RocK1 &M;R. CO.t/;Si'; LOUis, :1.')1.1. &: S. RY. CO.
,to' roM be no jttstifiCiLtiohof the lInisance'!'lf, :howeVe,r, the rOll'd, the use ()f"the. motors genertilly use4 on strllet ralIroadl;l, smoke, gas, and steam, and ,thenoiee produced by blast,'a.renq,greater than neCessarily attend the operation of 8uchmotors Slupplied with, the,improved appliances a.nd cdntrivancesincommon use, then the :pHtintiff , has nogroJjndOfco01plliintat law orin equity. Whether the d:efendroad is ornot,"sooperated" decided, becaQse, any event,' the plliintiff, on the facts of the Case; is not !i!ntitled to an, injtinction,but her remedy, if any ,she,has,is at law. Osborne v. Railroad Co., 35, Fed. Rep', 84,'37 Fed. Rep. 830., The injunction is refused, and 'the billdish'lissed, without prejudiooto the plaiutiff's right to sue at law. . .:,., ,.' , "
'will
,
. ;Ii.,·
;.
"
ST;LouIs,I. M. & " !" ) 'j;.. ; . " : ' " ; : .. , .': " '. ': " . ;' . . .... ',: . , ,.: · .
, . .'A· Conn 'of' eqU1ty has either at oommon or under tp.e interstate . oo:liimerce act, to oompel;arailroSd comp$ny to. enter intio Sf oobt,ract With! a.other , company for a joint thro\1g11 joinUhrough rol1$ing pf ·ireightamd· paBllen· Q4»Lrt;) "" ',,'
AND
...
"i": niaterialaUegation$ in·;the plaintiff's bill are. that.....
"The Little Rock & MemphIs ltailroad Company is engageii operating ,thetaUTOJld bAtween the ciJ;ie$ of.Memphis,.in the state of and. Lit. ·. ,That its ip. ,thetrllnIlPl>rtation \if and freight f.. om points ea.stof . river. and southern P?iij.tS!hl the states kansas. Texas. and elsewtlel.'e, anti' in tbereverse directIOn; The St. Louis, 'Iron'Yoontain &. Soutbetn'RailwaY'(}ompany, a corpotationcreated by tlie laws of.Arltansas, andaninhabiJiilnt'ofsaid district; operates luoail.road from the city, pi St. I,oQis. in the lltate, of Millsqqri, passing through ,the Little of boundary the ,statcs()f Arit Jj.1akesc!'>nnection with systems of raU,J:03dS ,in Texas. , 'The the Hot Springs Railroad Companyis ene gaged in operating It,ntilroad in'Jthestate of Arkansas froth Malvern. on' :tIle line of the st. Louis, Iron Mountain"·&Southern Railway,:to Hot Springs. ,Sai<lHot Springs Railroad Is a corporation created by the laws of 'Arkaillias,a'ntl'ls::an inbabittintof sJtid' district. Said St. Louis, !ton Mountain & SotithernRailway islone: of,the'largest of' the road operated by your orator,con'trlbutingo dUl'ing'tM half year endl'ilg'3'une'.sO, 11:l88, 3,387 pRssengers.or whom'}, 591; Of neatly half;· came ti pon t hrougMiekats over the ''Little' Rock & Rail'toadand the St. Louis, Iron Mountain :& 'South,ern Rail wa"With'a traffic equal in' the opposite The said St. La'itls, Iron .MoUI!tain & S\)U'therfl Rail way is the mOR11l\pOroratotrt'he' exchange of 'duriIigthe the,St. 'siX'rriohthil 'e:OOrngJune 80,1888, iimuunting to 11,139., In
in
J'QDERAL
vol.
Louis·. Iron Mountain & Southern opened a branc.h road'from Bald Knob, in the state of Arkansas, to Memphis, in the stateof Tennessee, runt1in'g parallel with line, 'built for the express Ilurpose of com'peting with it. It Is 1& miles longer than your oratol"S line, and its facilities ,for accommodatingthrobgh traffic at M'Elmphis are much ,inferior to those of your orator's. For these reasons, notwithstanding the opening of the Bald .Knob branQh, tlle trafijoofyour orator re!Dained substantially: unchanged as .long as it had equal facilities afforded, by defendants, the traveling public .. For the purpose of breaking down the legitlpreferring it to nlately acqUired business your orator, and crushing a rival, the St: Louis, ,Iron Mountain & 80llthernRailway Company has directed all the railroads 'connecting With it to 0011' In all through tickets reading over the' Little Rock :& Memphis Railroad, and thence over the St. LouiA, Iron Mountain & South,ern. Railway, 1611vJng,9:n,sl\le oI)lythe, tbronghticketll over ,the Bald Knob branch; and the Hot Springs Railroad Company, conspiring with it to injure your oJ'ator, has Rignifled its asflent to this direction, and has actually withoraten's lineJn connection with the St. Louis, drawn the tickets over Iron Mountain & Southern Railway, and to sell the same, though requested by your orator to do so, but still continues to sell tickets over the Bald St. Louie, Iron Mou,ntain & Soutbero..lW,ilway·· T}le obpublic'to purchase tickets exclusively over ject of this iEi to the Bald Knob branch, ,?r, else to pay h1g1Wr rates, l\nd ,be subjected to the annoyance'of repeatedpUI'chase of tIckets and recheckIDg of baggage; . and, unless for the of your orator, all through ,traffic .will be dl the Bald Knob btapch"to grE¥'t inconvenience -,of the public, and great and unjust pecuniary. loss to your orlltor. Wherefore your orator prays that the;said defendants may be reqUired to answer this bill, but not under oath; and that a mandatory injunction may issue from this court commanding said defendant, the Hot Springs 'Railroad Company, and its agents, to sell, to all applicants going on its road to Memphis and to points beyond, tickets over the road of your orator on the same terms,and at the same price, as it charges. topasseilgers who 'get tickets over $aid Bald Knob and to check baggage with the same." ,The defendant the St. LdUis, Iron Mountain &. Southern Railway 'Company filed the affidavits oNts general and assistant general passenger 'apd,ticket agents, to be rea4 the the ,nioti6n for a preliminjupction. Tbese..aflidavits admi.ttb/l.t tick,eta reading via the "Little Rock & Memphis Railroad, in connection with. the St. Louis, Iron 'Mountain &.SouthemRailway COlilpany, have been withdrawn from -sale, bntH.eny that this was done for the purpose of breaking down the road, alld 811y it was done for the purpose of legitimately build)ng thepasseilger traffi,c oyer the ,St.Louis, Mountain & South"wn. Ra.ilway, and its .1{nobbranch ·. The assistant ,freight and ticket agent states .
on
-,"The arrange!Den,t betweenthe,rallroads formIng a ,th1'lougll route anll lfltElfrOm' lIQt Springs to and points east of -·:there, exists by l,'ell8on Qfl;l contract or agreement bet\V66n the St. Louis,Iron ,,¥1>untain,& Southern Railway. COmpany 1l11drailroads. e"ast of Memphis. By -:w,ay.of ill ustration, the tbrou,gh-route agreelDent now 'In existence between ,MpIverll, where thEl St. Louj!!, J:ron Upuntain Railway c.onnects .·witbthe,Rot. Sp,rings is 8$ follows: Tbe st. Louis, Iron MQuntain & l::louthern Railway Company, wbicb .has a.Ii,ne of its own ,frorn.¥alv,6rn witp Memphis & Cbarles-
LITTLE BOCK
a:
II. R. CO.l'. ST. LOUIS, I. Jrt:.
S. BY. CO.
661
ton Co., and the East Tenn., Va. & G. R. R. Co. and its eastern connections to Noi'fo1k, arranged for a through rate and route, and for a pro rata division of revenue derived therefrom. In making this arrangement, the St. Louis, Iron Mountain, &, Southern Hail way Qompany, haVing a line of its own from Malvern to Memphis, had no occasion to and did not include the Little Rock & Memphis R. R. in SllCh agrep-ment. I have read that portion of the brief of J. S. Blair in the case ·of L. R. & M. R. R. Co. v. E. T., V. & G. R. R. Co. and St. L., I. M. & S. Hy. Co., 3 Int. St. Com. R. 1. The statements made by him on pages 4 and 5 of said brief is a correct explanation of the in which agreements for through routes and a through rate between two or more distinct railway companies are made, and I adopt as a part of this affidavit so much of the language employed by Mr. Blair as follows, to\V it: · iss,uing by one .J:oad of tickets to be used beyond its own terminus is, tor. various reasons, a matter of agreement between tile companies. From .w/)ichever side the proposition comes, or in whatever manner, the other been regarded as at full liberty to decline to on the one hand, orl'efuse to honor on the other. The consent has Ilotalways been in writillg, at present every ticketing arrangement of this kind to the Iron MO,untain, road ilil a party is evidenced by a writtell agreement. Sometirjles thllarrangementis one requiring little, if any, negotiation as to the division tobe made of the proceeds of the sales of the tickets; but very fre. quently the basis of divisionreql1ires serious consideration, and. if the parties there is no standard or custom to which to appeal , and the negotiat,ion utrminates. When the parties have agreed upon all the terms, the party does not obtain the tickets from any or all, tJ;1e roads over which tbeyar,e,W be used, but priQts them, and at the end of every month to every rQad the number kind of tickets sold, and the amount for Which itis,tesponslble. It receives similar reports from other companies who have iSSUed9ver its road, and lateron the differences paid. The couJilon, when taken upj), the conveying .road,. is retained, and not,trans,mitted to the issuing rOll4 as a voucher. Where the rate is made by the parties participating in the without influence or control by competing connections, it consists of the sum of the local rates, and the diVision apportions to each its own 10cal.- But. where shorter aM competing routes force the price of the tiCket below the .sum of the locals, the rate is divided on certain agreed bases, which vary according to circumstance. For illustration, if a rate were to be made to Texarkana from Atlanta Via Chattanooga, Cincinnati, St. Louis, Bald.Knob, and Little R<>ek, it would.be no greater than via Chattanooga, Memphis. and Bald Knob, and each road could not get its local rate. but in the division regard is first to be had for those roads which would divide the Chattanooga, Memphis & Bald Knob rate. That is to say, the passenger going by way of Cincinultti and St. Louis travels between Atlanta and Chattanooga and between,13ald Knob and Texarkana over the same rails as if he went by Memphis. For these portions Of his journey the railroads shOUld receive the same sum as if he had taken the Memphis route, and. these amounts haVing been taken, the remainder is divided among the other roads on a mileage basis, subject. however, to such arbitraries as are agreed upon by them," The defendants the Hot Springs Railroad Company and J. N. Conger answered jointly, alleging, among other things, that. the Hot Springs B4l.ilroad does not connect with the plaintiff's road. That it connects at Malvernj its ,eastern terminus, with the St. Louis, Iron Mountain & SoutQern Railway, and plaintiff's road terminates at Little Rock, a dismiles from Malvern. That the Hot Springs road does not sell passenger tickets over its line in. connection with other railv.41F.no.l0-36
R.n.
,' . ' I ' .m h · :'tEbEBALB:EPO:RTIt:R ,vot':!:: /,:;" td "'1 QOJ'':
.Y,' '.. ,
'poSe'o'tformlng'tbrollgh ratetland agroolllg upo'n' a baSIS tortbe dlVJslOnof s'old lI.t ani and all stations of the made arrangem,ents with ·other connectt ng lInes' as' wnt.secur!" by. them. ,alid espeCIally by th'dgt.' I,i·· l. M.'&S. 'RY·. CO:;iof tickets. respondents' wOijld not feel · .· It is true,' · but rt has qone'so slmplybecll,U,se as tb-e.st.' L;,. 'r. M. Ry.' 00.' the phulltl:tr; for, tlie' ,recerving 'and trlmsportmg of baggage eb/lcked',aver'tblnrhe and thliti,'said road'Woll'l.tl )not BO,' 'defendantssayth1\t :al1 ..state of ,ATanti Incol.'Jibtated -laws at saId BV.l'I?gS no.t do of Inter'slate' but ItS ends in this state. 8nd Its 'passellger trlllnC!,,·wM!Ii.JOcld..' tickets
other road, ',' ,O#,the contra,r, sa local ticket o,ver its liiie toMBryern. rnltfth,f!l:4efendant'Coriger'is the agent (lftbeJ,St."Louis, Iron Mo:untain & Southern, Railway Company at Hot 'Springs for, the sale of through tickets oyer said road and its connecting are prepared. by and under the authority of , as to the, charges .of transportation, fo,'\'¢connectinglines'>llud are by said cOp1panies, or by the St'J,Lquis, Iron Mountain & ;Raihvay Company, to the defendantConger to be sold by him. '· ...Thel defendants J'i'e willing thattlie tickets of the plaiJitiif. or any; othe,i' cartiei' that has or may unite'\vith ·the:St. L.,').M. & S. Ry.· wbiqlf i$ line, witlltr:e IIot in,.'!, nt,
otherlltlei!;"""
I".,""""'}'" . ' i' ·.·
':' "
I
, :
RM.;Jt,'(h B; Bost, fOf.lplaintitfi· "-Dbdge&JohrJJr:n; ,John M.¥Oo/f,f?r
. "i.:;,""
09:;
Conger.
.. , .
CALbWELL,J.! (after 8tatin!?'tlte<1actsaa 'above:) The precise questib'n i11this case is, :can the of :AAuity iOIhpilny interstate ,pierce traffic, tQ. enter with, another railroad com,pany,ellgagedin like. tr""tiQ,·J!of·a,joint through routing and joint through rates,and, UpOI:lltQ.e 'l1efusaLof the company; to comply with such a r.e.quirement, may, the court itself make, Isuch a cO,ntract for the It :the:aftidavits, and knowledge, effect through Foutirig,a:I);dthrough rates over independent lines 'ofrel/ltiotiS',lliust be established between the (Jompa-nieSoJ,1erating the roads: -The hich each road is to receive of -the -through 'nitetiM mih!itge ta:te td>be paid or allowe<Fon cars passing over 'each'Othel"slines; the method of adjusting'lbsses, th'e arranglilllerit .' bE, the tlltes for passengers and, freight; and other' " . J.' ',c
LITTLE ROCK. &:l-M; R..00.". ·ST. LOUIS, ;1.
ac. &
S. RY. 00.
563
rnatter.s of, 'contract. The ,solvency,ofllherespective lines"their:ability to bandle in a satisfactory manner the joint traffic, and: their ability to cdntribute to that traffic, and'various other consid· erations, enter into and influenee the termS of such contracts. The common law imposes no,obligation on railroad companies to enter into such contracts. "At common law a carrier is not bound to carry exit quite clear that, if he contracts to cept on his own line, and we go beyond, he may, in the absence of statutory regulations to the con... trary, determine for himself what agencies he will employ." Atchison, T. k S. :F. R. Co. v· .Dcntle!r « N. O. R.Co., 110 U. S. 667-680, 4 Sup, Ct. Rep. 185. ':Making contracts' for parties "is not within tbe scope of judicial power." Express OzSe8, 117 U. S.'.1-26, 6 Sup. Ct. Rep.: 542, 628. In the case last cited the court,speaking of the decreeoftbe oourt below fixing and regulating the upoo whkh the railroad company and the:expresscompany sho\llddo business, said: ,"In this, way. as it seems to us. the court has made ,an arrangemt'nt for the thesec!>rp.panies. such as. in its opinion, they ollghtto f(),r we in iltchiso'7!<' T. & 8. F. R. have v. N. O. R. 00.,,110 S. 667, 4lSup. Ct. Rep. 185. followed at thIS tel'm''in Pullman'sPala'ce Oar 00. v. Missouri Pac. Ry. 00.· 115 U. S. 587, 6 Sop.: Rep;' 194. could not be done. Thert>gulation of matters of this kind is legislative In 'its character; not jndicial. To what extent it must come, if it com"s, at all, from congress, aud to what extent it may come from the states, we do not now undertake to decid.. ; but, tllatit ijluet come, when it:does from 80mI' source oflegislative power, we do not doubt." 117 U:. S. 6, §up. Ct. Rep. 556., ' See, to the same effect, Kentucky & I. Bridge Co. v. Louiaville k No R. Co., 2 Int. St. Com. R. 351, 37 Fed. Rep. 567. Has .the,;jllrisdiction been conferred by the act of congress? Complainant maintains that it has by the third sootionof the interstate commerce act. It would serve no useful purpose for the court to f'ogage in an extended discussion of. this question. '. It has been discussed and decided by the interstate commerce commission in Little Rock M. R. Co. v. East Tenne88ee, V. G. R. Co., 3 Int. St. Com. R. 1. In that case the\ was seekiug the same relief tb",tjt, in this. elise, and its petition was dismissed,Qn the distinct ground that act of con.... gress does not, as does the present English statute, invest the commission or the courts with the power to ,compel companies to enter into through routing and through rate c6ntracts. The case of Chicago « A. R. R. Co., lInt. St. Com. H. 9, Id. 360, and the opinion ofJ-llclge JACKSON: in Kentucky 1. Bridge Co. v. Louisville k N. R. Co., 2 Int.' COlD. R.. 351, 37 Fed. Rep. 567, are to the same effect. I am satisfied to the decision of the question on the reasoningof.t4e opinions in the cases·cited, which, to my mind, cannot be s8tisfllctorily answi=!red'; > ,,' ,; ii.i'.· The sole ground of complaint in this case is that the principal defendant refuses to enter into a contract with the pl!llntiff for through routing and through rating over its road. N<;> discrimination lIgainst the traffic carried on by the plaintiff over its own line is claimed. The ,defendant
«
.
(;'.'
nDERAL ImPORTER I
vol. 41·
company receives and carries pa.'lsengers and freight that ho.ve come over, or that destined to go over, the plaintiff's road, without any discrimination on that account; but its relation to such passengers and freight beginswbere they are received, and ends where the plaintiff's road receivesthem. What the plaintiff seeks to accomplish by this suit is a practical extension of its line over the defendant's line beyond Little Rock. 'The plaintiff's; road extends from Memphis to Little Rock; the defendaht's road extends from Memphis to Little Rock, and from thelatter place south, to, Texas. The abstract justice of requiring the defendant to give up, for the plaintifl) benefit, all or a part of the advantages gained by the defendant, by building a competing line to the plaintiff's road from Memphis to Little Rock, is not very ob\'ious. Prior to the construction by the pnndpal defendant ofthis competing line the plaintiff enjoyeda. monop.olyof the traffi<l' between Little Rock and Competing lines aflordthe hestand surest protection the public can have against,:oppressive rates,and, however injuriously the business of the road may have been affected by thcconstructttiiJ. of ,the petillg.line, the public was not injured and is nothern Is it, under these an ,unfair for the defendant, the sale oftickets, to prefer its o,wn line to that of the plaintiff? If it is, ,the incentive to theconstrnction of COID,petlI'lglineswill be very much lessened. Roads a monopoly of a given will be benefited, but the pUblic will probably be injured. But it is unnecessary to discuss or decide this aspect of the case. 'the court has no jurisdiction, to the relief prayed for. 'the Inotion for ' , a n1andatory injunction is dtmied. At a lalerday in the rerm the defendants filed a demurrer to the bill. which \Vas ,stnltained, and the bill dismissed.
CoNGREGATl'ON'
OF THE ROMAN CATHOLIC CHURCH OF ASCENSION t1. 'TEXAS
& P. Ry. Co.
(CircU'tt Oourt,E. D. Lou1.Biana. February 18, 1890.)
91' CHA.RTER-REIN<CORPORATION., , " The property of a corporation, aiesolved by reason ohhe expiration Of its chart,er,v6sts in its memberll, who ,may reincorporate l and the riewcorpoi'a'tion may sue for breach of a cpudition, to the pl'emise8., where: it. has been in possession and managed witho'Jet' objecilon 'for many years. '
''S. RA.ILROA.DCOMPAKIEs-GRANTOpRrGH'l' OJ' WU'-CoNDITroN.LLAciIES.'
_,'
to .lil;lnUta a conditlOn to maintain the are continuin8. : ,.", ..
way tp 11, raili'oa<l fozl: failure to':<:olnplywltb and proper drainage, is not barred by l.achl'ls, ll4I ., .. ') " ().;,'
;
. '.'!
In Equity;; On demurrer to the bill ' Rdusek.fktznt, for, compbtinant." ,Howe <t-pr.entW8,f()rdefendfi,llt,