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ule is to apply to all points within the state, and is not to be limited to the matter set out in the complaint.'

It is no defense to an action against a railroad company for the statutory penalty for an overcharge, that a charge of 70 cents for a passage of 11 miles included a charge of 40 cents for passage over a bridge, where the Act of Congress under which the bridge was built provided that no higher charge shall be made for the transportation of passengers over it than is paid for similar transportation over the railroad leading to the bridge, and the regular rate of fare on such road is 3 cents per mile."

The provision for a railroad commission, whose control extends to “transportation companies,” should be construed to include in the supervision of the commission all persons engaged in the business of transportation, whether as corporations, joint stock companies, partnerships or individuals.'

Such a state commission has no authority to prescribe rates for transportation by common carriers in another state. It cannot fix the rates for carriage between two points within the state over a route extending across a neighboring state. Such power is vested exclusively in Congress. The South Carolina Railroad Commission has no jurisdiction of a complaint for charges unlawfully made by a railroad partly in North Carolina for transportation which was partly in the latter state, although it was for part of the original transportation by connecting lines between points both in South Carolina, such transportation being interstate commerce.“

State officers in appropriating and assessing the expenses of the board of railroad commissioners act in a quasi judicial character; and their action is reviewable on certiorari, or in some appropriate form, by a company aggrieved thereby.°

An act requiring railroads to pay the expenses of a railroad commission is part of subsequent charters; and successive assessnents for this purpose, in annual tax acts, are only a provision to carry out this existing law.'

* Chicago, B. & Q. R. Co. v. Dey, 38 Fed. Rep. 656. Moran v. Ross, 79 Cal. 549. 3 St. Louis & S. F. R. Co. v. Stevenson, 54 Ark. 116. *State v. Chicago, St. P. M. & 0. R. Co. 2 Inters. Com. Rep. 519, 3 L. R. A.

238, 40 Mion. 267. Sternberger v. Cape Fear & Y. V. R. Co. 2 Inters. Com. Rep. 426, 2 L. R.A.

105, 29 S. C. 510. •People v. Chapin, 42 Hun, 239.

Railroad switching charges may be regulated by a commission appointed under a state act by virtue of its police powers; and this does not make an unlawful interference with commerce, although the cars switched contain freight for transportation between states, But where the actual cost for switching cars in a city exceeds the compensation fixed therefor by a schedule of rates prepared by state railroad commissioners, the schedule cannot be enforced.”

An act making a railroad commissioners' schedule prima facie evidence that the rates fixed thereby are reasonable is not an infringement of the constitutional guaranties of the right to trial by jury and against deprivation of property without due process of law.'

Where a tariff of freight and passenger rates has been established by the railroad commissioners, and the railroad company and the commissioners differ as to whether such rates, considered as a whole, will prove remunerative to the company, and there is room for a difference of intelligent opinion on the question, the courts cannot interfere or substitute their judgment for that of the commissioners, but the tariffs, as fixed by the commissioners, must, in so far as the courts are concerned, be left to the test of experiment. The courts will not interfere or grant any relief to a railroad company against rates fixed by commissioners, upon a complaint made as to one of several rates only, or where the freight and passenger rates established by the commissioners are not assailed as an entirety. The courts have no power to make freight or passenger tariffs. The enforcement of a tariff of freight and passenger rates which will not pay the expenses of operating a railroad was held, upon the plearlings, to show an abuse of the discretion given to railroad commissioners by the statute authorizing them to prescribe reasonable and just rates of freight and

Columbia & G. R. Co. v. Gibbes, 24 S. C. 60. * Chicugo, M. & St. P. R. ('0. v. Becker, 32 Fed. Rep. 849. 3 Chicago, St. P. M. & 1. R. Co. v. Becker, 35 Fed. Rep. 883. *Chicago & N. W. R. Co. v. Dey, 2 Inters. Com. Rep. 325, 1 L. R. A. 744, 35

Fed. Rep. 866.

passenger transportation, and to amount to a taking of the railroad company's property without just compensation.'

Where a schedule of rates for railroad charges, fixed by legislative authority, will not pay the cost of necessary service, appliances and the repair thereof, interest on bonds, and then leave something for dividends, its enforcement will be enjoined. In a suit to restrain the enforcement of unreasonable rates, it is no defense that plaintiff is a foreign corporation and may retire when the business ceases to be profitable, or that it operates through other states, where no rates are fixed which will enable it to make profit. Nor that the reduced rates may increase the volume of business and make it the more remunerative in the future. The Federal courts have jurisdiction of a suit against state railroad commissioners, to restrain the enforcement of their rates, under an unconstitutional statute; such suit not being in effect against the state and hence not within the 11th Amendment of the Federal Constitution.' That the state board of railroad commissioners have advertised in papers that a schedule of rates prepared by them will be put in force on a named da gives equity jurisdiction to restrain the enforcement of the schedule, before the expiration of the time to prevent a multiplicity of suits. Where the probable effect of putting in force a schedule of rates prepared by the state board of railroad commissioners, under a legislative act would be to destroy all dividends from the operation of the roads, and the act provides for treble damages to any slipper injured by an overcharge, the preliminary injunction should be granted.'

There is no common law of the United States, in the sense of a national common law, distinct from the common law of Eng* Pensacola & A. R. Co. v. State, 2 Inters. Com. Rep. 522, 3 L. R A. 661, 25

Fla. 310. Chicago & N. W. R. Co. v. Dey, 2 Inters. Com. Rep. 325, 1 L. R. A. 744, 35

Fed. Rep. 866, reviewing Osborn v. Bank of United States, 22 U. S. 9 Wheat. 859, 6 L. ed. 232; Davis v. Gray, 83 L. S. 16 Wall. 203 21 L. ed. 447; Re Ayers, 123 U. S. 443, 31 L. ed. 216; Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448; Antoni v. Greenhou, 107 U. S. 769, 27 L. ed. 468: Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805. As to jurisdiction of state commissioners, see Sternberger v. Cape Fear & Y. V. R. Co. 2 Inters.

Com. Rep. 426, 2 L. R. A. 105, 29 S. C. 510. 3 Chicago & N. W. R. Co. v. Dry, 2 Inters. Com. Rep. 325, 1 L. R. A. 744,

35 Fed. Rep. 866.

land as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.' A determination in a given case of what that law is may be different in a court of the United States from that which prevails in affecting the judicial tribunals of a particular state. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the state in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illustrated by the case of New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627, where the common law prevailing in the state of New York, in reference to the liability of common carriers for negligence, received a different interpretation from that placed upon it by the judicial tribunals of the state; but the law as applied was none the less the law of that state. In cases, also, arising under the lex mercatoria, or law merchant, by reason of its international character, that court has held itself less bound by the decisions of the state courts than in other cases.'

There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore is gradually formed by the judgments of the United States Supreme Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority."

The construction put upon a state statute by the supreme court of such state must be accepted by the Supreme Court of the United States. A law which, as construed by the supreme court of the state, allows a railroad commission to establish rates for railroads which are final, without issue made, or inquiry had, as to their reasonableness, and forbids the courts to stay the hands of the commission if the rates established by it are unequal and unreasonable, conflicts with the Constitution of the United States. For thus construed, it deprives the company of its right to a judicial investigation by due process of law, and substitutes therefor, as an absolute finality, the action of a railroad commission which is not clothed with judicial functions and does not possess the machinery of a court of justice. Where no hearing is provided for, no summons or notice to the company, before the commission has found what it is to find and declared what it is to declare, and no opportunity provided for the company to introduce witnesses before the commission, there is not the semblance of due process of law. The question of the reasonableness of a rate of charge for transportation by a railroad company is eminently a question for judicial investigation, requiring due process of law for its determination.'

1 Wheaton v. Peters, 33 U.S. 8 Pet. 591, 8 L. ed. 1055. "Svift v. Tyson, 41 U. 8. 16 Pet. 1, 10 L. ed. 865; Carpenter v. Providence

Washington Ins. Co. 41 U. S. 16 Pet. 495, 10 L. ed. 1044; Oates v. First Nat. Bank of Montgom ry, 100 U. S. 239, 25 L. ed. 580; Brooklyn C. & N.

R. Co. v. National Bank of the Republic, 102 U. S. 14, 26 L. ed. 61. Moore v. United States, 9 U. S. 270, 23 L, ed. 346.

This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. If the carrier is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of a judicial investigation, it is deprived of the use of its property, and, in effect, of the property itself, without due process of law and in violation of the Constitution of the United States."

Where a state board of railroad commissioners publish, for the length of time required by law, a notice that a schedule of rates will

go into effect on a certain day, and the secretary of the commission, on receipt of a telegram from certain railroads asking an extension of time, grants the extension and publishes the followng week notice of such change, the commission, on the application of the railroads to restrain the further publication of tthe notice, cannot urge that the publication is compiete, and that the extension of time was unauthorized. "Chicago & N. W. R. Co. v. Dey, 2 Inters. Com. Rep. 325, 1 L. R. A. 744, 35

Fed. Rep. 866. 'Chicago, M. & St. P. R. Co. v. Minnesota, 3 Inters. Com. Rep. 209, 134 U. S.

418, 33 L. ed. 917.

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