The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-08-18
q Railroad D eciaion Supervisory
Legislation.


respondent of the New York Nation ha.
given a fuller report of the decision
than we have seen elsewhere 1t wa.
rendered in what was known as the
; Southern Express case. The writer
says that the suit was one of several in
the United States courts, in which
Judges Wood and Baxter, circuit judges
of the Fifth and Sixth circuits Judges
Key, Of Tennessee, Gresham, of Indiana.
and Treat, Of Missouri, arrived at sub
stantially the same conclusion a. Judge
McCrary did in the Arkansas suit. Sub
jeet to review by the Supreme Court
these cases establish in the United
States a rule Of the highest Importance
that the function of the railway Is not
merely the carrying Of passengers and
freight in slow trains that the railway
as a public servant must permit any
suitable use of its carrying facilities
which has been so generally adopted and
so long continued by railway corpora
tions as to be commonly relied upon as
a part of their ordinary duty. which
Is highly and universally advantageous
to the community; and that the express
business, creation ofvery recent years,
involves such a use, which RAILWAYS
must permit in the usual way, by admit
ting express messengers and furnishing
package-room on passenger trains, at
depots, etc. They indicate a method of
dealing with railway abuses the chief
machinery Of which is at hand, and
which, with Railway Commission hav-
ing prosecuting as well as investigating
powers, would be effective for good. The
fixing of maximum rates to be charged
for the transportation Of express mat
ter is merely part Of the judicial ma
chinery by which the railway is COM
PEELED to perform the particular duty
adjudged against it in the recent express
cases. Ii the court enjoin the railway
10 furnish express facilities, but permit
it to charge any rates, the judgment of
The court may be made migratory by rates
Intentionally impracticable. The courj
fixed ''maximum rates only, because
the express company and the public are
sufficiently, but not unfairly, protected
by a maximum, and because neither par
ty to the suits sought any other limit of
rates Judge McCrary confined the in
vestigation to express companies be-
cause :heir suit alone was before him.
1t would in proper cq=e doubtless ex
tend to the charges against any one to
whom the railway owed duty for hire
Nor is there any Lew danger in ju-
dcial investigation and determination
of maximum railway rates To these
powers of the courts common carriers
have from time immemorial been subject.
I BY publicly assuming TO carry, they be-
come bound to 4atFY for fair rates.
/ When the shipper tenders u reasonable
comp nsation, whether it be less than
/ the carriers charges or not, the latter
/ must carry or respond In damages. If
the shipper and carrier differ as to what
is fair rate, the dispute must, like any
dispute of fact, be determined in the
judicial method appropriate to the form
o. the action, by 2 jury at common law,
or in chaneery nv a judge or master az
i'll the Arkansas case.
In respect Of railways the right and
duty Of the courts are far stronger. A
common carrier may be, and often is, a
private person, only from time to time
assuming public character. But a
railway is corporation expressly
created to discharge public duties, and
only because its duties are public, per
mitted to exercise the right of eminent
domain. 1t is Welt settled, therefore,
that the courts will, by the Perem ptqrg
process of nlanddmits, compel a railway
to carry freight upon tender of fair
rate, whose amount, if in dispute, the
court will determine, as it determines
any question Of fact. That the courts
usual Y adopt accustomed rates" Goeg
not approve this. The custom is sim
ply valuable piece of evidence The
custom is simply valuable rieoe of evil
dence. The famous "GranQer cases"
upheld legislative right to fix railway
rates. The Supreme Court, however,
asserted besides, and with emphasis, the
right and duty of judicial tribunals, in
the absence Of Legislative provi ion, to
ascertain and adju1ge the same rates
(Chief-Justice Waite in Chicago, &c,
Railway V. Iowa, Ott5, CD.
This is doubtless a serious power to
lodge with the courts. But courts are
created to exercise serious powers. 1t
is no more serious than other pow
ers exercised by them without ami
madversion. 1t is quite true the courts
may come to control consolidation" and /
pooling" They will do so when those
matters involve any question of legal
obligation. Indeed court can without /
doubt take railway out of its lawful |
owners hands and put it into the grasp
of an adxentnrer las ten or twelve years
ago judge of New York did, We
cannot, however, safely build 3 rule
on such an atrocity. Courts, in the
vast majority of cases, administer jus
tiee with honesty and painstaking,
which err, if at all, on the conservative
side. The possibility of abuse is never
reason for depriving courts of
powers as broad a. the necessities of jus
tice.
Very certainly, too, the ultimate
power of ascertaining reasonable rates