essentially an equitable proceeding to obtain relief. on the ground of fraud' and mistake, and should be so treated. The gist of the cause of action in such a suit, is the fraud or mistake of the engineer. Whatever is done subsequent to the trial of that issue, in the way of finding out what is really due to the contractor, is incidental or collateral to the main issue. I apprehend that if on the trial of such a suit errors to any substantial amount are shown in the measurements or estimates of the engineer, such as would fairly mise the presumption that the arbitrator must have been either ignorant, inefficient, or negligent, no court would hesitate for a moment to grant relief to the contractor, but in the first instance the question whether such errors exist in the estimates, and their probable amount, and whether the estimate ought to be disregarded, is a question for the chancellor, and not for a jury. The fact, if it be a fact, that the engineer or person selected to measure and estimate the work done is in the employ of one of the contracting parties, undoubtedly makes it the duty of the court to scrutinize his estimates with great care, as the law requires of persons so situated the utmost diligence and good faith. Pierce, R. R. 382. This seems to be the rule fairly deducible from the best-considered cases, and the one I shall adopt. In several cases bills have been entertained to avoid erroneous estimates on the ground of fraud and mistake, without a question as to the propriety of such a procedure, and, if equity hus jurisdiction in such cases, it is clear that a court of law has not. Vide cases above cited, and Sharpe v. Railway Co., L. R. 8 Ch. 597. The result is that, if in the cases now under consideration the proof shows that estimates havebeen made by the engineer, which by the provisions of the contract are made conclusive so far as the amount and classification of the work are concerned, and if counsel are relying upon the charge that the engin'eer acted fraudulently, collusively, or negligently to avoid the estimates, the court will hold that the cases are of equitable cognizance, and will. proceed accordingly.
(Oircuit Oowrt, S. D. Mississippi, E. D. May 21, 1889,i
A railroad company is not guilty of an unlawful discrimination or preference in violation of sections 2 and 3 of the interstate commerce act by receiving from a shipper cotton at Delhi, La., shipping it to Vicksburg, having it compressed there at the company's expense, and reshipped to easterD; points for a rate equal to its published through rate from Delhi to such eastern points, where such an arrangement is in compliance with a recognized' custom, of which all other shippers including petitioner, could or did avail themselves, and where it does not appear that petitioner desired to ship any cotton from Delhi to the eastern points, or that he was compelled to pay a. higher rate under similar circumstances.
The fact that cotton raised near Vicksbnrg being considered by eastern buyers to be superior to other cottOD, arrangements are sometimes made tCJo
COWAN V. BOND.
induce such buyers to believe that cotton actually raised in other localities was raised in the vicinity of Vicksburg, cannot be imputed to the railroad company so ItS to make the transaction by which it stops and compresses cot· ton at Vicksburg for eastern shipment an unlawful discrimination.
Petition against Receiver. Dabney, McCabe & Anderson, for petitioner. Birchett & Gilland, for respondent.
HIU., J. This is a petition in the nature of an action at law against F. S. Bond, the defendant, as receiver of the Vicksburg & Meridian Railroad Company, to recover damages, which it is alieged pf-titioner has sustained by reason of the alleged violation of sections 2 and 3 of an act of congress approved February 4, 1887, known as the" Interstate Commerce Act." The petition, in substance, alleges that on the 1st day of September, 1887, petitioner was. and from that time has been, and still is, engaged in the business, occupation, and employment of buying, shipping, and selling cotton in bales to cotton mills and manufacturers at different places, in different states, including Massachusetts, New Hampshire, New Jersey, New York, and Rhode Island; that said defendant, as receiver, under the orders and decrees of this court, of the Vicksburg & Meridian Railroad Company, a corporation and common carrier, was engaged in operating said railroad, and receiving and transporting for hire over the line of which it is part freight, and cotton in bales, in connection with other railroad companies, from points in Mississippi, including the city of Vicksburg, to points in other states, including those above named; also in transporting from points on the Vicksburg, Shreveport & Pacific Railroad, owned by a company which operates, and did operate at the time aforesaid, a railroad from Vicksburg, in this state, to Shreveport, in the state of Louisiana, and in connection with said Vicksburg & Meridian Railroad; that between the 1st day of September, 1887, and the lst day of September, 1888, he bought and delivered to the defendant, as such receiver, for transportation for hire as a common carrier, 9,339 bales of cotton, weighing in the aggregate 4,407,635 pounds, which defendant received and agreed to ship, and did ship and transport, to different points in said states, some to one point and some to another, of which a bill of particulars is filed as part ofthe petition; that from the 1st day of September, 1887, to the 1st day of September, 1888, the firm of W. L. Wells & Co. was engaged in the same business of buying, shipping, and selling cotton to points in eastern states, their business being in all respects the same as petitioner's, and located and doing business at the same place, and to all appearances under like conditions, and hence his rivals in business; that during the same period, said W. L. Wells & Co. bought and shipped. over said Vicksburg & Meridian Railroad large numbtrs of bales of cotton, which were to be, and were,transported in many instances to the same points as that shipped by petitioner as aforesaid; that defendlmt charged and received from petitioner 4 cents per 100 pounds during said time more than he cbarged said W. L. \-Vells & Co. from Vicksburg to the same points,
contrary to law and just and fair dealings, whereby petitioner was greatly damaged in his business in actual outlay in freights in excess of freights paid defendant by said W. L. Wells & Co. on cotton so shipped by him to said points during said time. That in consequence of said discrimination in favor of said \Y. L. Wells & Co. petitioner lost large sales of cotton which said W. L. Wells & Co. were enabled to make, to-wit, 3,000 bales, on which he would have realized $1 per bale, making $3,000; that said unlawful discrimination was done in the following manner, that is to say, the said Vicksburg, Shreveport & Pacific Railroad Company, a corporation owning and operating a railroad in Louisiana, between Shreveport in Louisiana and Vicksburg in Mississippi, which connects with the Vicksburg & Meridinll Railroad in Mississippi, is and was under the same management as the Vicksburg & Meridian Railroad, and is and was part of a system to which the Vicksburg & Meridian Railroad belonged, though said companies were separate [IS to their property rights; that under some complicated arrangement. which wns a secret one, and not known to petitioner, or advertised to the public, the said W. L. Wells & Co. were given by the defendant a ence and advantage over petitioner in his shipment of cotton to the eastern states, as aforesaid; that the arrangement aforesaid was such that for the whole period from the 1st of September, 1887, to the 1st of September, 1888, petitioner and the whole public were kept in absolute ignorance ()f the Jact that such arrangements were possible; that by means of such schemes, subterfuges, pretexts, and artifices, the defendant placed the petitioner at a great disadvantage in his business. and deprived him of the equality in treatment in shipping cotton as aforesaid to which he was and is entitled by law, and said W. L. Wells & Co. were given undue preference and advantnge over him as aforesaid. To the charges thus made the defendant has interposed his answer by way of plea, by which he denies this discrimination as charged, and states the facts in relation to the matters referred to in the petition to be llS follows: The arrangement was for the shipping of cotton from Delhi, La., a station on the Vicksburg, Shreveport & Pacific Railroad to Boston and other eastern points, with the privilege of stopping the cotton at Vicksburg for the purpose of compressing it, under which arrangement Wells & Co. purchased cotton at Delhi, and shipped it to themselves at Vicksburg, on bills of lading to that point, and, when the cotton was compressed and ready for forwarding to destination, the bills of lading from Delhi to Vicksburg were surrendered to the agent of at Vicksburg, who canceled them, and in lieu thereof issued other bills of lading from Vicksburg to final destination, at rates, which, added to the rates already paid from Delhi to Vicksburg, made totals equivalent to the direct, through, puhlished rates from Delhi to such points of final destination; that such arrangements are now, llnd have been for many years, prevalent on all railroadS in the cotton-growing country, which was and is well known to petitioner and all other cotton shippers, and especially to petitioner, who made a similar arrangement with respondent on cotton shipped from Greenville, Miss., over the Louisville, New
Orleans & Texas Railroad to Vicksburg, and thence to Boston ann. other points, and which was made duriug the same sea<;on as that of which the complaint is made, and was identical with it in all respects, except that petitioner's cotton was not compressed at Vicksburg, and consequently the rates given him from Vicksburg were less thfl.n those charged to Wells & Co.; that on all cottons shipped by Wells & Co. direct from Vicksburg eastward the same rates were charged as those paid by all shippers. The facts so stated in the answer are substantially established by the proof, and the question to be determined is do they constitute a violation of sections 2 and 3 of the interstate commerce act of congress? Section 2 rt'ads as follows: "That if any common carripr subject to thp. provisions of this act slmH dirp.ctly or by any special rate, rebate. drawback, or oth r del ice, charge, dE'mand. collect. or reed ve from any person or persons a greatpr or Ipss comppnsation for any sprvice rendered or to bp, rE'ndered, in the ll'ansportation of passengprs or propprty. subj,et to the provisions 01 tbis act, than it eharges. demands, collects, or receiv<-s from any other person or persons for doing for him or thE'm a like contpmp0l"aneOU8 serviee in tht' transl'oltation of a like kind of tratlic, under sul>stantLtlly similar circumstances and ('onflitions, such cllmmon carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited, and declared to be unlawful." Section 3 is as follows: "That it shall be unlawful for any common carrif'r sllbjpct to the provisions of this act to make or give any undue or ullI'easonal,]e preference or ad vantage to any particnlar person. company, firm, or locality, or any particular description of traffic, in any respect whatsoevpr, or to sllbj'>ct any particular person, company. tirm, corporation. or locality. or any particular description of traffic, to any undue or unreasonable prejUdice or disadvanlage in any respect whatsoever." Unfortunately I am left without any decisions of the courts or of the commission on this direct point, and am le,t to my own unaide(l judgment on the question presented. There is much testimony, and has been much comment by counsel, on the question as to whether the rates under the arrangement by which the cotton was shipped from Delhi to Vicksburg and there compressed, the expense of this compressing being paid by the defendant as part of the shipment to enable him to ship a large number of bales on a car, were posted or otherwise availaille to the inspection of shippers and the public. This is not an issue raised in this case, and can only be inquired into incidentally as affecting the rights of petitioner. The substantial subject of complaint is that the defendant made an unjust discrimination in the rates charged for the shipment of cotton from Vicksburg to eastern points in lavor of W. L. Wells & Co., and against petitioner, by which he sustained damage. The uncontradicted fact is that the cotton shipped, of which complaint is made, was shipped from Delhi, in Louisiana, to points east, and was stopped off and compressed at Vicksburg, at the uniform and established rates trom Delhi to the eastern points. The proof shows that this practice is general, and, it may be said, necessary; that it is the practice in shipping from many
other points, and was well known to the petitioner, who had availed himself of it; and it was known, and its advantages received, by all the cotton buyers at Vicksburg on cotton purchased at different points on the railroads connecting at Vicksburg, so that the petitioner cannot complain of this arrangement. The petitioner does not aver that he desired or intended to ship cotton from Delhi, and. was prevented from doing so by want of a knowledge that shipments were being made by 'VeIls & Co. under the arrangement stated. Had such been the case the question as to whether or not this arrangement was included in the rates posted, or otherwise made public, in the offices at Delhi or in Vicksburg, would be important; but as no such averment is made, it is unimportant. I am unable to perceive any difference between the shipments made by petitioner from Greenville and those made by W. L. Wells & Co. from Delhi. The Greenville cotton was compressed at GreenviHe, and the Delhi cotton at Vicksburg, but the costs of both were em braced in adding the local freight from that point, making one freight from the first point of shipment to the point of destination, and I cannot perceive that in either case any advantage is obtained over the other, or that there was any violation of law in either case. It is pressed in argument upon the admitted facts that what is understood by the eastern pl1l'chasers to be Vicksburg cotton-that is, such cotton as is raised in that vicinity-is superior to other cotton, and that, in some instances at least, an arrangement is made to induce these eastern purchasers to believe that cotton raised in other localities was raised in the vicinity of Vicksburg, and that this constitutes such an arrangement a violation of these sections of the act upon the part of the defendant. This may be a sort of pious fraud upon the part of these local cotton buyers upon their eastern employers, whose agents they are, but certainly cannot be imputed to the defendant 01' any other common carrier. To rendcr the discrimination unlawful, the preference given to one over another must be contemporaneous, and under substantially similar circumstances and conditions. Had petitioner purchased cotton at Delhi, for shipmcnt to the eastern points, it would have been the duty of agents at that place to have informed him that he could stop it at Vieksburg, and have it compressed and shipped through at t!:le published rates. A neglect to do so would have been an unjust discrimination, and have entitled petitioner to his action and to a judgment for the da mages sustilined; but this is not such a case. I arn satisfied from the pleadings and proof that the petitioner has not made out a case entitling him to damages; therefore this petition must be dismissed; but, as the question is a new one, each party will pay his ()wn costs.
CITY OF ST. LOUIS V. WESTERN UNION TEL. CO.
(Oircuit Oourt, E. D. Missouri, E. D. June 19,1889.)
CONSTITUTIONAL LAW-INTERSTATE COMMERCE-TELEGRAPH COMPANIESTAlL
Telegraphs being instruments of interstate commerce, and defendant's lines in the· city of St. Louis.being used for transmission of messages to all parts of the United States, neither the state nor the -city can impose a privilege or license tax upon defendant. .
SAME-"REGULATION" OF TEI,EGRAPH COMPANIES.
A tax of five dollars per year upon every telegraph pole used by defendant in the city cannot be upheld under the city's charter power "to regulate" telegraph companies.
Suit to recover tax on telegraph poles. Leverett Bell, City Counsellor, for plaintiff. Cochran, Dickson & Smith, for defendant.
THAYER, On March 23,1884, the municipal assembly of the city of St. Louis amended ordinance No. 11,604, entitled "An ordinance to regulate the erection of telegraph and telephone poles," by adding thereto four new sections, numbered 11, 12, 13, and 14. Section No. 11 is as follows: "From and after the first day ot July, 1884, all telegraph and telephone companies which are not by ordinance taxed on their gross income for city purposes, shall pay to the city of St. Louis, for the privilege of nsing the streets, alleys, and pUblic places thereof, the sum of five dollars per annum for each and every telegraph or telephone pole erected or used by them in the streets, alleys, and pUblic places in said city." Suit in the nature of an action of debt is brought under this section to recover the sum of $22,635, which is alleged to have become due in consequence of the use by the defendant of 1,509 telegraph poles since July 1, 1884; said poles been erected prior to that date. A question is raised as to the right of the plaintiff to sue in such form, inasmuch as the ordinance contains no provisions touching the manner of bringing suits to enforce the payment of the tax; but, waiving that question, I am of the opinion that judgment must be entered for defendant on other and more meritorious grounds also urged by defendant's counsel. The eity of St. Louis was originally authorized by its charter "to license, tax, and reglllate * * * telegraph companies," etc.; but its power to tax the property, real and personal, of telegraph companies, including their franchises, was taken away by implication by an act approved on the 21st of April, 1877, now section 6901 of the Revised Statutes of Missouri. Section 11 of the ordinance cannot be supported, therefore, as an exercise of a taxing power vested in the municipality, unless it be contended that the municipality still has power to impose a" privilege tax" on telegraph companies, and that the charge in question of five dollars per pole is in the nature of a privilege tax levied against the defendant j that is to say, a tax imposed on it as a condition precedent to its right to carryon the telegraph business in the city of St. Louis.