.. PENPENTE LITB. ". .
, 'tile ''interstate commerce actauthoriies the court, in Its dlsoretlon; 'to grant a
mwmdamu8, when any question of fact as to the proper compensation of the car!rier israiaed, "notwithstanding such',ql;iestion of fact is undetermined" pending 'the determination of such question. Held, that this does not autb'orize the court to relief where a case of unjust discrimination is not made out.
In Equity. Application for m<1Jnda?nUB. On demurrer to return. J. a. (,'layton, for relators. RogfJ)'i$, Locke Milburn, for respondent·
WALLACE, J. The jurisdiction invoked by the relators is founded on that section of the "Act to regUlate interstate commerce," as amended March 2, 1889, which authorizes the court to issue a writ of mandamu8 upon the relation of any person alleging the violation by a common carrier of any of the provisions of the act which prevent the relator from having interstate traffic moved by the carrier "at the same rates as are tlharged, or upon terms or conditions as favorable as those given. by said Qarrier for like traffic under similareonditions to any other shipper." The unjust discrimination alleged in the petition upon which the alterto transnative writ was granted ,consists in the refusal of the port cattle for Morris, a shipper of cattle, in cars of a special construction belonging to the American Live-Stock Transportatipn Company, superior, by reason of their improvements, to ordinary cattle-cars; whereas, it transports cattle for other shippers in cars having some, but not all, of such· improvements, belonging to the Lackawanna Live..Stock Express Company. 'IheAmerican Live-Stock Transportation Company, the corelator with Morris, is a corporation organized for the purpose of transporting live-stock and other merchandise, and its presence would seem to be superfluous, unless it is here to obtain the benefit of an adjudication that the respondent is bound. to accept its cars, whenever tendered with cattle for transportation, and allow to it the of threefourths of a cent per mile for the use of the cars which the relators aver is allow.ed by the respondent to the Lackawanna Live-Stock Express Company. The return by the respondent to the alternative writ, besides denying in general terms the charge of unjust discrimination, sets forth that it has entered into a contract with the Lackawanna Live-Stock Express Company for the term of five years, by which that company agrees to furnish at least 200 of its improved e.tock-cars to run on the railway of the respondent; that such ellrs are not used exclusively by any one shipper of live-r;:tock, but are available to all shippers; that the cars, unlike those of the American Live-Stock Transportation Company, are so constructed as to permit of the carriage of coal, which is the principal busi:ness of the respondent, not loaded with live-l3tock; and that in consideration of the special contract the defendant agreed to use the cars upon itsrpad, and pay mileage therefor, as if such cars were furnished by a 'connecting company; and it also alleges that, after entering into such agreement, the respondent and several other trunk line railroad compalliesentered into an agreement to discontinue hauling private stock-cars, (jxcept for horses, for reasons which are particularly set forth. The re-
UNITED STATES V. DELAWARE, L. &
Iators have demurred to this return, and move for a peremptory mandamus, insisting that the return does not allege facts which justify the refusal of the respondent to transport the cattle of Morris in the cars of the American Live-Stock Transportation Company. The jurisdiction of this court, conferred by the interstate commerce act, to compel by mandamus the observance by common carriers of the provisions of the act, is restricted exclusively to the prevention of unjust discrimination by such carriers. The question for consideration consequently is whether, if the facts alleged in the return are true, the respondent has been guilty of any unjust discrimination between Morris and the shippers for whom it carries cattle in the cars ofthe Lackawanna Live-Stock Express Company. Unjust discrimination is prohibited by sections 2 and 3 of the interstate commerce act. What constitutes unjust discrimination may be ascertained from the language of these SeCtions, as well as of the section which authorizes the circuit court to redress it by mandamus. By section 2 it consists in charging one a different compensation than is charged another for doing" the like and contemporaneous service in the transportation of a like kiudof traffic, under substantially similar circumstances and conditions." By section 3 it consists in giving "any undue or unreasonable preference or advantage"to any particular shipper, or subjecting him to any undue or unrea· souable prejudice or disadvantage "in any respect whatever." Theformer relates to unjust discrimination in rates. The latter is comprehensive enough, standing alone, to include every form of unjust disorimination, not only in rates, but also in the conveniences and facilities supplied to shippers in any of the details of the carrying service; and such is the judicial construction in England of the term "undue or unreasonable preference or advantage," as used in the English "railway and canal traffic act," (17 & 18 Viet. c. 31, § 2.) It is provided in section 3 that all the common carriers subject to the provisions of the act "shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respecthTe lines, and for· the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and sl;J.all not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to· give the use of its tracks or terminal facilities to another carrier engaged in like business." This provision refers only to facilities between connect..: ing lines at terminal points for the interchange of traffic and passengers; and the term "facilities" does not embrace car equipment for the transportation of freight over the carrier's own road. Scofield v. Railroad Co·· 2 Int. St. Com. R. 90, 116. . These seotions, by declaring the specified acts of discrimination unlawful, qualify materially in some respects the common-law rights and obligations of the carriers mentioned. By the common law, although public earn,ers are not permitted to make unreasonable· discrimination in performing 'the services which they undertake between those whom it is their duty to serve,the discrimination which is unreasonable issuoh
only as inures to the undue advantage of one person or class of persons in consequence of some injustice inflicted upon another. The carrier is not obliged to treat all who patroni.ze him with absolute equality. Thus it is his privilege to charge less than fair compensation to one person, or to a class of persons; and others cannot justly complain so long as he carries on reasonable terms for them. Menacho v. Ward, 27 FecI. Rep. 530. That privilege can no longer be exercised under the interstate commerce act by the carriers subjected toits provisions in the transportation of a like kind of traffic under substantially similar circumstances and oonditions. Again, it is no part of the common-law obligation of railway companies to furnish the same facilities or instrumentalities of transportation to all alike; and while it is unquestionably their duty to furnish suitable and adequate facilities for all reasonable necessities of the busi. ness, they engage in, they may nevertheless chose their own appropriate m,eans of carriage. This was the doctrine of the &pre88 Cases, 117 U. S. 6 Sup. Ct. Rep. 542, 628, in which it was held by the supreme court that railroad companies are not required by usage or by thE\ common law t? transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled. But the interstate commerce act requires them to treat all impartially; and ifone shipper is subjected to any undue or unreasonable prejudice or because a railway company permits another shipper to use his own cars for carrying traffic over its road, their right to choose their own appropriate means of carriage is to that extent curtailed. , It is unnecessary to decide in the present case whether the respondent would be guilty of unjust discrimination towards the American Live. Stock Transportation Company, or indirectly towards Morris, if it should refuse to enter into such an arrangement with that company as it has made with the Lackawanna Live-Stock Express Company. The respondent does not prevent either relator from transporting cattle over its road in the cars furnish,ed to it by the Lackawanna Live-Stock Express Company; and, if the facts set forth in the return are true, the cars belonging to the Lackawanna Live-StockExpress Com pany differ so in c,onstruction from thpse of the American Live-Stock Transportation Company, as well from those of ordinary private stock-cars, that the respondent can use them more profitably and conveniently than the others, because they can be used for its ordinary coal traffic when not in use for carrying cattle. So, also, if the facts in the return are true, the contract made with the l-ackawanna Express Company secures to the respondent the advantage of hlj,ving a definite number of cars always at its disposal for use in its general business,--an advantage which it could not have by using the cars of the American Live-Stock Exprefls Company, or the cars of any other shipper, in the absence of such a contract. Thus there are reciprocal right!:? obligations arising from the contract betweeJ;l the respondent and the Lackawann!\ Live-Stock Express Company, and special circumstances in their relations affecting the question of compensation, which are no.t pres,ent in the conditions of the service which the relators demand. In short, t.here is no unjust discrimination towards the relators as to rates, because
FARMERS' LOAN &: TRUST CO. tI. SAN DIEGO STREET-CAR CO.
the respondent does not refuse to carry traffic for them under substantially similar circumstances and conditions to those of its service for the Lack· awanna Live-Stock Express Company; and for the same reason it does not give the latter any unreasonable preference or advantage over the relators, but only such a preference or advantage as it may fairly give bl'cause of the difference in cost, expense, and the exceptional character of the service. The case of Car Co. v. Railroad Co., 1 Int.St. Com. R. 132, is instructive upon this point. See, also, Nicholson v. Railway Co., 5 C. B. (N.S.)'366; Cooperv. Railroad Co., 4 C. B. (N. S.)738; Oxladev. Railroad Co., 1 C. B. (N. S.) 454. The section which authorizes the court to grant a mandamu8 confers the discretionary power, when any question of fact as to the proper com:pensation of the carrier is raised by the pleadings, to issue the writ, "notwithstanding such question of fact is undetermined, upon such term:s as to security, payment of money into court, or otherwise as thecoill't may think proper, pending the determination of the question of fact." Relying upon this language of the section, the relators imdst that the peremptory mandamus should be allowed, and the question of proper compensation for the respondent be reserved. This contention ignores theconsideratidn that until a case of unjust discrimination is shown to exist the court is not authorized to award anv relief whatever. Hit were shown that the respondent refuses to receive traffic in the carsdf the American Live-Stock Transportation Company, while receiving it for another in substantially the same way, then it might be competent to decide that the relators are prevented from having their traffic moved upon like favorable terms or conditions, and the question of compensation might be determined at a later stage in the case. Until this is shown, however, they do not make out a case fol' the inter.ventionof the For these reasons the return is held to be sufficient.
(01/reutt Oourt, S. D. California. October 8, 1889.)
MORTGAGB-FORECLOSURE-RIGRT TO INTERVENE.
To a bill to foreclose a mortgage on tbe property and franchises of a street-rail. road company; which mortgage covered after-acquired pro'perty, intervenors fiied a cross-bUI, that a certain portion of the after-acquired property bad been acquired .by funds furnished by the intervenors under contracts by which the company was to construct and operate that portion of its line for a certain time and in a certain manner; that the bondbolders and the corporation had conspired together to file the bill for foreclosure, and by the sale to deprive the intervenors of their rights in the property; that accordingly a receiver had been appointed, wbo refused to operate that portion of tbe line, whereby intervenors had been deprived of the advantages provided for in the said contracts; and that the contracts provided that, upon thefaliure of the company to operate the line, a conveyance of it. was to be made to intervenors. The prayer was for such con,veyance. Held·that, as the claim of the intervenors was adverse to the partiea to the bill,",e O1'OI8·biU should be disnUssed. . '
In Equity. Bill to foreclosew,ortgage. On motion ,to strike answers from the and demurrers tq Turner, ¥cClure &: Rolston and ¥yri(lk« Deering, for complainant. BrU?'!8on, Wilson &: J.amme, for defeQdant. .' Parrish, M088holder &: Lewis, WeUs,Guthrie &: Lee, for i.n.tervenors.
Ross, J'·. Without noticing objections urgedto the answer and cross-bill filed by the intervenor!!, I think the more substantial objections well taken. The pill 'f.as filed for the foreclosure of a certain mortgage, executed on the 2d day of April, 1883, by the defendant, the San Diegl) .Street,Car Company" 1;0 the compl1tiul,t11t as trustee, to secure the payment of fb;st,.mol'tgage bonds of alleged to have issJIed on thatday by the'saidstreet-carcompany, payable on .the .lst day of April, 1908, with interest at the rate of 6 per cent. per annum, payable semi-annuf!,lly, on: the 1st days of April and October of 'elJch y'ear, such in'tel'est pay,menta being further evidenced by coupons attache<i to, the bonds. The property thus mortgaged was the line of ,street raihyltY then owned by the compll-ny in the city of San Diego, Cal., franchises, and property of every kind used orin. any .way connectl,ld therewith, and also' lUI franchises aqdproperty that might ,thereafter peaccquired 1:>Y the defendant corporation for the purpose of its Uq.e ,of all branQb,lines, extension.El, side tracks, and switches that [might be thereafter.con.structed. 'The mortgage contained a provisioq..that. In the event.deflljult should bem.@e by the mortgagor CPIHpany \0. the o( any of interest, and such default for 60 days,the,pl'ipcipal sums of, tl1e bonds shouId,at the election of the h01dersof 126 and immediately and. in .such case as trustee, might institute suit in any QOurt fQr theforec1osllreQfthe mortgage, and might prosecute such suit to a final decree and sale. The bill alleges that the mortgagor company failed to pay the interest due on the 1st day of October, 1888, on thedbonds issued and then outstanding, and that such default in the payment of said interest has continued for 60 days and more, and that the holders of 126 of said bonds, and more, that the prinCipal seCured by the bondS issued and outstanding under the said mortgage has become and is due and diately payable,"8nd thaU'be holders and owners of more than 126 of said bonds have requested, in writing, the complainant to commence this suit ' ., . ' , . ; . ..:' !' "iWl,lireepect answerQf the In.tervenors, whQ, are A.Klaqber. S. 'Steirlet"F.,L.Castle, and D.Choatejit,issufficientto say that, as neither beehwa.deadE)fen4ant to the sUit.eitherpy the,orig'inial bill. or M;nerwise, there are no allegations calling for an answer on to theblllhas,. no iplaooin/,tbe.l,eords;and :should be expunged. ." . ·. . ... ;';'iTlle" 1:11E)d, by, th¢ illterv¢nors against the bomplainan,t and. the ,<!Jefendarit insobstaneesets up this, state of facts: The C!:efendant corpo'ni\iO¥t"h'ittt -6bfiStiJudtM;ahd the busi-
FARMERS' LOAN & TRUST CO. V. SAN DIEGO STREET-CAR CO.
ness and central portions of the "City of San Diego in the directicn tain real estate owned by the intervenors,which line was apart' of the property included in the mortgage to complainant. For the pllrpOSe of enhancing the value of their said real estate, the intervenors were desirous of having the street railroad extended, and accordingly contracted with' the defendant corporation for such extension. Three separate contracts company, respectwere made between the intervenors and the ing that luatter,.......the first, on the 30th day of September, 1887) the second, on the 2d day of April, 1888; and the third, on the 3d day of December, 1888. By the contract of September 30th the street-car company agreed to extend its line from its then terminns, on D street, to a point to be designated by the intervenors in their tract of land, called the U Steiner, Klauber. Choate, and Castle's Addition to the Cityof San Diego,'" upon these, 'among other, conditions: (1) The intervenors to secure the right of way "for such extension free of charge to the company; (2) the intervenors to pay to the company $6,000 for each mile of such exten"Sion,exclusive of the cost of bridges and culverts; (3) the intervenors to pay the cost of all bridges and cuIverts necessary to be constructed on the line of snchextension; (4) payment to be made by the intervenorS at the rate of 80 per cent. for each mile of road as completed, and the balance to be paid on the completion of the entire line. It was further agreed that the street-car company should run a car on such extension "not less than three times per day; the fare to be not exceeding ten cents' for the en.tire distance each way." The contract of April 2, 1888, refers to that of September 30, 1887; recites the fact that pursuant to it the partially constructed the line of railway therein contemplated and provided for along the route designated by the intervenors, and that the intervenoIil' had procured the passage of ordinal'lCes of the city granting them a franchise for the construction and maintei1ance of the road as contemplated in and' by the contract of September 30th; and then proceeds that "whereas, matters of controversy have arisen in the construction of the terms of said contract; [of September 30, 1887,] and as to the meaning thereof,and it being deemed to the best interest of all parties that Baid road shOUld De completed at the earliest possible moment, in the most ecOnomical manner, and to the greatest advantage Of each of the pattie!t theretO', now, therefore, this contract [that of April 2, 1888] is made and entered into for the purposes hereinalter set forth by this instrument, each waiving all rights and privileges hereafter accruing under the said contract of September 30th, and covenanting the one with the other to the following effect, to-wit:'" (1) The street-car company to complete the line of road in accordance with certain plans and specifications annexed to the contract, and to construct it between certain points marked, respectively," Station A" and" Station B" on a certain exhibit attached to the contract . and made a part of it. (2) All expenses incurred. by rea!l0n of a change of the road provided for by the contract. to be borne by the companY', bntthe intervenors to pay the company$2;OOO as compensation for making the change. (3) The intervenors to obtain the
right of way for the road between stations A and B at their own cost, and without expense to the company. (4) The intervenors to pay for all trestles, culverts, and bridges necessary for the road. (5) The company to complete the road within 90 days from April 1, 1888, provided the bridges be completed within six weeks from the date of the contract; but in any event the road to be completed within four months from that date. (6) That portion of the road constructed between stations A and B to be .,perated before the completion of the entire road,provided the contractors therefor agree. (7) The intervenors to pay the company thousand dollars for each mile of the road constructed, exclusive of the eost of bridges, trestles, and culverts, fifteen thousand of which to be paid on. the execution of the and seventeen thousand of which is to have been theretofore received by the company; therein the balance to be paid upon the completion of the road, in negotiable paper acceptable to the Bank of California, and payable four months aMr (late thereof. (8) An acknowledgment by the intervenors of the execution of an assignment of even date to the street-car company of., all,of the franc.i1ises granted to the interyenors by the city of San Diego, !ind.of all their right, title, and interest in and to said railroad, includ-: ingalltrestles, culverts, and bridges" which assignment was at the same time placed in esqrow with the First National Bank of San Diego, to be the. com pany when the road should be completed and in 9peration, as provided by the contract. (9) Upon thedeli,very of the assignment the street-car company to operate the road as a belt road for through the said Klauper, Steiner, Choate, and Castle addition, and, in said operation to run not less than three regular trains per day, umwoidable delays and accidents alone excepted. For a violation of Which covenants, or any of them, and as apenaIty inuring to the ben- . eftt of the intervenors, l'a forfeiture. thereupon shall ensue of all fran¢hises, bridges, trestles. culverts, ties, rails, and road-bed, built as aforein accordance with the terms hereof," to the intervenors. .;" By the contract entered into between the intervenors and the defendcompany on the day of December, 1888, the contract (jIi"April 2, 1888, was so changed, in consideration of $12,695.88, paid to the, pompany by the intervenors, as to provide that the company ellOpJd operate the whole of the line of road from the intersection of D and '.I:'welfth streets. in. the city of San Diego, up Switzer canon, through the Klauber, Steiner, Choate, and Castle addition to the intersection of Pacifi(l avenue ",ith Steiner street, in said addition, for a period of 10 from DecempE:r 3, 1888, apd illsuch operation to run not less than trains over the entire length of said road each and ·every day <luring said term, unavoidable delays and accidents alone further agreeing that, if the company should at any time said 10 years fail to run the trains as then,as a penfor such failure, to forfeit to the intElrvel10rs all of said road from llaid and Twelfth streets to said intersection of Pacific 'Steiner streets, together with all the franchises, bridges, fresges,culverts, ties, and right of way of said road between