EX PARTE KOEHLER.
867
Ex 1.
KOlmLlJlR,
Receiver,etc.
«(;fr/fuit Court, D. Oregon. April 4, 1887.) , RAILROAD COllPANIll:S-INTEltSTATE COMMERCE-WHAT'IS.
The transportation of from one state to another is interstate commerce, whether the carriers engaged in moving it, or the vehicles on which it is borne, cross the line of the state or not. " This act does not include or app'ly to all carriers engaged in interstate combut only such as use a raIlway, or a railway and water-craft, "under common control,management,or arrangement for 8 continuous carriage or shipment" of property froJ:D one state to another; nor does it apply to the carriage of property by rail wpolly within the state, although shipped from or destined to 8 place without the state, so that such place i8 not in a foreign country.
2.
S-AME-"INTll:1t8TATE COMMERCE ACT"-WHAT CARRIERS INCLUDED-" COMMON CONTltOL"-"CoNTINUOUS SmPMENT,"-CARRIAGE IN OWN STATE.
8.
The Oregon Railway & Navigatfon Company carries certain kinds of goods on its steamers forth and back between Portland and San Francisco at special andteduced rates. The Oregon & California Railway, under the management Of the petitioner, carries,the same kinds of goods forth and back betwa,en ,Portland and Ashland, and way-stations in Oregon, at special and rednced rates. The Oregon Pacific Railway Company carries the same kind of fr00dS forth and back between certain points on the line of the Oregon & Cahfornil!o road and San Franciscovia its railway from Albany to Yaquina bay, and'thence by steamer, at reduced rates, and thereby competes with the Oregon & California Railwa;y: and the Oregon Railway & Navigation Companyfor business between sll.1d points and San Francisco. The Oregon Railwar. & Company and the receiver of the Oregon & California RaIlway act mdependently, concurrently, in making these reduced or freight receipt is given, nor is either rates, 'but riO' through bill of interested in or liable for the carriage of the goods beyond its own line of transportation. Held, that the Oregon & California road and the steamers of the Oregon Railway & Navigation Company in the carriage of the goods in question are not "used under any common control, management. or arrangement for ,a continuous carriage or shipment" thereof to and from San Francisco, within the intent and meaning of ,the act, and that the carriage and handling of said goods, so far as the receiver is concerned, is performed , wholly within the state, and therefore specially exempted by the terms of the act from its operation, provided the same are not directly shipped to or from ' a foreign country. (ByllabU8 by the Court.)
SMlE-CASE IN JUDGMENT.
Petition for Instruction under the interstate commerce act. John W. Whalley, for petitioner. DEADY, J. The road of the Oregon & California Railway Company is 400 miles in length, and lies wholly within this state, between Portland and Ashland, near the southern boundary thereof. It is operated at present by a receiver of this. court heretofore appointed on the application of the plaintiff, in the pending suit of Harrison v. Oregon &: C: Ry. Co., to enforce the lien of a mortgage thereon., On March 30, 1887, the receiver, Mr. Richard Koehler, filed a petition in this court, asking for instruction whether the Oregon & California road is within the purview of the interstate commerce act lately passed by congress, when engaged in carrying freight destined to or coming from a point or place without the state, under the circumstances herein stated.
868
FEDERAL REPORTER.
road, 01' pa1'Uy by 1'ailfoad and partly by water When both a1'e used, under a common control, management, or arrangement. for. a cO'fl,tinU01t8 carriage or shlpme,,?-t, from one8tateor territory of the or the Distri9,t
It appears from the petition that the receiver, acting under the instruction of this courthereti::lfore given, (Ex parte Koehler, 25 Fed. Rep. 73,) has been and now is carrying wheat and other ag6cultural products of the state, destined to San' Francisco, from certain points along the line of the Oregon & California road where there is competition'with the Oregon, Pacific Railway C011lpuny,ahpecialand lower rates than if destined for Portland only; that such products are taken from Portland to .San Francisco, at a special rate" on the steamers of the Oregon Railway & Navigation Company; that said steamers also carry goods at special rates on their return trips' from San ,Francisco to Portland, destined to .aforesaid along the line o(the Oregon & California road, consistlngof the products of California, China, the Hawaiian islands, and the Central and South 'AmericaJ;1states; which goods are carried from Portland, on the Oregon & California road, to the places of their destination at special and lower rates than those charged for goods shipped ,from Portland for other'ahd nOri"co.¢peting points on said road; that the Oregon Pacific Railway Company' is ..op.erating a line of railway from Albany to Yaquina bay, Oregon, in conjunction with aline of steamers petween,the latter phiceand San Francisco, and is avowedly carrying and offering to carry frdght to and from San Francisco, and portions of the country traversed by the road of the Oregon & California Company, at cost,and that, unless the receiverifallowed to make a special rate for freight between the points 011 the Oregon & California road subject to this competition and San Francisco, saId road will not be able to retain its & Navigashare of this business; and,that,aHhough the Oregon tion Company and the receiver of the Oregon & California road, in making special rates asaforesaid,'puxposeto obtain, each for itself, the carriage of goods ",hich otherwise !,hey, nlight ,lose, yet there is no agreement or guaranty between themorl the s.ubject,nor is such freight ever shipped On a thr,dugh bill o{}ading,'or the.one'party in any way liable for the default Gr· miscarriage of the other in respect thereto, but each for itself c8rl'iesthE' same over its own being represented to and understood by the shippers that, if they send such goods by these lines of transportation, they will be carried over each at a certain reduced rate; and tpat the QrfilgoP.& California mad and the Oregon Railway & Navigation steamers "are not under any' common control, management, or arrangement for a continuous carriage or shipment,' in any manner," unless the facts herein stated make them so, and on this point thereceiver prays the advice and direction: 'of the court. The first section of the act reads atdollows: , "Thatthe.provisi(:llls of this act shall apply to any common carrier or carriers engaged in the transportation of passengers or property Wholly by I'ail" of Columbia, to any other state or territory of the United:States, or .the trict of Columbia, or from any place i,n the United States to an adjacent foreign country, or from any place in the United States, through a foreign country:, to any other place in the United States, and also to the transporta-
EX, PARTE KOEHLER.
869
tion in likemanner of property shipped from any place in the United States to a foreign country, and carried from such place to a por,t of transhipment, or shipped a foreign country to any place in the United States, and carried to such place from a port of entry either tn the United States or an adjacent foreign country :. provided, however, that the provisions of this act shall not apply to the transportation of passengers or property, OTto the 1'eceiving, delivering, storage, 01' handling Of p1'operty, ioholly within one state, and not shipped to or f1'oma foreign c011>ntry from 01' to any state or territory asaj'oresaid. The term' railroad,' as nsed in this act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporatiorl operating a railroad, whether owned or oper. 'ated under a contract, agreement, or lease; and the tetm 'transportation' shall include all instrumentalities of shipment or carriage. .All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or ill connection therewith, or for the receiving, de· livering, storage, or handling of such property, shall be reasonable, and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." There lano doubt that this railway and these steamers are engaged in interstate COmmerce in the carriage of these goods under the circumstances stated. Any carriage of goods which crosses a state line is interstate commerce; and the fact that transportation from one state to another is accomplished in whole or in part through the agency of independent and unrelated carriers up to and from the state line, does not affect the character of the transaction in this respect. For, whenever an article destined to a place without the state is shipped or started therefor, it becomes the subject of interstate commerce, and the carriers employed in the transportation thereof, although neither of them may pass from one state to the other, are subject, as instruments of such com- . mel'ce, to national legislation and control. The Daniel BaU, 10 Wall. 564; Hall v. De Cuir, 95 U. S. 485; Wabash, etc., Ry. Co. v. Illinois, 118 U. S, 572, 7 Sup. ,Ct. Rep. 4; Ex parte Koehler, 25 Fed. Rep. 76. But the inter::;tate commerce act does not. include ,or apply to all the instrumentalities or agencies used or engaged in interstate commerce, It does not include any water-craft unless it is .used ih connection with a railway, "under a common control, management, or arrangement, for a continuous carriage or shiplllent" from one state or territory of the United States to another, or to or from such state or territory from or to a foreign country. Nor does it include the carriage or handling of property, by rail or otherwise, when such carriage and handling is performed wholly within a state, unless the same is directly shipped to or from a foreign country from or to such state. The mere fact that a railway wholly within a state and a vessel running between said state and another meet at a point within the railway state, and thus form a continuous line of transportation between the two states, by the one taking up the goods delivered by the other at its terminus, and carrying them thence to their destination, does not bring the carriers who so use the railway and steamer within the act. So long as the railway and steamer are each operated under a separate and distinct control, its own rates, and only liable for the carriage and safe delivery of the goods at the end of its own route, the act does not apply
1170
,:FEDERAL REPORTER.
to the transaction. To make these carriers subject to 'the'lict', the rail. way and thereiD.l?rovided, be operated ortlsed under a "<;lamman control ,"""""",,a' Qdritrol tq Which each is and by which rates are prescribed and bills of lading given for the carriage of goods over both routes as One. On this apparently plain exposition of the act, the railway of the Oregon & California Company and the, steamers of the Oregon Railway & Navigation Company are not "used under a common control, manage'ment, or arrangement" in this respect, 'and therefqre are not subject to the act, although, engaged in interstatecommerce. ' Each carrier makes its own rate, and ,undertakes for the <larriageand delivery of goods not otherwise than overita own route. The fact that both are interested in maintaining the traffic between Oregon and California over this route and by this meanS. so as to secure it the competition of the Oregon Pacific, is I10t material. Each is liberty, as far as the other is concerned, to raise or further reduce its rates to-morrow if the exigencies of ,the traffic permit or require it. The present rate is not the result of any "arrangement" between the two carriers "for a continuous carriage or shipment" from Oregon to San Francisco, and vice versa, but only an independent, though concurrent, reduction of rates by each over its own route, for the purpose of retaining the traffic thereon against the competition of a rival route. The questions involved in this inquiry arise on the first section of the act. Taking its several clauses together, my impression is that no carrier is within its operation unless he is engaged. in interstate Commerce by means of a railway or railway and water-craft under one "control, management,or arrangement," and that by such means or instrumentalities he does actually and continuously carry goods from within to without the state, or from without to within the same. He may form a link in a line of interstate commerce; but, if his relation to such commerce or interest in or liability for the carriage thereof does not extend beyond the line of the state, he is not within the act. The receiver is therefore instructed that he is at liberty, so far as the act is concerned, to make special rates for the carriage of goods from or to points on the line of his road for the purpose of obtaining or retaining business therefor against other carriers competing for the same. But this direction does not apply to goods shipped directly to or from a foreign country over the line of the Oregon & California road.
at
EWART MANUF'G CO. t1. MOLINE MALLEABLE mON CO.
871
EWART MANU]"G CO.
v.
MOLINE MALLEABLE IRON CO. and others.
(Oircuit Oourt, N. D. Illinois. March 21, 1887.)
1.
PATENTS FOR INVENTIONS-,NOVEL DEVICE-IMPROVEMENT IN DRIVE CHAINS.
Letters.patent were granted October 16, 1877, to one William B. Ewart, for an in drive chains, the object of the same being to improve the construction of the link described in letters patent No. 154,595, previOuslY granted to said Ewart on September 1, 1874, and reissued Apri 20, 1875. The improvement consisted in .casting the link with a hook in permanent hook which might be form, and also in casting a small projection upon turned down around the end of the link fo1' a fastening. Before the tion was made for the patent in question, other patents were granted for cast links. and the mode of casting a projection upon the hook flliled to show!}novel dj)vice. Held, that a bill to restrain an infringement of said must be dismissed. . . Said 'patent could not be sustained as a patent for a new process of manufacture.as it in no manner described any process for the same. '
I.
8A:ME'-N'EW PROCESS·
,In Equity. Offield, Towle & Phelps, (B. F. Thurston, of counsel,) for complainants. We8t Bond, for defendants. BtoDGETT, J. This is a bill for an acconnting and injunction by reaS()n of the allegedinfringement of a patent granted October 16, 1877, to William B. Ewart, for "an improvement in drive-chains." The patentee says: . "The object of my invention ,is to improve the construction of the link d&scribed in letters patent No.154,595, granted to me September 1,1874, and reissued Apri120, 1875. The invention (that is, as I understand, theinverition of the patent now in question) consists in casting the link with a hook in permanent form, and also in casting a small projection upon the hook which may be turned down around the end of the link for a fastening. In constructing the link described in my patent of September 1, 1874, I make the piece intended for the hook angUlar in form, and then bend the end of this piece down, to give the hook the proper form, after casting the links. This bending of the hook after casting, however, weakens it, and I have found, after experiment, that I can cast the link with the hook in permanent form, as shown in the so that no change is made in the form of the link after the link leaves the mould. As an additional precaution, there may be cast upon the end of the hook a small projection, of soft metal, which may be turned down around the end of the link, clasped by the hook, so as to prevent the links from being detached. The use of this device is optional, however, for without it the attachment of the links is sufficiently secure for ordinary purposes. If desired, the hook of the link may be cast upon a chill by the introduction into the mould of the metallic core. In making the link and hook as described I secure certain valuable results. By casting the hOPk in permanent form tpe cost of manufacture is reduced, by saVing the labf?r,and time expended in bending, a.nd the waste occasioned by breakage. ,The may also be made of metal which will not admit of bending, and; the in,ner surface of the hook may be caB.t upon a chill, so asto secure a perfectly fitting joint and ahard:wearing surface. The hookm'ay also be cast with ribs, so as to brace it against stretching, which the principal objection to the use of chains for transporting power. The ribs on the hook also serve togqide the chain upon the