plaint; third, overruling the demurrer to the packages and by so refusing, unlawfully and second paragraph of said complaint; fourth, unjustly discriminates against this plaintiff. sustaining demurrer to the second paragraph The paragraph then sets out and assigns three of answer; fifth, sustaining demurrer to the specific instances of packages of express matthird paragraph of answer; sixth, sustaining ter tendered and refused on May 30, 1901, to demurrer to the fourth paragraph of answer; wit: First. A package from Seymour, Ind., seventh, sustaining demurrer to the fifth par consigned to Edward Corr, of Bloomington, agraph of answer; eighth, overruling motion Ind., and carried by plaintiff company to to modify decree; ninth, overruling motion Bedford and there tendered to the defendant for new trial. The evidence given upon the company, which the latter refused to receive trial is brought into the record by bill of ex and accept. Second. A package from Freeception.

town, Ind., consigned to Noble Moore, at MitchPlaintiff alleged in the first paragraph of ell, Ind., which was carried by plaintiff to its amended complaint that it is a corporation Bedford, and tendered to defendant company organized and doing business under the laws and by it refused. It is averred that deof the state of Indiana; that for three years fendant's line passes through Bloomington last past it has been engaged in the busi and Mitchell, Ind. Third. A package from ness of carrying money, merchandise, and Selma, Ind., consigned to Dr. W. H. Livingother articles over the Southern Indiana Rail ston, Danville, Ind., and carried by plaintiff road Company's line in Indiana; and since to Bedford and at that point tendered to the 16th day of May, 1901, up to the present defendant, and by it refused. That defenddate it received and agreed to receive com ant's line extends from Bedford to Danville, pensation for such services. Since then con Ind., and that all the aforesaid packages tinuously it has been engaged in consigning were received by the plaintiff in the usual to defendant and other express companies course of business. It is alleged that along such things so carried by it for transporta- | plaintiff's line there are, and for months past tion by such express company over railroads have been, 30 stations where it has maintainin the state of Indiana; that during all the ed agencies; that the railroad over which time mentioned it has been and still is a the plaintiff maintains its line is over 160 responsible express company; that on the 16th miles in length, and that, at each of its said day of May, 1901, it had and now has a paid agencies, said plaintiff has since May 16, up cash capital of $50,000 and no liability ex 1901, daily received express packages which isting against it. It is charged that it is a are consigned to persons in divers cities and joint stock association, and for 20 years last towns in the state of Indiana, in which the past has been engaged in the state of Indiana defendant had and has agencies and to which in carrying over railroads money, merchan its line runs; that each day thereafter the dise, and other articles for hire; that said plaintiff will receive along its line packages. defendant is and during all of said time has It is further charged that the defendant been granting to the Adams Express Com

threatens to continue to refuse packages tenpany, the Southern Express Company, and oth dered to it by the plaintiff, and will refuse er express companies, facilities, accommoda to pay plaintiff's carrying charges, and will tions, and usages in the receipt, carriage, con

refuse to complete the carriage of such packtinuance of carriage, and delivery of such ages, and will refuse to receive from the express matter, and terms, credits, advanta consignee all the carrying charges, and will ges, and usages in the receipt, transmission, refuse to receive from plaintiff such packand delivery of such express matter which

ages and pay the carrying charges accrued the defendant has continuously refused, and

thereon, unless enjoined from so doing; and still refuses, to the plaintiff ; that said ad that thereby the plaintiff will suffer irreparavantages consist in the defendant's maintain ble injuries, the amount of which is impracing business connections with such other ex ticable to compute or ascertain, but which press companies whereby said defendant re does not exceed the sum and value of $1,500. ceived from them, and they received from The paragraph closes with the prayer for a defendant, express packages and each paid mandatory injunction on the final hearing. the carrying charges of the preceding car

The facts alleged in the second paragraph rier and each completed the carriage, and of the amended complaint are virtually the delivered such articles and collected from the same as in the first, except that it contains consignee, and retained all the charges of fuller allegations as to the character of the itself and of each preceding carrier. The plaintiff's incorporation. It avers that the first paragraph further charges that the plaintiff is a corporation organized in pursuplaintiff continuously and daily from the 16th ance to the statutes of the state of Indiana, day of May, 1901, tendered to the defendant and that its purpose and business is to reexpress matter to be received and accepted ceive and speedily forward, deliver, and by said defendant under equal terms and un transport over lines of railway and other der the terms, credits, etc., in the receipt, public highways, by means of public and transmission, and delivery of all express mat private conveyance, under the care of special ter at all of said times granted by the de messengers or otherwise, goods, etc., and to fendant to said other express companies; receive and forward for collection bills, that the defendant has refused to receive said notes, etc., and upon receiving payment to

return the money to the consignor and also specting interstate business no agreement to receive and forward all articles of trade, upon the subject of interchange business etc., with the bill and charges of the shipper would have been made by the defendant; attached thereto to be collected, etc., and to that such agreements secured the defendant return the amount of the charges to the ship a guaranty of repayment of such accrued per. Also to perform for the public all offices charges in case the consignee refused to pay that by usage are incident to the forwarding them, and in such case the agent of the transbusiness by the class of carriers known, rec ferring carrier did pay to the defendant's ognized, and designated by the public as “Ex agent receiving the transfer the charges adpress Carriers." It is further alleged in this

vanced by and those earned by defendant if paragraph that “defendant received from a claim for same was made within 60 days; all other express companies, except plaintiff, that the agreement contained a stipulation and from all persons, express matter for de that on packages of seven pounds or less the livery on its lines and at its offices without

through rate over the two or more lines the prepayment of the charges for transpor should not be greater than either company tation, but collected the same from the con would charge for its carriage for the same signee."

number of miles had either company singly Defendant, in the second paragraph of its carried the same, and that this through rate answer, substantially alleges that it is a co

should be equally divided between the carpartnership and that, under the name of the

riers, the odd cent, if any, being taken by American Express Company, it is, and for

the company making the delivery to the con20 years, has been, engaged in the business

signee; and that within the last five years of an express carrier in Lawrence county,

there has been no other custom, usage, or Ind., and has carried, and still carries, mon

arrangement between defendant and any ey and other articles for hire on certain rail

other express company respecting interchanroads in said state, and especially a railroad

ging business. running through the city of Bedford and ex

The paragraph further avers that the tending to Danville, Bloomington, and Mitch

plaintiff did not at any time before this suit ell, in said state of Indiana. It is alleged

was commenced, and especially on the day that the defendant's express business during

it tendered to defendant the packages menthe time aforesaid extended and still extends over railroads by connections over un

tioned in its complaint, have any agreement

with the defendant respecting interchange interrupted routes through the state of Indiana and into the states of Ohio, Pennsyl

business and up to the time of such tender vania, New Jersey, New York, Michigan, Il

the plaintiff and defendant had not interlinois and other states of the United States;

changed express matter under any reciprocal that during all of said time it has received

agreement and plaintiff had not offered and and still receives and agrees to receive com

did not offer at the time of said tender to pensation for its carrying services; that its

enter into any such agreement, and it did not

at the time of such tender offer to pay deroutes and lines of express business connected at various points in Indiana and other

fendant's charges for carrying said packages, states with the lines and routes of other ex

and did not offer to guaranty to defendant press carriers doing a like state and interstate

the repayment of plaintiff's accrued charges express business, to wit, the United States or defendant's charges to be earned in the

event that it could not be collected from the Express Company, Wells-Fargo Express Company, Southern Express Company, and other

consignee, and it did not offer to put in force

between the plaintiff and defendant a express companies; that during all of the aforesaid time the defendant did, and still

through rating and division of the through does, under agreements made between it and rate similar to the rating and division therethe said other express companies respectively,

of in force between the defendant and such receive from and deliver to each of them in other express companies; that if the prothe state of Indiana both infrastate and in visions of the express companies statute of terstate express matter, and did and does ad Indiana, approved March 7, 1901 (Burns' vance to each of them their accrued charges Ann. St. 1901, $$ 3312b and 3312f) required thereon and did and does receive from them the defendant under these circumstances to its own accrued charges on express matter receive the packages tendered and to advance delivered by it to them.

plaintiff's accrued charges thereon and to so This paragraph further charges that the receive all similar packages so tendered by defendant, on delivering to the consignee plaintiff, then it is alleged that the said statsuch matter, transferred to it, collected and ute is void, because it is in violation of the collects from said consignee all accrued ex following provisions of the Constitution of press charges of itself and all preceding car the United States, to wit, section 8 of article riers; that it did not, and does not, so re 1 and section 1 of the fourteenth amendment ceive express matter from other carriers or thereto, and in violation of the following prodeliver to them except in cases where there visions of the Constitution of Indiana, to is an agreement with them; that such agree wit, section 21 of article 1 and section 23 ment embraced both infrastate and interstate of article 1, and that unless the provisions business; that without such agreement re of said statute be so construed, plaintiff can


not have and maintain this action. Where in Indiana and in said Lawrence county: fore judgment is demanded.

that in receiving and agreeing to receive The third paragraph of the answer sub compensation for such carriage the Southstantially charges that the defendant is a ern Indiana Express Company did tender joint stock association or copartnership, usu to the defendant the express packages menally called an "express company," notor tioned in the complaint for continuance ganized under the laws of Indiana, and that of carriage from the said city of Seymour it is regularly enga;;l and has been since to destination, but that such tendering comMarch 29, 1879, continuously in the business pany did not pay or offer to pay defendant's of carrying money and property over and charges for such carriage, and did demand upon railroads in the state of Indiana; that from defendant said tendering company's acit agrees to receive and does receive compen crued charges for the carrying of said packsation therefor, and was so engaged in said ages to Bedford, and did not offer to guarstate prior to the time when the statute in anty defendant against loss of either of said relation to foreign express companies (sec- charges

charges in case the consignee would not tions 3306, 3308, Burns' Ann. St. 1901) was pay them, and thereupon the defendant deenacted; that upon the taking effect of the clined to receive and carry said packages aforesaid act and long before May 16, 1901, and to advance said accrued charges; that the defendant duly and fully complied witn said Southern Indiana Express Company was section 2, c. 56, p. 146, of said act of 1879 by then a corporation organized and existing executing and filing in the office of the re under the laws of the state of Indiana, but corder of the county of Lawrence, state of

was not a responsible express company; nor Indiana, the "agreement” mentioned in that an express company of any kind, because section, authorizing process issued against there never had been a statute of Indiana, the defendant to be served upon its ex

authorizing the incorporation of express compress agents and further authorizing judg- panies; that said company, by its certificate ment to be rendered thereon in per

of incorporation and articles of association, sonam against the defendant copartnership

declared itself to be organized as a forin such actions, all in the manner as is pro

warding express company in pursuance of vided in said section; that continuously since

the statutes of Indiana relating to voluntary the filing of said agreement the defendant

associations and corporations, which articles has, in pursuance of the rights and privi

were filed June 22, 1898, in the office of the leges secured to it by the said act of 1879,

Secretary of State of the state of Indiana,

and there was then but one statute authorizenjoyed such rights and privileges in the

ing the incorporation of forwarding comtransaction of its express business in said

panies, viz., subsection 15, § 1, c. 126, p. 291, state of Indiana and said county of Law.

of the voluntary association act of 1895 rence; that on the 15th day of May, 1901, at

which reads: "To organize forwarding and midnight of said day, the Secretary of State

commission companies and to own and operof the state of Indiana certified as then in

ate wharf boats in connection therewith upforce said statute, approved March 7, 1901 ; that the defendant's acceptance of the pro

on any of the rivers within or bordering up

on the state of Indiana;" that said company visions of the said act of March 29, 1879,

was incorporated in pursuance of said suhbecame a contract between the defendant

section, and not otherwise; that it, in asand the state of Indiana, which was, on May

suming to exercise the franchise of an ex15, 1901, and still is in full force, unless said

press company common carrier, and to transact of March 7, 1901, which attempted a re

act an express carrier business, as especially peal of said act of 1879, and attempted to

touching the express packages mentioned in annex conditions to defendant's right to

the complaint, acted wholly ultra vires its transact an express carrier business in In

charter and could not and did not legally diana different from those defined and au

bind its assets and property, although in thorized by said act of 1879, be a valid stat

that behalf it attempted to act and claimed ute of Indiana; that the right to have and

to be acting as a corporation, and not as a maintain this action rests wholly upon, and

copartnership or otherwise. The paragraph does not exist without the provisions of

closes with a prayer for judgment. said act of 1901; and that said act is null

The fifth paragraph of the answer alleges and void because under the facts herein al that the defendant is a joint stock company leged it violates section 10 of article 1 of the

organized under the laws of the state of New Constitution of the United States in that it

York more than five years before the comimpairs the obligation of said contract be

mencement of this action, and was not intween the defendant and the state of Indi

corporated anywhere, and was not organized ana. Wherefore judgment is demanded. in the state of Indiana; that, during all

In the fourth paragraph of answer the of that time, it was a common carrier of defendant averred that it is a copartnership goods for hire over various railroads of many and association of persons, usually called an of the states of the United States and over a “express company," and had been for five railroad in the city of Bedford in Lawrence years in the business of carrying money and county, Ind.; that, prior to the commenceproperty over and upon railroads operated ment of this action, the plaintiff was doing

78 N.E.-65

an express carrier business over the South ges to defendant if not collectible from the ern Indiana Railroad through the city of consignee; that when making said tender Bedford to the city of Terre Haute, in plaintiff did not have a purpose to make the state of Indiana; that after May 15, such through rating, division thereof or re1901, plaintiff made a general demand imbursement, but intended to take the facilthat defendant should receive at junction ities it demanded and which defendant repoints from plaintiff express packages car fused without itself making a reduced or ried thereto by it and destined to points through rate and without paying or agreeing on defendant's line and, immediately upon to pay either of said charges if the consignee defendant's receipt thereof, that the defend should refuse to pay them, and therefore the ant should pay plaintiff's accrued charges defendant charges that while the privileges, thereon, and that defendant should accept accommodations and facilities were such as such packages without prepayment of de this defendant granted other express comfendant's charges or without a guaranty of panies, yet the conditions upon which the desuch payment if the consignee should not pay mand was made by plaintiff were different them, and without agreeing that on packages from and more favorable to the plaintiff than weighing seven pounds or less the freight those that then existed or had heretofore excharges should be the same as though it isted in any case where the defendant had were to be carried only over a single ex taken such express matter from any other carpress route, and that this through rate should rier for completion of carriage, and that such be equally divided between plaintiff and de difference of conditions was to the advantfendant, the odd cent, if any, being taken

age of the plaintiff and to the disadvantage by the company completing the carriage,

and injury of the defendant; that if the act Said paragraph further charges that up to of the General Assembly of March 7, 1901, the time of plaintiff's said general demand shall be construed as requiring defendant to and of the tender of the particular pack submit to such unequal conditions and to ages mentioned in the complaint, the de acquiesce in such advantage to plaintiff, fendant had not by custom, usage, contract, then said act is in contravention of section arrangement, agreement, or otherwise, or in 1 of the fourteenth amendment to the Confact ever accepted of another common carrier stitution of the United States, and is therea package like those in question for contin fore void; that if said act shall be so conuance of carriage or delivery where such strued, then plaintiff is not entitled to the tendering carrier had not (1) made with de relief for which it prays. This paragraph fendant a through rate from point of origin closes with a demand for judgment. to point of destination on all packages, which The statute upon which this action is rate was not greater than the single rate of based, by its title, professes to relate to exeither carrier had the whole carriage been press companies, “defining their duties, proover but one line; (2) had not made an agree hibiting discrimination and combinations and ment for an equal division of such through declaring certain acts to be unlawful,” etc. rate; (3) had not agreed to refund to defend So much of the first section of the act of ant any accrued charges that defendant 1901, supra, as is material to the question inmight advance to it if not collectible from volved in the case at bar is as follows: consignee; (4) had not agreed to pay defend “That all copartnerships, associations of perant its charges on the package if not collect sons, individuals, joint stock associations, ible from the consignee; and (5) had not corporations, or companies, usually called agreed that if defendant should tender such “express companies," now engaged, or that other carrier like express matter for com may hereafter engage in the business of carpletion of carriage, to make one through rying or transporting money, merchandise, rate thereon, divide such rate equally, ad or other articles, over or upon any of the vance defendant's accrued charges and se railroads operating in this state, and receivcure the payment to it of all uncollectible ing or agreeing to receive compensation for charges by defendant's guaranty of collec such services, shall grant to each and all tion.

consignors, including other responsible exIt is further alleged that the plaintiff, press companies as consignors, equal terms, making said tenders to defendant, did not facilities, accommodations, and usages, in the offer to do any of the said five things here receipt, carriage, continuance of carriage, inbefore mentioned, and did not intend to do and delivery of money and property usually any of them, but demanded that defendant carried by express companies, and they are carry the tendered packages on credit as prohibited from granting to any one carrier, respects defendant's charges thereon, and class, or combination of carriers, any terms, advance to the plaintiff the latter's charges credit, privileges, advantages, usages, acwhich were its full legal rate, being 25 cents commodations, or facilities in the receipt, on each of said tendered packages instead transmission or delivery of express matter of 12 cents, the amount receivable on that they do not grant to all others, and the through rate by any of the said other express granting of any credit, privileges, terms, uscompanies and without any obligation on ages, facilities, or advantages to any one perplaintiff's part to refund either of said char son, carrier, company or combination or class

of companies, carriers or persons, that are decision in that appeal, so far as applicable, 1100 granted to all other responsible carriers as a ruling precedent upon the points or or persons shall be, and is hereby declared questions raised and discussed in this case. unjust and unlawful discrimination."

It is evident that each paragraph of appelSection 4 of the act provides that: “Any lee's complaint is founded upon sections 1 such carrier, corporation, copartnership, or and 4 of the act in controversy. The pleadassociation failing to comply with any of er does not attempt under either of these the provisions of this act or violating any of paragraphs to invoke any remedial right or the provisions thereof, shall, upon being rights other than those awarded by the proconvicted of any such failure or violation in visions of the statute. Therefore, the points an action to be brought in the name of the advanced by appellant's counsel that neither state of Indiana by the prosecuting attorney paragraph discloses any ground for equity of the county in which the offense occurs, for jurisdiction, for the reason that it appears feit and pay to the state five hundred dol that appellee has an adequate remedy at law lars for each offense, and the commencement in the recovery of damages for the wrongs of such action, service of process and pro of which it complains, and for the further ceedings therein shall conform to the rules, reason that, under the facts alleged, it has governing proceedings in civil actions. And not brought itself within the well-recognized such offending carriers, corporations, as maxim, which avers that "he who seeks sociations, or copartnerships shall also be equity must do equity," do not apply. liable in any court of competent jurisdiction It will be seen that under section 4 of in a civil action to be brought by and in the the act, in addition to the actions thereby name of any person injured by any violation provided, one in the name of the state for a of this act, and such person may recover penalty, and the other by the party injured threefold the amount of his actual damages to recover threefold the amount of the actual shown, and shall also have a remedy by in damages sustained, the Legislature deemed junction in any circuit or superior court of it proper to expressly provide that such perthis state to command any of the acts or son "shall also have a remedy by injunction things required to be done and to prohibit in any circuit or superior court of this state any of the acts forbidden by this act, and the to command any of the acts or things re word 'person' herein, shall be construed to quired to be done and to prohibit any of include any corporation, copartnership, or the acts forbidden by this act.” The acts association of persons."

required to be done, as declared by section The constitutional validity of the statute 1, are that such express companies "shall upon which this action is based is assailed grant to each and all consignors, including by appellant's learned counsel for various other responsible express companies as conreasons. It is asserted that sections 1 and 4 signors, equal terms, facilities, accommodaare each violative of section 1 of the four

tions, and usages, in the receipt, carriage, teenth amendment to the federal Constitution continuance of carriage, and delivery of monfor the reason, first, that they attempt to

ey and property usually carried by express deprive appellant of its right to demand pre companies.” The acts which such companies payment of its carrier charges, which right,

are forbidden to do are "from granting to as it insists, it has under the common law any one carrier, class, or combination of carand which is a property right; second, they riers, any terms, credits, privileges, advanattempt to require an express carrier which tages, usages, accommodations, or facilities in desires to advance accrued charges to one

the receipt, transmission or delivery of exconnecting carrier to make such an advance press matter that they do not grant to all ment to all responsible carriers and by so others." The Legislature clearly has the doing the statute attempts to compel the right by statute to enlarge the equity powers making of a "forced loan," which amounts to of a court, and thereby authorize it to grant the taking of the property of one person, and equitable relief in matters or cases in which, giving it to another; third, it attempts to in the absence of such statute, the court take from express companies their common would have no equity jurisdiction. Eilenlaw right to contract wih reference to inter becker v. District Court, etc., 134 U. S. 31, change traffic and such right it is asserted 10 Sup. Ct. 424, 33 L. Ed. 801; Arment v. is one of property. This same statute was Hensel, 5 Wash. 152, 31 Pac. 464; Carleton involved, and in the main the same con V. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. stitutional objections thereto were advanced R. A. 193, 14 Am. St. Rep. 446. and urged against it, in the case of Adams By its averments each paragraph of the Express Co. v. State, 161 Ind, 328, 67 N. E. complaint shows that the appellant has vio1033. In fact, the questions raised in that lated or declined to obey the provisions of appeal to all intents and purposes are the section 1 by refusing to grant to appellee same as those presented and argued in the “facilities, accommodations, and usages in the case at bar. They were fully considered by receipt, carriage, continuance of carriage and the court and held to be untenable, and the delivery of express matter," etc. The pleadconstitutional validity of the statute was sus ing specifies what constituted the accommoda. tained, and we are satisfied to accept the tions and facilities, etc., granted by appel

« ForrigeFortsett »