remains as a controlling element in the business world. That free and unrestricted competition in the matter of railroad charges may be productive of evils does not militate against the fact that such is the law now governing the subject. No law can be enacted nor system be devised for the control of human affairs that in its enforcement does not produce some evil results, no matter how beneficial its general purpose may be. There are benefits and there are evils which result from the operation of the law of free competition between railway companies. The time may come when the companies will be relieved from the operation of this law; but they cannot, by combination and agreements among themselves, bring about this change. The fact that the provisions of the interstate commerce act may have changed in many respects the conduct of the companies in the carrying on of the public business they are engaged in does not show that it was the intent of Congress, in the enactment of that statute, to clothe railway companies with the right to combine together for the purpose of avoiding the effects of competition on the subject of rates." 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007.

After careful consideration of the subject, I am of opinion that any contract, agreement, or combination between different and competing railroads, whereby the volume or quantity of freights each or any shall receive for transportation is to be determined by or through any conventional means or agency which was intended to and does suppress competition, either in rate or service or competition directly addressed to shippers, is a traffic pool, within the meaning of section 5 of the commerce act, and that the routing contract here in controversy does so apportion freights among the defendants' Eastern connections, and is essentially such a pool.

Defendants' contention that the order in controversy is unlawful, because legislative in its character, is not well taken. The routing rule or regulation, although embodied in the joint tariff, and therefore a contractual provision between the common carriers who are parties to said tariff, is also in effect a declaration to the public that the practice for which said rule or regulation provides will be followed by the initial carriers, and the order of the commission does nothing more than forbid this unlawful practice, while the injunction prayed for is but the ordinary equitable remedy against a threatened mischief. In Interstate Commerce Commission v. Railway Company, 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243, cited by defendant in this connection, the court simply held that the power to prescribe rates for carriage by a common carrier is not an administrative or judicial, but a legislative function, and has not been conferred upon the Interstate Commerce Commission. In the present case, however, the commission does not undertake to prescribe rates, or any other rule of action, but simply performs the plain judicial function of directing the defendants to desist from an unlawful practice which they have publicly declared their intention to pursue, and in which they are now engaged. The case last cited, therefore, has no application to the case at bar.

The Supreme Court, however, in a sentence which concludes its opinion and immediately follows a clause quoted from said opinion in defendants' brief, states the law in terms peculiarly applicable here, as follows:

"The Legislature may impose a duty, and when imposed it will, if necessary, be enforced by the courts; but, unless a duty has been created, either

by usage, or by contract, or by statute, the courts cannot be called on to give it effect." Express Cases, 117 U. S. 29, 6 Sup. Ct. 542, 29 L. Ed. 791.

Section 5 of the commerce act, by declaring unlawful certain contracts, agreements, and combinations therein mentioned, makes it the duty of common carriers to refrain from entering into such contracts, agreements, or combinations, and the enforcement of this duty is clearly a judicial function. The Supreme Court has heretofore sanctioned an order somewhat similar to the one here involved. Cincinnati, N. O. & T. P. Ry. Co. v. Int. Com. Com., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935.

With reference to the designed and actual effect of the routing rule upon the practice of rebates, which is strongly urged in behalf of said rule, it is only necessary to quote here from my opinion on the demurrer (123 Fed. 602) as follows:

"It is no justification of said rule and practice that they are designed to prevent, and do prevent, unlawful rebates from connecting lines to shippers. Pooling and rebates are both within the prohibitions of the interstate commerce act, and one cannot be employed as a preventive of the other."

On this same line the defendants also contend that routing by the initial carrier, besides breaking up the unlawful and vicious practice of rebates, is also to the best interests of the shipper, in that it tends to secure an efficient and advantageous service from the connecting carriers, not otherwise attainable, in expeditious handling of freights, by speedy return of cars, prompt settlement of claims for losses, better results from the use of refrigerator cars, etc. This argument, however forcible it might be if addressed to Congress in support of proposed amendments to the commerce act, cannot be effectual with the courts, whose duty it is to administer, not change, existing laws.

Defendants' contention that the order of the commission is broader than its findings and conclusions cannot be maintained. The order relates only to the routing provision of the joint tariff on citrus fruits, filed by defendants and their Eastern connections with the commission, and does not purport to interfere with routing by an initial carrier in any other case.

With reference to defendants' contention, that the complainants before the Interstate Commerce Commission were there with unclean hands, it is only necessary to say that in this court the commission represents the public at large, and therefore no participation by said complainants in the unlawful practice of rebates could bar relief here.

My conclusions on the pooling issue render it unnecessary for me to pass upon any of the other questions which have been raised in the case. The defendants will be enjoined from disobedience of said order, and complainant's solicitors are requested to prepare and submit a suitable form of decree.

GOVIN et al. v. CITY OF CHICAGO et al. (two cases).

(Circuit Court, N. D. Illinois, N. D. May 28, 1904.)

1. STREET RAILROADS-FRANCHISES-CONSTRUCTION-LIMITATIONS.

Since prior to the enactment of Act April 10, 1872 (Laws 1871-72, p. 229, art. 5, 1, subd. 24), giving cities organized thereunder power to permit, regulate, and prohibit the operation of street railroads within their limits, such cities had no such power, the act of 1859 (Laws 1859, pp. 530-532), as amended by the acts of 1861 (Laws 1861, p. 340) and 1865 (Laws 1865, p. 597), incorporating the Chicago city railways and providing that such corporations were authorized and empowered to construct, maintain, and operate railways, etc., in the city of Chicago and over and along such street or streets, etc., within the present or future limits of the south and west divisions of the city, as the city council should authorize, constituted a grant to the companies named directly over the streets designated or to be designated, to the extent that the franchise granted was essential to the promotion of street railway facilities, and was not a mere grant to the city to in turn grant a franchise to the railways.

2. SAME-TERM OF GRANT.

The act of 1859 (Laws 1859, pp. 530-532), as amended by the acts of 1861 (Laws 1861, p. 340) and 1865 (Laws 1865, p. 597), incorporating the Chicago city railways, and granting necessary rights in the streets selected and thereafter to be selected, provided that the railways should be constructed, maintained, and operated in such manner, and on such terms and conditions, and with such rights and privileges as the common council has, or by contract with the parties may, prescribe. Held, that such provision did not confer on the common council of the city power to determine the life of the grant as to the use of the streets selected and to be selected, as well as the manner of the exercise of the railway companies' powers, but that the grant extended for the life of the corporation.

8. SAME-CONTRACTS-CONSTRUCTION.

Const. 1870, art. 2, § 14, provides that the Legislature shall pass no law making any irrevocable grant of special privileges or immunities. Article 11, § 1, prohibits the further creation of corporations by special laws, and article 4, § 22, prohibits any grant by special law of a right to lay down railroad tracks. Article 11, § 4, declares that the General Assembly shall not grant the right to construct any street railway within any city, town, or incorporated village without requiring the consent of the local authorities having control of the streets, etc. By Act April 10, 1872 (Laws 1871-72, p. 229, art. 5, § 1, subd. 24), the city councils of cities organized under such act were empowered to permit, regulate, and prohibit the locating, construction, or laying of any horse railroad in any street or public place, which permission was limited to a period not exceeding 20 years. Held, that the act of 1859 (Laws 1859, pp. 530-532), as amended by the acts of 1861 (Laws 1861, p. 340) and 1865 (Laws 1865, p. 597), incorporating the Chicago city railways, and granting to such corporations rights in such streets, bridges, and rivers within the present and future limits of the south and west divisions of the city of Chicago as the common council of the city should authorize, etc., did not constitute a grant in præsenti by the Legislature of streets designated by the city after it exercised its election to adopt and be governed by the provisions of the act on April 23, 1875, as to which streets the railway companies' rights were regulated by the city ordinances affecting the same.

4. SAME-STATUTES-AMENDMENTS-EFFECT.

Act Feb. 19, 1859 (Laws 1859, p. 530) § 1, created certain persons a cor poration under the name of the Chicago City Railway Company, and gave them certain powers, thereafter enumerated, for 25 years, with rights to operate a street railway in the south and west divisions of the city of Chicago; and section 10 (page 531) of the same act provided that all the powers and privileges granted to such persons were conferred on certain

other persons by the name of the North Chicago City Railway Company for the north division, etc. Thereafter, by Act Feb. 21, 1861 (Laws 1861, p. 340), the first and second sections of the former act were amended so that the provision for the life of the corporation was extended for 99 years. Held, that such amendment was not limited to the rights of the Chicago City Railway Company, but applied as well to the rights conferred by the act of 1859 on the North Chicago Railway Company.

5. SAME-MUNICIPAL CORPORATIONS-CHARTERS-TIME OF TAKING EFFECT.

Act April 10, 1872 (Laws 1871-72, p. 218), providing a general city and village charter to be applicable to cities voting to be governed thereby, became applicable to the city of Chicago on the date the vote in favor of accepting the same was counted and declared, and not on the date the vote was taken.

In Equity. On bill for injunction.

The city of Chicago is divided by the Chicago river and its branches, into three natural divisions, known as the south, the west and the north divisions. February 19, 1859, the general assembly of the State of Illinois passed "An Act to promote the construction of horse railways in the city of Chicago" (Laws 1859, pp. 530-532), providing as follows:

Section 1. Be it enacted by the People of the State of Illinois represented in the General Assembly: That Franklin Parmalee, Liberty Bigelow, Henry Fuller and David A. Gage and their successors be and they are hereby created and constituted a body corporate and politic by the name of the Chicago City Railway Company for the term of twenty-five years, with all the powers and authority incident to corporations for the purposes hereinafter mentioned.

Sec. 2. The said corporation is hereby authorized and empowered to construct, maintain and operate a single or double track railway with all necessary and convenient tracks for turnouts, side tracks and appendages in the city of Chicago and in, on, over and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the south or west divisions of the city of Chicago as the common council of said city have authorized said corporators or any of them, or shall authorize said corporation so to do in such manner and upon such terms and condition, and with such rights and privileges as the said common council has or may by contract with said parties or any or either of them prescribe, but said corporation shall not be liable for the loss of any baggage carried on said railway kept in and under the care of its owner, his servant or agent.

Sec. 3. The capital stock of said corporation shall be $100,000, and may be increased from time to time at the pleasure of said corporation. It shall be divided into shares of $100 each and be issued and transferred in such manner and upon such conditions as the board of directors of said corporation may direct.

Sec. 4. All the corporate powers of said corporation shall be vested in and exercised by a board of directors and such officers and agents as said board shall appoint. The first board of directors shall consist of said Franklin Parmalee, Liberty Bigelow, Henry Fuller and David A. Gage, and thereafter of not less than three nor more than seven stockholders, at such time and in such manner as the said corporation shall by its laws prescribe. The said directors shall hold their offices until their successors are elected and qualified; and may fill any vacancies which may happen in the board of directors by death, resignation or otherwise. They may also adopt such by-laws, rules and regulations for the government of said corporation and the management of its affairs and business as they may think proper, not inconsistent with the laws of this state.

Sec. 5. The said corporation is hereby authorized to extend the said several railways herein authorized to be built in the manner aforesaid to any point or points within the county of Cook in this state; and to enable said corporation to construct any or all of the railways herein authorized or their append. ages, the said corporation is hereby vested with power to take and apply private property for the purposes and in the manner prescribed by an act entitled "An act to amend the law condemning right of way for purposes of internal 132 F.-54

improvement," approved June 22, 1852, and the several acts amendatory thereof, and may exercise all the powers conferred upon railroad corporations by the twenty-fifth and twenty-sixth sections of "An act to provide for a general system of railroad incorporations," approved November 5, 1849, ascertaining and making recompense for all damages sustained, agreeably to the provisions of the act hereinbefore first mentioned.

Sec. 6. The said corporation is hereby authorized with the assent of the supervisor of any township to lay down and maintain its said railway or railways in, upon, over and along any common highway in said township, but in such manner as not to obstruct the common travel of the public over the same. In all cases where vehicles shall meet the cars or carriages of said railway, either in the city or county, said vehicles shall give way to the cars or carriages on the railway.

Sec. 7. All of the rights and privileges granted or intended so to be to said Franklin Parmalee, Liberty Bigelow, Henry Fuller and their associates in and by the ordinances of the common council and the amendments thereto, are hereby in all things affirmed and shall pass to and become vested in the corporation hereby created.

Sec. 8. Nothing herein contained shall authorize the construction of more than a single track with the necessary turnouts, which shall only be at street crossings upon State street between Madison and Twelfth streets, except by the consent of the owners of two-thirds of the property in lineal measurement lying upon said State street between Madison and Twelfth streets aforesaid. Nor shall anything herein contained be construed to authorize the company hereby incorporated to permit the cars of any other railroad company whatever, propelled by steam, to be run along or upon the railway of the company hereby incorporated.

Sec. 9. The said company hereby incorporated shall within two years from the passage of this act erect, maintain and operate two railways, one from Lake street to the southern boundary of the city, and one from the south branch of the Chicago river on Madison street to the western boundary of said city, and upon failure to do so this act and all the privileges and franchises hereby conferred shall cease and determine.

Sec. 10. All the grants, powers, privileges, immunities and franchises conferred upon, and all duties and obligations required of Franklin Parmalee, Liberty Bigelow, Henry Fuller and David A. Gage by this act for the south and west divisions of the city of Chicago and the county of Cook, are hereby conferred upon and required of William B. Ogden, John B. Turner, Chas. V. Dyer, James H. Rees and Voluntine C. Turner by the name of the North Chicago City Railway Company for the north division of said city, and said county of Cook, as fully and effectually to all intents and purposes as if they had been by a separate act incorporated with all of said grants, powers, privileges, Immunities and franchises, conferred upon them, and all of said duties and obligations imposed upon them, and the said last named corporation may take, hold, mortgage and convey real estate.

February 21, 1861, the general assembly passed another act (Laws 1861, p. 340) constituting certain persons therein named a body corporate by the name of the Chicago West Division Railway Company, for the term of twenty-five years, and providing that such corporation should possess all the powers conferred by, and be subject to all the provisions contained in, the second, third, fifth and sixth sections of the foregoing act of February 14, 1859.

February 6, 1865, the general assembly of the state passed another act (Laws 1865, p. 597), the first and second sections of which follow.

Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the first section of an act of said general assembly, entitled "An act to promote the construction of horse railways in the city of Chicago," approved February 14, 1859, and the first section of a certain other act of said general assembly, entitled "An act to authorize the extension of horse railways in the city of Chicago," approved February 21, 1861, be, and the same are hereby so amended as that all the words in said respective sections after the word "Company" therein, respectively, shall be and read as follows, viz.: For ninety-nine years, with all the powers and authority here. inafter expressed, or pertaining to corporations for the purposes hereafter men. tioned.