, FEDERAL REPORTER.
f:OUTHERN EXPI:ESS CO.
ST. LOUIS, IRON MOUNTAIN
(Uircuit Oourt, E. D.
& LITTLE BOCK R.
(Uircuit Court, E. D. Arkansas.)
President, etc., 'v.
& TEUS By.
(Oircuit Oourt, D. Kansas.)
& SANTA. FE B. Co.
(Gil'cuit Gourt, D. Kansas.)
& RIO GRANDE R.
(Uircuit Oourt, D. Oolorado. b'ebruary 21, 1882.)
ExPRESS BUSINESS DEFINED.
The express business is a branch of the carrying trade, the object of which is , to carry small and valuable packages rapidly and safely.
i.COMMON OARRIERS-RAILROAD COMPANIES NOT ENTITLED TO OPEN ExplJ,IliSS MNl'TER.
A railroad company has no right to open and inspect packages conveyed over its road which are in charge of an express company. ·'J. SAME-ExpRESS OOMPANIES ENTITJ,ED TO Do BUSINESS ON RAILROADS-RAILROAD OOMPANIES BOUND TO FUHNISH PROPER FACILITIES--,.DISCRIMINATION.
Railroad companies are bound, as common carriers, t9 allow express nies to do business on their roads, and to provide such conveyances, by special cars or otherwise, attached to their trains, as are required' for the safe and proper transportation of express matter, and they are bound t9 extend the use of such facilities on equal terms to all who are engaged in the express business.
SAME-RATES OF COMPENSATION.
Railroad companies are entitled to fair and reasonable rates of cOlUpertsa..5. f:lAME--'-How FL'tED WHERE PARTIES DISAGREE.
'Vhere rates of compensation cannot be agreed upon, the question of what rates are fair and reasonable is for the courts to decide. ' ,
·6. S.UIE-CANNOT IlE FIXED llY TIAILROAD OOMPANY. A railroad company cannot lawfully fix upon an absolute rate of compensation and insist upon being paid by express companies in advance or at the end of each trip. 7. BAME-WHERE THERE HAS BEEN NO PREVIOUS ARRANGEMENT .AS TO RATES. Where no previous arrangement has existed, the court may devise a mode ot compensation to be paid as the business progresses,with power of final revision.
"Reported by B. F. Rex. Esq., or the St. Louis bar.
SOUTHERN EXPRESS CO. V. ST. L., I. M. & S. RY. 00.
BUIE-WHERE A PREVIOUS ARRANGEMENT HAS EXISTED.
Courts may assume that rates of compensation which have existed between such companiesara primajacie reasonable and just, and may require parties to conform to them as their business progresses, with the right on either side to keep and presellt'an account of their business to the court at stated intervals, . and claim an addition to or rebate from the amount so paid.
9. SAME-RAILROAD COMPANIES ENTITLED TO SECURITY.
In such cases the railroad company may require a bond from the express company in advance to secure the payment of any amount which may thereafter be found to be due.
10. ARKANSAS. OF THE CoNSTITUTIONS AND. STATUTES OF MISSOURI AND
Statutory and constitutional provisions establishing maximum rates for transportation of passengers and freight on railrolj,ds, and forbidding discrimination in charges pr facilities in transportation between transportation compames and individuals, do not present any obstacles to the enforcement of the rights of express companies in the manner above indicated.
In EquitY4 In the case of the Southem. Express Co. v. St. Louis, Iron Mounta.in et Southern By. Co. the plaintiff avers, in substance, that it is a corporation organized under the laws of Georgia, and has for a long time been engaged in doing an express business; that prior to the eleventh of May, 1880, it had been doing business as an express company, on. the defendant's road, under a contract. whic.h the. defendant was at liberty to rescind·; that on the eleventh day of May, 1880, the defendant, through its president, notified the complainant by letter that after the twenty-sixth inst. it could not do business over defendant's road; that the plaintiff is lawfully entitled to demand and to receive the same facilities of transportation on said road as may be accorded by defendant to itself, and that it is entitled to deductions for accessorial service. The bill concludes with the following prayers:
(1) That during the pendency of the suit the defendant may he rpstrained from interfering with the facilities now enjoyed by the Southern Bxpress Company, now accorded it; from with its messengers; from refusing to receive and transport, in the same manner as defell(lant is now doing, the express matter and messengers of the Southern Express Company, or interfering with its business or present relations with defendant in any manner whatever, so long as the express company is willing and ready to pay according to all legal rates therefor. (2) That if, during the pendency of the suit, any dispute should arise between the parties as to what is reasonable compensation for transportation, the complainant may be permitted to bring the matter before the court for its . aecision. _ (3) ·'.rhatdefendant may be required to transport the expl1ess matter, safes
and of the Southern :Express Company by the same trains, and to the same accommodation, as it may transport its own express matter; that it be required to transport express matter for statutory tolls and compensation, as provided by law; that defendant may be required to make a reasonable rebate or reduction from its charges to the Southern Express Company. to be fixed by decree of court, by reason of its performance of accessorial service as specified. (4) That a permanent injunction may issue to the same purport and effect as is prayed in regard to a preliminary injunction.
The defendant, in its answer, denies the material allegations of the bill, and avers:
That since the first of June, A. D. 1880, it has formed and organized an express department of its road, and has been and is now receiving and transporting over its lines, and delivering, freight commonly known as express freight, as it has a right to do; that the express business is a legitimate business of defendant; that it can serve the public without the intervention of the Southern Express Company, and can serve it as well, and that it is unjust to the stockholders of the company to permit a third party to make use of the property of defendant and the services of its employes to reap the profit for the transportation of freight which belongs to it; that the it has received from the plaintiff for transportation over its lines during the term of the existence of the contract was inadequate for the service performed; that the conduct of complainant in the management of its business, its intervention between defendants and its customers, its taking a large amount of freight which was not properly express freight; its continued violation of its contracts under which it was permitted to do an express business, and its concealment and withholding true and correct reports of the weights of express freights transported over defendant's line of road, occasioned great damage to defendant, and compelled the termination of said contract; that as a common carrier it owes to complainant no other duty than to any other person desiring to transport freight over its road; that defendant does not claim the right to exclude the transportation of express matter of complainant over its road, and has al ways been willing, and is now willing, to transport any express T!latter in spaces in its cars selected by itself, and under the supervision, care, and control of its own employes, and denies that complainant has any r;ght to have allotted to itself any particular space in defendant's cars, or to permit its messengers to take charge of its express freight.
The plaintiff filed a general replication in the usual form. Substantially the same points of law were raised by the pleadings in the other cases. A preliminury injunction was granted in the case of the Sonthern Express Go. v. St. L., I. M. cf: S. Ry. Ga., November 6, 1880. The case came up for final hearing before MILLER and MCCRARY, JJ., at St. Louis, Missouri, on the seventh of February, A. D. 1882. Attorneys for the parties to all the above-entitled causes were' present, and in purEuance of an agreement between them all of said causes were
00. 11·. ST.
I. Ill. '"
S. RY. ao.
argued and submitted together, so far as the questions of law therein involved were concerned. Glover rt Shepley, S. M. Breckenridge, and F. E. Whitfield, for-the plaintiff in the case of the Southern Express Company v. St. Louis, Iron Mountain Southern Railway Company. F. E. Whitfield, for the plaintiff in the case of the Southern Ex· press Company v. Missouri rt Little Rock Railway Company. Clarence A. Seward, for the Adams Express Company in all three of the cases; andGeorge F. Edmunds, John A. Campbell, and Clarence A. Seward, for the plaintiffs generally. Gov. John C. Brown appeared for the defendants generally. , Jas. O. Broadhead and Thomas J. Portia, for the St. Louis, Iron Mountain & Southern Railway Company. B. C. Brown, for the Missouri & Little Rock Railway Company. G. W. Peck, for the Atchison, Topeka & Santa. Fe Railway Company. Lyman K. Bars, for the Denver & Rio Grande Railway Company. Thomas J. Portia, for the Missouri, Kansas & Texas Railway Company. MILLER and MaCRARY, JJ., being absent, TREAT, D. J., read the following opinion and order in the first of the above-entitled causes: MU'LER, Justice. In these cases, argued before me at St. Louis with Judges McCrary and Treat, I can do no more than present certain general conclusions at which my mind has arrived in regard to the propositionR argued by counsel. 1. I am of the opinion that what is known as the express business is a branch of the carrying trade that has, by the necessities of commerce and the usages of those engaged in transportation, become known and recognized; that while it is not possible to give a definition in terms which will embrace all the classes of articles so usually carried, and to define it with precision by words of exclusion, the general character of the business is sufficiently known and recognized as to require the court to take notice of it 8S distinct from the transportation of the large mass of freight usually carried on steam-boats and railroads; that the object of this express business is to carry small and valuable packages rapidly in such a manner as not to subject them to the danger of loss and damage which to a greater or less degree attends the transportation of heavy or bulky articles of commerce, as grain, flour, iron, ordinary merchandise, and the like. 2. It has become law, and usage, and is one of the necessities of .
,this business, that these packages should be in the immediate eharg& of an agent or messenger of the person or company engaged in it; and to refuse permission to this agent to accompany these packages on steam-hoats or railroads in which they are carried, and to deny them the right to the control of them while so carried, is destructive to the business, and of the rights which the public have to the use of the railroads in this class of transportation. 8. I am ,of the opinion that when express matter is so confided to the charge of an agent or messenger the railroad company is no liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due care, sldll, and diligence on the part of the railroad company. 4. That under these circumstances there does not exist, on the part of the railroad company, the right to open and inspect _.n packages so carried, especially when they have been duly closed or sealed up by their owners or by the express carrier. . 5. I am of the opinion that it is the duty of every railroad company .toprovide such conveyances by special cars, or otherwise, attached to their freight or passenger trains,as are required for the safe and proper transportation of this express matter on their roads, audthat the use of these facilities should be extended on equal terms to all who are actually and usually engaged in the express business. 1£ the number of persons claiming the right to engage in this business at the same time, on the same road, should become oppressive, other considerations might prevail; but, until such a state of affairs is shown to be actually in existence in good faith, it is unnecessary to consider it. 6. This express matter and the person in charge of it should be carried by the railroad company at fair and reasonable rates of compensation, and where the parties concerned cannot agree upon what that is, it is a question for the courts to decide. 7. I am of the opinion that a court of equity in a case properly made out has the authority to compel the railroad companies to carry this express matter, and to perform the duties in that respect which I have already indicated, and to make such orders and decrees, and to enforce them by the ordinary methods in use, necessary to that end. 8. While I doubt the right of the court to fix in advance the precise rates which the express companies shall pay and the railroad companies shall accept, I have no doubt of its right to compel the and after it is performance of the service by the railroad
SOUTHERN EXPRESS 00. V.,ST. L.,:L JII. & S. RY. CO.
to ascertain the necessn,ry compen:..mtion and compel its
payment. 9. To pet'mit the railroad company to fix upon a rate of compensa-
tion which is absolute, and insist upon the payment in advance or at the end of every train, [trip,] would be to enable them to the juet rights of the express company, to destroy their business', and would be a practical denial of justice. 10. To avoid this difficulty I think that the court can assume that or other mode of compensation heretofore existing between any such companies are p,'ima facie reasonable and just, audcan require the parties to conform to it as the business progresses, with right to party to keep and present an account of the busi· ness;to thec9urt at stated intervals, and claim to or rebate from tho amount so paid; and, to secure the railroad CJ111. pan'iE:is'in any sum which may be thus found due them, a bond from the express company may be required in advance. ,11. WheN, no such arrangement has been in existence, it is'competent for the court to devise some mode of compensation to be paid' as the business progresses, with like power of final revil:lion on evidence, reference to matter, etc. : 12. I am of the opinion that neither the statutes nor constitutions of Arkansas or Missouri were intended to affect the right asserted in these cases; nor do they present any obstacle to suoh decrees as may enforce the rights of the express companies. In the case of the Southern Express 00. v. Iron Mountain' South£rn R. Co., MaCRA.RY, J., made the following order: In this case it is ordered that the injunction hereinbefore grltnted shall remain in force until otherwise ordered by the colIrt. Counsel ,will be heard at a convenient time upon the question of tile form of the decree to be entered herein. in pursuance of the opin.ion of the .court, announced by Mr. Justice MILLER, and herewith' filed.*On concluding the reading of Justice MILLER'S opinion, JUdge that when .J ustice MILLER and,J udge MCCRARY were present he did not under the law have any voice in the decision of the case. Were it not so. he would put in writing a dissenting opinion as to some of the conclusions stated, for he was clearly of the opinion that it was beyond the powers and functions of the court to hold, practically, under their control the administration of railroad affairs as to freight and, other business. The powers of the,Colutextend no further tban to compel eq ual:ity, of rates without discrimina.tion, but not to prescribe rates.
decree see post, 869.
v. GRAFFAM and others.
January 23, 1882. )
(Oircuit Oourt, D. Massachusetts. L
EQuITY-RIGHT OF JUDGMENT DEBTOR TO REDEEM.
Where the statute of a state gives a judgment creditor power to sell unencumbered estates, (8t.1I1ass. 1874, c. 188,) and no notice is required to be given to the debtor unless he is found within county, and the debtor resides in a distant city, a court of equity will permit an amendment to the complainant's bill for relief, if the facts authorize a redemption, though the period for redemption has passed. 2. SAME-WANT OF NOTICE-RELIEF FROM MISCHANCES. Where the plaintiff had no actual notice of the sale of the land under execution, and could have ha-d none, except by some accident,and the land was sold for about one-fiftieth part of its value, equity will relieve, although through some failure of notice, not imputable to the defendant nor to the complainant, the complainant has lost her estate. Courts of equity were instituted to relieve from such mischances. 3. SAME-PURCHASER WITH NOTICE. Where a party bought an estate two or three days after a bill was filed for about one-fourth of its value, the deed not containing the true date nor the true price, and he had a written agreement with vendor re!!ulating tlJCir respective rights in case of litigation with plallltift, he is a with notice.
In Equity. Bill for relief. This bill, brought by Christine J. Burgess, of Providenoe, Rhode oharged that the Island, against sundry oitizens of defendants Graffam and Newhall severally obtained judgments against her, in Massachusetts, upon pretended debts not justly due them, of $28 and $30, respectively, with costs; and that they and the attorney and deputy sheriff, and the other defendants, conspired to deprive her of a house and land in Melrose, used by her as a residence in summer, and worth $10,000, with no encumbrance upon it; that they carried out the conspiracy by selling the said estate, upon the executions, to the judgment creditors themselves, for $73.10 and $81.21, respectively, without notice to her, and by keeping the sales from her knowledge until the year had expired which the statute allows for redeeming lands sold on execution; that Newhall then sold out to Graffam, who, with certain of the other defendants, took forcible possession of the house, and removed and converted furniture and other personal property, worth $3,000, and committed othertrespasses; that the complainant had offered to pay to Graffam the amount for which the property had been sold upon the executions, with l'easonable costs and charges, but that he had refused to