Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-04-23

FrOVlulHS a PenalLy Tor the Viola !
tion Thereof"
After providing that the compen- /!
sation for carrying passengers shall /
not exceed 2 1-2 cents per mile, that |
law has an additional provision,
which is as follows:
Provided, that every railroad |
corporation and common carrier
doing business in this state, i
shall issue upon request Of any
person, mileage books in denom-
ination of 1000 miles, limited to
not less than one year from 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 price of $1,000 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 multiply
ing the rate by the distance"
The defendant makes no point
against the constitutionality of the
law as a whole, but expressly alleg-
es that it is complying with the pro-
visions of this law except as to the
mileage book provision. AS to this
provision, it claims that it is uncon-
stitutional as violating the 18th
amendment of the federal constitu-
ton as well as the provision of the
state constitution which provides
that property shall not be taken
without due process of law, and fur
Their that the act discriminates in
| favor of certain persons and is not
general in its application, and that
the law thereby deprives certain per-
| sons of the equal protection Of the
| laws guaranteed by the constitution.
The return therefore presents ques-
tion of the construction of the pro-
vision of the laws in view of the 18th
amendment of the constitution of the
| United States. This is purely fed
eral question which has been ex-
pressly passed upon by the supreme
court of the United States in case
similar in every respect to this case.
In this case the constitutionality of
a mileage book enactment of the
| legislature of the state of Michigan
was under consideration. That en-
actment provided that railroad COM
panies must keep for sale / ,000-mile
tickets and when required by pur-
1 chasers they should be issued in the
name Of the purchaser, his wife and
children, designating the name of
each on each ticket and that these
tickets should be valid for two years
after date of purchase. The SUI
| preme court of Michigan held this
law valid enactment and on appeal
to the supreme court of the United
States, the law was declared uncon-
stitutional.
In speaking of the court, Peckham
j., said in the opinion:
"The legislature having fixed
a minimum rate, and what must
be presumed, prima facie, to be
also reasonable rate we think the
company then has right to in
sist that all persons shall be
compelled to pay like, that no
discrimination against or in fav-
or 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 legisla-
ture 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 it's property without that
compensation to which it is en-
? titled from all others and there
fore would part with its property
without due process of law. The
affairs of the company are in this
/, way taken out of it's own man
agement, not by any general law
! applicable to all, but by discrim-
S ination made by law to which the
company is made subject.
/, Whether an act of this nature
g shall be passed or not is not a
e matter of policy to be decided
by the legislature. 1t is mat
ter of the right of the company
to carry on and manage it's con-
Germs, subject to the general law
applicable to all, which the leg
islature may enact in the legal
exercise of it's power to legislate
in regard to persons and things
within its jurisdiction. - Lake
Shore & Mich. So. Ry. Co. ".
II Smith, 173. U. S. 6s4.
The principles of this case wer
again commented on in distinguish
ing it from the case of Wis. MINI
& Pac. r. r. Co. v. Jacobson, II
u. S. 2SS, then under consideration
when it was said:
There we held that the stat
ute in question was not reas-.
enable regulation of the business
of the company; that it was the
exercise of a pure, bald and UNI
mixed power of discrimination
in favor of a few of the persons
having occasion to travel on the
road, permitting them to do so at
a less expense than others, pro-
u vided they. could buy certain
number of tickets at one time.
It was not legislation for the SAT-
ETY., health or proper conyen-
fence of the public, but an arbi-
trary enactment in favor of the
Il ,@ xxyhn II, "a