F. C. FISHER, PLAINTIFF, VS. YANGCO STEAMSHIP COMPANY, J. S. STANLEY, AS ACTING COLLECTOR OF CUSTOMS OF THE PHILIPPINE ISLANDS, IGNACIO VILLAMOE, AS ATTORNEY-GENERAL OF THE PHIL…

The real question involved in these proceedings is
whether the refusal of the owners and officers of a steam vessel, duly
licensed to engage in the coastwise trade of the Philippine Islands and
engaged in that trade as a common carrier, to accept for carriage
“dynamite, powder or other explosives” from any and all shippers who may
offer such explosives for carriage can be held to be a lawful act
without regard to any question as to the conditions under which such
explosives are offered for carriage, or as to the suitableness of the
vessel for the transportation of such explosives, or as to the
possibility that the refusal to accept such articles of commerce in a
particular case may have the effect of subjecting any person or locality
or the traffic in such explosives to an undue, unreasonable or
unnecessary prejudice or discrimination.

Summarized briefly, the
complaint alleges that plaintiff is a stockholder in the Yangco
Steamship Company, the owner of a large number of steam vessels, duly
licensed to engage in the coastwise trade of the Philippine Islands;
that on or about June 10, 1912, the directors of the company adopted a
resolution which was thereafter ratified and affirmed by the
shareholders of the company, “expressly declaring and providing that the
classes of merchandise to be carried by the company in its business as a
common carrier do not include dynamite, powder or other explosives, and
expressly prohibiting the officers, agents and servants of the company
from offering to carry, accepting for carriage or carrying said
dynamite, powder or other explosives;” that thereafter the respondent
Acting Collector of Customs demanded and required of the company the
acceptance and carriage of such explosives; that he has refused and
suspended the issuance of the necessary clearance documents of the
vessels of the company unless and until the company consents to accept
such explosives for carriage; that plaintiff is advised and believes
that should the company decline to accept such explosives for carriage,
the respondent Attorney-General of the Philippine Islands and the
re¬spondent prosecuting attorney of the city of Manila intend to
institute proceedings under the penal provisions of sections 4, 5, and 6
of Act No. 98 of the Philippine Commission against the company, its
managers, agents and servants, to enforce the requirements of the Acting
Collector of Customs as to the acceptance of such explosives for
carriage; that notwithstanding the demands of the plaintiff stockholder,
the manager, agents and servants of the company decline and refuse to
cease the carriage of such explosives, on the ground that by reason of
the severity of the penalties with which they are threatened upon
failure to carry such explosives, they cannot subject themselves to “the
ruinous consequences which would inevitably result” from failure on
their part to obey the demands and requirements of the Acting Collector
of Customs as to the acceptance for carriage of explosives; that
plaintiff believes that the Acting Collector of Customs erroneously
construes the provisions of Act No. 98 in holding that they require the
company to accept such explosives for carriage notwithstanding the above
mentioned resolution of the directors and stockholders of the company,
and that if the Act does in fact require the company to carry such
explosives it is to that extent unconstitutional and void; that
notwithstanding this belief of complainant as to the true meaning of the
Act, the questions involved cannot be raised by the refusal of the
company or its agents to comply with the demands of the Acting Collector
of Customs, without the risk of irreparable loss and damage resulting
from his refusal to facilitate the documentation of the company’s
vessels, and without assuming a risk of pains and penalties under the
drastic provisions of the Act which prohibit any attempt on the part of
the company to test the questions involved by refusing to accept such
explosives for carriage.

The prayer of the complaint is as
follows:

“Wherefore your petitioner prays to this
honorable court as follows:

“First. That to the due hearing of
the above entitled action be issued a writ of prohibition perpetually
restraining the respondent Yangco Steamship Company, its appraisers,
agents, servants or other representatives from accepting to carry and
from carrying, in steamers of said company dynamite, powder or other
explosive substance, in accordance with the resolution of the board of
directors and of the shareholders of said company.

“Second. That a
writ of prohibition be issued perpetually enjoining the respondent J.
S. Stanley as Acting Collector of Customs of the Philippine Islands, his
successors, deputies, servants or other representatives, from
obligating the said Yangco Steamship Company, by any means whatever, to
carry dynamite, powder or other explosive substance.

“Third. That
a writ of prohibition be issued perpetually  enjoining the respondent
Ignacio Villamor as Attorney-General of the Philippine Islands, and W.
H. Bishop as prosecuting attorney of the city of Manila, their deputies,
representatives or employees, from accusing the said Yangco Steamship
Company, its officers, agents or servants, of the violation of Act No.
98 by reason of the failure or omission of the said company to accept
for carriage or to carry dynamite, powder or other explosive.

“Fourth.
That the petitioner be granted such other remedy as may be meet and
proper.”

To this complaint the respondents demurred,
and we are of opinion that the demurrer must be sustained, on the
ground that the complaint does not set forth facts sufficient to
constitute a cause of action.

It will readily be seen that
plaintiff seeks in these proceedings to enjoin the steamship company
from accepting for carriage on any of its vessels, dynamite, powder or
other explosives, under any conditions whatsoever; to prohibit the
Collector of Customs and the prosecuting officers of the government from
all attempts to compel the company to accept such explosives for
carriage on any of its vessels under any conditions whatsoever; and to
prohibit these officials from any attempt to invoke the penal provisions
of Act No. 98, in any case of a refusal by the company or its officers
so to do; and this without regard to the conditions as to safety and so
forth under which such explosives are offered for carriage, and without
regard also to any question as to the suitableness for the
transportation of such explosives of the particular vessel upon which
the shipper offers them for carriage; and further without regard to any
question as to whether such conduct on the part of the steamship company
and its officers involves in any instance an undue, unnecessary or
unreasonable discrimination to the prejudice of any person, locality or
particular kind of traffic.

There are no allegations in the
complaint that for some special and sufficient reasons all or indeed any
of the company’s vessels are unsuitable for the business of
transporting explosives; or that shippers have declined or will in
future decline to comply with such reasonable regulations and to take
such reasonable precautions as may be necessary and proper to secure the
‘safety of the vessels of the company in transporting such explosives.
Indeed the contention of petitioner is that a common carrier in the
Philippine Islands may decline to accept for carriage any shipment of
merchandise of a class which it expressly or impliedly declines to
accept from all shippers alike, because, as he contends “the duty of a
common carrier to carry for all who offer arises from the public
profession he has made, and is limited by it.”

In support of this
contention counsel cites a number of English and American authorities,
discussing and applying the doctrine of the common law with reference to
common carriers. But it is unnecessary now to decide whether, in the
absence of statute, the principles on which the American and English
cases were decided would be applicable in this jurisdiction. The duties
and liabilities of common carriers in this jurisdiction are defined and
fully set forth in Act No. 98 of the Philippine Commission, and, until
and unless that statute be declared invalid or unconstitutional, we are
bound by its provisions.

Sections 2, 3 and 4 of the Act are as
follows:

“SEC. 2. It shall be unlawful for any common
carrier engaged in the transportation of passengers or property as above
set forth to make or give any unnecessary or unreasonable preference or
advantage to any particular person, company, firm, corporation or
locality, or any particular kind of traffic in any respect whatsoever,
or to subject any particular person, company, firm, corporation or
locality, or any particular kind of traffic, to any undue or
unreasonable prejudice or discrimination whatsoever, and such unjust
preference or discrimination is also hereby prohibited and declared to
be unlawful.

“SEC. 3. No common carrier engaged in the carriage
of passengers or property as aforesaid shall, under any pretense
whatsoever, fail or refuse to receive for carriage, and as promptly as
it is able to do so without discrimination, to carry any person or
property offering for carriage, and in the order in which such persons
or property are offered for carriage, nor shall any such common carrier
enter into any arrangement, contract or agreement with any other person
or corporation whereby the latter is given an exclusive or preferential
privilege over any other person or persons to control or monopolize the
carriage of any class or kind of property to the exclusion or partial
exclusion of any other person or persons, and the entering into any such
arrangement, contract or agreement, under any form or pretense
whatsoever, is hereby prohibited and declared to be unlawful.

“SEC.
4. Any willful violation of the provisions of this Act by any common
carrier engaged in the transportation of passengers or property as
hereinbefore set forth is hereby declared to be punishable by a fine not
exceeding five thousand dollars money of the United States, or by
imprisonment not exceeding two years, or both, within the discretion of
the court.”

The validity of this Act has been questioned on
various grounds, and it is vigorously contended that in so far as it
imposes any obligation on a common carrier to accept for carriage
merchandise of a class which he makes no public profession to carry, or
which he has expressly or impliedly announced his intention to decline
to accept for carriage from all shippers alike, it is ultra vires,
unconstitutional and void.

We may dismiss without extended
discussion any argument or contention as to the invalidity of the
statute based on alleged absurdities inherent in its provisions or on
alleged unreasonable or impossible requirements which may be read into
it by a strained construction of its terms.

We agree with counsel
for petitioner that the provision of the Act which prescribes that, “No
common carrier * * * shall, under any pretense whatsoever, fail or
refuse to receive for carriage, and * * * to carry any person or
property offering for carriage,” is not to be construed in its literal
sense and without regard to the context, so as to impose an imperative
duty on all common carriers to accept for carriage, and to carry all and
any kind of freight which may be offered for carriage without regard to
the facilities which they may have at their disposal. The legislator
could not have intended and did not intend to prescribe that a common
carrier running passenger automobiles for hire must transport coal in
his machines; nor that the owner of a tank steamer, expressly
constructed in small watertight compartments for the carriage of crude
oil must accept a load of cattle or of logs in the rough; nor that any
common carrier must accept and carry contraband articles, such as opium,
morphine, cocaine, or the like, the mere possession of which is
declared to be a criminal offense; nor that common carriers must accept
eggs offered for transportation in paper parcels or any merchandise
whatever so defectively packed as to entail upon the company
unreasonable and unnecessary care or risks.

Read in connection
with its context this, as well as all the other mandatory and
prohibitory provisions of the statute, was clearly intended merely to
forbid failures or refusals to receive persons or property for carriage
involving any “unnecessary or unreasonable preference or advantage to
any particular person, company, firm, corporation or locality, or any
particular kind of traffic in any respect whatsoever,” or which would
“subject any particular person, company, firm, corporation or locality,
or any particular kind of traffic to any undue or unreasonable prejudice
or discrimination whatsoever.”

The question, then, of construing
and applying the statute, in cases of alleged violations of its
provisions, always involves a consideration as to whether the acts
complained of had the effect of making or giving an “unreasonable or
unnecessary preference or advantage” to any person, locality or
particular kind of traffic, or of subjecting any person, locality, or
particular kind of traffic to any undue or unreasonable prejudice or
discrimination.    It is very clear therefore that the language of the
statute itself refutes any contention as to its invalidity based on the
alleged unreasonableness of its mandatory or prohibitory provisions.

So
also we may dismiss without much discussion the contentions as to the
invalidity of the statute, which are based on the alleged excessive
severity of the penalties prescribed for violation of its provisions.
Upon general principles it is peculiarly and exclusively within the
province of the legislator to prescribe the pains and penalties which
may be imposed upon persons convicted of violations of the laws in force
within his territorial jurisdiction. With the exercise of his
discretion in this regard the courts have nothing to do, save only in
cases where it is alleged that excessive fines or cruel and unusual
punishments have been prescribed, and even in such cases the courts will
not presume to interfere in the absence of the clearest and most
convincing argument and proof in support of such contentions. (Weems vs.
United States, 217 U. S., 349; U. S. vs. Pico, 18 Phil. Rep.,
386.) We need hardly add that there is no ground upon which to rest a
contention that the penalties prescribed in the statute under
consideration are either excessive or cruel and unusual, in the sense in
which these terms are used in the organic legislation in force in the
Philippine Islands.

But it is contended that on account of the
penalties prescribed the statute should be held invalid upon the
principles announced in Ex parte Young (209 U. S., 123, 147, 148)
; Cotting vs. Godard (183 U. S., 79, 102) ; Mercantile Trust Co.
vs. Texas Co. (5.1 Fed., 529) ; Louisville Ry. vs. McCord
(103 Fed., 216) ; Cons. Gas Co. vs. Mayer (416 Fed., 150). We
are satisfied however that the reasoning of those cases is not
applicable to the statute under consideration. The principles announced
in those decisions are fairly indicated in the following citations found
in petitioner’s brief:

“But when the legislature, in an
effort to prevent any inquiry of the validity of a particular statute,
so burdens any  challenge thereof in the courts that the party affected
is necessarily constrained to submit rather than take the chances of the
penalties imposed, then it becomes a serious question whether the party
is not deprived of the equal protection of the laws. (Cotting vs.
Godard, 183 U. S., 79, 102.)

“It may therefore be said that when
the penalties for dis-obedience are by fines so enormous and
imprisonment so severe as to intimidate the company and its officers
from resorting to the courts to test the validity of the legislation,
the result is the same as if the law in terms prohibited the company
from seeking judicial construction of laws which deeply affect its
rights.

“It is urged that there is no principle upon which to
base the claim that a person is entitled to disobey a statute at least
once, for the purpose of testing its validity, without subjecting
himself to the penalties for disobedience provided by the statute in
case it is valid. This is not an accurate statement of the case.
Ordinarily a law creating offenses in the nature of misdemeanors or
felonies relates to a subject over which the jurisdiction of the
legislature is complete in any event. In the case, however, of the
establishment of certain rates without any hearing, the validity of such
rates necessarily depends upon whether they are high enough to permit
at least some return upon the investment (how much it is not now
necessary to state), and an inquiry as to that fact is a proper subject
of judicial investigation. If it turns out that the rates are too low
for that purpose, then they are illegal. Now, to impose upon a party
interested the burden of obtaining a judicial decision of such a
question (no prior hearing having ever been given) only upon the
condition that, if unsuccessful, he must suffer imprisonment and pay
fines, as provided in these acts, is, in effect, to close up all
approaches to the courts, and thus prevent any hearing upon the question
whether the rates as provided by the acts are not too low, and
therefore invalid. The distinction is obvious between a case where the
validity of the act depends upon the existence of a fact which can be
determined only after investigation of a very complicated and technical
character, and the ordinary case of a statute upon a subject requiring
no such investigation, and over which the jurisdiction of the
legislature is complete in any event.

“We hold, therefore, that
the provisions of the acts relating to the enforcement of the rates,
either for freight or passsengers, by imposing such enormous fines and
possible imprisonment as a result of an unsuccessful effort to test the
validity of the laws themselves, are unconstitutional on their face,
without regard to the question of the insufficiency of those rates. (Ex
parte Young, 209 U. S., 123, 147, 148.)”

An examination
of the general provisions of our statute, of the circumstances under
which it was enacted, the mischief which it sought to remedy and of the
nature of the penalties prescribed for violations of its terms convinces
us that, unlike the statutes under consideration in the above cited
cases, its enactment involved no attempt to prevent com¬mon carriers
“from resorting to the courts to test the validity of the legislation;”
no “effort to prevent any inquiry” as to its validity. It imposes no
arbitrary obligation upon the company to do or to refrain from doing
anything. It makes no attempt to compel such carriers to do business at a
fixed or arbitrarily designated rate, at the risk of separate criminal
prosecutions for every demand of a higher or a different rate. Its
penalties can be imposed only upon proof of “unreasonable,”
“unnecessary” and “unjust” discriminations, and range from a maximum
which is certainly not excessive for willful, deliberate and
contumacious violations of its provisions by a great and powerful
corporation, to a minimum which may be a merely nominal fine. With so
wide a range of discretion conferred upon the courts, there is no
substantial basis for a contention on the part of any common carrier
that it or its officers are “intimidated from resorting to the courts to
test the validity” of the provisions of the statute prohibiting such
“unreasonable,” “unnecessary” and “unjust” discriminations, or to test
in any particular case whether a given course of conduct does in fact
involve such discrimination. We will not presume, for the purpose of
declaring the statute invalid, that there is so real a danger that the
Courts of First Instance and this court on appeal will abuse the
discretion thus conferred upon us, as to intimidate any common carrier,
acting in good faith, from resorting to the courts to test the validity
of the statute. Legislative enactments, penalizing unreasonable
discriminations, unreasonable restraints of trade, and unreasonable
conduct in various forms of human activity are so familiar and have been
so frequently sustained in the courts, as to render extended discussion
unnecessary to refute any contention as to the invalidity of the
statute under consideration, merely because it imposes upon the carrier
the obligation of adopting one of various courses of conduct open to it,
at the risk of incurring a prescribed penalty in the event that the
course of conduct actually adopted by it should be held to have involved
an unreasonable, unnecessary or unjust discrimination. Applying the
test announced in Ex parte Young, supra, it will be seen
that the validity of the Act does not depend upon “the existence of a
fact which can be determined only after investigation of a very
complicated and technical character,” and that “the jurisdiction of the
legislature” over the subject with which the statute deals “is complete
in any event.” There can be no real question as to the plenary power of
the legislature to prohibit and to penalize the making of undue,
unreasonable and unjust discriminations by common carriers to the
prejudice of any person, locality or particular kind of traffic. (See
Munn vs. Illinois, 94 U. S., 113, and other cases hereinafter
cited in support of this proposition.)

Counsel for petitioner
contends also that the statute, if construed so as to deny the right of
the steamship company to elect at will whether or not it will engage in a
particular business, such as that of carrying explosives, is
unconstitutional “because it is a confiscation of property, a taking of
the carrier’s property without due process of law,” and because it
deprives him of his liberty by compelling him to engage in business
against his will. The argument continues as follows:

“To require
of a carrier, as a condition to his continuing in said business, that he
must carry anything and everything is to render useless the facilities
he may have for the carriage of certain lines of freight. It would be
almost as complete a confiscation of such facilities as if the same were
destroyed. Their value as a means of livelihood would be utterly taken
away. The law is a prohibition to him to continue in business; the
alternative is to get out or to go into some other business—the same
alternative as was offered in the case of the Chicago & N. W. Ry. vs.
Dey (35 Fed. Rep., 866, 880), and which was there commented on as
follows:

” ‘Whatever of force there may be in such
arguments, as applied to mere personal property capable of removal and
use elsewhere, or m” other business, it is wholly without force as
against railroad corporations, so large a proportion of whose investment
is in the soil and fixtures appertaining thereto, which cannot be
removed. For a government, whether that government be a single sovereign
or one of the majority, to say to an individual who has invested his
means in so laudable an enterprise as the construction of a railroad,
one which tends so much to the wealth and prosperity of the community,
that, if he finds that the rates imposed will cause him to do business
at a loss, he may quit business, and abandon that road, is the very
irony of despotism. Apples of Sodom were fruit of joy in comparison.
Reading, as I do, in the preamble of the Federal Constitution, that it
was ordained to “establish justice,” I can never believe that it is
within the power of state or nation thus practically to confiscate the
property of an individual invested in and used for a purpose in which
even the Argus eyes of the police power can see nothing injurious to
public morals, public health, or the general welfare. I read also in the
first section of the bill of rights of this state that “all men are by
nature free and equal, and have certain inalienable rights, among which
are those of enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety
and happiness;” and I know that, while that remains as the supreme law
of the state, no legislature can directly or indirectly lay its
withering or destroying hand on a single dollar invested in the
legitimate business of transportation.’ ” (Chicago & N. W. Ry. vs.
Dey, 35 Fed. Rep., 866, 880.)

It is manifest, however, that
this contention is directed against a construction of the statute,
which, as we have said, is not warranted by its terms. As we have
already indi¬cated, the statute does not “require of a carrier, as a
condition to his continuing in said business, that he must carry
anything and everything,” and thereby “render useless the facilities he
may have for the carriage of certain lines of freight.” It merely
forbids failures or refusals to receive persons or property for carriage
which have the effect of giving an “unreasonable or unnecessary
preference or advantage” to any person, locality or particular kind of
traffic, or of subjecting any person, locality or particular kind of
traffic to any undue or unreasonable prejudice or discrimination.

Counsel
expressly admits that the statute, “as a prohibition against
discrimination is a fair, reasonable and valid exercise of government,”
and that “it is necessary and proper that such discrimination be
prohibited and prevented,” but he contends that “on the other hand there
is no reasonable warrant nor valid excuse for depriving a person of his
liberty by requiring him to engage in business against his will. If he
has a rolling boat, unsuitable and unprofitable for passenger trade, he
may devote it to lumber carrying. To prohibit him from using it unless
it is fitted out with doctors and stewards and staterooms to carry
passengers would be an invalid confiscation of his property. A carrier
may limit his business to the branches thereof that suit his
convenience. If his wagon be old, or the route dangerous, he may avoid
liability for loss of passengers’ lives and limbs by carrying freight
only. If his vehicles require expensive pneumatic tires, unsuitable for
freight transportation, he may nevertheless carry passengers. The only
limitation upon his action that it is competent for the governing
authority to impose is to require him to treat all alike. His
limitations must apply to all, and they must be established limitations.
He cannot refuse to carry a case of red jusi on the ground that
he has carried for others only jusi that was green, or blue, or
black. But he can refuse to carry red jusi, if he has publicly
professed such a limitation upon his business and held himself out as
unwilling to carry the same for anyone.”

To this it is sufficient
answer to say that there is nothing in the statute which would deprive
any person of his liberty “by requiring him to engage in business
against his will.” The prohibitions of the statute against undue,
unnecessary or unreasonable preferences and discriminations are merely
the reasonable regulations which the legislator has seen fit to
prescribe (for the conduct of the business in which the carrier is
engaged of his own free will and accord. In so far as the self-imposed
limitations by the carrier upon the business conducted by him, in the
various examples given by counsel, do not involve an unreasonable or
unnecessary discrimination the statute would not control his action in
any wise whatever. It operates only in cases involving such unreasonable
or unnecessary preferences or discrimi¬nations. Thus in the
hypothetical case suggested by the petitioner, a carrier engaged in the
carriage of green, blue or black jusi, and duly equipped therefor
would manifestly be guilty of “giving an unnecessary and unreasonable
preference to a particular kind of traffic” and of subjecting to “an
undue and unreasonable prejudice a particular kind of traffic,” should
he decline to carry red jusi, to the prejudice of a particular
shipper or of those engaged in the manufacture of that kind of jusi,
basing his refusal on the ground of “mere whim or caprice” or of mere
personal convenience. So a public carrier of passengers would not be
permitted under this statute to absolve himself from liability for a
refusal to carry a Chinaman, a Spaniard, an American, a Filipino, or a mestizo
by proof that from “mere whim or caprice or personal scruple,” or to
suit his own convenience, or in the hope of increasing his business and
thus making larger profits, he had publicly announced his intention not
to carry one or other of these classes of passengers.

The nature
of the business of a common carrier as a public employment is such that
it is clearly within the power of the state to impose such just and
reasonable regulations thereon in the interest of the public as the
legislator’ may deem proper. Of course such regulations must not have
the effect of depriving an owner of his property without due process of
law, nor of confiscating or appropriating private property without just
compensation, nor of limiting or prescribing irrevocably vested rights
or privileges lawfully acquired under a charter or franchise. But aside
from such constitutional limitations, the determination of the nature
and extent of the regulations which should be prescribed rests in the
hands of the legislator.

Common carriers exercise a sort of
public office’, and have duties to perform in which the public is
interested. Their business is, therefore, affected with a public
interest, and is subject of public regulation. (New Jersey Steam Nav.
Co. vs. Merchants Bank, 6 How., 344, 382; Munn vs.
Illinois, 94 U. S., 113, 130.) Indeed, this right of regulation is so
far beyond question that it is well settled that the power of the state
to exercise legislative control over railroad companies and other
carriers “in all respects necessary to protect the public against
danger, injustice and oppression” may be exercised through boards of
commissioners. (New York etc. R. Co. vs. Bristol, 151 U. S., 556,
571; Connecticut etc. R. Co. vs. Woodruff, 153 U. S., 689.)

Regulations
limiting the number of passengers that may be carried in a particular
vehicle or steam vessel, or forbidding the loading of a vessel beyond a
certain point, or prescribing the number and qualifications of the
personnel in the employ of a common carrier, or forbidding unjust
discrimination as to rates, all tend to limit and restrict his liberty
and to control to some degree the free exercise of his discretion in the
conduct of his business.  But since the Granger cases were decided by
the Supreme Court of the United States no one questions the power of the
legislator to prescribe such reasonable regulations upon property
clothed with a public interest as he may deem expedient or necessary to
protect the public against danger, injustice or oppression. (Munn vs.
Illinois, 94 U. S., 113, 130; Chicago etc. R. Co. vs. Cutts, 94
U. S., 155; Budd vs. New York, 143 U. S., 517; Cotting vs.
Godard, 183 U. S., 79.) The right to enter the public employment as a
common carrier and to offer one’s services to the public for hire does
not carry with it the right to conduct that business as one pleases,
without regard to the interests of the public and free from such
reasonable and just regulations as may be prescribed for the protection
of the public from the reckless or careless indifference of the carrier
as to the public welfare and for the prevention of unjust and
unreasonable discrimination of any kind whatsoever in the performance of
the carrier’s duties as a servant of the public.

Business of
certain kinds, including the business of a common carrier, holds such a
peculiar relation to the public interest that there is superinduced upon
it the right of public regulation. (Budd vs. New York, 143 U.
S., 517, 533.) When private property is “affected with a public interest
it ceases to be juris privati only.” Property becomes clothed
with a public interest when used in a manner to make it of public
consequence and affect the community at large. “When, therefore, one
devotes his property to a use in which the public has an interest, he,
in effect, grants to the public an interest in that use, and must submit
to be controlled by the public for the common good, to the extent of
the interest he has thus created. He may withdraw his grant by
discontinuing the use, but so long as he maintains the use he must
submit to control.” (Munn vs. Illinois, 94 U. S., 113; Georgia R.
& Bkg. Co. vs. Smith, 128 U. S., 174; Budd vs. New
York, 143 U. S., 517; Louisville etc. Ry. Co. vs. Kentucky, 161
U. S., 677, 695.)

Of course this power to regulate is not a power
to destroy, and limitation is not the equivalent of confiscation. Under
pretense of regulating fares and freight the state can not require a
railroad corporation to carry persons or property without reward. Nor
can it do that which in law amounts to a taking of private property for
public use without just compensation, or without due process of law.
(Chicago etc. R. Co. vs. Minnesota, 134 U. S., 418; Minneapolis
Eastern R. Co. vs. Minnesota, 134 U. S., 467.) But the judiciary
ought not to interfere with regulations established under legislative
sanction unless they are so plainly and palpably unreasonable as to make
their enforcement equivalent to the taking of property for public use
without such compensation as under all the circumstances is just both to
the owner and to the public, that is, judicial interference should
never occur unless the case presents, clearly and beyond all doubt, such
a flagrant attack upon the rights of property under the guise of
regulations as to compel the court to say that the regulation in
question will have the effect to deny just compensation for private
property taken for the public use. (Chicago etc. R. Co. vs.
Wellman, 143 U. S., 339; Smyth vs. Ames, 169 U. S., 466, 524;
Henderson Bridge Co. vs. Henderson City, 173 U. S., 592, 614.)

Under
the common law of England it was early recognized that common carriers
owe to the public the duty, of carrying indifferently for all who may
employ them, and in the order in which application is made, and without
discrimination as to terms. True, they were allowed to restrict their
business so as to exclude particular classes of goods, but as to the
kinds of property which the carrier was in the habit of carrying in the
prosecution of his business he was bound to serve all customers alike
(State vs. Cincinnati etc. R. Co., 47 Ohio St., 130, 134, 138;
Louisville etc. Ry. Co. vs. Queen City Coal Co., 13 Ky. L. Rep.,
832); and it is to be observed in passing that these common law rules
are themselves regulations controlling, limiting and prescribing the
conditions under which common carriers were permitted to conduct their
business. (Munn vs. Illinois, 94 U. S., 113,133.)

It was
found, in the course of time, that the correction of abuses which had
grown up with the enormously increasing business of common carriers
necessitated the adoption of statutory regulations controlling the
business of common carriers, and imposing severe and drastic penalties
for violations of their terms. In England, the Railway Clauses
Consolidation Act was enacted in 1845, the Railway and Canal Traffic Act
in 1854, and since the passage of those Acts much additional
legislation has been adopted tending to limit and control the conduct of
their business by common carriers. In the United States, the business
of common carriers has been subjected to a great variety of statutory
regulations. Among others Congress enacted “The Interstate Commerce Act”
(1887) and its amendments, and the Elkins Act as amended (1906) ; and
most if not all of the States of the Union have adopted similar
legislation regulating the business of common carriers within their
respective jurisdictions. Unending litigation has arisen under these
statutes and their amendments, but nowhere has the right of the state to
prescribe just and reasonable regulations controlling and limiting the
conduct of the business of common carriers in the public interest and
for the general welfare been successfully challenged, though of course
there has been wide divergence of opinion as to the reasonableness, the
validity and legality of many of the regulations actually adopted.

The
power of the Philippine legislator to prohibit and to penalize all and
any unnecessary or unreasonable dis-criminations by common carriers may
be maintained upon the same reasoning which justified the enactment by
the Parliament of England and the Congress of the United States of the
above mentioned statutes prohibiting and penalizing the granting of
certain preferences and dis-criminations in those countries. As we have
said before, we find nothing confiscatory or unreasonable in the
conditions imposed in the Philippine statute” upon the business of
common carriers. Correctly construed they do not force him to engage in
any business against his will or to make use of his facilities in a
manner or for a purpose for which they are not reasonably adapted. It is
only when he offers his facilities as a common carrier to the public
for hire, that the statute steps in and prescribes that he must treat
all alike, that he may not pick and choose which customer he will serve,
and, specifically, that he shall not make any undue or unreasonable
preferences or discriminations whatsoever to the prejudice not only of
any person or locality but also of any particular kind of traffic.

The
legislator having enacted a regulation prohibiting common carriers from
giving unnecessary or unreasonable preferences or advantages to any
particular kind of traffic or subjecting any particular kind of traffic
to any undue or unreasonable prejudice or discrimination whatsoever, it
is clear that whatever may have been the rule at the common law, common
carriers in this jurisdiction cannot lawfully decline to accept a
particular class of goods for carriage, to the prejudice of the traffic
in those goods, unless it appears that for some sufficient reason the
discrimination against the traffic in .such goods is reasonable and
necessary. Mere whim or prejudice will not suffice. The grounds for the
discrimination must be substantial ones, such as will justify the courts
in holding the discrimination to have been reasonable and necessary
under all the circumstances of the case.

The prayer of the
petition in the case at bar cannot be granted unless we hold that the
refusal of the defendant steamship company to accept for carriage on any
of its vessels “dynamite, gunpowder or other explosives” would in no
instance involve a violation of the provisions of this statute. There
can be little doubt, however, that cases may and will arise wherein the
refusal of a vessel “engaged in the coastwise trade of the Philippine
Islands as a common carrier” to accept such explosives for carriage
would subject some person, company, firm or corporation, or locality, or
particular kind of traffic to a certain prejudice or dis-crimination.
Indeed it cannot be doubted that the refusal of a “steamship company,
the owner of a large number of vessels” engaged in that trade to receive
for carriage any such explosives on any of its vessels would subject
the traffic in such explosives to a manifest prejudice and
discrimination. The only question to be determined therefore is whether
such prejudice or discrimination might in any case prove to be undue,
unnecessary or unreasonable.

This of course is, in each case, a
question of fact, and we are of opinion that the facts alleged in the
complaint are not sufficient to sustain a finding in favor of the
contentions of the petitioner. It is not alleged in the complaint that
“dynamite, gunpowder and other explosives” can in no event be
transported with reasonable safety on board steam vessels engaged in the
business of common carriers. It is not alleged that all, or indeed any
of the defendant steamhip company’s vessels are unsuited for the
carriage of such explosives. It is not alleged that the nature of the
business in which the steamship company is engaged is such, as to
preclude a finding that a refusal to accept such explosives on any of
its vessels would subject the traffic in such explosives to an undue and
unreasonable prejudice and discrimination.

Plaintiff’s
contention in this regard is as follows:

“In the present
case, the respondent company has expressly and publicly renounced the
carriage of explosives, and expressly excluded the same in terms from
the business it conducts. This in itself were sufficient, even though
such exclusion of explosives were based on no other ground than the mere
whim, caprice or personal scruple of the carrier. It is unnecessary,
however, to indulge in academic discussion of a moot question, for the
decision not to carry explosives rests on substantial grounds which are
self-evident.”

We think however that the answer to the
question whether such a refusal to carry explosives involves an
unnecessary or unreasonable preference or advantage to any person,
locality or particular kind of traffic or subjects any person, locality
or particular kind of traffic to an undue or unreasonable prejudice or
discrimination is by no means “self-evident,” and that it is a question
of fact to be determined by the particular circumstances of each case.

The
words “dynamite, powder or other explosives” are broad enough to
include matches, and other articles of like nature, and may fairly be
held to include also kerosene oil, gasoline and similar products of a
highly inflammable and explosive character. Many of these articles of
merchandise are in the nature of necessities in any country open to
modern progress and advancement. We are not fully advised as to the
methods of transportation by which they are made commercially available
throughout the world, but certain it is that dynamite, gunpowder,
matches, kerosene oil and gasoline are transported on many vessels
sailing the high seas. Indeed it is matter of common knowledge that
common carriers throughout the world transport enormous quantities of
these explosives, on both land and sea, and there can be little doubt
that a general refusal of the common carriers in any country to accept
such explosives for carriage would involve many persons, firms and
enterprises in utter ruin, and would disastrously affect the interests
of the public and the general welfare of the community.

It would
be going far to say that a refusal by a steam vessel engaged in the
business of transporting general merchandise as a common carrier to
accept for carriage a shipment of matches, solely on the ground of the
dangers incident to the explosive quality of this class of merchandise,
would not subject the traffic in matches to an unnecessary, undue or
unreasonable prejudice or discrimination without proof that for some
special reason the particular vessel is not fitted to carry articles of
that nature. There may be and doubtless are some vessels engaged in
business as common carriers of merchandise, which for lack of suitable
deck space or storage rooms might be justified in declining to carry
kerosene oil, gasoline, and similar products, even when offered for
carriage securely packed in cases; and few vessels are equipped to
transport those products in bulk. But in any case of a refusal to carry
such products which would subject any person, locality or the traffic in
such products to any prejudice or discrimination whatsoever, it would
be necessary to hear evidence before making an affirmative finding that
such prejudice or discrimination was or was not unnecessary, undue or
unreasonable. The making of such a finding would involve a consideration
of the suitability of the vessel for the transportation of such
products; the reasonable possibility of danger or disaster resulting
from their transportation in the form and under the conditions in which
they are offered for carriage; the general nature of the business done
by the carrier and, in a word, all the attendant circumstances which
might affect the question of the reasonable necessity for the refusal by
the carrier to undertake the transportation of this class of
merchandise.

But it is contended that whatever the rule may be as
to other explosives, the exceptional power and violence of dynamite and
gunpowder in explosion will always furnish the owner of a vessel with a
reasonable excuse for his failure or refusal to accept them for
carriage or to carry them on board his boat. We think however that even
as to dynamite and gunpowder we would not be justified in making such a
holding unaided by evidence sustaining the proposition that these
articles can never be carried with reasonable safety on any vessel
engaged in the business of a common carrier. It is said that dynamite is
so erratic and uncontrollable in its action that it is impossible to
assert that it can be handled with safety in any given case. On the
other hand it is contended that while this may be true of some kinds of
dynamite, it is a fact that dynamite can be and is manufactured so as to
eliminate any real danger from explosion during transportation. These
are of course questions of fact upon which we are not qualified to pass
judgment without the assistance of expert witnesses who have made
special studies as to the chemical composition and reactions of the
different kinds of dynamite, or attained a thorough knowledge of its
properties as a result of wide experience in its manufacture and
transportation.

As we construe the Philippine statute, the mere
fact that violent and destructive explosions can be obtained by the use
of dynamite under certain conditions would not be sufficient in itself
to justify the refusal of a vessel, duly licensed as a common carrier of
merchandise, to accept it for carriage, if it can be proven that in the
condition in which it is offered for carriage there is no real danger
to the carrier, nor reasonable ground to fear that his vessel or those
on board his vessel will be exposed to unnecessary and unreasonable risk
in transporting it, having in mind the nature of his business as a
common carrier engaged in the coastwise trade in the Philippine Islands,
and his duty as a servant of the public engaged in a public employment.
So also, if by the exercise of due diligence and the taking of
reasonable precautions the danger of explosions can be practically
eliminated, the carrier would not be justified in subjecting the traffic
in this commodity to prejudice or discrimination by proof that there
would be a possibility of danger from explosion when no such precautions
are taken.

The traffic in dynamite, gunpowder and other
explosives is vitally essential to the material and general welfare of
the people of these Islands. If dynamite, gunpowder and other explosives
are to continue in general use throughout the Philippines, they must be
transported by water from port to port in the various islands which
make up the Archipelago. We are satisfied therefore that the refusal by a
particular vessel, engaged as a common carrier of merchandise in the
coastwise trade of the Philippine Islands, to accept any or all of these
explosives for carriage would constitute a violation of the
prohibitions against discrimi¬nations penalized under the statute,
unless it can be shown by affirmative evidence that there is so real and
substantial a danger of disaster necessarily involved in the carriage
of any or all of these articles of merchandise as to render such refusal
a due or a necessary or a reasonable exercise of prudence and
discretion on the part of the shipowner.

The complaint in the
case at bar lacking the necessary allegations under this ruling, the
demurrer must be sustained on the ground that the facts alleged do not
constitute a cause of action.

A number of interesting questions
of procedure are raised and discussed in the briefs of counsel. As to
all of these questions we expressly reserve our opinion, believing as we
do that in sustaining the demurrer on the grounds indicated in this
opinion we are able to dispose of the real issue involved in the
proceedings without entering upon the discussion of the nice questions
which it might have been necessary to pass upon had it appeared that the
facts alleged in the complaint constitute a cause of action.

We
think, however, that we should not finally dispose of the case without
indicating that since the institution of these proceedings the enactment
of Acts No. 2307 and No. 2362 (creating a Board of Public Utility
Commissioners and for other purposes) may have materially modified the
right to institute and maintain such proceedings in this jurisdiction.
But the demurrer having been formally submitted for judgment before the
enactment of these statutes, counsel have not been heard in this
connection. We therefore refrain from any comment upon any questions
which might be raised as to whether or not there may be another adequate
and appropriate remedy for the alleged wrong set forth in the
complaint. Our disposition of the question raised by the demurrer
renders that unnecessary at this time, though it may not be improper to
observe that a careful examination of those acts confirms us in the
holding upon which we base our ruling on this demurrer, that is to say
“That whatever may have been the rule at the common law, common carriers
in this jurisdiction cannot lawfully decline to accept a particular
class of goods for carriage, to the prejudice of the traffic in those
goods, unless it appears that for some sufficient reason the
discrimination against the traffic in such goods is reasonable and
necessary. Mere prejudice or whim will not suffice. The grounds  of the
discrimination must be  substantial ones, such as will justify the
courts in holding the dis-crimination to have been reasonable and
necessary under all the circumstances of the case.”

Unless an
amended complaint be filed in the meantime, let judgment be entered ten
days hereafter sustaining the demurrer and dismissing the complaint with
costs against the complainant, and twenty days thereafter let the
record be filed in the archives of original actions in this court. So
ordered.

Arellano, C. J., and Trent, J. concur.
Torres
and Johnson, JJ., concur in the result.

---

CONCURRING

MORELAND, J.,

I may briefly
say, although the nature of the action is stated at length in the
foregoing opinion, that it is an action by a shareholder of the Yangco
Steamship Co. against the company itself and certain officials of the
Insular Government for an injunction against the company prohibiting it
from carrying dynamite on its ships and preventing the defendant
officials from compelling the company to do so under Act No. 98.

A
demurrer was filed to the complaint raising the question not only of
its sufficiency in general, but putting in issue also the right of the
plaintiff to maintain the action under the allegations of his complaint.

It
should be noted that all of the boats of the defendant company, under
the allegations of the complaint, are boats which carry passengers
as well as freight, and that the holding of the opinion which I am
discussing compels passenger ships to carry dynamite and all
other high explosives when offered for shipment. (See paragraph 3 of the
complaint.)

I base my opinion for a dismissal of the complaint
on the ground that the plaintiff has not alleged in his complaint a
single one of the grounds, apart from that of being a stockholder,
necessary for him to allege to maintain a share-holder’s action.

In
the case of Hawes vs. Oakland (104 U. S., 450), it was said
relative to the right of a stockholder to bring an action which should
regularly be brought by the company of which he is a stockholder:

“We
understand that doctrine to be that, to enable a stockholder in a
corporation to sustain in a court of equity in his own name, a suit
founded on a right of action existing in the corporation itself, and in
which the corporation itself is the appropriate plaintiff, there must
exist as the foundation of the suit:

“Some action or threatened
action of the managing board of directors or trustees of the
corporation, which is beyond the authority conferred on them by their
charter or other source of organization;

“Or such a fraudulent
transaction, completed or contemplated by the acting managers, in
connection with some other party, or among themselves, or with other
shareholders as will result in serious injury to the corporation, or to
the interest of the other shareholders; “Or where the board of
directors, or a majority of them, are acting for their own interest, in a
manner destructive of the corporation itself, or of the rights of the
other shareholders;

“Or where the majority of shareholders
themselves are oppressively and illegally pursuing a course in the name
of the corporation, which is in violation of the rights of the other
shareholders, and which can only be restrained by the aid of a court of
equity.” It was also said: “In this country the cases outside of the
Federal Courts are not numerous, and while they admit the right of a
stockholder to sue in cases where the corporation is the proper party to
bring the suit, they limit this right to cases where the directors
are guilty of a fraud or a breach of trust, or are proceeding ultra
vires.“

Further on in the same case we find: “Conceding
appellant’s construction of the company’s charter to be correct, there
is nothing which forbids the corporation from dealing with the city in
the manner it has done.  That city conferred on the company valuable
rights by special ordinance; namely, the use of the streets for the
laying of its pipes, and the privilege of furnishing water to the whole
population. It may be the exercise of the highest wisdom, to let the
city use the water in the manner complained of.  The directors are
better able to act understanding on this subject than a stockholder
residing in New York. The great body of the stockholders residing in
Oakland or other places in California may take this view of it, and be
content to abide by the action of their directors.”

This case is
conclusive of the right of the plaintiff in the case at bar to maintain
the action. The complaint is devoid of allegations necessary to sustain a
complaint by a shareholder.

The contention of the plaintiff
based upon the case of Ex parte Young (209 U. S. 123) is not
sustained by that case. The decision there requires precisely the same
allegations in the complaint as does the case of Hawes vs.
Oakland. Not one of those allegations appears in the complaint in the
case at bar except the allegation that the plaintiff is a stockholder.

Indeed,
not only does the complaint lack allegations essential to its
sufficiency, but it contains allegations which affirmatively show the
plaintiff is not entitled to maintain the action. I do not stop to
enumerate them all. I call attention to one only, namely the allegation
that the company, by its authorized officials, has acted in strict
conformity with the plaintiff’s wishes and has refused to accept
dynamite for carriage. This allegation shows that the plaintiff has been
able to obtain his remedy and accomplish his purpose within the
corporation itself, and it is sufficient, therefore, under the case of
Hawes vs. Oakland and that of Ex parte Young, to require
that the demurrer be sustained.

I am opposed to a decision of
this case on the merits.

In the first place, there has been no
adequate discussion of the merits by the parties. Substantially all of
the brief of the government was devoted to what may be called the
technical defects of the complaint, such as I have referred to above.
Indeed, it is doubtful if any portion of the brief can be said to be
directly a discussion of the merits.

In the second place, there
is no real case pending in this court. It is clear from the complaint
that the case is a collusive one (not in any improper sense) between the
plaintiff and defendant company. There is no reason found in the
complaint why the company should not have brought the action itself,
every member of the board of directors and every stockholder, according
to the allegations of the complaint, being in absolute accord with the
contentions of the plaintiff on the proposition that the company should
not carry dynamite, and having passed unanimously resolutions to. that
effect. Moreover, there has been no violation of Act No. 98. No shipper,
or any other person, has offered dynamite to the defendant company for
shipment, and, accordingly, the defendant company has not refused to
accept dynamite for carriage. Nor have the defendant government
officials begun proceedings, or threatened to bring proceedings, against
the defendant company in any given case. According to the allegations
of the complaint, the parties are straw parties and the case a straw
case.

In the third place, Act No. 98, under which this proceeding
is brought and under which, it is, alleged, the defendant public
officers are threatening to enforce, has been repealed, in so far as it
affects public service corporations, by Act No. 2307, as amended by Act
No. 2362. More than that; not only has the law been repealed, but
proceedings of this character have been placed, in the first instance,
under the exclusive jurisdiction of the Board of Public Utilities. I am
unable to see why this court should, under the facts of this case,
undertake to render a decision on the merits when the Act under which it
is brought has been repealed and the jurisdiction to render a decision
on the subject matter involved has been turned over to another body. As I
have said before, it was unnecessary to a decision of this case to
touch the merits in any way; and I am opposed to an attempt to lay down a
doctrine on a subject which is within the exclusive jurisdiction of
another body created by law expressly for the purpose of removing such
cases as this from the jurisdiction of the courts.

I am of the
opinion that the complaint should be dismissed, but upon grounds apart
from the merits. If the merits of the case were alone to govern, I
should be distinctly in favor of the plaintiff’s contention so far as it
relates to the carriage of dynamite on ships carrying passengers; and,
while I am opposed to a decision on the merits of this case,
nevertheless, the merits having been brought into the case by the
opinion of some of my brethren, I desire to refer briefly to the
jurisprudence of the subject.

So far as my researches go, the
proposition that passenger boats must carry dynamite and other
high explosives is without support in the decisions of any English
speaking country. I have been unable to find a case anywhere which lays
down such a doctrine. Indeed, I have been unable to find a case which
holds that freight boats must carry dynamite or other high
explosives. Every case that I have been able to find states a contrary
doctrine; and neither in courts nor in text books is there even a hint
supporting the contention of my brethren. The opinion cites no
authorities to support it; and I am constrained to believe that, in an
opinion so elaborately written, cases to support its thesis would have
been cited if any such existed.

On page 372, Vol. 6 of Cyc, will
be found the following: “Common carriers owe to the public the duty of
carrying indifferently for all who may employ them, and in the order in
which the application is made, and without discrimination as to terms.
They may, however, restrict their business so as to exclude particular
classes of goods, and they are not bound to receive dangerous articles,
such as nitroglycerine, dynamite, gunpowder, oil of vitriol, matches,
etc.”

In the case of California Powder Works vs. Atlantic
and Pacific U. R. Co. (113 Cal., 329), it was said: “Nor are the
exemptions contained in the contract of the shipping order void for lack
of consideration.  The defendant was not obliged to receive and
transport the powder at all. A common carrier is not bound to receive * *
* dangerous articles, as nitro-glycerine, dynamite, gunpowder, aqua
fortis, oil of vitriol, matches, etc.”

This, so far as I can
learn, is the universal doctrine. The California case is reproduced in
36 L. R. A., 648 and has appended to it a note. It is well known that
the L. R. A. cites in its notes all of the cases reasonably obtainable
relative to the subject matter of the case which it annotates. The note
in L. R. A. with reference to the California case cites a considerable
number of authorities holding that a carrier of goods is not
obliged to receive dynamite or other dangerous explosives for carriage.
It does not cite or refer to a case which holds the contrary.

The
reporter of L. R. A., at the beginning of the note with reference to
the California case, says: “The law upon this question is to be drawn
from inference or from dicta rather than from decided cases.
California Powder Works vs. Atlantic & Pacific R. R. Co.
seems to be the first case to have squarely decided that the carrier is
not bound to transport dangerous articles, although there has been what
may be regarded as a general understanding that such is the fact.”

In
Hutchinson on Carriers (sec. 145), it is said, relative to the
necessity of a carrier receiving for carriage dynamite or other
dangerous explosives: “He may, for instance, lawully refuse to receive
them (the goods) if they are improperly packed or if they are otherwise
in an unfit condition for carriage. Or he may show that the goods
offered were of a dangerous character, which might subject him or his
vehicle, or strangers or his passengers, or his other freight, to the
risk of injury.”

In a note to the text the author says: “Nor is
he bound to accept such articles as nitro-glycerine, dynamite,
gun-powder, oil of vitriol and the like.”

In Elliott on Railroads
(vol. 4, p. 151), appears the following: “Again, goods may properly be
refused which are tendered in an unfit condition for transportation, or
which are dangerous, or which are reasonably believed to be dangerous.”

In
the case of Boston & Albany Railroad Co. vs. Shanly (107
Mass., 568), the court said at page 576: “Both the dualin and the
exploders are thus alleged to be explosive and dangerous articles. Each
of them was sent without giving notice of its character to the
plaintiffs, and they were ignorant in respect to it. The rule of law on
this subject is in conformity with the dictates of common sense and
justice, and is well established. One who has in his possession a
dangerous article, which he desires to send to another, may send it by a
common carrier if he will take it; but it is his duty to give
him notice of its character, so that he may either refuse to take it,
or be enabled, if he takes it, to make suitable provision against the
danger.”

This case cites three English cases as follows, Williams
vs. East India Co. (3 East, 192) ; Brass vs. Maitland (6
El. & Bl. 470) ; Farrant vs. Barnes (11 C. B. [N. S.], 553).

In
the case of Porcher vs. Northeastern R. Co. (14 Rich. L., 181),
the court quoted with approval the following from Story on Bailments:
“If he (the carrier) refuses to take charge of the goods because his
coach is full or because they are of a nature which will at the time
expose them to extraordinary danger or to popular rage, or
because he has no convenient means of carrying such goods with security,
etc., these will furnish reasonable grounds for his refusal, and
will, if true, be a sufficient legal defense to a suit for the
noncarriage of the goods.”

In the case of Fish vs. Chapman
(2 Ga., 349), the court said: “A common carrier is bound to convey the
goods of any person offering to pay his hire, unless his carriage be
already full, or the risk sought to be imposed upon him extraordinary,
or unless the goods be of a sort which he cannot convey or is not in
the habit of conveying.”

In the case of Farrant vs.
Barnes, above cited, the court said that the shipper “knowing the
dangerous character of the article and omitting to give notice of it to
the carrier so that he might exercise his discretion as to whether he
would take it or not was guilty of a clear breach of duty.”

To
the same effect, generally, are Jackson vs. Rogers (2 Show.,
327); Riley vs. Home (5 Bing., 217) ; Lane vs. Cotton (1 Ld.
Raym., 646); Edwards vs. Sherratt (1 East, 604) ; Batson vs.
Donovan (1 Barn. & Aid., 32; 2 Kent, 598); Elsee vs. Gatward
(5 T. R., 143) ; Dwight vs. Brewster (1 Pick., 50) ; Jencks vs.
Coleman (2 Sumn., 221) ; Story on Bail., 322, 323; Patton vs.
Magrath (31 Am. Dec, 552).

In Story on Bailments (sec. 508), is
found the following: “If a carrier refuses to take charge of goods
because his coach is full; or because the goods are of a nature which
will at the time expose them to extraordinary danger; * * * these
will furnish reasonable grounds for his refusal; and will, if true, be a
sufficient legal defense to a suit for the noncarriage of the goods.”

It
will be noted that all of these cases holding that a common carrier is
not obliged to receive a dangerous substance, such as dynamite and other
high explosives, refer exclusively to carriers of merchandise
and not to carriers of passengers. If the authorities are uniform
in holding that companies carrying freight are not obliged to accept
dangerous explosives for carriage, there can be no question as to what
the rule would be with reference to a carrier of passengers.

Far
from requiring passenger boats to accept dynamite and other high
explosives for carriage, the attitude of the people of the United States
and of various States is shown by their statutes. The laws of the
United States and of many of the States prohibit passengers boats and
passenger trains from carrying dangerous explosives. Sections 232, 233,
234, 235 and 236 of the Criminal Code of the United States (Compiled
Stat., 1901), read:

“SEC. 232. It shall be unlawful to
transport, carry, or convey, any dynamite, gunpowder, or other
explosive, between a place in a foreign country and a place within or
subject to the jurisdiction of the United States, or between a place in
any State, Territory, or District of the United States, or place
noncontiguous to but subject to the jurisdiction thereof, and a place in
any other State, Territory, or District of the United States, or place
noncontiguous to but subject to the jurisdiction thereof, on any vessel
or vehicle of any description operated by a common carrier, which vessel
or vehicle is carrying passengers for hire:    *    *    *.

“SEC.
233. The Interstate Commerce Commission shall formulate regulations for
the safe transportation of explosives, which shall be binding upon all
common carriers engaged in interstate or foreign commerce which
transport explosives by land. Said commission, of its own motion, or
upon application made by any interested party, may make changes or
modifications in such regulations, made desirable by new information or
altered conditions. Such regulations shall be in accord with the best
known practicable means for securing safety in transit, covering the
packing, marking, loading, handling while in transit, and the
precautions necessary to determine whether the material when offered is
in proper condition to transport.

“Such regulations, as well as
all changes or modifications thereof, shall take effect ninety days
after their formulation and publication by said commission and shall be
in effect until reversed, set aside, or modified.

“SEC. 234. It
shall be unlawful to transport, carry, or convey, liquid nitroglycerin,
fulminate in bulk in dry condition, or other like explosive, between a
place in a foreign country and a place within or subject to the
jurisdiction of the United States, or between a place in one State,
Territory, or District of the United States, or place noncontiguous to
but subject to the jurisdiction thereof, and a place in any other State,
Territory, or District of the United States, or place noncontiguous to
but subject to the jurisdiction thereof, on any vessel or vehicle of any
description operated by a common carrier in the transportation of
passengers or articles of commerce by land or water.

“SEC. 235.
Every package containing explosives or other dangerous articles when
presented to a common carrier for shipment shall have plainly marked on
the outside thereof the contents thereof; and it shall be unlawful for
any person to deliver, or cause to be delivered, to any common carrier
engaged in interstate or foreign commerce by land or water, for
interstate or foreign transportation, or to carry upon any vessel or
vehicle engaged in interstate or foreign transportation, any explosive,
or other dangerous article, under any false or deceptive marking,
description, invoice, shipping order, or other declaration, or without
informing the agent of such carrier of the true character thereof, at or
before the time such delivery or carriage is made. Whoever shall
knowingly violate, or cause to be violated, any provision of this
section, or of the three sections last preceding, or any regulation made
by the Interstate Commerce Commission in pursuance thereof, shall be
fined not more than two thousand dollars, or imprisoned not more than
eighteen months, or both.

“SEC. 236. When the death or bodily
injury of any person is caused by the explosion of any article named in
the four sections last preceding, while the same is being placed upon
any vessel or vehicle to be transported in violation thereof, or while
the same is being so transported, or while the same is being removed
from such vessel or vehicle, the person knowingly placing, or aiding or
permitting the placing, of such articles upon any such vessel or
vehicle, to be so transported, shall be imprisoned not more than ten
years.”

Human ingenuity has been continuously exercised for
ages to make sea travel safe, that men might sail the seas with as
little risk as possible; that they might rely upon the quality of the
ship and the character and experience of the sailors who manned her;
that they might feel that the dangers of the deep had been reduced to
the minimum. Not only this; the abilities of legislators have been taxed
to the same end; to frame laws that would ensure seaworthy ships, safe
appliances, and reliable officers and crews; to curb the avarice of
those who would subordinate the safety of passengers to a desire for
freight; and to so regulate travel by sea that all might safely confide
their property and their lives to the ships sailing under the flag of
their country. Can a decision which requires passenger ships to carry
dynamite and all high explosives be made to harmonize with this purpose?
What is there in the Philippine Islands to justify the requirement that
passenger ships carry dynamite, while in the United States the carrying
of dynamite by passenger ships is a crime? Why should passengers in the
Philippine Islands be subjected to conditions which are abhorrent in
the United States? Why compel shipowners in the Philippine Islands to
perform acts which, if done in the United States, would send them to the
penitentiary?

I do not believe that we should require passengers
to travel on ships carrying, perhaps, many tons of nitroglycerine,
dynamite or gunpowder in their holds; nor do I believe that any public
official should do anything calculated to add to the calamity of fire,
collision, or shipwreck the horrors of explosion.

---

DISSENTING

ARAULLO, J.,

I do not agree
with the decision of the majority of this court in this case, first,
because one of the grounds of the demurrer to the complaint—the first
one—is that of lack of legal capacity to sue on the part of the
plaintiff and nothing is said in the decision regarding this very
important point. It is one which ought to have received special
attention, even before the other alleged in the demurrer that the
complaint does not state facts sufficient to constitute a cause of
action, and the only one that received any consideration in the decision
in question. Second, because notwithstanding that in the decision no
consideration was paid to the alleged lack of legal capacity on the part
of the plaintiff, he is, by reason of the demurrer being sustained,
authorized to present an amended complaint within ten been given without
an express finding that such capacity on the part of said plaintiff was
not lacking.

Demurrer
sustained and complaint ordered dismissed unless an amended complaint be
filed.

---

CARSON, J.:

This case is again
before us upon a demurrer interposed by the respondent officials of the
Philippine Government to an amended complaint filed after publication
of our decision sustaining the demurrer to the original complaint.

In
our former opinion, entered November 5, 1914, we sustained the demurrer
on the ground that the original complaint did not set forth facts
sufficient to constitute a cause of action. In that decision we held
that the statute (Act No, 98) the validity of which was attacked by
counsel for plaintiff was, when rightly construed, a valid and
constitutional enactment, and ruled:

“That whatever may
have been the rule at the common law, common carriers in this
jurisdiction cannot lawfully decline to accept a particular class of
goods for carriage, to the prejudice of the traffic in those goods,
unless it appears that for some sufficient reason the discrimination
against the traffic in such goods is reasonable and necessary. Mere
prejudice or whim will not suffice. The grounds of the discrimination
must be substantial ones, such as will justify the courts in holding the
discrimination to have been reasonable and necessary under all the
circumstances of the case.

*              
*               *               *               *              
*               *

“The traffic in dynamite, gunpowder and
other explosives is vitally essential to the material and general
welfare of the people of these Islands. If dynamite, gunpowder and other
explosives are to continue in general use throughout the Philippines,
they must be transported by water from port to port in the various
islands which make’ up the Archipelago. We are satisfied therefore that
the refusal by a particular vessel, engaged as a common carrier of
merchandise in the coastwise trade of the Philippine Islands, to accept
any or all of these explosives for carriage would constitute a violation
of the prohibitions against discriminations penalized under the
statute, unless it can be shown by affirmative evidence that there is so
real and substantial a danger of disaster necessarily involved in the
carriage of any or all of these articles of merchandise as to render
such refusal a due or a necessary or a reasonable exercise of prudence
and discretion on the part of the ship owner.”

Resting our
judgment on these rulings we held that the allegations of the complaint,
which in substance alleged merely that the respondent officials were
coercing the respondent steamship company to carry explosives upon some
of their vessels, under authority of, and in reliance upon the
provisions of the Act, did not set forth facts constituting a cause of
action; or in other words, that the allegations of the complaint even if
true, would not sustain a finding that the respondent officials were
acting “without or in excess of their jurisdiction” and lawful authority
in the premises.

The amended complaint filed on November 14,
1914, is substantially identical with the original complaint, except
that it charges the respondent officials, as of the date of the
amended complaint, with the unlawful exercise of authority or intent
to exercise unlawful authority which should be restrained, and
substitutes the names of the officers now holding the offices of
Collector of Customs, Attorney-General and prosecuting attorney for
those of the officials holding those offices at the date of the filing
of the original complaint ; and except further that it adds the
following allegations:

“That each and every one of the
vessels of the defendant company is dedicated and devoted to the
carriage of passengers between various ports in the Philippine Islands,
and each of said vessels, on all of said voyages between the said ports,
usually and ordinarily does carry a large number of such passengers.

“That
dynamite, powder, and other explosives are dangerous commodities that
cannot be handled and transported in the manner and form in which
ordinary commodities are handled and transported. That no degree of
care, preparation and special arrangement in the handling and
transportation of dynamite, powder and other explosives will wholly
eliminate the risk and danger of grave peril and loss therefrom, and
that the highest possible degree of care, preparation and special
arrangement in the handling and transportation of said commodities is
only capable of reducing the degree of said danger and peril. That each
and every one of the vessels of the defendant company is wholly without
special means for the handling, carriage, or transportation of dynamite,
powder and other explosives and such special means therefor which would
appreciably and materially reduce the danger and peril therefrom cannot
be installed in said vessels without a cost and expense unto said
company that is unreasonable and prohibitive.”

As we read
them, the allegations of the original complaint were intended to raise
and did in fact raise, upon demurrer, a single question which, if ruled
upon favorably to the contention of plaintiff, would, doubtless, have
put an end to this litigation and to the dispute between the plaintiff
stockholder of the steamship company and the officials of the Philippine
Government out of which it has arisen.

In their brief, counsel
for plaintiff, in discussing their right to maintain an action for a
writ of prohibition, relied upon the authority of Ex parte Young
(209 U. S. [123] 163, 165), and asserted that:

“Upon the
authority, therefore, of Ex parte Young, supra, the
merits of the question pending between petitioner and respondents in
this action is duly presented to this court by the complaint of
petitioner and general demurrer of respondents thereto. That question,
in plain terms, is as follows:

“Is the respondent Yangco
Steamship Company legally required to accept for carriage and carry ‘any
person or Property offering for carriage?’

“The petitioner
contends that the respondent company is a common carrier of only such
articles of freight as they profess to carry and hold themselves out as
carrying;” and in discussing the legal capacity of plaintiff to maintain
this action, counsel in their printed brief asserted that “here we have
no address to the court to determine whether a minority or a majority
shall prevail in the corporate affairs; here we ask plainly and
unmistakably who shall fix the limits of the corporate business—the
shareholders and directors of the corporation, or certain officials of
the government armed with an unconstitutional statute?”

Counsel for plaintiff contended that under the guaranties
of the Philippine Bill of Rights a common carrier in the Philippine
Islands may arbitrarily decline to accept for carriage any shipment of
merchandise of a class which it expressly or impliedly declines to
accept from all shippers alike; that “the duty of a common carrier to
carry for all who offer arises from the public profession he has made,
and is limited by it;” that under this doctrine the respondent steamship
company might lawfully decline to accept for carriage “dynamite, powder
or other explosives,” without regard to any question as to the
conditions under which such explosives are offered for carriage, or as
to the suitableness of its vessels for the transportation of such
explosives, or as to the possibility that the refusal to accept such
articles of commerce in a particular case might have the effect of
subjecting any person, locality or the traffic in such explosives to an
undue, unreasonable or unnecessary prejudice or discrimination: and in
line with these contentions counsel boldly asserted that Act No. 98 of
the Philippine Commission is invalid and unconstitutional in so far as
it announces a contrary doctrine or lays down a different rule. The
pleader who drew up the original complaint appears to have studiously
avoided the inclusion in that complaint of any allegation which might
raise any other question. In doing so he was strictly within his rights,
and having in mind the object sought to be attained, the original
complaint is a model of skillful pleading, well calculated to secure the
end in view, that is to say, a judgment on the precise legal issue
which the pleader desired to raise as to the construction and validity
of the statute, which would put an end to the controversy, if that issue
were decided in his favor.

Had the contentions of plaintiff as
to the unconstitutionality of the statute been well founded, a writ of
prohibition from this court would have furnished an effective and
appropriate remedy for the alleged wrong. The issue presented by the
pleadings on the original complaint, involving a question as to the
validity of a statute and affecting, as it did, the shipping and public
interests of the whole Islands, and submitting no complicated question
or series of questions of fact, was of such a nature that this court
could not properly deny the right of the plaintiff to invoke its
jurisdiction in original proceedings. We deemed it our duty therefore to
resolve the real issue raised by the demurrer, and since we were of
opinion that the contentions of counsel for the plaintiff were not well
founded, and since a ruling to that effect necessarily resulted in an
order sustaining the demurrer, we did not deem it necessary or
profitable to consider questions of practice or procedure which it might
have been necessary to decide under a contrary ruling as to the
principal question raised by the pleadings; nor did we stop to consider
whether the “subject matter involved” in the controversy might properly
be submitted to the Board of Public Utility Commissioners, because upon
the authority of Ex parte Young (supra) we were satisfied
as to the jurisdiction and competency of this court to deal with the
real issues raised by the pleadings on the original complaint, and
because, furthermore, the Act of the Philippine Legislature creating the
Board of Public Utility Commissioners could not deprive this court of
jurisdiction already invoked in prohibition proceedings instituted for
the purpose of restraining the respondent officials of the Government
from the alleged unlawful exercise of authority under color of an
invalid statute and without jurisdiction in the premises.

The
amended complaint, however, presents for adjudication in original
prohibition proceedings in this court questions of a wholly different
character from those submitted in the original complaint.

In so
far as it reiterates the allegations of the former complaint to the
effect that the respondent officials are unlawfully coercing the
steamship company by virtue and under color of the provisions of an
invalid or unconstitutional statute, it is manifest, of course, that the
amended complaint is no less subject to criticism than was the original
complaint. If, therefore, the action can be maintained upon the amended
complaint it must be maintained upon its allegations that those
officials are coercing the company to carry explosives on vessels which,
as a matter of fact, are not suitably equipped for that purpose, and
which from the nature of the business in which they are engaged should
not be required to carry expldsives.

It will readily be seen,
under our former opinion, that these allegations raise no question as to
the validity or constitutionality of any statute; that the real
question which plaintiff seeks to submit to this court in original
prohibition proceedings is whether the respondent officials of the
Government are correctly exercising the discretion and authority with
which they have been clothed; and that his contention in the amended
complaint is not, as it was in the original complaint, that these
officials are acting without authority and in reliance upon an invalid
and unconstitutional statute, but rather that they are exercising their
authority improvidently, unwisely or mistakenly.

Under the
provisions of sections 226 and 516 of the Code of Civil Procedure
jurisdiction in prohibition proceedings is conferred upon the courts
when the complaint alleges “the proceedings of any inferior tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, were without or in excess of the jurisdiction of such
tribunal, corporation, board or person.” It is manifest therefore that
the allegations of the amended complaint, even if true, will not sustain
the issuance of a writ of prohibition without further amendment unless
they be construed to be in effect a charge that the respondent officials
are abusing the discretion conferred upon them in the exercise of their
authority in such manner that the acts complained of should be held to
be without or in excess of their jurisdiction.

It may well be
doubted whether the doctrine of the case Ex parte Young (supra),
relied upon by the plaintiff in his argument in support of the original
complaint, can properly be invoked in support of a right of action
predicated upon such premises; so also, since the acts complained of in
the amended complaint are alleged to have been done at a date subsequent
to the enactment of the statutes creating the Board of Public Utility
Commissioners, it may well be doubted whether the courts should
entertain prohibition proceedings seeking to restrain alleged abuses of
discretion on the part of officers and officials of the Government, and
of public service corporations with regard to the rules under which such
corporations are operated, until and unless redress for the alleged
wrong has been sought at the hands of the Board.

We do not deem
it expedient or necessary, however, to consider or decide any of these
questions at this time, because we are of opinion that we should not
permit our original jurisdiction to be set in motion upon the
allegations of the amended complaint.

It is true that this court
is clothed with original jurisdiction in prohibition proceedings (sec.
516, Act No. 190). But this jurisdiction is concurrent with the original
jurisdiction of the various Courts of First Instance throughout the
Islands, except in cases where the writ runs to restrain those courts
themselves, when of course it is exclusive; and we are satisfied that it
could not have been the intention of the legislator to require this
court to assume original jurisdiction in all cases wherein the plaintiff
elects to invoke it. Such a practice might result in overwhelming this
court with the duty of entertaining and deciding original proceedings
which from their nature could much better be adjudicated in the trial
courts; and in unnecessarily diverting the time and attention of the
court from its important appellate functions to the settlement of
controversies of no especial interest to the public at large, in the
course of which it might become necessary to take testimony and to make
findings touching complicated and hotly contested issues of fact.

We
are of opinion and so hold that unless special reasons appear therefor,
this court should decline to permit its original jurisdiction to be
invoked in prohibition proceedings, and this especially when the
adjudication of the issues raised involves the taking of evidence and
the making of findings touching controverted facts, which, as a rule,
can be done so much better in the first instance by a trial court than
an appellate court organized as is ours.

Spelling on Injunctions
and Other Extraordinary Remedies (vol. 2, p. 1493), in discussing the
cases in which the appellate courts in the United States permit their
original jurisdiction to be invoked where that jurisdiction is
concurrent with that of some inferior court, says:

“Of
the plan of concurrent jurisdiction West Virginia may be taken as an
illustration. The Supreme Court of Appeals of that State has concurrent
original jurisdiction with the circuit courts in cases of prohibition,
but by a rule adopted by the former court it will not take such original
jurisdiction unless special reasons appear therefor.”

We
deemed it proper to assume jurisdiction to adjudicate and decide the
issues raised by the rulings on the original complaint, involving as
they did a question as to the validity of a public statute of vital
interest to shippers and ship owners generally as also to the public at
large, and presenting for determination no difficult or complicated
questions of fact: but we are satisfied that we should decline to take
jurisdiction of the matters relied upon in the amended complaint in
support of plaintiff’s prayer for the writ.

The question of the
construction and validity of the statute having been disposed of in our
ruling on the demurrer to the original complaint, it must be apparent
that if the allegations of the amended complaint are sufficient to
maintain the plaintiff’s action for a writ of prohibition, a question as
to which we expressly reserve our opinion, the action should be brought
in one of the Courts of First Instance.

Twenty days hereafter
let the complaint be dismissed at the costs of the plaintiff, unless in
the meantime it is amended so as to disclose a right upon the part of
the plaintiff to invoke the original jurisdiction of this court without
first proceeding in one of the Courts of First Instance.  So ordered.

Arellano,
C. J., Torres, and Trent, JJ., concur.