of the city's power is brought in question in estimating the character of the owner's right in the street. It inheres in the very ownership of the lot, as an incident to it. None of these charac teristics attach to the company's easement. In no sense is it the owner of land adjoining the highway. A fair construction of the petition makes of it no more than a naked right to place and keep its pipes somewhere in the street; and this, we think, is the extent of the council's power. An ordinance to grant an exclusive right or a perpetual right to occupy a particular part of the street would be an attempt to bind succeeding councils as to their exercise of legislative power, and would, for reasons stated, be ineffectual. The grant by the city must be interpreted in the light of the right and duty of the city to regrade, whenever in its judgment the public interest demands; and whatever easement the gas company can receive in must accept and enjoy in common. with equivalent rights which have been or may be acquired by other public agencies,-rights of a like secondary character; and all must give way to the paramount duty of the city to care for the streets, and keep them open, in repair and convenient for the general public. This duty would be seriously interfered with if the city could not change the grade of its streets save upon the condition that it should make compensation to every gas company and water company, and telephone company, and electric light company, and street-railway company for inconvenience and expense thereby occasioned. All such agencies must be held to take their grants from the city upon the condition, implied where not expressed, that the city reserves the full and unconditional power to make any reasonable change of grade or other improve ment in its streets.

Attention has been called to some authorities which seem to give sanction to the company's claim in this case, but we are im pressed that they do not, in this respect, express the spirit of our statutes and decisions. On the other hand, counsel for the city. have cited authorities which support the conclusions here reached. See Dill. Mun. Corp. hic et ibi; Lewis, Em. Dom. §§ 107, 109; Goszler v. Corporation of Georgetown, 6 Wheat. 593; City of Brenham v. Brenham Water Co. (Tex. Sup.), 4 S. W. Rep. 143; Aqueduct Corp. v. Brookline, 121 Mass. 5; In re Deering, 93 N. Y. 361; Waterworks v. Kansas City, 28 Fed. Rep. 921; Rock

land Water Co. v. City of Rockland, 83 Me. 267; 22 Atl. Rep. 166. We think the petition does not state a cause of action. Judgment affirmed.*

1 Municipal corporations-liability for injury to gas or water pipes by the improvement of streets.-The decision in the foregoing case is in conformity with the conclusion reached in Roanoke Gas Co. v. City of Roanoke, 6 Am. R. R. & Corp. Rep. 88, upon a similar state of facts. The leading authorities on the question involved are referred to in the note to that case. In City of Detroit v. Ft. Wayne, etc., R. Co., 6 Am. R. R. & Corp. Rep. 188, it was held that it was the legal duty of the railroad company occupying a street to conform its road bed to a new improvement of the street.

2 Locating sewer so as to interfere with street railway-right of latter to enjoin.—The location of a sewer in a city street must be reasonable, with respect to the rights of a street railway, the construction of which was authorized by a prior ordinance, and whose property might be damaged by the construction of such sewer; and such location, if made in a part of the street occupied by the railway, so as to compel it to suspend operations, and inflict great damage upon it, is unreasonable, when other parts of the street are equally suitable for the sewer. But the city is not required to incur any additional expense by reason of having authorized the building of such road. Clapp v. City of Spokane, 53 Fed. Rep. 515.

A mortgage upon a street railroad is as much entitled to protection from unlawful injury by such action on the part of a city as any other kind of property. If the mortgagee has an adequate remedy at law by an action for damages, a suit in equity, though permitted by state laws, should not be entertained by a federal court. Where it appears, however, that the railway company is insolvent; that it will not be able to repair the damage or operate its road thereafter; that its property, after the construction of the sewer, would not be adequate security for the mortgage debt; that the bonds would be worthless as negotiable paper, and that the city, by reason of constitutional restrictions, is in such financial condition that a judgment against it would not be collectible—a cause of equitable jurisdiction is made out, and an injunction pendente lite should issue. Ibid.

INTERSTATE COMMERCE COMMISSION v. BALTIMORE & OHIO R. Co.

(Supreme Court of the United States, May 16, 1892.)

1. INTERSTATE COMMERCE ACT. UNJUST DISCRIMINATION. "PARTY RATE TICKETS." The issuance of " party rate" tickets, each good for a party of ten or more persons, at the rate of two cents per mile, while single passengers are charged three cents, is neither an unjust discrimination nor an undue or

* Reported in 33 N. E. Rep. 292.

unreasonable preference or advantage, within the meaning of the interstate commerce act, when such tickets are offered to the public generally.

2. REDUCED RATES NOT LIMITED TO CASES SPECIFIED IN SECTION 22. "Unjust discrimination" and "undue or unreasonable preference or advantage" are made unlawful by §§ 2 and 3, and the declaration in § 22 that the act shall not prevent the giving of reduced rates for the purposes and to the classes of persons therein named does not exclude the idea that reduced rates for other purposes or to other classes may not be reasonable and just, and therefore lawful.

3. EFFECT OF ADOPTING LANGUAGE OF ENGLISH TRAFFIC ACT. As congress, in section 3, adopted the language of the English traffic act of 1854, in respect to" undue preference," it may be presumed that it was intended also to adopt the construction given to these words by the English courts.

4. "PARTY RATE TICKETS AS A COVER FOR UNLAWFUL DISCRIMINATION. Should party rate tickets, by a reduction of the number to whom they are issued, be used for the purpose of evading the law and cutting rates, the courts could apply the proper remedy.

HIS was originally instituted by the filing of a petition before

Tths was origi duy inerce Commission by the Pittsburg, Cin

cinnati & St. Louis Railway Company against the Baltimore & Ohio Railroad Company, to compel the latter to withdraw from its lines of road, upon which business competitive with that of the petitioner was transacted, the so-called "party rates," and to decline to give such rates in future upon such lines of road; also for an order requiring said company to discontinue the practice of selling excursion tickets at less than the regular rate, unless such rates were posted in its offices, as required by law. The petition set forth that the two roads were competitors from Pittsburg westward; that the Baltimore & Ohio road had in operation upon its competing lines of road so-called "party rates," whereby "parties of ten or more persons traveling together on one ticket will be transported over said lines of road between stations located thereon at two cents per mile per capita, which is less than the rate for a single person; said rate for a single person being about three cents per mile."

There was another charge that the defendant was in the habit of selling excursion tickets without posting its rates for the same in its offices, but this charge was subsequently abandoned.

The answer of the Baltimore & Ohio Railroad Company admitted that it had at one time in effect the so-called "party rates," but prior to the filing of the complaint had withdrawn said rates, not

that it believed that they were illegal, but because it was claimed by other companies that said rates were put into effect in violation of an angreement between companies belonging to a certain association of which defendant was a member. It further averred that

said rates were in no way violation of the act to regulate commerce, and were an accommodation to the public, necessary to the business of theatrical and other amusement companies, and that, when the legality of such rates was properly raised for decision, it was prepared to defend the legality of the same. The answer further denied the right of the complainant to institute the proceeding, and prayed that the complaint might be dismissed.

The cause was heard before the commission, which found "that so-called 'party rate' tickets, sold at reduced rates, and entitling a number of persons to travel together on a single ticket or otherwise, are not commutation tickets, within the meaning of section 22 of the act to regulate commerce, and that, when the rate at which such tickets for parties are sold are lower for each member of the party than rates contemporaneously charged for the transportation of single passengers between the same points, they constitute unjust discrimination, and are therefore illegal." It was ordered and adjudged "that the defendant, the Baltimore and Ohio Railroad Company, do forthwith wholly and immediately cease and desist from charging rates for the transportation over its lines of a number of persons traveling together in one party which are less for each person than rates contemporaneously charged by said defendant under schedules lawfully in effect for the transportation of single passengers between the same points."

The defendant road having refused to obey this mandate, the commission, on May 1, 1890. pursuant to section 16 of the interstate commerce act, filed this bill in the circuit court of the United States for the southern district of Ohio for a writ of injunction to restrain the defendant from continuing in its violation of the or der of the commission. The bill set up the proceedings which had theretofore been taken before the commission, and set forth. as its gravamen that the defendant had wholly disregarded and set at naught the authority and order of the commission in that regard and had willfully and knowingly disobeyed said order, and had not ceased and desisted from allowing party rates as it

had been ordered to do, and had upon divers occasions since the service of said order charged rates for the transportation over its lines of a number of persons traveling together in one party which were less for each person than rates contemporaneously charged under schedules lawfully in effect between the same points for the transportation of persons, citing a number of instances of such disobedience.

The answer admitted the proceedings set forth in the bill, but' denied that it had been made to appear to the commission that defendant had violated the provisions of the act to regulate commerce, or that the commission had duly and legally determined the matters and things in controversy and at issue between the parties; and averred that several of the conclusions of fact stated in the report of the commission were not true, or justified by the evidence produced at the hearing; and that the conclusions of law contained in the report, and the interpretation therein given to the act, were not correct. It admitted that it had not wholly ceased charging rates for transportation over its lines for a number of passengers traveling together in one party upon one ticket, which are less for each person than rates contemporaneously charged by it for the transportation of single passengers between the same points, and admitted a violation of the order of the commission. The seventh and eighth paragraphs of the answer are the material ones, and are here given in full:

"(7) That for many years prior to the passage of the said 'act to regulate commerce,' all the railroad carriers in the United States had habitually made a rate of charge for passengers mak. ing frequent trips, trips for long distances, and trips in parties of ten or more, lower than the regular single fare charged between the same points, and such lower rates were universally made at the date of the passage of said act. To carry on this universal practice many forms of tickets were employed to enable different classes of passengers to enjoy these lower rates, and so stimulate travel. To meet the needs of the commercial traveler the thousand-mile ticket was used; to meet the needs of the suburban resident or frequent traveler, several forms of tickets were used, e. g., monthly or quarterly tickets, good for any number of trips within the specified time, and ten, twenty-five or fifty trip tickets, good for the specified number of trips by one person, or