RANDLE V. ABEEL.
answer t it would be as mucb short of due proce8s of law as the decision of a case involving such a question without allowing an answer would be. Demurrer overruled; defendants to answer by September rule day.
RANDLE et ai. v. ABEEL. (Circuit Court of Appeals, Fifth Circuit. May 31, 1898.) No. 665.
RAILROADS-REGULATION BY STATE COMMISSIONERS-REFUNDING OF CHARGES'
A provision In an order made by the railroad commissioners of Texas, whereby a certain railroad company "Is authorized to refund its own and the charges of" a certain other company, under the condition prescribed by the regulations In force, held to be merely permissive, and not to give an absolute right to have such charges refunded.
Appeal from the Circuit Court of the United States for the Eastern District of Texas.
This Is an appeal by G. H. Randle, a resident citizen of McLennan county, TeL; George H. McFadden, a resident citizen of the city of Philadelphia, In the state of Pennsylvania; John H. McFadden, a resident citizen of Liverpool, England; and J. Frank McFadden, of said city of Philadelphia and the state of Pennsylvania,-from a final decree of the circuit court of the United States for the Eastern district of Texas, at Galveston, wherein the said appellants were Interveners, against Alfred Abeel, receiver of the 'Waco & Northwestern Railroad. In appellants' petition In intervention they allege and set up that on August 11, the railroad commission of Texas, under and by virtue of the laws of the state of Texas, adopted, fixed, anel established a schedule of rates for local and joint application on cotton In bales from and to all points In the state of Texas, known and called "Commodity Tariff No. 1," substantially as follows: "To apply between stations east, north, and west of and Including Houston: "Distance. Rates.
Over 125 mUes. 59" "Fourth. The rates from points east, north, and west of Houston to Galveston · · · shall be made by adding 6 cents per 100 pounds to the rates from the same points to Houston." -Whereby the rate so fixed was 65 cents per 100 pounds from any and all points on said Waco & Northwestern Division and said Texas Central Railroad to Galveston, Tex.; and on said day, by said tariff, said commission made and established among others, the following rules and regulations: "Fifth. For the purpose of concentration, cotton may be shipped at full tariff rates to compress stations, distant from all points on the Gulf coast 100 miles or more of railroad mileage, with the following adjustment of freight charges before and after such concentration, provided that there shall be no compress in operation at original shipping point, or at a station Intermediate between such point and the point at which it Is desired to concentrate: (1) Each railroad company shall refund only its own charges for the service of concentration. (2) The entire charge for concentration shall be refunded when the point of concentration Is directly Intermediate between shipping point and final destination, as reached by the line on which such cotton originates, and the rates from original shipping points and concentrating point to such destination are the same,"-whlch said schedule of rates, and which said rules and regulations, went into etrect un September I, 18D4, and have continuously since then remained in etrect and force. That afterwards, on September 18, 1894, upon the joint application of said Alfred Abeel, receiver, by his general freight agent, J. E. W. Fields, and the Central Ratlroad Company, by its chief clerk in the tratfic department, W.
88 FEDERAL REPORTER.
F; McMillin, the Bald commodity tarur and the said rules and regulations were amended substantially as follows: "(1) On cotton in bales between Oliver ,&t4tion and Alexander to Waco, the rate shall be 40 cents per 100 pounds. (2) Said roads [Waco & Northwestern Division alid Texas Central Railroad] are exempted from the operation of section 1, fifth paragraph, of rilles and regulations governlni the concentration of cotton; and the Waco & Northwestern is authorized to refund its own and the charges of the Texas Central Rallroad, under the terms and conditions prescribed in said sections 2 and. 8 of paragraph 5 of rules and regUlations of commodity tariff No. 1. On aU through business originating north of Oliver station, the mileage rates prescribed In commodity tariff No. 1 shall applY,"-whlch said amendment went into effect on September 21, 1894, and has continuously since then been In effect and operation. The ·lnterveneJ;'s, . /18 shippers of cotton, claim a right under these regulations to have the charges for concentration refunded to them, and by thei!' petition seek to recover from the receiver the sum $7,363.85, beIng the balance of a mpch larger sum, part of which had in fact been paid. The cause was referred to a master, who, after bearing the evidence, made an elaborate report, recommending the disallowance of the entire sum as to the Intervener, G. H. Randle, but finding that the firm of George H. McFadden & Bro. were entitled to recover the sum of $48.30, with Interest. Exceptions to the report were overruled by the court, and a decree entered pursuant to the master's recommendations. From this decree the present appeal was taken.
It unnecessary to consider other questions raised in the case.
This finding is correct, and disposes of the present appeal, rendering The decree appealed from is affirmed.
LOS ANGELES CITY WATER CO. et aI. v. CITY OF LOS ANGELES et al. (Circuit Court, S. D. California.. No. 784.
L WATER COMPANIES-CONTRACT WITH MUNICIPAL CORPORATION-REGULATION
May 31, 1898.)
A provision In a contract between' a water company and a municipal corporation that the mayor and common council "shall have, and 10 reserve, the right to regulate the water rates charged by said parties of the second part, or their assigns," except that they shall not reduce the same below a stated price, refers;, not to a right of regulation given the city by the contract itself, but to a power which the city already had, or which might be conferred by legislative action; and, If the city was Iluthorized to make the stipulation in respect to minimum rates, neither