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KENTUCKY COURT OF APPEALS.

Isaac T. RUPARD and Wife, Appts.,

0. CHESAPEAKE & OHIO R. CO.

tained in consequence of the fright of his horse caused by the train.

(February 21, 1889.)

(....Ky.....)

the Circuit Court of Clark County entered 1. An Individual, in the exercise of his upon a verdict directed for defendant in an acabsolute rights, if it may be reasonably ap- tion to recover damages for personal injuries prehended that their exercise njay endanger the alleged to have resulted from defendant's neg. safety of others in the exercise of their rights, ligence. Affirmed. must exercise them with a due regard for the safety of such others.

The facts are fully stated in the opinion. 2. It is the duty of a railroad company way and D. W. Lindsey for appellants.

Messrs. G. B. Nelson, Leland Hathawhere a train crosses a public high

Niessrs. J. M. Benton and Breckinridge way on a trestle and there is danger of catching à traveler thereunder unawares and frighten- & Shelby for appellee. ing the horse that he is riding or driving, to give some timely warning of the approach of the train Bennett, J., delivered the opinion of the to the crossing.

court: 8. Whether or not the failure of a rail. The appellant, Patsy E. Rupard, wife of

road company to give warning of the the appellant, Isaac T. Rupard, while riding approach of a train to a crossing on a trestle over on horseback on the public road at a point a public highway is negligence, should be left to where the appellee's road crosses said road on the jury.

a trestle high enough from the ground to ad4. A traveler familiar with the place, mit passage thereunder on the public road by who hurries up to a crossing where a railroad persons on horseback or in vebicles, was passes over the highway on a trestle, and attempts ibrown from her borse by bis becoming fright. to cross regardless of the fact that the train may ened by the noise of the train as it passed over come at any moment, without looking to see the trestle above bim. whether a train is approaching, and without any reasonable excuse for not looking, although the

The appellant was seriously injured by the train could have been easily seen at a distance of fall. It is contended that the injury would several hundred yards, is guilty of negligence not have occurred but for the negligence of which will prevent any recovery for injuries sus. I appellee in not giving timely notice of its ap

NOTE.- Railroad company not liable when exercising to expect some warning upon approaching the rail. its legal rights in a careful manner.

road track. Mynning v. Detroit, L. & N. R. Co. A railroad company is not liable for damage that 7 West. Rep. 3:27, 64 Mich. 93. accrues to others in the exercise of its legal rights

The warnings should be given in the usual custo. by running its engines, etc., unless the damage is mary manner, such as ordinary care and diligence caused by its negligence. Bernard v. Richmond, F. require; and it so given the company will be relieved & P. R. Co. 13 Va. L. J. 184, 8 S. E. Rep. 785.

from responsibility. Georgia Pac. R. Co. v. FreeIt is not liable, while exercising its rights in a law. man (Ga.) 10 S. E. Rep. 277. ful and reasonable manner, for injuries occasioned

The failure of a railroad company to give the by horses, when being driven upon the bighway, warning required by law will not justify a recovery taking fright at noises incident to the movement by a traveler who is injured while attempting to and working of engines.--as, in the escape of steam cross the track in front of a train without looking and the noise and rattling of cars. Abbot v. Kalbus, or listening for the train, Weir v. Canadian P. R. 74 Wis. 504.

Co. Ont. Ct. App. 1889. The authority to operate a railroad includes the Duty of engineer when person seen crossing railright to make the noises incident to the movement road track. See note to Parsons v. New York Cent. and working of its engines.---us, in the escape of & H. R. R. Co. (N. Y.)3 L. R. A. 683. steam and the noise and rattling of cars. Ibid. No action lies against a railroad company for

Duty to signal its approach to highway. the inconveniences necessarily caused to premises It is the duty of a railroad company to give the sig. in the vicinity by noises, smoke, jarring of the nals prescribed by statute, upon approaching the ground, etc., arising from properly and prudently highway, and a failure renders the company liable operating its railroad upon its own lands, or upon where injury is sustained. Authorities cited. Cinland in which the party complaining has no inter- cinnati H. & I. R. Co. v. Butler, 1 West. Rep. 114, est. Carroll v. Wisconsin C. R. Co. 40 Minn. 168. note, 103 Ind. 31; Cincinnati, I. St. L. & C. R. Co. v.

Gaines, 2 West. Rep. 202, 104 Ind. 526; Lilinois Cent. Duty to give warning on arproaching highway cross-R. Co. v. Slater (11.) 21 N. E. Rep. 575. ing.

Railroad trains have the precedence of passing • It is the duty of those in charge of a railroad the crossings of public ways unobstructed; but it is train to give timely and sufficient warning of its the duty of those directing the trains to give all approach to the crossing of a public road; and a proper and suthicient signals of their approach, and failure to perform such duty is negligeuce, the de- to take all reasonable precaution to avoid collision. gree of which depends on the facts and circum- Philadelphia, W. & B. R. Co. v. Hogeland, 5 Cent. stances of each case, to be determined by the jury. Rep. 587, 66 Md. 149; Baltimore &0. R. Co. v. Owings, Eskridge v. Cincinnati, N. O. & T. P. R. Co. 11 Ky. 3 Cent. Rep. 847, 65 Md. 502; Pennsylvania R. Co. v. L. Rep. 557; Philadelphia, W. & B. R. Co. v. Stinger, Horst, 1 Cent. Rep. 96, 110 Pa. 220. 78 Pa. 219; but compare Pennsylvania R, Co. v. Bar- But a recovery cannot be had for personal inDett, 59 Pa. 205.

juries caused by a moving railroad train, merely A foot passenger on a public crossing has a right because the engineer in charge of the train failed

See also 11 L. R. A. 674; 12 L. R. 1. 830; 32 L. R. A. 149.

proach to the crossing by blowing its alarm, on the road itself in common with the traveler, wbistle or by ringing its bell, so as to warn yet it is not true that the public road is not the appellant of its approach to the crossing, used by the appellee and the traveler in comby which she could and would have kept at a mon. "It, the public road, supports the appel. safe distance from the crossing until the train lee's trestle over which its train passes, and the passed it, whereby the injury would have been traveler has a right to pass under the track on &voided.

the public highway; but for his right of pasUpon the conclusion of the appellant's evi- sage on the public highway he would commit dence, the lower court instructed the jury per- a irespass by passing under the track on the emptorily to find for the appellee, which the trestles. The public road, by being trestled jury did.

across, is as much in the occupation of the apThe appellee's contention is that, where its pellee as it would be if its track rested immeroad crosses the public road on a trestle, it does diately upon it, and for the traveler to cross not in common with the traveler have any under the track resting on the trestle, or over privilege in, or use of, the public road itself; the track resting upon the ground would be ibat its road and the public road, though near equally a trespass, but for the protection afand adjacent to each other, are distinct and forded him by reason of being on the public separate; the former bas no rights in the pub- bighway. lic road, and the traveler has no rights in the So it is incorrect to say that the appellee, altrack for the purpose of crossing it; therefore though its train crosses the highway on a the same duties are not imposed upon the ap. trestle, and the travelers, do not use the same pellee that are imposed upon it when it passes in common. over the public road itself in common with the But the question as to the relative duties of traveler; consequently, it has a right to run its the appellee and the traveler rests upon broader train on a trestle where the trestle crosses a grounds. It is the duty of the appellee, as it public road at its common, or any, rate of is of natural persons, to exercise its rights speed, accompanieil by the usual poise attend with a considerate and prudent regard for the ant upon the running of a train, and is not rights of others.”. bound, as a matter of law, to give any warn- Au individual in the exercise of bis absolute ing of its approach to the crossing. In sup. rights, if it may be reasonably apprehended port of the foregoing views the case of Favor that their exercise may endanger the safety of v. Boston & L. R. Corp. 114 Mass. 350, is re- others in the exercise of their rights, must ex.

ercise them with a due regard for the safety We cannot agree to this contention. While of such others. it is true that the appellee's train does not run To illustrate, a person who is constructing a

lied on.

to give the cautionary signals prescribed by the ing cannot assign the violation by the company of Statute (Code, 88 1699, 1700), when it appears that the the statutory duty in respect to sounding the whis. injuries did not result from such failure. East Teo- tle and ringing the bell at the crossing, as the prox. nessce, V. & G. R. Co. v. King, 81 Ala. 177.

imate cause of his injury. Pike v. Chicago & A. Ro Under the Missouri Statutes a prima facie case of Co. 39 Fed. Rep. 754. negligence is made when the plaintitf shows that The omission of the employés of a railroad com. the statutory signals were not given. Huckshold pany to ring a bell or blow a whistle as required by v. St. Louis, I. M. & S. R. Co.7 West. Rep. 764, 90 Mo. law is material in estimating the amount of care 548.

that one who was struck and killed by a train while Must ring bell or blow whistle.

attempting to cross the track should have observed The statute imposes the obligation on railroads to before attempting to cross the track. Rodrian v. ring a bell or sound a whistle when approaching New York, N. H. & H. R. Co. 28 N. Y. S. R. 625. the crossing of a public highway, and imposes a

And the finding by the jury that the bell was rung penalty for violation of the rule. State v. Chicago, would not necessarily establish due care, if the cir. R. I. & P. R. Co. 1 West. Rep. 400, 19 Mo. App. 104.

cumstances required other and additional precau. The statute requires this to be done at intervals. tions. Finklestein v. New York Cent. & H. R. Ro Alexunder v. Hannibal & St. J. R. Co. 1 West. Rep. Co. 41 Hun, 34. 440, 19 Jo. App. 312.

The fact that a street has been discontinued by If either the bell or the whistle is sounded, the the commissioners of bighways, but not practically statute is complied with. Terry v. St. Louis & S. F. closed, will not relieve a railroad from giving warna R. Co. 6 West. Rep. 445, 89 Mo. 586.

ing signals on its approach to a highway. Rodrian The exception as to cities applies only to the v. New York, N. H. & H. R. Co. 28 N. Y. S. R. 625. sounding of the steam whistle, and it is negligence to omit ringing the bell. Coffin v. St. Louis & S. F.

Duty to slacken speech R. Co. 4 West. Rep. 885, 22 Mo. App. 601.

Where the track crosses a much-traveled highThe statutes of Illinois require the bell or whistle way, without statutory provision it is the duty of to be sounded at a certain distance from the cross- the company to give sutlicient notice of the train's ings (Mobile &0. R. Co. v. Davis (I11.) 22 N. E. Rep. approach, and to moderate the speed of the train to 830); in Alabama at least one fourth of a mile be- such a rate as, under the circumstances, is reason. fore reaching a public-road crossing. Louisville & ably consistent with the public safety. Lehigh N. E. R. Co. v. Hull, 4 L. R. A. 710, 87 Ala. 708. Valley R Co. v. Brandtmaier, 5 Cent. Rep. 144, 113

The statute requiring the ringing of a bell or Pa. 610. blowing of a whistle on a railroad train eighty rods The statute requiring the engineer, where he can. distant from a crossing, and continuing it until the not see at least one fourth of a mile ahead, to recrossing is passed, is no less obligatory because the duce the speed of his train before entering a curve train is running upon a side track for the reason crossed by a public rvad only applies to such crossthat the main track is obstructed by a standing ings as are particularly described, his duty at other train. Brown v. Griffin, 71 Tex. 654.

crossings being as at common law. East Tennessee, A party injured a half mile from a railroad cross- I V. & G. R. Co. v. Deaver, 79 Ala. 216.

brick wall abutting a public street on wbich should be under the trestle with his horse while travelers frequently pass may be liable in dam- the train is passing over it, tbe danger is in. ages for the falling of a brick on a traveler creaseil, for it is well known that a horse is from the bands of one of bis workmen, al- more likely to scare at a sound made over his though the workman was not negligent in bead than when the same sound is made on the letting the brick fall and the immediate cause ground. So wbere the train crosses the public of the fall of the brick was accidental; but if bigb way on a trestle, and in view, as above init was an accident which the person, building timated, of the frequency of travel, on borsethe wall, in view of the danger to the life and back or by driving, on the public bigliway, limb of travelers on the street, should reason. and the facility of seeing the train, as it ap ably contemplate, he should provide against proaches the crossing, in time to prevent in. the same by safeguards and barriers, so that jury by scaring the horse, the danger of catchtravelers might not be exposed to the danger, ing the traveler unawares and frightening the else he will be responsible in damages for the horse that he is riding or driving may be reainjury. Jager v. Adams, i23 Mass. 26. sonably apprehended, it is its duty to give

It is precisely upon the same principle that some timely warping of its approach to the the appellee is made liable for injuries 10 trav- crossing. And the question as to whether or elers at crossings. It is no excuse or justifica not the failure to give such warning is negli. tion that the act that caused the injury was in gence sbould be left to the jury. itself lawful or “that it was done in the exer- For an able presentation of the foregoing cise of a lawful right, if the injury arose from views, see the case of Pennsylvania R. Co. v. the negligent manner in which it was done.Barnett, 59 Pa. 263.

Injury may occur to the traveler at the cross- But it conclusively appears from the appel. ing in two ways, namely: by a collision with lant's own testimony that sue received the in. him, or by scaring the horse that he is riding jury in consequence of her own negligence. or driving, whereby he is injured. It is the She was familiar with the crossing and its surduty of the appellee in approaching a crossing, roundings; the track, in the direction that the if danger to the traveler in either of the ways train was coming, was clear of obsiruction above mentioned may be reasonably appre- several hundred yards, and she could have hended, to give timely notice of its approach, seen the approaching train that distance, bad in order that the traveler may not only be she looked, but she did not look; nor did she warned not to come in collision with the train, give any reasonable excuse for not looking, but secure himself from injury by his fright- but hurried up to the crossing and attempteri ened horse. By the trains crossing the high- to cross, regardless of tbe fact that the uain way on a trestle, there is no danger of a col- might come at any moment. So, as it conciu. lision with a traveler on the highway, but if he sively appeared that the injury was the result

It is the duty of a company to observe due cau- , reasonable as to justify a court in setting it aside, tion and all reasonable efforts to prevent injury to where there is no evidence to show whether the lo. persons who may be on its tracks when approach- cality was or was not sparsely settled. Weyl v. ing a crowded city. Duffy v. Missouri P. R. Co.2 Chicago, M. & St. P. R. CO. 40 Minn. 350. West. Rep. 198, 19 Mo. App. 380. See note to Parsons v. New York Cent, & H. R. R. Co. (N. Y.) 3 L. R. A. Duty of traveler to stop, look and listen. 683.

The rule as to the duty of a person approaching Running a train in an incorporated town at a

a railroad crossing to stop and look and list on for greater rate of speed than six miles an hour does the approach of trains is not a rule of evidence, not impose absolute liability, under Miss. Code, but one of absolute and unbending law. Pennsyl. $ 1047, for the killing of cattle, unless the killing re

vania R. Co. v. Aiken (Pa.) 20 Pittsb. L. J. N. S. 18 sulted from or wus rendered inevitable by the rate 25 W. N. C. 13. of speed. Louisville, N. 0. & T. R. Co. v. Caster,

It applies as well to persons walking as to those (Miss.) 5 So. Rep. 388.

driving. Ibid. Where a train was run at twelve miles per hour, When the track is hidden from one's view for somo without its bell being constantly rung, in violation distance, and the noise made by his own wagon in. of an ordinance, and decensed was run over and terferes with his hearing the approaching trun, it kilied instantaneously with his stepping on the is his absolute duty to stop his team and listen betrack; and the engine was not reversed till after it fore attempting to cross the track. Abbot v. paszel over hiin,-it was negligence per se upon the Dwinnell, 74 W is. 514. part of the railroad company. Henry, Ch. J., dis

One who recognized the approach of the train septs. Keim v. Union R. & T. Co. 7 West. l'ep. 144, should remain in a place of safety, and should be 90 Mo. 314.

undertake to cross imprudently he will be guilty of A municipal ordinance regulating the rate of negligence and cannot recover damages. McNeal speed of trains, and requiring the display of signals v. Pittsburgh & W. R. Co. (Pa.) 25 W. N. C. 181. on moving trains at night, applies to the private Where he exercised no diligence in listening and switch-yards of a railroad company situated within looking for the train, and does not pretend igno. the corporate limits. Grube v. Missouri Pac. R. Co. rance that it was train time, or surgest any mistake (Mo.) 11 S. W. Rep. 736.

or misa pprehension, he cannot recover for injuries A city ordinance limiting the speed of trains in received from the train. Smith v. Central R. & only one part of a city where a railroad runs is un- Bkg. Co. 82 Ga. 801. reasonable and void where there is no material dif- No amount of negligence on the part of a railway ference between the character of such part and of company in failing to close its gates at a crossing another part of tbe city through which a compet- will absolve a traveler from the duty to stop and ing line runs. Lake View v. Tate (III.) 6 L. R. A. 268. listen. Lake Sb re & M. S. R.Co.v. Franz, 4 L. R. A.

An ordinance prohibiting a greater rate of speed 389, 127 Pa. 297; and see note to Freeman v. Dulutb than four miles an hour by railroad trains within a s. S. & A. R. Co. (Mich.) 3 L. R. A. 594; Greenwood v. city's limits is not so palpably and manifestly un-Philadelphia, W. & B. R. Co. (Pa.) 3 L. R. A. 44.

of the appellant's own negligence, the instruc- ling was obtained in this case, but counsel tion was not improper.

finally neglected to avail themselves of the ex. The judgment is affirmed.

tension, and the extended time expired with.

out the filing of such petition, and the decis. An extension of the time for filing a rebear-lion thereby became absolute.

OHIO SUPREME COURT.

STATE of Obio, ex rel. J. A. KOHLER, 3. Where such corporation ixes a rate Attorney General,

of freight per hundred pounds, for carrying petroleum oil in oil-tank cars, substantially lower

than its rate for transporting it in barrels in car. CINCINNATI, WASHINGTON & BALTI.

load lots, it is exercising “a franchise, privilege MORE R. CO.

or right in contravention of law" within the

meaning of the fourth clause of 8 6761, Rev. State SAME 0.

(March, 4, 1890.) CINCINNATI, NEW ORLEANS & TEXAS

ET
PACIFIC R. CO.

ants from certain franchises alleged to be (....Ohio St.....)

illegally exercised by them. Judgment of ouster. •1. Where a railway company, incorpo

Statement by Bradbury, J.: rated under the laws of this State, mis the referee, Hon. Channing Richards, disclose

The pleadings, together with the report of uses a franchise, privilege or right conferred upon it, or claims the right to exercise, or has that the Cities of Marietia, O., and Parkersexercised “a franchise, privilege or right in con- burg, West Va., are situated on opposite sides travention of law," this court has jurisdiction to of the Obio River, about twelve miles apart; inquire into and correct the mischief, though the that one of the defendants, the Cincinnati, corporation may be engaged in interstate com- Washington & Baltimore Railway Company, meice, and the misuser or usurpation to be cor- owns and operates a railway that connects Ma. rectej relate to and concern that traffic.

rietta directly, and, by means of a railway 2. A corporation, created'by this state, bridge across the Ohio River at Parkersburg,

and engaged in carrying goods for the latter place, also with the City of Ciucin. biro as a common carrier, hus no franchise, privi- nati, Ohio, where it bas connections with an legt or right to discriminate in its freight rates in extensive system of railways operated by the favor of one shipper, even when it is necessary to other defendant, the Cincinnati, New Orleans dc so to secure his custom, if the discriminating & Texas Pacitic Railway Company, both which rate wil tend to create a monopoly by excluding railway companies are corporations created by from their proper markets the products of the and under the laws of this State; and that the competitors of the favored shipper.

entire line of the first-named Company lies *Head notes by the COURT.

within the State, while only about one mile of

NOTE.-Quo warranto, for illegal exercise of corpo- Original jurisdiction is conferred on the supreme rate franchise.

court by the Constitution. People v. Boughton, 5 A private corporation created by the Legislature Colo. 487; State v. Milwaukee, L. S. & W. R. Co. 45 may lose its franchises by a misuser or a nouuser of Wig. 579. them; and they may be resumed by the government, In New York the remedies may now be obtained under a judicial judgment upon a quo warranto to by civil action. People v. Hall, 80 N. Y. 117. Seo ascertain or enforce forfeiture. State Board of note to State v. Minnesota T. Mfg. Co. (Minn.) 3 L. Education v. Bakewell, 8 West. Rep. 49, 122 11. 339; R. A. 510. Terrett v. Taylor, 13 U.S. 9 Cranch, 51 (3 L. ed. 653);

The granting of leave to file the information is State v. Real Estate Bank, 5 Ark, 595; People v. within the sound discretion of the court. People Manhattan Co. 9 Wend. 351.

v. Waite, 70 NIL 25; People v. Moore, 73 11. 132; State The writ of quo warranto is the proper remedy v. Smith, 48 Vt. 266. for usurpation of a franchise. Reynolds v. Bald. When the attorney-general ex officio Oles an in. win, 1 La. Ann. 162; State v. Ramos, 10 La. Ann. 4:20. formation, no leave of court is requisite. Vanatta

It may be maintained in the name of the people v. Delaware & B. B. R. Co. 38 N. J. L. 282. to restrain a corporation from exercising authority The information is properly filed against the cornot possessed by it under its charter or by law. porate body, not the individual members. State v. People v. New York, 32 Barh. 35, 10 Abb. Pr. 144; Barron, 57 N. H. 408; State v. Taylor, 25 Ohio, 280. Com. v. Delaware & H. Canal Co. 43 Pa. 295; People One charged with having usurped powers and v. Utica los. Co. 15 Johns. 358.

franchises and exercising the same without authorAn information in the nature of a quo warranto ity of law must either justify or disclaim the al Against a private corporation is a public prosecu- leged acts. Illinois M. R. Co. v. People, 84 111. 428. sion. People v. Golden Rule, 114 III. 34.

It is not competent for this court, in a quo wir. It is of legal, not equitable, cognizance, and the ranto proceeding ousting an acting corporation of issues therein are strictly legal. People v. Albany the franchise to be a body corporate, to consider or & S. R. Co. 57 N. Y. 16).

determine the rights or liabilities of third parties It is a civil suit and must be governed by the rules acquired and incurred in their dealings. Society applicable thereto, and be proceeded with like any Perun v. Cleveland, 1 West. Rep. 506, 43 Ohio Sto other civil action, Central & G. Road Co. v. Peo- 481. See note to State v. Minnesota T. Mfg. Ca. ple, 5 Colo. 39; Atchison, T. & S. F. R. Co. v. People, (Minn.) 3 L. R. A. 510. Id. 60, State v. Lingo, 26 Mo. 496.

the extensive system operated by the last- Scofield v. Lake Shore & M. 8. R. Co. 1 West. pamed Company is so located, the remainder Rep. 812, 43 Ohio St. 571; Talcott v. Pine tl ereof extending through the States south of Grove 1 Flipp. 120; Crouch v. London & v. W. the Osio River. That the Camden Consoli. R. Co. 14 C. B. 255; Parker v. Great Western dated Oil Company, a branch of the Standard R. Co. 7 Scott, N. R. 835. Oil Company, owns and operates an extensive Messrs. McClintick & Smith and Ed. establisliment at Parkersburg, West Va., for ward W. Strong, for the C. W. & B. R. retining petroleum oil; and that there are a Co., defendant: Dumber of smaller establishments at Marietta, The petition is based wholly upon the ground 0., engaged in the same business, pot connect that the defendant has misused the frunchise, ed, however, with the Standard Oil Company, privilege and right conferred upon it by law, one of wbich, owned and operated by George or bas exercised a franchise, privilege or right Rice, is of considerable magnitude, though in contravention of law. much less extensive than the Camden Consoli- 3 Rev. Stat. S 6761, p. 386. dated Oil Company. That the several owners Acts of misuser must relate to matters which of these oil refineries mainly depend for trans- are of the essence of the contract between the porting their finished product to its principal State and the corporation, and they must be market, the towns and cities south of the Ohio willful and repeated. River, upon the railways owned and operated Harris v. Mississippi Valley & S. I. R. Co. by the defendants, both of whom are common | 51 Miss. 602; Com. v. Pennsylvania Com. Bank, cărriers of freight and passengers. That there 28 Pa. 383; State v. Nero Orleans Gaslight & are two methods of transporting oil to market, Bkg. Co. 2 Robt. (La.) 529. in use by retiners and wholesale dealers, one Mere mistake in the mode of exercising a in barrels shipped in carload lots, in cars fur power will not be such a misuser as to constinished by the carrier, the other in iron-tank iute a ground of forfeiture. cars owned and furnished by shippers; and that People v. Kingston & M. Turnp. R. Co. 23 defendants furnished no tank cars, and did not Wend. 193. hold themselves out as prepared to transport If violation of the law has been shown, the oil in that way; and that the tank cars on the same law has provided an extraordinary remedy road of the Cincinnati, Washington & Balti- and punishment, which indicates the intention more Railway Company were owned and of the Legislature to limit the party aggrieved controlled by the Camden Consolidated Oil to this particular statutory relief. Company, while those on the road of the Cin- Coin. v. Breed, 4 Pick. 460; Scofield v. Lake cinnati, New Orleans & Texas Pacific Rail. Shore & M. 8. R. Co. 1 West. Rep. 812, 43 way Company were owned and controlled by Obio St. 571; Peters v. Marietta & C. R. Co. the Chess Carly Company, a branch of the 42 Ohio St. 275. Standard Oil Company, located in Kentucky, A judgment of forfeiture will not be ordered and that the Camden Consolidated Oil Com if there be any other remedy for the grievance pany and the Chess-Carly Company usually complained of. adopted the iron-tank car method of shipment, High, Extr. Legal Rem. 619; State v. Cinall other retiners using the barrel method cinnati Com. Bunk, 10 Obio, 539; State v. only. That for some years prior to the bring. Farmers College, 32 Obio St. 489. ing of this action the freight rates estab- Discrimination in rates of freight, if fair and lished by defendants for transporting oil in reasonable, and founded on grounds consistent tank cars, were made much lower than those with public interest, is allowable. for transporting it in barrel packages in car- Hersh v. Northern Cent. R. Co. 74 Pa. 181; load lots, and that the rates cbarged George Chicago & A. R. Co. v. Pe ple, 67 Ill. 11; FitchRice and other refiners and wholesale shippersburg R. Co. v. Gage, 12 Gray, 393; (arton v. over these railroads by the barrel method were Bristol & E. R. Co. 1 Best & S. 112, 154, 165; much higher than the rates charged the Cam- McDuffee v. Portland & R. R. Co. 52 N. H. den Consolidated Oil Company and the Chess- 430, 3 Am. & Eng. R. R. Cas. 602; Ransom v. Carly Company respectively for similar serv- Eastern Counties R. Co. 1 C. B. N. S. 437, 4 ices by the barrel method; so that, whatever C. B. N. S. 135. method was adopted, a marked discrimination Forfeitures are not favored. was made in favor of these two companies. High, Extr. Legal Rem. 619; State v. Cincin

Any further statement of facts necessary to nati Com. Bank, 10 Obio, 539; People v. Kingsunderstand the decision will be found in the ton & M. Turnp. R. Co. 23 Wend. 211; Re opinion.

Franklin Teleg. Co. 119 Mass. 448; Stute v.

Farmers College, 32 Ohio St. 489. Messrs. J. A, Kohler, Atty-Gen., W. B. MC88r8. Harmon, Colston, Goldsmith Loomis, A. D. Follett and George K. & Hoadly, for C., N. 0. & T. P. R. Co., Nash, for relator:

defendant: An Ohio railroad company has no right to The States bave do jurisdiction whatever give lower rates to a favored shipper. Such a over interstate commerce, and a money pen. corporation makes an unlawful discrimination alty cannot be imposed by state law for & in favor of the larger shipper contrary to pub. breach of duty relating to interstate commerce. lic policy, when, in consideration of the fact If such a breach cannot be the basis of a tine, that such shipper furnishes a greater quantity much less can it justify the most severe penalty of freights than other shippers during a given which by law can ever be inflicted upon a corpotime, it agrees to make a rebate on the pub. ration, namely, the forfeiture of its franchise. lisbed tariff on such freights, to the prejudice See Wabash, St. L. & P. R. Co. v. Illinois, 118 of other shippers of like freights under the U, S. 557 (30 L. ed. 244); Com. v. Housatonic same circumstances.

R. Co. 3 New Eng. Rep. 449, 143 Mass. 264.

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