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DISTRICT OF NEBRASKA.
THE KANSAS PACIFIC RAILWAY COMPANY,
AND THE DENVER PACIFIC RAILWAY
AND TELEGRAPH COMPANY,
vs.
THE UNION PACIFIC RAILWAY COMPANY.
In Equity,
BRIEF OF J. P. USHER FOR COMPLAINANT. .,
\ <ri"i •
Journal Steam Print, Lawrence, Kan.
f jr r \
|[n % Circuit |,ourt of % United |)tate&
DISTRICT OF NEBRASKA.
THE KANSAS PACIFIC RAILWAY COMPANY. AND THE
DENVER PACIFIC RAILWAY AND TELEGRAPH COMPANY,
vs.
THE UNION PACIFIC RAILWAY COMPANY.
IN EQUITY.
But for the magnitude of the questions now under con¬
sideration, the comprehensive statement of the facts and
law of the case by Mr. Woolworth, together with his concise
and unanswerable arguments, would render further effort on
the part of the complainants superfluous.
Justification for additional argument is only to be found
in the fact that there is involved in the decision of the
questions before the Court matters of the very highest
importance to the complainants and the public.
The further argument to be offered will be limited to two
questions, namely :
First. Do the complainants' roads constitute a branch of
the defendant's road within the purview of the several acts
of Congress relating to the Union Pacific Railroad ?
2
Second. If they do constitute such branch, what are the
duties and obligations of the complainants and defendants
to each other and to the public in respect to the operation
of said roads :
I. Are the Complainants' Roads a Branch of the
Union Pacific ?
The defendant denies that they constitute such branch,
because it appears by the bill that the Kansas Pacific Com¬
pany made an assignment to the Denver Pacific Company
of its right of way from Denver to Cheyenne, the point of
connection with the Union Pacific, and though this assign¬
ment was made pursuant to and by express authority of the
act of Congress of March 3, 1869, which declared that the
Denver Pacific should be a part of the Kansas Pacific road
for all the purposes now in question, yet because neither in
the title of the act of March 3, 1869, nor in the body of
that act is there any declaration that it is an amendment of
the Union Pacific Railroad act, it is alleged that the com¬
plainants have failed to show that their rniited line of road
is a branch of the Union Pacific. Defendant's claim is
that before the continuous road from Kansas City, via Den¬
ver, to Cheyenne can be adjudged to he a branch of defend¬
ant's road, it must appear that the whole stretch of road or
roads was constructed by the complainant the Kansas Pacific
Company ; that defendant had and has a vested right; that
such road should be so constructed. Briefly, the claim is
that the act of March 3, 1869, is, as to defendant, void; that
the Kansas Company had not the right under the general
power conferred upon it by the several acts of Congress to
make the assignment to the Denver Pacific Company, made
exhibit to the bill, nor indeed had Congress the constitutional
power to confer such right upon it. None will question that
the act of Congress of March 3, 1869, does in terms confer
the [power to make the assignment, nor that it is plainly
/
3
declared by that act that the roads when completed, as by
the act required, were to be a branch of the defendant's
road.
The argument is that though the right was reserved to
Congress in each of the acts of 1862 and 1864, to add to,
alter or amend them, yet as the act of March 8, 1869, did
not in terms purport to be an amendment, Congress ex¬
ceeded the powers reserved to it by those acts and, there¬
fore, the act of March 3, 1869, is to be held to have the
effect of making all former provisions for making the road
from the Kansas River a branch of the Union Pacific road
obsolete. If the Court shall adopt the view thus presented
as the law, it will necessarily decide that the declaration of
Congress in the second section of that act declaring that " all
the provisions of law for .the operation of the Union Pacific
Railroad, its branches and connections, as a continuous line,
without discrimination, shall apply the same as if the road
from Denver to Cheyenne had been constructed by" the
said Kansas Pacific Company, is nugatory and void. No
authority has been cited authorizing any such conclusion.
By the 18th section of the act of 1862, last clause, it is
provided that u Congress may at any time, havingx due
regard for the rights of said companies named herein, add
to, alter, amend, or repeal this act.'' Now, whether this
act of March 3, 1869, may be called an addition, alteration,
or amendment, is quite immaterial. It is certain that it was
only of and concerning one of " said companies named
herein,'' that is to say, in the act of 1862 ; and the sole
object of the act of March 3, 1869, was to expedite the
completion of the branch road through Kansas, via Denver,
to a connection with the defendant's road. Perhaps the most,
apt thing to say of the act is that it was an addition to the
acts of 1862 and 1864, but whether an addition, alteration
or amendment, the result is the same. It is no less an act
valid in all its parts, which it is not believed any court will
4
venture to disregard. As to the title, of the act of March
3, 1869, which does not express that it is the title of an
additional or amendatory act, no effect is to he given to that
which shall qualify or limit the words of the act.
Justice Field, in Hadden v. The Collector, 5 Wallace,
110, said :
" The title of an act furnishes little aid in the construc¬
tion of its provisions. * * * At the present day the
title constitutes a part of the act but it is still considered as
only a formal part; it cannot be used to extend or restrain
any positive provision contained in the body of the act."
Having all the time in mind the fact that Congress has,
by the act of March 1869, and the act of June 20,1874, in
direct terms declared that the complainants' roads constitute
a branch of the Union Pacific, it will now be shown that the
action of Congress in this respect has been legitimate and
wholly within its power to carry out and accomplish the
objects of the acts of 1862 and 1864, by what appeared at
the time to be necessary legislation. The 17th section of
the act of 1862, provided, among other things, that if " said
company or companies '' shall fail to complete <£ said road
and telegraph and branches within a reasonable time, * *
Congress may pass any act to ensure the speedy completion
of said road and branches.'' The object of the act is fully
and plainly expressed in the 18th section. It is there
declared to be a to promote the public interest and welfare,"
and to secure such object Congress reserved to itself the
right," at any time, having due regard for the rights of said
companies named herein, to add to, alter, amend or repeal
the act." Neither argument or authority need be invoked
to prove that Congress had the sole right to determine
whether the Kansas branch was being constructed within a
reasonable time within the meaning of section 17, and that
by providing for its more rapid construction by uniting the
powers of the Denver Pacific Company due regard was had
to the rights of all of said companies as provided in sec-
5
tion 18. The act of 1862 confers still further powers, not
before invoked. The last paragraph of section 15 is as
follows: 44 Whenever the word 'company' is used in this
act it shall be construed to embrace the words 4 their asso¬
ciates successors and assigns,' the same as if the words had
been properly added thereto." Whatever may be held to
be the full force and effect of this provision, it cannot be
denied that the intention of Congress was to secure the
construction of the roads mentioned in the act, and that
ample provisions were intended to be made so that through
the instrumentality of the companies named, either by them¬
selves or by one or more of them uniting wuth other compa¬
nies, the entire system of roads might be constructed. This
must be held to be the correct construction when section 10
of the act is considered. In that section it is provided that
the 44 Hannibal and St. Joseph Railroad, the Pacific Rail¬
road Company of Missouri," and the defendant 44 or either
of them on filing their assent to this act as aforesaid may
unite upon equal terms under this act with the said Kansas
company in constructing said railroad and telegraph." It
is evident from the whole act of 1862 that the leading
object of Congress was to secure the construction of the line
of railroad and branches without any special regard as to
who or what corporation should carry out its will. Without
going farther, it is believed there is no room for an argu¬
ment that the act of March 3, 1869, impaired any vested
right of the defendant. Whoever contends that that act
had such effect has failed to carefully read and properly
understand the acts of 1862 and 1864, with the numerous
clauses contained therein, all contemplating further legisla¬
tion as Congress in its wisdom should thereafter determine.
such acts it was not possible for any of the parties
accepting them to acquire a vested right against such fur¬
ther legislation as Congress might deem necessary to con¬
summate its object; much less could they have a vested right
in the matter now under discussion.
6
Judge Cooley, in his treatise on Constitutional Limita¬
tions, page 358, speaking of vested rights, says:
" But as it is a right which rests upon equities, it has its
reasonable limits and restrictions; it must have some regard
to the general welfare and public policy; it cannot be a
right which is to be examined, settled and defended on a
distinct and separate consideration of the individual case,
hut rather on broad and general grounds, which embrace the
welfare of the whole community, and which seek the equal
and impartial protection of the interests of all. * * * In
organized society every man holds all he possesses, and
looks forward to all he hopes for, through the aid and under
the protection of the laws ; but as changes of circumstances
and of public opinion, as well as other reasons affecting the
public policy, are all the while calling for changes in the
laws, and as these changes must influence more or less the
value and stability of private possessions, and strengthen or
destroy well founded hopes, and as the power to make
very many of them could not he disputed without denying
the right of the political community to prosper and advance,
it is obvious that many rights, privileges, and exemptions
which usually pertain to ownership under a particular state
of the law, and many reasonable expectations, cannot be
regarded as vested rights in any legal sense."
We will not waste more words upon this branch of the
subject. It is but too palpable that the legislation impaired
no right whatever of the defendant.
The action of Congress has been entirelv consistent with
O •/
its original expressed purpose, and wisely adapted to accom¬
plish its object. If at all it is possible for the mind to rest
in doubt in respect to the validity of the act of March 3,
1869, that doubt must be resolved in favor of the complain¬
ants ; it was long ago made settled law by the decision of
the Supreme Court of the United States in the case of
Ogden v. Saunders, 12 Wheat on, 2T0, that to justify a
Court in holding a statute unconstitutional, it must appear
to he so beyond all reasonable doubt ; and see Cooley's
Constitutional Limitations, 182.
7
Thus far this argument has proceeded upon the rights of
the parties and the power of Congress given and reserved by
the act of 1862. The amendatory act of 1864 proceeds
to carry out and make provision for the accomplishment of
the objects expressed in the act of 1862. It does not
repeal or make obsolete any of the provisions of the act of
1862 brought into this argument, and lest it might be
claimed that the act of 1864 was final and might be brought
forward as a weapon to defeat all further legislation which
Congress might afterwards find necessary to accomplish its
grand object, power was reserved in the last section of that
act to alter, amend or repeal it at any time. Under a simi¬
lar provision, in a statute of Massachusetts, it has recently
been determined by the Supreme Court of that State in the
case of the Metropolitan Railroad Co. v. The Highland
Street R. R. Co., 118 Mass., 290, that it was competent for
the Legislature to authorize one railroad company to run its
cars upon the tracks of another, making compensation to
that company for the use and wear of its tracks, but without
making it any compensation for the diminution of its profits
or the value of its franchise. And this was done by an act
which did not in terms purport to alter, amend, or repeal the
former act. This Massachusetts case seems to be directly in
point. Additional force will be given to this argument when
the Court shall take into consideration the objects and pur¬
poses of Congress as defined by Mr. Justice Davis in the
case of the United States v. this defendant, 1 Otto, 72, and
by Mr. Justice Strong, in the case of this defendant v. Hall,
et al., id. 343. It would swell this paper to unreasonable
proportions to carry into it the words of the court in those
decisions declaring the objects and purposes of Congress.
It is but too apparent that the act of 1869, in all its parts
purports to be and is an act to advance and accomplish the
expressed objects of the acts of 1862 and 1864.
I
8
At the oral argument, counsel for the defendant ingenu¬
ously and properly declared that in advocating the cause of
the defendant their object was, if so be they might succeed, to
continue to hold through the State of Iowa and for its
advantage the transcontinental commerce of the nation.
No exception is taken to the expression of the desire natural
to us all to endeavor, as far as we lawfully may, to aggran¬
dize the particular locality in which we dwell. It has long
been apparent, even to the common observer, that the con¬
troversy between these parties bore along with it geograph¬
ical as well as financial questions. The entire commerce of
the Union Pacific and California roads passing through
Iowa caused satisfaction in that locality. That State was
not likely to complain of a breach of the law, neither is it
to be expected that Nebraska will complain. So long as
they are pecuniarily benefited and their pride gratified by
the mode and manner in which the Union Pacific Railroad
is operated, it will be too much to ask of them to discover a
breach of duty. But upon a closer inspection of the case it
will be found that not all of Iowa, nor all of Nebraska is
interested in maintaining the defendant in its violation of
duty. All that region of country traversed by the Burling¬
ton & Missouri River Railroad from Burlington Iowa to Fort
Kearney is interested in opposing defendant's management ;
and, leaving Iowa and Nebraska, it may be said that all else
are opposed. It was only on the Tth instant, in the Senate
of the United States (Congressional Record, Dec. 7), upon a
motion by the Nebraska Senator to strike out of the resolu¬
tion of Senator Chaffee the recital that complainants' roads
were a branch of defendant's road, that Senator Thurman
spoke as follows :
" I understand, Mr. President, precisely what the question
before the Senate is, and as I said when I rose, it is no new
question to me ; for I had to consider it both in the judiciary
committee and in the Senate in 1874. The point is this :
Is the road from Denver to Cheyenne a part of the Kansas
*
9
branch of the Union Pacific Railroad ? I say that it is, and
I say so for the reason that Congress has a perfect right to
confirm the action of the Kansas Pacific road in consolidat¬
ing itself with the road from Denver to Cheyenne, or in
giving to that company authorized to construct the road
from Denver to Cheyenne the right to construct it and to be
considered a part of the Kansas Pacific road. That was a
question between the Government and the Kansas Pacific
alone ; and if the government saw fit to confirm the action
of that company, as it plainly has done, then it does not lie
in the mouth of the Union Pacific Company, or of any other
railroad company, to gainsay the action of the government
in the premises. Then, in respect to the right given it to
join the Union Pacific further west than the one-hundredth
meridian, that was a matter simply for the government to
determine—to determine in the light of public interest, and
it has determined it, and given that leave. And now, sir, I
say that, even if, upon an interpretation of the act of 1862,
or the amendment of 1864, that company wrould not have had
the right to demand a prorating of freights over its road, and
if the Kansas Pacific were divested of the benefit of that
provision in the act of 1864 by a strict construction, this
Congress has a right to require it. * * * I say that
under the power reserved in the acts of 1862 and 1864
Congress has a right to make the Union Pacific Railroad
pro rate with any road that taps it, let that road be made by
what authority you please. I say it is simply a question of
public interest that is to govern us in this matter. * * *
The proposition of the Senator from Nebraska is really that
Congress shall go back upon what Congress has already
done and declared.. Could there be any language more plain
than the proviso to the act of 1874 ? ' And it is hereby
provided that for all the purposes of said act, and of the
acts amendatory thereof, the railway of the Denver Pacific
Railway and Telegraph Company shall be deemed and taken
to be a part and extension of the Kansas Pacific Railroad
to the point of junction thereof with the road of the Union
Pacific Railroad Company at Cheyenne, as provided in the
act of March 8, 1869.'
" Can there be any doubt about that ? The act of 1874,
which declares that road shall be considered a part of the
Kansas branch, made it a penal offence for the officers of the
10
Union Pacific Railroad not to treat it as a branch. * * *
It is a law highly penal in its character, and which the
Courts are bound to enforce if the law is constitutional—and
I should like to hear any argument against its constitution¬
ality. And now we are told that on this mere resolution of
inquiry we are to go back upon that law and throw doubts
upon its constitutionality. I, sir, am opposed to doing any
such thing. All I ask is that we shall stand by this law,
and if the courts see fit to decide that this law is unconstitu¬
tional, then it will be time enough for us to find out some
other remedy. But I have not the slightest idea in the
world that any court will ever so decide. * * *
"As the Senator from Colorado [Mr. Chaffee], who intro¬
duced the resolution, specially mentions the road from
Denver to Cheyenne, and as the Senators from Nebraska
antagonized that statement in the preamble, upon the ground
that it is questionable whether that is a part of the Kansas
Pacific, and whether it is a branch of the Union Pacific,
they, by antagonizing, raise the question whether it is or not.
I say that question has been heretofore decided, and I am
not in favor of doing anything which would shake the
decision at which Congress has arrived on this subject. * *
The question, what is a branch of the Union Pacific, or
whether this is a branch of it or not, was settled by the
legislation which has taken place, and notably by the act of
1874, which in express terms declares that it is a part of
that branch, and is a branch of the Union Pacific, and it
enforces under great penalty that declaration. Now, when
there is recited in this preamble introduced by the Senator
from Colorado, just what the law has declared before, and a
motion is made to strike it out on the ground that the law
of 1874 is unconstitutional and would be held by the courts
to be void, I, who do not believe that it is unconstitutional,
am not in favor of striking it out and thereby lending aid,
by implication or otherwise, to the argument of those (the
two Senators from Nebraska) who insist that the act ought
to be treated by the courts as null and void."
After these very positive declarations, Mr. Thurman
closed his remarks as follows :
" Let me tell the Senate that unless the Government
forces the Union Pacific road to pro-rate with the Kansas
11
Pacific road and treat it fairly, as the acts of 1862 and
1864 and the subsequent laws require, you will never get
one dollar of the money that is due you by the Kansas
Pacific road; for that road cannot earn the money to pay
its debts to the government unless you compel the Union
Pacific to do it justice.''
These words are plain Saxon—not difficult to understand,
and they but express the opinions and sentiments of a vast
majority of the people. That the Senate was in perfect
accord with the views of Senator Thurman is apparent from
the fact that the motion failed without division.
That the complainants' roads are a branch of the Union
Pacific by the express declaration of the act of 1869 and
1874, as well as within the intent and meaning of the acts
of Congress of 1862 and 1864, cannot be controverted.
This branch then is a member of the Pacific Railroad sys¬
tem, entitled to all the advantages appertaining to such
branch and subject to all its obligations and liabilities to
which the complainants in their bill offer to submit, and
demand submission from the defendant.
The complainants stand upon solid ground, and demand
their rights of the defendant. What those rights are we
next proceed to discuss.
II. What are the Duties and Obligations of the
Complainants and the Defendant to each other.
This part of the discourse will be founded upon section
12 of the act of 1862, and section 15 of the act of
1864. The duties imposed by these sections combined are,
1. That the road of the defendant and the branch road
of the complainants shall be operated and used for all
purposes of communication, travel and transportation, so far
as the [public and the government are concerned, as one
continuous line. .
12
2. And that in such operation and use they shall afford
and secure to each equal advantages and facilities as to
rates, time and transportation without any discrimination in
favor of the road or business of any or either of the parties
to this controversy, or adverse to the road or business of
any or either of them.
As to the first division of this subject, happily our labors
have been abridged by the decision of the Supreme Court
of the United States. Mr. Justice Strong, delivering the
opinion of the Court in the case of this defendant v. Hall,
et al., 1 Otto, 353, declared what was meant by the require¬
ment to operate the road as one continuous line. We quote
from the Opinion, page 353 :
" Holding then, as we do, that the legal terminus of the
railroad is fixed by law on the Iowa shore of the river, and
that the bridge is a part of the railroad, there can be no
doubt that the company is under obligation to operate and
run the whole road, including the bridge, as one connected
and continuous line. This is a duty expressly imposed by
the acts of 1862 and 1864, and recognized by that of 1871.
What this means it is not difficult to understand. It is a
requisition made for the convenience of the public. An
arrangement such as the company has made by which freight
and passengers destined for or beyond the eastern terminus
are stopped two or three miles from it, and transferred to
another train, and again transferred at the terminus, or by
which freight and passengers going west from the eastern
end of the line must be transferred at Omaha, breaks the
road into two lines and plamly is inconsistent with continuous
operation of it as a whole. If not, the injunction of the
statute has no meaning.''
This decision of the Supreme Court completely solves the
first question. The road of the defendant and the branch
road of the complainants are bound to be operated, so far as
the public and the government are concerned " as one con¬
tinuous line." Both freight and passengers are to be
transported over these roads without being transferred from
one car to another. That is to say, the government and
13
the public have the right to require of all the companies,
and the companies have the right to require of each other,
that freight and passengers in cars at any point upon the
road of either of the parties to this controversy, destined to
any point upon the road of any or either of the other
parties shall be transported, without change or stoppage, to
destination the same as if the entire line of road were in
one ownership and under one management.
It need not be said that any or either of the companies
would not be bound to the transportation in the same cars
if any casualty should happen to them. The right common
to carriers to provide other conveyance in such case belongs
to these companies, but they have no right to arrange among
themselves that cars loaded with freight or passengers shall
not continue over the entire road of all the companies as a
unit. If it be suggested or supposed that difficulties will
arise respecting the charge to be made for transporting the
cars, that will be more imaginary than real, for that charge
will fall into the category of rates to be allowed for trans¬
porting freights and passengers to be hereinafter noticed.
So if it shall be said that the requirement will be an imprac¬
ticable one if attempted to be put in force, that will be no
answer, because the law is inexorable that it shall be done.
But we know that it will not be impracticable. The Mis¬
souri, Kansas and Texas Company, the Chicago and North¬
western, the Illinois Central, the Chicago and Rock Island,
and many other companies that might be mentioned, find no
difficulty in severally operating their diverse roads as one con¬
tinuous line. It will not do for the companies in the Union Pa¬
cific railroad system to be refractory about this duty. There
is an old saying that " a bird that can sing and wont sing
must be made to sing.'' If the companies under the man¬
agement of skillful and experienced railroad men cannot
devise a plan by which all the roads in the system can be
operated as one continuous line, and the Court shall find
14
that its decree in that respect is not executed, no doubt Gen.
Sheridan, a man who affects no railroad experience, will find
little difficulty, when directed by the Government, in ope¬
rating these roads as required by law. - Every casual
observer must now be convinced that the public will not
longer submit to be trifled with. Its mood now is to require
the law to be enforced. Whoever resists will be swept away.
It being absolutely certain that the complainants' and
defendant's roads must be operated as one continuous line,
with through cars, in which through freight and through
passengers shall be transported, the question of time loses
much of its significance, because at the point of intersection
of the branch with the main line there can be no delay any
more than at any other point on the line of the road. The
cars containing freight or passenger cars are bound to move
right along. This much was said by Justice Strong in
Hall's case, supra.
It being established that these roads are bound to be
operated as one continuous line, the defendant, in those
portions of its answer excepted to, denies the power of the
Court to compel them, in the operation and use of their road
as a part of a continuous line, to afford and secure to com¬
plainants' roads equal advantages and facilities with itself
as to rates. It is true they affect to give a reason why
they should not do this, namely: that it cost more to build
the western half of their road, and it costs more to operate
it than it did and does the eastern half. Now in all contro¬
versies among men, the wrong doer seldom finds himself
without some excuse, satisfactory to himself at least, for the
wrong he has inflicted, and the question ought always to be,
had the accused party the right to do the thing charged to
be wrong. If not, his excuse amounts to nothing. It is
only the old fable of the wolf and the lamb. The latter,
though below in the stream, riled the water that came to the
wolf to drink.
15
Upon this subject, the contention of the complainants is,
that by the statute an imperative duty is imposed t© operate
these roads as one continuous line, and that too under an
unwavering and inflexible obligation to afford and secure to
each other equal advantages and facilities without any dis¬
crimination of any kind in favor of themselves or against
one another. It was not the intention of Congress,—nor can
the law be sd warped,—to allow any or either of the companies
to set up any hardship to them which could excuse them
from an exact compliance with the terms of the statute
contract. The parties to this controversy, when they
accepted the act, must be held to have well known the obli¬
gations which they imposed, and as well might we answer to
the command in the decalogue, " Thou shalt not steal," it is
all right if the meaning is " unless the necessity is great,''
of which we are to judge. It is plain that by this law it
was intended . that controversies should never arise between
the parties about rates. Otherwise the law would have
read, without any unjust, unfair or unreasonable discrimin¬
ation. We are to consider that Congress, in providing for
this great system of railroads over the western half of the
continent, on which there are no navigable waters, intended
to make the roads supply as far as possible the wants of the
public, largely met on the eastern half of the continent by
its navigable waters. To do this it was necessary to provide
against the selfishness and avarice which too often attend
the management of corporations, almost always remorse¬
lessly exercised by such irresponsible powers. Of course
the companies are to have rates, but they have no right
under the law to have different rates for one class of patrons
than they have for another. When one of the companies in
the system has established its rate over its whole line of
road any other of the companies has the right to the use of
any part of that road at a proportionate rate of the whole.
If not, if such company can increase its rate upon the part
16
of the road used by another, it is discrimination against the
latter company, the very thing which the law forbids. To
say that is done because the part of the road so used cost
more, or is more expensive to operate, or that it ought to be
permitted because the carriage is for shorter distances, and
that it is the custom of carriers to charge more in such cases
is no answer, because there is no provision of the law that
justifies any such claim. The defendant affects ?o think that
it can manage its road in respect to the branches in the same
way and upon the same terms that railroads are usually
managed east of the Missouri river. In this it ignores the
law of its creation. It forgets that it exists under a new
dispensation, that it has no right to defy or place itself in
opposition to the branch roads which are to all intents part
and parcel of it; that it is not all body and the branches all
members, that it is not its vocation to eat and repose, theirs
to work and starve. The fact that the defendant's road
occupies a stretch of country of five hundred miles through
the mountains has prompted it to arrogate to itself power
and authority which it does not possess. It vainly supposes
that because it is in possession of the mountain passes it
occupies as it were a Thermopylae which by its mere fiat fit
can defend against the passage of the public and the com¬
merce of the nation unless submission is made to its own
arbitrary terms. It has been said that nothing can be more
difficult or more trying for a man than to be a judge in his
own cause. This obviously implies that the judgment is to
be exercised under conscientious restraints ; but ho such
restraint enters into the action of a corporation. Corpora¬
tions are without conscience ; they are but creatures of the
law, and by it all their powers are exercised. Beyond its
limits they cannot go.
Because of this and to prevent oppression and extortion by
any or either of the companies, it was the intent of Con¬
gress to so make the law, as under all circumstances, to pre-
i
17
vent any or either of the companies from offering any resist¬
ance, on any account or for any reason, however good in their
own judgment, to the performance of their duties under the
statute contract, whether it should cost more or less to per¬
form that duty in particular places. The law is that such
facts shall not be mentioned, and we can see the wisdom of
Congress in this, for the fundamental idea of the whole enter¬
prise was, th'at all the companies should dwell together in
peace and unity, which could not be done if it was left to
them to dispute about rates or expenses of operating particu¬
lar parts of their road.
The demand of the complainants is that, in the adjusting
of rates between the several companies involved in this con¬
troversy, either of them, upon the transporting of freight or
passengers over its road, destined to points on the line of a
connecting road in the Union Pacific system, or to any point
beyond on the line of any road in the system, has the right
to have such freight and passengers transported to destina¬
tion at the through rate per mile of the roads upon which it
shall send such freight and passengers — to illustrate, if
freight and passengers shall come on the road of the defend¬
ant at Omaha, destined to Denver, the Denver Pacific is
bound to attend and see that such freight and passengers are
transported over its road from Cheyenne to Denver, at its
lowest through rate for similar business, without delay or
change of cars, or, if destined! to any point on its line, for
instance, Greeley, half way to Denver, it is bound in like
manner to cause such freight and passengers to be transport¬
ed without change of cars at a pro rate per mile of its lowest
through rate, for the distance carried. To say that this is
not usual in the operation of railroads does not meet the case
at all. The one sufficient answer is, such is the law, and so
Congress intended it should be, in order to carry out,
without collision of opinions, this stupendous and expensive
system for the public welfare. . „
i
18
This inexorable rule must be observed, else, all the tricks
and devices within the knowledge of railroad management
will be resorted to until it shall result in the total negatiou
of the law. If the Denver Pacific can charge a rate per
mile for traffic coming on to its road at Cheyenne, destined
for Greeley, higher than for similar traffic coming on its road
at Denver, destined for Greeley, it will be a discrimination
in favor of the Kansas Pacific against the Union Pacific, and
the Government and the public desiring to travel or trans¬
port by that ronte. And herein we see the wisdom and
foresight of Congress in providing in the act of 1869, that
the Kansas Pacific should not fix the rates upon the Denver
Pacific. Undoubtedly this was done to secure, without ques¬
tion, to the Union Pacific the advantages already given it by
law. It was intended that no question should ever arise
upon that subject, and so we are the better enabled to ap¬
preciate the justice and fairness of that act. Upon the pas¬
sage of the act of 1869 it was then apparent, and more so
now, that the commerce of Colorado would be concentrated
at Denver, that being the metropolitan town of that State.
It was important to the defendant, as well as to the Denver
Pacific Company, that the outlet by Cheyenne should be pre¬
served for that trade as amply as the acts of 1862 and 1864
had provided. But for that act the interest of the Kansas
Pacific Company would have prompted it to make its connec-
with defendant's road farther Vest upon an easier route, but
it was constrained to yield to a connection at Cheyenne, as
by so doing, it would fairly be accommodated and largely ac¬
commodate the Colorado business, for which there would be a
choice of routes without special advantage to either. In this
respect Congress required and enforced a compromise.
Pursuing this course of argument, we come to the special
claims of the Kansas Pacific. The law gives it the right to
receive freight and passengers at any point upon its line of
road destined to any point upon the line of the Denver Paci-
19
lie, Union Pacific, or Central Pacific of California, and to
have the same transported in through cars over said roads to
destination, the same as if the business had originated on
either of said roads. The rate for hauling cars, passengers
and freight, and allowances to be made for rent of cars, to be
such, and such only per mile as is charged for similar through
business by either of said companies over its road. If a
lower rate is charged for . through business which- has been
received from connecting roads at the terminus, the Kansas
Pacific Company has the right to that rate for similar
business.
If it be a fact that the companies united in the Union
Pacific Railroad system, charge greater rates upon local busi¬
ness originating and terminating on their roads, such fact
cannot be invoked as an excuse or justification for charging
their local rates upon traffic received from or going to any or
either of the united roads. The complete and sufficient
answer against such claim is, that the statute contract does
not permit it. The right or the wrong of it is not open to
discussion ; if it were, it would be absolutely impossible to
ever arrive at any certain and undeviating rule which should
govern the operation of the roads and the rates which they
might impose upon each other. Interminable conflicts would
be engendered ; discord in everything would prevail ; crimin¬
ations and recriminations would be the order of the day.
The claim, so confidently asserted by the defendant in the
oral argument, that, because the connection of the branch
was made at Cheyenne instead of at the 100th meridian, it
was relieved of complying with the obligations of the 12th
section of the act of 1862, is in the highest degree fallacious,
because, aside from the reserved right of amendment in the
act of 1862, the act' of 1864, in the 15th section of which the
imperative rule in regard to discrimination is found, in sec. 9,
gave the Kansas Company the right to make such connection
farther west if deemed more practicable or desirable. The
4
20
act of 1864 was directly accepted by the defendant, and it
needs no argument to show that its acceptance of that act
charged it with the burden of complying with the terms of
the 15th section, without regard to where the branch united
with the main line; so that the rights of the parties are pre¬
cisely the same as if the connection had been made at the
100th meridian. But the defendant claims that although it
may be compelled to concede that, yet it has the right under
the statute to put such arbitrary rates upon its main line as
it may please, and that as to the complainant's its main line
is west of Cheyenne, and the eastern half of its road a
branch. The defendant affects to be willing to yield to the
rule of law, that as a common carrier with respect to
complainants,'it is bound to fix reasonable rates over what
it designates its main line, to wit: from Cheyenne to Ogden.
It claims that it has the right as to the complainants, to divide
its line of road at Cheyenne and establish a low rate between
Cheyenne and Iowa, though it should be but nominal, and
as to through freight make the charge for transporting it the
whole length of its road, rest upon the part between Chey¬
enne and Ogden. The excuse set up for this is that it cost
more to construct that part of road than it did the eastern
end, and that it is more expensive to operate it. Obviously
if the position which the defendant takes is justified upon the
theory that the road between Cheyenne and Ogden is its
main line, and the eastern half a branch, and that such
branch may be used in competition with all other branches,
there can be no occasion for the defendant to offer any excuse
whatever for its conduct. Each and all the companies have
the right to fix their rates and may charge the public what¬
ever they please, so that they do not violate the rule of the
common law as laid down by the Supreme Court of Illinois
in the Chicago and Alton case, 67 Illinois, 11, cited by coun¬
sel for the defendant.
21
But by the law of this case the defendant has no right to
treat any part of its road from Iowa to Ogden as a branch.
It is by the law a unit and made a continuous line, and
whether the complainants' branch had connected at the
100th meridian or elsewhere west, the defendant's road would
remain a unit. It would have been just as obnoxious to
the law against discrimination had the complainants' road
connected at the 100th meridian, if the defendant should
have undertaken to operate its reach of road two hundred
miles east to the Iowa line at a less rate per mile than it
charged upon its line west from the 100th meridian to
Ogden. The. effect would simply be to make all the
earnings west of the 100th meridian take care of its
so called branch, and so play that off against all other
branches, to their absolute ruin. Such is not the law. The
defendant is bound to fix a uniform rate upon its line of
road for through business, which rate is to govern at a pro
rate per mile for all the business that may flow from or to
it, via the branches. Since the defendant has constructed
the whole reach of road from the State line, whether the
defendant shall choose to call any part of it a branch is
wholly immaterial. It can be so only in name, for when it
was determined by Congress that branch connections could
be made west of the 100th meridian and relieve the defend¬
ant from passing the 100th meridian at a point to be fixed
by the President, all the provisions of law recognizing any
part of the road of the defendant as a branch, ceased to have
any effect. Practically this is undeniably true. The statute
mortgage of the Government is over the whole line of
defendant's road as a unit, and though the subsidy was larger
upon some portions of the road than others yet it is a con¬
solidated debt of the company upon its whol6 line of road.
Each and every part of it is mortgaged for the whole debt,
and though some miles of the road may have actually cost
less than others, yet the fact may be that those portions of
22
the road which cost the least are in use worth the most.
As for instance, a mile of the road on the plain cost much
less than the mile over the Missouri River supplied by the
bridge. It costs less to operate and to maintain it, still
it is a mile in the line of the road the same as the bridge.
By the decision of the Supreme Court of the United States
in HalVs case supra, the defendant was bound under the
laws of 1862 and 1864 to build the bridge, and, but for the
act of February 24th, 1871, would have been obliged to oper¬
ate it in connection with its road, as part thereof, without extra
charge in the way of tolls for the business that was done
over it. That act gave the defendant power to mortgage
the bridge and special power to levy tolls and charges for
the use of it.
In HalVs case the Court says, page 350,
" The bridge was for the convenience of their road and to
enable them to connect with the other roads. They could
build it for no other uses. They were not authorized to use
it for other purposes than those of their road. They were
not allowed to charge rates of toll which they did not charge
upon other portions of their line. If they acquired such a
right it was by subsequent legislation, by the act of 1871, to
which we shall refer hereafter.''
Note here that this act of 1871 did not purport to be an
amendment of the Pacific Railroad act, and yet it is an act
against the interests of the Denver Pacific, which adds to
the cost of transportation from Iowa to Denver the tolls
levied for crossing the bridge; also that the defendant found
it necessary to obtain leave of Congress to levy such tolls,
and based its claim upon the fact of the great cost of the
bridge in order to complete its line, securing two millions
and a half of dollars upon the bridge which should have
priority over the Government liens secured by statute mort¬
gage. And we may learn from this case that the rates of toll
by the defendant over its entire line of road are to be
uniform, and that it has no right to charge an increased rate
23
upon any portion of its road because of its increased cost
of construction or maintainance, without the express assent
of Congress, in whose hands all these roads are.
Then it all comes to this, that the statutes are susceptible
of but one construction, namely, that all the roads are to be
operated as otie continuous line, by through cars. That
freight and passengers passing from one road over another,
are to pay to such other road only that proportion of the
lowest through charge for similar business upon such other
road that the distance such freight or passengers are carried
upon such road bears to its whole line.
Something was said upon the argument, that if the
prayer of the bill should be decreed it would result
in the complainants making a low rate for through
business, whereby the defendant would be impoverished.
The preposterousness of this claim will readily be seen,
when it is considered that Omaha* and Kansas City are
common points for eastern business, and that the defendant
has two hundred miles advantage in distance. Protesting
that all such arguments are wholly out of place and cannot
be invoked against the express words of the statute, they
are noticed only for the purpose of showing the subterfuges
to which the defendant resorts to justify its oppressive
conduct. If it was absolutely true, that in the practical
operation of these roads, the complainants could, with the
disadvantage of two hundred miles in distance, so reduce
their rates as to bring about such competition with the
defendant as to diminish the amount of business upon the
east half of its road, it has within its power a lawful and
easy remedy, by raising the rate on its whole line, but the
rate over the whole line must be uniform.
Another subject was brought forward, doubtless with the
hope of causing the Court to hesitate to declare that the law
means what it says, namely: that the through line of road
from Omaha to San Francisco ought not to be disturbed in
24
its policy and management, because the wisdom of such
management is taxed to the utmost to make successful com¬
petition with ocean traffic via the Isthmus ; that if the com¬
plainants shall be allowed to participate in the overland
traffic, it will so interfere with, and frustrate the manage¬
ment and plans of the two dominant companies in the Union
Pacific Railroad scheme, as to incapacitate them from mak¬
ing successful competition with ocean transportation. The
foregoing pretenses respecting competition, to the impoverish¬
ment of the defendant's road, and respecting the competing
carriage by sea, are but figments of the imagination, and
could as well have been interposed as a justification for re¬
fusing to open the whole lines of road to the complainants,
as by the statute is required, as the pretenses that it cost
more to build and costs more to operate the western half of
defendant's road than the eastern, as set up in the answer
excepted to. All this only shows that the wrongdoer is sel¬
dom or never without excuses for his conduct. Reasons are
as plenty as blackberries, why they should not keep the law.
In its excuses and justifications for such refusal, we find the
defendant everywhere catching at straws, and catching at
straws where there are no straws.
The trouble is that the defendant does not know itself,
and does not seem to have any true conception, for what
purpose it was created. This is shown from the report of
the President of the Company to the stockholders, at their
annual March meeting, 1876, in which it was announced
that the country £< for over one thousand miles long, east
and west, and three hundred miles wide, north and south, is
tributary to this one great artery," the Union Pacific Rail¬
road. This declaration, unfortunately for the complainants,
is but too true. All passenger and freight traffic originating
on the Kansas Pacific road, for two hundred miles west of
Kansas City, and destined for California, because of the
tyrannical and oppressive management of the Union Pacific
25
Company, is, in its interest compelled to go east by Kansas
City, thence two hundred miles north by the Council Bluffs
road to Omaha, and after a weary journey of four hundred
miles, is no nearer its place of destination than when it
started; and this must be submitted to because it is less
expensive than via Denver and Cheyenne. And yet this
defendant, in its management, is serene and wholly uncon¬
scious of wrong. Its President is not a man of many words,
untruthful or frivolous. He but plainly spoke the fact, that
the country for the whole length of the line of the branch
road of the complainants, was tributary to the Union Pacific,
and that not in an imaginary sense. The management of
the Union Pacific, shown to be in the face of the law,
enabled and enables the defendant to extort the tribute, and
because of this gr6at wrong, hitherto unrestrained and
unrebuked, the stockholders of the defendant are boldly
congratulated by their President. Thus it is seen that
" If self the wavering balance shake,
It's rarely right adjusted I''
The defendant will not admit, and seems wholly unable to
comprehend that it and the complainants are all of one
birth, that the inheritance of each is precisely tthe same.
Whether actuated by haughty ambition and envy, or sordid
avarice, or by all these bad passions, the conduct of defend¬
ant proves that it regards the mere existence of the com¬
plainants as a menace and a great wrong upon its rights, and
that it is not only its right but its bounden duty to deprive
them of their birthright, and if possible sweep them from
the face of the earth. And it is but in the furtherance of this
malign purpose that it has lately encouraged and fostered
the construction of the rival road along side the Denver
Pacific.
Reform is necessary, and reform must be had. The
defendant will not reform itself. The law, that most whole¬
some physic for arrogant corporations will have to be
26
-*
unflinchingly administered until the defendant shall come
to know itself and its poor relatives; after that, the defend"
ant will cease the haughty claim that it is the entire
structure; but will see and know that it is only one of
the many blocks in the edifice, and not altogether an outside
block at that; will be satisfied to bear its due proportionSf
burthens with complainants, and share with them the advan¬
tages to which they are severally entitled, and so fulfil the
object of their creation.
In conclusion, we must say that the complainants cannot
enter the field of investigation to which they have been
invited by the defendant. They cannot place their rights
upon an issue which involves the cost of constructing, main¬
taining and operating any part of the road of the defendant.
They cannot enter into speculative contests concerning the
effect of competition between the roads, nor as to what the
consequence will be to any of them if they shall be unable
to compete successfully with ocean transportation. They
cannot submit their rights to the varying and irresponsible
testimony of railroad experts; for all must see that at
the end of every weary excursion, to which the defend¬
ant invites us, we shall only be in the more uncertainty and
doubt. All this was never intended by Congress. It not
only was not intended, but in strong and plain words it
was declared that it should not be. The letter of the law
discloses its spirit—nothing ambiguous, nothing uncertain,—
discrimination of every kind is denounced by the statute.
Let the case be decided as the law plainly declares it to be.
If the consequences are bad, Congress alone can afford
relief.
J. P. USHER,
Solicitor for Complainants.