116 N.W. 89 | N.D. | 1908
This is an application for a peremptory writ of mandamus. On the 7th day of August, 1907, the Attorney General presented his application for said writ, and in his petition alleged the following facts: That the defendant corporation is a common carrier, and as such corporation operates and owns a main line of railway across the entire state, and also numerous branch lines extending from said main line to various places within the state, and is engaged in the transportation of freight and passengers within said state. That chapter 199, p. 327, of the Laws of 1907, provides that every common carrier within the state shall issue, upon request of any person, mileage books in denomination of 1,000 miles, and that the said defendant, upon demand for the issue of mileage tickets pursuant to said law, has refused to issue the same, and has refused to comply with the terms of said law. An order was issued ■against said defendant, citing it to appear in the city of Grand Forks on the 16th day of September, 1907, and show cause why the Attorney General should not have leave to file his petition, and why a writ should not issue against said defendant, compelling it to comply with sai'd law.
On September 20th the defendant appeared, and for a return to .said order to show cause, and as reasons why a writ of mandamus •should not be issued as prayed for by the relator, filed a return, which, after certain admissions, set forth the following facts as reasons why the said writ should not issue: “That the said law requiring the issuance and sale of mileage books at the rate of 2 cents per mile amounts to an unjust and unlawful discrimination in favor of those persons who shall be able or desire to buy transportation at wholesale or in the form of such mileage books, and •against those who are unable or do not desire to buy transportation at wholesale nor in the form of such mileage books, and amounts to •an unjust discrimination in favor of persons the members of whose families are adults, and against those persons the members of whose families are minors, all in violation of the constitution of the state of North Dakota and the constitution of the United States, and par-of North Dakota and the constitution of the United States and particularly article 14 of the amendments of the constitution of the United
After the filing of the application and the return, an oral argument was presented .to the court at Grand Forks, and leave was granted to the respective parties to file additional authorities and' arguments. No further authorities were submitted, and the case was filially submitted for decision by a stipulation of the parties on the 15th day of April, 1908. The statute on which the application for the writ is applied for is chapter 199, page 327, of the Laws of 1907, and is entitled as follows: “An act providing for a maximum rate of fare to be charged and collected by railroads, railroad corporations, and common carriers for the transportation of passengers and baggage and providing a penalty for the violation thereof.” After providing that the compensation for carrying passengers shall not exceed 2^2 cents per mile, that law has lan additional provision, which is as follows: “Provided, that every railroad, railroad corporation and common carrier doing business in this state, shall issue, upon request of any person, mileage books in denomination of 1,000 miles, limited to not less than one year from! the date of issue and redeemable within one year after the expiration of such limitation, with baggage and other facilities similar to those accompanying regular trip tickets, at a price of $20.00' each; that such mileage books shall be good for travel by the purchaser and such adult members of his family as he may designate, and whose names are then' and there written thereon, but the fare shall always be that multiple of five nearest reached by multiplying the rate by the distance.”
The defendant makes no point against the constitutionality of the law as a whole, but expressly alleges that it is complying With the provisions of this law, except as to the mileage book provision. As to this provision it claims that it is unconstitutional, as violating the fourteenth amendment to the federal constitution, as well’ as the provision of the state constitution which provides that prop
In speaking for the court, Peckman, J., said in his opinion: "The legislature having fixed a maximum rate, and what must be presumed, prima facie, to be also a reasonable rate, we think the company, then, has a right to insist that all persons shall be compelled to pay alike; that no discrimination against or in favor of certain classes of married men, or families, excursionists, or others, shall be made by the legislature. If otherwise, then the company is compelled, at the caprice or whim of the legislature, to make such exceptions as it may think proper, and to carry the excepted persons at less than the usual and legal rates, and thus would part in their favor with its property without that compensation to which it is entitled from all others, and therefore would part with its property without due, process of law. The affairs of the company are in this way taken out of its own management, not by any general law applicable to all, but by discrimination made by law to which the company is made subject. Whether an act of this nature shall be passed or not is not a matter of policy to be decided by the legislature. It is a matter of the right of the company to carry on and manage its concerns, subject to the general law applicable to all, which the legislature may enact in the legal exercise of its power to legislate in regard to persons and things within its
This is an authoritative decision of the precise question at issue here, by the highest court of the land, and is binding upon all state courts, being a decision of a federal question. No useful purpose would be gained by a more extended statement of the grounds on which that eminent court based its decision. ¡Since that decision it has been followed as a binding adjudication by state courts. Beardsley v. N. Y., Lake Erie & Western R. R. Co. et al., 162 N. Y. 230, 56 N. E. 488. In that case the court said: “The supreme court of the United States, in Railway Company v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858, has practically foreclosed all discussion on the question of the constitutionality of statutes of the character of the one before us.” See, also, Commonwealth ex rel. Atty. Gen. v. Atlantic Coast Line R. Co., 106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086, 117 Am. St. Rep. 983.
As the federal decision is controlling, it follows that the application for the writ of mandamus must be denied.
Note. — As to validitj' of statutes requiring issuance of mileage books at reduced rates see note to Com. ex rel Anderson v. Atlantic Coast Line R. Co. (Va.) 7 L. R. A. (N. S.) 1086.