128 F. 230 | 8th Cir. | 1904
after stating the case as above, delivered the opinion of the court.
The chief contention of counsel for the Pacific Company is that the decree below is erroneous (i) because the acts of Congress never imposed upon the Union Pacific Railroad Company, the mortgagor under whose first .mortgage of March i, 1865, the appellant holds the property in question, nor upon its successor, the duty to grant the joint use of its bridge at Omaha, its passenger station in that city, or its railroad between Council Bluffs and Omaha to the appellee, or to any othér -railroad company; and (2) because, if such a duty was imposed upon it, it did not extend so far as to require that company, or any of its successors in interest, to grant to the appellee, or to any other railroad company, the use of its tracks or the use of its other transportation facilities between Omaha and South Omaha, or at any point west of Twentieth street in the former city.
The arguments and authorities in support of the position here taken -by counsel for the appellant admonish us that the questions which it presents are grave, difficult, and of doubtful solution. We .are, however, met at the threshhold of our investigation by the
In that case the Union Pacific Railway Company, the successor in interest of the Union Pacific Railroad Company, which made the mortgage of March 1, 1865, had made a contract with the Rock Island Company to grant to it the joint and equal use of its bridge and passenger station at Omaha, and of its railroads from Council .Bluffs to Omaha and South Omaha, upon the same terms upon which this decree requires the appellant to grant the use of these facilities to the Mason City Company. The Pacific Railway Company refused to perform this agreement, and the Rock Island Company brought a suit in equity to compel its performance. The chief defense which the Pacific Company presented was that the making of the contract was beyond its corporate powers. The counsel for the Rock Island Company answered that the powers of the Pacific Company were ample to permit it to enter upon and to execute the agreement between them (1) because the authority so to do was one of those incidental powers necessary to the full and convenient exercise of the authority to construct and operate a railroad, which had been expressly granted to it by its charter, and (2) because the act of July 25, 1866, c. 246, 14 Stat. 244, and the act of February 24, 1871, c. 67, 16 Stat. 430, relating to the Omaha Bridge, had expressly granted this authority to it. The Supreme Court considered and discussed at length, in the order in which they have been stated, each of the reasons which had been urged by counsel for the Rock Island Company for the existence of this corporate power. At the close of the discussion of the first reason, that court said:
“AVe think that it would bo carrying the doctrine of ultra vires much too far to deny absolutely the competency of a railroad company, being a public highway, whose use is common to all citizens, to contract to give another running rights over its tracks without express statutory authority; and that, under proper circumstances, such a contract may well be held within its implied powers. In Lake Superior Railway Co. v. United States, 93 U. S. 442 [23 L. Ed. 965], Mr. Justice Bradley adverts to and comments on the fact that, in England and in this country, railroads when lirst constructed were by the legislatures and the people regarded and treated as public highways for the use of all who had occasion to run their vehicles thereon; and this is certainly so far true in modern acceptation that, being for the common use of the public, their owners are ordinarily competent to make contracts which will subserve such use. But the determination of the existence of the power to grant running rights in this instance does not rest on these considerations alone. For the provisions of the Pacific Railroad acts relating to the bridge over the Missouri river, its construction and operation, imposed on the Pacific Company the duty of permitting the Rock Island Company to run its engines, cars, and*234 taa-i-ns over th'e bridge and the tracks between Council Bluffs and Omaha, and ¡thtnlr that South Omaha was. included.”
-The court then proceeded to discuss the acts of Congress relating t& the Omaha Bridge of the Pacific Company, and at the conclusion off that, discussion held that it-was within the corporate powers of that cbmpariy fo make the contract with the Rock Island Company which w'ds'in-issue in-that case. Union Pacific Ry. Co. v. Chicago, etc., Ry. Co. 163 U. S. 564, 585, 589, 16 Sup. Ct. 1173, 41 L. Ed. 265. In this Op'ihioh the Sujyreme Court clearly declared that the provisions of thé ''Pacific' Railroad acts relating to the bridge over the Missouri river- imposed- upon the Pacific Company the duty of permitting the Rock Island Company to run its engines, cars, and trains over the-bridge and over the tracks between Council Bluffs, Omaha, and South Omaha.- Unless the appellant has escaped the imposition of this' dutf because it holds the bridge and tracks under the mortgage óf March-i, 1865, and not by virtue of a conveyance from the mortgagor- ⅛ its grantee made subsequent to the Omaha Bridge act of February 24, 1871, c. 67, 16 Stat. 430, a question which will be subsequently considered, it owes the same duty to the Mason City Company' n’ow that the Pacific Railway Company owed to the Rock Island Company in 1890 before the contract between them was made, bfetause-the Mason City Company is practically in the same situation and-has rthe same need of the use of these transportation facilities t!ó-dáy that the -Rock Island Company occupied and had at that time. Tfe-e conclusion necessarily follows that the two reasons for the reversal of the decree below which are stated at the opening of this -épinio-n' cannot be sustained or considered by this court, unless it is at -liberty to disregard the declaration of the opinion of the Supreme- Court upon the very question they present, which that court so1 clearly announced in the Rock Island Case, May this court lawfully do- so ?
-.Counsellor the appellant argue, with great ability, ingenuity, and force,' that the decision of this question was not necessary to the determination of the main issue presented in the Rock Island Case; Aati the weal question in that case was the power of the Pacific Company ‘to make -the contract there under consideration, and not its duty to grant the joint use of its transportation facilities to other railroad companies. They insist that all that was said upon- the subject of its duty to the Rock Island Company was-the mere obiter dictum of Mr. Chief Justice Fuller, who delivered the opinion. They Scite again.and rely upon the oft-quoted words of Chief Justice arsfiall in Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257, that ‘Ait is a maxim,, not to be disregarded, that general expressions in every opinion - áre to be taken in connection with the case in which filóse expressions are used. If they go beyond the case, they may respected, but ought not to control the judgment in a subseement suit when, .the very, point is presented for decision. The reason for this maxim'is obvious. The.question actually before the court is investigated with care, and considered in its full extent. Other nrin-gfples.'.ytluch may 'sérve to illustrate it are considered in their relation lhí;Üi4:.¿as.e..4.ftcíílfid, but; t&eir possible bearing, on. all-other cases is
It is true that the power to grant the joint use of its tiaii'sp'Ortátióh facilities at Council Bluffs, Omaha, and South Omaha' might exist'in the Paciiic Company without the duty to grant them. But it' is alfe’o true that the duty could not exist without the power. If the duty existed, it was imposed by the Congress, which had the authority to gráht the power, and the imposition of the duty necessarily carried1 with' it the power to discharge that duty. The opinion of the Supreme' Court upon the second reason assigned by counsel for the Rock Island Company for the existence in the Pacific Company of the power to make the contract between the companies, when analyzed and stated" ’in syllogistic form, reads in this way: The Congress of the United States, by its acts relating to the bridge over the Missouri river, imposed upon the Pacific Company the duty of permitting the Rock 1 sland Company to use the bridge and the other transportation facilities of the Pacific Company between Council Bluffs, Omaha, and South Omaha. The imposition of this duty necessarily carried'with it the grant of the power to discharge it. Therefore the Pacific Company had the power to make the contract which granted this permission. Now, how can the position be successfully maintained that the decision of the question involved in the major premise of this' syllogism was beyond the case under the consideration of the court, or tin-necessary to its decision, when a determination that no such duty was imposed would have been fatal to the argument, and would necessarily have resulted in the conclusion that no power to make the Ton-tract was granted by the acts of Congress relating to the Omaha Bridge? No satisfactory answer to this question has been' made, diid the conclusion is inevitable that the consideration and decision' cif the question whether or not it ivas the duty of the Pacific Company under the acts of Congress relative to the Omaha Bridge to permit the Rock Island Company to use the transportation facilities in question was necessary to and determinative of the decision that the; Pacific Company had the power under those acts to grant to the Rock Island Company the permission to use them.
It is, however, contended that it was unnecessary to the 'determination of the ultimate question before it for the court tó dedicle, the latter question at all; that it was unnecessary for it to determine whether or not the Pacific Company had the corporate poybr to make the contract under the acts relating to the Omaha Bridge,, because it had already decided in the earlier’ part of its,' opíriíbri, and before it reached the discussion and decision of this question, tliji't the Pacific Company had this power under its general grant "óf1 authority to construct and operate railroads. It is contended that because the court based its decision of the ultimate question, uppn Its decisions of Ihese two questions of law, each of which was debated, discussed, and deliberately decided, and the decision of either,one „of which furnished ample ground to sustain the ultimáté conclusion,/t'fíé decision of one of these preliminary questions was ‘úrin'ecéssafiy and
Concede that the decision of the Supreme Court, that the power of the Pacific Company to make the contract with the Rock Island Company might be implied from the general grant of power to construct and' operate its railroads, was ample to support its ultimate conclusion, and that it was unnecessary for it to decide that the duty was imposed upon that company,- and that the power was granted to it so to do by the acts relating to the Omaha Bridge; yet it is equally true that the decision of the latter question was also sufficient to sustain its ultimate determination, and that the former decision was equally unnecessary to that conclusion. Yet each of these two questions was debated at the bar of the Supreme Court, each of them was "pertinent to the legal issue which that court was compelled to decide, each of them was discussed and decided by that court, and was one of the logical steps to the determination of the ultimate legal issue which it was required to decide, and it placed its determination of that issue upon its decision of both of these questions, and upon its decision of one as much as upon its determination of the other. That court necessarily decided, when it approved and delivered its opinion — and that decision is not open to review or criticism here — that the discussion and decision of each of these two questions was within the, case before it, and essential to the determination of the ultimate issue it was considering. If it had not so decided, it would not have discussed with equal care and labor, and have decided with equal clearness and certainty, each of these issues of law. It did not disregard or discard one of these questions and
The conclusion at which we have now arrived renders the consideration of the questions relative to the Saunders deed and the trh • partite agreement under which the Mason City Company claims the right to the use of the bridge, station, and tracks in question unnecessary to a decision of this case, and they will neither be stated nor decided.
The next contention of counsel for the appellant is that the decree should be reversed because the evidence discloses no necessity for the Mason City Company to use the transportation facilities in question, and no probability of irreparable injury to it from the refusal of its use of them. It is,said that there is another railroad bridge across the Missouri river at Omaha, owned and operated by another corporation; that the Mason City Company can obtain, by agreement with that' corporation, the use of facilities for the transfer of its engines, trains, and business from Council Bluffs to the railroads entering Omaha and South Omaha from the' South and West as serviceable'to it as that provided by the decree; and that, if it does not desire to obtain the use of a bridge and tracks in this way, it can construct a new bridge across the river and new railroads between the three cities. The latter suggestion is unworthy of serious consideration. It is undoubtedly possible, but it is neither practicable nor advisable, either in the interest of the appellee or in the interest of the public whom it serves, that that company should invest the large amount of money that would be required to construct another bridge and to purchase a right of way through the city of Omaha, and that it should consequently impose upon the traffic of the country the tax that would be necessary to pay it a fair income upon such an investment.
The allegation that the Mason City Company can, by contract with the owner of the other bridge, secure the use of transportation facilities as serviceable to it as the use of those secured by the decree in this case, is denied by its counsel, and the proof does not satisfactorily support the averment. But suppose that this allegation were true; would that fact be a conclusive defense to the claim of the appellee that the Pacific Company shall discharge the duty which it owes to it under the act of 1871 ? A. agrees to convey to B. a lot in a city for a certain price. Is it any answer to B.’s bill for specific performance of the agreement that he can obtain another lot of equal value and equally useful to him from C. for the same price, and that consequently no irreparable injury will result to him from the refusal of A. to perform his contract? The state grants a franchise to a corporation to operate a railroad upon the condition that the grantee shall transport the goods of all shippers upon the same terms. Is it any answer to a bill to compel the railroad company to discharge this duty to a shipper that the latter can procure the transportation of his goods to their destination by another railroad company upon the terms he seeks, and that the refusal of the first company to discharge its duty to him will therefore inflict no irremediable loss upon him ? • The appellant owes the Mason City Company the duty of permitting it to enjoy the joint use of its bridge, station, and tracks for reasonable compensation. The proof is plenary that the appellee needs this.use to bear its traffic from Council Bluffs to the railroads entering Omaha and South Omaha from the
Finally, it is contended that the decree should be reversed because the Mason City Company has no corporate power to acquire or hold any interest in, or use of the property of, the Pacific Company in the state of Nebraska. The Mason City Company is a corporation of the state of Iowa. On January 7, 1903, it accepted by a proper resolution of its board of directors, and on January 13, 1903, it filed its articles of incorporation with the Secretary of the State of Nebraska, and complied with the terms of the act of the Legislature of that state approved March 19, 1889, p. 407, c. 42, entitled “An act to enable foreign corporations to become domestic corporations of this state.” Comp. St. Neb. 1901, c. 16, § 215. It thereby acquired the right to hold and use any interest in property in the state of Nebraska which the laws of Iowa and its articles of incorporation authorized it to acquire or use. The statutes of Iowa provide that any such corporation organized for the purpose of constructing a railway from a point within that state may construct or extend the same into or through another state under such regulations as may be prescribed by the laws of the latter state. St. Iowa. 1897, § 2038.
The argument in support of the proposition that this company has no corporate power to acquire or enjoy the use of these transportation facilities of the Pacific Company in the state of Nebraska is this: The charter of a corporation is the measure of its powers; the- enumeration of the powers there contained is the exclusion of all others. The power to acquire and enjoy the use of. transportation facilities or of property in the state of Nebraska is not enumerated in the articles of incorporation which constitute the.charter of the Mason City Company. Therefore that company has no such corporate powder. The major premise is conceded. The minor, premise and the conclusion do not appear to be sustained by the facts. The statutes of Iowa provided, as we have seen, that this corporation, and any other corporation organized for the purpose of constructing a railroad from a point within that state, might build or extend the same into or through any other state under such regulations as the laws of that state might prescribe. This company complied with the regulations which the'state of Nebraska prescribed to enable it to construct or extend, and to acquire and hold, the necessary property to enable it to operate its railroad in and through that state. Its articles of incorporation empowered it to build and operate its railroad from Ft.-Dodge to Council Bluffs, with “such extensions beyond each and every of said points as the board of directors of said corporation may determine upon and designate and the law permit.” The acquisition of the joint and equal use of the bridge over the Missouri river, of the station at Omaha, and of the railroads of the Pacific Company between the three cities was in practical and' in legal effect an extension of the railroad of the Mason City Company from Council Bluffs to Omaha and to South Omaha. The laws of Iowa and Nebraska permitted, nay, they authorized, such an extension, upon .the single condition that the board of directors should determine upon and designate it. The resolution of the board of October 22, 1902, which empowered and directed the officers of the Mason City Company to demand and enforce its demand fot the use of-the transportation facilities of the -Pacific Company between-Council Bluffs and Omaha and South Omaha was a compléte' com
The result of the whole matter is that, under the opinion of the Supreme Court in Union Pacific Ry. Co. v. Chicago, etc., Ry. Co., 163 U. S. 564, 586, 16 Sup. Ct. 1173, 41 L. Ed. 265, to the effect that the appellant in that case owed to the Rock Island Company the duty, under the Pacific Railroad acts relating to the Omaha Bridge, to permit it to use the very facilities in question in this case — an opinion which this court, tor reasons -which have been fully stated, does not feel at liberty to criticise or disregard — there is no escape from the conclusion that the appellee is entitled to the relief granted to it by the decree below. That decree tmtst accordingly be affirmed, auu it is so ordered.