82 F. 192 | U.S. Circuit Court for the District of Western Pennsylvania | 1897
At the hearing of the demurrers to the petition, and the motion to dismiss the petition, the arguments of counsel took a wide range, embracing some questions which we think are not properly determinable at this stage of the case. In disposing of the demurrers and tlie pending motion we will confine our discussion to three points only:
1. The sixteenth section of the interstate commerce act provides that in cases of the violation of, or disobedience to, the order or requirement of the commission, application by petition for relief may be made to the circuit court of the United States sitting “in the judicial district in which the common carrier complained of has its principal office or in which the violation or disobedience of such order or requirement shall happen.” By tlie primary order of the commission here sought fo.be enforced, made on November 34, 1892, the railroad companies complained of were' required to cease and desist from certain specified acts found by the commission to constitute unjust and unlawful discrimination between shippers of petroleum oil transported over their respective roads or lines of railway from the oil regions of Western Pennsylvania to New- York and New York Harbor points, and to Boston and Boston points. The petition of the interstate commerce commission, after reciting, the said orden1, and setting forth that each of the defendants is a common carrier engaged in the transportation of property by railroad, alone or together with some one or more of the other defendants, from Titusville and Oil Oily, in the state of Pennsylvania, to New York City, and other points, known as “New York Harbor Points,” and to Boston, in the state of Massachusetts, charges that all of the defendants “'have willfully continued to fail and neglect, and they still refuse, to obey and conform to said requirements as set forth in said order,” and that “by so failing, neglecting, and refusing said defendants have viola led, and do continue io violate, provisions of said act to regulate commerce, at, to wit, Titusville and Oil City, in the state of Pennsylvania.” Upon the face of tlie petition, therefore, our rightful jurisdiction of all the defendants appears, for each of them is therein charged with the violation or disobedience within this judicial district of the order or requirement: of the commission. But if we look beyond the terms of the petition itself,.and examine the attached exhibits, our jurisdiction seems to be equally clear. The substance of the complaint against the defendants is that they are engaged in the transportation of petroleum oil by railroad under common arrangements for continuous carriage thereof from Titusville and Oil City, and other points in the Western district of Pennsylvania, to points at tlie seaboard in other states, and that by joint agreement and combined action among (.lie defendants the alleged unlawful discriminations complained of are committed. If the allegations are true, it may well be said that the violation or disobedience within this judicial district of tlie order of the commission by any one of the defendants is the violation or disobedience of all the defendants who are parties to. and acting under, the common
2. The petition sets forth that the railroad formerly owned by the Western New York & Pennsylvania Railroad Company, one of the defendants in the proceeding before the commission, now is, and since about March 81, 1895, has been, owned, controlled, and operated by the Western New York & Pennsylvania Railway Company, and that the railroad formerly owned by the New York, Lake Brie & Western Railroad Company, one of the defendants in the proceeding before the commission, now is, and since about November 20,1895, has been, owned, controlled, and operated by the Erie Railroad Company. Both of these new companies — the Western New York & Pennsylvania Railway Company and the Erie Railroad Company — are joined as parties defendant in this suit, and. the petition distinctly avers that these two companies have willfully failed and neglected and refuse to obey and conform to the requirements of the order of the commission made on November 14, 1892. Each of these two new companies sets up as ground of demurrer to the petition that it was not a party to the proceeding before the interstate commerce commission, and that no order or requirement against or of it has been made by the commission. The order, however, here sought to be enforced, was made against the old railroad companies, to which the Western New York & Pennsylvania Railway Company and the Erie Railroad Company, respectively, have since become successors. The question then is, are these succeeding companies to be regarded as strangers to that order? We cannot think so. It would indeed be lamentable if a lawful order against unjust discrimination by a railroad company, made by the interstate commerce commission after a protracted investigation, could be nullified by the subsequent reorganization of the company, or transfer of its railroad and franchises to another corporation. It is a settled principle that the purchaser of property in litigation, pendente lite, is bound by the judgment or decree in the suit. 1 Story, Eq. Jur. § 40o. And the rule is said to be founded upon great public policy, for otherwise alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. Id. § 406. This principle is applicable here. This case is very different from those of Sullivan v. Railroad Co., 94 U. S. 806, and Hoard v. Railway Co., 123 U. S. 222, 8 Sup. Ct. 74, wherein it was attempted to enforce against a succeeding owner a contractual liability which did not run with the property, but simply bound the former owner personally. Here the new railroad companies have succeeded to the enjoyment of public franchises, and they have voluntarily taken upon themselves the performance of reciprocal public duties. This proceeding is for the enforcement of a public duty which is inseparable from the ownership of the railroad. No injustice is done to these new companies by joining them as defendants here, for they are entitled to be heard against the enforcement of the order of the commission, and the court is to proceed and determine “in such manner as to do justice in the premises.” These views are not at variance with the decision in Behlmer v. Railroad Co., 71 Fed.
“The only ground of jurisdiction against the South Carolina & Georgia Railroad Company is that, haying been served with a copy of the order of the commission, it refused or neglected to obey it. The record discloses no such service, refusal, or neglect.”
3. The order of the commission of November 14, 1892, in general terms directed and required the railroad companies complained of to make reparation to the complaining shippers. Afterwards, upon further investigation to ascertain the amounts wrongfully taken from the complainants, respectively, the commission, in the case of each complaining shipper, made a finding and order, dated October 22, 1895, determining the amount which such complainant was entitled to recover as reparation for damages resulting to such complainant from excessive and unlawful transportation charges exacted upon oil shipments, and directing payment thereof by the offending railroad companies to such complainant. There are a number of these special findings and orders. One of the grounds of demurrer to the petition-of the commission is "that, in so far as the petition seeks the enforcement of orders for refunding or reparation or payment of damages to the several claimants named in the orders, this court, silting as a court of equity, lias no jurisdiction of the subject-matter of the action; such orders being enforceable, if at all, only in (he circuit court of the United Slates, sitting as a court of law.” The sixteenth section of the interstate commerce act, which authorizes summary application for relief to tin* circuit court of the United States, provides for two classes of cases. The first class embraces cast’s of refusal or neglect to obey and perform any lawful order or requirement of the commission "not founded upon a controversy requiring a trial by jury, as provided in the seventh amendment to the constitution of the United Stales”; and it is enacted that in such instances “it shall be lawful for 1 lie commission, or for any company or person interested in such order or requirement, to apply in a summary way, by petition, to the circuit court of the United States sitting in equity,” alleging such violation or disobedience. It is further here enacted that if. upon the hearing, it is made to appear to the court “that the lawful order or requirement of said commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ, of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation or disobedience of such order or requirement of said commission, and enjoining obedience to the same,” with provisions for enforcing compliance by attachment and otherwise. The second class of cases embraces those where “the matters involved in any such order or requirement of said commission are founded upon a controversy requiring a trial by jury, as provided by the seventh amendment to the constitution of the United States”; and it is enacted that in case of a violation thereof, or refusal or neglect to obey and perform the same, “it
