[359] States is consequently entitled to judgment for The United States appealed from so much of The plaintiff appealed from the whole judg ment. And the case is now here for determination on these cross appeals. tion of passengers between Council Bluffs and The treasury department did not allow fifThe only question of law made upon its ap- ty cents for each passenger so transported for peal, by the plaintiff below, is that the court of the defendants, but in each case, ascertaining claims failed in its finding of facts as to com- over what railroad or public highway the pas pensation claimed for transportation of the senger reached Council Bluffs or Omaha, and mails to meet the actual issue made by the the rate per mile paid by him over such part of pleadings. This issue, it is said, was an affirma- said railroad or public highway as he had thus tion on the part of the plaintiff, and a denial traveled, the Company was allowed only the on the part of the defendant, that the rates of same rate per mile for transporting such pastransportation fixed and determined by the senger between Council Bluffs and Omaha as Railway Company, of which notice had been he had so paid on the road leading to the bridge. given to the proper department of the Govern- On the roads leading to said bridge the rates ment, were fair and reasonable, and not in ex- per mile are different, and the rates on the same cess of what was paid by private parties for road differ according to distance traveled. the same kind of service; whereas, the finding "The difference between the amount so alof fact by the court of claims was "that the lowed by the treasury department for the transamounts allowed and retained by the Treasuryportation of such passengers for the defendants Department for transportation of mails, as aforesaid, are a fair and reasonable compensation for the service, and not in excess of the rates paid by private parties for the same kind of service." A distinction is thus sought to be made between a quantum meruit, ascertained according to the rate prescribed by the Act, and rates determined and fixed in the first instance by the Railway Company, not to be disturbed if they are found not to be in excess of the limit prescribed by the statute. But, as it seems to us, this is a distinction We come now to consider the appeal of the The first question arising upon this appeal re- and that which the Company should be allowed "Similar rules were applied by the treasury The contention of the Government in support of the allowances made by the treasury department, thus adjudged to be insufficient, is based on the Act of February 24, 1871, chap. 67, 16 Stat. at L. 430, under which it is claimed the bridge was built, which provides that: "Said bridge may be so constructed as to provide for the passage of ordinary vehicles of travel; and said Company may levy and collect tolls and charges for the use of the same; and for the use and protection of said bridge and property the Union Pacific Railway Company shall be empowered, governed and limited by the provisions of the Act entitled 'An Act to Authorize the Construction of Certain Bridges and to Establish them as Postroads,' approved July 25, 1886, so far as the same is applicable thereto.' The Act thus referred to is chapter 246 of 1866, 14 Stat. at L. 245, of which section 3 is as follows: "Any bridge constructed under this Act, and according to its limitation, shall be a lawful structure, and shall be recognized and known as a post route; upon which, also, no higher charge shall be made for the transportation over the same of the mails, the troops and the munitions of war of the United States, than the rate per mile paid for the transportation over the railroads or public highways leading to the said bridge.' It is argued that this limitation, made by reference a part of the Act of 1871, applies to "The Company's uniform rate, during the charges to be made by the Union Pacific Railtime covered by this suit, for the transporta-way Company for transportation over the [36 [36 bridge, considered as part of its railway line, and supersedes the legislative contract contained in section 6 of the Act of July 1, 1862, whereby it was authorized to receive compensation at fair and reasonable rates, not in excess of those charged to private parties for similar service. reasonable rate of compensation to be paid by "How much of the sum disallowed was for one and how much for the other kind of requisition is not shown, but the Company concedes the reduction in the former cases.' " The court of claims held otherwise, and we think rightly. The Omaha bridge of the "In some instances the requisition for transUnion Pacific Railway Company was not con-portation presented to the agents of the Comstructed under the Act of 1866. It was con- pany stated on its face that the passenger was structed under the original Acts incorporating bound from seaboard to seaboard, and in oththe Company: the Acts of July 1, 1862, and of ers the requisition furnished no information on July 4, 1864, and the Act of February 24, 1871; the subject. and the reference in the last named Act to the Act of 1866 was for the purpose of extending the provisions of the latter, so far as necessary to confer additional powers upon the Railway Company for the use and protection of the bridge, and contains no evidence of any intent on the part of Congress to change the rule as to rates of transportation over the line of the Railway Company, as prescribed by section 6 of the Act of July 1, 1862. In the case of the Union Pacific R. Co. v. Hall, 91 U. S. 343 [Bk. 23, L. ed. 428], it was decided that the bridge in question became part of the railroad of the Company, and that the Company was bound to run and operate its whole road, including the bridge, as one connected and continuous line. The bridge, therefore, as part of the railroad, became subject to the provisions of the Act of July 1, 1862, as to the rates to be paid by the Government for transportation service over it, and there is nothing in the Act of 1871 that changes the application of the rule fixing these rates. The next question arising ca the appeal of the United States relates to items charged for the transportation of passengers, on account of the Government, traveling between Council Bluffs and Ogden. The finding of facts on the subject by the court of claims is as follows: The contention on the part of the United States is that local passengers carried on its account, between Council Bluffs and Ogden, shall be carried at the same rates as are charged for through passengers passing between those points, as part of a journey over the whole line, although a difference is made in respect to all other persons. But the court of claims has found as a fact that the amount found by it is based upon rates between those points which are fair and reasonable, and not in excess of those charged to private persons for the same service. We cannot review this finding of fact, and no question of law arises upon it, unless it be one whether the service rendered in transporting a local passenger between the two points is in law identical with that rendered in transporting a through passenger between the same points as part of the transit over the distance of the whole line. This we cannot af firm. As the United States did not appeal from that part of the judgment of the court of claims finding the amount due on account of the counterclaim, no question arises thereon. We find no error in the judgment, and it is ac True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. "The Company's uniform rate for the trans-cordingly affirmed. portation of passengers between Council Bluffs and Ogden, when said passengers purchase tickets at either of those places, is $78.50 each; bat, by contracts with connecting railroad companies, the claimant receives from said companies who sell through tickets at reduced rates from New York, San Francisco, and other places over their own and the claimant's road, $54 only for each passenger carried between said Council Bluffs and Ogden upon said through tickets, as its proportion of money paid for the whole through distance. "In computing the compensation set out in finding IX. the treasury department allowed the claimant only $54 for each passenger carried for the defendants, when said passenger did not have a through ticket over its own and other roads, but took the train at Council Bluffs or Ogden upon an order from the defendants' anthorized officers to proceed over the road between those places at the charge of the Government. "The difference between $54 allowed as aforesaid and $78.50 claimed by the Company for each passenger so transported by the claimant, is $2,855.38 for the period covered by this suit. "The court finds that $78.50 is a fair and In Ex parte: [363] the Matter of PHOENIX INSURANCE (See S. C. Reporter's ed. 367-370.) Distinct decrees against distinct parties on distinct causes of action, or on a single cause of action NOTE.-Jurisdiction of Supreme Court; dependent on value of matter in controversy. Bee Gordon v. Ogden, 28 U. S. bk. 7, 592, note. [369] [370] [365] N ERROR to the Circuit Court of the in which there are distinct liabilities, cannot be Argued March 22,1886. Decided March 29,1886. ON tomu should not issue com RETURN to a rule to show cause why a manding the Judges of the Circuit Court of the The case sufficiently appears in the opinion. argument on that side. Mr. Chief Justice Waite delivered the opin ion of the court: Wisconsin. Eastern District The case sufficiently appears in the opinion of the court. Mr. George P. Miller, for plaintiff in error. Mr. Chief Justice Waite delivered the opinion of the court: The right to the removal of a suit under the Act The order remanding this case is affirmed of March 3, 1875, 18 Stat. at L. 470, chap. 137, is the term at which said cause could be first tried lost by a failure to file a petition "before or at and before the trial thereof;" and it is not re The rule is well settled that distinct decrees stored by an amendment of the pleadings afteragainst distinct parties on distinct causes of ac-wards so as to present different issues. As was tion or on a single cause of action in which there said in Babbitt v. Clark, 103 U. S. 612 [Bk. 26, are distinct liabilities, cannot be joined to give L. ed. 509]: "The Act of Congress does not this court jurisdiction on appeal. Seaver v. Bigelow, 5 Wall. 208 [72 U. S. bk. 18, L. ed. term at which a trial can be had on the issues, provide for the removal of a cause at the first 595]; Ex parte Baltimore & Ohio R. R. Co.; as finally settled by leave of the court or otherSchwed v. Smith; Farmers Loan and Trust Co.v.wise, but at the first term at which the cause, Turner [Waterman], and Adams v. Crittenden, as a cause, could be tried." This rule has been 106 U. S. 5, 188, 270, 577 [Bk. 27, L. ed. 78, 156, strictly adhered to. Edrington v. Jefferson, 111 117, 99]; Hawley v. Fairbanks, 108 U. S.548 [Bk. U. S. 775 [Bk. 28, L. ed. 596]; Pullman Palace 27, L. ed. 822]: Fourth National Bank v. Stout Car Co. v. Speck and Gregory v. Hartley, 113 113 U. S. 684 [Bk. 28, L. ed. 1152]; Stewart. C. S. 87, 745 [Bk. 28, L. ed. 926, 1151]. Here Dunham [ante, 329]. This is such a case. The the suit was begun July 19, issue joined August suit was brought on a single instrument, by 26, 1880, and a trial had February 23, 1881, which, as it was adjudged, an agent of the sev- which resulted in a verdict and judgmeat for eral insurance companies named bound them the present plaintiff in error. severally, each for its proportionate share of one fourth, to insure the property of Mrs Helen M. 1881, and the cause sent back for a new trial. was reversed by an appellate court October 19, This judgment Fitton' for $12,000; and the decree is against In the trial court an amended answer which each Company separately for its separate obli- contained a counterclaim was filed on leave gation under this instrument, to wit: $3,433.50 May 20, 1882, and the petition for removal was and no more. The bill alleged the separate not filed until September 13, 1882. This was liability of each Company, and prayed, in sub-clearly too late. Affirmed. stance, for decrees against them severally for the proportion assumed by each in the contract. True copy. Test: Each Company answered separately, all setting up the same defenses. Under these circumstances it was right for the Circuit Court to refuse the allowance of an appeal, and the petition for a mandamus is consequently denied. True copy. Test: James H. McKenney, Clerk. Sup. Court, U. S. PHOENIX MUTUAL LIFE INSURANCE v. JOHN H. WALRATH. (See S. C. Reporter's ed. 365-367.) Removal of causes—Act of 1875. James H. McKenney, Clerk, Sup. Ct. U. &. SUSIE M. KERR ET AL. Appts. V. SOUTH PARK COMMISSIONERS. 1. It was not improper for the court below to 2. This court refuses to disregard the verdict re- The right to remove a suit under the Act of March [36 [30 [3 Statement by Mr. Justice Matthews: The proceedings and decree brought here for revision by this appeal are in execution of the mandate of this court affirming a former decree in the cause, the appellants being the executors and devisees of William P. Kerr, the original complainant, in whose names, upon his death since the decree, the cause has been re80] vived. The original litigation established the title of Kerr to the premises in controversy, subject to the right of the appellees, the South Park Commissioners, who had taken possession of the lands on August 27, 1870, to appropriate them for the public use as a part of a public park in the City of Chicago, on payment of their value on that day. quarter of section twenty-four, in township 38, Afterwards, at the October Term, 1884, the issue directed by the decree of October 8, 1878, was tried by a jury, who returned a verdict fixing the value of the tracts of land in controversy, comprising 111 acres, as of the date of August 29, 1870, at $155,400, which verdict was certified by the clerk to the chancery side of the court as by the decree was directed. And thereupon, on January 20, 1885, the following decree was entered: "This cause coming on to be heard upon the judged to be the value of said tracts of land at It was ordered by the decree that the South Park Commissioners pay to the complainant "The value of the premises on the 27th day of August, A. D. 1870, known and described as the south fractional half of section 13, in township 38, north of range 14, east of the third principal meridian, except lots 9, 16 and 15, in Chas. B. Phillips' subdivision of twenty-six acres off the west side of the S. W. of said section 13, according to plat of same recorded in the recorder's office of Cook County, in book 98 of maps, p. 9, and the east half of said south-amount of $155,400 be, and it is hereby, ad [382] west quarter of said section 13, together with interest thereon from the 27th day of August, A. D. 1870, at the rate of 6 per cent per annum, upon the convevance of said premises by the complainant, William P. Kerr, and his assignees, claiming under him since the commencement of this suit, by deed which shall release to the South Park Commissioners all interest of the said complainant and his assignecs. And it is further ordered that the value of said premises required to be paid be ascertained as follows: a jury shall be impaneled in this court, on the law side thereof, to hear the evidence submitted by both parties; and said jury shall determine by their verdict the value of the land herein before described on the 27th day of August, A. D. 1870, the time when possession was taken by the South Park Commis-iting to the court the pleadings, orders, proofs sioners, and the verdict shall be certified by the clerk to the chancery side of this court, and the amount so found shall be considered as the value of said premises on the day aforesaid, unless set aside or changed by the further order of this court. And it is further ordered that the complainant, William P. Kerr, make a deed and procure deeds to be made by all persons claiming under him since the commencement This suit, conveying to the South Park Commissioners the premises aforesaid, when they all pay the amount found to be due, with interest from the 27th day of August, A. D. 1870, at the rate of 6 per centum per annum; and the court denies any relief to the complainant as to the east half of the southwest quarter of section 18 aforesaid, and it is ordered that the bill of complaint be dismissed as to that part of the premises. And it appearing to the court that the South Park Commissioners have commenced proceedings to condemn the undivided one quarter of the west half of the southeast "And the South Park Commissioners exhib and decree of August 26, 1882, in a certain [383] [384] $7,200, with interest from February 26, 1880; | the verdict recited in the decree as a nullity, "And it is also ordered that the deed of James R. Doolittle referred to in said decree of August 26, 1882, in the cause of the South Park Commissioners against Susie M. Kerr and others may be executed and delivered to said South Park Commissioners; and that thereupon said sum of $4,220.19 may be taken from the registry of this court by said complainants Kerr without prejudice to any appeal in said cause in which said money was so paid into court, and deed directed to be delivered as aforesaid." From this decree the complainants have Messrs. Edward S. Isham and Robert T. Mr. Melville W. Fuller, for appellees. Mr. Justice Matthews delivered the opinion of the court: At the next succeeding term of the circuit court after that at which the decree appealed from was entered, it appears by the transcript of the record that the court permitted to be filed and made part of the record a certificate of the evidence adduced on the trial of the issue, together with the charge of the court to the jury, verified by the signature of the circuit judge. It appears also from the recitals in the decree of January 20, 1885, that the hearing had taken place upon the pleadings, orders and decree of October 8, 1878, and the mandate of the supreme court, filed May 17, 1882, and the verdict of the jury rendered upon the law side of the court on December 16, 1884, the motion to set aside the same having been overruled, certified by the clerk to the chancery side of the court, determining the value of the tracts of land described in the decree of October 8, 1878, to have been on August 27, 1870, the sum of $155,400, and the evidence, rulings and charge of the court upon the trial of the issue as to said value. We cannot, as we are asked to do by counsel for appellees, disregard the evidence and rulings of the court on the trial of the issue, which are certified by the court as authentic and correctly reported, and which the decree recites to be the basis of its findings, because they were not certified and brought on the record at the same term at which the decree was entered. The subsequent certificate merely ascertains and verifies what proceedings took place before the court at the time of the hearing, and although they should regularly have been brought on the record at the same term, we know of no rule of chancery practice or procedure which forbids the making of a nunc pro tunc order to supply such an omission and to prevent in justice. On the other hand, we are asked to disregard On the trial of the issue before the jury as to the value of the land in question taken by the appellees for the purposes of the park, the appellants offered to prove, as tending to show the value of their land, the prices which had been actually paid on sales of similar property situated so as to adjoin the park, or be within its immediate vicinity, sales which had taken place after the lines of the park boundaries had been definitely ascertained and laid out. This evidence was rejected, and this ruling, together with the charge of the court to the jury on the point, are assigned as error to the prejudice of the appellants. The portions of the charge of the court to the jury objected to on that ground are as follows: "A number of witnesses testified that the agitation of the park project, the anticipation that the Legislature would authorize the ap propriation of lands to establish a park in the vicinity of the present South Park, and the introduction of the bill into the Legislature, which finally became a law on the-day of February, 1869, materially enhanced the value of lands embraced in the present park lines, as well as the lands adjacent thereto and in that vicinity. Any resulting benefits to the lands within the proposed park from this and other causes, such as the growth and prosperity, or the anticipated growth and prosperity of the City of Chicago, you should take in account in determining the amount that will fairly compensate the owner. But a number of witnesses also testified, and there seemed to be less agree ment upon this point than upon some others, that the passage of the Park Act, its ratification by the people, and the fixing of the proposed Park boundaries by the Legislature, gave to the lands immediately fronting upon and in the vicinity of the park, including the Midway Plaisance and the boulevards, an additional value solely on account of their being without the proposed park lines, but adjacent to the park, the plaisance and the boulevards, or near enough thereto to receive the special benefits resulting from such improvements. In the nature of things the lands within the proposed [3 |