728
FEDERAL REPORTER.
be valid, it must appear that suchan instrument was executed by the authority of all the partners. The position of counsel for complainants, that as complainants, when they received the mortgage, did not know of the dissolution ofthe firm: or of the execution of the assignment, they are protected, in that they dealt with theparbler in ignorance of the dissolution of the firm, and without notice thereof,has no bearing upon the real, point at issue. Even if the firm had not been dissolved, or if the assignment had not been executed,the right toexe6ute the chattel mortgage in question was not possessed by the one partner; and the complainants were bouud to know that the Ulortgage, being signed by one partner only,wonld not bind the firm unless all the partners assented thereto. If, then, it be true, asavened in the answer, that the mortgage was executed by -King alone, without the knowledge or assent olhia partner, Barge, and that the latter'repudiated the Battle as soon as' notified thereof, it follows that the mortgage cannot be'deemed·to be·theact of the firm, and does not bind thefil.'m property. " The eX,ceptions to'the answer are therefore overruled. ,
UmONPAC. Ry.Co. ". LEAVENWORTlI,
LEAVENWORTH,
N. & S. Ry. Co.
(In Equity.) (At Law.) ,
N. & a.RY. Co.'V.'U:NIONPAC. Ry! Co. , . February 4, 1887.)
(i:Jircuit Gourt, D. 1.
RAiLnoAD Ccn&iNtEs-:.EMINENT DOMAIN-CRoSSING OF RIGHT OF WAy-LAWS
Section 13 of the Pacific Railway: ",ct of July ,1,1862. incorp.orating the Union Pacific Railway\ and that any railroads now inco.rporated·.or llereafter t() 1;Ie mcorporated. 'Shall have tpe rIght to .connect 'theIr rOl;l.d wIth the road and 'branches provided;for by thIS act" at such placesllnd upon such just,and ,eq)litable terms as the the United States may })rescribe," aries not the of way.oftheUnionPacific Railway beyond the reach of the power ofemment domam of the state of Kansas; nor exempt it ,from the operationibJ the laws of the state respecting the orossing and connecting alld theconde'l!lnatioIl,of proIJert:r for these purposes; following timon Pac.Ry. Go. v. Burltngton <& M,R. R. Uo., 1 Mcprary, 452; S. C. 8 Fed. Rep.l06. '; , " I. SAl(lll':'CONDEllNING CROSSING OWB,ANOTHEB'RAILROAD-S:rEOIA1.o PaOfllliEDLAwsJ4.N. 47.' ", A instituted, under, sectidn47, Comp, Laws Kall. 1879. c. 23, in the district' citart. by one railroad company to condemn, a crossIng'over the , right Of way another· railroad; is'not a civUactiOl)., but a speciilJ.proceeding. " ,and,as ordinlU'yrules of, Ilot apply.; OF ; " · "" , . , , InaProce,eding "beA"un by conipany to hav'ecomniission'ers appointeiho ascertain tlle compensation, to' be paid to another railroad ,COJ;npany l.'1CliQ,Ilfl" i, ngth, e latter's ri"ght, ofW,ay · a,nd the points and man,ner Of, s,uch;cross, big, thll should be heard in' the selection of such commissioners, 8lthough theii' aotion is not final, but subjll'ctto review by court.
oFKANilAS-PAd!F'IC RAtUWAyAoT U. S. 1862. lUIS; , '
, '
of
UNION PAC. RY.
tI.LEAVENWORTH, N. '" S. RY. CO.
729
4.
5.,
RAtLROAD MEN. . The duties iJ11Posed upon such commissioners are beyond the mere valuation of. property, and some, at least, of their number should be railroad men. The demand by the petitioners for a crossing at a particular point is not conclusive, and does not limit the inquiry. It is the duty of the commission.erstodetermine the points and the manner of crossing, as well as the amount ,ot,com»ensation. OF CROSSING-DUTY OF COMMISSIONERS.
.In Eqtiity.
I;
.
P. Usher, for Union Pac. Ry. Co. E.SfJillings and L. Bake:r, for Lea:venworth, N. &13. Ry. Co.
'BREWER,J. There aret"v() cases pending betweeq these parties. The first is a bin filed by the UniolrPacific Railway Company to restrain the Lea"enworth, .Northern & ,Sobthern Railway COmpany from crossing its .of . A 'preliniinary injunction is asked. The question pre· sent.edis whether the complainant's right of way is' beyond the reach of th,e state's .power of eminent domain;. fOl" that the defendant does not propose any forcible entrance upon the complainant's right of way, but seeks,by proceedillgs under the statute of the state, to acquire a legal right to cross, is .... .' . r . . The questio.npresented can hardly be considered' an open one in. this court; for itwas decided adversely to complainant by my predecessor in the case ofUrt,U(nPac. Ry. Co.v. Burlington &:M. R. Co., 1 McCrary, 452; S. C.3 Fed. Rep. 106.. See, also, the casepf Northern Pac. R. Co'. v. ·St. Paul, M. &: M. Ry.. Co., 1 McCrary ,302, S. O. 3 Fed. Rep. 702, in which a similar decisio,n was made by Judge NEUloNin Minnecase of U. S.v. RailrMd Bridge Co., 6 McLean, 517. sota; also A rUle of property thus announced should not be s,et aside by the same court in after years, unless the ruling was clearly erroneous. It .is true that the precise reason now advanced bycounselmaynot have been prEr seuted to or considered by Judge MCCRARY; at least, no reference is made to it in his opinion. !tmay have been presented, and deemed by him of not sufficient importance to require special mention. That reason is found in the fifteenth section ofthe Pacific Railroad act of July 1, 1862, which reads: "And be it further enacted that any other railroad company now incOI'P0rated, 01' hereafter to be incorporated, shall have the right to COnnect their road with the road and branches provided for by this act, at such places, and upon such just and equitable terms, as the president of the United States may prescribe." / The argument, briefly stated,' is that one road cannot cross the track of another without connecting 'the two roads; that congress has legislated upon the subject of connection with complainant's road; and that, where congress has legislated on a tnatterwithin its jurisdiction, such legislation excludes and supersedes all state action. Even if it were conceded that congress had the power to enter the territory of a state, and, for any purpose, establish a line through its center over which the state had no right of crossing,-a sort a/Chinese wall, dividing the state into two
730
FEDERAL· REPORTER.
portions, to each other, a concession Ishould never be willing to make,-it is clear to my mind that no assertiol1of such a power was ever contemplated by, congress in the Pacific legislation. The most that can be claimed under the section quoted ,is that congress intended that no roadshould be prevented by state legislation from making a connection with the Pacific Railroads, if, in the judgment of the president, the necessities of the general government required such connection. It would be a strained and unnatural construction to hold that retaining the right to establish a connection carried with it an implied denial of the power of .the state t() authorize a crossing. I think, therefore, that this reason is insufficient to sustain the claim of complainant, and I fully ,concur \yith my the views expressed by him on the general the opiniWi hElJ.'etofore referred to. The application for apreliminaryinj:Ullction will be denied. ' The other case, is one instituted by the Leavenworth, Northern &> Company, under the statutes of the state, in the district court,ofWYandotte county" to, condemn a crossing over the right 'of way of the Union PacificRl,tilwayCQIlllJany. The case, thus commenced in the state, was ,by removed A motion to remand was made by the former company, and last week ruled by Jupge FOSTER. I shall npt .review thisniling, but accept it. for the purposes of this case, as ,con-ect. And yet I may be pardoned for adding, in of what was saill by counsel on the argument, that. if' this rUling, is to be as an affirmation' that the case at bar is within limits of of April 13, 1885, in the caseof Stat6v.l(a7l,8a8 Pac. Ry, (b., in this court, and that such stipu-. lation ,is only .bmding ,up(?n the' and may not be enforced in the courts,!. ILqt not prepared to assent to it. Two years ago this company proposed to, the state, in settlement of pending litigation, to stipUlate not toiremove certain oas,es from the courts of the' state to this That. proposition ,was accepted, and the litigation terminated. Now, while I am awarep{the decision that a oorporation having the, right of removal to the. federal court cannot be compelled to abandon that right as a condition of doing business in the state, yet there are many legal rights which a party may voluntarily surrenderj and I am not prepared to hold. that, when a party voluntarily and for good consideration enters into a solemn contract with a state that it will waive its right of removal of its causes from, the courts of the state,a citizen of that state may not enforce such contract. There may be something more than a question of good faith and morals in this; there may be some matter of legal right. I do not pretend to decide the matter, but simply desire to give notice that, so far as I am concerned, that question is still <>pen. Passing DOW to, the merits of the ,ease: .Defendant has filed a motion to set aside the appointment .ot':.(lommisaioners, on the ground, that such appointment was made without notice to it, and also for leave to file answer to the petition, and, that time be given therefor in accordance with the Code of Civil Procedure, to-wit, 20 days. The proceeding.was
UNION PAC. BY. CO. V. LEA:VENWORTH, N. & S. BY. CO.
731
institllted'under the fifth 'paragraph of Bection 47, c. ,23, Compo Laws 1879,woich, after authorizing the crossing by one road of the tracks of another, reads: " And if tMtwocorporations cannot agree upon the amount of compensation to be made therefor. or the points and manner of sU,ch crossings and connections, the sl,l.meshal\ be ascertained and,determinedby three commissioners, to be appointed by the district court of the. county 1J1, which such crossing or 111. proposed to be made. II '
Now, without discussing thevariou$ suggestions and arguments which have becll made in respect ,to these motions, I will state briefly my conspecial proceeding. As such, the ordinary rules of pleading do not apply. It is intended to be summary and speedy. In ordinary condemnation proceedings to take private property, there is a. preliminary inquest by the county commissionersi ora specially appointed board, from which an appeal as to the amount of compensation may be taken to the district court. ' Even in such, possession of the property may be taken by the railroad company pending the appeal. Here there is 0(5 such preliminary inquest. The proceedings are initiated in the district court. As the property over which the right of way is sought is already devoted to public use, the extra. protection of a second inquiry is deemed unnecessary. But, although initiated in the district court, the proceeding is none theless a special one, and, as delay may work great injury, it should be as speedy as is consistent with full protection. It does not become one corporation, which has itself invoked the state's power of eminent domain, to be captious and technical in seeking to restrain another from the exercise of the same power. 2. Though a special it is a judicial proceeding, and a vital element of judicial proceedings is notice to the party against whom a right is asserted before &,. final determination of that ,right. While the action of the cotnmissioners is undoubtedly not final, but subject to review by the court, yet, their functions are· so important that it is no more than fair that the defendant be heard upon the question of the proper persons to be appointed. I do not mean to affirm that a failure to notify the defendant prior to their appointment renders the whole proceeding null and void, providing due notice of the time and place of their meeting and action be given. Whether 'it does or not, justice requires that defendant be given an opportunity of being heard in their selection, as in the selection of jurors in an ordinary action at law. 3. The duties imposed upon such commissionersare beyond the mere valuation of property, and therefore some, at least, of their number should have experience as railroad men. 4. The notice served upon the plaintiff was sufficient to justify the commencement of this proceeding. 5. Although the petitioner may demand a crossing at a particular point,'such,demand is not conclusive, and does not limit the inquiry, hut,it is the duty of the commissioners .to determine the point and clusions: ' 1. The proceeding is not acivU action, as defined in the Code, but
132
FP:DERAI, REPORTER.
manner:of crossing, as well as the amount of compensation, having due regard to the interests of both roads, as well as those of the public. 6. As in its bill in equity the complainant avers the legal existence of the defendant corporation, such legal existence will be assumed; unless proof to the contrary is offered. The motion, therefore, ofd¢fendant, for leave to answer in 20 days, will be overruled, without' prejudice to its right to present any defenses to this proceeding at the time named for the appointment of commissioners. The motion to 'set aside the appointment of commissioners heretofore made will be sustained, and 'on Wednesday next, February 9th, at 2 o'clock, at my chambers in Leavenworth, I will proceeclto appoint new commissioners, at which titneand place I will hear such suggestionsas eitber party may have to offer in respect to the proper parties ' to be appointed.
MEROAt.rTILE TRUST
,Co.
t1. PITTSBURGH
& W. R; Co.
(Oirtnt# Oourt, 1.
w: ,17.PennayUvania.
February 14, 1887.)
RAILROAD Comu-ms-:MoRTGAGE-RECEIVER-INTERvENTION.
The appoiiitttlentofreceiverso:f 8 railroad company, pending statutory pro· ceedings, court against the company for the assessment of construction damagee. does not interfere with the prosecution thereof, nor is the plain· tiff therein bOund to bring in the receivers. It is their business to intervene, and make defense. if they wish to do so. The jurisdiction of such court cannot be called in question collaterally, the ground of a supposed,mista'ke in holding the plaintiff's case to be within statutorY'remedy. " . ' , TO LOT-OWNERS. . . '
S.SAME.,..-JURISDIC'J1l0N-COLLATERAL ATTACK.
,on
The claim pfa,lot-owner for damages, resulting from the construction arid t' maintenanceon the street in front of his lot of a railroad mounted on trestle· " work, is paramount to the claims of the railroad company'Bmortgage creditors. 4:. SAME-W'AtvER-,-CONS'1'RtJ'CTION 011' ROAD IN STREET. . . '. TheJot·owner does not waive his paramount right by allowing the railroad company to construct its railroad on the street without first making comnensation or'givinJ{security according to the constitutional requirement.
8.
SAME-PRIORlT¥,OF
Sur exceptioDlfto master's report on petition of John A. Verner for an order on receivers of Pittsburgh & Western Railroad Company to pay
In Equity.
judgment for damages from construction of railroad, obtained by him in the court of common pleas ofAllegheny county, Pennsylvania. John S. Fer[fU80n and James T. Buchanan, for exceptions ex parte petitioner. ,Johns McOleave, for exceptions ex parte receivers. ACHESON, J. 1. The appointnientby this court of the receivers did not oust the jurisdiction which the court of common pleas had previously acquired of the proceedings against the railroad company instituted by
