Decision of the Railroad Commission of Georgia in the case of the Atlanta Chamber of Commerce vs. the Southern Railway and Steamship Association [1886]

Decision of the Railroad Co'mmission of Georgia { - - - - - I N THE CASE OF----,----

The Atlanta Chamber of Commerce IS. The Southern Railway and Steamship AssocIation.

commer~e rule~ manires~s ---~-----------'----------,------,---

The chamber. of

of Atl.an.ta pre-I ?er well defi!1ed

an.a regulations, and by a

i",ued by the companies, members of the

sen ted a petitIOn to thiS commissIOn, m Just and equnable dIvisiOn of business ;snch which it is alleged that there cxists in the state of wili fnaturully ensne from the maintancc

as of

daS~ssotciInaetidOtnofoprOfirnet'sghattS ~hh"h,~ ~h~ shb~'ri~~dssfrfsmd\:

Georgia an association of railway companies known rates, or by .ctual apportionment it is mutually vided by apportionment, such copies, to be for-

altohsnatght .eatUoSsotau~ietdbr~eaSri~nlorcrola!li,~ldwt~icaOoyn,maapunaddnsittehesaatmitnshhetihpicsahsl.sseotfcaitoaebti.Jobened-;

agreed as follows, e t c : '

The ment.

n

Mfolulcohwotfhe~hesevceornatlraccltaiuss

es of devot

th ed

e

agreeto pre-

warded. at the time the shipments to which they appertam are made, and abstractsofallsuchmanifests shall be furnishcd to the auditor at the expira-

ror !oifmsaeitdoastsio~CelactoiOnutraiscttso

make and enforce a divisio.n of their

from earn

stch~nbmmagchtihneedryetafoilrs~oaf~rthyiengooroguatniztbateiopnurpporosevsidainndg

tion of each month. The' tonnage books of everv company in the association shall be open at ail

mgs. that lU commermal and railroad parlance objects of the aSSOCIatiOn, the election of a presi- times to the inspection of the auditor, or such these co!'tracts .are c";lIed poolin~ their. earnings; dent, a general commi~sioner, a secretary, three agents as he may from time to time appoint for the

that petitIOner is ad Vised that thiS practICe of pool- arbitrators and an 'audltor, the appointment of cer- purpose of enabling him to get a complete' record

ing their earnings by the railroads is in violation tain committees, the duties of these sevcral officers of all freights shipped too or from points at which

of article 4, sec. 2, par. 4 of the constitntion of this and committees. the method of raising fnnds to business is divided by apportionment.

state, and ofthe poticy of the state as declared by meet the expenses of the associations and many In apportioning busine.., cotton and any other

the courts. and that such contracts are void under other similar provisions, not necessary for our freight which it may be practical to dinde in kind

the paragraph ot the constitntion referred to: that present purpose to be set out in fnll. We shall di- shaU be so divided, and not by allotment of reve:

the act of the general asscmbly of this state of rect the eutire agreement to be attached to this nue. Each c.ompany shalrbe required to carry Its

1879, in section 8 of said act, places all such contracts between railroad companies iu this state absolutely at the disposal of this commission; that the r ..tes fixed by said association and now being euforeed in Georgia are not only void

decision and printed in our next semi-annual report to the governor. The contract provides that the executive committee shall havejllrisdiction overall matters relating- to the joint traffic. but shall act only by unanimous

allotted pornon as nearly as possible: but settlec ments must be made monthv for any excess carried except when otherwise specially agreed betweei~ the parti~s interested: provided that no penalty shal~ be imposed npou a company or line whic.h

under the constitution and laws. but they most un consent of all its members, that all the business c.arnes an txeess for th.e benefit of any company or

justly and injuriously discriminate against the from or to local stations of the roads compos- hne that rcfuses, or wilfnlly neglects to carry its

principal business centers of Georgia; that to in- ing the system is local bu<iness to the controlling allotted proportion.

'

stance one of the many evils arising from the ,ystem. All business from or to a meeting point All divisions hy an apportionment of ton age or-

pooling contracts of said assodation it allows to of two or more roads is joint traffic. In the event revenue shall eonstitme a special aureement bethe merchauts of NashVille, Tenn., what is known of a ftlilure to agree, the question at is~ue is to be t\Ve~n the companies or Jines termi~ttting at, or

as the rehilling- privilege. the direct effect of which decided by the board of arbitration, but this shall passmg through the point at which the apport.ion-

is an unjust discrimination against every city in not be construed to !l'ive the executive committte ment is made and the terms of such agree

Georgia; that the railroads of this state are parties orthe general commIssioner any control over the ment shall be adjustcd with relerence to the eir-

tothis contract, and are continually being used to local bns!ness of any. company, even thOllgh meh eUJl.lsta'!ces. ofellch ease between the parties, or by

carry out itS purpoes.

local bnslOess may ot necessity pass through points arb!trauon if they cannot agree. The companies to

The prayer of the I?etitiou is, that the commis- at which the traffic is divided by apportioument. whi"h the allotments are made shall detennine the

sion ta.ke this matter lOto considelation. that the It provides further, that for the mutual protec- subdivisions thereof, and shall be responsible for

proper parties in interest he bronghtbefore the .tion of the various interests, and for the purpose of the settlement for all balances forexce>s carried by

commission. that the aetings and doings of all the secnring the greatest amonnt of net revenue to all them. Companies or lines which. carry an excess

varions railroad companies in Georgia in the compauies partie' to the agreement that what shall be allowed twenty (20) per cent of the reve-

the matter of dividing their earnings and are termed western lines shall protect tbe revenue nue for tran'porting the same. Tne actual cost of

preventing- competition under any fOfm derived from transportation of what are compressing not to be conHidered as revenue.

of contract may be inquired into known as eastern lines, so far as can be done It is fnrther provided, That th.e executive com.

to the end that the commission may pass snch or- by the exaction of local rates; and the eRstern miltee shalf organize such a system for the rendi-

ders, and ta.ke such action as will euforce the laws lines sha11 in like manner luotect thD rQ\l'.eUUl:'!S of tioll of .1Hl&Z:e and revenue reports of the joint

of the land and protect the rig-his of the people. The railroad companies of the state were fnr-

the western lines. It is fnrther agreed

that

the

general

commission-

I

traffic lliroUgITllllTtne territory c1l\'erea nytlie asso Clation, as shall enable the general commissioner

nished with a copy ofthis petition and cited to ap- er shall take charge of the Green Line car reports to be at

all times fully in-

pear and answer the same before the eommission- and claims aud appoint such crerks and claim informed of

the. movemeuts

there

ers on the 6th da,y of August, 1885. A number ofthe agents. as may be necessary, R,nd charge up the ex- of, and the observauce of rates established there tor.

compauies appeared by thelf eounsei and demur peuse to the roads interested in the Green Line in order that he may detect promptly any violation

red to the pp:tition on the following gronnds:

business on an eqnitable ba~is-managingthe bu~~ of rates, and keep the several companies or lines

1. Because the petition does not "et forth any iness for the benefit and at the cost of the compa- informed as to whether they are in excess or deficit,

cause of complaint against them or either of them. ntes interested.

at such freqnent iutervals as may be necessary to

for a violation of the rules and regulations pro The board of arbitrators shall hear and determine effect a distribution of the business in accordance

vided and prescri.bed by the commis,ioner~where- all qu~'tio.ns which may be submitted to the~ un-I with the agree? division. ther~of, and thns prevent

by any wrong or mJury was done to the petitioners. der thiS agreement. or by consent of the partles- the accumulatiOn of bnsmess lU excess of the de-

2. B~cause the cnntract referred to in said peti members of the association, and the decision of -I po:-.its rnRde to Eecure the same.

tion, whereby the South,rn steam'hip and rail way said board of arbitrators shall be final and coneln When by reason ot any actual difference in the

association exist~ and doc<i:l bnsiness. is a contract sive.

I rate or premium for insurance against marine risks,

iu refereure to interstate commerce over which the It is fnrther provided. that the auditor shall have any line is at a disadvantag-e iucompeting with any

commbslon has no jurisdiction.

charge of the clearing hou,e. and shall keep fnll other water,or combined rail or water line, such in-

3. Because the allegations of the petition are so and accurate accounts of all the joint traffic. He equality may be obviated by an arrangement with

general. vague aud uncertain that the companies shall keep a ledger acconnt with the general com- the insurance companies, individually or collective-

are not informed as to what facts they are called missioner and each member of the as- Iy, by which the transportation lines can assume or

upon to ans~ver.

S()ciation from which he .shall fnrnish each pay the differenc.e bet\\'e~n the wemium or rale of '

The questIOn was argued by counselou both sides company a statement of thmr account monthly, msuranee by their own line and that by thelmes ot

on 6 August, 1885, bur, no deCision was pronounced. showing the debits R,ud credits to thcm at each their competitors, and thus secure to shippers the

It was afterwards most ably and elaboratel v arg-ued point at which husiness is apportioned, and a gen- same:premium or rate of insurance by all lines. In

before the commission, as at present composed, on era~ bal.anc~ sheet shall be drawn olrmon.thly. aud ease of e.ompetition between !,ll rail lines and water

the 4th day of Novemher 1885. .

copies illrmshed to the execntive committee and or combmed raIl and water lines. the latter may ,;,-

As the petition in the case failed to disclose ex- to the general commissioner, who shall cause set- sume the wholc of the premiums or rates for

eept in very general terms the provision of the eou- tlemen'ts of nalance' to be made promptly. dis- insurance against marine risks, and bills of lading

tract between the companies composing the South- tributing the fllnds deposited to his credit for this to this eflect may be issned. It is, however, dis-

ern milway and steamship association, the eom- pnrpose, and drawing drafts on debtor companies tinctly understood and agreed that no rcduction of

missioll deemed it proper to direct that all contracts for balances due in excess of their deposits, which tne estahlished tariff rates, rebates or eonsidera-

of the character described m the petition be sent drafts shall be duly honored. notwithstanding tionsof any kind sball be given orofi'ered to influ-

in that they might examine the mme before mak- errors or omissions. if there be any, which must be ence shippers or to secure their preference for any

ing a decision. Under this order the contract of adjusted in subsequent settlements.

road or line.

said a>8ociation ~ as produced and we have care- It is provided further, that when all the parties I It is fnrther provided in the agreement that

fully examined it.

intelested in the joint traffic at any point are will- I members of the association shall not enter imo

It purports to be an agreement between cer- ing to maintain rates without an apportionment of ! any agreements relat.ive to joint traffic covered by

taln railroad aud steamship aud steam the business. no apportionment shall be required; II this contract with transportation companies not

bORt eompaoies, including a number of but if any of the initial roads insist upon an "P- members of the asso~ialion. except with the ap-

the railroad companies of. Georgi", and portioumen~th" question shal~ be referrcd to the proval. of. the execu~lVe committee or the general

recites, that whereas the estahlishment and main- board of abitratlOn to determme whether or not commiSSIOner, and m accordance With the rules

teuance of tariff' of uniform rates, and the preven- such apportionment shall be m~de; provided noth- and reglllations ot the association, etO;.

tion ofunjnst discrimination, such as arises from ing herein contained shall be construed to require Members of the association are forh!dden to re-

the irregular and fluctuating rates which inevita- an apportionment between Nashville and Chatta duee the rates made. ':>y the rate committee on the

bly attend the separate and independant action of nooga and points south, or of Atlanta busIness plea that they are ViOlated by otners. or because of

transportation lines. is important for the protec- going west. This shall not affect the present agree- 8,ny violottion of agreements, or because of

tion of the public; and whereas it is deemed to be ment pooling cotton at Atlanta.

th':! actioll of any outside line. All such

to the mutual advantage of the public and the On all bnsiness apportioned on the basis ofreve- violations shall be reported to the goenera!

transportation companies that business in which nue there shall he deducted as an initial charg-e eommissio~er, w~ose duty it shall be to check sneh

they have a common interest, shonld be so eon- and deposited to the credit of the general eommis violations if possible, and iu ease he ~annot do so,

ducted as to secure a proper correlation of rates sioner by the company which receives the freight, he shall call the executive committee together,

such as will protect the interests ofcompetinu mar- an amonnt equivalent to twenty per cent of the who shall use their infiuence to have such offend-

kets without unjnst discrimination in favo'rof or revenue to be divided, such deposits to be made in ing member or mcmbers conform to the agreement

against auy city or section; and whereas, these such bank or banks as the general commissioner and rules.

objects can be attained only by eo-operation on shall designate, subject to his order. The amount Divisions or allotmen.ts?f business shall be to Ihe

the part of the various transportation lines engag- so deposited shall be crentted hy the auditor to the end of the fiseRI aSSOC!aliOn year, and thereafter

cd in the traffic of the territory south of the Po- companies or lines by whom they are contributed. until a new allotment 1.S made.

tomae 8,nd Ohio rivers, and east of the Mississippi and shall constitute a fund which shall be applied The executive committee shall have author ty to

river. Now, therefore, in order to secure snch co- atthe expiration of the month dnring which the mak.e from.time to !Ime S1!ch rules a

operation among said transportation lines. by pro- same has been deposited to the pR,yment of any not mconsistent With thiS agr

vioing means ior the prompt adjustment of the differences which .may arIse between them I

~blaelamennctesodfusne cbhybsaulcahncecso,~IpfathnieereR.b

But e any

rafetmera!~1nfdeet-r

naet~f~~slsrasr?~fT~htfo?

secnr.e ~ s~'ste assoclatlon, a

by placing all of their traffic common to two or it sh.all be reiurned to the company to whom it be- which it is lormea.

.,

I r . "

th ...... .
BeAIQ

LorJ:/

"~

more companies under the control of officers joint- lougs.

We have Ihus tra!Jscrl d, 'I.lll' D~i!tl (;J:

ly elected; by the general conduct of the same un The auditor shall be fllrnished with copies of all much of this volummous .gr<tlP* _

-

OF GEOR"'"

~-~---~-------- -----_._---- - - - - - - - - - -_.

._- .._._------------------;------~-_._-_.__. - - - - - - - - - - - - -

bear in anv way on thc complaint made in thc I of 18i9, and the paragrapn of the Constitution first do violatc that paragraph of the constitution on

petiti0.n, and commIssion

the Cl1!CS.tiOR jurisdwtlon

to be decid~d is, ha~ this to entertaIn the case

I

qh~.uhoetde,d,huansd

er which the been confide

c d

emmission wa~ to us. Those

e~tab-
objects

wbich be relies, because they le8~en compctilion and tncourage monopoly, and that it is our duty to

made by th'" Cham.b<.>r of commerce and grant the and purposes are n.o~ to suppress contracts ''''hich enforce that provision of the constitution, then

prayer ofthpir petition.

: may le~seI1eOrnpctltlon or encourage monopoly, therd would be 1\0 ~nch power as the act evioengy.

I 'l'he provj .. jllll of lIu' constitution of the state; but to regulate freight and pa~senger tariff..;, pn~
under whieh~is commission was established, is as vent unjust dis.crimination and proh ibit other than

intended there shonld be to appr,we such COlllracts \Ve \\'olJld be compelled to disapprove thell} and

follows:



just and reasonable ratcs being charged. Our own order them to be submitted only to annul them.

"Tbe freight

pow,,,. Illld authority of and IIU.'i"icnger tririffs,

prergevuelanttiinnggrauilnrjouasdt ,I

supreme court say, "Thc tional prOVision (referring

object of the consUtuto paragraph 1 sectIon

Xeither the petition nor thc contraGt complained of ~how a case where discrimination is practiced



di~criminati(lll and requiring reasonable and just! 2 article 4,) and the legi~lative enactment (refer~ or unreasonable rates'charged. It will s(~ar(~ely be rates of fn'igIJt and passenger tariffs, are hereby: ing to the act of 18i9) was to give proper protet-lion denied tbat the rates charged by the c"mpani<:, conferred 011 the general assembly, Wh08C duty it : 1.0 the citizen agaillbt unjust rates tor the transpor' com1Jo~ing this associatioll on freight brought into

shall be to pa:.;s lltw~ from time to time to regulate "tariou of freights and passengers over the rRilroads or carried without the state are ItSS than thOse

freight and passenger tariffs, to prohibit unju~t of the state, and to prevent UlljUSt discrimillations fixed by the commi~sion. aud the charges for pas-

discriminations on the various rttilroads of this even thoug-h the rates might be just." Georgia rail~ sengers fares arc not greater than those allowed.

state, and to prohibit said roads from chafl(ing road vs, railroad commissioners Pl'. 69i-,'. ,iOth .Ga. It is indeed stated in very general telms that thc

other than just and reasonable rates, and enforce report:.

rates of the association afe void under the consti~

the same by adequate penalties." Art. 4, sec. ~., Let us look for a moment to the till<' of the act tution, but it is not meant that the rates are greater

par. 1 constitution of Georgia.

of 18i9. It is enlitkd "An act than tho'e we have fixed. but tbat they are void

The' clause of the cnnstitl1tion whieh petitioners fl)r the regulation of railroad freight under that clause of the constitution already f'O

Claim is violated by the C{lIJtrtict above Fet out, and and passenger tari.t1:..: in this state, otten referred to, heca'lse they defeat or ]e~sen

Which violation they claim this commission should to prevent unjuHt discriT1lllliition and extortion in competition, etc. We have already disposed of

redress, is a-: follows:

i the ratps chargpd fortrllllslJortation of pa~sellgers that poiut. The petition also charges tlutt the rates

"The general ass.embly of this state shall have no! and freight, and to IlroJlibit railroad companies, of the assocIation operate to discriminate again8t

power'to a!lthorize any corporation to bUy sharf'S corporations and k ..."c('~ in this state from charg- the mercantile interests of the prineipdl business

or stock in any other .corporaUon in this state ing other than ju't and rea:-.:onable rates, and to centers of Georgia, nnd again.st every city in

or el~\'\~'here, or to make any contract which I' furnish the same, Hlld prescribe a mode of proceed- Georgia; but it appears that the discrimination

mav Jlave the efreet or be intended to have ure and rules of tV ideuce in relation thereto; and alh::ged is in favor of Nashville, in the stat.e tIlt: t'treet to defeat or lessen competition in their re to appoint comUli:,,~ionersand prescribe their pow of Tenne~see. It is quite clear that this

~pe('ti\'e businesses, or to enconrage monoply; and. ers and dutirs ill relation to the same." The not is a matter over which we can exercise no control. all ~llI'h contracts or agreements shall be illegal unusual words, "and for otbf:'r purposes" l:lre even VVe have no more authority to illterfere to prevent

and v.enid." Art. 4. sec 2, par. 4, constitution of now not added, but perhaps this is not m.fterial. dbcrimination iu favor of Nashville, than we have

Georg-ill..

The constitution oftbis state decLtres t11lft "no to interfere to preventdiscriminati()nagainstNnsh~

On tl", arg-lImcnt of t his question, the di'ting- law or ordinance shall pa,s which contains matter ville. No more than. we wonld have to iuterpose to uished ('oun~,el for the railroad companies pres>ed different from what is contaiued in the title there- prevent dbcrimination for or against Chicago. St.

upon u ... with great earnestness and force the poin t of."

Louis or San Fra.uci~co.

thata.nv ,uch~nterferencewith the contract of this It would be very difficult, we think, to hold that ' When thc constitution and the act usc the

a"'sociatioll as' \vas asked by petitioners would be a the langual{e of the title of this act could be so fX~ term discrimination, the)' mean discrimination in

violation ofthat prllvision ofthe tederalconstitution t'mded as to inetude authorily to the comm.ssion- favor of one p"int in Georgia against anothcr point which re~crves to congress the right to Iegulate orB to anllul contnicts or agreements which in Georgia.

commerce among the several states, and if the Act aTe :mpP08ed to le:-sen compelition or enconrHge The act estabH8hing the railroad comnlission is

of the g-eneral as,embly of Georgia, ofOc.tober 14th, monopoly .unless sn~h contracts produced tbe cbarter of our powcrs. It prescribes the limit.

1879, establishing the railroad commission autho'r discriminatIon, or exacted other than jnst of our authortty, and we ('annut tran:--:cend those

ized such interference, it was

to I, and reasonable rates for freigl1t aud ptd"sengers.

limits In the language of the cOlnmi~i;jonin the

that extent unconstitutional and void Recurring therefore to the rule before laid down Cl'fi-le of Bitt we must not a,si-lume to exerche power~

We are not prepared to hold that tbe in respect to our duty to comider a constitutional withheld from us by law. Every power that the

actifln on our p art invoked bS the petitioners I objection in construinR the act, we ought not, if aet conter!' on us Will, when the occasion arises, be

would be an attempt to regulate ioterstate com- thc c.onstruction be doudtful, adopt the one in- fearlc-sly exerciscd, "nd every duty it enjoins will

merce, but ill the view we taKc of our dutie' under 1 'isted on by counsel ti)r the pet.iti"ners

be faithfully and imparti"lIy performed, and every

the act referred to, we do not deem it neces,ary to' Bllt let us refer to the preamble to the act and effort will be m"de to accomplblt as far as we may

decide that question.

ascertain whether any light is thrown on the ob- be able tbe great objecls and purposes fm whicn

'''e do not conceive that we are authorb:ed to I, ject of the ]egi~ltitl1rp, and what provision of the the commission wa~ established.

pronounce this Bet or any part of it constitution that body considered it was carrying ,"Ve are 110t called on to expre:-,s any opinion as to

unconstitutionaL Tbe constitution of the state de lout by the enactment of the law in que~tion.

whether the con tract we lIlt-ve beell dbcnssing docs

elares that all Jaws in violation of that,constH-ntion: This is the preamble: "Whereas. it is made tho or the con:o-titlltion (\1' "tit' United States Are void .. duty of t.he gpneru! a'3sembly ill art. 4, par. '2. and and the jll(lkinl'Y :-.hull ~o dC'(]arethen1. Thi:-;('Il111- !'!~{-Lion 1: of UI(' e(lll:-.litllqoll, to pa,:o; law,o; frOlll .u;.-..: .. " I'" nor til(' prop('r tril .... If.l t', IlI.-I'-IJlllllC I tllne to tlllle torcgllHtte fn:.'lg-ht ann pa~~l'ng('r tarl'iueh ti ljlll':'ljoll. II b 11111 a IJrallth of tilt' judi- iJl~; to pruhibit UIJjU~t diserimilJtitioll oil the vari du.ry of the ~tate_ It L-; nll HgClJey ereated by the flUS railroarlK of this statp, and to prohibit railroads leg,~lature to perform eertain dutIes whieh by the from charging other 1.han jUSL and reasonable ~trict ltlngua.ge of the constitution was df!volved rates, and enforce the saIne by adequate peHalties, upon the legislature it~elf, but which it would be therefore, be it enacted, etc." There is not oue inconvenient if not \.vholly impracticable for that word in it that refers to par. 4, sec. 2 and art. 4, or

"'T or does not violate the prOVision of the constitution

in res~IPct to competition RIHl monopoly.

e sim-

ply dedde that we !lan- 110 jllrL..dil'lioIl ov('r the

('nlilraeai 011 these points. and if thl're be a. wr('ug.

we are nut authorizel1 to redress it.

Jnnuary 29th, 1886.

ALEX. D. ERWIN.

I concur iu the above decision.

L. N. TRAMMELL.

The paper filed \vith the commis~ion by the rail-

road companies doing bu~illt'ss in thi::- Etate and

body to perform, and the courts have, therefwc, to contracts defeating competition and encourag- now under eonsideration clearly evid{:'llces that. in

held thht the creation of s11cb agency to perlorD1 ing monopoly.

its maiu features it is a contract or agreement for

these dutieswa, proper and legal. See iOt1l Ga. Let lIS110W go to section 8 of the act it,elf, the the appo'tionment of ton age and divi,ion of earn reports, page tW4, and deci~ion of l\Ir. Justice oue relied on and see whf'ther it is in harmony ings, thereby lessening cOlnpetition and as sucll is 'Vood~ in the Tilley case, in United States circuit with the title, the preamDle and the g-encral scope in my jl]d~ment, a violation of l1rticle fourth, :-,ec-

conrt at Savallnah.

and object of the entire act_ It has aJready been tion second, paragraph fuurth of tne constitution

For one purpose, however, we are at liberty to qnott'd in full, but we reproduce tbe latter clause which b a:-s follows: con~ider a eOIiHitntiollal objection to an act, viz: of the ~ectiolJ. The tir:-.t clause of the section rcfer~ "l'he general as!':embly of this state ~ball have

' for the purp().'(' of cowtruction If an act or part to rates in terms, and clearly has no bearing on the no power to authorize any corporation to buy of an act is ~u."{('ptible of two reasonable construc- question bf:'fore us and the second Hi the one on shares, or stock, in any other corporation in thi."'i tions, 011(' of wl1ich appears to be which the able and ingenious counsel for petitioners ~tate, or elsewhere, or to ll1ake any contract, or

a violatioll of the paramount law plauted his right to the redress he seeks. "And an agreement whatever, with allY such corporation,

and the 0111/'r IJOt, it ,"vould be our dutJ.' arrangements and agreemt'Dts whatever ai-l to the whL:h may have the effect, or be intended to huyc

to presume thu f the legislature did TJot intend to division of earnings (d' any kind by c'Jmpetingrail- the effect, to defeat or lebsen competition :in tl1eir

violate the COli "I JtUtiOIl a.nd to adopt the constrac- road cOlnpanies doing bm. inessin this stHte shan be re:-:pective business, or to encourage monopoly; tion conhiRtell1 \ri~h that view_ But if the act is submitted to said commbsioners for inspec1.ionand and all fo'ueh COlltracts and agreements shall be il.

plain and unll Jnhig-IlOus in its terms, admitting of approved,iu so far as they affect rules aud regUla legal and void." and is also in violation of section bnt one reasoli'ihle constructioll, it would b~ our tious made by said commissioners to secure to all 8th of the act of the legislatnre creating the com-

duty to endeHYij to enforce it as we found it plain- persons doing business with said companies just Ini!o':-ion, approved October 14th, 1879, \vhieh is as Iy written, alld 11'flve its constitutionality to be de an~ rea~onab10 raies of freight and pM~senger follows:

cided by the e""1 t,.

tariff,." Arc these contracts to be submitted to the '-That all contracts and agreements bctween

It is claimed:ly Ihe able coun~el for the chamber commissiOlJers for geueral approval or rf'jecti\Ill'? railroad companies doing bll~iness in thi.~

of commerce tlia -' we have jurisdiction to grant the praytr of the P('i llifln under the clause of the con stitution last qll',il'd relating- 10 contract8 defeating, or lf2s:-enill~ '(Impetitioll an<l.:ellcouragingInnn opol~', and unde: "I'ctlon 8 of the act of 187H before referred to. Tl"~l' dghth section of that aet is a."

Are they to be submitted to enablethecommbs:oners

to determine whether they illtended to have the drect

have the to defeat

oerf1l'eesc,t ,~onrc oamr e

petitioll, or to encourage mOllopol~', without refer-

e.nce to t.he lact, whether they prodnce discrimina tlOn and cause unju~t and unrea~oIlablerdtes to be

Slate, as to rates of freight and pas;.:enger tanff.<.;, shall be subrrlitted to said commissioners for in~ spection and correction, that it may bc seen
whether or not they are a violation of lav,,r or of the provisions of the constitution, or of this act, or of the nIles and regulations of said commissioner~;

follows: "TIl at 11 i I contracts and agreements be- charged? The act does not so say. On t11e Con- and all ttrrangeIrlents and agreements whatever as

tween railroad t' 4J rnpallies doing' business in this state as to ra~(l." nf freight an~l .nas~enger_ tariff.s shall bei-ubul1 fl 'll to saId comillIS.,;,lOnerS for In''pection and corrc('lioJ), that it may he seen whether
or 1l0t the}' arc u violation of law or of the provi.dons of the constttution or of this ac~, <?r of the rHles and -regulations of said conI mISSIoners; awl all arrangements and agretments whatever as to the division of earnings of any

irilry, it ex(>ressly declares that they are to be submitted f?r inspection Rlld approval, in so far as they eilect rules alld reglllatiou~ made by said cornmissioner~ to .secure to all persons doing bU~iness with said companicR just and reasont.tble rates of freight and passenger tariffs. It is fo~ this pl1rpo~e onl? that thi:, section confers authorIty on the commIssioners to lipprove or dbapprove them. The general view

to the division ofeuTuings ofauy kind by compet-

illg railruad companies doing bu:-,ine~s

in this ~tate, shall be foiubrnitted to

said

conlmissioners

for

inspection

Hnd approvnl~ in so far as they affect rules anrl regulation ... made: by said comInissioneri-=, to ~eeure to

all persons doing business with said companies

just and rea~onable rates of freight and pas~enger

taritl:'~; and said commis~ioners nULy make ~nlch

kind by competing ra.ilroad companies doing busi ness in thi~ statl', ~lJan be submitted to ~aid ConI n~i."}li()n(~rs for iTlfo'(>eetion and approval, ill FO tar as' hi':.' n l'feet full'S and regUlations made by said COnt~lll.:-;'1(j.n~rsto secu~c t~ an persons doing busi-.

bere ta.ken i1'\ !->trengthened by the conclusion of the section. "And ::-airl eomInissioners may make such rilles and regulatiOlls as may be then deemed necessary and proper, and any sueh ag-recrnents not approved by said commis~iollers,or by virtue

rule:.; and regulations as to such contracts and

agr~ements as nlay be then deemed neeefo:Rury and

spurocphecro, mamnldS.~alI?O-YI1seurSc,hoar.gbryeeVm~Irnttuse

n()~ ot

approved by which rates

shlill he charged exceeding the rates fixed for

ne" WIth o.f freight

'llld illHl

pcao~msepnagmere'taJruif,fts;a

nd reasonable rates and said commis-

of whicb rates shall be charged exceeding the 1 frcight and pas'eng-ers, shall be deemed beld and rates fixed for freight and passengers shall be! tliken to be, violations of artlcle 4, section 1, para-

stone Ruch

rsCOmllatynHn~tms

k

es or

nch agr

Tules and regUl eements it" nla

at y

ions be

as to then

held and deemed a violation of Art. 4, Sec. 2, Para- I graph 4, of the constitution and shall be illegal graph 4 of the constituion, and .shall beillegalalld adn void."

deemed nece:-::-ary a.nd proper, and f1nysuch agree void." _

I Conseqnently, I am constrained to consider it

ments not appro\'<;d by sueh COUllllis<o::ioners or by This is the only reference in the section or in the the duty of this commission to notify .said railroa.o

virtue of which niles shall be char1.;('d exceeding

the rates fixed for freight and pafsflllJ!ers shall be

fd~emerm, seedc,tIhOenldtwaon, dJ.latraakgrel'nlphtofobuer

violations of act of the constitu

act 10 the p petHioners it excludes

rbttoalfv~'.heiidtoheneaiotrfhaatphtpetlhicecaoctnioosmntmitiiunst~itoibnoisneocransseaw, rheainctdho

execute that provision of tIle constitution, or deal

companies that said contract and agreement is llOt approved. 'Ihis eoncillsion has been arrived at after a mm;;t conscientiollseffort to coincide with my assoeiates to \VhOln I concede much greater

tton, and shall be Tl]eg"l and void."

with the.se contracts unless thc gencral purpo,es of ability and equal sincerity ofpurposc.

We . do not think that the duty of the act to prevent discrimination and insure

CAMPBELL WALLACE.

cnforcmg the clausc of the consti- just and reasonablc rates are infringed. If the Attest:

tutton last quoted, except in so far as the counsel be correct in the posinon he asmmed in A. C. BRISCOE,

cr;mtracts or agreements mentioned therein the argnment, that contracts betweeu competing 'l"l6l ate the general purposes and objects of the act railroad c"mpanies for division of their earnings

Sccretary.