Oregon Short Line & U.N. Ry. Co. v. Northern Pac. R. Co.

• Decision Date: 15 June 1892
• Citation: 51 F. 465
• Parties: OREGON SHORT LINE & U.N. RY. CO. v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — District of Oregon

51 F. 465

OREGON SHORT LINE & U.N. RY. CO. v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Oregon.

June 15, 1892

Statement by FIELD, Circuit Justice:

The complainant is a corporation formed under the act of congress of August 2, 1882, entitled 'An act creating the Oregon Short Line Railway Company, a corporation in the territories of Utah, Idaho, and Wyoming, and for other purposes,'(22 St.p. 185, c. 372,) and by the consolidation with it, under the authority of the general incorporation acts of those territories and of the state of Nevada, in force on the 27th of July, 1889, of the following corporations, namely: The Oregon Short Line Railway Company, the Utah & Northern Railway Company the Utah Central Railway Company, the Ogden & Syracuse Railway Company, the Nevada Pacific Railway Company, the Idaho Central Railway Company, and the Salt Lake & Western Railway Company.The defendant, the Northern Pacific Railroad Company, is a corporation created under the act of congress of July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route,'(13 St.p. 365, c. 217,) and the various acts amending and supplementing the same.The complainant owns a line of railroad extending from Granger, in the former territory, now state, of Wyoming, to the boundary line between the states of Idaho and Oregon, and is the lessee of the lines of the Oregon Railway & Navigation Company, a corporation organized and existing under the laws of Oregon extending from that boundary line to the city of Portland Or. Its railroad connects with the Union Pacific Railway at Granger, and forms a part of the Union Pacific system.The lines of the Oregon Railway & Navigation Company and of the defendant are connected at Portland by the tracks of the Portland Terminal Company.The defendant owns a line of railroad extending northwardly from the tracks of the Terminal Company to Tacoma, Seattle, and other points on Puget sound, and thence eastwardly to Minneapolis, Minnesota Transfer, St. Paul, and other points.The lines of the two companies,-- of the complainant and of the defendant,-- connecting as stated at Portland, have been used as continuous lines for the carriage of a large amount of passenger and freight traffic.The complainant charges that the defendant has for some time past and still continues to unlawfully discriminate against it in the facilities afforded for receiving and forwarding freight and passengers tendered to it at that place.This suit is brought to enjoin the defendant from continuing in such alleged unlawful discrimination against the complainant.That discrimination consists in the difference of conditions under which the defendant will receive freight and passengers tendered to it at Portland by the complainant.

(1) The discrimination in receiving and forwarding freight is charged to be this: That it has at various times refused to transport freight tendered to it by the complainant, originating at points east of the ninety-seventh meridian, and destined to points on the lines of its railway north of Portland, when such freight was in cars other than those of its own, unless the complainant would assume to pay to the company owning such foreign cars the usual car mileage for their use, or transfer such freight from the foreign cars in which it was transported over its lines to cars owned by the defendant and, in cases where the charges on such freight were not prepaid at the point of origin to destination, the defendant has refused to receive and transport such freight, unless the complainant would prepay the charges for transporting it from Portland to destination, and has refused to pay to the complainant, on receiving such freight, the charges due to it and connecting lines for transporting the same to Portland.The complainant alleges that such action on the part of the defendant is contrary to the custom and practice in force among railways generally, and contrary to the custom and practice in force between the complainant and defendant as to all traffic originating on lines of the complainant and connecting lines west of the ninety-seventh meridian.It also alleges that during the time of such action the defendant has, except in a few instances, received and transported, and at the present time professes to be willing to receive and transport, to points on the lines of the defendant and lines connecting therewith north of Portland, freight originating west of the ninety-seventh meridian on the lines of the complainant, or other lines connecting therewith, when tendered to the defendant by the complainant at Portland, and has paid car mileage for the use of foreign cars in the transportation, and transported the freight in such foreign cars; and in cases where the charges on the freight were not prepaid to destination has not demanded or received from the complainant the charges for transporting the same from Portland to destination, and has paid to the complainant back charges due to it and connecting lines for transporting the freight from the point of origin to Portland.The complaint also alleges that during the same time the defendant has received and transported for the Southern Pacific Railroad Company freight originating both east and west of the ninety-seventh meridian without making against the company the discriminations complained of by the complainant.

(2) The discrimination in receiving and forwarding passengers is charged to be this: That the defendant has refused to transport passengers destined to Puget sound and other points on its lines, and on lines connecting therewith, when they have presented through tickets issued by the complainant, or by other railway companies operating over its lines via Portland, issued at points east of the 105th meridian.The complaint alleges that during the time of such refusal the defendant has received and transported passengers destined to like points presenting through tickets issued at points west of the 105th meridian by the complainant or by lines connecting therewith passing over its lines via Portland, and that the defendant at the same time has received and honored tickets of all kinds issued by the Southern Pacific Railway Company, connecting with it at Portland, or by railways connecting with it at St. Paul.The complainant charges that the refusal of the defendant to receive and transport freight in the cars in which it is tendered and to honor tickets as mentioned is an unreasonable and unjust discrimination against complainant and against its traffic originating east of the 97th and 105th meridians, and destined to points on Puget sound via Portland, and in favor of traffic originating east of the 97th and 105th meridians, and destined to points on Puget sound via Minnesota Transfer, at which latter point complainant alleges that defendant furnishes better facilities connecting lines for the interchange of traffic than at Portland; and that the discrimination is in violation of the act of congress of February 4, 1887, entitled 'An act to regulate commerce,' commonly known as the 'Interstate Commerce Act,'(24 St.p. 379, c. 104,) and is in violation of section 5 of the defendant's charter, namely, of the act of congress of July 2, 1864, (13 St.p. 365,) which requires it to permit any other railroad to form running connections with it on fair and equitable terms.

The answer of the defendant denies all the averments of the complaint, except the one that it has usually refused, and continues to refuse, to transport, in the cars in which it is tendered by complainant at Portland, freight originating at points east of the 97th meridian, destined to points on Puget sound, unless complainant waives on its own cars, and assumes to pay on the cars of other companies, the current rate of mileage for the number of miles they are run over its road.It denies that the defendant has refused to receive and transport freight tendered by complainant to it at Portland for transportation to points on Puget sound without prepayment of freight charges to points on Puget sound without prepayment of freight charges to points of destination, except certain classes of freight which it is the custom of railroads to carry only upon prepayment of charges; and that the terms and conditions desired by complainant for the interchange of traffic at Portland are fair and equitable; or that they are as fair and equitable as the terms and conditions upon which the defendant interchanges traffic with other companies at Portland and at other points.As a further defense, the defendant avers that the lines of the Oregon Railway & Navigation Company were, at all times mentioned in the bill of complaint, operated and controlled by the Union Pacific Railway Company and the Oregon Railway & Navigation Company, and the complainant and defendant, were at all times mentioned in the bill members of what is known as the 'Transcontinental Association,' and as members thereof they entered into an agreement and issued the necessary tariffs and instructions, under the terms of which the freight traffic originating east of the 97th meridian, and all passenger traffic originating east of the 105th meridian, destined to points on Puget sound, north of Portland, was to be routed via Minnesota Transfer and the Northern Pacific Railroad, and that in pursuance of that agreement the general freight agent of the Union Pacific system, including complainant's lines, issued the following circular:

'UNION PACIFIC RAILWAY COMPANY, GENERAL FREIGHT DEPARTMENT.

'CircularNo. 685.

OMAHA, January 16, 1889.

'To Agents of the Connections: Notice is hereby given that this company will not...