Peterborough R.R. v. Boston & M.R.R.

• Decision Date: 09 January 1917
• Docket Number: 1232.
• Citation: 239 F. 97
• Parties: PETERBOROUGH R.R. v. BOSTON & M.R.R.
• Court: U.S. Court of Appeals — First Circuit

239 F. 97

PETERBOROUGH R.R. v. BOSTON & M.R.R.

No. 1232.

United States Court of Appeals, First Circuit.

January 9, 1917

H. A Cutter, of Nashua, N.H., for appellant.

Archibald R. Tisdale, of Boston, Mass., for appellee.

Before DODGE and BINGHAM, Circuit Judges, and HALE, District Judge.

BINGHAM Circuit Judge.

This is a bill in equity for the specific performance of a contract. The suit was brought in the federal court for the District of New Hampshire. The plaintiff is alleged to be a New Hampshire corporation and a citizen of that state. The defendants are alleged to be Massachusetts corporations and citizens of that state. The contract in question is embodied in a lease given by the plaintiff corporation to the defendant, the Boston &amp Lowell Corporation, and by it assigned to the defendant, the Boston & Maine Railroad. By the lease the Peterborough Railroad leased its property and tracks situated in New Hampshire for and during the term of 93 years from and after the 1st day of April, 1893, to the Boston & Lowell, its successors and assigns. In it the Boston & Lowell covenanted among other things, to 'furnish the directors of the lessor, not exceeding five in number, and the treasurer and clerk of the lessor with free annual passes over the railroads operated by the lessee by the Boston & Maine Railroad, during the continuance of the lease. ' It is alleged in the bill that on the 18th day of May, 1894, the Boston & Lowell assigned the lease to the Boston & Maine, its successors and assigns, for and during a fixed term and subject to the performance by the Boston & Maine of all the obligations of the Boston & Lowell incurred under the lease which were to be assumed by the Boston & Maine upon its acceptance of the assignment; that the Boston & Maine entered into possession of the leased property and assumed all the obligations incurred by the lessee under the lease; and that on the 1st day of January, 1913, the Boston & Maine failed to furnish the directors and officers of the Peterborough Railroad with free annual passes as agreed, and has ever since refused and now refuses to do so, claiming that it is prevented from so doing by virtue of an act of Congress to regulate commerce, found in chapter 3591, 34 Stat. at Large, and chapter 309, 36 Stat. at Large.

In the District Court it was ruled and found that the plaintiff by virtue of the lease became a nonoperating corporation; that it was not a common carrier within the meaning of the act; and that, although the act operated as an interdiction upon the defendants, it did not in this respect offend the Constitution of the United States; and dismissed the bill.

The case is now here on the plaintiff's appeal from the foregoing decree. The contention is that the court erred in construing the act of Congress as precluding the Boston & Maine Railroad from issuing passes, good for an interstate trip, to the officers of the plaintiff corporation in pursuance of the agreement which it assumed, and in holding the act constitutional if such was its proper construction.

We do not feel called upon to decide these questions, as we are of the opinion that the District Court did not have jurisdiction of the cause.

While the Boston & Maine Railroad is alleged to be a citizen of Massachusetts, this court takes judicial notice of the fact that it is also a public corporation organized and existing under the laws of the state of New Hampshire, doing business in said state, and is therefore a citizen thereof. Laws N.H. 1835, c. 14, p. 223; Laws N.H. 1841, c. 6, p. 583; P.S.N.H.c. 157, Secs. 1, 2, 3, and chapter 5, Secs. 1, 2, 3, 6; Hall v. Brown, 58 N.H. 93, 95, 96; Western & A. Co. v. Roberson, 61 F. 592, 594, 9 C.C.A. 646; Case v. Kelly, 133 U.S. 27, 10 Sup.Ct. 216, 33 L.Ed. 513; Unity v. Burrage, 103 U.S. 447, 454, 455, 26 L.Ed. 405; Texas & Pacific Ry. Co. v. Cody, 166 U.S. 606, 610, 17 Sup.Ct. 703, 41 L.Ed. 1132. Such being the case, the question is whether the District Court had jurisdiction of the cause.

If its jurisdiction depended upon diversity of citizenship, and the Peterborough Railroad and the Boston &...