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CIRCUIT COURT OF UNITED STATES, NORTHERN DISTRICT OF GEORGIA. THE INTERSTATE COMMERCE COMMISSION vs. THE CINCINNATI, New Orleans and Texas Pacific Railway Company, The Western and Atlantic Railroad Company, and The Georgia Railroad Company.

Answer of the Cincinnati, New Orleans and Texas Pacific Railway Company.

The Cincinnati, New Orleans and Texas Pacific Railway Company for answer herein says:

(1) It admits that it is a corporation under the laws of Ohio, operating as a common carrier of passengers and freight; a railroad extending from Cincinnati, in the State of Ohio, to Chattanooga, in the State of Tennessee, which places are the termini of said railway.

(2) It further admits that the defendant, the Western and Atlantic Railroad Company, is a common carrier from Chattanooga, Tenn., to Atlanta, Ga., and that the defendant, the Georgia Railway Company, is a common carrier from Atlanta, Ga., by way of Social Circle, to Augusta, Ga., and that freight is carried by this respondent and its codefendants from Cincinnati to points herein named without break of bulk. It says that defendants in this case are not under any common control or management.

(3) This defendant admits that the proceedings before and by the Interstate Commerce Commission took place as averred in the petition herein, but this defendant denies that at said hearing before said Interstate Commerce Commission it was made to appear that this defendant had violated the provisions of the act entitled "An act to regulate commerce," in the respects charged in the petition before said Interstate Commerce Commission, and denies that said Commission legally determined the matters and things in controversy and at issue between the parties herein.

(4) This defendant says it admits that said Commission made said report, but says that many of the conclusions of fact found therein are not true, and are not justified by the evidence produced at said hearing, and says that the conclusions of law contained in said report and the interpretation thereby given to the provisions of said act to regulate commerce are not correct, and do not accord with the true constructions of said act.

(5) This defendant admits that said Commission did formulate the order mentioned in this case, and that notice thereof was given to this defendant, but denies that the said order was of any binding or legal effect.

(6) This the defendant admits, that the rate of freight on merchandise of the first class from Cincinnati, Ohio, to Atlanta, Ga., a distance of 474 miles, is $1.07 per 100 pounds, and that the rate from Cincinnati to Augusta, Ga., a distance of 645 miles, is the same. It says that these rates are made by an agreement between the Georgia Railroad Company, the East Tennessee, Virginia and Georgia Railway Company, the Western and Atlantic Railroad Company and this defendant, and are divided between the companies performing the service according to the proportion which the mileage of each road bears to the whole distance. This defendant further says that the Georgia Railroad Company, which owns the railroad from Atlanta to Augusta, always demands and receives its local rates on business from Cincinnati

to any point between Atlanta and Augusta; so that, as far as this defendant is concerned, there is no rate fixed by agreement on merchandise from Cincinnati to Social Circle or other local points on said Georgia Railroad Company's road; but the first-class rate from Cincinnati to Atlanta, being $1.07 per 100 pounds, and the first-class rate of the Georgia Railroad Company from Atlanta to Social Circle, being 30 cents per 100 pounds, as fixed by the railroad commission of Georgia, the addition of these two rates constitutes the first-class rate of $1.37 per 100 pounds from Cincinnati to Social Circle; thus, while there is no rate between Cincinnati and Social Circle fixed by agreement, yet there does exist by reason of the said rate from Cincinnati to Atlanta, and by reason of the rate from Atlanta to Social Circle, a total rate of $1.37 per 100 pounds from Cincinnati. This defendant says that the abovementioned rates are reasonable and proper, and that they in no respect violate the act to regulate commerce, and that, although the total rate from Cincinnati to Social Circle is greater than it is to Augusta, Ga., a more distant point on the same line, nevertheless this defendant says there are and have been circumstances and conditions justifying a less rate to Augusta than to Social Circle.

(7) This defendant further says that it makes and has made no rate whatever to Social Circle, and that on shipments to Social Circle the only compensation received by this defendant is a proportion, according to its mileage, between Cincinnati and Chattanooga of the rate from Cincinnati to Atlanta.

And having fully answered, this defendant asks to be hence dismissed, with its costs.

EDWARD COLSTON, Cincinnati, Ohio,
CALHOUN, KING & SPALDING, Atlanta, Ga.

Attorneys for defendant, the Cincinnati, New Orleans

STATE OF OHIO,

Hamilton County:

and Texas Pacific Railway Company.

D. Miller, being by me first duly sworn, says he is traffic manager of defendant, the Cincinnati, New Orleans and Texas Pacific Railway Company, and that the allegations of the foregoing answer are true, as he believes.

D. MILLER.

Sworn to before me and subscribed in my presence this 19th day of December, A. D. 1891.

CHARLES M. CIST,

Notary Public, Hamilton County, Ohio.

The joint and several answer of the Louisville and Nashville Railroad Company and the Central Railroad and Banking Company of Georgia, who are sued by the name of the "Georgia Railroad Company," to the petition filed by the Interstate Commerce Commission in the circuit court of the United States, sitting in equity, for the northern district of Georgia, against the Cincinnati, New Orleans and Texas Pacific Railway Company, the Western and Atlantic Railroad Company, and these respondents, sued by the name of the Georgia Railroad Company.

I.

Respondents suppose it to be true that the Cincinnati, New Orleans and Texas Pacific Railway Company is a corporation created, chartered,

and is existing under and by virtue of the laws of the State of Ohio, and that it has its principal office at Cincinnati, Ohio.

II.

Respondents admit that the defendant, the Western and Atlantic Railroad Company, is a corporation created, chartered, and existing under and by virtue of the laws of the State of Georgia, and that it has its principal office at Atlanta, in said State.

III.

"The Georgia Railroad and Banking Company" is a corporation created, chartered, and existing under and by virtue of the laws of the State of Georgia, and has its principal office at Augusta, in said State.

Said company is the owner of what is known as the "Georgia Railroad," and on May 7, 1881, said company leased said railroad to William Wadley for ninety-nine years, from April 1, 1881.

Respondents are jointly the assignee of the said original lessee, and they operate said railroad under the adopted name of the "Georgia Railroad Company," but there is no such corporation as the "Georgia Railroad Company."

IV.

Respondents admit that they, as assignees of said lease, and the said Cincinnati, New Orleans and Texas Pacific Railway Company, and a certain corporation then existing which was known as the Western and Atlantic Railroad Company, were, at the time of the committing of the acts wrongfully called grievances in the petition, common carriers, severally engaged in the transportation of persons and property by their said several lines of railroad from Cincinnati, in the State of Ohio, thence through the intermediate States of Kentucky and Tennessee to Atlanta, Social Circle, and Augusta, in the State of Georgia. They had an arrangement or agreement between them for the continuous carriage or shipment of through freight from Cincinnati to Augusta, at certain agreed through rates, but they were under no common control or management.

The charter of the corporation which then existed under the name of the Western and Atlantic Railroad Company expired by its own limitations on December 27, 1890, and the defendant now known as the Western and Atlantic Railroad Company is totally distinct from the former company, which bore the same name.

V.

Respondents deny that the defendants were "duly impleaded" in any kind of a controversy before the Interstate Commerce Commission, though it is true that, some time in October, 1889, the James & Mayer Buggy Company, styling itself a manufacturing corporation, claiming to have been chartered under the laws of the State of Ohio and claiming to have its principal office in Cincinnati, in said State, filed a petition before said Commission, a copy of which petition is filed as Exhibit A to the petition in said case.

It will be seen that the said James & Mayer Buggy Company made no complaint except as to certain rates charged them on vehicles from

Cincinnati, Ohio, to Atlanta and Social Circle, Ga.; and that the only complaint they made as to those rates was, that they were higher than the rate to Augusta, Ga.

VI.

Respondents suppose it to be true that the old Western and Atlantic Railroad Company, whose charter expired December 27, 1890, filed its answer to said petition, and that Exhibit B to the petition in this case is a copy of said answer.

VII.

It is true that an answer was filed in the name of the Georgia Railroad Company to said petition, and Exhibit C to the petition in this case is a copy of said answer. Respondents here adopt the allegations of said answer as a part of this answer.

VIII.

Respondents suppose it to be true that the Cincinnati, New Orleans and Texas Pacific Railway Company filed its answer to said petition, and that Exhibit D to the petition in the case is a copy of said answer.

IX.

Respondents suppose it to be true that said Interstate Commerce Commission, on the 21st day of February, 1890, made an order, and that Exhibit E to the petition is a copy of said order.

Respondents were furnished with a copy of said order some time between the 21st day of February and the 21st day of March, 1890.

X.

Respondents have no knowledge, information, or belief as to whether said proceedings were continued from time to time until June 3, 1890; nor as to whether the said James & Mayer Buggy Company, or said Cincinnati, New Orleans and Texas Pacific Railway Company, or the old Western and Atlantic Railroad Company, or either of them, appeared by their respective officers or attorneys before said Commission on June 3, 1890. No officer or attorney of the Georgia Railroad Company or of these respondents appeared on that occasion.

XI.

Respondents deny that it appeared to said Commission that respondents had violated, in any respect, the provisions of the act of Congress entitled, "An act to regulate commerce."

Respondents deny that said Commission duly or legally determined the matters or things in controversy between said parties.

Respondents suppose it to be true that said Commission on or about June 29, 1891, made a report in writing in respect thereof, and that Exhibit F to the petition is a copy of said report. A copy of said report was furnished to respondents some time prior to July 3, 1891.

XII.

Respondents suppose it to be true that said Commission formulated an order or notice in relation to the matters and things stated and charged in said petition. But respondents deny that said order was duly made, or that it was made agreeably to the requirements of the statute in such cases made and provided, or that it now remains in force or effect. Respondents suppose that it has never been vacated, set aside, altered, modified, or changed in any respect by said Commission; they suppose that it is now on file in the office of said Commission; and they suppose that exhibit G to the petition is a copy of said order. Respondents were furnished with a copy of said order on or about July 3, 1891. The charter of the old Western and Atlantic Railroad Company having expired before said order was made, and the proceedings not having been revived, said order was void as to said company; and being joint in its nature, said order was also void as to respondents.

XIII.

Respondents suppose it to be true that the Cincinnati, New Orleans and Texas Pacific Railway Company, and the defendant now known as the Western and Atlantic Railroad Company, have not ceased or desisted from the acts wrongfully called violation of law, and set forth in said report and order of said Commission.

So far as these respondents are concerned, they will state that on July 3, 1891, E. R. Dorsey, general freight agent of said Georgia Railroad Company, issued a circular to its connections, earnestly requesting them that thereafter, in issuing bills of lading to local stations on said Georgia railroad, no rates be inserted east of Atlanta, except to Athens, Gainesville, Washington, Milledgeville, Augusta or points beyond. Neither before nor since the date of said circular have these respondents operating said Georgia Railroad been in any way parties to such through rates, if any, as may have been quoted, from Cincinnati or other western points to any of the strictly local stations on said Georgia Railroad. The stations excepted in said circular are not strictly local stations. Both before and since the date of said circular respondents have received at Atlanta east-bound freight destined to strictly local stations on the Georgia Railroad, and have charged full local rates to such stations; said rates being such as they were authorized to charge by the Georgia Railroad Commission. Said rates are reasonably low, and are charged to all persons alike, without discrimination. A true copy of said circular is here filed as Schedule I to this answer.

XIV.

Respondents deny that they or either of them have been unmindful of their duty, or of any legal decision or determination of said Commission; or that they have through their officers, servants or attorneys, or otherwise, disregarded, or set at naught, the lawful authority of said Commission; or that they have willfully or knowingly, or at all, violated or disobeyed any lawful order of said Commission; or that they have neglected or refused to comply with any lawful order of said Commission at Social Circle, Augusta, or Atlanta, Ga., or elsewhere. As to what the Cincinnati, New Orleans and Texas Pacific Railway Company may have done, or failed to do, respondents have no knowledge or information except as hereinafter stated.

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