Изображения страниц
[ocr errors]

fix the rate of fare, the rates that shall be paid for fare, but shall not charge more than five cents for each passenger. It also provides that

. the city council may, at the expiration of five years, and at terms of five years thereafter, fix the fare so that such sum shall be just and reasonable, providing it shall not reduce the fare below five cents over any one continuous line.

Now, that contract, as was said, was validated by the acts of the Legislature of 1879, and counsel for defendant admits that it was a valid contract, and as long as the corporation of the complaint continues, so far as it has not been changed by the parties, the ordinance of 1878 may properly be considered as to the power to be used, as it authorized the construction of a single railroad commencing at the intersection of Nicollet avenue and Thirty-First street, and thence on First Avenue South, and thence from First Avenue South to Grant street, thence from Grant street to Nicollet avenue, thence on Nicollet avenue to the southern limits of the city, with all turnouts, switches, and other appurtenances which may be convenient and necessary to operate such line of railway by animal, steam, or other power, so that, notwithstanding the ordinance of 1875, the council assumed the power under that to authorize the use of other power upon specific portions of the street railway. Of course, in this particular ordinance it reserved the right to prohibit the use of steam on any part of that line which it deemed would subserve the public good by such prohibition, and that was also one of the ordinances which was validated by the act of March 4, 1879. My construction of that contract is, so far as the power is concerned, that the street railway agreed to use either animal or pneumatic power in the running of the railway, but there was nothing in that contract which would prohibit both parties to that contract, the street railway and the city together, from changing that provision, and, if they should find that some other power was desirable to be used instead of either horse or pneumatic power, from agreeing that such power should replace the old power and be used instead. In other words, there is nothing in that contract that makes it different from other contracts, or which prohibits the parties to the contract, if they both agree, from changing it in any respect. The parties to the contract might change it by mutual agreement; but one party alone could not change it, of course, without the consent of the other.

Perhaps the only remaining proposition is whether this contract was changed by consent of the parties by the ordinance of September 19, 1890, which ordinance was accepted by the street car company, and which contained very many provisions which I need not refer to, because it is only claimed that this portion of the contract fixing the fare was changed by the eighth section of that ordinance, and which provided that:

"In the construction, maintenance and operation of said lines of railway said Minneapolis Street Railway Company, its successors and assigns, shall at all times be subject to all the conditions and limitations and other provisions of an ordinance entitled 'An ordinance authorizing and regulating the street railways in the city of Minneapolis, passed July 9, 1975, and approved July 17, 1875, as the same has been amended and is now in force' (that is, the original ordinance] and all other ordinances of said city now in force, or hereafter adopted, so far as is applicable.”

Now, it does not seem to me that this touches the rates of fare at all. It says “in respect to construction”—that is not fare. “Maintenance”—that is not fare. “And operation.” That is, how the cars shall be run and what shall be done in respect to that by the street railway company. The company shall be bound by the provisions of this original ordinance and other ordinances amendatory thereof, and all other ordinances of said city “now in force, or hereafter adopted, so far as applicable.” Now, that is true. So far as relates to construction, maintenance, and operation of these lines, the street car company is, by the provisions of this ordinance, and its acceptance of this ordinance, bound, and it is subject to all these things; but there is nothing in this that would bind it to that change as to fares nor permit the council to make such change, nor agree to be bound by any change that the council might thereafter make with reference to the right of the street railroad company to collect fares. That in the original ordinance is a distinct provision. It comes under section 8 of the original ordinance, and is a separate provision in respect to fares and the right of the company to collect fares. This provision in section 8 of this ordinance of September 19, 1890, has no reference to fare at all, but has reference to other subjects, and it certainly is a rule which the most vague ideas of equity would consider necessary to be applied, that there should be no forced construction of language of that kind used to broaden it and extend it to subjects which, apparently, were not by the parties intended to be included under it. It must be plain that both parties would understand naturally the scope and meaning of a provision of that kind, as not referring to fares, and the language must be such that the court could say that the parties must have understood that it did cover the subject of fares, or else it does not cover that subject. If there were other ordinances which were proper to be referred to in such a way relating to the construction, maintenance, or operation of the road, entirely different from a matter of fares, and this general statement that ordinances in the future might be passed relating to the same subject, and, so far as applicable, would be binding upon the company, but would not by any reasonable or fair or honest construction be held to include the provision of this original contract in respect to fares. That was too important a matter.

It seems to me that the general rule laid down by the Suprenie Court of the United States in that Detroit case which has been cited on both sides is very clear on that subject. So in some other of the cases that have been cited. I think that the general and fair understanding applied to contracts would exclude any such thought as that the idea of the subject of fares was contemplated by anything stated in that section. Therefore I shall hold that that section does not, and did not, authorize the city of Minneapolis on the 9th of February last, or now, or at any time, to change or legislate upon the question of what reduced fares the complainant was entitled to collect for its compensation for the carriage of passengers upon its cars.

The result of all this is that I think the injunction must issue as prayed for in the complaint. I have gone over the subject as far as seems necessary.

In re SOUTHERN PAO. CO. et al.

(Circuit Court, N. D. California. August 12, 1907.)

No. 14,269.



An agreement for arbitration between a railroad company and the Order of Railway Telegraphers, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205), providing for arbitration of differences between interstate carriers and their employés, provided for the submission, among others, of the question "whether members of the order of railroad telegraphers in the employ of the employer shall legislate for train dispatchers respecting rates of pay and hours of service or otherwise.” Held, that such question was not limited to an inquiry as to whether the train dispatchers in the service of the employer had authorized the order or its committee to represent them in the arbitration proceedings, which was merely a matter of agency, but that it covered the broader question, as to whether they should be represented generally in their negotiations and dealings with the employer in respect to rates of pay and hours of service by the body of its employés who were members of the order, or should be separately represented, and that the board of arbitration properly admitted evidence offered by the employer to show the nature of their duties, and that their relation to the employer and to its

service to the public was different from that of ordinary telegraphers. 2. SAME-ARBITRATION OF LABOR DISPUTES--FEDERAL STATUTE.

An arbitration of differences between an interstate carrier and its employés, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205), is essentially a common-law arbitration, and rests solely on the written agreement of arbitration entered into by the parties, which limits and determines, not only the rights of the parties thereto, but also the extent of the powers of the arbitrators, and it is to be construed in accordance with the rules governing the construction of contracts, rather than

those applicable to pleadings. 3. SAME-CONSTRUCTION OF AGREEMENT.

A written contract inter partes, as an agreement for arbitration stating the questions to be submitted and determined, must primarily be interpreted by its language taken in its ordinary and accepted meaning, and, if that language is plain and unambiguous in itself, there is no room for construction, but it will be held to mean precisely what its terms imply. It is only when the language is susceptible of more than one construction that the intent or understanding of the parties may be inquired into,

or that evidence of the surrounding circumstances may be resorted to. 4. SAME-SCOPE OF QUESTIONS SUBMITTED.

An agreement for arbitration, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205], between a railroad company and the Order of Railroad Telegraphers whose members employed by the company were working under a schedule agreed to between the parties fixing rates of pay and hours of service, which submitted as one of the questions to be arbitrated “the question of eliminating from the operation of the schedule certain important agencies where the duties of soliciting traffic are paramount," is not ambiguous in respect to such question, which is clearly limited by terms to "agencies where the duties of soliciting traffic are paramount," and cannot be broadened by construction to authorize the board of arbitrators to consider and determine whether the schedule shall apply generally to "station agents whose regular duties do not include telegraphic work and whose annual earnings

equal or exceed" a certain sum.


In an arbitration proceeding to settle differences between an interstate carrier and its employés, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205), which provides in section 4 for a hearing by the Circuit Court on exceptions to the award, and also for an appeal from the court's decision within 10 days, judgment on the award cannot be entered by the court until after the appeal has been determined, or until

after the time for taking an appeal has expired. On Exceptions to Award of Arbitrators.

A. A. Moore, Stanley Moore, and O. D. Richardson, for Southern Pacific Co.

Herman G. Walker, for the Order of Railroad Telegraphers. .

VAN FLEET, District Judge. This is a proceeding in arbitration between the above-named parties, had in pursuance of the provisions of an act of Congress entitled “An act concerning carriers engaged in interstate commerce and their employés," approved June 1, 1898 (chapter 370, 30 Stat. 424, et seq. [U. S. Comp. St. 1901, p. 3205]), commonly called the “Erdman Act.” The proceeding was initiated by a formal contract or agreement entered into between the parties at the city of San Francisco on the 14th day of February, 1907, providing for a board of arbitration to be appointed in conformity with the act to hear and determine the controversy, and which contract, with other matters not necessary to recite, sets forth in exact and precise terms the questions or issues to be submitted to such board. In this contract, as in the act, the railroad company is designated and referred to as the "employer” and the order of telegraphers as the “employés”; and, for convenience, those designations will be hereafter employed in this opinion.

The contract provides that there shall be submitted to the board of arbitration therein provided for four several questions or issues, as constituting the subject of inquiry and adjudication, and those issues are thus stated :

"The questions submitted to arbitration are: (a) Whether members of the Order of Railroad Telegraphers in the employ of the employer shall legislate for train dispatchers respecting rates of pay and hours of service, or otherwise. (b) The question of reduction of hours of service on Sundays for employés. (c) The question of percentage and general increase in salaries of employés. (d) The question of eliminating from the operation of the schedule certain important agencies where the duties of soliciting traffic are paramount.”

Upon these issues a hearing was had and a large amount of evidence taken, covering over 1,500 pages in typewriting and a great volume of exhibits, and the board thereafter, in due time, answering the questions propounded in the order in which they are above set forth, found and awarded :

“(a) That the members of the Order of Railroad Telegraphers in the employ of the employer shall not legislate for train dispatchers regarding rates of pay and hours of service or otherwise.

"(b) That the regular hours of service on Sundays shall be one-half the regular hours of labor on other days, provided that at any station, where it is impracticable or inconvenient for the employer to arrange the service so as to reduce Sunday labor to one-half time, he may arrange to give the employés leave of absence and full pay for 26 days per annum, at such time or times as will cause the employer and the public the least inconvenience.

"(c) That the percentage of general increase in salaries of employés shall be seven and one-half (712) per cent., and that the apportionment of this general increase among divisions and subdivisions of the employer's lines shall be such as may be mutually agreed upon by the employer and the Order of Railroad Telegraphers.

“(d) That the appointment of station agents whose regular duties do not include telegraphic work, and whose annual earnings in the form or salaries and commissions equal or exceed $1,300, shall not be controlled by the schedule or agreement between the employer and the Order of Railroad Telegraphers."

The act provides (section 3, subd. 2):

“That the award and the papers and proceedings, including the testimony relating thereto, certified under the hands of the arbitrators, and which shall have the force and effect of a bill of exceptions, shall be filed in the clerk's office of the Circuit Court of the United States for the district wherein the controversy arises or the arbitration is entered into, and shall be final and conclusive upon both parties, unless set aside for error of law apparent on the record.”

In accordance with that provision, the record therein designated, duly certified as required by the act, was filed in the clerk's office of this court on April 6, 1907.

The act further provides (section 4, par. 1):

“The award being filed in the clerk's office of a Circuit Court of the United States, as hereinbefore provided, shall go into practical operation and judgment shall be entered thereon accordingly at the expiration of ten days from such filing unless within such ten days either party shall file exceptions thereto for matter of law apparent upon the record, in which case said award shall go into practical operation and judgment be entered accordingly when such exceptions shall have been finally disposed of, either by said court or on appeal therefrom."

In pursuance of this last provision, the employés, through their counsel, on April 16, 1907, filed in this court exceptions to the finding and award of the board of arbitration made in response to issues A and D. The specifications against finding A are that the award is contrary to law, that it is not supported by the evidence, and that the board erred in the admission of any evidence under said issue, except evidence as to train dispatchers in the employ of the employer being members of the order of employés, and evidence as to the authority given by a majority of the train dispatchers to employés to represent them in legislating with employer respecting rates of pay, hours of service, and otherwise, as stated in said clause A. The specifications against finding D are that the award is contrary to law; that it is not supported by the evidence; that the board erred in admitting evidence pertaining to matters outside of and not responsive to the questions submitted under said issue; and, lastly, that the finding is not responsive to the question submitted by the agreement of arbitration, but attempts to decide questions which were never submitted for decision, and thereby the board exceeded its jurisdiction. Subsequently, on April 22d, the employés served and filed a notice of motion that they would apply for the "entry of judgment of said court on awards made by said arbitrators on the respective questions submitted to said board of arbitration under clauses B and Ĉ of said agreement of submission,

« ПредыдущаяПродолжить »