Los Angeles herald., 1907-08-04

a rate covering the service performed,
nor did they render any bills to the
defendant. Their dealings were ex-
clusively with the Alton company to
which company 1t applied for the true
rate from Whiting to destination.
On these facts the court denied de-
fendant's motion that the jury be
peremptorily directed to return a YER
dict OF. not guilty. Whereupon, as JUS
tifying and excusing the use of the
scent rate the defendants traffic
manager testified that in December,
1902, 1903 and 1904, he applied to the
chief clerk at the office of the gen
eral freight agent of the Chicago &
Alton company for the rate on oil
from Whiting to East st. Louis for
each succeeding year; that on each
occasion the clerk handed him a doc
ument purporting on its face gen.
eral billing order, as follows:
Special billing order, issued -,
effective January, 1903.
From Chicago, Ill.
ITO Alton, Granite City and East
st. Louis, ILL., 4.
I'm oil and petroleum products, car
load in tank cars.
six cents per cwt.
Expires December 81, 1908, unless
sooner revoked.
Collection to be made through au-
ditor's office.
Charles A. Ding, general freight
agent"
This witness also stated that when
these special billing orders were deliv-
cred to him he received from the rate
clerk an Alton tariff schedule called
an application sheet, applying be-
L., m
rates to similar traffic from East St.
Louis; that at each of said times the
traffic manager inquired of the rate
clerk whether the rate had been filed,
and was assured by him that 1t did;
that the traffic manager was thus
misled by the rate clerk into the be-
lief that the rate of cents a hun
dred pounds had been filed with the
interstate commerce commission and
that, acting in this belief, payments
at the 6-cent rate to East st. Louis
and TX cents to st. Louis were made.
This special billing order was not and
did not purport to have been filed with
the interstate commerce commission,
nor was 1t distributed by the Alton
company to any freight agent for use
in quoting rates to the general pub
lie with the single exception that, as
rate clerk testified, a copy was re-
tained in the tariff filed at the general
freight office. Nor did the applica-
tion sheet contain any reference to the
special billing order but it did spe-
cifcally rumor at the Chicago East
st, Louis tariff No. "a, above men
toned, which tariff showed the Chi
cago-East st. Louis rate to be 10
cents a hundred pounds.
Attacks EIkins Law
1t is the position of the defendant
that the Elkins law and certain per-
tinent portions of the interstate COM
merce law of 1887 are unconstitution
for the following reasons:
First-That the defendant has a
natural inherent right to make a
private contract for a railroad rate.
for which right the Elkins law would
deprive the defendant by requiring
1t to pay the rate published and filed
by the carrier, and making a failure
to do so criminal, in violation. as is
claimed, of the fifth amendment to the
constitution of the United States
which provides that mo person shall
be deprived of life, liberty or property
without due process Of law"
Second-That by authorizing COM
mon carriers to establish rates,
which, when published and filed, shall
be binding upon the shipper, the law
delegates to the carrier legislative
power which section l of article l of
the constitution confers upon con-
gress exclusively.
Third-That the law vests in the
interstate commerce commission the
power to pass ultimately upon the
question of reasonableness of freight
rates as established by carrier,
thereby deprlving the defendant of It's
right to invoke the judgment of the
courts in respect thereto, in violation
of section l of article Of the federal
constitution, which vests the judicial
power of the United States exclusive
ly in the courts
Fourth-That paragraph of section
8 of article of the constitution, COM
monty known as the common clause,
does not empower to forbid and
make criminal the act of the de-
fendart in accepting from the carrier
a less rate than that published and
filed by the carriers as required by
section of the interstate commerce
law.
Quotes Supreme Court
With respect to the second PROPOSE
tion, it need only be said that the su-
preme court of the United States has
in a number of instances ruled adj
versely to the defendants contention
in cases where the same question
arises, on states statutes empowering
railroad commissions to fix rates.
And, the third objection is not sound
for the reason that the interstate
commerce law does not purport to de-
prive the courts of their Jurisdiction
at the suit of shipper to ultimately
determine the question of reasonable
ress or unreasonableness of a rate.
Respecting the defendants alleged
natural right to make a private con-
tract for a secret railroad rate can
dor obliges the court to say that he
knows of nothing to support the posi-
tion but the eminence of counsel who
advance it.
In such cases, as in all others, it
would require two parties, each COM
petent to contract, and considering
the nature of the thing to be con-
tracted for, the railway common car
rier is fundamentally in competition.
This is so for the reason that the
railway company is public function
ary and is enabled to construct and
operate a railroad only by It's exer-
else of the power of eminent domain
which is a sovereign power of gov
ernment.
Thus, by condemnation proceedings
such corporation may take the real
property of the individual citizen,
even his homestead. against his will