Baltimore & O. R. Co. v. Hamburger

• Citation: 155 F. 849
• Parties: BALTIMORE & O.R. CO. v. HAMBURGER et al. MERCHANTS' & MINERS' TRANSP. CO. v. SAME. PENNSYLVANIA R. CO. v. SAME.
• Decision Date: 30 August 1907
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

155 F. 849

BALTIMORE & O.R. CO. v. HAMBURGER et al. MERCHANTS' & MINERS' TRANSP. CO. v. SAME. PENNSYLVANIA R. CO. v. SAME.

United States Circuit Court, E.D. Virginia.

August 30, 1907

Thomas W. Shelton, for the Baltimore & Ohio and Pennsylvania Railroad Companies.

Hughes & Little for Merchants' & Miners' Transp. Co.

Jeffries & Lawless, for defendants.

WADDILL District Judge.

Upon the presentation of the bills, temporary restraining orders were issued at the instance of said several complainants, and a day fixed for the hearing of the applications for injunctions prayed for, which said restraining orders were made returnable on that day, and continued in force until the further order of the court herein. On the return day the three cases were jointly submitted to the court upon demurrers filed by the defendants which present for the court's consideration certain legal questions affecting the right to maintain the suits, as follows:

(1) The bill does not name the joint or connecting carriers of the plaintiff over whose lines the tickets described in the bill may be used.

(2) Separate and distinct causes against separate and distinct parties are joined in one bill, rendering the same multifarious.

(3) The bill seeks to enjoin a future injury to imaginary nonexisting rights in tickets which have never been issued, and which may never be issued.

(4) Because such action by the court would be legislative, rather than judicial.

(5) Because the bill and the exhibits filed therewith show that the nontransferable provisions of the tickets described in the bill are not contained in the schedules filed with the Interstate Commerce Commission, as required by law, and the same are therefore void, and the said tickets are therefore transferable, and said defendants have the legal right to buy and sell the same.

(6) Because said bill and exhibits show that in the sale of said tickets the provisions of the act of Congress known as 'An act to regulate commerce' were violated in the following particulars:

(a) The nontransferable provisions of said tickets do not appear in the schedules filed with the Interstate Commerce Commission.

(b) Said schedules do not show the rates, fares and charges for the transportation of passengers between points on the plaintiff's route or points on the route of its connecting carriers with which the joint rates alleged in the bill have been established; nor do they show the points on the plaintiff's line and the points on the route of its connecting carriers between which passengers will be carried.

(c) Said schedules do not show the names of the carriers which are parties to said joint tariffs.

In the view taken by the court, the first four grounds of demurrer are without merit, leaving for determination the fifth and sixth grounds, and it will only be necessary to pass upon the fifth and paragraph 'a' of the sixth assignment; it not being material to pass upon the questions presented by paragraphs 'b' and 'c' of the sixth assignment. The fifth assignment and paragraph 'a' of the sixth present for the consideration of the court the meaning of certain provisions of Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154), and the amendments subsequently made thereto, including that of June 29, 1906, 34 Stat. 584, c. 3591 and may be stated thus: Can a railway company, where its tariff and schedule of rates, published and filed with the Interstate Commerce Commission as required by law, fail to state that the tickets sold by them between given points are nontransferable, add to such tickets this nontransferable feature?

It is virtually a concessuum in this case-- at all events, it is manifest from an inspection of the complainants' bills and the schedules filed therewith as exhibits-- that as to the rates in question the tariff and schedules as published and filed with the Interstate Commerce Commission do not show the nontransferable feature of the tickets to the Jamestown Exposition, the sale and transfer of which is sought to be enjoined here, except that in the case of the Baltimore & Ohio Railroad Company such nontransferable feature is noted on tickets sold beyond or at points west of the Ohio river. Section 6 of the interstate commerce act, as amended, after providing for the publication and filing by common carriers of their schedules showing all of the rates, fares, and charges for transportation between different points on their routes, and between points on their own routes and those on the routes of other carriers by railroad, or by pipe line, or by water, when the through route and joint rate have been established, among other things provides that:

'The schedule printed as aforesaid by any such common carrier shall plainly state the place between which the property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered the passenger, shipper or consignee.'

This language is clear and explicit, and its meaning too plain to admit of serious question or doubt as to what was intended by Congress. The published schedule filed with the commission must show 'all privileges or facilities granted or allowed. ' To illustrate: Whether the tickets sold between given points at fixed rates have attached the privilege of stop-over or the right of sale and transfer, as well as 'any rules or regulations which in any wise change, affect or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee ' Whatever may be said as to stop-over and such like advantages, the sale and transfer of the ticket is not only a privilege, but a right which directly enters into and affects the value of the ticket; and hence, if either the right is to be denied or the privilege abridged, under the plain language...