Page images

this act shall have precedence over all other business, except criminal business. 1

§ 416. The term "railroad corporation," contained in this act, shall be deemed and taken to mean all corporations, companies or individuals now owning or operating, or which may hereafter own or operate any railroad, in whole or in part, in this state; and the provisions of this act shall apply to all persons, firms and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railway in this state (street railways excepted), the same as to railroad corporations herein before mentioned. 2

$ 417. An act entitled "An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this state for the transportation of freight on said roads," approved April 7, A. D. 1871, is hereby repealed, but such repeal shall not affect nor repeal any penalty incurred or right accrued under said act prior to the time this


The last clause is specially important, as it enables prosecutors under the law, whether acting with or without the aid of the Railroad and Warehouse Commissioners, to push their rights to a speedy recognition. The docket of the courts is so cumbered that this precedence would be of very considerable aid in overcoming the law's delays.

2 The first half of this section is an exact copy of the definition of the term "railroad corporation," as found in the statute set aside by the Chicago and Alton decision. The second clause is addition. The importance of the amendment is shown under the head of "Transportation Companies."

act takes effect, nor any proceedings or prosecutions to enforce such rights or penalties.1

The last clause of this section is in accordance with the custom in such cases. Sometimes such qualifying feature of a repeal clause is of very great importance. In this instance it is an empty form, as no cases arising under the repealed act are being prosecuted, or are likely to be. It is entirely safe to say that whatever railway litigation may be further had under the legislation which it is made the especial duty of this commission to enforce will be prosecuted under the statute of 1873, if under any existing act of the general assembly.



§ 418. Illinois law the common law.
419. Charters and restrictions.

420. The opinion of Chief Justice CATON.

421. Present pertinence.

422. Numerous authorities.

423. Lord Chief Justice MANSFIELD

424. The doctrine of England and America.

425. Reasonable charges.

426. An early American case.

427. Special charters under common law.

428. Charters simply declaratory.

429. The opinion of Mr. Justice STRONG.
430. Conclusion therefrom.

431. Even handed justice.

$418. The distinctive feature of railway law in Illinois is the doctrine of uniformity, which may be termed the underlying principle of the railway clause of the constitution, and of the transportation statutes. subsequently enacted. It is this doctrine and the persistent effort to enforce it that has given Illinois preeminence in the railway agitation of the day. In tracing the details of the liabilities of railroads as common carriers, frequent attention has been called to the obligation of the carrier to do business on a reasonable and impartial basis, but the subject is of such importance that it is thought best to present the doctrine as held by the courts generally, in a distinct chapter, and with as much fullness as is consistent with the purpose of this treatise.

8 419. Some of the earlier railroad charters expressly reserved to the state the right to regulate the freight and passenger tariffs. No railroad was built, however, under any such charter. The greater part of the lines now in operation were constructed under charters in which the corporations themselves are expressly authorized to regulate the matter to suit themselves. No qualifications or restrictions are to be found in a single one of the many charters under which all the railroads were built prior to 1870, and some since. And what is true of existing Illinois railroads holds true of nearly all the railroads of the country. But this does not give to any railroad the right to make exorbitant charges, or to discriminate against any person or locality in violation of the common law as it applies to common carriers. This was the doctrine of the supreme court of Illinois in the case of the Chicago, Burlington & Quincy R. R. Co. v. Parks, 18 Ill., 460, in which the duty of railway companies to establish reasonable and uniform tariffs is clearly enunciated, and their right to arbitrarily oppress a citizen by charging him an unusual price is emphatically denied.

$420. The language of Mr. Justice CATON upon this point is deserving of more than passing notice. That eminent jurist, in pronouncing the opinion of the court, says, p. 464: "Several questions of considerable public importance arise upon this record, and have been considered by this court. The railroad company has the right, by its charter, to fix the tariff or fare, which it shall receive for carrying passengers and freight upon its road. These charges, however, must be uniform; that is, the charge should be the same for all persons similarly situated, and for all freights of a

like kind and quality, for a given service. They may divide passengers and freights into classes, with descriptive distinctions, and charge different rates for different classes, for a given service, but the charge should be uniform upon all persons and freights embraced within cach class. Thus may every one know what he has to pay, beforehand, for passage or freight, by inspecting the table of classes and charges fixed by the company. They may not say that they will charge A twice as much as they do the public in general. While they show favor to individuals or classes, by carrying them free or for half price, if they choose, they cannot be allowed to arbitrarily oppress an individual, by charg ing him an unusual price, simply because it is him."

421. Thus was announced, in a judicial opinion of the supreme court of this state, delivered as long ago as 1857, the obligation of railways to observe the rule of uniformity in their charges, and to avoid unjust discriminations. And while, it is true, the question. of discrimination is passed upon only as between persons, and not as between localities, in other respects the opinion of the court establishes the same doctrine as a common law principle, which has been incorporated into the recent legislation, viz.: the rule of uniformity and the prohibition of unjust discriminations in the carriage of freight or passengers. It is also worthy of note that this opinion was rendered in a case where the railway company was vested, by its charter, with full control over its freight and passenger


$422. The duties incumbent by the common law upon all carriers, whether by land or water, whether railways, steamboats or stage lines, are plain. Fore

« PreviousContinue »