103 Tenn. 184 | Tenn. | 1899
This bill was filed, in the Chancery Court of Shelby Comity, on February 17, 1899, by John A. Post & Co. and. ten other firms of cotton shippers, named in the bill, against the Southern Kailway Co., to compel it by mandatory injunction to issue its bills of lading for cotton tendered it by complainants for transportation to New England points, with the routing, or lines of connecting carriers, selected by complainants inserted therein. The material allegations of the bill are: That on .the day named the Southern Kailway Co., a corporation under the laws of Virginia, was operating its line of railway from Memphis, Tennessee, to Alexandria, Virginia, having a “joint freight tariff in connection with, among other railroads, the Pennsylvania Railroad and the New York, New Haven & Hartford Railroad, thus forming a continuous line from the city of Memphis to the city of Pall River, Massachusetts,” and that the joint freight tariff provided for a through rate from Memphis, and over the lines named, on uncompressed cotton, and was certified to con-formably to the interstate commerce law, and concurrent over the lines named, at the prescribed rate of 50-| cents per one hundred pounds, which, by . agreement between the several carriers named, was to be divided inter sese. That on the 17th of February, 1899, the complainants tendered to defendant twenty-four bales of cotton, marked “D.
'Defendant filed its demurrer and answer to said hill. The demurrer contained three grounds; the first, that there is no equity in the bill; second, want of jurisdiction of the subject-matter, and that the remedy, if any, was in the Circuit Court of the United States. Tine third was to the effect that defendant company cannot he re-
Considerable piroof was taken in the ease, and, on final hearing, the Court below decreed rtthat the complainants axe entitled to have their cotton accepted and received by the defendant, and transported over its line and over tire connecting lines of defendant, as • designated in the bill herein, to Alexandria, Va., and thence over the Pennsylvania Railroad to Jersey City, and thence over the New York, New TIaven & , Hartford Railroad to destination, as complainants may so designate their cotton to be shipped, where the defendant has through tariff arrangements with such designated connections, and complainants tendering the published through tariff rate, and demanding the usual and customary bill of lading therefor;” and held further “that the provisional mandatory injunction heretofore .issued in this case, requiring the defendant to accept and transport complain
“First. — -The Court erred in oyerruling the third ground of demurrer filed by defendant, to the effect that it could not be compelled to accept the routing given by complainants for the transportation of cotton as claimed by them, but that the routes and agencies to be selected for the transportation thereof beyond its own lines was and is a matter wholly within the control of demurrant.
“Second. — The Court erred in decreeing that the complainants were entitled to have their cotton accepted and received by the defendant, and transported over its line and over the connecting lines of defendant, as designated in the bill, to Alexandria, Va., and thence over the Pennsylvania Railroad to Jersey City, and thence over the Rew York, Rew Haven & Hartford Railroad to destination, with the routing to be selected by the complainants inserted in the bill of lading issued therefor, and to have issued to them 'the customary bill of lading therefor.
“Third. — The Court should have held, and erred in refusing to hold, that the defendant railway company had the legal right, where cotton destined for shipment to points beyond its own line*194 was tendered to it for transportation, to select and name, and transport the same over such connecting lines beyond its own line as it might select and choose to use.
“Fourth. — The Court erred in adjudging and decreeing that the provisional mandatory injunction preliminarily granted in this cause, requiring the defendant to accept and transport cotton tendered it by complainants over such connecting lines as they might choose to select, be made perpetual.
“Fifth. — The Court should have held, and erred in refusing to hold, that complainants were entitled to no relief, and in refusing to dismiss their bill, herein.
“Sixth. — The Court erred in admitting in evidence the following questions and answers propounded by _ complainants’ counsel. to Frank Anderson, to wit, the questions designated in the bill of exceptions touching the physical division of cotton or the apportionment of it between the several carriers at Memphis, and in admitting in evidence the announcement or resolution filed as •Exhibit 10 to Anderson’s deposition, showing such, physical division or apportionment of cotton shipped out of Memphis, and in admitting in evidence the testimony of B. E. Sargent and J. M. Culp, and especially the supplement to Exhibit B. to the deposition of J. M. Culp, being the*195 amionneement of the percentages to which each road would limit its carriage capacity.
“Seventh. — The Court erred in declining to compel the witness, II. B. Lemming, to answer the question propounded to him touching the fact as to whether or not he or his firm had, prior to the 20th of December, 1S98, received or accepted from the Star Union, or any other fast freight line out of Memphis, rebates or concessions from the regular cotton rate in force. The Court erred in refusing to compel the witness, O. C. Cowan, to answrer the question propounded to him as to whether or not he or his firm received or accepted from the Star Union Line, or any other fast freight line out of Memphis, prior to the 20th of December, 1898, rebates or concessions from the regular established cotton rate in force.
“Eighth. — The Court should have held that, the subject-matter hereof being interstate commerce, under Art. 1, p. 3. of the United States Constitution, the State Court had no jurisdiction, and erred in overruling the second ground of demurrer.
‘‘Ninth. — The Court erred in refusing to hold that under the provisions of the Act of Congress passed February 4, 1887, and amendments thereto, regulating interstate commerce, the defendant could not be compelled to issrre bills of lading for goods to be transported beyond its ow-n line over*196 connecting lines of carriers selected by the shipper.
“Tenth. — The Court erred in refusing to hold that the New Orleans announcement of December 20, 1898, was not violative of the provisions of the Act of Congress passed July 2, 1890, known as the. anti-trust Act, or of the provisions of the Act of Congress to regulate interstate commerce, passed February 4, 1887.
“Eleventh. — The Court erred in refusing to hold that complainants herein could not maintain the bill for an alleged violation of the anti-trust Act, passed by Congress July 2, 1890, the United States being the only party authorized to maintain such a bill.”
Before proceeding to consider the question of law involved, we think it necessary to pass upon several questions of fact as to which there is more or less of difference between the parties. It is insisted that the refusal to allow shippers to select their own routes applied only to the Memphis market, and to shipments of cotton; that it was first put in force after December 20, 1898; that repeated attempts were made after that time to make shipments over routes designated by shippers, and refused; that irreparable loss and damage resulted to shippers; that this action was taken in pursuance of the agreement made on December 20, 1898, at New Orleans, to that effect, and that such agreement was illegal, and
“The Southern Railway Company announces . effective January 1, 3899:
“First. — That Erank Anderson is designated the individual agent of this line for the purpose of announcing its rates on export cotton traffic out of Memphis.
“Second. — That this line announces for itself that it will not cut unlawfully, or secretly reduce by any manipulation, of cotton from Memphis to foreign • points adjusted for it from day to day by its appointed agent.
“Third. — That it will furnish daily to its ap*198 pointed agent the lowest ocean rates from the vaiious ports reached by it to foreign ports.
“Fourth. — That it will not cut unlawfully, or secretly reduce in any way whatever, its published tariff rates on cotton from Memphis destined- to points within the United States and Canada.
“Fifth. — That, to preserve the integrity of its published tariff rates, it will control the routing of its cotton and issue its own bills of lading for all cotton forwarded over its road; that such bills of lading will not specify routing via any fast feight line nor routing via any connecting roads except to specify such terminal railroad deliveries as may be designated by shippers; that in the distribution of its cotton among its connecting lines it will have at all times due regard for the strict maintenance of its rates through to destinations; that it wrill give ten days notice in advance of any change in its policy.
“Representatives of the Illinois Central, Yazoo & Mississippi Valley, Nashville, Chattanooga & St. Louis; Kansas City, Memphis & Birmingham; Kansas City, Fort Scott & Memphis; Louisville & Nashville 'Railroad, and Memphis & Cincinnati Packet Co. made same .announcement for their respective lines, and upon December 23 Mr. C. G-. Warner, vice president of the Missouri Pacific Railroad made same announcement for his road, after which the following was adopted: That the*199 declaration with respect to maintaining of rates, the issuing by initial lines of their own bills of lading for cotton shipped from Memphis, "become effective at once; provided, however, that the initial lines and fast freight lines will be allowed until the night of December 81 to get forward such cotton for which they have issued their bills of lading up to and including December 20, 1899. That initial lines and fast freight lines be required by Secretary Anderson to furnish him at once a statement showing the number of bales, marks, etc., of all cotton for which they have issued bills of lading up to and including December 20, 1898. Meeting adjourned. ID E. Smith, Chairman. ’.Frank Anderson, Secretary.”
“Supplement to the proceedings of a conference of the executive officers of the Memphis initial lines, held at ISTew Orleans, December 20, 1898:
Per cent.
Representative of the Southern Railway announced that his road would limit its carrying- of cotton from and passing through Memphis from September 1, 1898, to August 31, 1899, to___ 13.42
Representatives of the Illinois Central and Yazoo & Mississippi Valley Railroads announced that their roads would limit their carrying to_ 42.78
Representative of the Louisville & Nashville Railroad announced that his road would limit its carrying to. 13.42
Representative of the Nashville, Chattanooga & St. Louis Railroad announced that his road would limit its carrying to_•_ 7.96
Representative of the Memphis & Cincinnati Packet Company announced that his line would limit its carrying to_ 6.50
100.00
*200 “It was -understood that Illinois shipments on through waybills for Yazoo & Mississippi Valley stations will not be included in the percentage announced by the Illinois Central and Yazoo & Mississippi Valley Railroads. IT. E. Smith, Chairman. Frank Anderson, Secretary.”
All evidence in regard to the physical division of cotton or the apportionment of it between the several carriers at Memphis was objected to, and introduced over the objection of defendant, and this action of the Court forms the basis of the sixth assignment of error. The grounds of objection are that the matter was irrelevant and incompetent, and that there was no issue tendered by the pleadings touching the physical apportionment of the cotton at Memphis. The parties have treated the real questions involved in this case to be, • first, whether the shipper or the carrier has the right to designate the .route of through shipments at reduced through rates; second, whether the declaration of policy made at New Orleans was an illegal transaction, and whether the physical division of cotton shipments made in pursuance of that agreement was or was not illegal, and whether this Court has power to enjoin enforcement of such policies.
We are of opinion that the charge in the bill that the action of the railroad was due to the agreement at New Orleans, the terms of which are unknown to complainant, but whose tenor was
Upon the abstract question as to whether the initial railroad company or the shipper has the right to designate .the route of through shipments at through rates ■ lower than local rates, while there is some conflict of authority, we think the weight of it, as well as the reasons, are in favor of the right of the railroad company to make the designation, and enforce it, when there are several lines equally prompt and reliable offered (he shipper. It is virtually conceded that a railroad company cannot- be required, as a legal obligation, to carry feights beyond its own terminal points, and this is in accord with the great weight, if not universal holding, of the cases. Express cases, 117 U. S., 1, 29 (6 Sup. Ct., 542, 628); Coles v. Railroad Co. (Ga.), 12 S. E., 749; Myrick v. Railroad Co., 107 U. S., 102 (1 Sup. Ct., 425); Hunter v. Railroad Co. (Tex. Sup.), 13 S. W., 190; Bird v. Railroad Co., 99 Tenn., 719; Transportation Co. v. Bloch, 86 Tenn., 415; Elliott on Railroads, p. 432; Little Rock & Memphis Railroad Co., v. St. Louis, Iron Mountain & Southern Railway
In the case of Little Rock & Memphis Railroad Co. v. St. Louis, Iron Mountain & Southern Railway Co.. 41 Fed., 563, Caldwell, Judge, says: “At common law a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go beyond, he may, in the absence of statutory regulations, determine for himself what agency he will employ;” citing in support of the opinion Atchison, Topeka & Santa Fe Railroad Co. v. Denver & New Orleans Railroad Co., 110 U. S., 667 (4 Sup. Ct., 185), and in the case of St. Louis Drayage Co. v. Louisville & Nashville Railroad Co., 65 Fed., 41, the language of the Court in the 110 U. S. and 4 Sup. Ct. cases
It is insisted that this principle is controlling of the case at bar, because, if the initial carrier has the right to make these arrangements and connections with other lines, he has the right at any moment to discontinue them, and the mandatory injunction issued in the ease seeks to compel the defendant company to keep up these arrangements, whether they prove satisfactory or not. In the ease of Bird v. Railroad Co., 99 Tenn., 719, 122, the Court, speaking through Justice Caldwell, thus announces the proposition: “The first carrier had the legal right, at its election, to undertake the transportation of goods to the terminus of its own line merely, or to their ultimate destination. It was under no legal obligation, in the first instance, to transport them beyond its own line, and for that reason it was authorized by the law, when contracting
Mr. Elliott, in his latest work on railroads, lays down the general doctrine as follows (Sec. 1432): “As a general rule, no carrier is bound by law to accept and carry goods beyond the terminus of its own line. Tn the absence of any agreement, either express or clearly implied, for transportation beyond ’ its own line, the common law dirty of an independent carrier is performed by safely transporting the goods oyer its own line, and delivering them to the consignees or connecting carrier as the case may be.” It has been uniformly held that the Courts cannot compel a railroad company to enter into through traffic arrangements with other lines of railroad, it being a matter wholly within its discretion and for its sole determination. Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. Rep., 563; St. Louis Drayage Co. v. Louisville & Nashville Railroad Co., 65 Fed Rep., 41. If this be true, and a carrier can refuse to make such through arrangement, certainly it
The reasons why carriers should have this right to designate routes are forcibly stated by the
The case of Coe v. Railroad Co., 3 Fed. Rep., 775, is cited hy complainants’ counsel as holding a doctrine contrary to this, hut we think that case is not in point. It was a case where a stock yard had been constructed and used for a number of years as a mutual convenience between the owner and the railroad.. The latter then entered, into a contract with a rival stock yard company, and agreed to give it a monopoly of the stock business, and required the former stock yard owner to ship through the latter. The railroad had no yards of its own, and it was held that the railroad could not, 'in this manner, require the complainant to transact his business through a competitor at an increased expense. And a number of authorities are in accord with this holding. Elliott on Railroads, 1551; Stock Yards Company v. Keith, 139 U. S., 128 (11 Supreme Court, 461). Rut we do not consider this case as applicable to the present one.
The case of Express Company v. Koontze, 8 Wall., 342, is also relied on for complainants. That was a shipment of gold dust, and at the ■time of the shipment one of the two connecting lines was in territory in which a state of war existed, and was dangerous, and the express company had notice of this fact, and was cautioned
The • case of Railroad Co. v. Odil, 96 Tenn., 61, 64, is also referred to and relied on by complainants, but that is ,a case . where the railroad company and the shipper had agreed upon a route, and the carrier had deviated from it without the consent of the shipper, and without notice to him, when notice could have been given, and the railroad was held liablé for the deviation.
The case of Rea v. Railroad Co., reported in 7 Interstate Commerce Com. R., pp. 43-54, is in point, and in favor of complainants7 contention. In that . case the complainant offered the Mobile & Ohio Railroad Co. a car load of potatoes at Verona, Miss., and asked that they be forwarded to Cleveland, Ohio, over what is denominated the Big Eour route, with which the initial railroad company had at the time through billing arrangements and through rates, and which, it appears, was a more expeditious route, but the agent of
The main question as ' to the right of the
In the case at bar it is not insisted that there is any discrimination as between shippers at Memphis. It is not insisted that there is any difference in charges as between the several lines. It is not insisted that the rates are unreasonably high, or in any way oppressive, but, on the contrary, it appears that, owing to fierce competition of different roads and the river, the rates are lower than elsewhere; and it is not shown that " the complainants would receive any special benefit by shipping over .the lines selected by them, or would suffer any loss by shipping
We think it ‘ clearly developed by this record
It only remains to consider the effect of the agreement or action of the carriers at New Orleans in regard to- cotton shipments at Memphis. We think it appears from the record that prior to that meeting the question of the abstract right to routes had not arisen between shippers and the carriers at Memphis or elsewhere, but that routing had been a matter of consent or assent, express or implied, between the two. While there was a declaration of policy at New Orleans that applied only to Memphis cotton shipments, it did not concede the question or assent to the claim of the shipper to route as to other points or different freights, but left these untouched;” and the naming of Memphis was not a discrimination prejudicial to it, but was simply because the question had arisen there, and had not arisen elsewhere, and had not become a matter of importance elsewhere. Now, if it had been made to appear that in consequence, and as a result of this declaration or agreement, rates had advanced, or any injury had resulted, or any shipper had
So the shipper is not entitled to receive, nor the carrier to give, directly or indirectly, rebates and concessions to some which are not given to others, and all of this is virtually conceded.
We are of opinion the action taken at New Orleans, if in violation of the provisions of the Act of July 2, 1890, known as the “Sherman Anti-Trust Law,” cannot be reviewed in this action. That Act has been construed by the Supreme Court of the United States in the case of United States v. Joint Traffic Associations, 171 U. S., 505 (19 Supreme Court, 25), and in the ease of United States v. Trans-Missouri Freight Association, 166 U. S., 290 (17 Supreme Court, 540). The opinion in each case was that of a bare majority of the Court. While it is not our purpose in the slightest degree to question or . criticize the holding of the majority, we feel justified in saying that it givés a force, effect, and scope to the provisions of the Act which cannot be reached by applying the general principles of the law, but must be sustained alone
In response to the earnest contention of counsel that competition -may itself he carried to the extent of being a restrait upon trade and commerce in unsettling rates, provoking wars, and impoverishing and destroying the carriers themselves, the Court admits that such a result is possible, but remote, and closes the opinion by saying: “An agreement of ’the nature of this one, which directly and effectually stifles competition, must be regarded, under the statute, as one in
We are of opinion that the declaration of the several roads in this case does not make them a combination or consolidated ' body, bound together by a contract or a legal agreement, but they can only be considered as a declaration by each road of its individual policy, and there is no stipulation to make a change in rates, but to observe those already made under competition, and for the purpose of preventing a practice which could not be for the general interest of shippers, but wras only to subserve the secret purposes of a line extending cut rates to its customers, the effect of which would be to restrict commerce instead of to further and enlarge it. We think the provisions of this Act, and the statutes of
In order to obtain relief in ‘Courts of Equity, it must appear, not simply that there is a concert of action, but that its direct and immediate effect is to restrain commerce and trade, and not merely that it may be hereafter used for that purpose by a departure from its present purposes and practices, and there need be some special ground for equitable interference. That this declaration of policy by- the several roads may hereafter be made the. basis for illegal acts and practices, is not sufficient ground for a present injunction unless such illegal act is its direct and necessary effect; and it must be borne „ in mind that the bill in this case is not framed to set aside the New Orleans agreement as illegal, but that it is used as matter merely collateral to the main question, which is the right of the shipper to route his cotton, a right which, on the one hand, is claimed, and, on the other, denied, without regard to the NeAV Orleans arrangement, and as though it had never been made. The object of anti-pooling and anti-trust laws is to prevent unlawful restrictions and restraints upon commerce and trade, and provide for each and all equal facilities, free competition, and reasonable rates; but they were never' intended to -be used by one
In the case of Gulf, S. & S. F. Ry. v. Miami S. S. Co., reported in 30 C. C. A., 142 (86 Fed. Rep., 407), being an opinion rendered by the Circuit Court of Appeals for the Fifth Circuit, in construing the Act of July 2, 1890, the Court says: “The appellee contends that the defendant railway companies entered into such a combination, conspiracy, and agreement as 'is prohibited by the Act to protect trade and commerce against unlawful monopoly, approved July 2, 1890, for the purpose and with intention of monopolizing the traffic and interstate commerce between New York and Galveston in restrait of such commerce, and for the purpose of preventing complainant from carrying on its business of common carrier for such traffic. Counsel cites Secs. 1, 2,
It is insisted that under tbe agreement between tbe connecting lines set out in tbis case, they must be considered and treated as partners in tbe handling of freights, but we are of opinion such is not the case, but each line is independent of tbe other, and they simply have a mere traffic agreement between themselves as to tbe terms upon which each ' will carry freights for tbe other; and tbe rule governing partnerships