CROUCH II. KEBB.
649
BREWSTER et 01.
11.
SHULER et al.
(Gi'I'cuit GOU'l't, N. D. New YO'I'k. May 2, 1889.) CosTB-CoPIES OIl' TESTIMQNY.
Defendants are entitled. in taxing costs, to tax the amount paid by them to the examiner for copies of their own testimony. procured for the necessary purpose of having the record printed; neither the examiner nor the clerk havingany authority to let the original testimony be taken from their possession for that purpose.
In Equity. Appeal from taxation of costs. Philip J. O'ReiUy, for complainants. Martin L. Stover and R. N. Kenyon, for defendants.
CoXE, J. The only question not determined at the argument is whether the defendants are entitled to tax the'amount paid by them to the examiner for copies of their own testimony. 'fhese copies were procured for the purpose of having the record printed. The originals were in the hands of the examiner. He was required to file them with the clerk. Itwould have been a palpable neglect of duty on his part to permit the testimony taken by to go into the hands of a party to the suit, and from·thence to the printer to be mutilated, and perhaps lost. After the papers were filed, the clerk had no authority to permit them to be taken from his office. But the defendants were required to print their record. How, then, were they to proceed except by procuring copies? The disbursement is one which on principle should be allowed. But the precise question arose in 1881, in the Southern district of New York, in Schoerken v. Swift, (unreported.) The disbursement was allowed by the clerk, and, on appeal, his decision was Judge Bt.ATCHFORD. Since, then, it has been the uniform practice, concurred in by the court, to permit such items to be taxed. The bill for printing is allowed at the sum fixed upon the argument.
CROUCH
et al, v. KERR et al,
«(Ji'f'cuit GO'U'I't.
w: D.
Texas, San .Anwnio. D. May 9, 1889.,
EQUITY-PLEADING-DEMURRER TO ANSWER.
A demurrer to an answer in equity is not sanctioned by the rules of practice in the federal courts.
In Equity. On dem.urrer to answer. Simpaon & Jameaand Houaton Eroa., for complainants. Wm. Aubrey and OOOa. H. Mayfield, for defendants. MAXEY, J. The complainants, B. L. Crouch, J. T. Lytle, T. M. Daniel.and Edward ;Rutledge, filed their bill in this suit on the 1st day of
December, 1885, praying for lln injunction to the defendant James D. Kerr anclliis"attorrieysfr'bni'the further prosecution of a suit of by :K,err on the, law side of the court, to trespass to try tille, recover of com plainants certain real estate. tJ pon motion duly presented by complainants, and notice to the defendants, a temporary injunction -Was 'issued by my Following the irij\.lJ;lction, the defendants filed a demurrer to the bill, which, upon consideration, was ,overruled; and they were required' by order 'of the court to answer the bill "upon its merits on the August rule-day, A. D. 1886."'l'he answer was filed on the 6th day of Septemb,er.following, without. objection on the part of complainants as tothe time of filing. A paper styled "demurrer to answer" was interposed by complainants, and filed August 1, 1887. This demurrer was not acted upon by my predecessor, and is now submitted ,for determination. That the demurrer may. be properly understood, the grounds there@fwil1 be inl'lerted in the language of the pleader'. They areas follows: "Complainants, by protestation, not confessing any or all of the matters and things in the answer of defendants .contained to be true. in such manner and form as therein alleged, do dem.ur. to flaid answer, and for caUse of demurrer averred and exhibited by said answer show no say that the matters and legal or equitable defense to the pill of complaint; that !laid anSwel' discloses that complainants are entitled to'the reUef prayed for in their bill of complaint. And that they, the complainants, cannot now be required to file replication to said answer." ,,> , Whether the.answer presents a meritorious defense to the bill will not at this ,time be decided, as it iS,evident that the rules of correct equity practice forbid 8 determination of'that question upon a demurrer to an answer. S"ch a method of testing the validity of an answer is permissible under the rules of pleading and practice as adopted by the courts of this state, but ,those rules are inapplicable to this court sitting as a court ofequity. Betts v. Lewis, 19 ,How. 72, 73. Han answer be insufficient, exceptions may be taken to it, IIwhich exceptions are always in stating the parts of the bill which the plaintiff alleges are not answered, and praying that the defendant may in such respects put in a further and full answer to the bill." Story, Eq. PI. (9th Ed.) § 864; 1 Daniell, Ch. (5th Ed.) c. 17, § 4, p. 760; Lube. Eq. §2, subd. 65, p. 72; Heard, Eq. PI. 98, 99; Brooksv. Byam, 1 Story, 300 et seq.; Equity Rules, 61-65. Or, if the, answer sets up no legal defense, and the material facts are admitted, the complainant has the option, and the proper course is, to set down upon bill and answer. Banksy. Manchester, 128 U. S. 251, 9 Sup. Ct. Rep. 36; Travers v. Ross, 14 N. J. Eq. 257; Heard, Eq. PI. 83; Story, Eq. PI. (9th Ed.) § 456; Edwardsv. Drake, 15 Fla. 666; 1 Daniell, Ch. (5th Ed.) c. 21, p. 828. ,When the cause is set down for hearing on bill and answer "theooseis put at issue,the answer bacomes evidence, (Equity Rule 41. cI. 2,) and the only evidence the defendant needs, for it mustpe taken as true in all respects. * * * .There is therefore n6 tiedessity for a repli6ation, or for the taking of testimony. The'Betting the case down for hearing on bill and answer is, in effect, a
551,
submission of the cause to the court by the complainant on the contention that he is entitled to the decree prayed for in his bill upon the admis-i sions, and notwithstanding the denials of the answer." Reynolds v. Bank, 112 U. S. 409,5 Sup. Ct. Rep. 213; 1 Daniell, Ch. (5th Ed.) c. 21, pp. 828, 829. It is stated. by Mr. Daniell that a cause is now" however, rarely heard on bill and answer. Id. 829. . Failing to set the cause down for hearing on bill and answer, or to except to the answer, it is the duty of complf\inant to file his By the sixty-sixth rule in equity it is provided: "Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter; and in all where the general replication ia filed the cause shall be deemed to aU intents and purposes at issue, without any rejoinder or other pleading on either.side."· In this case the complainants have not adopted eit;her oCthe IIl.o.des of proceeding above indicated, but the attempt is made, by demurring to the answer of defendants, to raise questions which should properly be presented when the case is set down for hearing on bill and aI)sWer. Such is not believed to be the correct practice, and few cases are; Jound in its support. Upon this point it is said by the chancellor, in 'I'ra1Jefs v. ROBB, citing numerous authorities: . . "It must be borne in mind that the question is not whether the·answer is lawful or not. That question cannot. be examined upon this .motion, much less is it necessary that the answer should contain a valid defense to the bill of complaint. No demurrer lies to an answer in equity. There are one or two early cases where it was resorted to, (Williams v. Owen, 1 Ch. Cas. 56; Wakelin v. Walthal, 2 Ch. Cas. 8; Wyatt, Pro Reg. 162;) but its propriety was doubted then, and in modern practice it is never used. In equity.ademurrer is only a mode of defense to the bill. It is never resorted to to settle the validity of a plea or an answer. Such method of proceeding is not recognized in the books." 14 N.J. Eq. 257, 258; Banks v.Manohester, 128 U. S; 2®, 9 Sup. Ct. Rep. 36. . . And say the supreme court of Florida: "No such pleading as a demurrer to an answer In chancery is known to the practice in this After llna werthe next step is to except for insufficiency or impertinence, to set the cause downJor hearing upon bill and answer, or to file replication. While there was no objection by defendant to the filing of this demurrer by plaintiff. and while the defendant went to a hearing upon the demurrer without objection, still this court cannot sanction a totally uno: authorized practice. We cannot determine what is the legal effect of an unauthorized pleading, because the law gives it none, and tbe jUdgment based upon it can only be reversed," Edwa1'ds v. Drake, 15 Fla. 666. See Story, Eq. Pl. 456; Heard, Eq. Pl. 83; 1 Daniell, Ch. 542, note 1. ' The demurrer to the answer, having been im providently filed, will ibe stricken out, and leave granted complainants to Bet the case down.·'on bill and answer, or to file the usual replication on or before therule.da.1' in June ,nextj and it is so ordered.· .
552
FEDERAL REPORTER, vol. 38. MAYOR OF CITY OF NEW YORK et al. April 15,1889.)
WESTERN UNION TEL. CO. 1.
'V.
({}ircuit Oourt,S. D. N6'IlJ York.
CONSTITUTIONAL LAw-FEDERAL AGENCIES-INTERSTATE COMMERCE-POLICE REGULATIONS.
:a.
LawsN. Y. 1884, c. 534: Id. 1885, c. 499, requiring all electric wires in any city having a population of 500,000 or more to be placed under the surface of the streets, is valid as a poUce regulation, as to a telegraph company which has accepted the provisions of act Congo July 24, 1866. and which thereby became, as to government business, an agency of the general government. and entitled W construct. etc., lines of telegraph over and alonK any postroad, etc., and which is au instrument of interstate commerce. The statute does ndt infriuge the power of congress to regulate commerce. or the exemp· tion of the agencies of the federal government from state control. SAME-SPECIAL PRIVILEGES.
The board ofcommissioners of electrical subways, created by the act of 1885, made a contract with a subway company to lay subways for the use of all electrical companies: authorizing the subway company to charge a rental for the use of the subways; reserving. to the commissioners such control over the subways as was calculated to secure, to all companies reasonable facilities and protection; and {lroviding that all companies using the subways should own, control, etc., theIr conductors, and that the commissioners would use all lawful means to campel all companies to use the subways and pay a fair rental therefor. Held. that Laws 1887, c. 716, ratifying contract. was none the less a police regulation because of the special privileges given to the subway company. Neither is the statute of 1887 invalid as a confiscation of property rights by deprivinlt cO!Xlpanies owning electric wires of their easements for the benefit of the subway company. ' OF LAW. .' ' 'I"
8.
4.
SUrE-MONOPOLIES AND PRIVILEGES.
As there is nothing in the contract precluding 'the commissioners from building subways or entering intocontraets with other companies for building them, sndas it extends only to such subways as the commissioners shall direct the company to build, and provides that nothing in it shall be construed as, KraI!-tiI!-g any exclusive privilege or franchise. the act does not violate Const. N. Y. art. 8, § 16,prohibiting any local bill granting to any corporation any exclusive privilege, immunity, or franchise. PRIVILEGE.
G.
But there is suc\l doubt as to the validity of the statutes to the extent that they permit the telegraph company to be deprived of its right to maintain its wires on the structures of an elevated railroad, .which is a post-road. that an injunction against any interference with the wires thereon should be granted until the question can be passed on by the court of last resort. the maintenance of·wires thereon not being attended with any public inconvenience. EQUITY-JURISDICTION-PU:&LIC AUTHORITIES.
Where the public authorities areuot acting malajide, the exercise of their discretion will not be reviewed in a court of equity on the allegation of the telegraph company that they are attempting to compel it to place its wires in insufficient and defective subways. ,
In Equity. Action by the Western Union Telf'graph Company against the mayor ofthe city of New York and others. Wager Swayne, George H. Fearons, and RU8hTaggart, for complainant. John M. Bowers and David J. Dean, for defendants. WALLACE, J. This case presents the general question whether certain acts of the municipal authorities of the city of New York, respecting