Express Company at Minneapolis. There is no testimony that any particular person, company, firm, corporation, or any particular description of traffic is given preference or advantage, for the reason that no particular person, company, firm, corporation, or any particular description of traffic is specified or shown to have been given any preference or advantage. It remains to be determined whether any particular person, company, firm, corporation, or any particular description of traffic is subjected to any prejudice or disadvantage, in any respect whatsoever, by the enforcement of said rule. The court is of the opinion that the language of the statute referred to must be construed as only prohibiting the subjection of any particular person, company, firm, corporation, or any particular description of traffic to an unreasonable prejudice or disadvantage. The board of railroad commissioners seem to have put its construction upon the law, as appears from their findings and conclusions, and the court is of the opinion that this view of the law is correct, as the Legislature could not have intended a literal enforcement of the statute, because that would leave the express company no discretion in the conduct of this business whatever, and, if the law could be construed as prohibiting any prejudice or disadvantage, the validity of the law would be in danger. A similar clause in the act of Congress, known as the "Interstate Commerce Act," contains the words "undue and unreasonable," and the court believes that the present law should be interpreted as though these words were in the law. We must now determine whether the rule as enforced at Aberdeen subjected the Aberdeen National Bank or the traffic of money shipments to an unreasonable prejudice or disadvantage. Taking the hours at which the Aberdeen National Bank or any other shipper of money at Aberdeen must present money for shipment to the United States Express Company, the court is of the opinion that it plainly appears that the time prescribed for such presentation is unreasonable, considering the question of time alone. If it is an unreasonable time, then it follows that the bank and the traffic is subject to prejudice and disadvantage, for the reason that the requirements of the rule prescribed by the company are unlawful, as the law requires the company as a common carrier to receive property which it offers to carry at a reasonable time. This is the common law as well as the law of South Dakota, which is no more than a codification of the common law. The law of the state of South Dakota, as expressed in section 1578 of the Revised Civil Code of 1903 of South Dakota, reads as follows: "A common carrier must, if able to do so, accept and carry whatever is of fered him at a reasonable time and place, of a kind that he undertakes or is accustomed to carry." The court unhesitatingly finds that the hours at which the United States Express Company requires shippers of money to present their money for shipment at Aberdeen are not reasonable, within the meaning of the law, considering the question of time alone. Supposing the trains of the Chicago, Milwaukee & St. Paul Railway Company, instead of leaving at the hour specified, left at 1 o'clock each day, would the express company receive money packages for shipment on those trains at 6:30 in the morning. Using common sense in our judgment, we must answer this in the negative, and we think that the company would have a perfect right to say that that time of day was an unreasonable time, and that it could not be compelled to keep its office open for the receipt of express matter at such time. So far as the question of time is concerned, the bank could no more be compelled to present its money for shipment at 6:30 a. m. than the express company could be compelled to receive it at that time. We are not living in the days when Lane v. Cotton was decided, and what is a reasonable or unreasonable time for the presenting of money for shipment by express companies must be determined by the conditions which exist now, and with reference to the way business is now conducted, and the office hours of the banks. It seems plain, when considering merely the time of presentation, that the hours fixed by the express company are unreasonable, and it necessarily follows that, if they are unreasonable in themselves, the bank and the traffic in the shipment of money are subjected to unreasonable prejudice and disadvantage, within the meaning of the statute. It is urged, however, that a compliance with the order of the board of railroad commissioners will necessitate an expenditure of, on the part of the express company, that will prevent its earning any profit whatever on its money shipments. This presents the question whether a common carrier, which has violated the valid laws of a state, may urge in justification of such violation that to obey the law would compel it to do business without profit. The state, through the board of railroad commissioners, is not seeking to tell the express company what it should charge for the carrying of these money shipments; nor is it seeking to compel the express company to carry money at all. It is simply asking that, if the express company shall choose to do business in this state, it shall obey its laws. The proposition would seem to be plain that the express company, if it cannot receive money shipments in accordance with the laws of the state and make any money thereby, good business judgment would require it to cease carrying money, and, judging from the testimony in this record, the express company would not be injured to any appreciable extent if it should cease to carry money. It is further urged that the defendants cannot complain of the rules enforced by the express company for the reason that the United States is carrying money by mail out of Aberdeen for less than the express company can carry it, and that the bank and all other shippers of money may use the United States mail, and therefore they are not prejudiced by the rule of the company. This presents the question whether a common carrier, which is holding itself out to the public as a common carrier of money, may say, in answer to a person who complains of the unreasonableness of its rules, that there are other ways by which you can ship your money, and in this manner avoid a compliance with the laws of the state. We think the proposition is wholly untenable, so long as the express company holds itself out as a common carrier of money. The Aberdeen National Bank, under the laws of the state, has a right to present money to it for shipment at a reasonable time, and, if it does, the express company is bound to receive it, and it cannot say to the bank, "You can ship your money some other way," un less, of course, the company desires to cease the business of being a common carrier of money, which it is at liberty to do at any time. In the judgment of this court the order of the board of railroad commissioners was well within the power and authority of the board, and its conclusion upon the facts correct. It remains to be considered as to what shall be the judgment of the court. The usual judgment that should be entered would be a dismissal of the bill for want of equity; but the defendants, having set up all the facts by cross-bill, pray for an enforcement of the order of the board of railroad commissioners. Complainant urges that this court is without jurisdiction to enforce said order, and cites the provisions of chapter of the Revised Political Code of South Dakota of 1903, wherein it is provided that, when any common carrier subject to the provisions of said chapter shall refuse or neglect to obey any lawful order or requirement of the state board of railroad commissioners, it shall be the duty of said commissioners, and lawful for any other person or company interested in such order, to apply in a summary way by petition to the circuit court in any county in the state in which the common carrier complained of has its principal office, or in any county through which its lines of road passes or is operated, or in which the violation or disobedience of said order or requirement may happen, alleging such violation or disobedience as the case may be, and that said court shall have power to hear and determine the matter and enforce its judgment by writ of injunction or other proper process, mandatory or otherwise. The complainant did not wait for the bank or the railroad commissioners to take the course pointed out by the state statute for the enforcement of the order, but voluntarily came into this court, and obtained an injunction restraining the defendant from taking the necessary steps in conformity to the state statute. The defendants not only answered the bill, but came into court by way of cross-bill setting up all the facts, and asked that the court enforce the order. If the defendants had proceeded under the state statute, the express company would undoubtedly have removed the case to this court, and it would have been here for determination in any event. Mississippi Railroad Com. v. Ill. C. R. Co., 27 Sup. Ct. 90, 51 L. Ed. —. But, without speculating about what may happen, it does appear that this court has jurisdiction of the parties and the subject-matter. Why should it not do complete justice? There seems to be no valid objection in the way, and the court will grant the prayer of the defendants, contained in the cross-bill, by entering a decree directing that a permanent injunction issue in this case, enjoining the United States Express Company from further refusing to obey the order of the railroad commissioners, herein complained of. Said decree shall also provide for the dissolution of the temporary injunction issued herein. Thirty days' stay of proceedings subsequent to the entry of decree will be granted so that complainant may appeal, if he shall be so advised. And it is so ordered. THE WERDENFELS. THE TRANSFER NO. 11. (District Court, S. D. New York. February 1, 1907.) 1. COLLISION-SUIT FOR DAMAGES-ISSUES-DECREE. In a suit for collision, the grounds of fault relied on should be covered by the pleadings, and cannot be put forward for the first time in argument after the case has been tried and closed on other issues. 2. SAME-STEAM VESSELS MEETING-FAILURE TO CARRY OUT PASSING AGREEMENT. A collision in the daytime in Hell Gate, near Hallets Point, between an ocean steamer bound for New York and a car float in tow on the side of a tug bound for Oak Point, held, on conflicting testimony, due solely to the fault of the tug in failing to carry out an agreement to pass to the right made when the vessels were a quarter of a mile apart. [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Collision, §§ 1C, 10, 39.] In Admiralty. Cross-suits for collision. William Greenough, for New York, N. H. & H. R. Co. James J. Macklin, for cargo in cars and advocate for New York, N. H. & H. R. Co. Wing, Putnam & Burlingham, for the Hansa Line. ADAMS, District Judge. This action arose out of a collision which occurred about 3 o'clock P. M. on the 18th day of April, 1906, in Hell Gate, between Hallets Point and Negro Point, Wards Island, between the German steamship Werdenfels, bound from Boston to New York, and the New Haven Railroad Company's car float No. 52 in tow on the port side of the tug Transfer No. 11, bound from Communipaw to Oak Point. The steamer was 375 feet long. The tug had a car float on each side, No. 51 being on the starboard side. Each float was about 300 feet long and projected about 150 feet ahead of the tug. The tide was flood and of about 5 knots in strength. The weather was clear. A pilot had brought the steamer to City Island and there an East River pilot, who had been taken aboard at Boston, took charge of the vessel. The The tug was in charge of a regularly qualified master. Each vessel saw the other in time and duly exchanged signals to go to the right. The New York, New Haven & Hartford's claim is for about $40,000, and is set forth in its libel as follows: "Third. That on or about the eighteenth day of April, 1906, the steamtug "Transfer No. 11' left the terminal of the Central Railroad of New Jersey, at Communipaw, at 1.50 P. M., with car float No. 52 in tow on her port side and car float No. 51 in tow on her starboard side, bound for Oak Point; that when the Transfer and her tow arrived at a point in the East River, off and slightly to the west of Hallett's Point, she blew a long blast of her whistle as warning signal to warn vessels rounding said Point or rounding Negro Point on Ward's Island of her approach, and after passing Hallett's Point, a vessel, which afterwards proved to be the German steamship 'Werdenfels', was seen bound west, near the Ward's Island shore, and to the eastward of Negro Point. "Transfer No. 11' slowed down and the steamship blew a signal of one whistle which the Transfer answered with one whistle at once and put her wheel to port and went ahead and hooked up. When the steamship came out from behind Negro Point, not having taken proper precaution, the flood tide, setting from the Point towards the Long Island shore, struck her in such a manner that she failed to comply with her signal of one whistle, but instead sheered over towards the Transfer and her tow; that without slackening her speed after she began to sheer, the steamship blew an alarm whistle which the Transfer answered and kept on at full speed, as it was impracticable for her to stop or back in the swift tideway at the point in question. The steamship then blew a signal of one whistle which the Transfer answered with one whistle, and kept her wheel to port, but the steamship failed to comply with her signal and alter her course to starboard, instead of which she continued to sheer towards the Transfer and her tows, in such a manner as to make collision imminent. When the bow of the steamship had passed abreast of the bow of the port float, the Transfer's wheel was put hard to starboard and the Transfer's engines set full speed ahead, in order to swing, if possible, the stern of the floats away from the bow of the steamship, but owing to the speed at which the steamship was proceeding, she came into collision with the port side of the port float, about amidships thereof, damaging the float seriously and breaking it loose from its fastenings to the said Transfer, as well as the float on the starboard side of the Transfer, and pushing five of the freight cars upon said port float overboard into the river, where the same became submerged, and leaving two more of said cars hanging over the bow of the float. That as a result of said collision the cargo of said cars was very seriously damaged and may become a total loss. That the collision happened at 2.55 P. M. The tide at the time was strong flood, the weather clear and the wind light." The owner of the steamer's claim is for $5,000 and is set forth in its libel as follows: "Second. On April 18th, 1906, the Werdenfels partly laden with a general East India cargo and in passage from Boston to New York, passed City Island, bound through Hell Gate, at about two o'clock P. M. The day was clear, with little or no wind, and the tide was running strong flood. The vessel was in charge of a Hell Gate pilot, who was on the bridge with the master and second officer, and an experienced able seaman at the wheel. The chief officer was forward on the forecastle head, and a sharp lookout was kept. As the steamship passed the dock at Ward's Island she began blowing a long bend signal and continued it for fully a minute. As she approached Negro Point she sighted, off Hallett's Point, but well over towards Flood Rock and more than half way across the Gate, a tug which proved to be Transfer No. 11, bound east with two loaded carfloats in tow, one on each side, 52 being the starboard float and 53 the port float. As soon as the steamship sighted the tug, she gave her a signal of one blast, and ported her wheel. The tug made no reply, and the steamship's engines were at once slowed down and a second signal of one blast was given, which the tug answered with one. If the Transfer No. 11 had ported her wheel and kept over towards the Long Island shore, as she could easily have done, there would have been no possibility of collision; but apparently she made no effort to keep over, and the Werdenfels gave her another signal of one blast, put her engines full speed astern, and blew three blasts. Although the steamship was under reversed engines for two minutes, and her way was almost off, the tug swung her port float directly into the steamship's bow, indenting several plates on each bow, bending frames and reverse frames, starting and breaking rivets and doing other serious damage to the steamship. Float No. 52 was also damaged and several of the cars loaded thereon ran off the tracks." The allegations in the pleadings cover numerous charges of fault but it is not necessary to consider any save such as relate to the failure of 150 F.-26 |