Louisville & N. R. R. v. Miller

112 Ky. 464 | Ky. Ct. App. | 1902

Opinion of the court by

JUDGE DURELLE —

Granting 'writ.

The Central Stock Yards Company brought suit in the Jefferson circuit court against the Louisville & Nashville Railroad Company seeking to have certain live stock delivered to the Central Stock Yards Company at the Central Stock Yards station. The suit was duly allotted to the chahcery division. Application having been made and affidavits filed, the court delivered a written opinion, and entered an order as follows: “And in pursuance of said opinion it is ordered and adjudged that the defendant Louisville & Nashville Railroad Company be enjoined and restrained from neglecting”, failing or refusing to receive, and said Louisville & Nashville Railroad Company is hereby required and compelled until- further order of the court herein to receive, at any and all of its stations in Kentucky, and to bill, transport, transfer, switch, and deliver in the customary way at its most convenient and practical point of physical connection between its tracks in Louisville, Kentucky, and the tracks of the Southern Railway Company in Kentucky at Louisville, Kentucky, and at their Seventh and Magnolia connection, any and all live stock and other freight consigned to the Southern Railway Company in Kentucky at Louisville, Kentucky, for the Central Stock Yards Company, for transportation and' delivery by said Southern Railway Company in Kentucky to plaintiff at Central Stock Yards, Kentucky, or any other person or persons at said station, or in care of said Central Stock Yards Company, at said station, and to so transfer, switch, and deliver to said Southern Railway Company in Kentucky at Louisville, Kentucky, and at said point of physical connection, any and all live stock and other freight coming over its lines in Kentucky consigned to the Central Stock Yards Company at Central Stock Yards, Kentucky, or any other person or persons at said station, or in care of said Central Stock Yards Company at said station, for transportation and delivery by said Southern Railway Company in Kentucky at Louisville, Kentucky, and so billed and consigned.” After the entry of the order, live stock was offered to the railroad company at Columbia, Tenn., and.the company requested To bill and consign the stock to the Central Stock Yards via the Southern Railway in Kentucky. The Nashville Railroad Company refused to so bill and consign the live .stock, but it was received and billed and consigned to Louisville, Kv. The Louisville & Nashville Railroad Company’s live stock station in Louisville is the Bourbon Stock Yards. When the consignment reached South Louisville, the consignee, by authority of the consignor, demanded that the cars containing the shipment be stopped ¡at that point and delivered to the Southern Railway Company in Kentucky, to be carried on the track of the latter company to the Central Stock Yards station — which is not in Louisville, — and there delivered to the Central Stock Yards Company. The Louisville & Nashville Railroad ■Company refused to comply with this demand, but carried the shipment to the Bourbon Stock Yards, its live stock station in Louisville. A rule issued from the circuit court against the Louisville & Nashville Railroad Company to show cause why it should not be punished for contempt for disobeying the order of court before mentioned. The facts herein stated having been made to appear, the ■railroad company was adjudged guilty of contempt in dis-obeying the order, and fined. The railroad company has applied to this court for a writ of prohibition prohibiting the judge of the chancery division of the Jefferson circuit -court from proceeding to carry into effect or execution the order adjudging the railroad company guilty of contempt and fining it.

The first question is as to the power oí this court in the premises. The case of Hindman v. Toney, 97 Ky., 413 (17 R. 286) 30 S. W., 1006, and Weaver v. Toney 107 Ky. 419 (21 K. 1157) 54 S. W., 732, 50 L. R. A., 105, seem conclusive that this court has power to grant the writ if a case has been presented, for the exercise of the power. It is manifest that no question is here presented which in any way involves the merits of the litigation in which the order was made. It-is immaterial in this proceeding to inquire whether’ the trial court did right in making the order of injunction, or whether it might properly have enjoined the Louisville & Nashville Eailroad Company from doing the acts admitted to have been done. The sole question here is whether those acts are a- violation of the order of injunction, fairly construed. No other question is considered or decided upon this application. An examination of the order of injunction shows it to be divided into two clauses, and that each clause relates, and was intended to relaté, to a different class of railroad traffic. The first clause requires the railroad company to receive live stock at any and all of its stations in Kentucky, and to bill and transport and deliver such live stock to the Southern Eailway Company at Louisville for transportation to the Central Stock Yards Company at Central Stock Yards station, when so required by the consignor. This clause refers to and provides for the transportation of live stock consigned to the Central Stock Yards Company or the Southern Bailway Company from points within the - State. The second clause applies to shipments from beyond the boundary of the State, and requires the Louisville & Nashville Company to .transport and deliver live stock shipped from points outside the State in the same manner if such live stock is so billed and consigned. The live stock here in question was billed and consigned from a point outside of the State to Louisville, and not to Central Stock Yards station. Whether the railroad company’s refusal to accept the consignment to the Central Stock Yards via the Southern Railway was legal or illegal, it was certainly not a violation of the order, and therefore, not a contempt.

Was the railroad company’s refusal to change the destination of the shipment at South Louisville a disobedience of the order? In his opinion upon the rule for contempt the learned chancellor has argued at some length, .and with his accustomed ability and clearness, that the consignor and the consignee had the legal right to change the destination of the shipment', and that it was the legal duty of the railroad company to comply with' their demand. In the view we have taken of the matter, this is not material. It is not a question of what the chancellor had the right to order, but of what he did order. Fairly construed, the order of injunction does not, in ■either clause, in our opinion, cover an attempt to chamge the destination of a shipment made in another State. Up■on an application to a judge of this court to dissolve or modify the order, we dó not think this question would be ■considered as involved. The petitioner, therefore, if the ■order be now construed to cover a change of destination, is deprived of his right of application to a judge of this ■court upon the question of the chancellor’s right to make .an order covering such change of destination.

The procedure by rule for contempt should not be ex-■ereised unless a case is presented of actual disobedience. We do not think such a case is presented here. The entry ■of an order .of injunction is,- in some respects, analogous to the publication of a penal statute. It is a notice to the parties that certain things must be done or not done, under a penalty to be fixed by the court. The language ■of such notice should not be stretched to cover acts not ■fairly and reasonably within its meaning. In the case at bar -the differences of opinion which have appeared as ¡to-the proper construction of this order indicate that it is at' least doubtful whether it covers the acts complained of, and we are of opinion that it ought not to be so construed, or understood.

The writ of prohibition may go.

The whole court sitting. Justices Paynter, Hobson and White, dissenting.