I dissent and adhere to the views expressed in the opinion handed down upon the first hearing of this cause. (64 Pac. Rep. 702.) It was there said, and it is undoubtedly true, that if no essential difference exists between the facts of the case before this court and those of the Michigan case carried before the supreme court of the United States, and reported in 177 U.S. 404, the decision of the latter case will be absolutely determinative of the question and binding upon this court. This court had before it then only so much of the record of the Michigan case as was published with the opinion in the volume of the reports above cited. A rehearing was granted to the end that petitioner and appellant might show, as they urged, that an identity and parallelism of facts existed between this case and the Michigan case. Upon this question appellant may be correct. It would have been an extremely simple method of disposing of the question to have presented to this court, in connection with the supreme court's decision, a full record of the Michigan case. Upon consideration of that record all doubt would have been forever laid at rest. This, however, was not done. Upon this second hearing we have no other nor better light for our guidance than that which led us in the earlier *Page 508 determination, merely the reported decision in the one hundred and seventy-seventh volume of the United States Reports. I am unable to perceive in the statement and discussion by the supreme court of the United States in the Michigan case the parallelism and identity of facts with the case at bar, which the present prevailing opinion declares to exist. In the former opinion handed down in this case it was said: "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 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 larger. 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 the 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."
With the light before us I still think that this shows a substantial distinction between the two cases, because of which the judgment in the case at bar should be affirmed.
Van Dyke, J., and Garoutte, J., concurring in the dissenting opinion.
The following is the opinion above referred to, rendered in Bank on the 6th of April, 1901: —