Atchison Company v. Denver N O R Company

This is a bill in equity filed by the Denver & New Orleans Railroad company, a Colorado corporation, owning and operating a railroad in that state between Denver and Pueblo, a distance of about 125 miles, against the Atchison, Topeka & Santa Fe Railroad Company, a Kansas corporation, owning and operating a railroad in that state from the Missouri river, at Kansas City, westerly to the Colorado state line, and also operating from there, under a lease, a road in Colorado from the state line to Pueblo, built by the Pueblo & Arkansas Valley Railroad Company, a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe Company form a continuous line of communication from Kansas City to Pueblo, about 634 miles. The general purpose of the suit is to compel the Atchison, Topeka & Santa Fe Company to unite with the Denver & New Orleans Company in forming a through line of railroad transportation to and from Denver over the Denver & New Orleans road, with all the privileges as to exchange of business, division of rates, sale of tickets, issue of bills of lading, checking of baggage, and interchange of cars that are or may be customary with connecting roads, or that are or may be granted to the Denver & Rio Grande Railroad Company, another Colorado corporation, also owning and operating a road parallel to that of the Denver & New Orleans Company between Denver and Pueblo, or to any other railroad company competing with the Denver and New Orleans for Denver business.

The facts on which the case depends are these: When the Atchison, Topeka & Santa Fe Company reached Pueblo with its line it had no connection of its own with Denver. The Denver & Rio Grande road was built and running between Denver and Pueblo, but the gauge of its track was different from that of the Atchison, Topeka & Santa Fe. Other companies occupying different routes had, at the time, substantially the control of the transportation of passengers and freight between the Missouri river and Denver. The Atchison, Topeka & Santa Fe Company, being desirous of competing for this business, entered into an arrangement, as early as 1879, with the Denver & Rio Grande Company for the formation of a through line of transportation for that purpose. By this arrangement a third rail was to be put down on the track of the Denver & Rio Grande road, so as to admit of the passage of cars continuously over both roads, and terms were agreed on for doing the business and for the division of rates. The object of the parties was to establish a new line which could be worked with rapidity and economy, in competition with the old ones. In the division of prices the Denver & Rio Grande Company was allowed compensation at the rate of a mile and a half for every mile of actual haul. As the distance from the Missouri river to Pueblo by this route was about the same as to Denver by the other routes, the through rates over this line to and from Denver were usually made about the same as the rates to and from Pueblo. This was necessary to compete successfully with other lines for Denver business. Afterwards another agreement, known as the 'tripartite agreement,' was entered into between the Atchison, Topeka & Snata Fe, the Denver & Rio Grande, and the Union Pacific Railroad Companies, by which rates were established between Denver and the Missouri river, and arrangements made for a division of business among these companies, and for the regulation of their conduct to wards each other, with a view to avoiding competition between themselves or from others.

In 1882 the Denver & New Orleans Company completed its road between Denver and Pubelo, and connected its track with that of the Atchison, Topeka & Santa Fe, in Pueblo, twelve or fifteen hundred feet easterly from the junction of the Denver & Rio Grande, and about three-quarters of a mile from the union depot, at which the Atchison, Topeka & Santa Fe and the Denver & Rio Grande interchange their business, and where each stops its trains regularly to take on and let off passengers and receive and deliver freight. The Denver & New Orleans Company has erected at its junction with the Atchison, Topeka & Santa Fe platforms and other accommodations for the interchange of business, and before this suit was begun the general superintendent of the Denver & New Orleans Company made a request in writing of the general manager of the Atchison, Topeka & Santa Fe as follows: 'That through bills of lading be given via your line and ours, and that you allow all freight consigned via Denver & New Orleans Railroad to be delivered this company at point of junction, and on such terms as exist between your road and any other line or lines; that you allow your cars, or cars of any foreign line, destined for points reached by the Denver & New Orleans Railroad, to be delivered to this company and hauled to destination in same manner as interchanged with any other line; that you allow tickets to be placed on sale between points on line of Denver & New Orleans Railroad and those on line of Atchison, Topeka & Santa Fe Railroad, or reached by either line; that a system of through checking of baggage be adopted; that a transfer of United States mail be made at point of junction. In matter of settlements between the two companies for earnings and charges due, we will settle daily on delivery of freight to this line; for mileage due for car service, and for amounts due for tickets interchanged, we agree to settle monthly, or in any other manner adopted by your line, or as is customary between railroads in such settlements.' This request was refused, and the Atchison, Topeka & Santa Fe Company continued its through business with the Denver & Rio Grande as before, but declined to receive or deliver freight or passengers at the junction of the Denver & New Orleans road, or to give or take through bills of lading, or to sell or receive through tickets, or to check baggage over that line. All passengers or freight coming from or destined for that line were taken or delivered at the regular depot of the Atchison, Topeka & Santa Fe Company in Pueblo, and the prices charged were according to the regular rates to and from that point, which were more than the Atchison, Topeka & Santa Fe received on a division of through rates to and from Denver under its arrangement with the Denver & Rio Grande Company.

By the constitution of Colorado, art. 15, corporations can only be formed in that state under general laws, subject to alteration and repeal, and the law under which the Pueblo & Arkansas Valley Railroad Company was organized, conferred power, among others: 'Second, to cross, intersect, or connect its railroad with any other railway; third, to connect at state line with roads of other states and territories; fourth, to receive and convey passengers and property on its railway; fifth, to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery, for the convenience, accommodation, and use of passengers, freights, and business interests, or which may be necessary for the construction and operation of said railway; sixth, to regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor.' Gen. Laws Colo. (1877,) p. 181.

Sections 4 and 6 of article 15 of the constitution of Colorado are as follows:

'Sec. 4. All railways shall be public highways, and all railroad companies shall be common carriers. Any association or corporation organized for the purpose shall have the right to construct and operate railroad between any designated points within this state, and to connect at the state line with railroads of other states or territories. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.

'Sec. 6. All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freights or passengers within the state, and no railroad company, nor any lessee, manager, or employe thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power.'

No other provisions of the constitution or of the statutes of the state have been referred to as affecting the questions here involved.

A large amount of testimony is found in the record as to the custom of connected roads in respect to the interchange of business and the formation of through lines. From this it appears that, while through business is very generally done on through lines formed by an arrangement between connecting roads, no road can make itself a part of such a line, so as to participate in its special advantages, without the consent of the others. Oftentimes new roads, opening up new points, are admitted at once on notice, without a special agreement to that effect, or in reference to details; still, if objection is made, the new road must be content with the right to do business over the line in such a way as the law allows to others that have no special contract interest in the line itself. The manner in which its business must be done by the line will depend not alone on the connection of its track with that of the line, but upon the duty which the line as a carrier owes to it as a customer. No usage has been established which requires one of the component companies of a connecting through line to grant to a competitor of any of the other companies the same privileges that are accorded to its associates, simply because the tracks of the competing company unite with its own and admit of a free and convenient interchange of business. The line is made up by the contracting companies to do business as carriers for the public; and companies, whose roads do not form part of the line, have no other rights in connection with it than such as belong to the public at large, unless special provision is made therefor by the legislature or the contracting companies.

Upon this state of facts the circuit court entered a decree requiring the Atchison, Topeka & Santa Fe Company to stop all its passenger trains at the platform built by the Denver & New Orleans Company where the two roads joined, and to remain there long enough to take on and let off passengers with safety, and to receive and deliver express matter and the mails. It also required the Atchison, Topeka & Santa Fe Company to keep an agent there, to sell tickets, check baggage, and bill freight. All freight trains were to be stopped at the same place whenever there was freight to be taken on or delivered, if proper notice was given. While the Atchison, Topeka & Santa Fe Company was not required to issue or recognize through bills of lading embracing the Denver & New Orleans road in the route, or to sell or recognize through tickets of the same character, or to check baggage in connection with that road, it was required to carry freight and passengers going to or coming from that road at the same price it would receive if the passenger or freight were carried to or from the same point upon a through ticket or through bill of lading issued under any arrangement with the Denver & Rio Grande Company or any other competitor of the Denver & New Orleans Company for business. In short, the decree, as entered, establishes, in detail, rules and regulations for the working of the Atchison, Topeka & Santa Fe and Denver & New Orleans roads, in connection with each other as a connecting through line, and, in effect, requires the Atchison, Topeka & Santa Fe Company to place the Denver & New Orleans Company on an equal footing as to the interchange of business with the most favored of the competitors of that company, both as to prices and facilities, except in respect to the issue of through bills of lading, through checks for baggage, through tickets, and, perhaps, the compulsory interchange of cars.

From this decree both companies appealed,-the Atchison, Topeka & Santa Fe Company, because the bill was not dismissed; and the Denver & New Orleans Company because the decree did not fix the rates to be charged by the Atchison, Topeka & Santa Fe Company for freight and passengers transported by it in connection with the Denver & New Orleans, or make a specific division and apportionment of through rates between the two companies, and because it did not require the issue of through tickets and through bills of lading, and the through checking of baggage. The case has been presented by counsel in two aspects: (1) In view of the requirements of the constitution of Colorado alone; and (2) in view of the constitutional and common-law obligations of railroad companies in Colorado as common carriers.

''George R. Peck, H. C. Thatcher, Chas. E. Gast, Wm. M. Evarts, and J. H. McGowan'', for Atchison, T. & S. F. R. Co.

E. T. Wells, for Denver & N. O. R. Co.

WAITE, C. J.