OPINION
PRESTON, J.
The
petition alleges, in substance, that plaintiffs are stock
shippers, and that on Monday, June 10, 1912, they gave notice
to the agent of defendant at Marsh, Iowa, and ordered two
cars to be furnished to the plaintiffs at defendant's
station at Marsh, Iowa, for Wednesday, June 12, 1912, for the
shipment of 52 head of cattle; that plaintiffs had no notice
from defendant or its agent that said cars would not be
furnished at said time, or that the said cattle would not be
taken by defendant for shipment on that day; that, at about 8
or 9 o'clock in the morning of June 12, plaintiffs
delivered to the defendant at Marsh station the 52 head of
cattle for shipment on their train No. 90, due at said
station at about 10 o'clock that morning; that defendant
refused to ship said cattle upon that train, or upon any
other train that day; that plaintiffs were compelled to keep
said cattle in the stockyards of defendant, and a part of
them were not
loaded until the next day, and the balance not until the
Sunday following; by reason of which plaintiffs were damaged
etc. For answer, defendant admitted its corporate capacity,
and that it was operating a line of railroad through Louisa
County and other states; denied all other allegations of the
petition; and set up affirmative defenses as follows:
"The
defendant, further answering, states that it operates a
regular stock train from Marsh, Iowa, to Monmouth in the
state of Illinois, connecting with the Chicago, Burlington & Quincy Railroad Co., a corporation operating a line of
railroad between said Monmouth and the city of Chicago, in
the state of Illinois. That this plaintiff well knew that
this defendant operated such train and had set apart Sunday and Tuesday of each week for the purpose
of the shipment of live stock over its lines and its
connecting lines to stations in other states, and that,
notwithstanding such knowledge, and notwithstanding it was
necessary that this defendant, in the ordinary course of its
business and for the better conduct thereof, established such
rule for the speedy delivery of interstate shipments of live
stock, demanded of this defendant that it furnish such trains
on other days than those above designated, and that if this
defendant failed and neglected or refused to furnish such
cars, as plaintiff alleges in its petition, that it was
because said stock was not delivered to it on the regular
days as above specified. Further answering, defendant states
that the shipment contemplated by the plaintiff herein and
the defendant herein, and for which it seeks to recover
damages against the said defendant, was an interstate
shipment, being a shipment from the town of Marsh, in the
state of Iowa, to the city of Chicago, in the state of
Illinois, and that the Federal statutes in such cases made
and provided have assumed the jurisdiction of all questions
arising out of the interstate shipments, whether before the
Interstate Commerce Commission or Court, under the Federal
statute or in the district and circuit courts, of said
Federal statute, and that by reason of such Federal
legislation upon the interstate traffic, it has vested its
exclusive jurisdiction of determining the rights of all
parties engaged in such shipments, either as shippers or as
public carrier, and that by reason thereof this court is
without jurisdiction to hear and determine any of the matters
alleged and charged against the defendant by the plaintiff,
and for which it seeks to recover damages in this action. * *
* Further answering, the defendant states that, at, during
and prior to the time that plaintiff in Count 1 of his
petition complains of the failure of this defendant to
furnish cars, there had been established by the defendant
company the rule that stock shipments on the
eastern division of the defendant railroad company, running
from the city of Oskaloosa, in the state of Iowa, to the city
of Monmouth, in the state of Illinois, should be received for
shipment for said company and cars furnished for said
shipment only on Sunday and Tuesday of each week. That with
this rule the plaintiff was, during all the time herein
referred to, familiar. That the said rule applied not only to
this plaintiff, but to each and all of the shippers of stock
along the eastern division of said defendant company, and was
enforced alike as to each and all of them. That this
plaintiff was not entitled to receive any better or different
treatment in the delivery of cars than was any other shipper
along said division of said defendant railroad company. That
said rule was in force and affected interstate shipments on
said division of the defendant company's lines, and that
while said rule was in force it would have been unlawful for
either the plaintiff or defendant or both of them, if said
defendant company had furnished cars or accepted shipments of
stock from this plaintiff under any other or different rule
than said stock shipments were received or cars furnished to
any other shippers along said line. The defendant for further
answer states: That if the plaintiff deemed said rule of the
defendant company unjust or unfair, that, under the statutes
of the United States known as the Interstate Commerce Act and
the amendments thereto, it was the duty of said plaintiff,
and his only remedy under the terms of said act was an
application to the Interstate Commerce Commission to pass on
and determine the reasonableness of said act, or in an
appeal; and after an appeal to said Commission, and the
finding that the said rule was unjust and unfair, to appeal
to the district or circuit court of the United States, if he
had been damaged thereby. The defendant for further answer
states: That this court is without jurisdiction to determine
the reasonableness or justness of the said
rule, and has no jurisdiction to entertain an action for
damages for a failure to furnish cars as provided by said act
for interstate shipment; that by said acts of Congress, the
exclusive jurisdiction to determine the rights of the
plaintiff and other shippers along the line of the defendant
company's railroad is exclusively vested in the
Interstate Commerce Commission or in the courts of the United
States. Wherefore, the defendant asks that plaintiff's
petition be dismissed for lack of jurisdiction. Defendant
hereby tenders to plaintiff the sum of $ 20 in payment of the
cause of action set forth in Count 4 of plaintiff's
petition. Wherefore, defendant asks judgment against the
plaintiff for costs."
To the
affirmative defenses so pleaded by defendant, plaintiff
demurred on the following grounds:
"That
the facts stated constituted no defense to the
plaintiff's cause of action.
"For
the further reason that it is not alleged in said answer that
the rule pleaded has been determined to be a reasonable rule
by the Interstate Commerce Commission or any court of the
United States or state court.
"For
the further reason that that part of said answer and the
amendment thereto does not state or show in any manner that
the district court of the United States has exclusive
jurisdiction, or does not plead any statute or any rule or
regulation of the Interstate Commerce Commission which would
in any manner conflict with the jurisdiction of this court or
would be a defense to plaintiff's cause of action.
"For
the further reason that the questions raised in said answer
and amendment cannot be presented and raised in the manner
attempted to be raised thereby. That the only remedy of the
defendant herein is by filing a petition for removal, as
provided by the United States statutes, and having failed to
so do, the defendants have waived all their
right to removal and all objections to the jurisdiction of
this court.
"Plaintiffs
further demur to said portion of Count 1 of the answer and
amendment thereto, for the reason that the matters therein
set forth raise the question of what is and what is not a
reasonable regulation by the railroad company, and this is
not a question relied upon or pleaded by the plaintiff, and
is not in any manner at issue in this case."
The
demurrer was sustained, and exceptions taken by the
defendant. Notwithstanding the demurrer and the ruling
thereon, thereafter the parties agreed to submit the case on
an agreed statement of fact, which is as follows:
"It
is agreed that this case shall be submitted to the court for
final determination upon this agreed statement of facts
which, with the pleadings,
shall constitute the issues upon which a determination of the
court shall be made:
"That
on Monday, June 10, 1912, the plaintiff requested the
defendant to furnish the plaintiff, at the defendant's
station at Marsh, Iowa, two cars, for the shipment of 52 head
of cattle to be shipped from Marsh, Iowa, Wednesday, the 12th
day of June, 1912. That defendant refused to furnish said
cars, for...
