Wilmington & W.R. Co. v. Board of Railroad Com'rs of State of North Carolina

• Decision Date: 20 October 1898
• Citation: 90 F. 33
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: WILMINGTON & W.R. CO. v. BOARD OF RAILROAD COM'RS OF STATE OF NORTH CAROLINA et al.

90 F. 33

WILMINGTON & W.R. CO. v. BOARD OF RAILROAD COM'RS OF STATE OF NORTH CAROLINA et al.

United States Circuit Court, E.D. North Carolina.

October 20, 1898

Junius Davis and R. O. Burton, for complainant.

John W Hinsdale, W. C. Douglas, and Charles A. Cook, for defendants.

SIMONTON Circuit Judge.

The Wilmington & Weldon Railroad Company, a corporation of the state of North Carolina, filed its bill of complaint against the board of railroad commissioners of the state, and L. Campbell Caldwell, John H. Pearson, and De Leon H. Abbott, personnel of said board, and Z. V. Walser, W. J Leary, W. E. Daniel, E. W. Pou, M. C. Richardson, and H. F Seawall, Esqs., the first named being the attorney general, and the others solicitors of judicial districts of North Carolina, charged with certain duties under the railroad commission act of the said state. The ground of complaint of the bill is that the said railroad commissioners have imposed upon the complainant certain rates for the carriage of passengers which are not just and reasonable. The prayer of the bill is an injunction to prevent these unjust and unreasonable rates from being imposed.

This case now comes up on a motion to expunge certain passages and parts of the bill as scandalous and impertinent. The equity rules Nos. 26 and 27 seem to contemplate the reference of objections of this character to a master. These, however, are not imperative, and this question can be and will be determined by the court. A bill may contain matter which is impertinent without the matter being scandalous. Story, Eq. Pl. Sec. 270. There is nothing in this bill which is scandalous. Are the charges of impertinence unfounded? Matters in a bill are impertinent when they do not affect or concern the issues involved, when they cannot be sustained by proof which would be relevant, when no evidence with regard to them would be either necessary or proper. In a note to Mitf. Eq. Pl. (6th Am. from 5th London Ed.) p. 48, it is said that the word 'impertinent,' by the ancient juris consults or law counselors who gave their opinions on cases, was used merely in opposition to 'pertinent.' "Ratio pertinens' is a pertinent reason; that is, a reason pertaining to the question. ' Ratio impertinens,' an impertinent reason, is an argument not pertaining to the question. Lord Eldon, in Ex parte Simpson, 15 Ves. 476, says: 'If that which is stated is material to the issue, it may be false, but cannot be scandalous. If relevant, it is not impertinent, though scandalous in its nature. If relevant and not pertinent, it cannot be treated as scandalous. If false, it must be dealt with in another way. ' 'If the matter,' says Walworth, Ch., 'can have any influence whatever in the decision of the suit, either as to the subject-matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent. ' Van Rennsselaer v. Brice, 4 Paige, 174. 'The best test,' says Chancellor Kent, 'to ascertain whether matter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence. Woods v. Morrell, 1 Johns.Ch. 103. Or, as put in the same case, facts not material to the decision are impertinent. Extreme caution must be exercised in considering this question, because, if the matter complained of be expunged erroneously, it is irremediable. 1 Beach, Mod.Eq.Prac. § 109.

There are 14 exceptions to the bill because of scandal and impertinence. Each refers to the printed bill, and indicates the exception by referring to lines and parts of lines on pages thereof, not setting out in haec verba the language excepted to. The bill sets forth in detail the action of the predecessors of the present railroad commission, fixing the rate for the carriage of passengers on railroads for all the roads in the state at 3 1/4 cents per mile for first-class passengers, and 2 3/4 cents for second-class passengers. That these rates were just and reasonable. That the question of their reduction had repeatedly been brought before that board, had been considered by them, and no reduction was granted. That it was again considered by a new board, and, after examination, the rates were deemed just and reasonable. That the question was taken up by the present board, and again examined. After examination the rates were reduced, but this was reconsidered, and the rates were restored, for the reason that they were just and reasonable. That afterwards this board again took up the matter, reduced the rates as to complaint, but refused to reduce them as to the North Carolina Railroad Company, and indefinitely postponed any action as to the Raleigh & Gaston Railroad, notwithstanding the fact that said railroad companies are in as prosperous a condition as complainant. 'That there has been no such change in the general condition of affairs or in the business or earnings of complainant or in the existing circumstances as to warrant this reduction or any change of views on the part of the board. ' These allegations are made the subject of the 1st, 2d, 3d, 5th, 6th, 7th, 10th, 11th, 13th, and 14th exceptions.

The bill also quotes from the inaugural message of his excellency, the governor of North Carolina, in January, 1897 an expression of opinion that the passenger rates prevailing in the state were just and reasonable. That afterwards, in March, 1898, he appeared before the board of railroad commissioners, and attacked a decision of the supreme court, in what is known as the 'Nebraska Case' (Smyth v. Ames, 169 U.S. 466, 18 Sup.Ct. 418), in language violent and extreme. It sets out his action in retaining Mr. Caldwell on the commission, although he had first voted a reduction of rates, and had then changed his mind and reversed his action and that of his board. That the governor had filed a complaint before the railroad commissioners against the complainant, the North Carolina Railroad Company...