Page images
PDF
EPUB

Ft. Worth & D. R. Co. v. Lillard (Tex. 6 S. W. 834; State ex rel. Leese v. & tchison App.) 16 S. W. 654; State v. Chicago, M. & & N. R. Co. 24 Neb. 143, 8 Am. St. Rep. 164, St. P. R. Co. 68 Minn. 381, 38 L. R. A. 672, 38 N. W. 43; Currier v. Concord R. Corp. 48 64 Am. St. Rep. 482, 71 ). W. 400; New N. H. 321; Texas & P. R. Co. v. Southern P. York, N. H. & A. R. Co. v. New York, 165 R Co. 41 La. Ann. 970, 17 Am. St. Rep. 445, U. S. 628, 632, 41 L. ed. 853, 854, 17 Sup. Ct. 6 So. 888; Clarke v. Central R. & Bkg. Co. Rep. 418; Railroad Commissioners v. 15 L. R. A. 683, 50 Fed. 338; Hamilton v. Portland d 0. C. R. Co. 63 Me. 269, 18 Savannah, F. & W. R. Co. 49 Fed. 412; KimAm. Rep. 208; Gulf, C. & S. F. R. Co. v. ball v. Atchison, T. & 8. F. R. Co. 46 Fed. State, 72 Tex. 404, 1 L. R. A. 849, 2 Inters. 888; Langdon v. Georgia R. & Bkg. Co. 2 L. Com. Rep. 335, 13 Am. St. Rep. 815, 10 S. R. A. 120, 37 Fed. 449; Turner v. Maryland, W. 81; Chicago & N. W. R. Co. v. Fuller, 17 107 U. S. 38, 27 L. ed. 370, 2 Sup. Ct. Rep. Wall. 560, 21 L. ed. 710; Railroad Com- 44; Sherlock v. alling, 93 U. S. 99, 23 L. ed. mission Cases, 116 U. S. 307, 29 L. ed. 636, 6 819; Smith v. Alabama, 121 U. S. 465, 31 Sup. Ct. Rep. 334, 388, 1191; Dow v. Beidel. L. ed. 509, 1 Inters. Com. Rep. 804, 8 Sup. man, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Ct. Rep. 504; Cotting v. Kansas City Stock Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Georgia Yards Co. 79 Fed. 679, 82 Fed. 850, ReR. & Bkg. Co. v. Smith, 128 U. S. 174, 32 versed in 183 U. S. 79, 46 L. ed. 92, 22 Sup. L. ed. 377, I Sup. Ct. Rep. 47; Pennsylvania Ct. Rep. 30; Scammon v. Kansas City, St. R. Co. v. Miller, 132 U. S. 75, 33 L. ed. 267, J. & C. B. R. Co. 41 Mo. App. 194; Connell 10 Sup. Ct. Rep. 34; Guthrie, 14th Amend- v. Western U. Teleg. co. 108 Mo. 459, 18 S. ment, p. 87; Jacobson v. Wisconsin, M. & W. 883; Louisville & N. R. Co. v. Com. 97 P. R. Co. 71 Minn. 519, 40 L. R. A. 389, 70 Ky. 675, 31 S. W. 476; Burdick v. People. Am. St. Rep. 358, 74 N. W. 893; 179 U. S. 149 Ill. G00, 24 L. R. A. 152, 41 Am. St. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115; Rep. 329. 36 N. E. 948, 952; State v. Cor. Chicago, B. & Q. R. Co. v. Nebraska, 170 U. bett, 57 Minn. 345, 24 L. R. A. 498, 4 Inters. S. 67, 42 L. ed. 952, 18 Sup. Ct. Rep. 513; Com. Rep. 694, 59 N. W. 317; State v. Geer, Rae v. Grand Trunk R. Co. 14 Fed. 401; 61 Conn. 144, 13 S.. R. A. 804, 3 Inters. State v. Gladson, 57 Minn. 385, 24 L. R. A. Com. Rep. 732, 22 Atl. 1012; Organ v. State, 502, 59 N. W. 487, Affirmed in 166 U. S. 56 Ark. 267, 19 S. W. 840; State v. Harrub, 427, 41 L. ed. 1064, 17 Sup. Ct. Rep. 627; 95 Ala. 176, 15 L. R. A. 761, 4 Inters. Com. Lake Shore & y. 8. R. Co. v. Ohio, 173 U. Rep. 99, 10 So. 752; Geer v. Connecticut, S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; 161 U. S. 519, 40 L. ed. 793, 16 Sup. Ct. Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, Rep. 600; East Line & R. River R. Co. v. 20 Sup. Ct. Rep. 819; Budd v. New York, State, 75 Tex. 434, 12 S. W. 690; McDuffee 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. v. Portland & R. R. Co. 52 N. H. 430, 13 Rep. 45, 12 Sup. Ct. Rep. 468; Brass v. Am. Rep. 72; Scofield v. Lake Shore & 31. 8. North Dakota, 153 U. S. 391, 38 L. ed. 757, R. Co. 43 Ohio St. 571, 54 Am. Rep. 846, 3 4 Inters. Com. Rep. 670, 14 Sup. Ct. Rep. N. E. 907; Brown v. Houston, 114 U. S. 622, 857; Hopkins v. United States, 171 U. S. 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; Pitts578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40; burg & 8. Conl Co. v. Bates, 156 U. S. 577, United States v. E. C. Knight Co. 156 U. S. 39 L. ed. 538, 5 Inters. Com. Rep. 30, 15 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; Sup. Ct. Rep. 415; Kidd v. Pearson, 128 U. National Distilling Co. v. Cream City Im- S. 20, 24, 32 L. ed. 350, 351, 2 Inters. Com. porting Co. 86 Wis. 352, 39 Am. St. Rep. Rep. 232, 9 Sup. Ct. Rep. 6; Dubuque & s. 902, 56 N. W. 864; W. W. Cargill Co. v. C. R. Co. v. Richmond, 19 Wall. 584, 22 L. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 ed. 173; Ouachita & M. River Packet Co. v. Sup. Ct. Rep. 423; Emert v. Missouri, 156 Aiken, 121 U. S. 444, 30 L. ed. 976, 1 Inters. U. S. 296, 39 L. ed. 430, 5 Inters. Com. Rep. Com. Rep. 379, 7 Sup. Ct. Rep. 907; United 68, 15 Sup. Ct. Rep. 367; Williams v. Fears, States v. Joint Traffic Asso. 171 U. S. 505. 179 U. S. 270, 45 L. ed. 186, 21 Sup. Ct. 43 L. ed. 259, 19 Sup. Ct. Rep. 25; Anderson Rep. 128; Louisville & N. R. Co. v. Ken- v. United States, 171 U. S. 604, 43 L. ed. tucky, 183 U. S. 503, 513, 514, 46 L. ed. 300, 19 Sup. Ct. Rep. 50; St. Louis v. West. 298, 304, 305, 22 Sup. Ct. Rep. 95, 161 U. S.ern U. Teleg. Co. 148 U. S. 92, 100, 37 L. ed. 677, 678, 702, 703, 40 L. ed. 849, 860, 16 380, 384, 13 Sup. Ct. Rep. 485; Pearsall v. Sup. Ct. Rep. 714; Gyer v. Philadelphia Great Northern R. Co. 161 U. S. 647, 40 L. City Pass. R. Co. 136 Pa. 96, 9 L. R. A. 369, ed. 838, 16 Sup. Ct. Rep. 705; State ex rel. 20 Atl. 399; Pennsylvania R. Co. v. Com. Kohler v. Cincinnati, W. & B. R. Co. 47 (Pa.) 4 Cent. Rep. 495, 7 Atl. 368; Board-Ohio St. 130, 7 L. R. A. 319, 23 N. E. 928; man v. Lake Shore d M. S. R. Co. 84 N. Y. Chicago & A. R. Co. v. People, 67 Ill. 11, 16 157; Gulf, C. & S. F. R. Co. v. State, 72 Tex. Am. Rep. 599. 404, 1 L. R. A. 8-19, 2 Inters. Com. Rep. 335, Notice to the carrier while the car is on 13 Am. St. Rep. 815, 10 S. W. 81; East Line the "hold track” is sufficient to compel free & R. River R. Co. v. Rushing, 69 Tex. 306, delivery by the initial carrier to consignee

a

at any elevator, etc., designated by him, | ville & N. W. R. Co. v. Bartlett, 7 Hurlst. located on said carrier's tracks, or on any & N. 100; Avery v. Stewart, 2 Conn. 69; track it has leased or uses or which “can Ishcrwood v. Whitmore, 11 Mees. & W. 347, be used” by it.

10 Mees. & W. 757; Hutchinson, Carr, 8 Hoyt v. Chicago, B. & Q. R. Co. 93 Ill. 392. 611; Vincent v. Chicago & A. R. Co. 49 Ill. It is immaterial whether the charge by 33; Chicago & N. W. R. Co. v. People, 56 Ill. way of reconsignment so-called is fixed at 365, 8 Am. Rep. 690; Pennsylvania R. Co. the intrinsic value thereof, or whether it is v. Jones, 155 U. S. 333, 39 L. ed. 176, 15 reasonable or unreasonable; the ultimate Sup. Ct. Rep. 136; Loomis v. Wabash, St. L. question for determination is the legal right & P. R. Co. 17 Mo. App. 340; Chicago B. & 1 of the railroads to make the discrimination Q. R. Co. v. Jones, 149 Ill. 361, 24 L. R. A. here complained of. 141, 4 Inters. Com. Rep. 683, 41 Am. St. Samuels v. Louisville & N. R. CO. 4 Inters. Rep. 278, 37 N. E. 247; Chicago, M. & N. R. Com. Rep. 420, 31 Fed. 57. Co. v. National Elevator & Dock Co. 153

In a case of this character, where public Ill. 70, 38 N. E. 915.

rights are invaded, no question of the The initial carrier cannot charge more for amount of damages is raised, but simply delivery to one elevator, etc., located on its one of right to do the act complained of. tracks in a certain town than it charges for Com. v. Pittsburgh & C. R. Co. 24 Pa. delivery to another elevator or industry in 159, 62 Am. Dec. 372. the same town located on its tracks.

Common carriers shall not exercise any Vincent v. Chicago & A. R. Co. 49 ni. 33; unjust and injurious discrimination between Chicago & N. W. K. Co. v. People, 56 Ill. individuals in their rates of toll. 365, 8 Am. Rep. 690; Chicago & A. R. Co. v. Messenger v. Pennsylvania R. Co. 36 N. People, 67 Ill. 1), 16 Am. Rep. 599.

J. L. 407, 13 Am. Rep. 457; Chicago & A. R. The liability of railroad company Co. v. People, 67 Ill. 11, 16 Am. Rep. 599; ceases only when goods have reached their Scofield v. Lake Shore & M. S. R. Co. 43 destination, and are stored in a warehouse Ohio St. 571, 54 Am. Rep. 846, 3 N. E. 907; belonging to the company, and thereafter, Central Ohio Salt Co. v. Guthrie, 35 Ohio its liability is that of warehouseman, and it St. 666; McDuffee v. Portland & R. R. Co. is liable as coinmon carrier for the loss of 52 N. H. 430, 13 Am. Rep. 72; Sandford v. goods by accidental fire when located in a Catavissa, W. « E. R. Co. 24 Pa. 378, 64 car at their destination.

Am. Dec. 667; Nero England Exp. Co. v. Porter v. Chicago & R. I. R. Co. 20 Ill. Maine C. R. Co. 57 Me. 188, 2 Am. Rep. 31; 407, 71 Am. Dec. 286.

Chicago & y. W. R. Co. v. People, 56 Ill. Liability does not cease till delivery, and 365, 8 Am. Rep. 690; Gulf, C. & S. F. R. Co. the carrier must obey the instructions of v. Texas, 72 Tex. 404, 1 L. R. A. 849, 2 the shipper as to delivery.

Inters. Com. Rep. 335, 13 Am. St. Rep. 815, Michigan S. & N. I. R. Co. v. Day, 20 Ill. 10 S. W. $l; Denver & N. 0. R. Co. v. Atchi375, 71 Am. Dec. 278; Chicago & A. R. Co. son, T. & 8. I'. R. Co. 15 Fed. 650. v. Scott, 42 Ill. 138; Bartholomew v. St. A railroad company charged by law with Louis J. & C. R. Co. 53 Ill. 231; 5 Am. Rep. the duty of making delivery to any place or 45; Merchants' Despatch Transp. Co. v. consignee located upon tracks which it Hallock, 64 Ill. 286; Illinois R. Co. v. owns, leases, uses, or can use cannot avoid Friend, 64 Ill. 304; Chicago & N. W. R. Co. and evade it by the organization of a termiv, Sawyer, 69 Ill. 285, 18 Am. Rep. 613; nal company like the terminal railroad asChicago & N. W. R. Co. v. Jenkins, 103 Ill. sociation, in which the railroads themselves 599; Chicago & N. W. R. Co. v. Bensley, 69 upon which the duty of delivery is by law Ill. 630; Chicago & R. I. R. Co. v. Warren, imposed own the entire capital stock, and 16 Ill. 502, 63 Am. Dec. 317.

dominate its business and policy, and divide Independent of the Constitution or its earnings. statute, the consignee has the right to Central R. Co. v. Collins, 40 Ga. 582; change the destination at any time while Hartford & N. A. R. Co. v. New York & N. the goods remain in the possession of the H R. Co. 3 Robt. 411; Rensselaer & S. R. carrier, and the carrier is bound to obey Co. v. Davis, 43 N. Y. 137; Union Bridge such directions.

Co. v. Troy & L. R. Co. 7 Lans. 240; Lewis v. Galena & C. U. R. Co. 40 Ill. 281. Pennsylvania R. Co. v. Com. (Pa.). 4 Cent.

Independent of the Constitution and Rep. 495, 7 Atl. 368; Hooker v. Vandewater, statutes of Missouri, the common law gives 4 Denio, 349, 47 Am. Dec. 258; Stanton v. the consignee the right to inspect goods con- Allen, 5 Denio, 434, 49 Am. Dec. 282; State signed to him, and a reasonable opportunity v. Hartford & N. 8. R. Co. 29 Conn. 538; for that purpose.

Elkins v. Camden & A. R. Co. 36 N. J Eq. Percival v. Blake, 2 Car. & P. 514; Lyons 5: Sayre v. Louisville Union Benev. Asso. 1 v. Hill, 46 N. H. 49, 88 Am. Dec. 189; Louis. 'Duv. 143, 85 Am. Dec. 613; Gulf, C. & S. F.

to

R. Co. v. State, 72 Tex. 404, 1 L. R. A. 849, Messrs. Edward D. Kenna, Robert 2 Inters. Com. Rep. 335, 13 Am. St. Rep. Dunlap, Gardiner Lathrop, and Samuel 815, 10 S. W. 81; Tippecanoe County v. W. Moore for respondent. Lafayettc, M. & B. R. Co. 50 Ind. 85; State v. Vanderbilt, 37 Ohio St. 590; Pennsyl- Burgess, J., delivered the opinion of the vania R. Co. v. Com. (Pa.) 4 Cent. Rep. 495, court: 7 Atl. 365; State ex rel. Leese v. Atchison This is a proceeding by quo warranto, es

N. R. (:0. 24 Neb. 143, 8 Am. St. Rep. 164, informatione the attorney general, against 38 N. W. 4.3; Thouron v. East Tennessee, V. the respondent, the Atchison, Topeka, & & G. R. Co. (Tenn. Ch.) 5 Ry. & Corp. L. Santa Fe Railway Company, a railroad J. 77; Morgan v. Donovan, 58 Ala. 241; corporation doing business in this state, to People v. North Rirer Sugar Ref. Co. 121 oust it from the exercise of certain rights, N. Y. 582, 9 L. R. A. 33, 18 Am. St. Rep. privileges, and franchises alleged to be il843, 24 N. E. 834; Gale v. Kalamazoo, 23 legally exercised by it. The information Mich. 344, 9 Am. Rep. 80; Bestor v. Wat- alleges that the respondent is a corporation hen, 60 Ill. 138; York v. Merritt, 77 N. C. of the state of Kansas, operating lines of 213; Wight v. Kindskopf, 43 Wis. 344; railway cxtending through the territory of Bowman v. Phillips, 41 Kan. 364, 3 L. R. A. Oklahoma and the states of Colorado, 631, 12 Am. St. Rep. 292, 21 Pac. 230; Bell Kansas, Nebraska, and Missouri, to Chicago, v. Leggett, 7 N. Y. 176; People ex rel. Pea- Ilinois, and extending west and south from body v. Chicago Gas Trust Co. 130 Ill. 268, Kansas City to San Francisco, Los Angeles, 8 L. R. A. 497, 17 Am. St. Rep. 319, 22 N. and San Diego, California, and the Rio E. 798; Chicago Gaslight & Coke Co. v. Grande river; that it has no authority to People's Gaslight & Coke Co. 121 Ill. 530, 2 do any business in Missouri, except as a Am. St. Rep. 124, 13 N. E. 169; Gibbs v. foreign railroad corporation, having comConsolidated Gas Co. 130 U. S. 396, 32 L. plied with its laws and obtained a certified. 979, 9 Sup. Ct. Rep. 553; Franklin Co. cate do business in the state; that v. Lewiston Inst. for Savings, 68 Me. 48, 28 Kansas City is a market city for grain and Am. Rep. 9; Franklin Bank v. Commercial grain products, with large mills and eleBank, 36 Ohio St. 350, 38 Am. Rep. 594; vator facilities, and, being located on the Mechanics' & Working Men's Mut. Sav. lines of inany railroads, it reaches the eastBank v. Meriden Agency Co. 24 Conn. 159; crn, western, northern, and southern marHazlehurst v. Savannah, G. & N. A. R. Co. kets; that it is important to the people of 43 Ga. 13; Oregon R. & Nav. Co. v. Oregoni. this state that Kansas City be maintained an R. Co. 130 U. S. 1, 28, 32 L. ed. 837, 842, as a grain market; that there is in Kansas 9 Sup. Ct. Rep. 409; Dorris Run Coal Co. v. City a large number of firms or companies, Barclay Coal Co. 68 Pa. 173, 8 Am. Rep. cmploying a large number of men and hav. 159; Chappel v. Brockway, 21 Wend. 159; ing a large investment of capital in the busiNew York & 8. Canal Co. v. Fulton Bank, 7 ness of dealing in, buying, selling, storing, Wend. 412; Atlantio & G. R. Co. v. Georgia, and handling of grain, many of them doing 98 U. S. 359, 363, 25 L. ed. 185, 187; Lau- business as commission merchants, and all man v. Lebanon Valley R. Co. 30 Pa. 42, 72 of whom have made their investments upon Am. Dec. 685; State cu rel. Watson v. the faith of the course of business hereinStandard Oil Co. 49 Ohio St. 137, 15 L. R. after stated; that Chicago and the cities A. 145, 34 Am. St. Rep. 541, 30 N. E. 279; and towns upon the Mississippi river are State ex rel. Snyder v. Portland Natural strong competitors of Kansas City for Gas & Oil Co. 153 Ind. 483, 53 L. R. A. 413, grain; that it has been customary to ship 74 Am. St. Rep. 314, 53 N. E. 1089; Bagg v. grain to Kansas City in car and train-load Wilmington, C. & A. R. Co. 109 Mo. 279, 14 lots, and place the same on what are called L. R. A. 596, 3 Inters. Com. Rep. 803, 26 "hold tracks," for inspection, barter, and Am. St. Rep. 569, 14 S. E. 79; United States sale, and subsequent directions for delivery v. Northern Securities Co. 120 Fed. 721; in the city of its destination; that on the Union P. R. Co. v. Chicago, R. I. & P. R. faith of such universal custom and usage Co. 163 U. S. 564, 585, 41 L. ed. 265, 273, large numbers of the citizens of this state, 16 Sup. Ct. Rep. 1173; Central Transp. Co. and especially said persons at Kansas City, v. Pullman's Palace Car Co. 139 U. S. 43, have engaged in the grain, elevator, milling, 59, 60, 35 L. ed. 63, 68, 69, 11 Sup. Ct. Rep. feed, and stock business, and invested large 478; Thomas v. West Jersey R. Co. 101 U. sums of money therein; that the course of S. 71, 25 L. ed. 950; Wiggins Ferry Co. v. business has been, in shipping grain to Chicago & A. R. Co. 128 Mo. 224, 27 S. W. Kansas City, for the shippers to draw drafts 568, 30 S. W. 430; Chicago & N. W. R. Co. against the shipments with bills of lading v. People, 56 III. 365, 8 Am. Rep. 690; attached, with the right to the consignee to Illinois C. R. Co. v. People, 121 111. 304, 12 inspect the shipments on the “hold tracks” N. E. 670.

before making payment of such drafts; that

about 57,000 cars of grain are brought into , south of Kansas City, said companies conthe Kansas City market and placed upon spired and confederated to adopt some device the "hold tracks" in the course of a year, or scheme in the way of an unlawful deof which about 67 per cent is brought in by livery charge for delivery at said Kansas the Santa Fe, Missouri, Pacific, Rock Island, City from the "hold tracks” to the point in and Burlington railway companies; that up Kansas City, Missouri, designated by the conto July 28, 1902, the universal custom at signee, which would enable them to haul out Kansas City and all cities west of the Mis- of Kansas City practically all the grain dessissippi river had not only been to place the tined east, north, and south thereof; that cars upon the "hold tracks,” but to take such scheme is oppressive to the public, & them from thence to the point of delivery burden to the Kansas City market, interin said city designated by the consignee, feres with shipments thereto, and places the without additional charge for so much of consumers, merchants, and people of that the carriage as passed over the tracks of the city, and those there dealing in grain, at a initial carrier or the tracks used by it; disadvantage in attempting to compete with that switching charges over the tracks of the eastern, northern, and southern marconnecting lines were made, averaging $3 kets; that the result of the combination and per car; that forty-eight hours' free time conspiracy is to divert grain from the Kanfor inspection, sale, and delivery of cars, sas City market, which legitimately would after arrival on "hold tracks," is allowed, flow to the said market, or pass through the a charge of $1 per day per car being there. same for sale and ultimate disposition; after charged for deņurrage; that the grain that said grain is concentrated at western coming to Kansas City is largely sent to points and shipped over said lines to points elevators for cleaning and grading and south, east, and north of Kansas City; that subsequent shipment out; that there are a the device and scheme so adopted was this: number of lines of railway, of which Kansas That said four through lines would make City is the western terminus, which are the an extra charge, called a "reconsignment competitors of respondent and the other charge," of $2 per car for delivering any through lines above mentioned for traffic dés-car of grain in Kansas City, Missouri, at tined from or through Kansas City to east- any connection with any other railroad, or ern and southern points, and such. com- at any warehouse or millor elevator or panies seek to carry a part of the grain private industry therein, in addition to the brought into Kansas City by respondent to switching and demurrage charges herein. points east, south, and north of Kansas before mentioned, and in addition to the City; that respondent and other through freight charge made for carrying such grain lines use every effort and endeavor to carry to the consignee at Kansas City; that notice all the grain brought through or to Kansas thereof was given, making said charge efCity by them from points on their lines to fective on the 28th day of July, 1902; that points east, north, and south of Kansas said charge is ultimately paid by the proCity; that, if they succeed, competition be- ducer, places the Kansas City market at a tween the various railroads for the haul disadvantage as compared with other coneast, north and south of Kansas City will centrating points west of the Mississippi be destroyed, which competition is beneficial river, and is wholly unwarranted by law; to the public; that the Burlington, Mis- that said reconsignment charge is absorbed souri Pacific, Santa Fé, and Rock Island or refunded if grain coming into Kansas railway companies are the only companies City over one of said four lines is taken out having lines extending from the west of said city east, north, or south upon any through Kansas City, extending east there of the other of said four lines, but not if it of, and reaching the Gulf ports and the goes out over any other line; that the effect ports upon the Great Lakes; that said four of said absorption or refunding of said companies have adopted the practice of hav- charge is to create a monopoly in the buy. ing large elevators constructed on their ing, selling, and dealing in grain in favor lines in the heart of the grain producing of those who can and will ship out of country, for the storage of grain, for the Kansas City over one of said four lines; purpose of having such grain carried over that the scheme and plan aforesaid is a distheir lines for the longest possible distance, crimination in Kansas City, Missouri, in and to said Gulf and Lake ports, and they charges and facilities between transportaseek to impose a reconsignment charge at tion companies and individuals, contrary to Kansas City of a sufficient amount to deter the laws of the state of Missouri; that an producers of grain from shipping the same exclusive right and privilege is thereby givto the Kansas City market; that to protect en to shippers out of Kansas City over said themselves against those producers and four lines, contrary to the Constitudealers who will not ship over the lines of tion and laws of Missouri; that said said four companies to markets east and shippers have an

unlawful advantage

over those persons, firms and corpora- , which this court has authority or jurisdictions who do not so ship, and who are en- tion to inquire into or adjudicate concern. gaged in similar business under similar ing in this proceeding. circumstances and conditions at the same It is insisted by defendant that the infor. place; that the coinpetition of other rail- mation shows upon its face that it is proseroads for the transportation out of Kansas cuted solely for the vindication of private City of the 67 per cent of the grain or rights and the redress of private grievances, grain products received thereat over said in which the public has no interest, and four lines is thereby prevented; that said therefore this proceeding cannot be mainreconsignment charge constitutes dis- tained. Upon the other hand, it is assertcrimination against the locality of Kansased that there is nothing in the information City, because no such charge is made upon to justify such claim, but, even if there was, grain or grain products transported to any this court has no power to interfere with other city in the state and afterwards trans- the determination of the attorney general, ported therefrom; that under the laws of upon an information of this character, that the state it is the duty of every railroad públic, as distinguished from the private, company to deliver grain at every point interests are involved. We concede that designated by the consignee on the line of the attorney general ex officio exercises his such road, including crossings with other own discretion, and without leave of court lines, without discrimination; that the re- has the right at any time to file in the susult is that the respondent is illegally preme court an information in quo warranto charging $2 on each car of grain shipped to wherein matters of public interest are inKansas City, Missouri, for delivering the volved; but that he cannot maintain such a same in said city to the point on its lines proceeding solely for the vindication of designated by the consignee, under the false private rights or the redress of private and fictitious pretense that it has the right grievances, in which the public has no to place the car upon the "hold tracks,” interest, we think clear; and, if these facts notify the consignee of its arrival at such appear from the information, they may be point, and then, when he designates the taken advantage of by return, or special place of delivery, to make such charge for plea to the order to show cause. The chief such delivery, by calling it a "reconsign- grounds of complaint are those affecting the ment charge," and then refund same only rights of certain grain dealers in Kansas to the shipper or consignee who will ship City, and certain railroad companies whose from Kansas City, Missouri, over their termini are at that city, who deny the right lines, or any one of the said four through of defendant to make a particular charge, lines, a like amount of grain or grain prod. called a "reconsignment charge,” on grain ucts. The defendant filed answer and re- and grain products made by four through turn to the information in which are raised lines of railroad, for a service actually renboth issues of law and of fact.

dered after delivering the grain upon The issues of law, upon which the cause certain tracks known “hold tracks," is now submitted, are as follows: (1) which said service had been performed That plaintiff ought not to have or main- gratuitously prior to July 28, 1902, and tain its aforesaid action, because it appears which said charge absorbed or was refunded upon the face of said information that the in the event of reshipment out of said city object sought thereunder is the vindication over any of said four lines of road. We of purely private rights and the redress of are unable to see wherein the public has private grievances, in which the public has any interest in the “reconsignment charge,” no interest, and for which there is full and which is paid solely by certain grain deal. adequate remedy both at law and in equity, ers and railroads whose western termini are available to each and all of the parties inter-at Kansas City for an additional service not ested therein; and an original proceeding covered by the freight into that city, and by information in the nature of quo war- which they have the right to charge, proranto is not a proper remedy therefor, and vided it be nothing more than what is this court has no jurisdiction over said mat- reasonable for the services rendered. ters in this proceeding. (2) That there is In Spelling on Injunctions and Other no usurpation or unlawful exercise of any Extraordinary Remedies, 2d ed. vol. 2, § franchise, right, or privilege set out in said 1773, it is said: “It has been stated that information, and no sufficient facts stated quo warranto originated as a prerogative therein to constitute a cause of action, or remedy, and has always retained the char. to entitle inforniant to the judgment acter as a judicial means for the assertion prayed, or any relief whatever, in this pro- of sovereign rights. It is, and always was, ceeding. (3) That there is no unlawful a mandate issuing from or at the instance exercise of any rights, privileges, or fran- of the sovereign against an individual or chises shown in and by said information, corporation, requiring him or it to show quo

as

« PreviousContinue »