618
"
FEDERAL REPORTER.
money-order system. It was {Ol:" him to determine what sum, if any, should be expended for clerk hire. Nowhere is this duty devolved upon the postmaster. If the postmaster general failed to make an allowance, -assuming his power to do .so the Revised Statutes,-it did not, for that reason, become proper for the postmaster, disregarding the express instructions of his supl:lriors, to employ such clerks as in his judgment were necessary. To concede such power to the postmaster would permit him to usurp the authority which the law has vested in the postmaster general. If the contention of the defendants is correct, a postmaster is at liberty to employ as many clerks as he sees fit, and the question of necessity is for a jury, and not for the post-office department, to determine. Surely this was :not the intention of the. law-makers. In the present case theemploY+nent was not only without authority of law, but it was in the face ofan express prohibition 'by the department. The postmaster was plaiply informed that after October 1st his salary would be 83,000; that, for transacting the money-order business, he would be allowed commissions not exceeding $1,000, with nothing for clerk If he fOl,lnd it impossible to do the work personally, he could hut it is entirely clear that, if he saw fit to do this, .it was his duty W pay for it. The department may have acted. with injustice; the postmaster may. have received less than his serdqes wereworthjbut this does not answer the proposition that the order of September 25th was one which the department was to make, and one whlch it was the postmaster's duty to obey', The case of U. S. v. Dick, if the report furnished to the CFlurt correctly states the facts, cannot be .regarded as a controlling authority, as the question now presented was not involved. The is, entitled to the judgment demanded in the complaint.
CO. «(JVrcuit 1.
OF
N. Y" and another t1. Ry. Co. and others. 1
,WABASH,
ST. L. & P.
(J()wt,
B. D.MiBBOUN. December 3,0, 188B.
RAILROAD OOMPAN1ES-RECJIlIVEB8-0RDERS OoNCERNINGBURRENDER Oll' PROPERTYEAil1' OF THE MIilBISSlPPI, AND MANAGEMENT OF WUATIS RETAINED -JURISDIOTION-COURT OBLIGATIONS.
The Wabash system of roads was originally placed in the hands of rt'ceivers in a suit instituted by the Wabash Company itself. A suit to foreclose ageneral mortgage'()n the Waballh])rOperty. was subsequently instituted, and consolidated with the first suit. The receivers first appointed were retained in possession, and have administered the whole property ever since. They have . been. app,,(o.inted bytbe courts fanciIIary adminis,tration, a,s well as by this court.. Recently they were removed in the Seventh circuit, and a receiver, appointed by the circuit court of that circuit in a foreclosure suit pending be,fore it, ordered to take j>osses'sion of the main WabaSh lines within the juriediction of, that court. In the suit instituted here the mortgage has been fore0,
F. Rex, Esq., olthe St. Louis bar.
CENTRAL TRUST GO. 1'. WABASH, ST. 'L. & P. RY. CO.
619
closed, and the property sold, but has not yet. been delivered. Upon the application of the receivers of this court for instructions, it is !>rdered (1) that said receivers shall relinquish control of roads east. of the Mississippi, of which the receiver appointed by the circuit court of the Seventh circuit shall, underthe orders of said court, takepo.Bsession; (2) that said receivers shall cease tbe further operation of lines east of the whose earnings have not been in excess of tbeir ollerating expenses, unless within 30 days some satisfactory guaranty is given that all future deficit arising from such operation shall be promptly paid to them; (3) that they shall deliver to the receiver appointed in the Seventh circuit all books of account which they have in their possession in which the accounts of the roads passed into the hands of said receiver are alone kept, if any there be, but shall retain possession of all general books of account, giVing said receiver, however, full facility of inspection and copy: (4) that they shall retain possessi!>n of all m!>neys now in their hands, or whic!J. may hereafter be received, from the earnings of roads in their possession, or from the purchasing committee, subject only to the be orders of this court; (5) that they shall surrender all rolling stock, if any, which is covered by the mortgages in whose foreclosure the new receiver was appointed in the Seventh circuit; (6) that any controversy which may arise between them and the receiver in the Seventh circuit, in determining what property shall be surrendered, shall be reported. to. this court; (7) that the operation of the lines in the hands of the receivers appointed by this court shall be independent of all other lines; (8) that there will be no dismissal of the case pending in this court as to any parties or interests or causes of action, or any rel,nquishment of any jurisdiction which is now vested in this court: (9) that.the burden of the court obligations, including receivers' certificates, be apportioned to the different branches, and that the master report the earningsand expenses of all lines and branches separately, and the time of their operati!>n by the receivers, up t!> December 31, 1886. 2. BAllE-DELIVERY 011' POSSESSION TO PURCHASING COMMITTEE-PAYMENTIt is further !>rdered that the said purchasers of the Wabash property shall pay, within 60 days, int!> the registry of this court, $1,000,000 in cash or rebond "in the sum o·f $1,000,000 to pay the further ceIvers' certUicates, and awards, and to comply with all further orders of this court, and take possession of the entire property, subject to the right of this court to retake possession on non -compliance with further orders; and also subject to all the terms and nrovisions of the final decree and the order !>f c!>nfirmati!>n. BOND.
In Equity. Application of the receivers for instructions as to the surrender of certain property to Thomas M. Cooley, who has been appointed Wabash receiver by the circuit court of the Seventh circuit, in the foreclosure suit of Atkins v. Wabash, St. L. &- P. By. 00·· 29 Fed. ReP. 161. W. H. Blodgett, for receivers. C. J. During the last two days we have received a petition from the receivers of this court, reporting to us the action that has been taken by the circuit court of the Seventh circuit, and askinK instructions from this court as to their action. We have also received an application of the purchasing and the form of an order which they desire. I may be pardoned if, preliminary to a formal statement of the orders that will be entered, I refer to some matters in the history of this litiga:tion. The Wabash road was a road extending through severalstates,states within.the jurisdiction of several circuit Courts of the United States. There was one general mortgage covering the entire property,·and underlying mortgages upon several local lines which had entered 'into and be--
FEDEML REPORTER.
come part of the Wabash system. Proceedings were commenced in this court as a court of primary jurisdiction, and rec6ivers were appointed by this court. Of the propriety of a foreclosure in one court operating upon the entire property running through several states, and of the validity of a sale made in pursuance of that foreclosure, and the ness of the title which will pass by such sale, there can be now no longer . a question. In the case of Muller v. DOW8, 94 U. S. 444, that question was put at rest. In the early history of foreclosure proceedings of this nature it became customary, not merely that foreclosure proceedings should be conducted in the one but that, to avoid all questions of title, ancillary proceedings should be conducted in the courts of other circuits; and to conserve the property pending the foreclosure-to guard it against local saits, arid preserve it from dismemberment-the custom has also been for the receivers appointed in the court of primary admin. istration to be also appointed in the courts of ancillary administration. That proceeding was had in this case: Messrs. Tutt an,d Humphreys were two and a half years ago appointed receivers of the entire property by this court as a court of primary administration. Their appointment was confirmed in the several coilrts exercising ancillary administration, and they have continued in such administration of theelltire property up to the present time. So far as concerns the receivers themselves, it is fair to them to say that Mr. Homphreys was named to the court by not only the mortgagor, but by the mortgagees in the general mortgage, and indorsed by a large majority of the trustees in all the mortgages. Ddubtless he was suggested to them by reason of his long connection with and knowledge of the affairs of the road; and by his large experience in railroad matters. The other gentleman was named by this court, with the thought that it would be well to have a local receiver sharing in the administration of this property, and in naming him the court selected a citizen of this state distinguished for his business capacity, and purity'of character. Their administration has been so successful that, quring the length of two years and a half in which it has been carried on, not only .has there been no challeng-e in the court of primary administration of the propriety of their appointment, but ther.e has not even been a suspicion suggested. here of any irppropriety of conduct on their part, or of any lack of fitness for the duties intrusted to them. , The records which exist show tbat in 1883, a year prior to their appointment, the earnings of the road were, per mile, (leaving out the cents,) $4,715; the expenses, $3,826. In the year 1884; the first five months of which the road was operated by the company, and the last seven montps by the receivers, the earnings were $4,650, and the expenses $3,895. In the year 1885, of which they had charge during the entire year, the,earnings were $4,738; thee'Xpenses, $3,995;' and in 10 months of this year their earnings have been $5,296 .per mile; their expenses, $3,997.· When,in addition to that, it is borne in mind, as a fact well known, that the road I prior· to their taking possession, was in many places in a very unsafe and that they have expended $445,000 in placing steel rails in the track, $1,303,000 in bridges, and have the.
CENTRAL TRUST CO. 11. WABASH, ST. L. & P. RY. CO.
621
road to-day, in nearly its entire extent, in the best possible condition, I think it safe to say that results attest the wisdom of their appointment, and that such results entitle them to receive, from any unbiased mind, commendation rather than blame. As appears from the certified copies of orders that have been presented to US, the circuit court of the Seventh circuit district, disregarding the comity which has heretofore existed between the federal courts, has removed these receivers, and appointed a distinguished citizen of the state of Michigan as their successor, for the lines within the jurisdiction of that court,-I say in disregard of the comity which has existed between courts of different circuits; for'the pretext of enforcing local liens, said orders are too transparent to deceive anyone, and for two reasons: First, there will be no line extending through various states without the creation in those states of local liens by mortgage, judgment, or otherwise; and, secondly, a foreclosure of those local liens may proceed independent of any receivership. But that court is a court of equal jurisdbtion-ofequaJ. power and rank with this, and this court disclaims any intention of qUe&tioningor reviewing .its action. We have no appellate jurisdiction, and the practical question which comes before us is, whata.ction shall be taken by this court upon the basis of the present statW:l? As by the .act of removing these receivers from the custody and control ofcertainportions of the Wabash line, some measure of power for protecting the entire property is taken away, the duty· of this court is to take special care of the property left in the hands of its receivers, and to see that it is tected, and managed for the best interests of all concerned. Full diction, under the Wabash foreclosure, over the trustees in all the mortgages,having been acquired by this court, the power of foreclosing, as it did,the. general mortgage, the power of apportioning the burden of receivers'certificates, and every court indebtedness, among all the varied lines that went into and formed this single system, remains with this court, and,. under the circumstances, it is fitting that such apportionment shall be proceeded with at once. In the final decree which was entered, there was no attempt at any f<;>reclosureof the underlying mortgages. The decree was the common one of a foreclosure of a junior mortgage, and the direction of a sale of the property subject to the burden of the underlying and prior incnm. b;rances. The pur.chasers. when they purchased,took the property burdened with these underlying mortgagesj but did not by that purchase assume the payment of them. The holders of these mortgages had, notwithstanding that purchase, no other security, than their mortgages,and. the property upon which they were liens. It was providecl, however, in the decree, that the purchasers at such sale should take the property subject to the duty of paying off all receivers' certificates, and all debts created by this court. They made their purchase with full notice of Aleseprovisions in the decree. They have paid the purchase price. The sale has been confirmed; the deed made. .As provided in tne decree, thep06Sel'!sion has been and is still retained by the receivers,and· is to be retained until such time as payment shall be made of ·these
B22
F'EDERALREPORTJm.
court obligations, or such, security furnished as shall be deemed adequate. " . , We are wellaware that in managing so vast a property, and in the ization of a new corporation of such magnitude as that proposed, some time must be taken; and we are aware of the fact that there has yet been no .order entered by this court as to the time within which the purchasers must .pay these obligations, and take the property from the hands of the court. We think that time enoligh has been given for the perfecting of the organization of the new company, and for .all other preliminary matters; and that the time has now come when the court should make an order for the payment or security of the debts created in the administration otthis estate, and for the taking possession of the property by the purchasing committee.. With these preliminary statements, I proceed to formulate Borne orders which will· be entered. It is expected that counsel will prepare orders that embrace the ideas which will be presented, for I have not had time to draftJin full form, the orders. In the firat place, the receivers will relinquish control of all roads east of the Mississippi, of which Receiver Cooley shall, under the orders of the circuit court for the Seventh circuit, take possession. We are advised by the petition of the receivers that there are ,several minor branches or lines within the limits of that circuit which do not appear within the terms of the order directing Receiver Cooley to take possession. They are lines disconnected from the lines west of the river, whose 'Sole connection, so far as the Wabash system is concerned, is with the lines east ofthe;river, of which Mr. Cooley is ordered to take possession. It further appears from the report of the .receivers that every: one of those lines, with perhaps one exception, has been operated at a loss during the last two years and a half. It would be folly for these receivers, having no ,possession of the main line with which those branches are connected, to· continue to operate, at a loss, those local lines. So· the order will be that they will cease further operation of all the lines east of the Mississippi river whose earnings have not been in exoessof their operating expenses, unless within 30 days some satisfactory guaranty is given that all future deficit arising from such operations shall be promptly paid to them. . Secmul. They will deliver to Mr. Receiver Cooley all hooks of account 'which they have in their possession; in which the aecounts of the roads passed into the .hands of Mr. Receiver Cooley are alone kept, if any there be. They will retain, however, possession of all general books of account, giving to Mr. ReceiverCooleyfuU facility of inspection ilnd copy. The intent, of course, i13 that every facility shall be accorded which is possible to enable hiin to administer the trust· confided to him, 'aucces.qfully. .;;, Third. '. They will retain possession of all moneys now in their hands, or which may:hereafter be received from the earnings ofroads in their . possession, or from purchasing committee, subject only to the orders of this 'court.
CENTRAL TRUST CO. 11. WABASH, ST. L. &: P. RY. CO.
623
i'ourth. They will surreJ;1der' allroll\J;1g stock, if there be aJ;1y, which is covered by the mortgages in whose foreclosure Mr. Receiver Cooley was appointed. Any controversies· which may arise between them and Mr. Receiver Cooley in determining what property shall thus be surrendered, wiUbe reported to this court. J!lifth. The operation of the lines in the hands of the receivers will be indepelldent of all other lines. They will make the best traffic and running arrangements with Mr. Receiver Cooley, or with the managers of other railroad lines. Sixth. The officers, and employes under them, will confine themselves to such employment. In other words, if there is to be an independent :administration across the river, it will provide the officers and employes to carryon such independent management. Sepffifll,. There will bano dismissal of the case pending in this court 8.$ to any parties or interests or causes of or aJ;1y relinquishment of any jurisdiction which. is now vested in thil'l court. The burden of the court obligations, including receivers' certificates, will be apportioned to. the many different branches; and the master will report the earnings and expeJ;1ses of all lines and branches separately, and the time of their operation by the receivers, such report to be carried up to December 31, 1886. EighJh. And refers to the requirements of the court iJ;1 respect to the purchasing committee. We are not satisfied with the that they have made to us in their petition. or order presented. It appears from the statement that has been furnished to. us that there are now due, or will become due.by the close of Februl,try, about $700,000 of receivers' certificates.· Therefore the purchasing committee shQuld be directed. to pay, within 60 days, into the registry of this couIt,$l ,000,000 in cash or receivers' certificates, and to give ,bond in the sum. of $1,000,000 to pay the further awards, and to comply with all further orders of this court, and to then take possession of the entire property, subject to the right of this court. to retake possession on J;1on-compliance with further orders; and also subject to all the terms and provisions of the final decree and the order of confirma.tion. TREAT,' J., (orally.) In order that this matter may not be misunderstood, for'it is important in its vast-reaching consequences, itshoQld be stated that this was not an application by a mortgagee to foreclQse. It was an application by the corporation itself,concerning which a great deal of comment has beert made elsewhere. The application was. originally made to myself, in this oircuit, which is limited in extent. lbesitated. Ifoundthat Judge SRlf¥AN, a very learned and able Judge, had gone over in e:den8o. that class of After further consideration with respect .to-wit: thereto, I reached the concluah.'!n that his views were. ,!lere is a vastsystem,extending through many statesant;l.manyjudicial districts. A default, it was cel'i;ain, would be mlJ.(le inf.loi few days. What should be done? The. interests that sotne judicial action shoQld be had .for the tlOllServation. of tbol:lQ,
624
ests,-stockholders, bondholders,· creditors at large, etc. And after patient thought, I reached the conclusion that Brother SHIPMAN was right·. Since that time, fortuimtely, the supreme court of the United States has said that it is right. Now, if anyone in or out of judicial position chooses to dispute the action of this court, that party may settle that controversy with the supreme court of the United States, which is authoritative, so far as the action of this court is concerned. It was a judicial question. Now it so happens, as the records of this court show, that in the year 1876,-one of the earliest matters connected with this line of administration,--inthe Case, ()J Ohio & M''t8Wis8ippi Ry. 00., extending from Cincinnati into this circuit, parties thereto had suit instituted against it in the circuit court of Indiana. That was the court of primary administration which is within the Seventh circuit. The whole course of that proceedingwent ,forward, not in comity alone, but in the wisdom of administration·. Application was made to this court. Application was made to the Southern district of Illinois; /and, in the course of the administration, the court of primary jurisdiction had occasion t<> D1ake changes, by resignation or otherwise, in the receivership of the general system of the line, to which, without exception, this court assented, the court of the Southern district of Illinois assented, and that whole liue of administration went forward, ns the records of this court show, with the signature of the then judge there, without dispute. It 80 happened, I may remark in passing, that, in the absence of my brother judge, I have at every term ofthis court called upon the counsel ":"1 do not know whether they are now present or not-to know why those accounts are not closed. It seems, from. these frequent reports here, for that long series of years those accounts have not been closed. Why? This court might have exacted a final settlement of the accounts of those receivers, theproperti haiving long ago been turned over to the parties of record in the United States court of Indiana, retaining them on their liability on their bonds. That delay has existed to this hour. That court has been not quite so exacting as this court is. This case should have been settled, but it is unsettled at this hour. In the course of administration of these matters we have found that not by comity ttlone, but by the wise administration of the law in regard to these intersrote matters, we have proceeded with perfect harmony. At last we en- . <lounter 'a. difficulty. How shall it be solved? Without affirming or denying what has been done elsewhei'e,-without being unjudicial enough to: comment upon· what has happened elsewhere,-this court yields its administration to no one except:lln: appellate tribunal.· Thus standing, 'being thoroughly· satisfied that the original action of this court was correct, not· <mly in taking possession of these vast properties, but also in the appointment of its receivers, I have only this to' say:' An intimation has; been made, which I see before me, that the district jUdge (myself) refused to the original:cirder. 4tis truejn bne sense; iit is false in another sense. After havIng satisfied myself that the order was proper, itoocurred· to the limitS Of,JriyjurisdictioIY were only within this
CENTRAL TRUST CO. V. WABASH, ST. L. &: P. BY. CO.
625
one district, it was wiser and better that the order should come from. the circuit judge, whose jurisdiction, so far as these properties are concerned, extended over all the properties west of the Mississippi river. It was not because I thought that the order should not be granted. I fully concurred with what was done. It was a mere suggestion that the order from the circuit judge would be wiser and better, and I so informed my brother judge at the time,and I assume the full measure of responsibility, if there is any, to be attached to it. I hold, however, that the action was right from the beginning to the end, and I stand on that proposition. It was the duty of this court, under the circumstances presented,' to take possession of this property, and conserve the interests of all c'oncerned. It is said, and no one more than the judges of this court can be satisfied that it is true, that there had been an unwiae administration of this property. ' If there bad not been, there would have been no need to make an application to this court for the appointment of receivers. But what has this court to do with it? We are not to go back through the past administrations of these properties to ascertain whether, wisely or unwisely, the persons to whom that administration was committed, blundered,or otherwise. The simple proposition submitted to this court was this:lIere isa vast property, in a bankrupt conditioIi,"'-whether through mismahagement or otherwise, was immaterial to this court. Connected with that property were the righta of stockholders and general bondholders; bondholders under underlying mortgages, general creditors, and, 'furtllerthan that, the duties of these corporations to the public at large, and,tdthestate which granted them their franchises. What is the first inquiry with regard to these matters? The.franchise was granted by which the obligations of a common carrier were imposed. All the persons along the line of these various roads, extending through several states, possibly, have contributed their money, in one form or another, for the purpose of having railroad facilities. That matter; to a greater or less extent, has been presented to the consideration of this court heretofore. When franchiaes of this kind are granted, as was often stated by this court long before my brother judge came upon the bench, to which I suppose he will not dissent, their priniaryobligation was to the sovereign who granted them the franchise. They undertook, first, to pay their dues to the government, in the nature of taxes; second, they undertook to run a safe operating road,-safe to life and to the transportation of property. Did they do it? Suppose they canno,t do it? Then they fall within the judicial administration to compel them to do the best they can. That is all there is in that branch ofthe intluiry. Now, in the course of auch administration-it not being new at all, havirig,s() far as my memory serves me as to the course of proceeding, originated in the Indiana district, and been followed up by this court, and dby all the other courts,-we have had no difficulty . Thecourt 'orders'that the receivers shall:,tir3t pay the taxes; second, make the road 2'9F.Iio.13-40
626 which they are running as receivers safe, and, whateverexpendihres are necessary therefor, the court ,directs them to make, and"if they do not receive funds enough directly for the, accomplishment of that purpose, the court will direct them to, issue receivers' certificates, which shall be prior in 'right to all underlying mortgages. And why not? If the parties who have underlying mortgages choose not to COme into court, and ask the surrender of their property to' the parties interested therein, what shall be done? One of two things is necessary,-the court must either stop running the road, or an expenditure be made for the benefit of all parties in interest, the underlying mortgagees as well as everybody else, in order that it shall be made a going concern. Otherwise, in the expressive language of a distinguished friend, you have nothing but a streak of iron-rust on the prairie. The value of these properties consists in their being in operation. Who shall 'pay .for the operation? Somebody. Now this court bas said from the beginning to the end of this matter,-iUs nothing new or recent, but as old as the organization of this court, as old as that Indiana case, the Ohio &: Mississippi (hse,-ifyou desire us to run your property ata dead loss beyond the operating expenses, receivers' certificates have to be is!,!uedinorder to get the money to do it, and ,you must take your portion, when the matter is equitably adjusted" of, the costs afso doing. So stands the case to-day. Whenever a ,party has appeared in this court from the beginning to the end of this controversy, objecting that "You don't pay the rental" in some cases, and the interest on unlierlYing mortgages in other cases, the thought ,with the court has been, what shall be done? If you wish of the receivers that road to be rUn, and there arena. funds in to run it, who shall pay for the running? It must run ,at your expense. Usa happens Jhat, with regard to many of these sectipnal divisions, there have been l:iurplus eal'1linge above the fixed charges, bearing in mind all the while that, this is a general mortgagfil., What shall" be done with them? So long as these underlying mortgages have their interest paid, there being a surplus, no difficulty will arise, and such has line of adnlinistration by this eourt. If there be a failure to pay rentals, is a rented roa,d, or if there be a failure to pay the interest on underlying mortgages, make your application, and the court will surrender, your property to you. No difficulty has occurred in regard to it until recently. , Ido not know. how many of these caees have occurred. 1 cannot recall them in my present memory, but a great many have so occurred, ,and the roads 'have'been surrendered from time to time. I remember the Cairo line. · I remember a line over in Indiana; and I remember also, in the wisdom of administration, while the party insisted upon his right as trustee under a mortgage to take possession of a subdivision, and the court granted it, that this court was atRicted a few days afterwards with an. application of that trustee, the road having no rolling stock whatsoever,-leaving it a mere piece of old iron on a road-bed,to permit an order on the receivers til operate it for the benefit of the concern. I llesitated about it. Brother BREWER was not here, but
CENTRAL TRUST CO. V. WABASH, ST. L. & P. RY.CO.
627
finally the order was passed, it my memory is correct, to this effect: "This will be permitted, but at your expense." So, as to the practical operation of these matters, there being no difficulty in theory in my mind with regard to them, we reach the question, "What shall be done?" Without affirming or denying, as I have heretofore stated, what has occurred elsewhere, as to its legal force or otherwise,-that will remain for other parties to test at a proper time, before an appellate tribunal, if it is so desired,-these orders 1!hich I assent to. as suggested by the circuit judge, will be that this court retains ita jurisdiction in the manner stated, and what is done with regard to the receivers of this court in turning over to Judge Cooley the matters included within the orders of the circuit court of the Seventh circuit will be so done; but Brother BREWER did not state what is in my mind, and I do not know whether he will concur with me when I state it; I state my individual view. In taking possession of these lines, which is permissive, nothing else, whereby out receivers may be discharged from obligations hereafter arising with tespect thereto, it is only a discharge of our receivers to that extent. These roads will 'remain, and must remain, subject to all the obligations heretofore created with regard to them. The rer-eiver takes them as they are, as stated by Brother BREWER, as an independent system. If there should be any rolling stock, it belongs to that concern independent of the general system. Under the order, the receivers will turn it over. If there is none, Brother Cooley will have to do the best he can to run his roads. Now,one word more. Under the maps submitted to this court. it appears there are little fragments of roads left. As I remarked pleasantly, the other day, those, fragments begin and end nowhere. They are not included in the tenns of the order of the Seventh circuit. What shall be done with them? I presume that they are important for local 'conveniences of administration. What is to be done with them? They are all behindhand, Brother BREWER says,-all except one. I am not sure about that. I think they are all in that condition. I am I'Ipeaking of the Illinois roads,-thol'le little fragments presented to us on the map. They have been'run at a dead loss. If our receivers retain possession, who is going to pay for the running of them? Where is the money to come from? Unless somebody will guaranty OUl" receivers whereby they maybeeaved harmless. they must drop the operation of them; and, if the misfortune falle upon the good people in that neighborhood of having no railroad facilities, that will be the result of the order in the Seventh circuit. We have nothing to do with that. If others choose to break up the line, and deprive people of railro!\d facilities, the consequence is not with this court. The excepHon to which reference has been made is this Butler line to Detroit, which, under the terms of the order as presented to the court, still remains in the possession of our receivers. It turns out that that has heen operated profitably, and it I3till remains with our receivers to operate it. It is obvious, however, unless it is operated in connection with the system which
6:28
passes to the hands o/Judge Cooley, it may be very much damuified, and also that portion of property which Judge Cooley will take possession of will be in a still worse condition. With that outcome in dollars and cents this court has nothing to do at this time. Now, to summarize. 1. The original application of this case was presented'to myself. After full consideration, I had no doubt that it was rightfully presented, and that an order should issue with retlpect thereto. I affirm, further, that since that time the supreme court of the United States has affirmed that doctrine. Now, if anyone chooses to dispute that doctrine, that is a controversy between himself and the supreme court of the United States. We choose to rest on our original judgment, fortified by the decision of the supreme court of the United States. 2. The intimation that I refused that application, and my brother judge-the circuit judge-overrode my views with regard to it, is not correct. I did not refuse it. I simply suggested that. it should come from the circuit judge. 3. In the administration of these matters tp.e course pursued is no new one. If an insolvent body, like this vast corporation,. cannot meet it1J obligations, what is to be done? That was the question presented to the court. Proceed.to conserve the rights of every one,al1d in doing so, if anyone oftha varied parties, by sectional divisions ,or otherwise,-creditors at large, no matter who they were,-are dissatisfied, we say,make your application to the court, if you prefer, and get out of the system. The court will give you leave so to do, and it has so permitted many of them to do; and in the very terms of the final decree that is expressed distinctly, that all these parties in the underlying mortgages may proceed to foreclose their underlying mortgages in the pNper tribunal, if those parties so desire. A great many have been separated in thecourse of this administration, thinking they could do better under a separate system, and the court uniformly has so ordered. Now, what is the fact? If these parties-the underlying mortgagees-choose to proceed to foreclose them, they have the unquestioned right so to do, and so this court has decided, .over and over again, and expressly so stated in its final decree. But this court is not to dif:lcharge, and will not discharge, dUring the operation of the receivers of this court, those sectional divisions where there are underlying mortgages, until they meet their requirements, as fastened upon:them by the operations of our receivers. They remain subject to all charges prior in right, even to their mortgages, or they might ,have come here long ago, and been discharged.
CONNER
11.
PIONEER FIRE-PROOF CONST.
00.
629
CONNER "'. PIONEER FmE-PROOF CoNST. Co. (Circuit Court, D. Minne8ota. December 16, 1886.)
1.
NEGLIGENCE-DEFECTIVE SCAFFOLDING-CoNFLICT OF TESTmONY-VERDICT -ltIOTION FOR NEW TRUL.
In an action to recover damages for a personal injury, caused by the negligence of the defendant in not providing safe scaffolding for plaintiff to stand upon while tiling a ceiling, where the testimonx of a number of witnesses for defendant is that the tilers who used them bmlt the scaffoldings, and a less number, for plaintiff, testified positively that defendant .employed two persons for the special purpose of building the scaffoldings, held, that there was sufficient evidence to justify the jury in finding defendant responsible for the defective scaffolding. SPECIAL DAMAGES . EVIDENCE WAGES BEFORE AND .
2.
SAME - PLEADINIi AFTER INJURY.
a.
In such a case, although no special damages are alleged, the plaintiff being an ordinary mechanic, testimony showing the difference between the wages earned bv him before the injury, and those he was able to earn afterwards, is competent to show the extent of his injuries. Such testimony is not proof of special, damages.
SAME-INSTRUCTIONS-DECREE OF CARE.
ThecQurt having instructed the jury at the commencement of the charge that ,an employer is bound to exercise reasonable care and diligence in providing a ,safe place for his emp-Ioyes to work, it is not error to refer to the matter without using the word 'reasonable," in giving inlltructions on other questions·
. , At Law. Motion for new trial. A. J.Roger8, for plaintiff. O'Brien, Eller&: O'Brien, for .defendant. BREWER, J. In the case of Conner against the Pioneer Fire-proof Construction Company, tried before me, wherein the jury returned a verdict for the plaintiff, a petition for a new trial was allowed. I was in hopes that this application would be submitted to Justice MILLER, as the case is one upon which I have great doubt. The facts, in a general way, are these: The plaintiff was employed as a tiler in the. West Hotel, in Minneapolis, the defendant having the contract for the tiling. In pursuance of that work, it was necessary for the tilers to go upon a platform in order to reach the ceilings, which were quite high. In some of the rooms the ordinary horses used by the were high enough so that they could reach the ceiling; in others, these horses were not sQ.fficiently high, so they were in the habit of extending the legs by nailing boards upon them, which raised the height of the horses, and consequently of the platforms. Upon a platform placed upon horses thus raiaed, the plaintiff, with other tilers, went to work. Scarcely had begotten thereon before something gave way, the platform fell to the floor, and he was injured. It was claimed on the part ofthe plaintiff that one of the boards thus nailed was defective, and insufficient to support the weight that was put upon it; and that there was negligence on the part of the defendant inscnding the plaintiff onto a platform .thus defectively supported.