This action is mandate, brought by the state to compel the defendant corporation, an express company, to accept, carry, and deliver a certain package offered to it for transportation, the offer being accompanied by a *Page 509 tender of the full amount of defendant's regular charges for such services. Defendant refused to accept the package without further payment by plaintiff of one cent, or of a one-cent documentary internal-revenue stamp, as provided by the United States statute of June 13, 1898, commonly designated the War Revenue Act. These facts were admitted by defendant's answer, and plaintiff moved and obtained judgment upon the pleadings. From that judgment defendant appeals.
At the time when the appeal came before this court for argument, many questions, which had received learned and elaborate attention from counsel in their printed briefs, had been disposed of by a decision of the supreme court of the United States in American Express Co. v. Michigan, 177 U.S. 404. So fas as the law of that case is applicable to the one before us, it is of the highest authority and absolutely determinative. It invites, therefore, careful consideration. The first distinction to be noted between this case and the one which came under decision before the supreme court of the United States, is this: In the former the pleadings admit that the regular charge of the express company was tendered by the shipper and refused by the company, which exacted one cent, or a one-cent internal-revenue stamp, in addition to its regular charge. In the latter case the company increased its rates by adding to them the amount of the war-revenue tax. In dealing with the question of the increased rate, the supreme court of the United States held that the state tribunal had not decided that the rate, otherwise reasonable, had become unreasonable solely because increased by the amount of the war tax, and its further discussion of the law is based upon this holding, that, in effect, the state court had decided that the increased rate was not unreasonable per se. We cannot here do better than quote at length from the opinion of the supreme court after it had reached this conclusion: —
"The controversey which is contained in the merits of the cause is resolvable into three questions: First: Does the act of Congress impose upon the express company the duty of making a receipt for a package tendered to it, and does it also forbid the express company from requiring the shipper to furnish the stamp to be affixed to the receipt, or of supplying the means of paying the same? Second: If the act of *Page 510 Congress does impose such duty on the express company, and does inhibit it from requiring that the shipper furnish the stamp or the means of paying it, does the act further forbid the express company from seeking to cast the burden on the shipper by an increase of rates? Third, and as a corollary of the second proposition: Does an increase of rate by an express company which is otherwise just and reasonable become unlawful, under the act of Congress, because such increase is made with the purpose of shifting the burden of the one-cent tax from its own shoulders to that of the shipper?
"The first proposition is unnecessary to be considered, since, even although it be conceded that the act of Congress imposes on the express company the duty of paying the one-cent stamp tax, this admission would not be at all decisive of the cause, unless also it be ascertained, under the second proposition, that the act of Congress also forbids the express company from shifting the burden of the tax by means of an increase of rates. And no necessity for passing on the first proposition arises from the mere fact that the decision of the second proposition requires a consideration of the provisions of the statute which it would be necessary to take into view if the first proposition was under consideration.
"It is also to be observed that the second and third propositions, which involve, the one the right to shift the burden of the tax by exacting that the one cent be provided, and the other the power to increase rates within the limits of the requirements that the charges as increased are reasonable, both depend upon the same considerations.
"Indeed, the question into which all the issues are ultimately resolvable is whether the right exists to shift the burden, of course ever circumscribed by the duty of not exceeding reasonable rates. If it does not, — that is, upon the hypothesis that it not only can be, but is, forbidden, — then it must result that all methods adopted to attain the prohibited result are void. On the contrary, if the right to seek to shift the burden obtains, then the substantial result of what is done becomes the criterion, and the mere fact that the motive, announced, for reasonable increase of rates, is declared to be a shifting of the burden, cannot prevent the exercise of the lawful right. . . .
"Now, there is nothing in the provisions just quoted *Page 511 which, by the widest conjecture, can be construed as expressly forbidding the person upon whom the taxes are cast from shifting the same by contract or by any other lawful means."
The court then decides that, conceding (not determining) that the primary duty to pay the tax is cast upon the transportation company, it is a burden which may be shifted, and that a rate-charge otherwise not unreasonable will not as matter of law be held to be unreasonable when increased by the amount of the war-revenue tax; for so to hold would be to declare, against the language of the law, that the burden may not be shifted, and, further, it would be, in effect, but to hold that the act of Congress by the mere fact of imposing a stamp tax forbids all attempts to shift it, and, consequently, that the carrier is deprived by the law of the right to fix rates, even though the limit of reasonable rates be not transcended.
With this exposition of the law there can be no cavil, but it is to be remembered that the state of facts to which it applies is one where the express company's regular and reasonable rate, exacted of each and every shipper, includes the amount of the war tax, while in the case at bar it is admitted that the regular rate and charge of the company was tendered and refused. The supreme court of the United States found it unnecessary to decide, and therefore did not decide, whether primarily the duty to pay the tax is cast upon the carrier. Throughout its discussion it conceded that such was the law. If a decision upon this point had been necessary, we entertain no doubt that but one conclusion could have been reached, — that this duty is primarily upon the carrier. The language of the act seems to foreclose any controversy upon the matter: "There shall be levied, collected, and paid, for and in respect of . . . documents . . . by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, . . . the several taxes," etc. (War Revenue Act, sec. 6.) "It shall be the duty of every . . . express company. . . to issue to the shipper . . . a bill of lading, . . . and there shall be duly attached . . . to each bill a stamp of the value of one cent." (War Revenue Act, sec. 25.)
In the Michigan case the express company shifted the burden by a reasonable change in its rate. In the present case, the question before the court may thus be put: May *Page 512 an express company, to which has admittedly been tendered its regular charge for the transportation of a package, refuse to accept and transport that package upon its arbitrary demand that something more than the regular charge shall be paid? Here it is true that the exaction is small, amounting to only one cent, but, if the principle is good, it would apply equally well if the amount were large. Being an arbitrary demand of the company, — that is to say, a demand which it could waive at pleasure, — it would mean, if the principle contended for by appellant be upheld, that one shipper might receive the services of the express company upon payment of the regular charge, while others for the same service would be compelled to pay varying sums, arbitrarily exacted, in addition to the regular charge. So stated, — and we think the statement a fair one, — it will not need discussion to show that the principle is erroneous, and that this may not be done. Each and every shipper is entitled to the services of the company upon the payment of the regular charge for the same service.