30 Leg. Int. 149 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1873
Lead Opinion
The prayers of these bills are the same. Although, in form, they invoke the preventive intervention of the court, they are founded upon the alleged denial of certain legal rights claimed by the Adams Express Company, and it is manifest that the only beneficial measure of' relief would be a mandatory order, constraining the defendant to concede to the express company the exercise and enjoyment of the rights claimed by it. This it may be within the range of the power of the court to decree, but it ought to be done only under-circumstances of special exigency, to avert the continuing injuriousness of clearly wrongful acts. As a method of enforcing the concession of a mere right, it is inconsistent with the object and appropriate functions of a preliminary injunction. In Lehigh Coal & Nav. Co. v. Lehigh Valley R. Co., referred to-in Audenried v. Philadelphia & R. R. Co., 18 P. F. Smith [68 Pa. St.] 376, Mr. Justice Strong said: “A preliminary injunction-ought never to be granted except in a clear ease, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the-law, it must be used only when necessity
Is there anything, then, in the circumstances of the present case to demand a resort to so questionable a mode of interposition? 'The Adams Express Company is entitled to protection only against such illegal acts of the defendant as are prejudicial to its rights and interests. If the railroad company has , assumed the exercise of any franchise not i •conferred by its charter, the express cornpa- ¡ uy is not authorized to call it to account. If, i without right, it seeks to appropriate the j profits of a business of which the express : company before had the monopoly, it does not thereby incur any liability to the express company. Their relations to each other grew out of the corporate duties of the defendant as a common carrier, and it is only for a failure or refusal to perform any of these duties to the express company as a shipper that the latter has a right to complain. The transportation of its freight over the defendants’ road is not denied to the express company, nor can it be. The parties disagree as to the regulations imposed and the rates demanded by the defendant. The right to rebate from the charges of the defendant, equal to the cost of collecting, trans- i porting, and delivering parcels from and to ■ the doors of the consignors and consignees, and the right to pay for transporting a package of parcels only the price charged for a separate one, are claimed by the plaintiff, and constitute the substantial subjects of the contention. Practically, only the profits to be derived from the express business on the Philadelphia and Eeading Eailroad are involved in it. Shall these profits accrue to the railroad company or to the express company? Are these questions of such urgent significance as to call for their decision before a final hearing? To decide them now, as must necessarily be done if the present motion is allowed, is, in effect, to decide them finally, because a final decree could not more fully secure to the plaintiff the enjoyment of what it claims than would an interlocutory injunction. Why should this be done in the absence of an answer and of the proofs necessary to a precise adjustment of the relative rights and duties of the parties, or without a trial at law? “To preserve the subject of the controversy in the condition in which it is” now, does not require it, but the effect would be to undo what has been done, to take away from the defendants the controverted rights now enjoyed by them and confer them upon the plaintiff. This can be accomplished appropriated only by a final decree. Nor has the complainant Cambios any better title to this summary relief than the express company. As a stockholder in the corporation defendant, his only interest is in being protected against the risk of loss. So long as those who manage the corporation keep within the limits of its charter, and commit, or propose to commit, no breach of their trust, he has no right to complain. In Dodge v. Woolsey, 18 How. [59 U. S.] 341, the court says: “It is now no longer doubted, either in England or the United States, that courts of equity in both have jurisdiction over corporations, at the instance of one or more of their members, to apply preventive remedies by injunction to restrain those who administer them from doing acts which would amount to a violation of charter, or to prevent any misapplication of their capitals or profits, which might result in lessening- the dividends of stockholders, or the value of their shares, as either may be protected by the franchise if the acts intended to be done create what is, in the law, denominated a breach of trust.” If the acts complained of are violations of the defendants’ charter, as they are not, because concerning only the administration of its legal faculties, the mischief has been already done, —and a preliminary injunction could not avert their injurious consequences; and surely the value of the complainant’s stock will not be impaired, or the dividends upon it lessened, by securing, its participation in the profits of a business which he seeks to divert into another channel. And then as to the
Concurrence Opinion
I concur in the opinion of the circuit judge, and in his reasons. We have arrived at the same conclusion by processes of reasoning perfectly consistent, though not alike. His opinion, as delivered, is, almost independently of any question upon the merits, confined to that of remedy in, the present stage of the cause. My opinion was formed upon a consideration of the merits of the whole controversy, reducing the numerous questions to two, and even dividing each of them, so as to leave only one point under each, open to future doubt. I was thus able to limit the question, which the circuit judge has considered at large, to these two points. But it was therefore necessary to form an opinion upon most of the other questions. This was done without any opportunity of consultation with him, until the present term. Either method of considering the case was proper. It had been very fully argued, and nothing could be added to the printed briefs of counsel. But if the circuit judge had either differed, or doubted, as to any part of my opinion, I would not have delivered it. He, however, concurs on every point; and is desirous that it should be considered as the opinion of both judges.
The case at the suit of the express company will be properly considered before any distinct consideration of the stockholders’ bill. But certain points of argument which are more or less common to the two cases will, in considering the former one, be noticed somewhat more fully than might bo necessary if it were alone before the court. Any question of supposed liability of the charter of the defendants to forfeiture, belongs only to the case under the stockholders’ bill, as the circuit judge has clearly shown. But the interpretation and effect of the charter, upon which such a question depends, may also ascertain relations of the defendants either to the public generally, or to certain freighters, upon questions belonging peculiarly to the other case. Each party imputes; with apparent reason, to the opposing litigant, a purpose to monopolize the transportation by horse power of light freights of small bulk to and from the railroad of the defendants. With permission of the circuit judge, I quote him as having, in. consultation, said of the case, that it is a war of monopolists. There is unlimited legislative power to create such a monopoly. 6 Whart. 46; 12 Harris [24 Pa. St.] 382; [Bridge Proprietors v. Hoboken Co.] 1 Wall. [68 U. S.] 145, 146; [Binghampton Bridge] 3 Wall. [70 U. S.] 81, 213; Slaughterhouse Cases (Sup. Ct. U. S. April 14, 1873) [16 Wall. (83 U. S.) 36], affirming 22 La. Ann. 546; and see 2 Gray, 1. Any exclusive profit granted by the state, either to an individual, or to a corporation, is a monopoly in the general sense of the word. In former times it was ordinarily understood as an exclusive profit for which the public received no equivalent benefit Such a monopoly, though against public policy, and odious, can be legislatively granted in most states of the Union. But in our day, a wiser policy and a decent regard for public interests, and for public opinion, prevent any direct and avowed establishment of monopolies of this kind. Existing railroads are not monopolies in any such sense. The efficiency of the locomotive steam engine for enlarged purposes of transportation upon a fixed metalic rail was not completely established until the latter part of 1829. The public benefit then expected from a railroad was the substitution of the power of steam for that of horses, in transportation upon land between distant places. It was known that the production of this result would require immense expenditures. But the capital invested in the construction of railroads, and in their equipment, exceeded by almost countless millions, what was at first expected. Nevertheless, whenever the roads have been completed, even where the private contributors have received no remuneration for their outlay, the public benefit has been great; and where the private remuneration has been greatest, it is but small in proportion to the beneficial results to the public attained, and in prospect. These results exceed immeasurably the most sanguine former hopes. In all directions, a force equal to that of millions of the strongest horses, working by night and by day, and consuming no food, has, on both sides of the Atlan-
The ordinary modern practical use of the word “monopoly” is in the sense of an exclusive profit for the grant of which by the state, the public are intended to receive equivalent . benefit. In what follows, the word, unless otherwise qualified or explained, will be so understood. It has been said that every grant of a corporate franchise or privilege may, so far as it extends, be called a monopoly. The word will not, however, be used in so vague a sense. It will be understood as applicable to those privileges only with which there is no present available competition. The legislative charters of some of the railroads companies created soon after 1S29 contained express provisions of different kinds against the making, during a limited period, of a railroad by any 'one else within a defined area. The legislature could not afterwards, with .constitutional effect, sanction the establishment of such a competing road -without providing for the payment of compensation for the loss or diminution of the monopoly, after a proper ascertainment of the amount. West River Bridge Co. v. Dix, 6 How. [47 U. S.] 507; Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. [54 U. S.] 82, 83; 11 Wright [47 Pa. St.] 325-329; 2 Gray, 1, 42; The Binghampton Bridge, 3 WaU. [70 U. S.] 52; 1 Redf. R. R. (4th Ed.) § 70, pp. 257, 258. It is believed that in Pennsylvania and in most of the states no such improvident legislation is now in force. When it is not, the legislature, not having disabled itself, is under no such constitutional restraint; but may authorize the unconditional construction of new railroads, however near they may be to existing lines. The justice and wisdom of such legislation depend upon relative considerations, which may vary as increase of wealth and population diminish the area of a reasonable monopoly. The question may likewise be affected more or less by lapse of time. To authorize the construction of a new railroad very near to a rail recently laid might be manifestly unjust and impolitic. 7 Harris [19 Pa. St.) 216, 217. But when a change of local circumstances creates a public want of a neighboring line which can be profitably used, it would be anomalous that the existence of the former public highway should indefinitely prevent the construction of the new one. The loss, total or partial, of the profits of the former one from consequences of such local change was a contingency to which its owners were always liable. We see this contingency on a large scale in existing and projected railways to the Pacific. The unlimited legislative power over the subject is unquestionable. The construction .of a new road without any compensation to the owners of the former one, may be continually
The company, as owner of the road, has thus a legitimate monopoly of the rates chargeable for the use by others of the track itself as a public highway. These rates, and nothing else, are, in a strictly proper sense, called “tolls.” 4 P. F. Smith [54 Pa. St.] 315; 15 P. F. Smith [65 Pa. St.] 210; 1 Q. B. 575-577; 9 Bxch. 642. If railroad companies did not furnish any motive power, and were not in any wise carriers, their only gross profits would be tolls thus properly defined, and the companies would have a monopoly of them. The earlier legislative charters of railroad companies after 1S29 were not alike. Some of them indicate that companies were not expected to engage at all in the business of transportation. But most of the charters, even of that period, import that their respective companies were expected to become carriers on their own roads, though not to monopolize the business. The
Until 1829 horse power alone had been used upon railroads. An English railway, or tramroad. had been made by laying iron or wooden pieces in two parallel lines for the wheels, without levelling the track by cuttings or embankments more than by tne grading of a turnpike road. Most of these former railways or tramroads were private ways. But most of them were public highways. 'See 2 Barn. & Aid. 646; 1 Shelf. Bys. (Glen’s Ed.) Introduction, pp. 27, 28. From a supposed analogy to them, the original notion as to a railroad, fitted for the use of a locomotive steam engine, was that any one of the public might, under proper conditions and regulations, use his own locomotive engine with its train upon the fixed rail, in like manner as a boat upon a canal, or a vehicle upon-a turnpike, paying in like manner a fixed or a reasonable toll. The Versailles Railroad, on the left bank of - the Seine, seems to have been thus used, for a time, to a limited extent (Duverdy, § 160, note, p. 237); and in England the Grand Junction Railway was, at one time, and possibly may still be, to a small extent, so used. See 4 Q. B. 20; 1 Shelf. Rys. (Glen’s Ed.) p. 507. The rail may still be thus used by the engines and trains of connecting ■railroads paying toll or an equivalent compensation. See 4 Q. B. 19-22, 37, 38; 9 Exch. 642; 2 Q. B. 251. But except for purposes of connecting railways, this use of the track by others than the company owning the road is very little, if at all, practiced in Europe, and is in the United States almost, if not quite, unknown. 1 Redf. R. R. § 124 <4th Ed.) p. 440. This tacit exclusion of the public from participating in the business of transportation by rail, resulted from what was almost absolute necessity. Under the present system of transportation upon a railroad, such are the dangers from the moving fires, from the intensity of the pressure of steam, and the frequent insecurity of boilers, from the great velocity of the trains, their extended length and immense weight, and the inability to deviate from the track, that a divided control of the locomotive power was very soon found inadmissible. It thus became impossible for the public generally to use locomotive engines upon the lines, and impossible to use cars of any kind independently of the most rigid supervision and regulation by the railroad companies. See 1 Shelf. Rys. (Glen’s Ed.) Introduction, pp. 29, 30. If dangerous interference with the police of the roads could have been avoided, the subjection was greater than could be submitted to by independent carriers. Through this relative necessity, the business of carriers by rail was everywhere monopolized by railroad companies. The origin of the enlarged monopoly was thus explained in a very instructive argument in 1842, by Mr. Martin, afterwards a baron of the exchequer. 10 Mees. & W. 412, 413. It had before been, and was afterwards, judicially so explained by Lord Denman. 1 Q. B. 558. 580; 4 Q. B. 18. The companies were indirectly fortified in the monopoly through their exclusive or preferential use of their depots or stations, and their warehouses, platforms, etc., and the immediate approaches or outlets. The appropriation of some of these preferential facilities to their own exclusive benefit, has not been judicially considered wrongful. Whether it may not be such as to encroach in some degree on rights of the public, is a question which there is no occasion to consider now, because the companies would, independently of such advantages, have a practical present monopoly of the business of carriers upon the rails. Lord Denman said that “the supposition of a free competition of carriers on the same railway, is practically little less than absxmd,” and that “if all difficulties were removed as to the stations, warehouses, landing places and approaches, and all these were supposed as much laid open to the public as the railway itself, the very nature of the mode of conveyance forbids a free competition of rival carriers.” 1 Q. B. 579. “It would,” he added, “be no answer to say that, by law, the railway is a highway, that all the world may carry goods and passengers on it, that it is an accident that the company alone monopolize all the trade, and that their monopoly may cease to-morrow.” 1 Q. B. 584. See, also, 5 O. B. (N. S.) 351.
A recent observation of the supreme court of Illinois, that a railroad company is chartered solely for the purpose of exercising the functions and performing the duties of a common carrier (Chicago & A. R. Co. v. People [Feb. 22, 1873] 5 Chi. Leg. News, 266, 267; Phil. Leg. Gaz. March 14, 1873), is thus, to practical intents true. If tolls, distinctively so
Every charge by a railroad company, as a carrier, upon the line of the road itself, is thus composed of three values. One of them is the amount which would be chargeable simply as toll, if the company neither furnished motive power nor were carriers. Another is the additional charge which they might make for the use of the motive power if they were not carriers. The other may be distinctively called freight money. It is the additional amount which is chargeable because they are the carriers. These three values may be reducible to two by including the charge for use of the motive power under the head of toll. The two values will then be those of toll and freight money. American, French, and English legislation contains careful provisions for analyzing the sum charged in tariffs, or in reports made annually, under these two heads, though not under precisely these names. The statistics of the analysis, of which the memorials are thus preserved, may be useful, not only in defining present relations between the companies and the public, but also in the contingency of such future improvement in the method of transportation as may open it to the public.
In external relations of the companies a single charge alone occurs. See 1 Q. B. 575, 576. It has, perhaps, oftener been called a toll than by any other mame. The designation, as we have seen, is not' precisely accurate. But it would seem at first view to be of little or no importance whether the charge were called a toll, and was understood as including the value of freight money, or were called freight money or fare, and was understood as including the toll. The verbal distinction has consequently been disregarded more or less everywhere, and occasionally even in Pennsylvania, where it has been best explained. In England, confusion and uncertainty have arisen from a lax use of the word “tolls,” in both legislative and judicial phraseology. It is to be regretted that the courts have not confined their application of the word “tolls” to charges for simple passage over the road. But, as we have already seen, such tolls are not now, in practice, chargeable except for the reciprocal use of connecting railroads; and even as to them, a conventional commutation is probably made wherever it is authorized by the respective charters. The objection to extending the application of the word “toll” with undue latitude is, that it tends to exaggerate the mental conception of a railroad company’s monopoly. Of tolls, properly so called, the monopoly is an essential right of the company as proprietor of the road. The monopoly of the carrying business originates, on the contrary, in the relative necessity which has been described. In the former monopoly, the proprietary right is moral as well as legal. In the latter monopoly, there is neither proprietary nor essential moral right; and the legal right is coextensive only with the necessity in which it originates. The extension of the claim of moral right beyond its just limit in this respect may have been the cause of otherwise inexplicable renewals of con-testations by English railroad companies on points already litigated and judicially decided against them, and of the frequent new phases of the argument of old questions. It may be suggested that this reasoning is too analytical, that the service of a railroad company as carrier is a single one. that the pecuniary consideration for it includes inseparably the profit in which the monopoly is rightful, and that it cannot be less rightful merely because an admitted necessity enlarges the service performed, and proportionally enlarges the pecuniary consideration. The suggestions might, perhaps, prevail if transportation upon the line of rails were alone in question. But the present controversy concerns accessorial carriage by horse power off the line of the railroad. Conceding the rightfulness of such accessorial business beyond the rails, there can be no reason that it should be monopolized. It is conducted where tolls cannot be taken, and where the steam power is not used. See 5 C. B. (N. S.) 362, 363, 355, 669, 679. In England, Chief Justice .Erie stood almost alone in the opinion that a railroad company, in recompense for their outlay and of the fulfilment of the purpose of their incorporation, had both a legal and a moral right of monopolizing, not only the carriage of goods upon the line of the road itself, but also the accessorial carriage performable off the line with horse power. To this opinion, though always a dissenting one, he adhered with tenacity from 1861 to 1869. He had expressed it at nisi prius in 1854, when a verdict conformable to it, found under his direction, was set aside. 9 Exch. 559. See 11 Exch. 742. It was op
Here, however, the complainants object earnestly, not only to the monopoly of such accessorial business by the defendants, but even to their engaging or participating in the business at all. The consideration of this objection maybe prefaced by another inquiry, which has been suggested in the argument. It is whether the defendants can, as carriers by rail, transport goods which are destined beyond the termination of their own road. This inquiry is not whether the responsibility of such carriers by rail continues until the goods reach the ulterior destination. It is not an inquiry what engagements may be made, or implied, as to putting the goods in the due course of transmission to such destination. The inquiry is whether such carriers, must refuse to transport goods on their own route merely because they are not to be carried farther, and whether they may not, on the contrary, solicit such custom in order to increase the profitableness of their business. From time immemorial, the service of a common carrier to the public has included the transportation of matter destined beyond his route, and has included the affording of necessary and proper facilities for the ulterior transmission. Great public inconvenience would result if railroad companies could not afford such facilities in this respect as other carriers. The act of congress of 15th of June, 1866, purports to authorize every railroad company in the United States whose road is operated by steam to carry, upon and over the road, freight and property on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportation of the same to the place of destination. This act provides that it shall not be construed to authorize any railroad company to make a new road, or connection with any other road, without authority from the state in which such railroad or connection may be proposed. The Pennsylvania statutes prior to 1866, which were fully reviewed in the eases reported in 3 P. F. Smith [53 Pa. St] 10, 20, and 62, and the subsequent acts of the 4th of April, 186S, 17th of February, 1870, and 26th of April, 1870, have established an extended system of direct and indirect connection of railroads within and without the state, and authorized their merger, consolidation, • and lease for the further extension of continuous routes. Whether these laws apply directly to the question or not, their purposes would be materially frustrated if the companies could not take freights with unlimited ulterior destinations. But in the absence of all such legislation (and without any special reference to the enactment of 3d of April, 1862, which, read in connection with the act of 5th of April, 1S59, authorizes the defendants to contract for transporting freights to and from points beyond their line), the question would be attended with no difficulty. It has been judicially conceded, assumed, or decided, in Pennsylvania, in many of the other states, and in England, that a railroad company may, as a calmer, receive goods which are to be transported beyond the end of the company’s own route, whether the destination is within or without the state or country, or is beyond seas. 6 Harris [18 Pa. St.] 224; 9 Wright [45 Pa. St.] 208; 10 Wright [46 Pa. St.] 211; 11 Wright [47 Pa. St.] 338; 4 P. F. Smith [54 Pa. St.] 77, 83; 18 P. F. Smith [687 Pa. St.] 277; 11 P. F. Smith [61 Pa. St.] 85; 7 H. L. Cas. 194; 12 C. B. (N. S.) 63; 10 C. B. (N. S.) 675; 2 Hurl. & N. 709; L. R. 1 C. P. 336; L. R. 1 Exch. 147, 148; 8 Mees. & W. 427; 2 Redf. R. R. (4th Ed.) §§ 180, 181, pp. 112, 123. This question has been considered more fully than would otherwise have been thought necessary in consequence of a remark of Chief Justice Redfield,upon a case in Connecticut (22 Conn. 502), that, if the matter were altogether new, there might be some doubt. Redf. R. R. ubi supra.
The question, if it can be called one, having been disposed of, we may consider the objection that the defendants cannot, as carriers, use horse power for accessorial business performed off the rails in collecting freights at the doors of consignors and in making deliveries at the doors of consignees. We. have seen that the defendants cannot monopolize the business. Whether they can participate in it is the very different present question. The question is not novel except in the physicial proportions of the subjects of it. The scale of all the business of a railroad company is thus enlarged. IJie passenger ear in the United States, if not in Europe, is the improved and enlarged substitute for the stage coach or diligence of other days. In the freight trains, whose burden car is the substitute for the former great wagon, loads are now measured by the ton. The drayage and slow cartage to and from the rails are facilitated by turnouts on rails, and by lateral railways. There is, perhaps, no proportional change greater than that in the measure of such light freights of small bulk as are conveniently transportable with speed, and are usually carried in the passenger trains. In the United States, these freights were formerly and are still called express matter. Although the demand for the labor of horses in Europe and in America continually increases, their aggregate strength is now less than sufficient for
The first argument in support of the objection is that the legislative charters of railroad companies are construed strictly against the companies, and that their franchise of common carriers on the line of a railroad therefore cannot be extended by implication so as to include any transportation which is not upon the rails. The charters of railroad and other public improvement companies are judicially designated as contracts between the respective companies and the state or the public. The expression “contract,” or “bargain,” after having been thus applied by Lords Ellenborough, Eldon, and Tenterden, and by other eminent judges of England, was judicially criticized there, because it migut, unless explained, be understood as importing that the charters were executory contracts of the companies enforceable by mandamus. These companies are under no compulsory obligation to begin the projected improvements, or to complete them if begun. 1 El. & Bl. 847, 858; 1 Redf. R. R. (4th Ed.) § 152, note, pp. 630, 632-635. After their completion, moreover, the companies have an option to omit or defer, and to intermit and resume the exercise of corporate functions of certain kinds.' Nevertheless the charters are properly called contracts. They are at first conditional or executory, and may afterwards become executed contracts. The English criticism admits this. Compare 1 Mylne & K. 162 with 2 Tounge & O. Ex. 61S, and 1 El. & Bl. 868, 869. But if it did not, it could have no effect in the United States, except, perhaps, to qualify the use of the word “contract,” not inconsistently with its application originally intended. An executed contract has its obligatory effect. The observation is important, because the constitution provides that no state shall pass any law impairing the obligation of contracts. This prohibition extends to all contracts, executed or execu-tory, whether between individuals or between a state and individuals. The supreme court, adopting the suggestion of Blaekstone (2 Comm. 443) that an executed contract differs nothing from a grant, have considered a legislative grant a contract on the part of the state. Fletcher v. Peck, 6 Crunch [10 U. S.] 130, 137. All state lavs incorporating private associations for public purposes are thus legislative grants, and as such are contracts [Dartmouth College v. Woodward] 4 Wheat. |17 U. S.] 630-650; [Green v. Biddle] 8 Wheat. [21 U. S.] 92; [Providence Bank v. Billings] 4 Pet. [29 U. S.] 560; [Branch Bank v. Skelly] 1 Black. [66 U. S.] 436; [Von Hoffman v. City of Quincy] 4 Wall. [71 U. S.] 549, 550; [R. R. Co. v. McClure] 10 Wall. [77 U. S.] 515; [Home v. Rouse] 8 Wall. [75 U. S.] 436, 437; [Bridge Proprietors v. Hoboken Co.] 1 Wall. [68 U. S.] 145, 146; [Binghampton Bridge] 3 Wall. [70 U. S.] 73; [Pennsylvania College Cases] 13 Wall. [80 U. S.] 212-214, 218, 266-268. Public interests may after-wards require legislative abrogation, resumption, alteration, or transfer of the corporate
These are now constitutional truisms. Not less trite is the remark, that in England, where legislative omnipotence prevents corporate franchises from being thus irrevocable, yet however improvidenüy' they may have been granted, moral considerations generally suffice to protect them against legislative encroachment without compensation. Therefore, on both sides of the Atlantic, there is like moral reason for a strict construction of such charters, though the legal reasons may be more obligatory in the United States. The reasons of policy or justice ordinarily given for such a construction are that the administration of a franchise of great public interest by a private person or private association, is against common right, and that the charters are penned by or for the private persons to whom they are granted. Chief Justice Redfield observes truly that there is no necessity that the public functions in question should be confined to aggregate corporations. He says that the same franchises and immunities might be conferred by the legislature upon any private person, and that whoever was the grantee, whether a natural person or a corporation, the same rights, duties, and liabilities would result from the grant. 1 Redf. R. R. (4th Ed.) § 17, p. 52, note 4. It may be added, however, that the franchises might exist without the immunities. The universal practice, Chief Justice Redfield says, confines the public functions to corporations aggregate. Id. It adds force to the reasons for a strict construction of the charters that they in effect exempt the members of these private associations from individual responsibility. The rule of strict construction generally prevents the implication of any corporate privilege not expressly granted. The acts incorporating the Chesapeake and Delaware Canal Company furnish an example. They authorize the charge of certain tolls for commodities in vessels passing through the canal, and for empty vessels except such as return empty after payment of a certain toll. As no power is given to take toll from passengers, or from a vessel on account of passengers on board, a vessel with passengers can, as to them, navigate this canal free of toll. [Perrine v. Chesapeake & D. Canal Co.] 9 How. [50 U. S.] 172. So the Stowbridge canal in England was formed upon two levels which were connected by locks. The proprietors of the canal were incorporated by an act authorizing them to take tolls for articles passing through any one or more of the locks. The English decision (2 Barn. & Adol 792), that this gave no right to toll from those who navigated one of the levels, without passing through a lock, has been generally approved in the United States. [Charles River Bridge v. Warren Bridge] 11 Pet. [36 U. S.] 544, and cases next below cited. The rule of strict construction applies likewise where the words used would otherwise admit of different meanings, one of which would abrogate, restrict, or abridge independent rights, profits, or facilities of the public. Where the words are thus ambiguous, the meaning most favorable to the interest of the public and most adverse to that of the company should be adopted, because the company “in bargaining with the public” ought to take care to express distinctly what is intended. See the books above cited and 11 East, 685; [Dubuque & P. R. Co. v. Litchfield] 23 How. [64 U. S.] 88; 2 Man. & G. 164. 165; [Rice v. Minnesota & N. W. R. Co.] 1 Black [66 U. S.] 380; 2 Jones [12 Pa. St.] 320, 321; 7 Harris [19 Pa. St.] 218; 3 Casey [27 Pa. St.] 339, 351; [Mills v. St. Clair Co.] 8 How. [49 U. S.] 581; 2 P. F. Smith [52 Pa. St.] 516, 517; 9 Harris [59 Pa. St.] 22; 4 Bing. 452, 453; 1 Q. B. 588; 3 De Gex, F. & J. 361. A peculiar ease, often cited, by mistake, as a leading one under this head, was that of the Glamorganshire Canal Company. The canal obtained its principal supply of water from the river Taaffe. Mills and iron works employing a considerable part of the waters of that river, and entirely dependent upon them,-had been established before the incorporation of the company. The act of incorporation reserved or appropriated to one of the proprietors, whose rights were afterwards acquired by Mr. Blakemore, the surplus water not required for the use of the canal. The act authorized the canal company to make all such works, etc., as they should think proper for completing, maintaining, improving, and using the canal and other works. The capital which the company were authorized to raise was £90,000; and it was provided that if their annual profit should exceed eight per cent, on that amount, the tolls were to be reduced. The company having proceeded to construct the canal and works, and having expended the £90,000, found that it would require a further sum to complete them, and to make a desired extension of the canal; whereupon a supplementary enactment authorized the extension and completion; and enabled the company to raise an additional £10.000 for these purposes, provided that everything should be finished within a prescribed time. This was done. Afterwards, and after the expiration of the time limited, the company improved the canal, and increased the supply
It is contended on the part of the complainants that, as in the cases of the Chesapeake and Delaware canal, and the Stow-bridge canal, so here, the profit of the defendants cannot be derived from any business not within the direct and express provisions of their charter. But the reasons for thus applying the rule of strict construction are insufficient. The present question is, on this point, neither that of monopoly in the defendants, nor that of abrogation, restriction, or abridgment of any rights which the public would otherwise have. A different or qualified, if not an opposite, rule of construction applies to questions of the capacity of the companies to improve the means and increase the facilities of transportation, or otherwise to enlarge the sources, or expand the development, of legitimate profits derivable from varied uses of the corporate franchises. Under the latter head, useful incidental or auxiliary corporate functions may be attributable by necessary or fair implication. 4 P. F. Smith [54 Pa. St.] 316; 3 Casey [27 Pa. St.] 351, 352. Legislative charters of improvement companies may, as to such relations, even be construed liberally. 7 Barn. & O. 731. We have already seen this exemplified in the transportation of goods having ulterior destinations. Another example may be found in the charter of the same Glamor-ganshire Canal Company, which has already been mentioned as exemplifying, in another case, the application of the rule of strict construction. An account of the annual profits of that company was from time to time taken in a manner prescribed by the charter, in order to ascertain whether they amounted to eight per cent, of the capital, in which case the tolls were to be reduced, as has already been stated. It was twice decided by the court of king’s bench that, in this account, the company were to be credited for their expenditures in making the same improvements already mentioned as causing encroachment on Blakemore’s water power. These were the steam engine, the reservoir, and the deepening and widening of the canal. The question thus arose between the company and freighters on the canal, who were interested in obtaining the reduction of tolls; and, in one of the cases, the promoter of the controversy was the same party, Blakemore, but in the different relation of a freighter. The credits were, in each case, allowed as the cost of improvements by the company, which were, in this relation, and with reference to public interests generally, authorized by the charter. In other words, the improvements were properly made as against all the world except Mr. Blakemore as the owner of his apportioned water power. On the question of expense attending the supporting, maintaining, and conveniently nsing the navigation, the court, in language already quoted, said that the words of the charter “ought to receive a liberal construction.” 12 East, 157; 7 Barn. & C. 722, 731. These decisions were approved in the cases decided, on the same legislative words, in favor of Blakemore as owner of the. water power. 1 Mylne & K. 170, 171; 2 Cromp. M. & R. 142. The rule of strict construction therefore does not apply without qualifications which are overlooked in the argument for the complainants.
Before stating another of the arguments in support of the complainants’ objection, an observation of some importance in the case becomes necessary. It is that a railroad company having a capacity to act as a common carrier is not obliged to do so, even upon the line of its rails; and if it engages in the business at all, may do so generally, or only as to freights of certain kinds, light or heavy, small or large, or for only a part of the line of rails. 4 Exch. 373, 374; 7 Exch. 712; 6 Hurl. & N. 654; 2 Shelf. Rys. (Glen’s
The argument for the complainants which may now be stated, is a mere assumption that, because a company which has not made any such engagement to the public, is excused from delivering beyond the precinct of the railway, therefore such an engagement cannot be warranted by the company’s charter. The assumption is of the very point or proposition which was to be demonstrated. In most of the cases heretofore cited as denying to the defendants a monopoly of this accessorial business, and in most or all of the cases hereafter mentioned upon questions of the defendants’ charges for the ac-cessorial service, the lawfulness of their participating in such business was impliedly, if not expressly, recognized. The objection seems, therefore, to have no support of reason or authority. But a railroad company, so far as it actually or professedly engages, either generally or specially, in the business of a common carrier, is under at least the same obligations to the public as an individual common carrier upon a route of any other kind. [Hannibal & St J. R. Co. v. Swift] 12 Wall. [79 U. S.) 270. To the extent of the means of convenient transportation, which are in the course of a common carrier’s business available, he cannot refuse to receive goods for transportation which are seasonably offered; and he is bound to serve all persons impartially.
A railroad company, as it cannot encounter competition upon the rails, may have consequent inseparable advantages in conducting the accessorial business with horse power. This gives peculiar force to the reasons that the company should be restrained in the latter business from assuming preferential facilities to itself, or • extending them to any one else. 12 Harris [24 Pa. St.) 378; L. R. 4 H. L. 237, 1 Best & S. 162, and other cases cited hereafter. Railroad companies have in this respect an immense power whose abuse cannot easily be prevented. On all questions under this head, therefore, to guard against the danger of encroachment on rights of the public, the charters of the companies are construed strictly against themselves and liberally in favor of the public. 7 Man. & G. 288; and see 6 El. & Bl. 108, 109. This applicability of the rule of strict construction to such questions of possible encroachment is obviously consistent with its inapplicability to the converse question of the right of the companies to compete fairly with any one of the public in the accessorial business. The general relations of the defendants to the public include those to the complainants considered as one of the public. Such relations having been defined, we may, before applying the principles which have been stated, consider the relations of the complainants to the public and to the defendants. The complainants appear to have been engaged in the business of express carriers very extensively, and perhaps without always encountering such free competition as to promote the interests of the public. Express carriers intervene between a principal carrier and persons usually unknown to him whom they represent at each end of his line to transportation. Those whom they represent at the place of departure may be called transmitters to distinguish them from consignors, known as such to the principal carriers. The parties who are to receive the goods at the place of destination may, in order to distinguish them from consignees known as such to him, be called destinees.
"When the rights and obligations of those here called express carriers are properly defined, their legal relations will appear to be, in general, very similar to those of certain European middlemen, though, in some special respects, perhaps different from any in Europe. Differences may arise from local usages of traffic .and other commercial intercourse. The French law, differing in one respect from our own, and from that of England, has always obliged all railroad companies acting as carriers in any wise however, to make deliveries at the doors of all known consignees who do not dispense with such delivery. Duverdy, §§ 224, 227, 22S, pp. 321, 325, 326. But the French companies cannot-insist upon performing such service for consignees who, dispensing with it, choose to receive the freights at the railway depot or station, or delivery office (Id. §§ 225, 226, 229, pp. 332, 323, 328); and those companies are under no obligation to collect freights and consignments. A French middleman who, as representing transmitters, carries goods to a railway reception office, depot, or station, often represents also destinees, in which ease, he, on their behalf, or as being himself both consignor and consignee, dispenses at the other end of the line with all service of the company by horse power, and renders it himself, making the ultimate deliveries. In England, so long as the railroad companies were carriers by rail only, middlemen conducted the auxiliary business on a large scale, not limiting it exclusively to light small matter. English railroad companies very soon became desirous of participating in the profits of such business, or of appropriating all the profits of it to themselves, or to those whom, with or without a profitable consideration, they favored. At first they seem to have either farmed the business out, or to have conducted it through contractors or otherwise favored subcar-riers. Afterwards, the companies, or one or more of them, engaged in the business themselves. In each of these progressive stages, litigations occurred from encroachments by the companies upon the rights of middlemen desirous of maintaining, as carriers, independent relations with transmitters and destinees. Chief Justice Erie called such middlemen intercepting carriers. The designation was inapplicable because they were engaged in a useful business which had been legitimately established before the railroad companies were directly engaged in it, and because it was, after they engaged in it, a business proper for the most unrestricted competition. The defendants, and, it is believed, most of the railroad companies in the United States, have heretofore either farmed out to express companies the business of collecting and delivering the light and small freights transported in fast lines, or have conducted it through such companies, as contractors. All such conventional relations of either kind between the complainants and the defendants terminated, as their contracts had provided, when sixty days from the time of the notices expired.
The defendants now both carry such freights by rail, and use horse power of their own to collect and deliver them, as they were formerly collected and delivered by the complainants. The defendants profess that they have no purpose to exclude anybody from the business of rendering like service by horse power to the public for profit; and seem particularly to disclaim the intention to hinder the complainants from participating in such business. The defendants ought not to be impeded in the execution of their purpose, if it really is to reduce charges to the public by promoting competition, or if it is to participate fairly in the profit of the use of the accessorial horse power without unreasonable exaction from the public.
The subjects of dispute may be classed under two heads. The first includes the complainants’ demand of certain facilities and accommodations in their express business. The second includes the alleged pecuniary overcharges, to which they object. The arguments on their behalf under the second head are generally well founded; but are, in a great measure, fatal to their own pretensions under the first head. It has already been said that they have no present conventional rights. It might, therefore, seem unnecessary to inquire whether, under former conventional arrangements, they had a covert monopoly or any undue facilities or advantages. Indeed, the complainants are not understood as now insisting upon preferential facilities to themselves in right of past conventional relations. That contention would be palpably absurd. But they do insist upon receiving facilities and accommodations of great expansion, which they certainly endeavor to défine by the standard of the former practical relations. The most favorable way of stating their pretensions is that they claim facilities and accommodations proportional to the actual and prospective expansion of their own express business. If such facilities and accommodations are neither preferential to themselves, nor inconvenient to others, the demand may be reasonable. But if they are exclusive or preferential, their allowance would promote, if not perpetuate, monopoly. The question heretofore considered has been, when they were preferential, not whether a railroad company must, but whether it can, allow them. On this latter point, Cockbum, C. J., said, that, “if an arrangement were made by a railway company, whereby persons bringing a larger amount of traffic to the railway should have their goods carried on more favorable terms than those bringing a less quantity, although the court might uphold such an arrangement
The complainants cannot reasonably require any space to be set apart for their exclusive use in a car of the defendants in such a train. If the space be vacant, those who first bring goods ought to have it. If it be filled, the goods in it cannot be displaced. The requirement, as of right, for an agent in charge of the complainants’ express matter, of any other accommodation or place in the trains than that of an ordinary passenger under the control of the company’s police of the road, seems to be quite unreasonable. More unreasonable is the pretension that he can, as a passenger, carry, without other payment than as for baggage, a trunk which contains express matter. The complaint that the defendants do not allow to express carriers the use of the platforms and landings, etc., at the depots and stations, appears to be connected with a dispute of the right of the defendants to establish offices and warerooms of reception and delivery away from depots or stations. The question implies that the offices must be conveniently situated for the accommodation of the public as well as for the purposes useful to the defendants. The question, thus qualified, seems to admit of no answer but an affirmative one. It has been so decided in France (Duverdy, § 229, р. 328), and has never been disputed in England, where such offices are in many cities and principal towns. See 6 El. & Bl. 110; 11 C. B. (N. S.) 7S7. Professor Parsons intimates that most carriers have a receiving office or depot, or station, or place of reception of some name. 1 Pars. Oont. 653, bk. 3, с. 12, S. S. Indeed, even express carriers have, it is believed, places of reception and delivery distinct and more or less distent from the places where their other business is transacted. These are not matters with which a judicial tribunal can meddle, unless an evil motive and effect is justly attributable.
The argument' for the complainants, citing 12 Harris [24 Pa. St] 378, and 57 Me. 188. admits (though perhaps without an intention to concede) that the defendants cannot allow to the complainants, or to any other express carrier, facilities or accommodations amounting directly or indirectly to a monopoly or partial monopoly. A leading English decision (10 Mees. & W. 399, pi. ult of headnote), cited with approval in the case in 12 Harris [24 Pa. St.] shows that no advantage, however small, could be preferentially allowed by the defendants to any such party as the complainants. Thus the defendants may appoint a reasonable hour of the day or night for the closing of their office for the reception of freight. But they cannot receive for themselves as carriers, or for the complainants, or for any other favored party, at a later hour. 6 C. B. (N. S.) 639; 12 C. B. (N. S.) 758; 1 Best & S. 112. In a case of thi§ kind in England the peculiar views of Erie, C. J., caused, at one time, a division of opinion upon the point. B. K. 1 O. P. 588. But the rule of decision was afterwards re-established. L. R. 5 C. P. 194. If no such hour has been appointed, the complainants cannot .require that any freight be received which is not brought a sufficient time before the departure of the train to allow convenient reception, loading, booking, way-billing, etc.; and cannot require that any parts of the latter business be transacted by their own agents unless agents of other middlemen are allowed the privilege. Other examples might be cited. See 11 O. B. (N. S.) 7S7, and other books. The complainants do not allege their willingness to submit themselves, in such respects, to reasonable regulations of their business, to which public interests require their subjection. Their footing in equity is, therefore, very insecure, even where they might otherwise, on certain other points, be entitled to relief. They certainly are themselves endeavoring to encroach upon rights of the public; and any partial success of their present effort might prevent equal competition, or embarrass the defendants in transacting proper business at their depots or stations, or at the approaches or outlets, or at the offices of delivery and reception.
The remaining questions are those of alleged overcharges by the defendants. If we recur to the analysis of the charge formerly made by the defendants for carriage only by rail, it will be understood that their present charge, being a single aggregate sum, includes an additional amount or elementary value. It is the amount of compensation for the additional service which they offer to render by horse power in collecting and delivering the freights. It is to be regretted that they did not, after experience of the injurious mistakes of English railroad companies, publish the definite amounts of the intended additional charge. This would have given a fair opportunity of competition by any parties willing to serve the public for less, or for the same rates, and have prevent
The case was finally heard upon bill and answer. As there was no replication, the reasonableness of the actual charges could not be disputed, if the enactments of the charter allowed any excess whatever beyond the prescribed limit of tolls distinctively so called. The case therefore is an authority rather against than in support of the present ¡argument for the defendants. Indeed, if it had been expressly enacted that they might charge what they should think fit, this would mean what they should reasonably think fit Martin, B., so instructed a jury (11 Exch. 744); and, in banc, though it was not necessary to decide the point, there was a dictum of Alderson, B., to the same effect (Id. 749, 752). This dictum, which was after-wards cited without dissent by 'Williams, J. (5 C. B. N. S. 117, 118), and with seeming assent by Willes, ,T. (Id. 120), has the support of a previous decision of like tendency (12 East, 157), and is conformable to a rule of general jurisprudence for the interpretation of such words (Dig 19, 2, 24 pr. 5 Co. 100, Poth. Obl. N. 48; 2 Johns. 395, 401; 4 Serg. & E. 1; Baldw. 388; 4 Bing. N. C. 105; 4 El. & Bl. 250). But the words of the defendants’ charter suggest, independently of the argument, no such question. If the charter had contained words limiting the rates of the freight money, or, what would be the same in effect limiting the addition which might be made to the amount of tolls, the defendants could optionally have charged the maximum rate, whether it would otherwise have been reasonable or not. 12 P. F. Smith [62 Pa St.] 228, 229. They might therefore, in that case, have established a tariff of charges equal to, or below, the maximum rates; and might have made such occasional impartial abatement from the tariff or ordinary rate,
The defendants, however, contend that English decisions upon the subject are not of authority here, because English statutes prescribe not simple reasonableness in the charges, but equality, which, it is argued, means ratable or arithmetical, as distinguished from relative equality, except where it is otherwise positively enacted. This view has not been taken by the supreme court of the state; nor is it correct. In one of the •cases last cited, that court said that those English statutes are but declaratory of what the common law is. 11 Wright [47 Pa. St.] 340, 341. This observation is practically and almost literally correct. The English enactments, where they give a latitudinary option as to rates of charge within a prescribed maximum, provide that such charges must be made equally to all persons in respect of like things under like circumstances. The requirement of like things and like circumstances, if omitted, would be implied. This was the meaning of the supreme court. The English statutory requirement thus imports relative equality, not simple ratable •equality. English courts have so understood •and applied the enactments. Moreover, in many of those English cases whose authority the argument would impugn, the question of reasonableness was discussed; and in some of them it was decided, as distinct from that of simple equality. English statutes, in allowing the great latitude of charges, have, however, in favor of railroad companies, altered, in some degree, the rule of the common law, which required the charge of a common carrier to be always reasonable. In the compensating requirement of equality, English statutes have, in some degree, substituted a legal criterion of rightfulness of the charge for what was, at common law, only evidence or part of the evidence for'a jury ■on the question of reasonableness. In an action at law inequality in charges had thus ■.previously been evidence of unreasonableness, the effect of the evidence being determinable by the verdict. See B. E. 4 H. L. 237, 239. In Pennsylvania, the question is wholly for the jury, except so far as the rules of the common law may be qualified by a statutory limit, or prescribed maximum, of the charge. It may be observed that a court of equity, where the question, whatever may be its form, is in the least i doubtful, awaits the decision of it by a court of law. 1 H. L. Cas. 35; 3 Eng. Ry. Cas. 561. In English decisions, if we consider the importance of the questions, and the earnestness of the contentions, it will appear that, instead of the contrariety of opinions imputed in the argument, there has been a general uniformity. The questions, however, elaborated, have indeed, perhaps been more important than difficult If they were considered anew, independently of the authorities, the decisions would certainly, on original principles, be the same.
We have now reached the first of the two questions in the present case. It is whether to grant an interlocutory injunction restraining the defendants from including any rate for the use of the horse power in their charge to the plaintiffs, who do not use it, or from otherwise making the extortionate overcharge. If the complainants, in the simple relation of one of the public, had, submitting to all just and proper regulations of the defendants for the promotion of the public interest, and the administration of their own franchises, asked only protection by such an injunction in the lawful business of competing carriers, it is possible that they might have had such relief before obtaining a judgment at law, or perhaps even interlocutorily, through this would be contrary to the ordinary course of equitable procedure. 1 H. L. Oas. 35. To justify such a departure from the ordinary course, the legal right in aid of which the injunction is asked, must, however, be quite free from doubt. It is not necessary to decide whether this would have been such a case. The complainants have not so proceeded as to enable them to ask interlocutory relief under this head. If they “ask equity, they must do equity,” or in good faith aver a readiness to do it. This they have not done, either in or, so far as appears, outside of their bill. Possibly this may not insurmountably impede them at the final hearing, when a decree may be so framed as to adjudge against them the questions upon which their positions are untenable. But these questions cannot be now so decided. To leave them open, and at the same time place the complainants inter-locutorily on the footing of a successful litigant, would be uneven justice.
The same reasons precisely do not apply to the remaining question. It is that of the packed parcels. What is called in England the packing of parcels, and in Prance grou-page a convert, must be distinguished from the case of loose or unpacked parcels, grou-
As it was divided, the points were: First,, whether the aggregate charge of the full sum of the rates for several packages could' be sustained; secondly, whether the carriers-by rail could make a small addition to the charge as for a single package, in order to-cover the risk of contingent liability to actions at the suit of unknown transmitters, destinees, or owners of the several parcels: or articles inclosed. The reasoning on the first point against the railroad companies was unanswerable. Since the decision in 10-Mees. & W. 399, the contention has in England been principally upon the second point. In the present case, the argument has been upon the second point, with however, art unwarrantable assumption of a conclusion upon the first, as if it were consequential. In England, juries “have often negatived, that in point of fact, carriage” of the packed parcels “for collecting carriers imposes greater risk or expense upon the railroad company” than would be incurred if they were not packed. L. R. 4 H. L. 247; 11 Exch. 758, 759 ; 5 C. B. (N. S.) 112, 113. The courts, approving the verdicts, have decided' that “such carriers are entitled to have their-packed parcels carried upon the railway for the same price as other persons.” As to risk of loss from carelessness or from pilfering, there may be less risk than if the parcels were separate. The question was also put to juries in England, “in respect of supposed liability” of the railroad company, as the principal carrier, “to several actions” at the suit of unknown parties owning the goods. On this point, it has been said that there has not, in England, been a single instance of such a suit; and the language of English judges might seem to import even a doubt whether the suit would be maintainable. This part of the question is differently considered in the United States. There is no doubt, either on principle or on authority, that several actions, at the suit of the respective owners, are maintainable ([New Jersey Steam Nav. Co. v. Merchants’ Bank] 6 How. [47 U. S.] 380, 381; 6 Bin. 129; 2 Redf. Ry. § 169 [4th Ed.] p. 18); and actions at.their suit are brought much oftener against the railroad companies than against the middlemen. If the principal carrier is regarded only as an agent, he may be sued by the
The defendants take the untenable extreme position that they can make the full charges as for separate packages. On this point, of course, the charge cannot be’ maintained. But the inquiry still open is whether a small addition to the charge for the package in mass may not be allowable to cover the risk of contingent liability to several actions. This increases the difficulty of the complainants’ ease on the question of granting an injunction. In such a case in England, the court in chancery refused to grant an injunction until the right should be determined at law. 3 Eng. By. Cas. 538. But the decision was mainly on the ground of the complainants’ delay. The case already cited in 1 H. L. Cas. 35, is to the effect that, if the pecuniary excess of the charge was ascertained, an injunction would be proper after a judgment at law. But the case in L. B. 1 Exch. 32, under the auxiliary equitable jurisdiction conferred by the English common law procedure act of 1854, indicates doubt whether, on the question of packed parcels, the uncertainty in the amount would not, even after a judgment at law, prevent the application of the rule of the former decision. The distinction is, perhaps, ovemice, and the doubt may not be well founded. But here no judgment at law has been obtained; and there is an open part of the question of right which seems to be determinable at law only. To meet the exigency of questions with railroad companies, whether as to their withholding reasonable facilities, or subjecting to undue or unreasonable prejudice or disadvantage, or as to the giving of any undue or unreasonable preference or advantage, a summary jurisdiction has been conferred in England upon the court of common pleas by a statute (17 and 18 Viet. c. 31, §§ 3-G). But no other English court of law has any such jurisdiction; nor has the English court of chancery. If the creation of such a summary jurisdiction here is expedient, it should not be vested in courts of the general government. On the continent of Europe the questions are . judicially cognizable only for the enforcement of legislative and executive regulations. The decision of questions like the present is, under most European governments, by an executive department and summary. The proportions of the subje.ct are certainly enlarged here beyond the usual measure of judicial administration. But the experiment of an executive board of railroad commissioners, where tried, seems to have failed of success.
All that can be done at present is to refuse the interlocutory injunction, giving to the complainants leave to proceed at law, during the pendency of the proceedings in equity, if they shall be so advised. Thus far, it has been assumed that the suit is by a competent party. The Adams Express Company is an association organized under Laws of New York of 1849 (chapter 258) and 1854 (chapter 245), which confer certain powers and privileges possessed only by corporations; and enact that the association may sue in the name of their president But the latter act provides that nothing contained in it shall be construed to give them any rights and privileges as corporations. Notwithstanding this enactment, an association of this kind is considered even in New York a corporation for certain purposes'. 15 How. Pr. 172. That it may extraterritorially be so considered for such purposes appears from a comparison of the case in 100 Mass. 531, affirmed in [Liverpool Ins. Co. v. Massachusetts] 10 Wall. [77 U. S.] 567, with [Bank of Augusta v. Earle] 13 Pet. [38 U. S.] 586, 591. It does not necessarily follow that sucha joint stock company can sue in this court as a citizen of New York under the authority of the series of decisions beginning with [Louisville, C. & C. R. Co. v. Letson] 2 How. [43 U. S.] 497, which sustains such suits by corporate bodies of the ordinary kind. If the latter decisions apply, it is possible that, through comity, the express company may be allowed a capacity to sue at law in the name of their president, extraterritorially as well as in the state of New York. Compare the
[30 Leg. Int. 149, gives “constitutionally.”]
The word “destinatary” would be objectionable because in France “destinataire” has a more general application. See Duverdy, § 3, p. 20.
