TRAMMELL et al. v. DINSMORE et al.; DINSMORE et al. v. SOUTHERN EXP. CO. et al., 102 F. 794

McCORMICK, Circuit Judge, after- stating the case as above, delivered the opinion of the court. Subject to the limitation that the carriage cannot be required without reward, or upon conditions amounting to the taking of property for public use without just compensation, a state has power io prescribe the charges of public carriers for the carriage of persons and merchandise within its limits. The acts of the legislature of Georgia constituting the railroad commission, and prescribing its powers and duties, do not violate the provisions of the Georgia constitution.

And the provisions of that constitution, and of the statutes passed in pursuance thereof, administered subject to, the limitation that the carriage cannot be required without reward, do not violate the constitution of the United States, and have full force as public law. Railroad Commission v. Smith, 70 Ga. 694, affirmed by the supreme court of the United States, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377; Railroad Commission Cases, 116 U. S. 307-331, 6 Sup. Ct. 334, 348, 349, 388, 391, 1191. 29 L. Ed. 636; Reagan v. Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Road Co. v. Sandford, 164 U.

S. 578-598, 17 Sup. Ct. 198, 41 L. Ed. 560; Smyth v. Ames, 169 U. S. 466-550, 18 Sup. Ct. 418, 42 L. Ed. 819; Houston & T. C. R. Co., v. Metropolitan Trust Co. of City of New York (C. C.) 90 Fed. 683.

The Southern Express Company, as to its business conducted between points within the state of Georgia, is bound to receive for carriage, and to carry, express matter properly tendered to it by any person for transportation, provided the person so tendering such goods offers to pay its charges, not to exceed the maximum rates fixed by the railroad commission, so long as the body of the rates, or the system of maximum charges, prescribed by the commission, are not unjust and unreasonable, and such as to work a practical destruction to the rights of property of the shareholders in the corporation thus acting as a common carrier.

The formation of a tariff of charges for the transportation by a common carrier of persons or property is a legislative or administrative, rather than a judicial, function. The courts are not authorized to revise or change the body of rates imposed by the commission. They do not determine whether one rate is preferable to another, or what, under all the circumstances, would be fair and reasonable as between the carriers and the shippers. They do not engage in any mere administrative work.

There can be no doubt of their power ' and duty to inquire whether a body of rates prescribed is unjust and unreasonable, and such as to work a practical destruction to rights of property, and, if found so to be, to restrain its operation. Reagan v. Trust Co., 154 U. S. 397, 14 Sup. Ct. 1047, 38 L.

Ed. 1014. “While rates for the transportation of persons and property within the limits of a state are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the constitution secures, and therefore without due process of law, cannot be SO' conclusively determined by the legislature of the state, or by regulations adopted under its authority, that the matter cannot be the subject of judicial inquiry.” Smyth v. Ames, 169 U. S. 526, 18 Sup. Ct. 426, 42 L. Ed. 842.

It seems clear to us, from the statement of the case which we have digested from the record, that the issue between the railroad commission of Georgia and the Southern Express Company was, had that company the right to add to the maximum charges prescribed by the commission the cost of the one cent revenue stamp required by the act of congress to be attached to a receipt issued in each case of shipment? As the act- of congress in question does not purport to fix or affect the rates which carriers may charge- for transportation, its construction is not necessarily involved in the solution of this issue.

In the circuit court counsel for the complainants submitted that the construction of the revenue act is not involved in this case, and the judge of that court who passed the decree from which this appeal is taken so held, and in the opinion which he delivered said: The issues presented by the pleadings do not render necessary a construction by the court of the act of congress imposing the war stamp tax, nor any clause of it. The shippers who refused to furnish the stamp or pay the cost of it did so on the ground that the demand thereof was an unlawful increase of the* maximum rates prescribed by the commission.

On this ground the complaint was made to the commission, and in its notice to the carrier the express company’s action is referred to as “thus indirectly increasing the cost of transportation beyond the rate fixed therefor by the commission.” When the carrier appeared before the commission in obedience to the notice, it showed cause, etc., respectfully, as the bill avers, by “denying all jurisdiction in the premises on the part of the said commissioners”; from which it is evident that the carrier relied on the act of congress to support its action.

Thus challenged, the commission proceeded to discuss and construe the act, and, in effect, held that it did not affect their power and duty to enforce the observance of the rates which they had prescribed. And later, when the carrier, still protesting, applied for leave to increase its rates, the commission refused the leave, and adhered to its judgment that the maximum rates which it had prescribed were just and reasonable, and should be enforced.

It is true, but wholly immaterial, that the commissioners held and expressed the view that the war revenue act imposes the tax in question exclusively upon the carrier, and precludes it from relieving itself of the expense of affixing and canceling the stamp required to be attached to each bill of lading, manifest, or other evidence of receipt, by passing that expense on to the shipper, and requiring him to submit to an increased rate to that extent. This construction is unsound, but, as we have just said, it is wholly immaterial; for the act of congress neither prohibits nor authorizes such an increase in rales.

Neither expressly nor by implication does it contain any provision on that subject. Crawford v. Hubbell (April 16, 1900) 20 Sup. Ct. 701, Adv. S. U. S. 701, 44 L. Ed.-; Express Co. v. Maynard (April 16, 1900) 20 Sup. Ct. 695, Adv. S. U. S. 695, 44 L. Ed. -.

But the laws of Georgia, and the requirements of the railroad commission in pursuance thereof and in accord therewith, while the limitations of the fourteenth amendment of the constitution of the United States are observed, not only affect, but control, this carrier as to its Georgia business, and prohibit it from increasing its charges beyond the maximum rates prescribed by the commission.

There is nothing in the bill in this case that tends to show that the tariffs of rates and classification, and the rules prescribed by the commission, and now sought to be enforced by it, do not observe the limitations of the constitution of the United States.

The one substantive fact which the bill with reasonable accuracy states is that the payment of the tax imposed by the war revenue law, as required by the order of the railroad commission, will aggregate to the Southern Express Company in the state of Georgia annually the sum of $42,000, which is repeated further on in this language: “That the payments for said stamps thus required to be made as a part of the rates imposed on the express company, and under which it must do business, by the order of said commission, will result in irreparable damage and injury, and will cause a diminution of income, as nearly as can be ascertained, of forty thousand dollars per annum, and a loss to complainants, in a decreased value of (heir shares, of ten thousand dollars.” And further on still the complainants again repeat, and. “show that the said Southern Express Company, and its directors, having declared their intention to do so, will now pay the said revenue tax out of the income and profits of the company, and will thereby diminish the assets of the company, and lessen the dividends thereof, and the value of its shares.” There is no statement whatever of the amount of income of the company from its Georgia business (intrastate business'», nor from its other business (interstate businéss), nor from both together, either gross, income or net income, or profits of the company.

It is stated simply that the tax will aggregate in the state of Georgia annually the sum of $42,000, and that this will cause a diminution of the income, — an obvious result as to the net income.

But neither the substantive fact averred nor the obvious conclusion tends to show that the commission has hitherto trenched upon, or is about to trench upon, the limitations of the constitution, and thus present a case within the remedial jurisdiction of a court of equity: The aggregate amount in the state of Georgia annually of the war revenue tax, as stated, namely, $42,000, shows the number of shipments by that carrier in that state (whether intrastate alone does not appear) of 4,200,000 annually.

The argument of the pleader proceeds and shows that the express company has to make its own arrangements with the railroads for the carrying of its freight on passenger trains; that the contracts of the express, company with the railroad companies are matters of negotiation, and the average charge of the railroads is 50 per cent, of the express company’s gross receipts; that it costs the express company 43 per cent, of its receipts to do its business, and this, added to the average of 50 per cent, which must be paid to the railroads, makes the total cost to the express company 93 per cent, of its receipts; that considerable express business is done at a charge of 10 cents per package, and a very large proportion of its intrastate business is done at a charge of 25 cents per package. “Taking ninety-three per cent, from these charges, and there is left a margin of seven-tenths" of a cent on the 10 cent packages, and one and three-quarters of a cent on the 25 cent packages.

If the express company is compelled to pay one cent each on the receipts, it loses three-tenths of a cent on every 10 cent package, and makes only three-quarters of a cent on the 25 cent packages. This would materially reduce the very moderate profit of the business, and will so reduce the income of the company as to lessen any dividends payable to its shareholders, like the complainants.” The argument proceeds, further, that in

section 9 of the act of the general assembly of-the state of Georgia approved December 24,1896 (Pub. Laws, p. 28), to levy and collect a tax for the support of the state government for .the years 1897 and 1898, all persons and companies doing an express business, and charging the public therefor, in the state of Georgia, were required to pay 2⅛ per cent on their gross receipts, and all persons, or the superintendent or general agent of each express company, were required to make a quarterly return, under oath, in the form therein prescribed, under the penalty of indictment, conviction, and punishment, pursuant to

section 1039 of volume 3 of the Code of 1895, and a failure to pay the tax will subject such corporation to a forfeiture of its charter. We. notice this argument only to say that the “considerable express business done at a charge of 10 cents per package” is not affected by the action of the commission, because a reference to the tariffs prescribed by it, referred to in the bill and made a part of the record, shows that the lowest- maximum rate prescribed therein is 25 cents, and the adding of one, cent to the 10 cent rate -would not make a rate in excess of that allowed by the commission’s lar iff.

We suggest, furtlier, that the argument shows no reason why the tax imposed by the government of the United States should be added to the commission’s rates that does not apply with at least equal force to the tax of per cent, on their gross redteipts which the state government is shown to have levied.

We say with at least equal force; we think with greater force, because this last: t.ax would adjust itself to (he shipments uniformly, and one who shipped a small package, or a package* for a short distance, for the rate of 10 cents, would not: he required to pay as much as one who shipped a larger package for a longer distance at the maximum rate shown in the commission’s tariffs of $1.40 per hundred pounds.

The increase made on this basis would be uniform, and not unjustly discriminative between shippers; while the increase which the carrier proposes to make by adding the tax imposed by the war revenue acl does manifestly discriminate, largely and unjustly, between the shipper of a small package for a short distance at: a low rate and the shipper of a larger package the longer distance at the larger rate. Though each shipper is charged one cent, the relation of this charge to the service is unequal.

Further, it does not appear but that the 50 per cent, of the express company's gross receipts which the railroads Impose upon it by negotiation, and which charge more largely diminishes the revenues of tiie express carrier, should not, with equal justice and reason, be addl'd to the maximum rates prescribed by the commission.

This is absurd, and is suggested only to illustrate the utter want of force in the argumentative pleading which the hill attempts to put in the place of a showing of substantive facts. (June 16, 1900.) It seems clear to us that the bill makes no ease for the interference of a court of equity to restrain the action of the railroad commission of Georgia, and ihai the demurrer, though some of its special grounds which we have not: recited may have been not well taken, should have been sustained. This disposes of the appeal and of the cross appeal.

It is therefore ordered that the decree of the circuit court: he, and the same is hereby, reversed, and that the suit be, and it is hereby, dismissed, at the costs of the complainants.