New-York tribune., 1907-08-04

testimony showed. it applied for the through rate
from Whiting to destination.
On these facts the court denied defendants mo-
ton that the jury be peremptorily directed to re-
turn verdict OF not guilty. Whereupon as Justl-
Tying eXcusing the of the six-cent rate the
defendants traffic manager testified that in De
cemiAr 1870. 1893 and 1904. he applied to the chief
rate clerk at the office of the general freIght agent
Of the Chicago & Alton company for the rate on
oil from Whiting 10 East ST. Louis for each sue
cecdIuc wear: that on each occasion the clerk
handed him document purportng on Its face TO
De special billing order. as follows:
TIIE CHICAGO & ALTON RAILWAY COMPANY.
Traffic Department
SPECIAL BILLING ORDER
Issued ---. effective January !, 1895.
From -, Chicago, Ill
To Alton Granite City and East St. Louis, Ill,
On OIL and petroleum products c. l. in tank cars.
Rate. six cents per cwt
Expires December 81. 1853. unless sooner revoked
Collection be made through auditors Office
CHARLES A. KING. General Freight Agent.
This witness also stated that when these special
billing orders were delivered to him he received
from the rate clerk Alton tariff schedule called
application sheet, applying Chicago and East
St Louis rates similar traffic from Whiting 10
East St Louis; that at each of said times the
traffic manager inquired of the rate clerk whether
the had been fled and assured by him
the clerk the honest belief that the rate
Of six cents d hundred pounds, as shown by the
special billing order from Chicago TO East St
Louis. had been filed with the Interstate Com
merce Commission. and that. acting in this honest
belief payments at the siX-cent rate to East St
Louis and seven and one-half cents to St Louis
were made.
This special billing order was not and did not
purport 10 have been filed with the Interstate Com
merce Commission. nor was it distributed by the
Alton company 10 any freight agent for use in
quoting rates to the general shipping public. with
the single exception that. the rate clerk testified
Il copy was retained in the tariff files at the gen.
eral freight office. Nor did the application sheet
contain any reference to the special billing order.
but it did specifically en,lnlerate the Chicago
Lon u q DlpOI
showed the Chcago-East St. Louis rate to be IS
cents a hundred pounds This alleged occurrence
between the traffic manager and the rate clerk will
receive more detailed consideration hereafter.
QUESTIONS OF CONSTTTUTIONALITY.
II is the position the defendant that the EIkins
law and certain pertinent portions of the interstate
following reasons.
Ftrst-That the defendant has natural inherent
right to make private contract for railroad rate.
of which right the Elkins law would deprive the
defendant by requiring it to pay the rate published
and filed by the carrier, and making a failure so
10 do criminal. in violation Is claimed, of the
fifth amendment to the Constitution of the United
States, which provides that no person shall be
deprived OF life, liberty OF property without
due process of law
Second-That by authorizing common carriers to
establish rates which when published and filed shall
the Garner leglslatiNe power, which Section l OF
Article Of the Constitution confers upon Con-
gress exclusively.
Third-That the law vests in the Interstate Com
rlerce Commission the power pass ultimately
upon the question OF reasonabeness or unreasona-
beness of freight rates established by carrier.
thereby depriving the defendant of right in
woke the judgment OF the in respect thereto
in violation of Section of Article of the Federal
Constitution. which vests the judicial power of the
United States exclusively in the courts.
Fourth-That Paragraph of Section of Article
of the Constitution. commonly known the
commerce clause, does not empower Congress TO
forbid and make criminal the act of the defendant
in accepting from the carrier less rate than that
published and filed by the carrier required by
Section 6 of the interstate commerce law.
With respect TO the second proposition, II need
only be said that the Supreme Court OF the United
States has in a number Of instances ruled ad-
versely the defendants contention in cases
where the same question arose on state statutes
And the third objection is not sound for the
that the interstate commerce law does not purport
TO deprive the courts Of their jurisdiction at the
suit of shipper to ultimately determine the ques
tion Of reasonableness or unreasonabeness of a
RIGHTS OF CONTRAST
Respecting the defendants alleged natural right
TO make a private contract for a secret railroad
rate candor oblges the court to say that he knows
OF nothing support the proposition but the emil
of counsel who advance 4.
In such case. in all others, it would require
two parties each competent contract, and
sidering the of the thing to be contracted
the railway common carrier is fundamentally
incompetent This is so for the reason that the
railway company IS a public functionary, and Is
enabled 10 construct and operate railroad only by
its exercise Of the power Of eminent domain. which
a sovereign power of government Thus. by
demnation proceedings. such corporation may
take the real property OF the individual citizen
even his homestead. against his will and protest.
The theory upon which government authorizes this
to be done is that it IS necessary for the public
welfare, and nothing can possibly be plain
than that property thus acquired must be used for
the benefit Of the public-not part of the public.
but all of the public. Under the doctrine insisted
upon by the defendant the railway company might
give the Standard Oil Company very low trans
portation rate. and by contract obligate itself
withhold the rate from the very the
taking of whose property by condemnation rem
dered possible the construction of the road A
more abhorrent heresy could not be conceived
There is more reason for the claim of natural
right private contract for the exercise by a
railway company of the public power with which II
is endowed than there would he the claim of
similar right 10 private contract with the collector
Of customs tax assessor for a secret valuation
OF property.
1t is the defendants position that the commerce
clause does not empower Congress TO forbid and