Page:Federal Reporter, 1st Series, Volume 6.djvu/444

 132 FEDERAL BKPOBTEB. �That this speeies of equality would probably be so attract- ive to persons or companies doing an express business as to arouse their activity in competing for express business to be done on these lines, is not so apparent to my mind, and the ability, experience, and gravity of the very learned and skil- ful counsel appearing for the defendants were not equal to the presentation of that view of the case. It was, therefore, con- tended, as it bas been contended in cases presented to other judges during the past year, (with which the courts and the legal profession have become somewhat familiar,) that the certainty of having dispatch -was a necessary element of the express business; that this eould only be secured by having always a snfficiency of room; that as each express company would want ail the business if it could get it, and as one might Bucceed in getting it ail, that to insure always having room, each had to contract for ail the room its business on any one day might need, and hence had to contract for room equal to something more than the average daily haul of such matter, and that the express business, and not the railroad company, should bear the burden of the dead hauls neces- sary to secure at ail times this ample supply of room. And further, as to these cases, it was urged that the plaintiff, by its bill, showed that it was in possession of the express busi- ness on these lines j that it had an established reputation ; that it had the good will of such business on those routes, with trained messengers and other servants known to the public and trusted by the public along said routes, with ail the ap- pliances for doing all of said business as it had done for many years ; and that, this being so, whatever other express com- panies might sufifer by. any supposed inequality in such terms, the plaintiff could not complain ; that if the Pacific Express Company — a Etranger, with no present run of busi- ness, and none of these elements conducive to procuring and transacting such business — could afford to make such a contract, surely the plaintiff could very much better afford it ; that if there was any inequality it would manifestly work most strongly in favor of that express company which already was in possession of the trade. ��� �