Express Companies' Cases

The Southern Express Company, an express carrier, filed its bill in equity against the St. Louis, Iron Mountain & Southern Railway Company, in the circuit court for the eastern district of Missouri, to enjoin the railway company from interfering with or disturbing the express company in the enjoyment of the facilities it then had for the transaction of its express business over the railway company's railroad, so long as the express company conformed to the regulations of the railway company and paid all lawful charges for the business. A preliminary injunction was asked for, and, in this connection, the bill prayed that if any dispute or disagreement should arise between the parties during the pendency of the suit, upon the question of compensation to be paid for transportation, the express company might be permitted to bring the same before the court for decision by way of an interlocutory application. On the filing of the bill the preliminary injunction was granted, which was afterwards modified in some particulars affecting the compensation to be paid and the mode of doing the business.

On the twenty-fifth of March, 1882, the court entered a decree containing the following provisions:

'(5) That it is the duty of the defendant to carry the     express matter of the plaintiff's company, and the messengers      or agents in charge thereof, at a just and reasonable rate of      compensation, and that such rate of compensation is to be      found and established as a unit, and is to include as well      the transportation of such messengers or agents as of the      express matter in their custody and under their control.'

'(10) Whereas, it is alleged by complainant that since the     commencement of this suit, and the service of the preliminary      order of injunction herein, the defendant has, in violation      of said injunction and of the rights of complainant, made      unjust discriminations against complainant, and has charged      complainant unjust and unreasonable rates for carrying      express matter, therefore it is ordered that complainant have      leave hereafter to apply for an investigation of these and      similar allegations, and for such order with respect thereto      as the facts, when ascertained, may justify, and for the      appointment of a master to take proof and report thereon.'

'(11) That the defendant, its officers, agents, servants, and     employes, and all persons acting under their authority, be,      and they hereby are, permanently and perpetually enjoined and      restrained from interfering with or disturbing in any manner      the enjoyment by the plaintiff of the facilities provided for      in this decree, to be accorded to it by the said defendant      upon its lines of railway, or such as have been heretofore      accorded to it for the transaction of the business of the plaintiff and of the      express business of the public confided to its care, and from      interfering with any of the express matter or messengers of      the plaintiff, and from excluding or ejecting any of its      express matter or messengers from the depot, trains, cars, or      lines of the said defendant, as the same are by this decree      directed to be permitted to be enjoyed and occupied by the      said plaintiff, and from refusing to receive and transport in      like manner as the said defendant is now transporting, or as      it may hereafter transport, for itself or for any other      express company over its lines of railway, the express matter      and messengers of the said plaintiff, and from interfering      with or disturbing the business of the said plaintiff in any      manner whatsoever; the said plaintiff paying for the services      performed for it by the defendant monthly, as herein      prescribed, at a rate not exceeding 50 per centum more than      its prescribed rates for the transportation of ordinary      freight, and not exceeding the rate at which it may itself      transport express matter on its own account, or for any other      express or other corporation, or for private individuals,      reserving to either party a right, at any time hereafter, to      apply to this court, according to the rules in equity      proceedings, for a modification of this decree as to the      measure of compensation herein prescribed.

'It is further ordered, adjudged, and decreed that the     defendant pay the costs to be taxed herein, and that an      execution or a fee-bill issue therefor.'

On the twenty-ninth of March the railway company prayed an appeal, which was allowed, and, on the fifteenth of May, perfected by the approval of the necessary bond. During the same term of the court, but after the appeal bond was accepted and approved, the express company moved the court to grant it the benefit of a reference authorized by sections 5 and 10 of the decree, and a master was appointed to inquire into and report on the matters alleged.

The cause having been duly docketed here, the express company moves to dismiss the appeal, on the ground that the decree appealed from is not a final decree.

John F. Dillon, and Wager Swayne, for appellant.

''Jas. O. Broadhead, S. F. Glover, John R. Shepley, S. M. Breckinridge, and Clarence A. Seward'', for appellee.

[Argument of Counsel from pages 27-28 intentionally omitted]

WAITE, C. J.