CHICAGO, ST.P.; M. &0. RY. "CO. ". BECKER.

883'

Iowa rates he deferred from June 28th to July 5th, to which this an"; swer was sent: "Answering your message of last evening, time extended to July 5th. W. W. AINSWORTH, Sec'y, "-and a new notice designating July 5th was sent to the papers for publication, which notice was published once before the restraining order of this court was served upon fendants, and then the publication was discontinued. It is insisted by defendants that this action was taken, not by the board, but by one commissioner acting independently, the others neither consenting nor being present or aware of it. Upon this matter there was considerable discussion, both as to the sufficiency of the notice, the number of times publication was required, the fact of the two publications of the first notice, the power of one commissioner to make the change, etc. I deem it unnecessary to consider these, nor do I express any opinion upon the rights of any other corporations than the four who united in the telegram to defendants. An official hoard acts through its secretary. This complainant, with others, addressed an official communication to the board. It received an answer in the regular waY,-one signed by the secretary as secretary. Equity and good faith forbid going behind such official notification. These are all the matters. that require notice. A preliminary injunction will issue in accordance with the terms of the restraining order, and complainant will give bond in the sum of $50,000 to answer for all damages which the defendants or any persons injured by this restraining order may sustain if it shall turn out finally to have been iIll properly issued.

CHICAGO,

ST. P., M. &: O. Ry. Co. v. BECKER et al., Railroad &: Warehouse Commissioners.
(CirCUit Court, D. Mz'nnesota. July 28,1888. \

1.

COURTS-FEDERAL COURTS-SUITSAGAmST STATES.

A suit by a railroad company chartered in one state, in a federal court, to restrain railroad commissioners of another state from putting in force a schedof the eleventh ule of rates. is not a suit against a state, within the amendment to the constitution of the United States. Railway Co. v. lJeu. ants, Stllt State railroad commissioners cannot enforce a schedule of rates for switching cars in a city, which fixes the compensation at less than the actual cost t() the railroad company for the work. "

2.

RAILROAD COMPANIEs--'-REGULATION OF CHARGES-STATE COMMISSION-REASONABLE RATE.

In Equity. Final hearing on pleadings and proofs. Bill for an injunction by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against George L. Becker, Horace Austin, and John L. Gibbs, as the" r.a.ilroad and warehouse commission for the state of Minnesota. For proceedings On preliminary motion, see 32 Fed. Rep. 849. From the evidence introduced by complainant (the detimdants intra-

884

FEDERAL REPORTER.

duced none) the following facts appear: The complainant made no charges for switching on its own line for business received over its own line, or destined for certain competitive points, but for switching cars to and from connecting railroads in Minneapolis to mills, warehouses, etc. During the month of December, 1887, which was a fair average month, complainant handled 4,387 cars, receiving switching charges on 608, amounting to $666. 501 cars were switched for $1 per car; 104 at $1.50 per car; and 3 at $3 per car. The expenses for yard service, after deducting for passenger service, amounted to $2,081.04; for track maintenance and repairs, $577.83; expenses of train-men, fuel, oil, etc., $2,381.96; rent of 3 engines, at $24 per day, $722.30. Total cash outlay, $5,763.13. Cash cost of handling each car, on the basis of the whole number handled, $1.31. Deducting the value of the Use of the engines, and allowing nothing therefor, and the cost per car is $1.14. If the rate, as fixed by the commissioners, had been complied with, the complainant would have received as its proportion of the receipts, as compensation for switching the 608 paid cars, the sum of $347.50, or a little over 57 cents per car. Thecomplaillant's secured mortgage debt May, 1888, was $23,112,234.18, and its capital stock consists of 126,., 468 shares preferred stock, par value, $100, and 214,032 shares cammon stock, of the same par value. Its bonded debt amounted to $17,.. 323.53 per mile, and its preferred stock to $9,478.75 per mile. Of the bonded debt all but $500,000 draws 6 per cent. interest, and the company pays 6 per cent. dividend on the preferred stock,and hai? never' paid any dividend on the common stock. The property owned by com· plainant and used by it in the switching business in Minneapolis, not including rolling stock, cost complainant $527,881.91, and is now estimated to worth $1,000,000. J. H. Howe and S. L. Perrin, for complainant. The enforcement of the rates as fixed by defendants is a confiscation of complainant's property. The supreme court of Minnesota (State v.Railway Co., 37 N. W. Rep. 782) held that the decision of the,commissioners as to reasonable rates is final and conclusive, and in proceedings to enforce compliance, the law neither contemplates nor allows any issue or inqutry·ull,tq their equality or reasonableness. The statute contains no provision requiring notice to the carrier of the proceeding to fix rates, nor is the carrier permitted to be heard before the commission or any court. The order herein reduces complainant's revenue. The want of the provision as to notice renders the whole section unconstitutional. Stuart v. Palme1', 74 N. Y. 183; Str;tte v. Railroad Co., 36 Minn. 402,31 N.W. Rep. 365; Langford v.County Gom'1's, 16 Minn, 375; Railroad Tax Gases, 13 Fed. Hep. 722. ])avidson v. New 01'leaws, 96 U. S. 9.7, 104, 105; Gar'vin v. Daussman, 16N!. E. Hep. 826; Patten v. Green, 13 Cal. 328; Cooper v. Board of Public Works, 108 E. C. L. 181. The proof shows ,that a portion of the switching consis,tedin'i'eceiving cars loaded with freight, from other states, from and delivering it to the consignel's. This is interstate commerce. See.f1i,bbons v. Ogden, 9. Wheat. 1; The Daniel Ball, 10 Wall. 557; Hall v. De Guir,95U. S. 485: Mobile v. Kimball, 102 U. S. 691. This statute fixes the cost Of transportation, and there is no difference between a statute regulathigtM charge for transportation, and one levying a tax for the benefitoUhe state.

CHICAGO, ST. P., M. & O. RY. CO. fl. BECKER.

Railroad .co. v. nlinois, 118 U. S. 537. 7 Sup. Ot. Rep. 4; Steam-ShliJ) 00. v. Pennsylvania. 122 U. S. 326. 7 Sup. ct. Rep. 1118; Railroad Co. v. Pennsylvania. 15 Wall. 232; Henderson v. New Y01'k, 92 U. S. 259; Ferry 00. v. Pennsylvania. 114 U. S. 196. 5 Sup. Ct. Hep. 826; Robbins v. Shelby, 120 U. S. 489, 7 Sup. Ct. Rep. 592; Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep. 857. Conceding the right of the state to regulate complainant's rates, the right to regulate does not include the right to destro)'. Stone v. T1'Ust Co.· 116 U. S. 307, 331, 6 Sup. Ct. Rep. 338, 345. The construction given by the state supreme court becomes part of the statute when the latter is under consideration by the United States supreme court. ])ouglass v. Pike County. 101 U S. 686. Under the decision of the state court the carrier mustoperate his road for less than expenses. He must obey the law, or forfeit his charter for non-user. Attorney Gene1'al v.Railway Co., 36 Wis. 466; State v. Railway 00., 36 246, 30 N. W. Rep. 816; Redf. Rys. 605.

MOBes E. (]lapp and Mm'rison, Flannery &: Cook, for' defendant. This is apto'ceeding against dr.fendants in their official capacity, and is, in fact and ill' law, 'a suit aKainst the state of Minnesota, whose officers they are. State v. Railway 00., 37N· .w. 782; In re AYe1's, 123U. S. 443,8 Sup. Ct. Hep. 164; Poin.dexter v. G1·eenhow. 114 U. S. 270, 5 Sup. Ct. Rep. 903; U. S. v. Lee, 106 U. 8.196, 1 Sup. ct. Rep. 240. The right to regulate charges, by common carriers is a not a judicial, function. Munn v. nli· , nois, 94U. S. 113; Railway Co. V. Iowa. 1d. 155; Peik v. Railway 00., 1d. 164; Railway 00. v. Ackley. Id. 179; Railway 00. v. Blq,ke. 1d.180; Stone v. T1'Ust 00.,116 U. S. a07. 6 Sup. Ct. Hep. 334; ])ow v. Beidelman. 8'Sup. Ct. Rep, 1028. The defendants, officers of the state. acting unller a valid law. and within the-scope of that law, cannot be interfered with by a court.of eqUity. Moores v. Smedly. 6 Johns. Ch.28; Patterson v. Mayor. 1 Paige, 115; Jndd . v.Seaver. 8 Paige. 548; Mayor v. Meserole. 26 Wend. 132; Guest v. Oityof Brooklyn, 69 N. 506; Litahjield v. Register &: Receiver, 9 Wall. 575. ,The complainants have an adequateremedy at law. The evidence shows three classes of switehing: First. what is done free of charge, because of being shipped over complainant's road; sefJond. that which is done free of chargp., not because it is complainant's business, but because it goes to competitive points: and, third. that for which a charge is made. The first class 'shows the necessity for maintaining the SWitching facilities. Complainant is unable to state the amount of switching embraced in the second class. which. except for the fact that it reaches competitive points. should be charged for. In view of the fact that a portion of the SWitching which should be charged for is not charged for, and unknown. no reasonable estimate can be made, based wholly upon charging for the balance of the work. of what a reasonable charge for all the work would be. '
BREWER, J. This was a bill filed by complainant to restrain thedefendants fr6m putting in force a schedule of rates for switching services in the city of Minneapolis, in the state of Minnesota; the rate established by such schedule being one dollar per car as the maximum charge. The case is SUbmitted on pleadings and prpofs for final determination. The opiniMrecently filed by me in the case of v. Dey, ante, 866, Southern district of Iowa, practically disposes of all the questions in this case, and of course I need not repeat the views or the reasons given therein. A suit to restrain the railroad commissioners from putting in force aschEidule of rates is not a suit against the state,withil1

886

FEDERAL REPORTER.

the purview of the eleventh amendment. It is riot within the power of the state, directly or indirectly, to put in force a schedule of rates, when the rates prescribed therein will not pay the cost of service. In this case the defendant took no testimony, and. the complainant's tef:1timony shows that the actual cost of the service, that is, wages of employes, rent of engines, keeping the track in repair, exceeds per car by fourteen cents the amount allowed in the schedule as compensation. In other words, it costs complainant one dollar and fourteen cents per car to do the work, and the defendants propose toitllow it to charge only one dollar. "The state. cannot require a railroad corporation to carry persons or property without reward." Railroad Cammiasion Cases, 116 U. S. 331,6 Sup. Ct. Rep. 344. Whether this order of defendants is an interference with interstate commerce or not, is a question I need not decide. My Brother NELSON, when the application for a preliminary injunctionwas made to him, was of the opinion that it was not. The case of The Daniel Ball, 10Wall. 557, was relied upon by the complainant's counsel, but the defendants insist that the decision in Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, shows that this order was no interference with interstate comnierce, and, being later than the case in 10 Wall., in so far as it conflicts with that, overrules it.. But the caseof Cae v. Town of Errol, 116 U. S. 517, 6 Sup. Ct. Rep. 475, reaffirms the case in 10 Wall., and certainly makes it, a very serious question whether, when property has been put in a. car with the intent of shipping it outside of the state, it has not already commenced its interstate journey. However, I do not attempt to definitely decide this question, placing my upon the other grounds mentioned. A final decree will be entered in favor of the complainant,. as . prayed for.

BARBER fl. UNITED STATES.

(Di8trict Oourt, Jf. D. Alabama. November 28. 1887.)

1.

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'

UNITED STATES BY DISTRICT ATTORNEY.

DRAWING COMPLAINTS -

ApPROVAL

Where the United States district attorney examines and approves complaints drawn by a circuit court commissioner. the court will not reduce the commissioner's fees for the same on the ground that they were unnecessarily verbose, unlllss it appears that surplusage was inserted merely to increase fees.

2.

SAME-SEVERAL COMPLAINTS AGAINST SAME PARTY UNDER SAME STATUTE.

Where the commissioner, acting under instructions ofthe district attorney, draws complaints and issues warrants in more thlln one suit against the same party for violation of the same section of the statutes, he is entitled to fees in all the suits.

8.

SAME-ACKNOWLEDGMENT OF RECOGNIZANCES.

The commissioner is entitled to fees for acknowledgment of bonds incrim· inal cases, as the statute requires such acknowledgment, and fixes the fee at 25 cents; and Where the acknowledgments of the parties are taken separll.tely he is entitled to a fee for each acknowledgment.