Louisville & N. R. Co. v. F. W. Cook Brewing Co.

• Decision Date: 13 April 1909
• Docket Number: 1,505.
• Citation: 172 F. 117
• Parties: LOUISVILLE & N.R. CO. v. F. W. COOK BREWING CO.
• Court: U.S. Court of Appeals — Seventh Circuit

172 F. 117

LOUISVILLE & N.R. CO. v. F. W. COOK BREWING CO.

No. 1,505.

United States Court of Appeals, Seventh Circuit.

April 13, 1909

Philip W. Frey, for appellant.

George A. Cunningham, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge.

On bill and answer a decree was entered restraining appellant from refusing to accept interstate shipments tendered by appellee. The facts from which arise the questions necessary to be answered are these: Appellee is an Indiana corporation operating a brewery at Evansville. Appellant is a Kentucky corporation doing business as an interstate carrier on an interstate railroad extending through Indiana and Kentucky. In 1906 Kentucky passed an act declaring it to be unlawful for carriers to bring intoxicating liquors into any county or district where the sale of such liquors had been legally prohibited. In 1907, shortly before appellee filed its bill appellant published a circular, posted it in stations, and filed it with the Interstate Commerce Commission, directing appellant's agents to refuse to accept shipments of intoxicating liquors, whether intrastate or interstate destined to points within Kentucky prohibition territory. Before this, appellant shipped beer for appellee to all Kentucky points on its line (from which fact we deduce that appellant had duly made and published proper classifications and rates for such shipments). After the issuance of the circular aforesaid, appellant refused to accept appellee's beer shipments to prohibition points, though the full freight charges were tendered in advance, but continued to accept such shipments to nonprohibition points. Appellee filed its bill in the state court at Evansville.

The contention that appellee's remedy, if any, was limited to proceedings before the Interstate Commerce Commission, we deem untenable. No complaint was made that the beer rates were unreasonable either in themselves or on comparison with rates for other commodities, or that appellee was subjected to any undue disadvantage in its competition with other brewers, or that Evansville was discriminated against.

Any such complaint would go to the Commission. But the suit here was based on appellant's refusal to carry under any circumstances goods of a class for which appellant had made generally a classification and rate. Whether the refusal to carry the property in question, like a refusal to carry some person, was justified or not, we believe is a question of common law, not an interpretation and application of any provision of the interstate commerce act (Act Feb. 4, 1887 c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154)). And the act itself provided that nothing therein should in any way abridge the remedies at common law. See Danciger v. Wells, Fargo & Co. (C.C.) 154 F. 379.

Jurisdiction (resting upon the original jurisdiction of the state court) is further assailed on the ground that the decree affects property and rights of appellant beyond the territorial reach of the court. The state court, and the federal court on removal, had full jurisdiction of appellant's person. The suit was in personam. The act complained of was appellant's refusal in Indiana to accept in Indiana goods for shipment into Kentucky. That part of the decree which directs the performance of acts in Indiana is beyond the scope of the attack. Therefore the decree should not be vacated (nor modified, since no motion to modify was made), even if there were any merit in the contention that the command to make deliveries in Kentucky was erroneously included in the decree.

We find nothing in the case to justify appellant's refusal. Beer is recognized by the law of the land as a commodity in which persons may deal as freely as in other commodities, except to the extent that such traffic is restrained or prohibited by express legislation. The Kentucky legislation was effective only as an exercise of local police power. As a regulation of interstate commerce it was utterly void. Cincinnati etc., R. Co. v. Commonwealth, 126...