CHICAGO, B. &I: Q. BY. CO. f1. JlU&UNGTON, C. R. &I: N. BY. CO.
& Q. Ry.
C. R. & N.
Co. et al.
«(JirlJuit CO'Urt, 8. D. iowa. March 28, 1888.
The duty imposed upon railroad comranies in Iowa by the laws of that state and by the "interstate commerce act. (Act Congo Feb. 4.1887; St. at Large 1885-87, p. 379,) of receiving from connecting roads freight and passengers, is one which the federal courts sitting in that state wiIl enforce by mandatory injunction where the injury resulting from its non-performance is continuing: and it is no defense to such relief that a strike of locomotive engineers and firemen has been ordered on plaintiff's road. and that if defendant's road should accept cars from the "boycotted" road its own men would be called out. I. INJUNOTIOli-:M:ANDATORY-GRANTING-NoTICE.. .. As to defendants to a bill who have not been served with notice. and who have not appeared, a mandatory injunction will not issue on motion, but "if there appears to be danger of irreparable injury from delay," within the' meaning of Rev. St. U. S. § 718, a restraining order. to be served upon said de fendants with notice of the time and place of hearing, will be granted.
OARRIERS-CoMMON OARRIERS-DUTY TO OONNECTING LINE-BOYCOTTS AND BTRIKES-COURTS-FEDERAL JURISDICTION.
In Equity. On motion for injunction. Anderson &; Davia, (Thornaa Hedge, Jr., and Joseph G. Anderson, ofcounsel,) for coinplainants. S. K. Tracy, for defendants.
LoVE, J. Whoever, in my opinion, in a legal proceeding considers a railway company as a corporation for mere pecuniary profit to the own ers of the property, without taking into account their character as quam public corporations having public duties to perform, takes a view of the subject altogether naI:row and misleading. It is one of the duties ofgovernment to provide and regulate public roads and highways. It is a duty of government because roads and highways are indispensibleto society, and because individuals are incompetent to establish and control'them. No government can rightfully delegate to individuals or corporations its high duties so far as to place them beyond its own power, supervision, and control. The collection of the public revenue is a duty of government. It has been sometimes delegated to individuals as farmers of the revenue, but no government could rightfully place the collection of the puhlic revenue beyond its own supervision and control. It would be absurd to treat the collection of the public money by farmers ofthe revenue as a mere private business. They would, on the contrary, have committed to them a public business-aduty of the government, in which the whole people would have a vast interest. So it is with the railway service. It is a quasi public business. The building, equipping, and management of a railway is not strictly aprivate enterprise. It would not be authorized by the government solely for private profit. That could not be done within the law of eminent domain. The railway company, and all who are engaged in the building, equipping,repairing, and keepingop'en a railroad as a public highway are performing one of the great duties of the government. The gover90 v.34F.no.7-31
,Il) .'( ,:
ment for the time being commits to them for the benefit of the whole people a business-a public duty-in pIe have an interest which is simply incalculable. !tis clearly the duty of the government in all its departments, within their respective spheres, upon all in which thus concer.ns to the publIc welfare, thesthct performance ,Of then duty to the public; The stoppage of the running of asystern of railways for weeks amtmonths at a. 'inevitably il,lflictenormous.injury upon the great public, for whose ,convenienceai:ld, are au,tborized. By the ponoperation of a railroad travel maybe suspended; the merchant and manruined for want oftransportatiori;:p:r:hperty of incal<lulable value laid up: to perish bytbeway; wholecommupities deprivEld of, plies of fuel and the other necessaries 01 life,-in a word, mischiefs and be inflicted upon no words are adequll.te :to express. Who mayarbitrarUy, in oftheir oWbprivate wrongs,orlnterests, infiictsuch enormous evils upon the very public by Whose liooIl$:e,8:nd for railways have been established? Certain classes of Ulen for their own profit engage hi aquaBi public service. They conceive tllemselvestobe wronged, and they proto ,their own private inflicting injuries and sufferings upon whole communities of people. This they claim a right to do, not only by quitting the service in which they are employed, but by giving to their leaders the power to order off all other men in the same line ofernployment from the similar service in which they are engaged. They thus claim thep9wer, by the arbitrary and uncontrollable ,will.'of a few leaders, to suspend the operation of a whole system covering yast regions ,of country I In their view a,P· parently no one is concerned in such a, transaction but themselves and the railway company.! The great p\l.blic-the millions and tens of mil· lions of people who may be injuriously affected by such irresponsible left out of view and wholly ignored. .To redress the small wrongs of a few they inftictir,reparable injuries upon the many. 1.t would seem that the government ought in some way to protect the .public against tile evilsgro\\,ing out of such a suspension of railroad transportation. But the remedy for the intolerable injuries which threaten .the pu blic, as well as the complainant, in that direction, must rest mainly ,with the legislative department., .The power of the courts is extremely limited. The action at law for danlages is clearly noreinedy at all, and of a court of equity is mainly preventive. The powerota coqrt of chancery to enforce the of positive duties is scribed within very narrow limits.' Thus it cannot prevent the employes .ofa compllny from abandoning servicc. Howevergrievous m.ay! be: the injury inflicted upon the company and the public by the sudden suspension of railway servic,eo'ver an' system of rail':ways, I See :r;1O remedy for it in the power of equity. court cannot pj:event the railway employes from leaving their places, and it cannot compel them to return to work. But here a linemust be drawn which the employes may not pass. If, having left the service of the
CHICAGO, B. & Q.
C. R. & N. BY. CO.
coJn'pany, the men lUly way by threats,or force, or violence, or iritimidation, or unlawful. combinations, to interfere with the free will of other men who may be inclined to take their places, or with the properly of the company, or with those who are ih the management of its affairs;. for the purpose of preventing the company from doing its duty to the public as common carriers, the court may undoubtedly interpose its power of granting injunctions to prevent intolerable mischief. Such injuries would be clearly irreparable. There would be no adequate remedy at law. Actions at law would, in such cases, be simply futile, and, if effectual in particular cases, they would be so multitudinous that the remedy .would be as bad as the injuries to be remedied. The employes may quit the service of the company, and give place to other men. But it is a service that must be performed, and it must not be obstructed; and so long as the employes remain in the service, they are, like other men, bound by their contracts. They have assumed by contract to as-, sist in the performance of a quasi public service,-a service the nOD"performance of which may be ruinous to the public,-and it is a serious question whether they may not be compelled while remaining in the public service of operating a railway to perform their duty. But, since the, company has the power of discharge, equity would not interfere by injunction, except in a clear case of special necessity. I wish to be understood as giving at present no opinion upon this point. In the next place, what disposition shall be made of the complainant's application for a mandatory injunction against the defendant company and its managing officers compelling them to perform their duty as required by the law of both congress and the state of Ioira? These defendants have appeared by counsel, and admitted the truth of the allegations of the bill, and they do not deny that they are required by law to receive and moyethe complainant's cars. They that they have refused to perform this duty, and they give as a reason for their refusal that, if they receive and haul the complainant's cars, their firemen and locomotive engineers will abandon their service, and leave the company without the means of operating their lines. There can, of course, be no doubt about the law (jf both the general and state governments requiring thedefendant corporation to receive and move the complainant's cars, whether empty or loaded. The law of Iowa provides that it shall be the duty of any railway corporation to receive and transport the empty or loaded cars furnished by any connecting road to be be delivered at any station or stations on the line of its road to be loaded or discharged, or reloaded and r\'lturned to the road sO connecting. 1 McClain's Ann. St. p. 367, § 10. The United States interstate commerce act I proVides that every common carriershall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and forthe receiving, forwardii.lg, and delivery of property and passengers to and from their several lines, and those con1Act Cong. Feb. 4, 1887; (1:)1:. at Large,
necting therewith, and shall not dis.criminate in their rates and charges between' such connecting lines; bl1tshall riot be construed as requiring it13 tracks or terminal facilities to any common carrier to give the engaged in b,t;J.s,iriess. Now,'the question is, law of the land, or the or4erof the chiefs. of 'the ,lqcq¥otive engineers? Shall a railway provisions of the statutory law company refuse obedience of its employes threatell to quit its service, and thus stop the running of its trains? $hall t1>;e court presume that they will carry out such threll.ts, and deny relief,to: the complainant upon that presumpto the defendant company, or the tion? No temporary public whom .it serves are, in my' judgment, for one moment to be compared with fatal consequenceswh,.ich must ensue from a precedent by which it would be established that a railway company may, in. violation of the law of the land, refuse.to receive and haul the cars of a connecting line, at thecomrnand of any irresponsi,ble persons, or from Hs own belief and apprehension that its employes will leave its service, and stop the operation of. its lines. Such an excuse as this is whollyinadmissible, and it must be set aside.' If, inthi,s case, the reftisal of the defendant corporation to move the cars of the complainant be sustained, it will follow that, whenever in the futqre the loComotive engineers and firemen shall enter upon a struggle with any one road, all other corporations having connecting lines will, ,in violation of law, be warned not to interchange cars with the offending rOil-d, and compelled to obey the behests of vast regions of of their employes. Thus may the country covered by connecting lines be controlled and paralyzed at the arbitrary will and pleasure of the:j3rotherhood of Locomotive Engineers. Indeed, it seems to-day to be by the grace of the leaders of this association that the,various corporations owning the vast network of railways west of Chicago are per&litted to operate their lines. The people of this vast region may at any moment be deprived, by the arbitrary fiat of the association in q'uestion, of all railroad facilities. Is' this a power fit to be assumed and wielded by ariy set ofirresponsible men under the sun? There is another matter worthy of consideration bythedefendant conipany. If it refuses to receive. and move cars laden with goods or chandise, will the company not ,be liable for any damages which may accrue to the owners and consignees of such shipments? Is it not the of the citizen and owner shipped to have their property received and trfmsported by the defendant as a common carrier, and does not this right belong to the. shipper, by both the common and statute law? Suppose the goods, being perishable, should go to destruction by tlle way; suppose they be ordered for a special purpose, and fail to reach the consignee'in time; suppose by reason of the delay caused by the act of the defendant there should be.a heavy decline in the market, would not the defendant company be liable to the owner and consignee iii dam': ages? The injury complained of is clearly irreparable, except by the remedy now prayed for by the complainant. It is a continuing injury. It
HAZARD V. DILLON.
may occur every day, and many times a. .day. This complainant is a common carrier, and cannot refuse to receive and carry goods destined to persons living or doing business upon the defendant's line. Yet the complainant must either refuse to receive such goods, and abandon all its business connected with the defendant's line, or receive them and allow them to accumulate upon its own tracks, or in warehouses at the place of connection between the two roads. The mandatory injunction against the defendant ,company and its chief officers as prayed for will be granted, to continue in force till the next session of the court to be held at Keokuk on the 24th day of the present month, upon the complainant giving bond in the sum of $5,000, to be approved by the clerk of the court. The clerk will approve the bond, and issue the writ. No temporary injunction can now be granted against the defendants who have not been served with notices, and whohave not appeared, but the order is that the application for the same be set down for hearing on the same day, (March 24th,) at Keokuk, at 9 o'clock A. M., and that in the mean time a restraining order in accordance with the provisions of section 718, Rev. St. U. S., be issued and served upon said defendants, with notice of the time and place designated for the bearing. The clerk will issue the same in accordance with the order signed and filed herewith.
(Oirc'Uit Oourt, S. D. New York.
TRUSTS-DuTY OF TRUSTEEs-BILLS FOR ACCOUNTING-MISJOINDER OF CAUSES.
In a bill by the stockholders to compel the trustees of a company to account for the unpaid profits on their respective shares upon the completion of the trust. it is improper to join a complaint against the trustees to compel them to acount for and pay over to one of the complainants certain dividends wrongfully paid by them to a third party upon his nominal and fraudulent ownership of stock, in which dividends the other complainants have no interest.
To a bill by the stockholders against the trustees of a company to compel an accounting and distribution of the dividends and profits upon the completion of the trust, the real owner of shares obtained by fraud from the trustees by a nominal owner, is a proper party complainant, although such real owner has not complied with the trust agreement; the compliance by the nominal owner inuring to the benefit of such real owner. A contract for the construction of a railroad was assigned in trust for a company, the trustees of which were also the directors of the railroad. Held that, in an action by the stockholders of the construction company to compel the trustees to account for the profits from slIch contract, the trustees could not assert that the contract was in fraud of the railroad. nor that the stockholders had paid no consideration for the contract, and that the railroad was not a necessary party.
SAME-ESTOPPEL OF TRUSTEE TO ALLEGE FRAUD.
SAME-LACHES OR LIMITATIONS-DEMURRER.
A bill by stockholders to compel the trustees of a corporation to account for the dividends and undistributed profits derived from the construction of a