3 F. 593 | U.S. Circuit Court for the District of Indiana | 1880
The bill of complaint in this case gives a comprehensive history of the origin and development of the express business in the United States, and of tho relations which, for some 40 years, have subsisted between express carriers and railway companies generally, and it states particularly the relations that have existed between the Adams Express Company and the defendant.
It appears that, since August, 1862, until the bringing of this suit, the Adams Express Company has conducted -its business as an express carrier over the line of this railroad from Greencastle, Indiana, south to New Albany and Louis
During the same period another express company, the American, was carrying on a like business, in a similar man
The affidavits show that each of these express companies made concessions in favor ox such through express matter from its own local rates, so as to produce a reasonable through rate, and such as either company might have charged if it had performed the entire carriage itself. The affidavits also show that since the first day of July, 1880, when the defendant’s course of business with the Adams Express Company complained “ of commenced, the two express companies, by arrangement between them, have continuously received express matter at any point on the line of one company, destined for any point on the line of the other company, as through matter, becoming responsible for its delivery to the consignee, and billing it through at through rates-
The bill alleges that in the year 1879 certain persons, officially or otherwise connected with the Louisville & Nashville Railroad, of Kentucky, perfected the organization of an express company, under a Kentucky charter, known as the Union Express Company; that through their influence the Louisville & Nashville Railroad Company, and several other southern railroad companies controlled by it or under its influence, by concert between them, determined to give to the Union Express Company the exclusive right to do business as an express carrier over their lines, and to exclude the Adams Express Company, its messengers and agents, tlierofrom; that they also procured the Louisville & Nashville Railroad Company, which, by ownership of stock or otherwise, exerted a controlling influence over the defendant, to cause the defendant to notify the Adams Express Company that all existing agreements, express or implied, respecting the transportation of express matter by the defendant over its road, for the
On the nineteenth day of July, 1880, the complainant filed an amendment and also a supplement to the bill. The amendment shows more particularly the agreement between the Adams Express Company and the railway company that was in existence when the latter gave notice to the express company that all existing arrangements between them should terminate on the twentieth day of April, as above stated. This agreement, which was in writing, though formal execution of it by the parties was neglected or omitted, was entered into on the eleventh day of May, 1870, and has ever since, until the time of the giving of the notice above mentioned, been regarded and acted upon by the parties as the contract subsisting between them.
By this agreement the railroad company contracted to furnish the express company sufficient space, in its baggage cars attached to its passenger trains, for the transaction by the express company of its business, and to grant to the express company the privilege of carrying a messenger, with a safe and 2,000 pounds of freight, each way, daily, between New Albany and Greencastle, for which service the express company agreed to pay the railroad company $83 per day; and for all freight carried over the whole length of road between the above points, in excess of 2,000 pounds each way, daily,
The agreement was to take effect on the fifteenth day of May, 1870, and continue in force one year, at the expiration of which period it might be terminated by either party, upon thirty days’ previous notice in writing.
The supplement to the bill alleges that after the filing of the original bill, viz., on the--day of May, 1880, the defendant and tlje Union Express Company abandoned the arrangement they had entered into, and the defendant determined to do its own express business over its own road, and that on the fifteenth of that month it did commence to do such business; that it entered into a joint or partnership arrangement with the Louisville & Nashville Railroad Company, and the Louisville, Cincinnati & Lexington Railway Company, for the transaction, of an express business over their lines, organizing a joint and principal office at Louisville, under the exclusive management of the Louisville & Nash
The bill, and the amendment and supplement, were each verified by affidavit. Upon the filing of the original bill a temporary restraining order was granted by me, and it was ordered that the defendant show cause, on the seventeenth day of May, 1880, why a provisional or preliminary injunction should not issue according to the prayer of the bill. On the day last
“Gome now the parties, by their solicitors and attorneys, and, as heretofore ordered, the defendant is required to show cause why a provisional and preliminary injunction shall not be made and issue heroin, according to the prayer of the bill of complaint in that behalf; and the court having heard the argument of the solicitors and counsel of the parties, and being sufficiently advised, does order, adjudge, and decree that, until the further order of the court on the final hearing of this cause, the defendant, its agents, officers, servants, and employes be, and they hereby are, severally, restrained from, interfering with or disturbing in any manner the enjoyment by the Adams Express Company of the facilities now accorded to it by the defendant upon its lines of railway, for the transaction of the business of the said Adams Express Company, and of the express business by the public confided to it; that the defendant shall receive for transportation the express matter and messengers of the Adams Express Company at all its depots and stations, and transport the same to destination, without molestation or hindrance, upon the same terms as to compensation for freight or passage money, and by the same train that it receives and transports express matter and messengers for any other express company, or for any other part or portion of the public; and it is adjudged and decreed that the said defendant has no lawful right to make any contract of any kind with any person, firm, or corporation, whereby it shall grant any rights, privileges, accommodations, or facilities over its lines of railway which will prevent the said defendant from granting the same or equal rights, privileges, accommodations, and facilities to the Adams Express Company, or to any other portion of the public desiring to have, occupy, enjoy, and possess the same, and upon the same and equal terms as are offered by or afforded to any other person, firm, or corporation. And the defendant is forbidden to interfere with any of the express matter or messengers of the Adams Express Company, and from exclud*602 ing or ejecting any. of its express matter or messengers from the depots, cars, and lines of said defendant, and from refusing to receive and transport over its lines of railway, express matter and messengers of the said Adams Express Company; and from interfering with or disturbing the business of the said Adams Express Company, or its present relations in reference thereto with the said defendant, or preventing the transaction of its business over the lines of the defendant on the same terms and conditions as are or may be permitted to any other express company or individual for similar business ; nor to charge for the same in excess of what is reasonable compensation, with liberty to the parties to make such further application herein to the court as they maybe advised is necessary to fix what is and shall be a reasonable compensation, or for any other matter growing out of the case. In the event of a dispute between the parties, pending the preparation of this causé, as to what is reasonable compensation for the services performed by the defendant company for complainant, such difference shall be referred to the court, after due notice, and, pending such reference, the complainant shall not be disturbed by the defendant company in the transaction of express busines over'its lines upon reasonable terms as to compensation and otherwise. This order shall not conclude either party upon the final hearing as to any question upon the merits, which may be disclosed by the pleadings or the testimony, its object being only to preserve the present status of the parties until the case is prepared for decree.”
On'the fifteenth of July the complainant filed the affidavits of L. G. Weir, and upon it moved for an order against the defendant, and also Valentine W. Rose, its superintendent of express, A. C. Gowk, one of its passenger train conductors, Oscar Board, its agent at New Albany, and Henry Rose, its local express agent at the city of New Albany, to show cause why they should not be attached for contempt of the foregoing injunction order.
The affidavit set forth, among other things, the particulars of the tender of the safe and package chest of the Adams Express Company to Valentine Rose, the defendant’s super
The affidavit also set forth the facts alleged in tho original bill as to the arrangement between the Adams and American Express Companies for the interchange of through express matter to Greeneastle, upon such terms that such through express matter was carried by the two companies at one reasonable through rate; but it stated that since the first day of July, 1880, the defendant, while carrying such through express matter by its own express at a reduced through rate, has exacted of each of these two express companies, respectively,” local rates of freight between tho place of shipment of express matter and Greeneastle, and the same local rates upon all such matter between Greeneastle and the place of destination, so that the aggregate charges between the two companies for such through carriage greatly exceed the rate at which defendant performed such carriage for shippers by its own express, and materially exceed the aggregate compensation received by those two companies for the service; the effect being that each express company is required to pay to the defendant, for the railroad freight between Greeneastle and the place of shipment and delivery, as tho case may be, materially more than it receives from its employer for the same service, and also for all its accessorial service.
A rule was granted against the parties named to show cause why they should not he attached for contempt of the interlocutory order of injunction. Upon the return day of
Numerous affidavits were read upon both sides, but as to the material matters of facts contained in them there is no very important conflict.
It was admitted by each party cited, except A. C. Cowk, that he had knowledge of the injunction order on and prior to the transaction mentioned in the affidavit of L. C. Weir.
After the railroad company had refused to receive on board its cars the express company’s safes and chests, on the first and second days of July, the former’s president modified his demand as to the terms upon which the express company would be allowed to continue its business over the defendant’s road, to the extent that, instead of a personal examination of the contents of the safes and chests, the express company might furnish a written list or inventory of them, and pay the defendant freight at its local schedule rates upon' each parcel, instead of upon the aggregate weight of the safes and chests, and the packed parcels therein; the defendant reserving,' however, the right to open the safes and chests, and inspect their contents, whenever it saw fit to do so. It is insisted that Mr. Gaither, the express company’s manager, agreed to or acquiesced in the terms embraced in this modified demand, but the proof shows the contrary. Instead of consenting and acquiescing, as claimed by counsel for the defendant, Mr. Gaither submitted to the terms exacted, fearing that only a temporary interruption of his company’s business would be fatal, so far as this line of road was concerned. It is urged that the terms imposed upon the express company as conditions upon which it might continue its express business over this line of road are reasonable and lawful, and not in violation of the order of the court.
In 10 M. & W. 397, a number of small parcels belonging to different owners were united in one large package, and directed to one person as consignee, and it was held that the carrier was bound to take the package, charging for it as if each parcel belonged to one person, and that there was no right to charge upon each separate parcel, as if it had been shipped by itself.
The defendant’s refusal to carry the express company’s safes and chests unless it was allowed to open the same and inspect their contents, or unless it was furnished by the express company with an inventory of the contents, with the understanding that whenever the defendant saw fit it might open the safes and chests and inspect their contents, and also unless it was permitted to collect the freights on each separate article or parcel as if it had been shipped by itself, was all in violation of the express company’s rights as a shipper, and in violation of the injunction order.
It is asserted by the express company, and not denied by the defendant, that at the time the original bill was filed it was the intention of the latter company to exclude from its road all other express companies, and to allow the Union Express Company the exclusive privilege of doing express busi
But it is now urged by the defendant’s counsel that it may lawfully do its own express business over its own line of road, and that at the rates at which it is now carrying freight for the Adams Express Company it can do its own express business with profits to its stockholders. On the other hand, it is insisted by the express company’s counsel, that, by its charter, the defendant is not authorized to do an express business.
Monopolies are not favored by the law, and if would seem that if railroad companies can afford to do the express business over their own lines as well and satisfactorily in all respects as that business is or can be done by express companies, and at the same time with less expense to the public, express companies should not be heard to complain.
The proper time, however, to decide this question, which is now the chief controversy between the parties, will be at the final hearing. I now express no opinion on it. The terms and conditions upon which the defendant has received and transported the express company’s freight for a number of years before this suit was commenced have been fully stated, and from a careful reading of the injunction order, though it is somewhat ambiguous, it sufficiently appears that, without change in the terms and conditions, and until the final hearing, the express company was not to be disturbed in carrying on its business over the defendant’s lino of road; and if, in the meantime, either party should think the compensation which the defendant was thereby authorized to demand and receive from the express company for the privileges enjoyed by the latter were unreasonable, application could be made to
The relations which have subsisted between the two companies before the litigation commenced were to continue until it was ended, and all controversies which might arise out of these relations were to be decided, not by the defendant, but by the court.
The injunction has been violated, but the parties against whom the order to show cause was entered have all answered that in doing what they-did they had no thought of disregarding the order of the court, and that they acted upon the advice of counsel, supposing that they were doing nothing that they were forbidden to do by the injunction.
The counsel who thus advised these parties are in good repute, both for ability and integrity. That they believed they were right in the construction which they placed upon the order of the court, and in the advice which they gave to the defendant, its officers and employes, I have no doubt. What seemed to be the chief desire of counsel on both sides, in the argument, namely, a construction of the injunction order, has been accomplished, and the rule to show cause will be discharged on payment of costs, with leave to the complainant to move for an attachment in the event that the foregoing views of the court be disregarded by the defendant.