OREGON SHORT LINE & U. N. RY. CO. V. NORTHERN PAC. R. 00.

465

OREGON SHORT LINE

& U. N. Ry.

CO.

v.

NORTHERN PAC.

R. Co.

(Circuit Court. D. Oregon. June 15, 1892.)

L CUSTOM AND USAGE-PROOF OF CUSTOM. The testimony as to an alleged custom of railroad companies operating connecting lines, to receive from each other and transport freight in the cars in which it was tendered, established that, except where the cars of the receiving company were all in use, or where the freight would suffer by being transferred, the question whether the freight should be so received or should be transferred to the cars of the receiving comparry was, as a general rule. dependent upon contracts betvreen the companies, or upon circumstances, such as the condition ana equipment of the cars and the road over which they were to be transported, the determination rest· ing with the receiving company, and the amount received in one way or the other constantly varying. that no controlling custom was shown. So CARRIERS OF GOODS-CONNECTING LINES-PREPAYMENT OF FREIGHT. In the absence of any regulation by law or custom, a railway company receiving freight from a connecting line is not required to advance or assume payment of the charges due thereon for transportation from the point of origin to the point of connection. ' 8. CARl1IERS OIl' PASSENGERS-CONNECTING LINES-PASSENGER TICKETS. In the absence of any arrangement between connecting railway companies, there is no obligation on the part of either to honor passenger tickets issued by the other. 4.. CARRIERS - INTERSTATE CoMMERCE ACT - DISCRIMINATION BETWEEN CONNECTING LINES. Section 8 of the. interstate commerce act, (24 St. p. 880,) making it unlawful for any' \:lommon carrier, subject to the provisions of the act,:to give "any undue or Ull, preference" to any company, etc., or locality, or particular description of traffic, and providing that such carriers shall" afford all reasonaQle, proper, and equal facilities for the interchange of traffic between their respective lines, and for receiVing, forwarding, and delivering passengers and property to and from their several lines and those connecting therewith, and shall 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," does not require a railroad company to receive freight in the cars in which it is tendered by a connecting line, and transport it in such cars; paying car mileage therefor, when it has cars of its own available, and the freight would not be injured by transfer. DIUDY, J., dissenting. l5. SAME-RUNNING CONNECTIONS. . The provision in the charter of the Northern Pacific Railroad Company (Act Congo July 2,1864) requiring the company to permit other companies to form "running connections" with it, includes only such arrangements as to the arrival and departure of freight and passenger trains, and as to stations, platforms, and other facilities, as will enable companies desiring to make connections to do so without serious' inconvenience, and does not impose any obligation upon the company to OlIorry freiKht in the cars in which it may be tendered by a connecting line when its own cars aTe not in use, and the freight would not be injured by transfer to another car. DEADY, J .· dissenting.

In Equity. Action hy Oregon Short Line & Utah Northern Railway Company against the N.orthern Pacific Railroad Company. Judgment for defendant. Statement by FIELD, Circuit Justice: The complainant is a corporation form en under the act of congress of August 2, 1882, entitled "An act creating the Oregon Short Line Railway Company, a corporation in the territories of Utah, Idaho, and Wyoming, and for other purposes," (22 St. p. 185, c. 372,) and by the conit, under the authority of the general incorporation acts solidation of those territories and of the state of Nevada, in force on the 27th of July., 1889, of the following corporations, namely: The Oregon Short v.51F.no.8-30

466

.cn .1:

EEDERAL REPORTER,

voL 5h .

Line Railway Company, the Utah & Northern Railway Company, the Uta,p.C.eiltral'Railway Company, tha Ogden & Syracuse Railway Company, the Nevada Pacific Railway Company, the Idaho Central Railway Company, and the BaIt Lake & Western Railw8lyCompany. The defendant, the Northern Pacific Railroad Company, is a corporation created under the act of congress of July 2, 1864, entitled "An act granting constructiori" of, a railroad and telegraph line from lands to Lake SuperiP1', to Puget sound, oniha Pacific coast, by the. northern route," .(13St;,p: !365, c. 217,) andthe various acts amending and supplementing the,Elame. The complainant owns a'line'of railroad extendin the former territory, now state,..of Wyoming, to ing from the boundary line between the stateEl of Idaho and Oregon, and is the the & Navigation Company, a corlessee of poration organized and e:x::istit'lg under the laws of Oregon. extending frpPI that bou.nua.tY line to the cntQf'Portland"Or. connects with the Union PaCific Railway at Granger, and forms a part of the Union Pacific system. The lines of the Oregon Railway & Navigation Company and of the defendant· are, connected at Portland by the tracks of the Portland Terminal Company. The defendant owns a line of road extendil1gnorthwardly /rolp .the tracks of the Ter1llinal Company to TacomR, Seattle', and oth'erpoints.ori,Puget sound,and thence eastwardly to Mil;itieapolis, and oth'er points. The lineaofthe two companies;;-"'of the complainant and of the delendant,-'-connecting as stated.ttf fc)n1and, have been used as continuous lines for theca1'l'iage of a large amount of passenger and freight traffic. The complaillant charges has for some, time past and still continues to unlawfully discl'iminate against it. in the facilities af.and forWard i,ngfreight and passengers tendered to it forded 'at that place. This suit i.s brought to enjoin the defendant from conagainstthe complainant; tinuing inlilUl}h .'i.'hatdiscrithiiiation consists In of conditions under which the defendant will receive freight and passengers tendered to it at Portland by. the ," ".. ' " ' . . (1) The discriminationinrecei\'ing and forwarding freight is charged '. 'l'ha,t hilS at tinies. refused tei transport freight tendered to it by the complainant, originating at points east of the enth meridian, and destined to points on the lines of its raHway north of Portland, ·when 6uch Was in cars 'other than those of its own, "unless tIle complainant w()uM I assume ro pay to the company owning such foreign cars the usual car mileage for their use, or transfer such freight from the foreign cars in whioh it.w8IStra.nsported over its lines to cars owned bytbe.UefendAnt;and, in caseS where the charges onauch neightwere nofprepald atthe:pGlnt of origin to destination, the defendant has' refused to receive andi1transport sllcb:freight,' unless the complainant would prepay the charges for transporting it from Portland to destination, and· has refused to pnyto the' complainant, on receiving such freight, the charges due to it and connecting lines for transporting the same to'PortHi.nd.. .The alleges that such action' on the

OREGON SHORT LINE & '0. N. RY.OO. V. NORTHERN PAO. R. 00.

467

part of the defendant is contrary to the custom and practice in force among railways generally, and contrary to the custom and practice in force between the complainant and defendant as to all traffic originating on lines of the complainant and connecting lines west of the ninety-seventh meridian. It also alleges that during the time of such action the defendant has, except in a few instances,received and transported, and at the present time professes to be willing to receive and transport, to points on the lines of the defimdant and lines connecting therewith north of Portland, freight originating west of the ninety-seventh meridian on the lines of the complainant, or other lines connecting therewith, when tendered to the defendant by the complainant at Portland, and has paid car mileage for the use of foreign cars in the transportation, and transported the freight in such 10reiRn cars; and in cases where the charges on the freight were not prepaid to destination has not demanded or received from the complaiuant the charges for transporting the same from Portland to destination, and has paid to the complainant back charges due to it and connecting Jines lor transporting the Ireight from the point of origin to Portland. The complaint also alleges that during the same time the delEmdant has received and transported for the Southern Pacific Railroad Company freight originating both east and west of the ninety-seventh meridian without making against the company the discriminations complained of by the complainant. (2) The discrimination in receiving and forwarding passengers is charged to be this: That the defendant has refused to transport passengers destined to Puget sound and other points on its lines. and on lines connecting therewith, when they have presented through tickets issued by the complainant, or by other railway companies operating over its lines via Portland, issued at points east of the 105th meridian. The complaint alleges that during the time of such refusal the delimdant has received and transported passengers destined to like points presenting through tickets issued at points wes' of the 105th meridian by the complainant or by lines connecting therewith passing over its lines via Portland, and that the defendant at the same time has received and honored tickets of all kinds issued by the Sonthern Pacific Railway COllllJUny, connecting with it at Portland, or by railways connecting with it at 8t. Paul. The complainant charges that the refusal of the defendant to receive 'and transport freight in the cars in which it is tendered and to honor tickets as mentioned is an unreasonable and unjust discrimination against complainant and against its traffic originating east of the 97th and 105th meridians, and destined to points on Puget sound via Portland. and in favor of traffic originating east of the 97th and 1051h meridians, and destined to points on Puget sound via Minnesota Transfer, at which latter point cmnplainant alleges that defendant furnishes better facilities to connecting lines lor the interchange of traffic than at Portland; and that the discrimination is in violation of the act of congress of February 4, 1887, entitled" An act to regulate commerce," commonly known as the "InteJ'state Commerce Act," (24 St. p. 379, c. 104,) and is violation of 5 of the namely, of the act

468

FEDERAL REPORTER,

vol 51.

ofcongi'ess'of July 2,1864, (13 St. p. 365,) which requites it to permit any other railroad to form running connections with it on fair and equitable terms. The answer of the defendant denies all the averments of the complaint. except the one that it has usually refused, and continues to refuse, to transport, in the cars in which it is tendered by complainant at Portland, freight originating at points east of the 97th meridian, destined to pointE! on Puget sound, unless complainant waives on its own cars, and assumes to pay on the cars of other companies, the current rate of mileage for the number of miles they are run over its road. It denies that the defendant has refused to receive and transport freight tendered by complainant to it at Portland for transportation to points on Puget sound without prepayment of freight charges to points of destination, except certain classes of freight which it ia the custom of railroads to carry only upon prepayment of charges; and that the terms and conditions desired. by com plainant for the interchange of traffic at Portland are fair and equitable; or that they are as fair and equitable as the terms and conditions upon which the defendant interchanges traffic with other companies at Portland and at other points. As a further defense, the defendant avers that the lines of the Oregon Railway & Navigation Company were, at all times mentioned in the bill of complaint, operated and controlled by the Union Pacifio Railway Company as a part of its system; that the Union Pacific Railway Company and the Oregon Railway & Navigation Company, and the complainant and defendant, were at all times mentioned in the bill members of what is known as the "Transcontinental Association," and as members thereof they entered into an agreement and issued the necessary tariffs and instructions, under .the terms of which the, freight tr?-ffic originating east of the 97th meridian, and all passenger traffic originating east of the 1051h meridian, destined to points on Puget sound, north of Portland, was to be routed via Minnesota Transfer and the Northern Pacific Railroad, and that in pursuance of that agreement the general freight agent of the Union Pacific system, including complainant's lines, issued the following circular: COMPANY, GENERAL FREIGHT DEPARTMENT. "Circular No. 685. OMAHA, January 16. 1889. "To Agents of the Oonnections: hereby given that this com. pany will not receive any freight for Puget sound points, or points of the Northern Pacific Railroad north of Portlalld. when originating at or"east of the Missouri river,' All such freights shall 'be routed by way of Minnesota Transfer. J. A. MONROE, General Freight Agent."
"UNION PAomo RAILWAY

. And that by this agreement Portland was made a common terminal point, with points on Puget sound north thereof, and the complainant had not, at the time of filing its bill of complaint, or at any other time, any arrangement or contract underwhich it was authorized toseH tickets to passengers from points east of the 105th meridian via PortlandanCi. defendant's line to Puget sound points. The avers that, not-

OREGON SHORT LINE et U. N. RY. 00. fl. NORTHERN PAC. B. 00.

469

withstanding these facts, the Union Pacific Railroad Company is soliciting business from points east of the 97th and 105th meridians for tran!portation to Puget sound points via complainant's and defendant's lines without authority from the defendant, and is representing that it can send freight and check baggage through without transfer, and has adopted the following system for sale of tickets from eastern points to Puget sound point!! via complainant's and defendant's lines: It sells and delivers to passengers tickets coming from such eastern points to the city of Portland, and delivers to the passengers an order on the exchange ticket agent of the Oregon Railway & Navigation Company at Portland, for a ticket over the defendant's road from the city of Portland to the dty of Tacoma, or other points on said road in the territory. now the state, of Washington, and the passenger, upon his arrival at the city of Portland, is furnished by the agent with either tickets or a sum of money sufficient to transport him to destination; and the price the passenger pays for such transportation, including that over defEmdant's line, is complainant's rate from the eastern points to the city of Portland. And the defendant avers that at the dates in the bill of complaint mentioned the complainant was, and is now, discriminating in the way stated, in favor of passengers traveling over its lines from eastern points to points north of the city of Portland. Issue being joined upon the answer, evidence was taken, and upon the pleadings and proofs the cause WI4S argued in the circuit court for the district of Oregon in June last. During the argument it was stipulated that the annual report of the Union Pacific Railroad Company should be deemed admitted in evidence. Counsel for the defendant then asked leave to amend its answer by averring the insolvency of the .complainant and of the Union Pacific Railroad Company. Whereupon the court directed that the answer should be considered as though such ;amendment was made. After argument, counsel for the complainant requested 60 days' time to prepare briefs in the cause, which was given, with a similar time to the defendant to answer such briefs. By mutual ;arrangement between counsel, time for the preparation and furnishing of the briefs was extended so that they were not presented to the judges of the court until after the commencement of the October term of the supreme court of the United States at Washington, and during the session of that court the presiding justice of the circuit court was constantly occupied, and was unable to take up the cause and give it proper con.sideration. This is the reasOn for the long delay in disposing of the cause. W. w. (htton and Zero SrwuJ, for complainant. Dolph, Bellinger, Mallmy kSimcm and Jas. M. Naught, for defendant. Mr. Justice FIELD, after statinp; the facts of the case, delivered the .opinion of the court. The oral arguments of counsel on the hearing of this case were extended ._aud able, and their elaborate briefs since filed, covering 350 pages of matter in octavo form, touch upon nearly every question relating

to;.the transfer, and. forwarding of 'freightand passengers by connecting'Jinesofrailway, and the.) respective rights and liabilities of the parties:: ,To give proper considerntion to the questions thus bruught forwardwould.extend this opinion; ,into a treatise on the subject, which we:qave neither the disposition, tUlle, nor necessary information to undertake and adequately perform;. We shall therefore confine what we have to say to the consideration of the main proposition of the comp1ainant,' deeming that its determination will be sufficient for ·the dispositionof the case before us. Its chief contention is that the defendant, as a common carrier by raHway of freight and passengers, is ohliged (1) to receive freight tendered to it by the complainant at Porthmd, Or., that being a,point where it connects with the road of the complainant, in the cars in which it is tendered,and transport the same to point of destination ·in suchenrs. over its roads, and pay to the company owning the cars the current rate of mileage for their use, and also pay the charges for tralilsportation Jrom poillt of origin to Portland; (2) to honor tickets or coupons for passage over itslines north of Portland. issued by the complainant. This obligation of the df"fendant is asserted on three grounds: (i)'The alleged established custom between railroad companies ollerating connecting lines; (2) the third section of the interstate commerce act; and (3) the filth section of the defendant's charter, that is, of the act of congress of July 2, 1864, creating the Northern Pacific Railroad Company. 1. The complaint avers that it is the custom of railroad companies operating'connecting lines to receive and transport freight tendered to them in the cars in which it is tendered. and to pay the usual car mileage on such cars, and to advance the charges for the transportation of the freight from point of origin to the point of connection. This averment is denied by the answer, and numerous witnesses were examined on the subject, called both by the complainant and the defendant, who had been or were connected with railroad companies as managers or superintendent,s, and who had had large experience in conducting traffic between connecting lines. Their testimony difiars only in immaterial matters. It agrees in the main points, and is to this purport: That whether or not the freight received by one company shall he transported in the cars in which it istendereJ, or be transferred to the cars of tbereceiving cotnpany, is, asa general rule, dependent upon contract between the connecting companies, and is not a matter in which there is any established custom appl ica:Jlle to all cases. Exceptions to the general rule arise when the cars of the receiving company are all in use; then the freight is usually received and transported in the cars in which it is tenderoo, that there may be 'no unnecessary delay in the transportation. Sometimes also the cars are received where the freight is of lluch a chara.cter that it may 'be injured by transfer from one car to another. There can be no usage founded in reason requiring the receiviilg company to transport thefreight'iti the cars in which it is tendered, when its own cars are nofin use. The receiving company is not under any obligation to aI'low its own cars to remain idle in order to transport

OREGON SHORT LINE & U. N.R\". CO.

v.

NORTHERN PAC. R. CO.

471

those of another companyjin such cases, that is, where it has sufficient cars for the purpose not in use, it may properly refuse to receive the freight unless i,t is transferred' them., The testimony establishes beyond controversy the positions thus stated, namely, that, except where the cars of the receiving company are all in use, or engaged for the time ()f the desired transportation, or where the freight is of suchachal'acter that it will sufter by being transferred to other cars, the receiving and transporting of the freight in the cars in which it is tendered is a matter of conventional arrangement between the connecting conwariies. In determining which of these modes shall be adopted many circumstances are to be taken into consideration, such as the condition of the cars, the wear to which they have been subjected, their ability to stand the speed of the company's trains, their equipment with air brakes, proper couplings, and the like, and also the condition of the road over which they are to be transported, and the arrangements made for side tracking the cars for the passage of meeting trains, in relation to which several matters no specific direction applicable to all cases can be given. The testimony shows that in some caees, where there is a large business at connecting points, nearly one half of the freight is transferred to the cars of the receiving company, and the remainder is taken in the cars in which the freight is tendered. The amount received in one way or the other constantly varies. The receiver of the Minneapolis & St. Louis Railway Company, and president of the Minnesota Transfer Company, testified that from his experience and observation the question of transferring cars received by one railway 'company from a connecting line, freight for transportation from a receiving line, was determined more or less by the nature of the freight, and the question whether the receiving line has or not plenty of cars of its own in which to load and forward the freight; that in some cases companies decline to allow their cars to go beyond the terminal point on their own line,and in 8uchcases the freight is, of course, transferred. One of the vice presidents ,of the Chicago, Milwaukee & St. Paul RaHway Company testified that, when there is no agreement between the connecting companies on the subject, the question whether the freight tendered shall be transported to destination in the original cars, or be transferred into the cars of thereceiving company, rests with the lattercornpany. The general manager of the Northern Pacific Railroad Company, in answer to the· question, "What is the' custom or ml!thod obtaining among railroads concerning the handling of cars?" teRtified as follows: "The method ()f handling through business interchanged between railroads is controlled by various circumstHnces, in some cases .by traffic contracts, which provide for <'arS going thrOligh without trani:lfer or breaking bulk. II) many ¢ases it is contrl)lled by .conditions of what we might term the car market; that,is, by the car. supply. 'l'hereare times when railroads ell8t of St. Paul give orders at the transfer to permit none of their cars to go beyond i::lt. Paul. There are times when'they'petmit their'cars to go throul:th withOllt breaking bulk. 'On the other hand, there are times when the railroads nOl'th and west of St. Paul do not take through cars, even when the roads

to

472

J'BDERAL REPORTER,

vol. 51.

tenderIng them :are willing to have them go through. because they have sufflcientcof tll-eir own cars, and, under the general agreement and ing between the l'ldlr,qadll of the United States to pay a certain rate per mile on all cars of other rail toad companies used over their lint1s, it would become a burden to take a foreign car, and permit its own car to lie idle. and pay a mileage rentalfortlie foreign car. The receiving road'determines for itself whether to take the carl! of a connecting. line or to transfer the freight to its own cars. This [said .the witness] is the universal practice all over the country, [meaning. ofc()urse. in the absence of special contract on the subject.]" It follows that the complainant has failed to show the existence of a controlling custom as to the manner of receiving and forwarding freight in the cars in which it is tendered. A controlling custom can only be established by;long usage, and must be certain, reasonable, and uniform, to have the:forceof law. As the receiving company is under no obligation to take the freight in the cars in which it is tendered, and transport it in such cars, when it has cars of its own, :not in use, to transport it, there can be no custom that it shall pay the owner of such cars, should it receive them in such case,mirmileagefor their use. The car mileage in that case must be upon an arrangement between the parties. But when the receiving CuIUpanytakes the, freight.in the foreign cars because it has none ofits own out of use to transport it, or because it would injure the freight to transfer it to its own cars, it is the general practice for the receiving company to pay the. usual mileage on the cars taken and used, and such practice is a reasonable one, and should be enforced. There is no law or custom requiring a railway company receiving freight from a connecting line to advance or assume the payment of the charges due thereon for the transportation from its point of origin to the connecting line. If it does thus advance or assume the payment of such charges, it cimretain a lien upon the property transported for their payment as well as for the transportation rendered by itself. A railway company, like any other common carrier,has a right to demand that its charges for transporting goods shall be paid in advance, and is under no obligation to receive the goods for transportation unless such charges are paid, if demanded. The general practice, it is true, is to collect the charges upon delivery of the goods transported to the consignee, and, where goods are received without the payment in advance being demanded, it becomes the duty of the railway company to complete the carriage. Its right to payment in advance is thus waived. It holds, however, a lien upon the goods for payment, and in case the goods are dt1liyered. previous to payment it can hold the consignee responsible. The Same lil.w applies where the goods are received from the original consignor or from an intermediate carrier. The railway company, in the of any contract on the subject, is under no obligation to take tha ciJ,rriage in the or to continue the carriage in the other, Without prepayment of its qbarges, if demanded. . As to the alleged obligation of the defendant to honor tickets or courons for passage overita lines north of Portland, issued by the complain-

OREGON SHORT LINE &: U, N. BY. CO.

v.

NORTHERN PAC. R. CO.

473

ant, it is snfficient to say there is no evidence in support of it. The practice of railway companies, operating connecting lines, to honor tickets or coupons for passage over their respective lines issued by a connecting company, which is very general. is founded entiJ:ely upon arrangements between the connecting companies. In the absence of such arrangements, there is no obligation on the part of either company to honor tickets issued by the other. All the witnesses examined on this point concur in their statements in this respect. 2. But it is also contended that the obligation alleged of the defendant to receive freight tendered to it by the complainant at Portland, and to transport it to the point of destination without breaking bulk, in the mannE'r mentioned, and to pay the charges stated, and honor the tickets of connecting companies for passage over its road north of Portland, is imposed by the third section of the interstate commerce act. 24 tit. p. 380, c. 104. That section is as follows: "That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonaale preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person. company, firm, corporation, or locality, or any particular description of trallic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall 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." The first subdivision of this section does not make all preferences or advantages which may be given by a common carrier unlawful; only those which are undue or unreasonable are forbidden. Thfl second subdivision is similarly guarded in its provisions. Common carriers are there only required, according to their respective powers, to afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and are forbidden to discriminate in their rates and -charges between them. And even this provision is subject to the limitation that it shall not be construed as requiring any common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. As justly said by the circuit court of the United States, in the case of Kentucky &: 1. Bridge Co. v. Louisville &: N. R. Co., 37 Fed. Rep. 624: "No provision of the interstate commerce act confers equal facilities upon .connecting lines under dissimilar circumstances and conditions. On the contrary, even as to interstate commerce itself, the distinction is recognized throughout between discriminations and preferences which are just and reasonable and those which are unjust and unreasonable, according as they are made or given under similar or dissimilar circumstances and conditions. All discriminations and preferences are not forbidden or made unlawful, but only

: ll'EDJl:R.A.L REPOBTER,

vol. 51.

6'ud)

as ,Bre

'or

prohibited. .II1,

Jl

.

'urider

',.

,," "',;:;r"

such !ilsctimination'

a ,COhsideratlon. Of" tbe 'Clrcumstances
'preference is made' or

to,

and or a or the

'

"",:':

'ltjdaeslliot,appean:frl'>mtheoostimony.,produced in, this case that the defendant has, as against the complainant, made, or claimed the right to.gilve"anjyunBue or unreasonable preferences or, advantages to any per· Son, ,f"fittm, or qorporation, or locality, in receiving, and transportmg,freightinthei cllTsoin whioh it is tendered. It has claimed the rigntiil'1: ,AU cases to refusetawke freight and transpqrt it in foreign cars, when it has cars'ofitso,wn in which itcan,beoarried, except, only where the fr-eight is ofsuch 81 'character that its ,t11llJ.1sfer to nnother C3ir would be injurious to it. The answer of the <lefendant impliedly adnlits that it in foreign cars, where the freig'hthasoriginntecl. 97thm.eridian,. unless the complainant waiv'ethni its,own carsrandiass'UmedtOpay 011 the cars of other combf'Inileage for'the distalltl6 run Over defendant's roiidj 'bjit"stich'reftisal'cati no . ,.,--,.' - deemed, ' unreasonable respect be , , ' an , . ,:".OIC C,',: . when the defendant's own cars w.ere: ljlotill use, but were free to :enjployed in the transportation desired" on was made -when to transfertheAreight would not have been injuriotls,to it. Nothing: of this"kindbeing shown, there was no tiort' for 'the .allegation' o!afiv trilj usf oriUega:l discrimination in favor the upon which this . , . .' .' .. .. The alleged disorimination against freight east of the 97th and J I05th meridians, in favor of freight west of those meridis not .shown to have been miidEl under conditions which rendered itunrensonable or a denialofequaltadilities afl'ord'ed to others. Proof to that effect must be produced to authorize a court to interfere with the of a railroad· com#anyin the of traffic with connect· 'inglines,uponchargesd(givi,ng undue or unreasonable preferences to over others, 'and thus unlawfully discriminating between 1htm:x·. Theprovision ih}he second subuivil'/ion of the third section 01' . tpe iilterstate commerce act; that a common carrier shall not be required the use of its tracks and terminalfacilitie.sto another carrier engligoo in like business, is a limitation upon or qualification of the duty decla,red of affording all reasonable, proper, and equal facilities for the interchange of traffio , atid the receiving; forwarding, and delivering of passengers and property ,to and from the several lines and those connecttherewith .. !twas so"expressly held in the'· case above cited of Ken· t?iyky&':L Bridge Co:v. fpuisville &': N.R. Co., 37 Fed. Rep. 571. follo,we from was decided in that case, that a '<;ommon ca,rrier is left fre.e to arrangements for the use of its .trackso'r terminal facilities with one, or more connecting lines, without subjecting itself to the charge of giving undue or-unreasonable preferenoes or ad·
'!. ""

in

as

OREGON SHORT LINE

&U.

N. RY. CO. V.' NORTHERN PAC. R. CO.

475

vantages to such lines, or of unlawfully discriminating against other carriers. In making arrangements for such use by other companies, a common carrier will be governed by considerations of what is best for its, own interests. The act does not purport to divest the railway carrier ·of its exclusive right to control its own affairs, except in the specific ticularsmdicated. As said:inthe case of Chicago &.A. Ry. Co. v. Pennsylvanin Ry. Co., 1 Int. St. Com. R. 86, 95: "The right of ownership of railroad property, with the power ofeontrol over employes and management of the property. ,is as. absolute undl'f the act as before its passage. The regulation of commerce between the stales, which is all that the act contemplates. does not involve community of property or joint control of subordinates among the several companies that honpr tickets. The corporate powers of every company for all administrative and purposes within Its prescribed sphere remain unimpaired. With the legitimate exercise of these powers another com pany has no concern and no right to intermeddle." 3. The fifth section of the defendant's charter, that is, of the act of congress ofJuly 2, 1864, creating the Northern Pacific Railroad Company, making it the duty of that company to permit any other railroad company which should be authorized to be built by the United States, or by the legislature of any territory or state in which the same may be situated, to form running connections with it on fair and equitable terms, does not impose any obligation upon the company to carry freight in the cars in which it may be tendered by a connecting line when its own cars are not in use, except where the transfer of the freight to another would be injurious to it. In all other cases the receipt and transport of the freight tendered in foreign cars is a matter of conventional arrangement between it and the connecting company. The running connecttions which must be permitted by the defendant are not, as conttlnded by complainant's counsel, a running over its line, but only in connection with it; a provision intended to secure the transportation and exchange of freight between connecting lines, and not the use of each other's road by the cars of such companies. Whenever an intention has been manifested, in the creation of railway charters, that a connecting company shall have the power to run its cars over the lines of another. or to require one company to haul over its line the cars of another, such intention has been expressed in unequivocal terms, such as is found in the constitutions or statutes of several of the states respecting railway companies, which is substantially in these terms: "And they shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination." In some of the English charters of railway companies it is provided that all companies and persons shall be entitled to use the railway with engines and carriages, properly constructed, to the provisions of the "act for the better regulation of railways and for the conveyance of troops, and regulations to be from time to time made by the company." The terms "running connections," as used in the act of July 2, 1864, in incorporating the defendant, apply to both passenger and freight con-

476

FEDERAL REPORTER.' vol

51.

nections and fapilities. and yet they do not require the defendant to haul special cars of other companies, such as excursion cars, sleeping ,cars, or cars designed for accommodation in certain particulars, in the absence of specific contract to that effect. Worce8ter .Excursion Car Co. v. Pennsylvania R. Co., 3 Int. St. Com. R. 581. Section 5 of its charter requires it to furnish the equipment to be used on its road. As justly observed by counsel, a running connection which should require the defendant to receive in its freight and passenger trains, composed of cars equipped with automatic couplers, air brakes, steel tires, and other improvements tending to facilitate the safe and economical operation of the and lessen the probability of accidents, cars without such equiprn;imt, and, not adapted to the service, aud faGilities furnished by the defendant, cannot be regarded as fair .and equitable. We are of opinion that a running connectjon of one road with another, within the meaning of the defendant's charter, only includes such arrangements as to the time ·ofarrival and departure of trains, and as to stations, platforms, andoth6r facilities, as will enable companies desiring to connect to do . so. without detriment or serious inconvtlnience. We do not deem it ef>sential to inquire into the arrangements alleged to have been made by the Transcontinental Association, and how Jar those,arrangements should be regarded as binding upon the parties as to traffic in freight originating east of the 97th meridian, and in the passenger traffic originating east of the 105th meridian, as the material questions which must govern the interchange of freight and passengers at points. of connection ill, their respective lines, from whate-ver quarter they may come, are considered so far as there is any difference in the contention between the parties to this suit. Upon ,8 consideration of whatever we deem material in the controversy beforeus,and the proofs which have been produced as to the course of business pursued by the defendant, we do not perceive anything against which the complainant can make any valid objection. It is not shown that the defendant has, at any time, reJused to make proper connections with the complainant seeking to send freight or passengers over its lines north oiPortland"or has, in that respect,given any undue or unreasonable preferences or advantages to other companies over the complainant. It was under .no obligation,by custom or law, to receive the freight of the complainant or of other companies in the cars in which it was ten", dered, and. tr.ansport it over its own road in such cars, when its own cars were not in use, but were. free. to be employed in the transportation de-. sired, unless it would be injurious to the freight to have it removed from one, car to another. Nor is it shown that in any cases it has unlawfully discriminated in its charges against the complainant in the transportation of its freight in favor Of other companies. It therefore follows, without further consideration of the numerous matters touched upon by counsel, that the bill cannot be sustained·. It.will therefore be dismissed, and the mandatory injunction heretofore issued be dissolvedj and it is so ordered.

OREGON SHORT LINE '" U. N. BY. CO. t. NORTHERN PAC. B. CO.

4.77

DEADY, District Judge, (dissenting.) I am sorry I am not able to concur in the foregoing opinion, and, although I do it with some hesitation, I think it proper to give briefly my reasons therefor. It is admitted by counsel for the defendant that the secoud clause of section 3 of the act entitled "An act to regulate commerce," (24 St. 380,) is new, and imposes obligations and restraints upon common carriers, "subiect to the provisions of the act," unknown to the Common law j and this is apparent independent of such admission. The question is, what are these obligations and restllaints? The plaintiff contends in this case that the duty imposed upon the defendant is at least that of hauling car loads of freight, without breaking bulk, when tendered it by the plaintiff, over.its line, from Portland to points on the Sound, charging therefor its local rates, and paying therefor, for the use of the car, the customary rate of one fourth of a cent per mile. The defendant denies this obligation, and contends it is only bound to carry freight in its own cars,and that the plaintiff must unload its cars at Portland. and tender the freight thus unloaded, to be reloaded on the defendant's cars as if it originated at that point. This much it was bound to do at common law,-to carryall freight tendered to it in the order in which it was received. But the section goes beyond the common law, and therefore it must impose a duty beyond that of merely receiving freight from the plaintiff when unloaded from its cars. The language of the second clause of the section in this respect is as follows: "Every common carrier, subject to the provisions of this act, shall, according to their respective poweril, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to alld from tbeir several lines, and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall Dot be construed as requiring any sucb common carrier to give the use of its track or terminaUacilities to another carrier engaged in like business." The carrier is to afford these "facilities" for what purpose? The act says, "For· the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and prop. erty to and from their several lines and those connecting therewith." To exchange freight in bulk, by car loads, is certainly a "reasonable and proper facility" for that purpose. It is a general custom, except in some special instance like this, where the carrier disobeys the injunction of the law for the purpose of injuring Ii competing line in its own interest. To exchange freight by the car load is a "reasonable and proper facility" for the interchange of traffic between these lines, and it is such a facility to enable them to receive and forward passengersand property to and from their respective lines and those connected with them. On the other hand, to require: the plaintiff to unload its cars with freight destined for points on the sound, at Portland, and there reload the same on the defendant's cars as freight originating at the latter point, is to afford no facilities for such purpose at all. Such a construction of the statute renders it altogether nugatory, and leaves

I

l,Dl)BRAL REPORTER;

vol. .51.

,the,biatteras at common .Jaw. Theproviilo to the section strongly sup.por,tsthe p]aintiff'scdntEmtion,' It was evidently inserted out of abun· dance of caution; lest the, very geneml and unqualified language of the :precell1ing [clause mig;ht be "construed;','. to authorize or require one "carrier" to give the use of itstracksoriterminalfacilities toailOther. But, short of this t all facilitieslknownto the railway busines8 t whether the resu]tofcontractor custom i must be regarded as "reasonable ann. proper," in theinterchange.df traffic; or the receiving, delivering ofpasseogers an(t property to and from connecting lines, such as those of the plaintiff and theidefendant.. The' cost of: freight from the plaintiff's cars to the defendant's, . a tthis 'point, operates as a hindrance, if not a bar, to the port cOffreightbyr the former, originstirigeast of the 97th meridian, to be delivered at points on the'Sound ..' The defendant has no more natural righHo.1\ ,monop]y has to that originating west of saiduleridian. To compel the plaintiff' to suhmit to this exaction is to requ,ire it to build a competing road between Portland and the sound, when :one is amply able to do all the business. The community is thereonly is necessary. 'fhe deby taxed to support two roads, where fendant should be required to haul the plaintiff's cars, and also pay the back charges on the freight to this point, 'and collect the same from the This is a !'reasonable and proper facility," for consignee on the the transaction of business, and is;oustomary and usual as well. There may be exceptions to this rule, as in the case of perishable freight. But iuan other cases the ,defendant takes no risk in paying such charges, because the freight is good for them. 11A:1l reaslmable and proper facilities for the int¢rcharige"of 'traffiC," and "for the receiving, forwarding, arld delivering qf passeng,era and to and from connecting lines, includes, a11east, such as railways were accustomed to afford one another before the;passage of the act, whether as the result of usage or contract. Nothing less could have been in the mind of the legislature on the passage oOheact. .Andin my judgment the last clause' of secUon.5 of the act organizing the Northern Pacific Railway Company (13 St. p. 369) also defendant to afford· the plaintiff the facilities in question. It reads : "And it shall be the duty.of the Northern Pacific Railway Company to perplit any other railr9ad Which shall be authorized to be built by the United StatE's, or by the legislature any territ9ry or state in which the sam.e may be sItuated, to runnillg CI)Dllections with it, on fair anl1 equitable terms."

This statute is mandatory. The matter is notle£t to the pleasure or of the defendant. It shall be its "duty" to permit any other road to form "runningCQnnections withit on fair and equitable terms." What are "running COllucctions" but the right to have car loads of freight hauled over tbltdefendant'sroad, and that "on fair and equitable terms," which mea.na.atJeast, such terms as are usual in such cases, whether established by custom or contract. Nothing more is asked by the plaintiff in this ease, and, in myjndgment, the injunction should be made perpetual·.

poE.

oZ.". Colilo

of .AvpeaZl, E41MhC-£rcu:U.

oTul7 10, tm.)

No. 118.

1':utJDt1I.BN'1'in ;equltt against a trustee to subject property alleged to.bave'been 1'rau(l,lUTIDII. .. .· .. A bill

,

;ulently COll.TllYIKi.. to himoonDot be sustained w!ten 'the grantor is Dot a party, if hali, DO judgmlmtapiD!lt him; but merely allege8 on DOtes. 45 Fed. Rep. l)2!a, 8ftlrmed.

: Appeal from the Circuit Conn of the Unit8d: States for the District of Minnesota.' Affi:rmed'. ' 'Statem-entibyCALDWELL, Circuit Judge: Reuben W. Chadbourne, a citizen of the state of Wisconsin, filed his bill in equit.y-in the circuit court for the district of Minnesota, against OrlenP.Whitcomb, a citizen of the state of Colorado, and Coe, a citizen of the state of Minnesota, allel;ing·that Whitcomb was'indebted to the cortiplainant in re sum exceeding $5,000 upon certain promissory notes set out in the bill; that Whitcomb was insolvent, and that, tohirider, delay, and defraud his creditors, he had by deeds veyed certain real estate, and by bills of sale transferred certain personal property, to Coe, upon certain secret trusts in writing, which instruments creating the alleged trusts are made exhibits tothe bill. The last in date of these alleged trust agreements included all the property, real and personal, conveyed and transferred by Whitcomb to Coe, and the powers oonferrM and the trusts imposed on Coe thereby are as follows: "Now, in consideration of the premises. I, the ssidOl'1en P. Whitcomb, hereby authorize and fully empower the said James N. Coe to sell, excbange. or l\ny or of the said property mentioned in the agreements herein. before referred which has ,not been already disposed of, together with all o( the personalproperty hereby conteyed to said Coe to such p!'rson or l?ersons, and for such prices and on such terms, as said Coe shall see fit, and hereby fdlly invi'stinghim with all the rent.'!, profits, and increase of said property, both real and personal, and giving him full authority to execute and deliver any and all con veyance or instruments necessary or proper to convey or dispose of or in the mal1agement of the same, without obtaining my consent the.retoi and the net proceeds, either cash, securities, or other property, derived from the sale of any of said propetty, or the rents, profits, or increase thereof,said Cbe is hereby authorized and directed to hold and apply, when reduced to money,an IIny sum or sums of money now due or hereafter owing to said Coe frQm said Whitcomb, and on any indebtedness incurred in the management of said property; or taxes paid, and on any and all liabilities now or at any time or .incurred by said Coe for said Whitcomb, as surety Or otherwise, and !liter the satisfaction and payment of all such claims and indebtedness whatsoever, the balance thereafter to be paid to said Whitcomb." It is alleged that Whitcomb has no other property out of which plainantcanmakehis, debt. 'fhe prayer of the bill is that the conveyances to Coe be set aside, the trust agreements declared void, and Coe be required to account; that the real estate be sold, and the complainant's debt, paid out of the proceeds,and the moneys received from Coe on the