United States v. Delaware, L. & W.R. Co.

• Decision Date: 18 October 1889
• Citation: 40 F. 101
• Court: U.S. District Court — Northern District of New York
• Parties: UNITED STATES ex rel. MORRIS et al. v. DELAWARE, L. & W.R. Co.

40 F. 101

UNITED STATES ex rel. MORRIS et al. v. DELAWARE, L. & W.R. Co.

United States Circuit Court, N.D. New York.

October 18, 1889

J. C Clayton, for relators.

Rogers Locke & Milburn, for respondent.

WALLACE J.

The jurisdiction invoked by the relators is founded on that section of the 'Act to regulate interstate commerce,' as amended March 2, 1889, which authorizes the court to issue a writ of mandamus upon the relation of any person alleging the violation by a common carrier of any of the provisions of the act which prevent the relator from having interstate traffic moved by the carrier 'at the same rates as are charged, or upon terms or conditions as favorable as those given, by said carrier for like traffic under similar conditions to any other shipper. ' The unjust discrimination alleged in the petition upon which the alternative writ was granted consists in the refusal of the respondent to transport cattle for Morris, a shipper of cattle, in cars of a special construction belonging to the American Live-Stock Transportation Company, superior, by reason of their improvements, to ordinary cattle-cars whereas, it transports cattle for other shippers in cars having some, but not all, of such improvements, belonging to the Lackawanna Live-Stock Express Company. The American Live-Stock Transportation Company, the co-relator with Morris, is a corporation organized for the purpose of transporting live-stock and other merchandise, and its presence would seem to be superfluous, unless it is here to obtain the benefit of an adjudication that the respondent is bound to accept its cars, whenever tendered with cattle for transportation, and allow to it the mileage of three-fourths of a cent per mile for the use of the cars which the relators aver is allowed by the respondent to the Lackawanna Live-Stock Express Company. The return by the respondent to the alternative writ, besides denying in general terms the charge of unjust discrimination, sets forth that it has entered into a contract with the Lackawanna Live-Stock Express Company for the term of five years, by which that company agrees to furnish at least 200 of its improved stock-cars to run on the railway of the respondent;' that such cars are not used exclusively by any one shipper of live-stock, but are available to all shippers; that the cars unlike those of the American Live-Stock Transportation Company, are so constructed as to permit the carriage of coal, which is the principal business of the respondent, when not loaded with live-stock; and that in consideration of the special contract the defendant agreed to use the cars upon its road, and pay mileage therefor, as if such cars were furnished by a connecting company; and it also alleges that, after entering into such agreement, the respondent and several other trunk line railroad companies entered into an agreement to discontinue hauling private stock-cars, except for horses, for reasons which are particularly set forth. The relators have demurred to this return, and move for a preemptory mandamus, insisting that the return does not allege facts which justify the refusal of the respondent to transport the cattle of Morris in the cars of the American Live-Stock Transportation Company.

The jurisdiction of this court, conferred by the interstate commerce act, to compel by mandamus the observance by common carriers of the provisions of the act, is restricted exclusively to the prevention of unjust discrimination by such carriers. The question for consideration consequently is whether, if the facts alleged in the return are true, the respondent has been guilty of any unjust discrimination between Morris and the shippers for whom it carries cattle in the cars of the Lackawanna Live-Stock Express Company. Unjust discrimination is prohibited by section 2 and 3 of the interstate commerce act. What constitutes unjust discrimination may be ascertained from the language of these sections, as well as of the section which authorizes the circuit court to redress it by mandamus. By section 2 it consists in charging one person a different compensation than is charged another for doing 'the like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions. ' By section 3 it consists in giving 'any undue or unreasonable preference or advantage' to any particular shipper, or subjecting him to any undue or unreasonable prejudice or disadvantage 'in any respect whatever.' The former...