Illinois Cent. R. Co. v. Caffrey

• Decision Date: 19 March 1904
• Docket Number: 4,904,4,878,4,905.,4,865
• Citation: 128 F. 770
• Parties: ILLINOIS CENT. R. CO. v. CAFFREY et al. BALTIMORE & O.S.W.R. CO. v. WASSERMAN et al. CLEVELAND, C., C. & ST. L. RY. CO. v. SAME. LOUISVILLE & N.R. CO. v. SAME.
• Court: U.S. District Court — Eastern District of Missouri

128 F. 770

ILLINOIS CENT. R. CO. v. CAFFREY et al. BALTIMORE & O.S.W.R. CO. v. WASSERMAN et al.

CLEVELAND, C., C. & ST. L. RY. CO. v. SAME.

LOUISVILLE & N.R. CO. v. SAME.

Nos. 4,865, 4,878, 4,904, 4,905.

United States Circuit Court, E.D. Missouri, Eastern Division.

March 19, 1904

McKeighan & Watts, for plaintiff Illinois Cent. R. Co.

Johnson & Richards and Chas. Claflin Allen, for plaintiff Baltimore &amp O.S.W.R. Co.

George F. McNulty and Seddon & Holland, for plaintiff Cleveland, C C. & St. L. Ry. Co.

Bryan &amp Christie, for plaintiff Louisville & N.R. Co.

Henry W. Bond and Judson & Green, for defendants.

THAYER Circuit Judge.

The above-entitled cases are bills in equity, which were exhibited by the four railroad companies above named against the same defendants, who are engaged in the same business the object of the complainants being to obtain injunctive relief of the same character against all of the defendants. The defendants have filed demurrers to each of the four bills of complaint, attacking them on the same grounds, and the question to be determined is whether the demurrers shall be overruled or sustained. It becomes necessary, therefore, to state the material allegations of the bills of complaint as briefly as may be done. They contain substantially the same allegations. They aver, in substance, that the several railroad companies are common carriers of passengers, operating lines of railroad radiating from the city of St. Louis, Mo.; that the defendants are ticket brokers, or, as they are sometimes termed, 'scalpers,' having offices in the city of St. Louis, where they are engaged in the business of buying and selling railroad tickets, and more especially the unused portions of excursion or special rate tickets, such as the railroads are in the habit of issuing to enable persons to attend conventions, fairs, expositions, etc., at reduced rates of fare for the round trip; that the several railroads make a practice of issuing such tickets, on condition that they shall only be used by the original purchaser, and shall not be transferred to others for the purpose of being used to obtain transportation over the complainants' roads; that the complainants issued a large number of such tickets on the occasion of a musical festival held in the city of St. Louis in June, 1903, and that the defendants advertised to buy, and did in fact buy, the unused portions of large numbers of such tickets, and sold them to others to be used for transportation over the complainants' roads, to their great loss and injury; that an exposition is to be held in the city of St. Louis during the present year, and that complainants contemplate the issuance of a large number of excursion tickets at reduced rates, which will be nontransferable, to enable a large number of persons to visit the exposition and various conventions which will be held in connection therewith; and that by reason of the very large number of persons who will purchase said tickets it will be impracticable and a great public inconvenience to require the original purchasers of such nontransferable tickets to go before a validating agent and identify themselves before using the return coupons. The bills further allege, that, besides issuing excursion tickets in the manner aforesaid, they also issue nontransferable mileage tickets and commutation tickets at reduced rates, all of which by their terms are nontransferable; that all such nontransferable reduced rate tickets are issued by the complainants in conformity with the laws of the state of Missouri and the laws of the United States and other states where the complainants' roads are located; that all such tickets are by their express terms and provisions good for the transportation of the original purchasers thereof only, and are void in the hands of any other than the original purchasers, and, if presented by any other than the original purchasers, are liable to be taken up by the train conductor and full fare exacted from the persons who are wrongfully attempting to use them; that the sale by the defendants of all such nontransferable tickets is contrary to the provisions of the laws of the state of Missouri, where the sales are made; that the sale of such tickets to third parties is also in violation of the provisions of the interstate commerce act, when the unused portion of a ticket is sold to a person who contemplates using the same for an interstate journey; that the conduct of the defendants in purchasing and selling such nontransferable tickets is not only in violation of the laws of the state of Missouri and the United States, but is likewise a fraud on the purchaser of the ticket and a fraud on the complainant companies, in that it subjects a person who may have purchased the unused portion of a ticket, in the belief that he has the right to use it, to the liability of being ejected from the complainants' trains, and in that the conductors and agents of the complainants are liable to be deceived, and to permit persons who have bought nontransferable tickets to ride thereon, thus depriving the complainants of a rate of fare which they are justly entitled to exact.

The bills further aver that the defendants have been accustomed to buy and sell the return coupons of nontransferable tickets, and all forms of mileage, commutation, and excursion tickets, such as are sold at reduced rates and are not transferable, to persons whom they know will use the tickets so bought to secure a passage over the complainants' roads, by false impersonating the original purchasers of said tickets, and that the defendants have not only repeatedly sold such tickets with full knowledge of their character, and that they were not transferable, but propose to continue in future to purchase and sell such tickets, thereby continuing to defraud the complainants by deceiving their conductors and other employes, and that such unlawful and fraudulent conduct on the part of the defendants operates as a continuous loss to complainants and inflicts irreparable injury. There are some other averments in the bills of a like character, but the allegations already recited in substance will serve sufficiently to explain their scope and purport.

The sufficiency of the bills of complaint is challenged on two grounds, namely, want of equity and multifariousness. Respecting the first of these defenses, it is to be observed that, when a court of equity is asked to enjoin the commission of a threatened act in the nature of a tort, the first inquiry is whether the act, if committed, will constitute a legal wrong; that is to say, whether it is so far wrongful that an action at law will lie to recover the damages thereby occasioned to the complaining party, or whether the threatened act belongs to the class to which the phrase 'damnum absque injuria' may be applied. Hopkins v. Oxley Stave Co., 83 F. 912, 918, 28 C.C.A. 99. In the case at bar it does not seem to be seriously urged that the bills of complaint do not show that a legal wrong is threatened. If such a plea was urged by the defendants, it would have to be overruled. The complaining parties have the right to sell round-trip and commutation tickets over their respective roads at reduced rates, on condition that they shall only be good in the hands of the original purchasers and shall not be transferred. Contracts of this sort between a carrier and its passengers are lawful. Mosher v. St. Louis, Iron Mountain & Southern Railway Co., 127 U.S., 390, 8 Sup.Ct. 1324, 32 L.Ed. 249; Boylan v. Hot Springs Railroad Co., 132 U.S. 146, 10 Sup.Ct. 50, 33 L.Ed. 290. The statute law of the state of Missouri also expressly authorizes the sale of such tickets. Vide Rev. St. Mo. 1899, Sec. 1127. Now the bills show that the defendants have been interfering with the exercise of this right, are doing so at the present time, and that such interference with the exercise of the right in question is productive of great loss and damage, amounting almost to a deprivation of the right. The defendants make a practice of soliciting the holders of such tickets to sell the unused portions thereof, and, having purchased them, they openly resell them to third parties, to be used in violation of the provisions thereof. The number of tickets thus sold is so great that it will be practically...