52 F. 912 -

9a

REPORTER,

voL 52.

of San F'rancUJco, 16 Cal. 591. It

that the decision is limited in tilis case to theposs6ss10n maintained under color onide. But I am to find any npon ,this point as to whether a person tel,'S ,UHder color of, title or without. Perhaps a better way of stating the nature of claim as to title that should be made by one claiming is that he silould claim as owner. The fact that he admits th!l.t allpther is owner, of does not claim title against all others, would ,be insufficient. Tpere isn6 doubt that in the ',adrhits ownersQjp:.ofthe property in the United States. Is there any exception as 10 the general hf\ve stated? I think in aU of the western states there is an exception thereto. If a party claims title to land here against all persons but the United States, that is sufficient. This view is recognized in the cases of Francoeur v. Newhouse, 43 Fed. Rep. 236; Hayes 'T. Martim, 45 Cal. 563; McManus v. O'Sullivan, 48 Cal. 15. In this state I am satisfied the. rule, is ,well established not to allow, as a plea of title in a third party, of title in the United States. For many years nQ on!:lin heJP,title til real property against the United States. The adniission, theri,' that the title to the property was in the United States was not all inconsistent wit4 the, plea of the 8tatute··o£ limitations by defendant asagllinst plaintiff, and the two inconsisteXlt. Fortl1esE!, the motion of to strike out is overruled.

CHICAGO

&N. W. Ry., CO. v,

SAME

OSBORNB.

v.

JUNOD

et al.

Ootober 17, 1892.)

(Circuit OourtOf 4ppeals,Eighth 01lrcuit.
Nos.

67,66.

1.

CARRIERS-INTERSTATE COHMERCE-LONG AND SnORT HAULS-JOINT TARIlI'P }tATES. '

,

two r!'oilroadcornpanies owning connecting lines of road unite in a joint througb tariff, the,Y form for tbeconnected roads a new and independent line, andtbe through tariff on the joint line is not the standard by which the separate tariff Qf eitherc;loinpany is to be measured'in determining whether suchsep!'orate Act Feb. 4. 1887. 4, which forbids greater compensation for,asborter than for a longer haul. 48 Fed. Rep. 49, reversed. Under,section;6 of tbeillt6rstate commerce law. (Act Feb. 4, 1887,) and the order of the commission of June 21, 1887, relating- to the publication of joint tariffs, it'is not necessary: for "ither of the connecting lines to publish their jQinttarilfata noncoinpeting point, or to volunteer information of such tariff to shippers. '

2.

SAlliE -PUBLIOATION OF JOINT TARIFF }tATE,NoNCOMPETING POINT.

In Error tQtheCircuit Conrt of the United States for the Southern District q[Jowa. At ' Actions by John Osborne and H. A. Junod and anotheragllinst & Northwestern Railway Company for damages for-

CHICAGO & N. W. RY. CO. tl. OSBORNE.

913

violation of the long and short haul clause of the interstate commerce law. Verdicts and judgments for plaintiffs in both cases. The charge of the court to the jury is reported in 48 Fed. Rep. 49. Defendant brings error. Reversed. Statement by BREWER, Circuit Justice:
The <\efendant in error, plaintiff below, recovered a judgment in the circuit court of the United States for the southern district of Iowa for the sum of $225 for alleged overcharges on corn shipped from Scrauton, Iowa, to Chicago. The action was brought under the interstate commerce act of February 4,1887, (24 St. p.379.) The .facts material to the inquiry are as follows: The defendant owns lJ,nd operates a railroad from Missouri Valley, a towo on the western b&rder of Iowa, to Chicago, III. Scranton isa town in Iowa on the line of ·this road. 88 miles east of Missouri Valley. and therefore so much nearer Chicago.. Tbl:\Fremont. Elkhorn & Missouri Valley Railroad Company owns a railroad running east and west throngh Nebraska, and connecting with the defendant's foad at the town of Missouri Valley. Blair. Neb.· is a point on that road. 13 miles west 9f. Missouri Valley. While the Fremont. Elkhorn & Missouri Valley Rai,lroad Company is an independent corporation, a majority of its stock to the defendant company, and thus the defendant company controls its operations. . Dnringth,e of January, 1888, there was in force. a local tariff of rates charged on the. defendant's road. This local tllriff was duly published in Scranton. In, accordance with it, the rate from Scran ton to Chicago on corn was 18 cents per ll)Opounds. All shippers simply to Chicajl;o paid that rate. The plaintiff. among others, made sundry shipments, and was charged and paid such was, so far as appears, absolute uniformity of. rate as to all such local shipments. At the same time the tariff on corn shipped through from Blair, Neb.. to New York city was36t cents; to Boston, Philadelphia, and Baltimore, 'SUIDS slightly above and below this figure. This through rate was made up in this way: By agreement between the defendant and eastern companies, corn was shipped through to New· York, from Turner and Rochelle, two srnallsta· tions on the defendant's road, on,e 30 and the other 70 miles west of Chicago, for 27t cents, 3t cents of which went to defendant. and the balance to the eastern companies; and by agreement between the defendant and the Fremont, Elkhorn & Missouri Valley Railroad Company, the rate from Blair to Turner and Rochelle, on corn shipped to New York, Boston, Philadelphia. or Baltimore. was 11 cents. In other words. by these agreements of the several companies a through rate was fixed on corn shipped from Blair to New York and other eastern cities; and of that through rate the defendant company received, for carrying the whole line of its road, less than the local tariff of 18 cents, charged from Scranton to Chicago.. This joint tariff was not puhlished at Scranton, and no knowledge of it was given to orposs6ssed by the plaintiff until February 24th; and until that time he made no application for shipment beyond Chicago. Thereafter he shipped to Boston, and received the benefit of the through tariff.

W. O. Goudy and N. M. Hubbard, for plaintiff in error. C. C. Nourse and C. L. Nour8e, for defendants in error. Before BREWER, Circuit Justice, and CALDWELL and SANBORN, CIrcuit Judges.

BREwER,Circuit Justice. (ajte:r 8tating the facts.) This case must be determined exclusively by the provisions of the interstate commerce law, as it was originally passed and before any amendment. No question was submitted to the jury, and no evidence was offered, as to whether 18 cents was or was not in fact a reasonable rate for carrying .com from Scranton to Chicago. The theory of the plaintiff's case was that the defendant company had violated the fourth section of the act, by charging more for a short than for a long haul; and, of course, if it had, it is Ii,able to the plaintiff. v .52F.no.11-58

914
'We'dp'not care to eritetfinto anyextend'ed discussion of th.eInterstate cl1Itinierceact. It was' the pist effort o[thegeneral govermtlent to reguThat business, late' the: [great transportation business of"the though of a quasi public nature, and th(lrefore subjectto governmental regulation, has, as a matter of fact, been carried on 1>y'privll.te capital ·. '. Tbefact that it wits a quaSi public business aIcapital invested iq,it from 'charging, like owners b'(rother property, any price they saw fit for its use. A able wasJll1 that thEly cotlldexact",and he who felt aggrieved',byachargeconld aid of the courts to protect himself apiJlst.it. With,him, however, lay the burden of proving the wasunreas()nable;a burdenWhich all experience shows ,was onerous, and :therefore seldom,undertakeu j the party aggrieved to 8ubmitto! thebvercharge, rather than the expense and the effort$ by state, to establish and means of evidence of easy and aecurate ascertainlimite of is the'dut-yof the courts to see the provisions escongress not frittered tlwayoI;l technical or trifling grounds, yet it;is also equally· their, duty to see that sach a legislation is ,husmess (If, transportabpp. ,be not of of oon11'ttiCt'ilhdright any further than the lawmaking power . be, ..... "" . :w'iti: th$6 preliniinitrY· remark;.. . ·.·.Ji'I:rsr,', has not to require that the tariffs· on nor has it to place a limit in figures 1:10 company may go in ,its charges. The laws of business andb(competition have, as'yet, been deemed sufficient restraints in that is, Chicagqand the Missouri a ,parallel ,andeompetingroad with, thedefendant.eompanYi yet. there the !tct whichqompels either company to charge is for tlil:rQugh or local tranelportation the same as its competitor. . Either company may reduce its. rates aafar as it pleases below what is reasonable and a fair compensation for "the service without violating the act; and such reduction compels no change by its competitor or any other company. This is obvious from a mere reading of the act. That, where two companies owning connecting lines of road unite in a joint through tariff, they form for the connected roads practically a new and independen,t line. Neither company is bound to adjust its own local tariff to's'uit the other, nor compellable '.to make a insist upon charging its local rates for all joint tariff with it. It .. If, therefore, the two companies by agreetransportation over its ment make a joint tariff over their lines, or any parts of tb,eir lines, such joint tariff is not the basis by:Which the reasonableness of the local 'tariff of either line is d'etennined..To illustrate: On the defendant's road, the distance from Turner to ChicagO is 30 miles; .on the Lake Shore line, from Chicago to Cleveland it is two or three' hundred miles.' 'The defendant company may charge 15 cents for transporting grain the 30

CHICAGQ & N. W. RY. CO. 'V. OSBORNE.

915.

miles.from Turner .to .Chicago, providing that be in fact. only 8 reasonable. charge for the 'serVlice, although the Lake Shore Oompanycharges no more for transporting It from Chicago to Cleveland; and the fact that the rate on each lil1l:) is 1& cents for the distance named w,ill not prevent the two companies from making a joint tariff for grain. shipped from Turner to ,Cleveland, ()f less .than the local tariff of either. That we may not ,be misunderstood, we do not mean to intimate that the two companies, with a. joint line, can make a tariff from Turner to Cleveland higher than from Turner to Buffalo, or any other intermediate point between Cleveland and Buffalo;. for when the two companies, by their jqipt tariff, make a new and independent line, that new and inline may be\Jome subject to the long and short haul clause. But what we mean to decide is that a through tariff on a joint line is not the standard by which the separate tariff of either company is to be measured or condemned. This proposition may not be as obvious as the former, and yet a careful study ofthe act leaves no doubt of its correctness. In the first seetion a definition is given of the term "railroad," which,' in addition to bridges and, ferries, includes "also all the foad in use byany corporation operating ,a, railroad, whether owned or operated under ment, or lease." A joint tariff does not bind road to road in the sense that used or operated by either corporation. There is neither.unity of,ownership nor unity of operation, but only a singleness of charge, and a continuity of transportation over connecting roads. Neither isther,e any mandate to connecting companies to surrender any control over their own roads, or to unite in a joint tariff. "Reasonable, proper, and El9ual facilities ,for the interchange of are commanded by the third se,ction; but with the proviso: "This shall not be construed as requiring any such common carrier to give the use of its track or terminal facilities to another carrier engaged in like business." No power existed at common law, and none is given by the act to court or commission, to compel connecting companies to contract with each other, to abandon full control of tbeir separate roads, or to unite in a joint tariff. EXPTeB8 CaSeB, 117 U S.l, 6 Sup. Ct. Rep. 542, 628; Kentucky &. I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. Rep. 567; Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. Rep. 559. The whole matter is left to the voluntary action of the companies; and, in forming by agreement any joint tariff, the basis of division and the proportion of moneys each shall take is also a matter left to their determination. The denunciation of the fourth section is against each separate common carrier, for its violation of the "long and short haul" clause on its own line. The language is:
"That it sballbe unla.wful for any common carrier, subject to the provisions of this act, to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property. under substantially similar circu\Dstances and, conditions. for a shorter than for a longer distance over the samidine, in the same direction; the shorter being included withip. the \li1!tance. .. . .

916

'. nDhAL' REPORTER, vot 52.

TheuEie cillne" is significant. Two tnay use the line. The defendant may lease same road, hut each has its trackage rightstoanr other railroad conl,p.lmy, but the joint use of the same track does not create the "same line," so as to compel either company to graduate its tariff by that onbe other. Ftirther, by section 6, every common carrier is required to print and publish at every depot along its own road schedules showing its rates and fares and chargeS. There is a prohibition against advancing rates withot1i giving notice, and, in case of a reduction, notice thereof must be immediately posted; whereas, in reference to joint tariffs, the requisition is simply that each common. carrier furnish to the commission a copy oflUl contracts therefor, as well as' copies of the jointblriffs; and power giyeil to the commission to determine the amount of publication that shall be required. . Again, at the time ofthe passage of this act joint through tariffs were well known, as well as the fact that they were generallylessthan the suin M.the local tariffs, andnot distributed between the seyeral companies Jl18;kingthem according to the mere matter of mileage. In this act recognized; and, if congress had intended to make the joint local til:pff;subordinate to or measured by the joint tariff, its language would clear and specific. .. .., It. is .;worthy of note that in the debates which attended the passage of' tlHs'bill through the two housesjand while this matter was under discussion, it was again and again said by thoseparlicipating in the debates that the line forllied under the joint tariff of conl1ecting companies was one separate and independent from that of either of the connectingcompanies; and also worthy of note that in the actual administration of affairs by the mterstate commerce commission the same thing has been constantlyrecop;olzed. Applyiog these propositions to the case at bat, a conclusion is easily reached. There is no. pretense that any shipper at Scranton, or other point on the defendantls line further from Chicago than that, was charged less for shipping grain to Chicago than the plaintiff. In other words, there was no violation of the "long and short haul" clause by the defendant, in respect to its own line; nor did the defendant, acting with eastern companies, on. the. line made by its road in connection with theirs, charge or receive for grain shipped from Scranton or any point than the through taTiff. In other words, west, to any eastern point, the defendant did not', separately or in c.onnection with other companies, violate section 4. . It avails the plaintiff nothing that he was unaware of this through joint tariff at. the time he made the shipments which are the basis of his CRuse of action. No false statement was made to him. He made no inquiry in respect to its existence. The matter of publication was by the act, as it then stood, left to be determined by the The provision of the statute, section 6, is as follows:
"Such. joipt rates; on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said commission, in so far as may, in the judgment of the commission, be deemed prac-

TOZER V. UNITED STATn.

917

ttcable; and satd commission shall, from time to time. the measure of pUblicity, which shall be given.to such rates, fares, and eharges. or to luch, part of them as it may deem it practicable for such common to pu.blish. and the places in which they shall be published." '

And the order of the commission made June 21, 1887, plovided that"Such joint tariffs shall be' so published by plainly printing the same ill large type of at least the size of ordinary' pica,' copies of which shall be kept for the use of the public in such places and in such form that they can be conveniently Inspected. at every depot or station upon the line of the carriers uniting in such joint tariff. where any business is transacted in competition with the business of a carrier whose schedules are required by law to be made public as aforesaid."

Scranton was no competing point. No other line, so far as appears, touched the place; and hence no publication of the Joint tariff was there required. Of course the defendant was under no common-law or statute obligation to advise the plaintiff where or how he had better ship his grain. It fulfilled its legal obligation when it published its local tariff; and advised him truthfully in respect to any rates in respect· to which he made special inquiry. For the reasons above stated, on the facts as they appeared in evidence, the Jury should have been instructed to find a verdict for the defendant. The Judgment of the court below will be reversed, and the case remanded for further proceedings in accordance with this opinion. Case' No. 68. Chicago &: Northwestern Railway GYrnpany, Plaintiff in Flrror, v. H. A. Junod and R. Y: Oulbertson, Defl!/Y1,dants in Error, involves the samt' questions, and the same judgment of reversal will be entered.

TOZER

v.

UNITED tlTATJI:B;

(CIrcuit Oovrl, E. D. MU80Uri, N. D. November 15,1_)
No. 78.

1.

INTBRSTATE COMMERCE ACT- UNDUB PREFERBNOBS-JOINT 1'JmOUGK TAB1J'Fll.

Where two connecting lines agree on a joint through tariff, luch joint tartff. or the share of it which ellher takes, is not the standard by which to determine whether either line violates, by its local rates. section 8 of the interstate commerce act, forbidding undue preferences. RailJroad 00. v. 08borne. 52 Fed. Rep. 912, followed. J. SAME-VIOLATION 01' "UNDt1B PREFERENOBS" CLAus.....1NDEFINITENESS AND The" undue preferences" clause of the interstate commerce act Is indefinite and uncertain. and a conviction for its violation cannot be sustained where the criminality of the act is made to depend on whether the jury think a preference reasonable or unrealonable.
UNCERTAINTY,

In Error to the District Court of. the United States for the Northern .Division of the. Eastern District of Missouri.