defendants' counsel objected, and stated that he would 'present his objection by motion to strike it out. So that we think it is fair to consider the matter pending before us as though it were an application to file this bill, with objections thereto. , Perhaps, if leave was given to file an amended bill, and no objection Was made, some other considerations might have force. But, treating it as above stated, it seems to us that this be the rule to govern as applied to the facts in this case. · Th!l bill was one to foreclose a. mortgage. The property covered by the mortgage was certain tangible property, such as type, printingpresses, etc., the good-will of the Dispatch newspaper, and one share in the Associated Press. In all the prior bills the allegation was that the tangible property had long since been used up or destroyed. Andwe held 1 that, such being the case, the: complainant could obtain no relief in this suit. The reasons whiCh compelled this conclusion were fully explained in decisions heretofore filed. The tangible property being gone, there was nothing upon which to decree a foreclosure. Now, this this fact, which has been adjudged a basal amended bill changes type, printing-presses, one, and alleges that that 'tangible etc.-is still inexistence, and in the possession of the principal defendant. Complainant now seeks to find a basis for reaching the other property in the alleged existence of that which it has heretofore claimed had no existence. Ip other words, a basal' fact is now alleged, which heretofore has been denied.' Not only that, but in the course of the argu'ment counsel said he cared nothing for this tangible property; that was not what he WIlS after. Where an amended bill is sought to be filed which is based upon allegations contradicting those in the prior bill, those allegations being of substantial and basal facts, it seems to us the filed. TIle bill is not 'stating court may properly refuse to allow it to new and adp,itional facts; it is not alleging in a fuller or different way facts hitherto averred; it is not an amended bill, but it is a bill contradicting the basis upon which complainant sought to proceed. Motion to strike out will be sustained.
ST. P. &
C. Ry. 00.11.
CITY, ST,J. & C. B. R.Oo.
D. Missouri, St. Joseph Di'Dision. March 11,1889.)
RAILROAD COMPANIES-USE OF OTHER ROAD-L,ONSOLWATION.'
An ordinance of the city of St. Joseph gave the St. J. & C. B. R. Co. the right of way over certain streets to George alley, provided that its roall in the city limit/! should be open to all other railroad companies that should have obtained 'permission of the city. Thereafter the St. J. & C. B.R.eo. consolidated with the M. V, R. Co., forming a new company, the defendant, which built its road from the terminus at George alley. and connected with the :M. V. tracks, making a continuous road the, city. Held, that the
CHICAGO, ST. P. & K. C. RY·. ,CO. II. KANSAS CITY, ST. J. & C. B. R. CO.
right of company to use said continuous. track wtthin the city limits was bv no means so clear as to warrant the issuance of a preliminary mandatory injunctioJ:l to defendant. It would seem that the connecting track, havingbee,n by the new consolidated company., .was not subject to the provisions of, ordinance. The right was still more (lpubtful by the fact that a fO'l'mer suit had been prosecuted lB a state court tIll it was ready for final hearibg.and then dismissed.
SAME-BoND OF INDEMNITY.
The ordinance provided that a company using the St. J. & C. B. R. Oo.'s track should bear its share of the expenses, and, if they could not agree on that, the price should be left to arbitrators, and, pending such arbitration. the company desiring to use the road might do so, on filing a sufficient bond to pay the award. Held, that this proviso could not affect the question of the It simply provided a method of compen· company's right to use the sation.
On Application for a Preliminary MandatoryInjunction. Burns'& Thompson, for complainant. Mossman for defendant. BREWER, J. This case was al'gued before us last Wednesday, on application for' preliminary mandatory injunction. The facts are these: The city of St. Joseph, on September 6, 1867, passed an ordinance which provided in its first section that upon the performance of certain conditions in the ordinance set forth the city would grant to the St. J 0seph & Council Bluffs Railroad Company the right of way over certain streets and through certain blocks down to what is now known, I believe, as George alley. The second section contained this provision: "The st. Joseph & Council Bluffs Railroad Company, upon the acceptance of the conditions of this ordinanct', shall at all times hereafter be open to the free use and right to all oiher railroad companies to run their cars, locomotives, and trains over and upon the said St. Joseph & Council Bluffs Railroad: providt-rl, first, that before any such company so desiring to run its ,trains over said St. Joseph & Council Bluffs Railroad shall first obtain the consent ofthe city of St. Joseph to run through the city upon the said, St. Joseph & Council Bluffs Railroad." A second proviso, in substance, was that such company should bearHs share of the expenses, and, if they could not agree upon that, the price during the pending of such arbitrashould be left to arbitrators, tion the company or companies so desiring to use such road, upon filing sufficient bond of indemnity, obligating themselves to pay the award of the arbitrators, shall not be delayed from using said St. Joseph & Council Bluffs Railroad." Four days thereafter that ordinance was amended in the second section by the of these words, "within said city limits," so that it reads, "shall at all times hereafter be open to the free use and right to all other railroad companies to run their cars, locomotives, and trains over and along the said St. Joseph & Council Bluffs Railroad within said city limits." Obviously that change was made for fear that the ordinance as it!!tood in the first instance would give the right to, occupy the whole track of the. St. Joseph & Council Bluffs Railroad from St. Joseph to Council :aluffai and, that not bl'ling within the thought of the partie!!, it was changeq so as to limit it to the tra.cks
of the St. Joseph & Council Bluff's Railroad within the city limits. That ordinance was accepted by the railroad company, and became, therefore, the contract between the parties; and in pursuance thereof the company laid its tracks through the city to George alley. Some time thereafter,-in 1870, I believe,-the Missouri Valley Railroad Company, a corporation organized to build a railroad south from St. Joseph towards Kansas City, consolidated with the St. Joseph & Council Bluffs Railroad Company, making a new company, the Kansas City, St. Joseph & Council Bluffs Railroad Company, the defendant here. 'I'his new and consolidated corporation subsequently put down tracks and built its railroad through the city of St. Joseph from George alley, the southern terminns of the St. Joseph & Conncil Bluffs Railroad,-not alone the southern end of its track, but also the southern end of its right of way under the first ordinance,-and connected with the track of the Missouri Valley Railroad Company, so as to form a continuous track through the city in a northerly and southerly direction. The complainant, a corporation which has been building a railroad from Des Moines, to the city of St. Joseph, having obtained the consent of the city, now desires to use the tracks of the Kansas City, St. Joseph & Council Bluffs Railroad Company through the entire city of St. Joseph, and has filed this bill, asking a mandatory injunction. The stipulation in the second section, with reference to a bond of indemnity, that during the pending of such arbitration the company so applying, "upon filing a sufficient bond of indemnity, obligating themselves to pay the award of the arbitrators," shall not be delayed from using said track, applies simply to the question of compensation, but. not to the question of right. It means, simply, the question of right being clear, that if the parties differ upon the matter of compensation, the court inay at once interfere. But that does not at all detract from the rule that where a mandatory injunction is asked-an injunction which changes the present status-the rights of the parties must be clear before the court will issue a preliminary injunction. The difference between a mandatory injunction and one which simply preserves thestatua is this: If the right be doubtful the court may issue injunction to prevent any change of status until the litigation finally determines the rights of the parties. But where the injunction will change the status of the parties-and that is the nature of the injunction asked here, being to compel the Kansas City, St. Joseph & Council Bluffs Railroad Company to permit the trains and cars of the complainant to run over its traCA::l-'the right must be clear before the court will, in the first instance, issue an injunction. Is it clear? At the time this ordinance was passed the corporation in whose favor it was passed was authorized to build a railroad from St. Joseph to Counep Blufts. The ordinance gave it the right to enter the city, and come to a certain point in thecity,-George alley. -with the stipulation that any other road, with the consent of the city. might have a right of user of its tracks within said city limits.· The contract is to be read and interpreted in the light oithe situation of the parties at the time it was made. Now, in this view; is it not a fair con-
CHICAGO, ST. P. & K. C. BY. CO. t1. KANSAS CITY, lilT. 3. & C. B. B. CO.
struction that the burden intended to be imposed upon the railroad company was simply in respect to the user of the tracks, the right of which was given by the ordinance? The parties were contracting about a single, limited right of way, and ought not all general words in their contract to be construed as limited to that particular right of way which was the subject-matter of the balance of the contract? And would .it not be a strained construction to extend the burden imposed by such general words to matters in respect to which the parties were apparently not contracting? But, further, it is not the St.·Toseph & Council Bluffs Railroad Com·pany that built this additional track. It is a new and consolidated company; and while the consolidation does not relieve the new consolidated company from the burdens which rested upon the old company, it takes only those burdens which rested at the time of the consolidation; and whatever rights, franchises, and privileges the new company may thereafter acquire are its own, and not incumbered with the burdens which rested upon the old company. The supreme court, in the case of Car Co. v. Ra1lway Co., 115 U. S. 587, 6 Sup. Ct. Rep. 194, discusses this question. In that case the Missouri Pacific Railway Company had made a contract with Pullman's Palace Car Company to operate its coachesPullman cars-on its own line of road, and on all roads "which it now controls, or may hereafter control." Speaking of this, the court, by Mr. Chief Justice WAITE, uses this language: "The new company assumed 01} the consolidation all the obligations of the old Missouri Pacific. This requires it to haul the Pullman cars, under the contract, on all roads owned or controlled by the old company at the time of the consolidation, but it does not extend the operation Qf the contract to other roads which the new company may afterwards acquire. The power of the old company to get control of other roads ceased when its corporate existence came to an end, and the new company into which its capital stock was merged by tJIe consolidation undertook only to assume its obligations as they then stood. .It did not Lind itself to run the cars of the Pullman Company on all the roads it might from time to time itself control, but only such as were controlled by the old Missouri Pacific. Contracts thereafter made to get control of oth!'r roads would be the contracts of the new consolidated company, and not of those on the dissolution of which that company came into existence. It follows that the present Missouri Pacific Company is not required. by the contract of the old company, to haul the Pullman cars on the road of the St. LOllis, Iron Mountain & Southern Company, even if it does now control that road, within the meaning of the contract." Sothe power of the St. Joseph & Council Bluffs Railroad Company to lay new tracks, or to acquire the right to lay any tracks within the city of St. Joseph,· or anywhere else, ceased upon the consolidation. ·Whatever rights were thereafter acquired were acquired by the new company; and, while it took all the burdens that rested upon the old, it rook them as they were limited at the time the consolidation took place. An illustration or two will, I think, make this clear. Suppose the ordinance had stood as originally passed, and carried with it the obligation of the St. Joseph & Council Blnffs Railroad Company to permit any other railroad company to use its entire track, from St. Joseph to Coun-
:FEDERAL :REPORT:E:R, vol.
companYbr its successor haq acquired the right1;()i 1bl:iild from St. Joseph to St.Louis,..-...;.would the burden which rested upon the old company, and rested upon the road which it then owned, go with.jt to the new road, and to every road and every track which it or the new company of which it formed a part might thereafter acquire the right to build and maintain? Or, if any other burden was cast upon it,or an exemption from taxation given, would not that burden or exemption be limited to that which was ill existence at the time it was imposed or granted? When all its right is exhausted, when its power is ended, arid a new· company is formed, if that new company acquires additional rights, and builds other tracks, can it be said that they are included within the burden or exemption? Can it be flaid that it is perfectly clear that this new company is under obligations to permit the use of its entire track through St. Joseph by the complainant? Our impression very strongly is that the right does not exist, arid certain it is that it cannot be affirnled that it is clear that the right to use those tracks exists. And there is another Inatter. No stipulation which the 'parties can make can relieve the court from the duty of exercising a sound discretion in ull matters of injunction. Parties cannot contract away its right, or relieve the court from that duty, In every case where application for preliminary junction, mandatory or otherwise, is made, the discretion of the court must be appell.led to, and the parties cannot in advance by contract or stipulation relieve the court fram the duty of acting upon that disera-' tion. '. here that months since"":""away Now, it appears from along last summer-this complainant commenced proceedings in the state court, and prosecuted the same so far that they were ready for final hearing, and then dismissed. The reasons for that are not disclosed. I presume they were satisfactory. ,But the fact appears, when it asks this court to issue a p'reliminary mahdatory iIijunction, changing the status of property and' course of, business in St. Joseph, that the parties had had ample time by proper proceedings in this or other court to have had the question of right absolutely settled by final decree. And for us now, with that fact staring us in the face, and with the views I have just intimated, to interfere by preliminary injunction, would be an exercise of discretion not proper to courts of chancery. We are compelled to deny the application for preliminary injunction.
and suppose, by subsequent legislation or subsequent:corisolidation, that
oil Bluffs, 'that being the extent of.the franehiseof,the old company;
CENTRAL TRUST CO. V. WABASH, ST;'L.& P. RY.CO.
et al. v. WABASH, ST. L. & P. Ry.
(Clircuit Oourt, E. D. Mi88ouri, E. D. March 18, 1889.)
RAILROAD COMPANIES-INSOLVENCY AND RECEIVERS.
The property of the defendant railway company, which was insolvent, was made up of the consolidation of a number of lines, some of which were taken by lease. Receivers were'appointed to manage the entire system, and it was provided that any lessor might at any time assert his right to possession of lines leased by him for unpaid rent. On the petition of the receivers, showing that one branch of the system, leased to the defendants by the intervenor, was earning more than operating expenses, an order waS made directing that after meeting obligations which had been directed to be discharged by former orders the rental on such branch should be paid to the intervenor, until oth· erwise directed, out of the rents and profits. Hela that, as the directed to be paid by former orders amonnted to a large sum, and were never paid, tbe intervenor had no right to rely upon said order, and was not en· titled to rent under it. "
In Equity. On exceptions to master's report. Petition for rehearing. In re intervening petition of George 1. Seney, The defendant railroad company, the Wabash, St. Louis & Pacific Railway Company, was made up of the consolidation of a number of lines, some of which were taken by lease. On a bill by defendant confessing insolvency, receivers were appointed to operate the entire system, and it was provided that any lessor might at any time assert his right to possession of lines leased 1:>Y him for unpaid rent. On the petition of the receivers showing that a branch of the system, the Clarinda & St. Railroad, of which the intertenor was trustee, was paying more than operating expenses, an order waS made which it was contended entitled the intervenor to rental for the said branch. ''.l!heodore Sheldon, for Wells' H. BlodgeU, for receivers.
BREW.\ilR, J. The opinion filed when this case was originally decided will be found in 34 Fed. Rep. 259.. At that time there were three intervening petitions before us. After discussing the general questions into a conclusi9n adverse to the intervenors, we snid that this intervenor occupied a different position, and had equities based on the order of June 28, .1884, \,\'hich entitled him to recuver. The petiti.on for ,rehearing on the part of the receivers and the purchasing committee challenges this conclusion, and it is that the construction we plll,ced on the order of June .28th is not only erroneous, but in conflict with prior rulings in this same foreclosure. and particularly with the in the intervening petition of Bonner, reported in 30 Fed. Rep.. tn our original·opinion we said,: referring to the order of June 28th:,!
"There was an express order of the court in reference to that branch, and couched in such language that the intervenor had a right to rely upon it, and expecttbepayment of his rent, Until some other order ,was made·. Wherever a specific orderia enteredafteJHlhowiDiand' petition by the receivers, it