in Watkin,s v. Paine, .57 Ga. 50, Judge Br,ECKLEY delivering the decision of the court, held that a letter-press copy is not original, but secondary! evidence; and thutdistinguished tribunal proceeds to say: The defendant's original letter-press copy book was rejected as evidence of the contents of letters which he had written to the plaintiff. The letters themselves were the primary evidence, and nothing was done to procure them, or account for their non-production. Judgment affirmed. See, also, Foot v. Bentley,44 N. Y.166, reported in 4 Amer. Rep. 652. And the supreme court of the United States in Gilbert v. Moline Plough 00., 119 U. S.491, 7 Sup. Ct. ltep. 305, refrained from holding otherwise. The copy telegrams offered must. be rejected.
(Oircuit Oourt, D. (}regon. July 4, 1887.)
CARRIEBS-lNTERSTATE COMMERCE ACT-LoNG AND SHORT HAUL-COHPETITION.
The fact that there is competition in the carriage of persons or property to or from a particular place is a circumstance that justifies a common carrier. under section 4 of the interstate commerce act, to charge less for a long haul fo or froDl said place than a short one included therein.
Section 2 of the interstate commerce act in effect prohibits the Jrlving of passes or free carriage to particular persons, and the exception allowed in section 22. in favor of officers and employes of the road, does not include the families of such persons. (811llabu8 by tlu Oourt.)
SAME-PASSES TO FAMILIES Oll' EMPLOYES.
Petition for Instruction. John W. Whalley, for petitioner.
DEADY, J. On June 25, 1887, the receiver of the Oregon &; Califomia Railway Company filed his petition in this court, asking for direction touching certain. questions arising in. the management of the road un· der the interstate commerce act. The road is 400 !piles in length, and Portland and the. southern boundary lies wholly in this state, thereof; and since January 19, 1885, it has been operated by the petitioner, as receiver of this court. It appears from the petition that the Oregon & Califomia road will when the two will soon be connected with the Califomia & form a through line between Portland and San Francisco; that between communication by steamers and sail-vesthese points there is also sels, that carry passengers and freight at less than the average cost of transportation by rail between said places and all intervening stations; that the road of the Oregon Pacific Railwli.y Company runs from Yaquina bay to Albany, in this state, and there crosses the line of the Oregon & road, from whence it is being consttucted to the. eastwardj
that with the aid of steam-boats on the Wallamet river it receives a portion of the freight which would otherwise be carried on the Oregon & Califo.rnia road; that the bulk of the freight obtained by the Oregon Pacific Railway Company from the Wallarnet valley is carried to Yaquina bay,and thence to San Francisco, at special rates, on the steamers of the Oregon Development Company, which are apparently under the same control as the Oregon Pacific road; that the Canadian Pacific road conDeGts with a line of steamers running between its western terminus and San Francisco; and that to compete with such all water and rail and water transportation between Portland and points to the north and east of it, and in the Wallamet valley on the one hand, and San Francisco on the other, it is necessary to make corresponding rates on the Oregon & California road. The petitioner also states that it will be necessary for him, under section 6 of the interstate commerce act, in conjunction with those in control of the connecting lines, to make the rotes between Portland and San Francisco; and in view of these general statements, and many illustrative details contained in the petition, he asks (1) whether, under the interstate commerce act, such rates can be made, for through travel and traffic, as will enable the Oregon & California road to compete for the same,at .points where competition by water or rail exists, although the rates for the long haul between Portla.od and San Francisco or intervening points may be less than those for a shorter haul in the same direction between said places or such pointsj and (2) whether, in conjunction with the Nqrtllern Pacific Railway Company or other transportation lines, the Oregon & California road may meet the competitiOli of the Canadian Pacific road, or other transportation lines, on transcontinental business originating to the north and east of Portland, altholigh its share of the through rate may be less than the local charges over the road, or its share of the through rate on competitive business between Portland and San Francisco. The petitioner also .states that it pas been customary to issue passes to.thefamiliesof employes oftheroad; as well as the employes themselves, and that the same have' been regarded as a part of the consideration for the services of the latterj and asks whether, under section 22 'of the interstate commerce act, he can issue such passes over the Oregon & California road, to be used on interstate travel; and whether he can interchange the same for the passes of' other' roads; to be used in such travel by the families of the employes of sucb other roads. The interstate commerce act applies, by'its own terms, "to any common carrier engaged in the.transportatiori of passengers or property wholly by railroad, or partly by railroad and partly bywater, when both are used under a common control, management,or arrangement for a continuousdmiage or shipment" not "vvhollywithin one statej" and all charges for any such service "shall be reasonable and just." Section 4 of the act provides "that it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passen-
gers, or' of like, kind of property, under substantially similar circumstance3 and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, within the terms of this act, to charge and receive as great compensation for a shorter as for a longer distance." From Ex parte Koehler, 23 'Fed. Rep. 529, it appears that the Oregon & California Company was lormedunder the general incorporation act (1862) ofOregon , passed in pursuance of section 2 of article 9 of the constitution of the state, which provides for the formation of corporations under general laws only;,and reserves to the legislature the power to alter, amend, or repeal any act passed in pursuance thereof, "but not so as to impair or destroY any vested corporate right;" and section 36 of this c?rporation act provides that a railway corporation formed thereunder "shall be deemed a common carrier, and shall have power to collect and receive such tolls or freights, for transportation of persons or property thereon, as it may prescribe." Gen. Laws Or. 532. From these premises I concluded in that case that this corporation bas a vested right to collect and receive a reasonable compensation for the transportation of persons and property over its road which the legislature cannot impair or destroy; and that, while the legislature may prescribe rates of transportation which will be presumed reasonable until the contrary appears, the judiciary are the final judges of what is reasonable or not, or what "impairs" the vested right of the corporation to have a reasonable compensation for its services. Following this conclusioq, I held in the same case that, notwithstanding the act of the Oregon legislature (Sess. Laws 1885, p. 39) called the "Boult Act," prohibiting the,co:rporation from charging a greater rate for carrying similar property for a short haul than a long one, in the same direction, the Oregon & California road might, for the purposeofretaining and securing business, at a point or place where there are competing lines of transportation, charge less for a long haul than a short one, in the same direction, so long as ,the charge for the latter is reasonable. In the course of the opinion it was said : "1 assume that the state has the power to prevent a railway company from discriminating between persons and places for the sake of putting one up or another down, 0)' any other reason than the real exigencies of its business. S\lch discrimination, it seems to me, is a wanton inj ustice, and may therefore be prohibited. It violates the fundamental maxim, sic utere ttW ut alienum non ladas, which in effect forbids anyone to so use his property as to injure another. * * * But where the discrimination is between places only, and it is the result, of competition with other lines or means of transportation. the case, I think, is different. ,For instance, the act prescribes a reasonable rate for carrying freight between Corvallis and Portland, or from either to points intermediate thereto: But' Corvallis is on the river. and has the advantage of water transportation for some months in the year. The carriage of goods by.water usually costs less than by land, and, as water-craft are allowed to carry ata rate less .than the maximum fixed for the railway, they will get all theifreight from this point unless the latter is allowed to compete for it. But if to do this it must adopt the water rate for all the points inter-
way corporation. formed under the law of the state. to carry freight for nothing,orat any less rate than a reasonable one, then it necessarilY follows that this provision of the act cannot be enforced, so far as prevent the railway from,cpmpeting with the water-craft at Corvallis and other similarly situated points, :Elven if in so doing are compelled to charge less for a long haul than a short one in the same. direction. It is not the fault· or contl'ivance of the railway company that compels this discrimination.' It is the necessary result of circumstances altogether beyond its control. It is not done wantonly, for the purpose of putting the one place up or the other down, but only .to maintain its business against rival and competing lines of transportation. In other words, the matter, so far as the railway is concerned, resolveS itself into ",choice of evils. It must either compete with the bqa,ts during the season afwater transportation, and carry freight below what the legislature has declared to 'be a reasonable rate, or abandon the field, and let its road go to rust. can the shipper at the non"competing point. or over the short haul, complain, so long as his goods are. carried at a reasonable rate. It is not the fault of the railway that the shipper who does business at a competing point has the advantage of him. It is a natural advantage to which he must submit, unless the legislature will undertake to equalize the matter by prohibiting the carriage of goods by water for a less rate than by rail; and, when this is done, the inequalities of distance, as well as place, may also be overcome by requiring goods to pay the same rate over a short haul as a long one." This opinion has been before the world for more than two years, and, on account of the importance of the subject, has attracted some attention, but, so far as 1 am aware, it has received no unfavorable criticism; and time andrefiection have fully satisfied me of the correetness of the ruling. In Ex parte Koehler, 25 Fed. Rep. 73, I had occasion to consider this subject again, on account of the competition at Corvallis with the Oregon Pacific .Railway Company, running in connection with the steamers of the Oregon Development Company, for freight destined to and from San Francisco, in which the receiver was instructed to make rates that would enable the Oregon & California road to compete for freight with the Oregon Pacific Company at Corvallis. At common law a carrier has a right to charge less for a long haul than a short one in the same direction, but the rate for the short haul must be reasonable. In Atchison, T.1!c S. F.Ry. v. Denverl!c N. O. Ry., 110 U. S. 683, 4 Sup. Ct. Rep. 185, the supreme court held that the former could not be required to carry freight over its road from Kansas City to Pueblo, Colo.Jlado, for the latter, at the same rate it obtained on a division of through among combined companies, of which it was one, on a through line from Kansas to Denver, the latter being a competive point for the business to and from the Missouri river, while Pueblo is not, and this conclusion was reached notwithstanding the constitution of Colorado (section 6, art: 15) "All individuals, and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or. 'Qnreasonable discrimination shall be madtl in charges or facilities for transportation of freight or passengers within the state."
tha busiliess at Corvallis altogether, If the legislature cannot require a rail-
than that which the legislature lias declared to be reasonable. or elsl1 give up
it is,.in efl'eqt, required to carry freight to and from such points at a less rate
mediate between Portland and Corvallis, where there is nos'ijch competition,