include the right to fix and establish rates to be charged by common carriers chartered by the several States. (d) Because the power last aforesaid can not be delegated by Congress to the discretionary exercise thereof by a commission appointed by executive authority. 29. This defendant avers that no rate of transportation charged by it, which is less than that permitted by its charter, is, or can be held to be, unreasonable and unjust. It avers that the rate so charged by it was legal, and was not unreasonable or unjust, because it was less than was permitted to be charged by the charter under which it operated. 30. This defendant prays that the petition in this case filed may be dismissed for lack of just foundation for relief in fact and in law. [Seal of L. V. R. R. Co.] LEHIGH VALLEY RAILROAD COMPANY, By CHAS. HARTSHORNE, Attest: JNO. R. FANSHAWE, Secretary. JOHN G. JOHNSON, Counsel for Defendant. STATE OF PENNSYLVANIA, City of Philadelphia, ss.: Vice-President. Before me, the subscriber, a notary public of the Commonwealth of Pennsylvania, this 17th day of July, 1891, personally appeared Charles Hartshorne, vice-president of the Lehigh Valley Railroad Company, who, being duly affirmed, deposes and says that the facts set forth in the foregoing answer so far as the same are stated of his own knowledge are true, and that so far as said facts are stated upon the information of others they are true to the best of his knowledge and belief. CHAS. HARTSHORNE. Affirmed and subscribed before me the day and year above written. Witness my hand and notarial seal. [L. S.] EDWARD Y. HARTSHORNE, Notary Public. IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA. In equity. No. 390. THE INTERSTATE COMMERCE COMMISSION vs. THE CINCINNATI, NEW Orleans and Texas Pacific Railway Company, The Western and Atlantic Railroad Company, and The Georgia Railroad Company. To the circuit court of the United States, sitting in equity within and for the northern district of Georgia: Your petitioner, the Interstate Commerce Commission, which was created and established and now exists under and by virtue of an act of Congress of the United States, entitled "An act to regulate commerce," approved February 4, 1887, as amended by an act approved March 2, 1889, and as amended by an act approved February 10, 1891, S. Mis. 31-19 humbly complaining showeth unto your honors that the Cincinnati, New Orleans and Texas Pacific Railway Company is a corporation created, chartered, and existing under and by virtue of the laws of the State of Ohio, having its principal office at Cincinnati, in the said State of Ohio; that the Western and Atlantic Railroad Company is a corporation created, chartered, and existing under and by virtue of the laws of the State of Georgia, having its principal office at Atlanta, in the said State of Georgia; that the Georgia Railroad Company is a corporation created, chartered, and existing under and by virtue of the laws of the State of Georgia, having its principal office at Augusta, in the said State of Georgia; and that the said defendants were at the time of the committing of the grievances hereinafter specially mentioned, and still are, common carriers, engaged in the transportation of persons and property by their several lines of railroad, under a common control, management, or arrangement for continuous carriage or shipment through several of the United States, and particularly were the said defendants then engaged in the said business from Cincinnati, in the State of Ohio, thence through the intermediate States of Kentucky and Tennessee to Social Circle, Augusta and Atlanta, in the State of Georgia, and as such common carriers were during all the time aforesaid and still are subject to the provisions of the said act, entitled "An act to regulate commerce," and said amendments thereto. That the said defendants were heretofore, to wit, on the 1st day of October, 1889, duly impleaded in a controversy, not requiring a trial by jury, as provided for in the seventh amendment to the Constitution of the United States, before the said Interstate Commerce Commission, upon the petition of the James and Mayer Buggy Company, a manufacturing corporation chartered and existing under the laws of the State of Ohio, and having its principal office in Cincinnati, in that State, for an alleged violation on the part of the said defendants of the provisions of the said act entitled "An act to regulate commerce," as at large and more fully appears by the said petition on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit A. That thereafterwards, to wit, on the 8th day of November, 1889, the Western and Atlantic Railroad Company filed its answer to the said petition, as at large and more fully appears in and by said answer on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit B. That thereafterwards, to wit, on the 11th day of November 1889, the Georgia Railroad Company filed its answer to the above-named petition of the said James and Mayer Buggy Company, as at large and more fully appears in and by the said answer on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit C. That thereafterwards, to wit, on the 29th day of November, 1889, the said Cincinnati, New Orleans and Texas Pacific Railway Company filed its answer to the said petition, as at large and more fully appears in and by the said answer on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit D. That thereafterwards the said cause being at issue upon the pleadings aforesaid, duly came on for investigation and hearing before the said Interstate Commerce Commission, duly and legally assembled for that purpose at the city of Washington, in the District of Columbia, on the 21st day of February, 1890, when an order was duly made in said cause, as at large and more fully appears in and by said order on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit E. That thereafterwards, on the 21st day of March, the said cause still being at issue upon the pleadings aforesaid duly came on for investigation and hearing before the said Interstate Commerce Commission, duly and legally assembled for that purpose at the city of Washington, in the District of Columbia, pursuant to the provisions in said order of the 21st day of February, 1890, whereof all the parties had due and sufficient notice, and thereupon such proceedings were had that the said cause was continued from time to time until the 3d day of June, 1890. And on the said 3d day of June, 1890, the said cause then being still at issue upon the pleadings aforesaid, duly came on for hearing before the said Commission, duly and legally assembled for that purpose at the city of Washington, when the said complainant, the James and Mayer Buggy Company, as well as the said defendants, the Cincinnati, New Orleans and Texas Pacific Railway Company, the Western and Atlantic Railroad Company, and the Georgia Railroad Company, duly appeared, by their respective officers and attorneys, and thereupon the said cause proceeded to hearing and determination. That at the said hearing it was made to appear to the satisfaction of the said Commission that the said defendant had violated the provisions of the said act, entitled "An act to regulate commerce," in certain respects, as was stated to have been violated by them in the said petition herein referred to as a part hereof, and thereupon, on the 29th day of June, 1891, the said Commission duly and legally determined the matters and things in controversy and at issue between the said parties and made a report in writing in respect thereof, which included the findings of fact upon which the conclusions of the said Commission were based, as at large and more fully appears in and by the report of the determination of the said Commission, on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit F. That thereafterwards and forthwith, upon the determination of the said cause as aforesaid, the said Commission duly formulated an order and notice in relation to the matters and things stated and charged in the said petition, based upon the findings and determination of the said Commission with respect thereto, agreeably to the requirements of the statute in such cases made and provided, which said order now remains in full force and effect, never having been vacated, set aside, altered, modified, or changed in any respect whatever, and is now on file in the office of the said Commission, and a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit G. That thereafterwards, to wit, on the 8th day of July, 1891, the said Commission, agreeably to the provisions of the law in that regard, duly caused a properly authenticated copy of its said report in respect to the matters at issue in said complaint, as aforesaid, together with the order and notice aforesaid, to be delivered to the said defendants, and thereupon the petitioner shows that it has not been made to appear to the said Commission that the Cincinnati, New Orleans, and Texas Pacific Railway Company, the Western and Atlantic Railroad Company and the Georgia Railroad Company have ceased and desisted from the violations of law set forth in the said report and order of the said Commission, but on the contrary thereof the said defendants, unmindful of their duty and of the decision and determination of the said Commission, as stated in its report aforesaid, have, through their officers, servants, and attorneys, wholly disregarded and set at naught the authority of the said Commission in that regard, and have willfully and knowingly violated and disobeyed the said order, and have from the time of the issuance and service of the said order and notice as hereinbefore set forth hitherto wholly neglected and refused and still do neglect and refuse to comply with the same, to wit, at Social Circle, in the State of Georgia, at Augusta, in the State of Georgia, and at Atlanta, in the State of Georgia, in this that the said defendants have not since the 20th day of July, 1891, desisted from charging or receiving any greater compensation in the aggregate for transportation in less than car loads of buggies, carriages, and other articles classified by them as freight of the first-class for the shorter distance over the line formed by their several railroads from Cincinnati, in the State of Ohio, to Social Circle, in the State of Georgia, than they charge or receive for the transportation of said articles in less than car loads for the longer distance over the same line from Cincinnati aforesaid to Augusta, in the State of Georgia; nor have the said defendants, the Cincinnati, New Orleans and Texas Pacific Railway Company and the Western and Altantic Railroad Company, from and after the 20th day of July, 1891, wholly ceased and desisted from charging or receiving any greater compensation in the aggregate for the transportation of buggies, carriages, and said other first-class articles in less than car loads from Cincinnati aforesaid to Atlanta, in the State of Georgia, than $1 per 100 pounds; and the petitioner attaches hereto, by way of a specification of some of the particulars in which the said defendants have failed to comply with the said order and report of the said Commission, an affidavit of C. C. McCain, auditor of the said Commission, showing the rates on the articles mentioned in said order now charged by the said defendants in violation thereof; the said affidavit, being marked Exhibit H, is hereunto attached and made a part of this petition. Wherefore the petitioner prays: 1. That a subpoena, or other suitable process, may issue according to the course of equity, requiring the Cincinnati, New Orleans and Texas Pacific Railway Company, the Western and Atlantic Railroad Company, and the Georgia Railroad Company, severally to appear at such time and place as this honorable court may determine, then and there, each to make full, complete, and perfect answer to the matters and things hereinabove stated and charged, as fully and particularly as if the said defendants were each specifically and specially interrogated in regard hereto, without verifying said answer by oath, which said verified answer is hereby specially waived. 2. That upon the filing of this petition an order may be passed by this honorable court directing the method of service of notice of the pendency of this proceeding. 3. That such order or orders may be passed pending the cause as will secure a speedy hearing and determination of the matters and things stated and charged in the foregoing petition. 4. That such order or orders may be passed pending the cause as may be necessary for the prosecution of all such inquiries as the court may think needful to enable it to form a just judgment of the matters and things stated and charged in the foregoing petition. 5. That an order may be entered pending the cause granting to the petitioner a writ of injunction or other proper process, mandatory or otherwise, to restrain the said defendants, their officers, servants, and attorneys, from further continuing in their violations of and disobedience to the said order of the said Commission, and that upon final hearing such injunction may be made perpetual. 6. That a decree may be entered, if it shall seem meet to this honorable court, requiring the said defendants each to pay such sum of money, not exceeding the sum of $500, for every day after a day to be named in said decree that they or any of them shall fail to obey the said injunction or other proper process. 7. For such other and further relief in the premises as to the court may seem meet and the equities of the petitioner's cause may require. THE INTERSTATE COMMERCE COMMISSION, [L. S.] By Edw. A. MOSELEY, The Secretary thereof, thereunto duly authorized. IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA. In Equity-No. 390. INTERSTATE COMMERCE COMMISSION vs. THE CINCINNATI, NEW Orleans and Texas Pacific Railway Company, The Western and Atlantic Railroad Company, and The Georgia Railroad Company. For the defense to the above petition, and as cause why the prayer should not be granted, the Western and Atlantic Railroad Company says: That on the 27th of December, 1890, it became a body corporate, under the name and style of the Western and Atlantic Railroad Company, under an act of the legislature of Georgia approved November 12, 1889, which provided for the lease of certain property of the State of Georgia known as the Western and Atlantic Railroad, and that prior to said 27th day of December, 1890, this respondent was not in existence, and therefore had no notice of the proceedings before the Interstate Commerce Commission in the matter of the petition of James & Mayer Buggy Company, and had no connection with the matters therein complained of. Wherefore, respondent submits that the above-stated petition of the Interstate Commerce Commission should be dismissed, the prayer denied, and this respondent allowed to go hence with its reasonable costs. J. W. THOMAS, President. In person appeared J. W. Thomas, who makes oath that he is presi dent of the Western and Atlantic Railroad Company, and that the facts stated in the above defense are true. Sworn to and subscribed before me this 9th day of December, 1891. |