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plaint; third, overruling the demurrer to the second paragraph of said complaint; fourth, sustaining demurrer to the second paragraph of answer; fifth, sustaining demurrer to the third paragraph of answer; sixth, sustaining demurrer to the fourth paragraph of answer; seventh, sustaining demurrer to the fifth paragraph of answer; eighth, overruling motion to modify decree; ninth, overruling motion for new trial. The evidence given upon the trial is brought into the record by bill of exception.
Plaintiff alleged in the first paragraph of its amended complaint that it is a corporation organized and doing business under the laws of the state of Indiana; that for three years last past it has been engaged in the business of carrying money, merchandise, and other articles over the Southern Indiana Railroad Company's line in Indiana; and since the 16th day of May, 1901, up to the present date it received and agreed to receive compensation for such services. Since then continuously it has been engaged in consigning to defendant and other express companies such things so carried by it for transportation by such express company over railroads in the state of Indiana; that during all the time mentioned it has been and still is a responsible express company; that on the 16th day of May, 1901, it had and now has a paidup cash capital of $50,000 and no liability existing against it. It is charged that it is a joint stock association, and for 20 years last past has been engaged in the state of Indiana in carrying over railroads money, merchandise, and other articles for hire; that said defendant is and during all of said time has been granting to the Adams Express Company, the Southern Express Company, and other express companies, facilities, accommodations, and usages in the receipt, carriage, continuance of carriage, and delivery of such express matter, and terms, credits, advantages, and usages in the receipt, transmission, and delivery of such express matter which the defendant has continuously refused, and still refuses, to the plaintiff; that said advantages consist in the defendant's maintaining business connections with such other express companies whereby said defendant received from them, and they received from defendant, express packages and each paid the carrying charges of the preceding carrier and each completed the carriage, and delivered such articles and collected from the consignee, and retained all the charges of itself and of each preceding carrier. The first paragraph further charges that the plaintiff continuously and daily from the 16th day of May, 1901, tendered to the defendant express matter to be received and accepted by said defendant under equal terms and under the terms, credits, etc., in the receipt, transmission, and delivery of all express matter at all of said times granted by the defendant to said other express companies; that the defendant has refused to receive said
packages and by so refusing, unlawfully and unjustly discriminates against this plaintiff. The paragraph then sets out and assigns three specific instances of packages of express matter tendered and refused on May 30, 1901, to wit: First. A package from Seymour, Ind., consigned to Edward Corr, of Bloomington, Ind., and carried by plaintiff company to Bedford and there tendered to the defendant company, which the latter refused to receive and accept. Second. A package from Freetown, Ind., consigned to Noble Moore, at Mitchell, Ind., which was carried by plaintiff to Bedford, and tendered to defendant company and by it refused. It is averred that defendant's line passes through Bloomington and Mitchell, Ind. Third. A package from Selma, Ind., consigned to Dr. W. H. Livingston, Danville, Ind., and carried by plaintiff to Bedford and at that point tendered to defendant, and by it refused. That defendant's line extends from Bedford to Danville, Ind., and that all the aforesaid packages were received by the plaintiff in the usual course of business. It is alleged that along plaintiff's line there are, and for months past have been, 30 stations where it has maintained agencies; that the railroad over which the plaintiff maintains its line is over 160 miles in length, and that, at each of its said agencies, said plaintiff has since May 16, 1901, daily received express packages which are consigned to persons in divers cities and towns in the state of Indiana, in which the defendant had and has agencies and to which its line runs; that each day thereafter the plaintiff will receive along its line packages. It is further charged that the defendant threatens to continue to refuse packages tendered to it by the plaintiff, and will refuse to pay plaintiff's carrying charges, and will refuse to complete the carriage of such packages, and will refuse to receive from the consignee all the carrying charges, and will refuse to receive from plaintiff such packages and pay the carrying charges accrued thereon, unless enjoined from so doing; and that thereby the plaintiff will suffer irreparable injuries, the amount of which is impracticable to compute or ascertain, but which does not exceed the sum and value of $1,500. The paragraph closes with the prayer for a mandatory injunction on the final hearing.
The facts alleged in the second paragraph of the amended complaint are virtually the same as in the first, except that it contains fuller allegations as to the character of the plaintiff's incorporation. It avers that the plaintiff is a corporation organized in pursuance to the statutes of the state of Indiana, and that its purpose and business is to receive and speedily forward, deliver, and transport over lines of railway and other public highways, by means of public and private conveyance, under the care of special messengers or otherwise, goods, etc., and to receive and forward for collection bills, notes, etc., and upon receiving payment to
return the money to the consignor and also to receive and forward all articles of trade, etc., with the bill and charges of the shipper attached thereto to be collected, etc., and to return the amount of the charges to the shipper. Also to perform for the public all offices that by usage are incident to the forwarding business by the class of carriers known, recognized, and designated by the public as "Express Carriers." It is further alleged in this paragraph that "defendant received from all other express companies, except plaintiff, and from all persons, express matter for delivery on its lines and at its offices without the prepayment of the charges for transportation, but collected the same from the consignee."
Defendant, in the second paragraph of its answer, substantially alleges that it is a copartnership and that, under the name of the American Express Company, it is, and for 20 years, has been, engaged in the business of an express carrier in Lawrence county, Ind., and has carried, and still carries, money and other articles for hire on certain railroads in said state, and especially a railroad running through the city of Bedford and extending to Danville, Bloomington, and Mitchell, in said state of Indiana. It is alleged that the defendant's express business during the time aforesaid extended and still extends over railroads by connections over uninterrupted routes through the state of Indiana and into the states of Ohio, Pennsylvania, New Jersey, New York, Michigan, Illinois and other states of the United States; that during all of said time it has received and still receives and agrees to receive compensation for its carrying services; that its routes and lines of express business connected at various points in Indiana and other states with the lines and routes of other express carriers doing a like state and interstate express business, to wit, the United States Express Company, Wells-Fargo Express Company, Southern Express Company, and other express companies; that during all of the aforesaid time the defendant did, and still does, under agreements made between it and the said other express companies respectively, receive from and deliver to each of them in the state of Indiana both infrastate and interstate express matter, and did and does advance to each of them their accrued charges thereon and did and does receive from them its own accrued charges on express matter delivered by it to them.
This paragraph further charges that the defendant, on delivering to the consignee such matter, transferred to it, collected and collects from said consignee all accrued express charges of itself and all preceding carriers; that it did not, and does not, so receive express matter from other carriers or deliver to them except in cases where there is an agreement with them; that such agreement embraced both infrastate and interstate business; that without such agreement re
specting interstate business no agreement upon the subject of interchange business would have been made by the defendant; that such agreements secured the defendant a guaranty of repayment of such accrued charges in case the consignee refused to pay them, and in such case the agent of the transferring carrier did pay to the defendant's agent receiving the transfer the charges advanced by and those earned by defendant if a claim for same was made within 60 days; that the agreement contained a stipulation that on packages of seven pounds or less the through rate over the two or more lines should not be greater than either company would charge for its carriage for the same number of miles had either company singly carried the same, and that this through rate should be equally divided between the carriers, the odd cent, if any, being taken by the company making the delivery to the consignee; and that within the last five years there has been no other custom, usage, or arrangement between defendant and any other express company respecting interchanging business.
The paragraph further avers that the plaintiff did not at any time before this suit was commenced, and especially on the day it tendered to defendant the packages mentioned in its complaint, have any agreement with the defendant respecting interchange business and up to the time of such tender the plaintiff and defendant had not interchanged express matter under any reciprocal agreement and plaintiff had not offered and did not offer at the time of said tender to enter into any such agreement, and it did not at the time of such tender offer to pay defendant's charges for carrying said packages, and did not offer to guaranty to defendant the repayment of plaintiff's accrued charges or defendant's charges to be earned in the event that it could not be collected from the consignee, and it did not offer to put in force between the plaintiff and defendant a through rating and division of the through rate similar to the rating and division thereof in force between the defendant and such other express companies; that if the provisions of the express companies statute of Indiana, approved March 7, 1901 (Burns' Ann. St. 1901, §§ 3312b and 3312f) required the defendant under these circumstances to receive the packages tendered and to advance plaintiff's accrued charges thereon and to so receive all similar packages so tendered by plaintiff, then it is alleged that the said statute is void, because it is in violation of the following provisions of the Constitution of the United States, to wit, section 8 of article 1 and section 1 of the fourteenth amendment thereto, and in violation of the following provisions of the Constitution of Indiana, to wit, section 21 of article 1 and section 23 of article 1, and that unless the provisions of said statute be so construed, plaintiff can
not have and maintain this action. Wherefore judgment is demanded.
The third paragraph of the answer substantially charges that the defendant is a joint stock association or copartnership, usually called an "express company," not organized under the laws of Indiana, and that it is regularly engage and has been since March 29, 1879, continuously in the business of carrying money and property over and upon railroads in the state of Indiana; that it agrees to receive and does receive compensation therefor, and was so engaged in said state prior to the time when the statute in relation to foreign express companies (sections 3306, 3308, Burns' Ann. St. 1901) was enacted; that upon the taking effect of the aforesaid act and long before May 16, 1901, the defendant duly and fully complied with section 2, c. 56, p. 146, of said act of 1879 by executing and filing in the office of the recorder of the county of Lawrence, state of Indiana, the "agreement" mentioned in that section, authorizing process issued against the defendant to be served upon its express agents and further authorizing judgment to be rendered thereon in personam against the defendant copartnership in such actions, all in the manner as is provided in said section; that continuously since the filing of said agreement the defendant has, in pursuance of the rights and privileges secured to it by the said act of 1879, enjoyed such rights and privileges in the transaction of its express business in said state of Indiana and said county of Law rence; that on the 15th day of May, 1901, at midnight of said day, the Secretary of State of the state of Indiana certified as then in force said statute, approved March 7, 1901; that the defendant's acceptance of the pro visions of the said act of March 29, 1879, became a contract between the defendant and the state of Indiana, which was, on May 15, 1901, and still is in full force, unless said act of March 7, 1901, which attempted a repeal of said act of 1879, and attempted to annex conditions to defendant's right to transact an express carrier business in Indiana different from those defined and authorized by said act of 1879, be a valid statute of Indiana; that the right to have and maintain this action rests wholly upon, and does not exist without, the provisions of said act of 1901; and that said act is null and void because under the facts herein alleged it violates section 10 of article 1 of the Constitution of the United States in that it impairs the obligation of said contract between the defendant and the state of Indiana.
Wherefore judgment is demanded.
In the fourth paragraph of answer the defendant averred that it is a copartnership and association of persons, usually called an "express company," and had been for five years in the business of carrying money and property over and upon railroads operated 78 N.E.-65
in Indiana and in said Lawrence county: that in receiving and agreeing to receive compensation for such carriage the Southern Indiana Express Company did tender to the defendant the express packages mentioned in the complaint for continuance of carriage from the said city of Seymour to destination, but that such tendering company did not pay or offer to pay defendant's charges for such carriage, and did demand from defendant said tendering company's accrued charges for the carrying of said packages to Bedford, and did not offer to guaranty defendant against loss of either of said charges in case the consignee would not pay them, and thereupon the defendant declined to receive and carry said packages and to advance said accrued charges; that said Southern Indiana Express Company was then a corporation organized and existing under the laws of the state of Indiana, but was not a responsible express company; nor an express company of any kind, because there never had been a statute of Indiana, authorizing the incorporation of express companies; that said company, by its certificate of incorporation and articles of association, declared itself to be organized as a forwarding express company in pursuance of the statutes of Indiana relating to voluntary associations and corporations, which articles were filed June 22, 1898, in the office of the Secretary of State of the state of Indiana, and there was then but one statute authorizing the incorporation of forwarding companies, viz., subsection 15, § 1, c. 126, p. 291, of the voluntary association act of 1895 which reads: "To organize forwarding and commission companies and to own and operate wharf boats in connection therewith upon any of the rivers within or bordering upon the state of Indiana;" that said company was incorporated in pursuance of said subsection, and not otherwise; that it, in assuming to exercise the franchise of an express company common carrier, and to transact an express carrier business, as especially touching the express packages mentioned in the complaint, acted wholly ultra vires its charter and could not and did not legally bind its assets and property, although in that behalf it attempted to act and claimed to be acting as a corporation, and not as a copartnership or otherwise. The paragraph closes with a prayer for judgment.
The fifth paragraph of the answer alleges that the defendant is a joint stock company organized under the laws of the state of New York more than five years before the commencement of this action, and was not incorporated anywhere, and was not organized in the state of Indiana; that, during all of that time, it was a common carrier of goods for hire over various railroads of many of the states of the United States and over a railroad in the city of Bedford in Lawrence county, Ind.; that, prior to the commencement of this action, the plaintiff was doing
an express carrier business over the Southern Indiana Railroad through the city of Bedford to the city of Terre Haute, in the state of Indiana; that after May 15, 1901, plaintiff made a general demand that defendant should receive at junction points from plaintiff express packages carried thereto by it and destined to points on defendant's line and, immediately upon defendant's receipt thereof, that the defendant should pay plaintiff's accrued charges thereon, and that defendant should accept such packages without prepayment of defendant's charges or without a guaranty of such payment if the consignee should not pay them, and without agreeing that on packages weighing seven pounds or less the freight charges should be the same as though it were to be carried only over a single express route, and that this through rate should be equally divided between plaintiff and defendant, the odd cent, if any, being taken by the company completing the carriage,
Said paragraph further charges that up to the time of plaintiff's said general demand and of the tender of the particular packages mentioned in the complaint, the defendant had not by custom, usage, contract, arrangement, agreement, or otherwise, or in fact ever accepted of another common carrier a package like those in question for continuance of carriage or delivery where such tendering carrier had not (1) made with defendant a through rate from point of origin to point of destination on all packages, which rate was not greater than the single rate of either carrier had the whole carriage been over but one line; (2) had not made an agreement for an equal division of such through rate; (3) had not agreed to refund to defendant any accrued charges that defendant might advance to it if not collectible from consignee; (4) had not agreed to pay defendant its charges on the package if not collectible from the consignee; and (5) had not agreed that if defendant should tender such other carrier like express matter for completion of carriage, to make one through rate thereon, divide such rate equally, advance defendant's accrued charges and secure the payment to it of all uncollectible charges by defendant's guaranty of collection.
It is further alleged that the plaintiff, making said tenders to defendant, did not offer to do any of the said five things hereinbefore mentioned, and did not intend to do any of them, but demanded that defendant carry the tendered packages on credit as respects defendant's charges thereon, and advance to the plaintiff the latter's charges which were its full legal rate, being 25 cents on each of said tendered packages instead of 12 cents, the amount receivable on a through rate by any of the said other express companies and without any obligation on plaintiff's part to refund either of said char
ges to defendant if not collectible from the consignee; that when making said tender plaintiff did not have a purpose to make such through rating, division thereof or reimbursement, but intended to take the facilities it demanded and which defendant refused without itself making a reduced or through rate and without paying or agreeing to pay either of said charges if the consignee should refuse to pay them, and therefore the defendant charges that while the privileges, accommodations and facilities were such as this defendant granted other express companies, yet the conditions upon which the demand was made by plaintiff were different from and more favorable to the plaintiff than those that then existed or had heretofore existed in any case where the defendant had taken such express matter from any other carrier for completion of carriage, and that such difference of conditions was to the advantage of the plaintiff and to the disadvantage and injury of the defendant; that if the act of the General Assembly of March 7, 1901, shall be construed as requiring defendant to submit to such unequal conditions and to acquiesce in such advantage to plaintiff, then said act is in contravention of section 1 of the fourteenth amendment to the Constitution of the United States, and is therefore void; that if said act shall be so construed, then plaintiff is not entitled to the relief for which it prays. This paragraph closes with a demand for judgment.
The statute upon which this action is based, by its title, professes to relate to express companies, "defining their duties, prohibiting discrimination and combinations and declaring certain acts to be unlawful," etc. So much of the first section of the act of 1901, supra, as is material to the question involved in the case at bar is as follows: "That all copartnerships, associations of persons, individuals, joint stock associations, corporations, or companies, usually called "express companies," now engaged, or that may hereafter engage in the business of carrying or transporting money, merchandise, or other articles, over or upon any of the railroads operating in this state, and receiving or agreeing to receive compensation for such services, shall grant to each and all consignors, including other responsible express companies as consignors, equal terms, facilities, accommodations, and usages, in the receipt, carriage, continuance of carriage, and delivery of money and property usually carried by express companies, and they are prohibited from granting to any one carrier, class, or combination of carriers, any terms, credit, privileges, advantages, usages, accommodations, or facilities in the receipt, transmission or delivery of express matter that they do not grant to all others, and the granting of any credit, privileges, terms, usages, facilities, or advantages to any one person, carrier, company or combination or class
of companies, carriers or persons, that are not granted to all other responsible carriers or persons shall be, and is hereby declared unjust and unlawful discrimination."
Section 4 of the act provides that: "Any such carrier, corporation, copartnership, or association failing to comply with any of the provisions of this act or violating any of the provisions thereof, shall, upon being convicted of any such failure or violation in an action to be brought in the name of the state of Indiana by the prosecuting attorney of the county in which the offense occurs, forfelt and pay to the state five hundred dollars for each offense, and the commencement of such action, service of process and proceedings therein shall conform to the rules, governing proceedings in civil actions. And such offending carriers, corporations, associations, or copartnerships shall also be liable in any court of competent jurisdiction in a civil action to be brought by and in the name of any person injured by any violation of this act, and such person may recover threefold the amount of his actual damages shown, and shall also have a remedy by injunction in any circuit or superior court of this state to command any of the acts or things required to be done and to prohibit any of the acts forbidden by this act, and the word 'person' herein, shall be construed to include any corporation, copartnership, or association of persons."
The constitutional validity of the statute upon which this action is based is assailed by appellant's learned counsel for various reasons. It is asserted that sections 1 and 4 are each violative of section 1 of the fourteenth amendment to the federal Constitution for the reason, first, that they attempt to deprive appellant of its right to demand prepayment of its carrier charges, which right, as it insists, it has under the common law and which is a property right; second, they attempt to require an express carrier which desires to advance accrued charges to one connecting carrier to make such an advancement to all responsible carriers and by so doing the statute attempts to compel the making of a "forced loan," which amounts to the taking of the property of one person, and giving it to another; third, it attempts to take from express companies their commonlaw right to contract wih reference to interchange traffic and such right it is asserted is one of property. This same statute was involved, and in the main the same stitutional objections thereto were advanced and urged against it, in the case of Adams Express Co. v. State, 161 Ind. 328, 67 N. E. 1033. In fact, the questions raised in that appeal to all intents and purposes are the same as those presented and argued in the case at bar. They were fully considered by the court and held to be untenable, and the constitutional validity of the statute was sustained, and we are satisfied to accept the
decision in that appeal, so far as applicable, as a ruling precedent upon the points or questions raised and discussed in this case. It is evident that each paragraph of appellee's complaint is founded upon sections 1 and 4 of the act in controversy. The pleader does not attempt under either of these paragraphs to invoke any remedial right or rights other than those awarded by the provisions of the statute. Therefore, the points advanced by appellant's counsel that neither paragraph discloses any ground for equity jurisdiction, for the reason that it appears that appellee has an adequate remedy at law in the recovery of damages for the wrongs of which it complains, and for the further reason that, under the facts alleged, it has not brought itself within the well-recognized maxim, which avers that "he who seeks equity must do equity," do not apply.
It will be seen that under section 4 of the act, in addition to the actions thereby provided, one in the name of the state for a penalty, and the other by the party injured to recover threefold the amount of the actual damages sustained, the Legislature deemed it proper to expressly provide that such person "shall also have a remedy by injunction in any circuit or superior court of this state to command any of the acts or things required to be done and to prohibit any of the acts forbidden by this act." The acts required to be done, as declared by section 1, are that such express companies "shall grant to each and all consignors, including other responsible express companies as consignors, equal terms, facilities, accommodations, and usages, in the receipt, carriage, continuance of carriage, and delivery of money and property usually carried by express companies." The acts which such companies are forbidden to do are "from granting to any one carrier, class, or combination of carriers, any terms, credits, privileges, advantages, usages, accommodations, or facilities in the receipt, transmission or delivery of express matter that they do not grant to all others." The Legislature clearly has the right by statute to enlarge the equity powers of a court, and thereby authorize it to grant equitable relief in matters or cases in which, in the absence of such statute, the court would have no equity jurisdiction. Eilenbecker v. District Court, etc., 134 U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801; Arment v. Hensel, 5 Wash. 152, 31 Pac. 464; Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. R. A. 193, 14 Am. St. Rep. 446.
By its averments each paragraph of the complaint shows that the appellant has violated or declined to obey the provisions of section 1 by refusing to grant to appellee "facilities, accommodations, and usages in the receipt, carriage, continuance of carriage and delivery of express matter," etc. The pleading specifies what constituted the accommodations and facilities, etc., granted by appel