19 F. 156 | U.S. Cir. Ct. | 1883
A short time since it was held that this cause had been removed to the circuit court of the United States, and the parties were allowed to perfect their pleadings. The in junctions in the cause have hitherto been granted in the state court, and a motion to modify or dissolve the injunction granted complainant Sharp under the original bill made by respondent Whiteside in the state court, has been denied by that court. It is insisted that this court has no power or right to review, change, or modify the action of the state court as to-this injunction; that the question is res judicata. If the decree of the chancellor, under a proper condition of the cause, had been for a perpetual injunction, the truth of the position would bo undeniable. This court has no revisory power over the chancery court. It cannot roverse or change its judgments or decrees. The case stands here just as it would stand had it remained in the chancery court. The authority or power of this court over the ease is no greater ,or less than that of the chancery court would be had this court never assumed jurisdiction of the cause. The injunction referred to was not perpetual or permanent, and does not profess to be; it is temporary and preliminary. The chancellor could have dissolved or modified it, whenever, in his opinion, equity demanded it. As the cause proceeded, the time must come when this preliminary injunction would have performed its office, and would have been swallowed by one perpetual in its character, or dissolved for want of merit. It lias not the substantial elements or permanent qualities belonging to stable and unyielding judgments. If the chancellor had at any time concluded that the injunction had been improvidently granted, or had the subsequent proceedings developed to his satisfaction that the complainant was not entitled to the injunctive interference of the court, he could have modified or dissolved his injunction without awaiting the final hearing of the cause. Preliminary injunctions in the courts of this state are generally and essentially ex parte, and the fiat awarding them is not a decree. It is an order, and the fact that, upon the coming in of the answer, a motion to dissolve was overruled, does not make the order any more a decree; it simply in
This court would hesitate before it would disagree with the state court upon preliminary questions. It would dislike a disagreement exceedingly. If, however, its well-considered and deliberate judgment should differ from the action of the chancellor, the judge would be derelict in his duty and unworthy of confidence should he fail to declare the law and justice of the case as his judgment and conscience should dictate, from a sensitive regard for the action and opinion of his brother judge. Judges will disagree as well as doctors.
The vital inquiry at the threshold of the consideration of the motions before us is whether the injunction granted by the chancellor under the original bill should be maintained, or shall it be modified, or shall it be dissolved. In view of the unquestioned and admitted facts as developed by the pleadings, what should be done in this respect? The questions to be considered are questions of law and equity, rather than disputed facts. There is little disagreement as to the material, essential facts. As stated in the original bill, and admitted in the answer, respondent, Florence Whiteside, is the owner of a turnpike road running from the foot to the top of Lookout mountain, chartered by the state, and the people are charged toll fees for passing over it. It is a public turnpike road. The terminus of this road at the top of the mountain is about a mile and a quarter from what is known as the Point of Lookout mountain, a celebrated part of the mountain, which is visited by many for the fine view it, affords of the surrounding country, and of several of the battlefields of the late war. There is what is styled in the pleadings a dirt road between the end of the turnpike and the Point, which runs a great part of the way through the lands of respondent, Florence Whiteside. The mountain ends abruptly at the Point, and she owns the Point and the lands back of it for a considerable distance to both brows of the mountain, so that it is impossible for vehicles to reach the Point without traveling over or through her lands. She has erected a fence across the mountain a short distance from the Point, which extends across from brow to brow, and incloses the Point and the top of the mountain adjoining it, and a gate has been made for an entrance to this inclosufe, and persons have been charged a fee of 25 cents for admission to this inclosure, which is called a park. ■ There is no question but that Miss Whiteside, the respondent, has title to the Point and park. Complainant Sharp is the owner of and operates a livery stable, and has been accustomed to carry passengers to the Point for hire, and to do this is the most valuable part of the business in which he is engaged.
Before the filing of complainant’s bill Miss Whiteside, through her agents, made a contract with Owen & Co., the owners of a livery
It is also said that this arrangement is ruinous to complainant’s business. He insists that as Miss Whiteside charges an admission fee to the park and Point, they become a public institution in such sense that she is bound to admit all persons of good repute who ask for admittance and tender the fee; that she cannot, discriminate in favor of Owen & Go. and against complainant, but should award the same rights and privileges to both, and all like concerns. He avers his willingness to conduct his conveyances over respondent’s turnpike, paying the usual toll, and to pay the admission fees for entrance into the park. An injunction was ordered and issued in accordance with the prayer of his bill. Its terms are that respondents, “each and every of them, their servants, agents, and counselors, are enjoined from discriminating against complainant in his business of carrying passengers over said turnpike road to the Point of Lookout mountain and into the park at the Point; also from refusing to admit the carriages and horses of complainant to pass over said road, and his passengers to enter the park and Point on the same terms as the horses, carriages, and passengers of Owen & Co. are permitted to pass over the road and into the park and Point; also enjoining them from refusing complainant’s passengers to enter the park and Point upon their paying the customary fees, and from refusing to furnish, complainant’s passengers with tickets of admission to the Point at the toll-gate, as they have been doing heretofore under the contract of Owen & Co. with respondent, Whiteside, and as they continue to do the passengers of Owen & Go.; also enjoining them strictly from making or enforcing any contract with Owen & Co., or any other person, which will directly or indirectly discriminate against complainant’s business, or which will secure to said Owen & Co., or any other person, any rights and privileges whatever in respect to said turnpike road, and to said park and Point, which are not accorded to complainant on the same terms.”
The power of the court here invoked and exercised is a tremendous one. It appropriates the use of the respondent’s property to complainant’s uso against her consent. It takes the property from her control in an important sense against her will. We are now discussing tho case under the theory of the original hill, and without reference to the supplementary proceedings. The sovereign power of
Aside from the right of eminent domain, there is an inherent power in the state, when necessary for the public good, to regulate the manner in which each person shall use his own property, but this power of regulation rests upon public necessity. See Munn v. Illinois, 94 U. S. 125.
Whether, like the right of eminent domain, some legislative act must confer on the court authority to declare and effectuate this use, it is, perhaps, unnecessary to determine. There is probably no question, but that in the case of a common carrier, when the legislature has not, in the charter or in the general law, regulated the prices to be charged- upon its business, the courts may, by injunction, prevent extortion or discrimination therein to a certain extent; nor can it be questioned that the courts may compel a common carrier to receive and carry for every person such property or freights as it usually transports on its line, when the shipper has tendered the freight, and its proper costs and charges. The common carrier is granted power to do business for the public, and owing to the public nature of its business and contracts, the courts may control it to some extent, if the legislature has failed to make any provision in regard thereto, or may confine it within the legislative boundaries, if .such have been provided. But in such instances the legislative department has impressed the property with a public character and interest; not that the legislative act could of itself make it so, but because the legislative power is the proper source of authority to determine when the public necessity exists. Then courts may regulate the fees and charges for the use, but the court cannot impress, declare, and enforce the use.
The control which courts may have over railroads and business incidental to and necessary for their conduct and operation, such as warehousing in our great railroad centers, is based upon public necessity. Railroads do nearly all the business of interior transportation. The public is compelled to use them exclusively. There is •scarcely anything to compete with them where they operate. Hence, discriminations or extortion cannot be tolerated in their management. If they refuse like facilities to their shippers, or discriminate in rates or otherwise, courts may compel them to be just. The cases of Munn v. Illinois and Adams Exp. Co. v. L. & N. R. R.,
Now, take the case in hand, Miss Whiteside, as the owner of the Point and park, or her privies in estate, at one time might have excluded all persons from entering upon either. It, to say the least, has been private property. No legislative act has declared a public use in it. If such use has been impressed upon it, it has been done by her. Holding the absolute title, she could control it as she liked, so long as she did not use it to the injury of others. She could have donated it to a public use generally and absolutely, or to such limited use as she might prescribe, or she could have preserved its private character. As her private property she had the right to inclose it; after its inclosure she h^.cl the right to admit as many or as few within the inclosure as she pleased. Because she saw fit to admit some persons upon payment of a given fee gave to others no right to be admitted on tho tender of a like fee. They were in no worse or different position than before any admissions were made. No loss had been sustained by them; no consideration had passed from them. Nothing can be found on which to predicate an equity in their favor. The fact that people may have been admitted to such an extent as to make the business of carrying passengers to the Point profitable to complainant raises no equity in his favor. It was brought about by no use of his property or expenditure of liis money. Respondent has as much right to require him to contribute such portion of profits as might bo deemed equitable, which she has enabled him to make by the allowance of great numbers to go to the Point, as he has to demand of her the use of her property that his business may prosper. Neither lie nor the public has any greater right to the property than she has given them. There is no greater obligation on her part to contribute to the public use, gratification, or pleasure than rests upon others. She holds her property subject to her control just as others hold theirs, until it is applied to the public-use by an act of the sovereign power through methods known to the Jaw, or until she appropriates it by her voluntary act to the use of the public. A court cannot appropriate it to such purpose against her consent. She can determine who shall be admitted within her premises and who shall be refused admission. Of course, tills remark has no reference to officers of the law armed with process.
There is no explicit allegation that she does not allow complainant
• Complainant has engaged in a business in which he serves the public. He charges, as we will suppose, one customer three dollars for the use of a carriage and team, and another five dollars, and another still nothing for precisely the same service. Is there any law that will authorize the courts to control his action in thus discriminating? The pleadings show that another turnpike, St. Elmo, runs up Lookout mountain, (which may be traveled as well as respondent’s in reaching the Point,) and yet complainant tells us in his bill that he is willing to carry all his vehicles and horses over respondent’s pike if she will admit his passengers to the Point. Now, what rule of law or equity would allow complainant to 'discriminate against St. Elmo pike and in favor of respondent’s, when it becomes his interest to do so, and yet not allow respondent to discriminate against complainant and in favor of Owen & Go. in the way of admission to the park and Point when she may think it to her interest to do so ?
It is said that the state has imposed a tax on public parks, and that this is a legislative act, declaring the character and use of the park to be public. The taxation of the park indicates rather that the state considers it private property. It is not usual that public property, or property set apart for public uses, is taxed, and it does not seem that the imposition of the burden of a tax on the property should be construed as setting apart the property to’ public use. It would be strange if a citizen of the state were required by' the state to pay a tax for the privilege of having his property placed beyond his control. On the contrary, it would seem that this taxation indicates that the state believed that the owner ought to pay a tax for the privilege of using her private property to raise money by charging the people for its use. So far from considering it an appropriation of her property to a public use, by which the public is benefited, and
The first amended bill of complainant presents no features so different from the original bill as to demand additional consideration. The last amended bill of the complainant presents a case very different from the theory of the original bill. It has a twofold aspect: First It alleges that respondent’s turnpike road was chartered to run from the foot to the summit of Lookout mountain, and that the summit is not at the brow of the mountain, but is near the Point, and that the dirt road from the brow to the Point is a part of the turnpike, and was opened and used as such; that the park fence is built across the road and obstructs it, and is therefore a nuisance, by which complainant suffers irreparable injury. Second. It is alleged that if the dirt road is not a part of the turnpike, it was opened by the owners of the lands over which it passed, and dedicated to the public as a public road, and is obstructed as above shown.
The last position is strongly fortified and strengthened, to say the least, by the use of the road for a period of 30 years and more, and by the terms and declarations of deeds executed by the owners of the land for various lots of land bounded by this road. The Point, however, is not part of this road. The road does not quite reach it. If the road were thrown open from end to end to the public, every person might be excluded from the Point by its inclosuro, or otherwise. The whole pleadings show that admission to the Point is what is wanted. This road leads to nothing but the Point. There is little or no value in the free and unobstructed use of the road by complainant, unless his passengers can be admitted to the Point after coming to the end of the road. This they cannot do without respondent’s consent, and no case is made by which a court would be justified in forcing her assent. This obstruction of the road does not present such an instance of irreparable damage as would authorize the interference oi a court of chancery by its injunction.
Miss Whiteside comes and filos a bilí in the nature of a cross-bill, in the cause, in which she gives a history of the case and recounts the steps taken in it. She asserts her right to the property and to
There remains the injunction on Miss Whiteside’s cross-bill, filed in the state court. No action is invoked in regard to it, and therefore no order is made in reference to it. It appears to be innocent and harmless, anyway. ___
The reasons given by Judge Key for the distinction taken by Mm in the text are so clearly and forcibly stated that they call for no further exposition. The question, however, of illegality of contracts in restraint of business is one of such growing interest that it may well claim a more minute and copious discussion than is consistent with the adjudication of a single contested issue, such as that more immediately before us. Contracts of this class may be ranged under the following heads:
(1) Restriction of Public Duties. Wherever a public duty is lawfully accepted or imposed, a contract by the party who should discharge it, to limit its efficiency to a particular class of persons,'is invalid. No one who is bound to perform a public duty to a particular line of customers, clients, or depend-ants, can, by contract, give a preference to certain persons over others among the persons privileged. We may illustrate this position by cases in which, when public offices are by the law of the land open to competition, those having the disposal of such offices contract to soil them to particular aspirants. Aside from the objection that such contracts are void on the ground of corruption, they are void for the reason that they unduly restrict the disposal of public duties which should not be so restricted.
(2) Agreements not to Do Business or Work in a Particular Place. The policy of law requires labor to be unrestricted; and even were it not so, it might be a serious q uestion whether the enforcement of an agreement to labor permanently and exclusively for a particular person, at his absolute dictation, is not in conflict with that clause of the fourteenth amendment of the constitution of the United States which prohibits involuntary servitude. If an agreement to labor permanently and exclusively for a particular person, without discrimination as to the line of labor, is valid, and can be enforced, then an agreement for life service could be enforced. Aside from this difficulty, however, which will be considered more fully under the next head, the good of society requires that improvident bargains by laborers to work exclusively for certain employers should not, as permanent arrangements, be upheld. Hence, a special engagement to work for a particular employer for a particular time, will be sustained, but not a permanent and exclusive transfer of services.
(4) Agreements Only to Produce or Labor for a Particular Market. An interesting distinction is hero to be observed. It may be that a party owning particular staples, or having the control of labor to any large amount, is under no duty to offer these staples or labor to the community at large. If this is the ease, agreements made by him, on a sufficient consideration, to give these staples or this labor exclusively to particular persons are valid. It is otherwise when the agreement is to give a monopoly to a particular party of a commodity which should be open do purchase to the community at large.
(5) Agreements by a Common Carrier to Discriminate against Particular Parties Entitled to be Accepted as Customers. A common carrier is bound to afford equal facilities to all customers paying him a reasonable fare. A recent illustration of this rule is to be found in Wells v. Oregon R. R.
For the reasons above given, the supreme court of Connecticut held invalid a contract by which the Hartford & Hew Haven Railroad agreed to deliver to the Hew York&Hew Haven Railroad atHew Haven all passengers by
It has been hold in New York
In Hooker v. Vandewater
In Denver R. R. v. Atchison, Topeka, etc., R. R.,
In Twells v. Penn. R. R.
“In Baxendale v. Great Western R. Co. (14 C. B. N. S. 1; 16 C. B. N. S. 137) it was held that the company could not secure to themselves a monopoly of the delivery of goods beyond the termination of their road by a general regulation charging a gross price for carriage on the road, including the cost of such delivery, to all persons, whether they receive their goods at the station or beyond. In other words, they were not allowed to make use of their rights over their road to secure to themselves advantages beyond it. That there are special privileges to individuals or clasr.es of men, makes no difference, for they are but declaratory of the common hnv. Sauford v. Catawissa R. Co. 12 Harris, 378. We hold, then, that the rule of the defendants, of which the complainant complains, is unreasonable, and such as they have no legal right to enforce. The apology set up for it is not sufficient. That the imposition of higher rates for carrying the complainant’s oil to Philadelphia, because it is afterwards to be forwarded in some way to Yew York, is necessary to prevent his having an advantage in the Yew York market over those who employ the defendants to transport all the way, or over those who send oil from Pittsburgh, to Yew York with through bills of lading, is a matter ontsido of their control. It has no proper relation to them as carriers.”
Two points are worthy of notice in reference to this remarkable case. The first is that, though reported in two current Philadelphia perodicals, above noticed, it is not to be found in the regular Pennsylvania reports. The sec-, ond point is that at the same term of the supreme court of Pennsylvania, was decided, Judge Strong also giving his opinion, the ease of Shipper v. Pennsylvania R. R., (reported in 47 Pa. St. 338,) in which it was held that the Pennsylvania Kailroad Company had a right, under its cha rter, to charge a higher freight on goods coming to it from beyond the state than it had for freight-delivered to it in the slate. “There is nothing,” so Judge Strong closes Ills opinion, “in the constitution of the United States that prohibits a discrimination between local freight and that which is extraterritorial, when it commences its transit. Such a discrimination denies to no citizen of another state any privilege or immunity which it does not deny to our own citizens. ”
On the same reasoning it has been held that an agreement whereby a railroad corporation grants to a telegraph company the exclusive right to put on the railroad track a telegraph'line, cannot be sustained. The reasons given are twofold: First, such a monopoly cripples competition, and is therefore in restraint of trade; secondly, telegraph companies are by act of congress authorized to operate telegraph lines on all roads used as post-roads.
In Western U. Tel. Co. v. Atlantic, etc., Tel. Co., in the court of common pleas of Columbus, Ohio, Judge Green gave an opinion from which the following extracts are taken: “This contract embraces other provisions which, as it is alleged, the defendants propose to interfere with. It will be observed that it is not averred in the petition that the defendants propose to remove any but the one wire,—the railroad wire,—nor to prevent the plaintiff from using or continue to use, for the transaction of its business as a telegraph company, the other wires on the poles erected under the contract. The complaint is that the railroad company proposes to violate a term or covenant of the contract by permitting a competing line of telegraph to be erected on its right of way by a rival company, by which its profits will be greatly diminished. The covenant referred to will be found in the sixth clause of the contract, and is in these words: ‘The railroad company is not to permit any other telegraph company or individual to build or operate a line of telegraph along its road or any part thereof.’ The clause of this contract now under consideration, if it shall receive the construction claimed by the plaintiff, is, in my opinion, against public policy.
“In the case of St. Joseph & D. C. R. Co. v. Ryan, reported in 11 Kan. 602, a railroad company, in consideration of a grant of a right of way through certain lands, agreed with the owners to erect and maintain a depot upon said lands, and not to have any other within three miles thereof. It was held that the contract was against public policy. See, also, 24 Pa. St. 378. The public have a deep interest in the operation and establishment of lines of telegraphic communication; it would be inequitable that the rights of the community should be sacrificed to insure the alleged privileges of the plaintiff from all possible damages. In view of the facts of the case, showing that these corporations are not the only parties interested in the contract, and that the public at large have a deep interest in it, it would in my opinion be an unwarrantable exercise of power in a court of chancery to grant an injunction.” This case, so it was stated in the argument in Western U. Tel. Co. v. Baltimore & O. R. Co., was decided in 1876, and a competing line of telegraph has been operated upon the Central Ohio Railroad ever since.
In Western U. Tel. Co. v. Union Pacific R. R.,
Francis Wharton.
Kingston v. Pierrepont, 1 Vern. 5; Blachford v. Preston, 8 T. R. 89; Card v. Hope, 2 Barn. & C. 661; Thomson v. Thomson, 7 Ves. 470; Waldo v. Martin, 4 Barn. & C. 319; Cardigan v. Page, 6 N. H. 183; Gray v. Hook, 4 N. Y. 449; Hunter v. Nolf, 71 Pa. St. 282; Grant v. McLestey, 8 Ga. 553.
Trist v. Child, 21 Wall. 411.
Meguire v. Corwine, 101 U. S. 111; Oscanyon v. Arms Co. 103 U. S. 261; Powers v. Skinner, 34 Vt. 274; Bryan v. Reynolds, 5 Wis. 200; Gill v. Williams, 12 La. Ann. 219.
Wakefield Co. v. Normanton, 44 Law T. (N. S.) 697; Tool Co. v. Norris, 2 Wall. 45; Pingry v. Washburn, 1 Atk. 264.
Collins v. Locke, L. R. 4 App. Cas. 674; Farrer v. Close, L. R. 1 Q. B. 612; Spinning Co. v. Riley, L. R. 6 Eq. 551.
Ronsillon v. Ronsillon, L. R. 14 Ch. Div. 351; Vickery v. Welch, 19 Pick. 523; Taylor v. Blanchard, 13 Allen, 370; Keller v. Taylor, 53 Pa. St. 467.
Wood v. Byrne, 5 Mees. & W. 562.
Since the publication of my book on Contraéis, in Í8S2, there have been several cases affirming the general principle there stated and repeated in this note. Thus, in Smith v. Martin, 80 Ind. 260, it was held that an agreement by a milkman not to sell milk at a particular town was good as to sales in such town, but did not prevent him from selling milk at his farm, out of town. In Jacoby v. Whitmore, (July, 1883,) reported in 49 Law T. (N. S.) 335, it was held that an agreement by a person employed by another not to carry on a business such as that of the employment at any time thereafter within a certain area, is, in the absence of a specific covenant or stipulation to the contrary, to lie understood to continue during the whole of the employe's life-time, notwithstanding the employe has removed his business to another place, and assigned it to athird person. The defendant, th e suit being for an injunction, on entering upon an employment as shopman to 0., an Italian warehouseman, agreed with 0. (there being no meniion of assigns) not to carry on a similar business within a mile of O.’s then shop. C. afterwards moved his business to other premises, 450 yards distant, the defendant continuing with him as shop-man. The defendant gave up his situation shortly after his removal, and then, some additional time elapsing, C. sold his interest and good-will in the business to J. It was hold (Bkett, M. It., and Colton and Bowen, JJ., reversing Bacon, V. 0.) that the defendant should bo enjoined, on
Cooper v. Twibill, 3 Camp. 286n; Gale v. Reed, 8 East, 80; Catt v. Tourle, L. R. 4 Ch. 654.
Morris v. Colman, 18 Ves. 437.
16 Fed. Rep. 37, (U. S. Cir. Ct. N. Y. 1883.)
2 Atk. 371.
33 Beav. 321.
4 Ch. Div. 636.
18 How. Pr. 531.
Keeler v. Taylor, 53 Pa. St. 468.
See Whart. Cont. 3 442.
18 Fed. Rep. 518.
State v. Hartford & N. H. R. Co. 29 Conn. 538.
Hartford R. R. v. N. Y. & N. H. R. R. 3 Rob. 411.
Denio, 349; 29 Conn. 538.
5 Fed. Rep. 650.
5 Jur. (N. S.) 1100.
35 Ohio St. 672.
2 Johns. & H. 80.
2 Nev. & Man. 341.
12 Amer. Law Reg. (O. S.) 728; 3 Amer. Law Reg. (N. S.) 728; 21 Leg. Int. 180.
Western U. Tel. Co. v. Burlington R. R. 11 Fed. Rep. 1; Pensacola Tel. Co. v. Western U. Co. 96 U. S. 1. See Atlanta Tel. Co. v. Railroad, 1 McCrary, 541; Western U. Tel. Co. v. Railroad, Id. 565.
McCrary, 585, 597; [S. C. 3 Fed. Rep. 725, 734]
3 Sup. Ct. Rep. 18.
Amer. Rapid Tel. Co. v. Telephone Co. 13 Reporter, 329.