjoyed by one who, about to become a passenger, buys the ordinary ticket to be used for his passage and taken up on the train. The advantages secured by the purchaser of the books of coupons in question constitute a valuable consideration. The purchaser of the coupon books (and in the use of the expression “coupon books” I include both the interchangeable mileage books and the penny scrip) obtains his transportation at a rate that is considerably less than that paid by the purchaser of the ordinary ticket, the reduction amounting in some cases to twenty per cent, of the’cost of transportation at the rates fixed by the railroad commission. The commission had, previously to the passage of the order in question, fixed the maximum rates for carriage between points in this State over the various lines of railroad therein; and the order which they have passid is not in the nature of one rearranging or creating a passenger tariff, but it affixes certain new and material conditions to the ’¡erms of the contract between the railroad company selling the
I have referred to the contract between the carrier and the purchaser of the coupon books as voluntary, and it is purely so.' It may be further said that the placing of the coupon books upon sale by the carrier is also voluntary, in that neither the legislature nor the commission has passed any act, or adopted any order, requiring the issuance and sale of such coupon books, and it may well be doubted whether the commission could compel the issuance of such mileage tickets while the order already passed by the commission fixing maximum rates remains of force and unchanged. In the case of Lake Shore & Mich. Railroad Co. v. Smith, 173 U. S. 684 (19 Sup. Ct. 565, 43 L. ed. 858), the Supreme Court of the United States had before it the question of the compulsory issuance of mileage tickets like those in question here, and the question of the constitutionality of an act of the legislature of the State of Michigan, which provided that thousand-mile tickets should be kept for sale at’ the principal ticket offices of all railroads in the State, or carrying on business partly within and partly without the State, at a price not exceeding $20 in one part, and $25 in another part of
It appearing, then, that the sale of the mileage tickets, and the assent of the purchaser to the conditions and stipulations entered thereon and evidenced by his signature attached thereto, constitute a contract voluntarily entered into by both parties, and that the contract was not violative of the public policy of the State, how could the commission attach new terms or conditions to the contract, which in substance would have the effect of making a different contract from that into which the parties had entered? It is not necessary to' consider here whether the commission could prohibit entirely the issuance of the mileage books, on the ground that it would be discriminatory in favor of a certain class of the public; but the question is, whether, without attempting to abolish the use of the mileage books, they could change the contract which was entered into in connection with the sale and purchase thereof. We recognize the principle that the right to contract is not absolute and universal. It was well said by the Supreme Court of the United States in Frisbie v. United States, 157 U. S. 165, 166 (15 Sup. Ct. 586, 39 L. ed. 657) : “It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this
Now, if it be insisted that in addition to the exercise of the police power for the purpose of securing and protecting the health, comfort, and welfare of the members of the public, it may be invoked
It will be observed that I have several times spoken of the exercise of the police power. In doing so I have, for the sake of the argument, treated the order of the railroad commission under consideration as upon the same plane, and as having the same effect and authority, as a legislative enactment; but I do not intend for it to be inferred that I am of the opinion that the railroad commission could exercise that great power, reserved to the State, as completely as the legislature may do in proper cases.
The authority to adopt and to put into effect the order of the commission is sought to be upheld under the provisions of the Civil Code, § 2638. That section provides, that all contracts and agreements between railroad companies doing business in this State, as to rates of freight and passenger tariffs, shall be submitted to the railroad commission for inspection and correction, that it may be seen whether or not they are a violation of the law or of the provisions of the constitution, or of article 6 of chapter 2 of the Civil Code, or of the rules or regulations of the railroad commission; and that said commissioners may make such rules and regulations as to said contracts 'and agreements as may be deemed necessary and proper. It may well be doubted whether or not contracts such as are to be affected by the order of the commission under consideration, that is, terms and stipulations annexed to the sale of these mileage books, which become a contract between the railroad company and the purchaser of the book, upon the written agreement of the purchaser thereof and the payment of the purchase-price, fall within the provisions of this section; but even if they did, it is clear, if I am right in the conclusion which I have announced above, that the order amounted to an unlawful interference with the right to contract, and that any such regulation as that embodied in this order of the commission would not be embraced within the authority to make necessary and proper rules and regulations; for, as I have pointed out,.it could only be justified
For these reasons I am of the opinion that the order of the commission under attack should have been adjudged illegal and void, and that the judgment granting the injunction should be affirmed.