Samuel A. Riggs and D. S. Alford, for complainant. A. L. Williams, for Union Pacific Railway Co. REPORT AND OPINION OF THE COMMISSION. COOLEY, Chairman: The complaint in this case avers that complainant is a citizen of the State of Kansas, and a resident of the city of Lawrence in that State, which city has a population of about 12,000, and is an important business point in said State. That the Chicago, Rock Island & Pacific Railway Company operates, among other lines of railway, a line of road extending from Kansas City, in the State of Missouri, through said city of Lawrence, to the city of Colorado Springs in the State of Colorado; and that said railroad company wholly refuses to afford any railway facilities whatever to the inhabitants of said city of Lawrence, or to stop any of its trains at said city for the accommodation of its people; and unreasonably subjects said locality to great disadvantage thereby; and does and has wholly refused to transport the complainant from said Kansas City to said city of Lawrence, or to sell tickets to complainant for transportation on its said road between said points; the said company alleging as its excuse therefor that it operates its trains between said Kansas City and through said city of Lawrence, over the railway track of the Union Pacific Railway, and under a contract with the Union Pacific Railway Company that said Chicago, Rock Island & Pacific Railway Company shall do no business at said station of Lawrence, and accept of no business to or from said city of Lawrence to or from any other point; which contract, if any such exists, the complainant alleges was made after the Act to regulate commerce went into effect, and is in conflict with the terms of said Act, and particularly with that portion of section 1 thereof, which provides that "the term railroad, as used in this Act, shall include . . . all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement or lease," etc.; and also of section 3 of said Act. Complainant therefore prays that said railway company may be ordered and required to afford all reasonable and proper facilities for railroad traffic over said line, to the said city of Lawrence and its inhabitants; and that said company be also ordered and required to transfer complainant over said line to or from said city of Lawrence to or from points outside of said State of Kansas, upon his hereafter tendering to the proper agents of said company proper and usual compensation therefor. The answer of the respondent admits that complainant is a citizen of Lawrence as alleged, and that said city is situate on the Union Pacific Railway, in the State of Kansas, and on the portion of that railway over which respondent operates trains; admits the importance of the city; and that respondent operates trains from Kansas City in the State of Missouri, by way of said city of Lawrence, to the city of Colorado Springs as alleged; that it has wholly refused to furnish any railway facilities whatever to the inhabitants of said city of Lawrence, and has refused to stop its trains at said city for the accommodation of the people thereof; that it has refused to transport the complainant from said city of Lawrence to said Kansas City, or to sell to him or to any other person tickets for such transportation. It denies that the several acts alleged and so admitted are illegal or unreasonable. It alleges that it owns no railway which extends to or through said city of Lawrence; that it has acquired by contract the right to operate freight and passenger trains along and on the tracks of the Union Pacific Railway Company, from Topeka in the State of Kansas to Kansas City in the State of Missouri, subject to certain conditions and stipulations in the contract set out and expressed; and that among the covenants and agreements therein contained is one on the part of the respondent that it will not carry freight or passengers on such trains to or from any stations between Topeka and Kansas City. That this respondent has kept and performed said covenant, and has never become a common carrier to or from said city of Lawrence; and that a wilful violation of its covenant would result in a forfeiture of its rights under said contract of lease, and deprive it of the power to operate any trains over said Union Pacific Railway between the points named or any other points. For these reasons respondent prays that the complaint be dismissed. Upon the issue thus made, the parties proceeded to a hearing and the complainant introduced evidence tending to show the importance of the city of Lawrence as a business point, and that it is a point of junction between the Wyandotte & Northwestern branch of the Atchison road and of the Southern Kansas branch of the Atchison road, with the Union Pacific Railway; also that at this point there is a junction between the main line of the Union Pacific road and its Leavenworth branch; also that the United States Express Company operates over the lines of the respondent, in the State of Kansas, and that that express company has no office in the city of Lawrence, though it is the only express company operating over the respondent's lines. It was admitted in the case that the agreement set up in the answer was made by the Union Pacific Company with the Chicago, Kansas & Nebraska Railroad Company, and that the respondent is the assignee of the last-named company of all its rights thereunder. It was further shown on the part of the respondent, as a reason for the making of this contract, that the Chicago, Rock Island & Pacific Railway, and other corporations which were created in its interest, had at the time a line of road from Kansas City, in the State of Missouri to St. Joseph, also in the State of Missouri, and were engaged in extending their lines west. In order to reach their western termini from Kansas City they would have to run to St. Joseph, then over their line to the points. desired, making a very roundabout route; and it was manifestly a convenience for them to shorten that line if they could do so. This contract was made for that purpose, giving them the right to run their trains over the Union Pacific between Kansas City and Topeka. It was merely a trackage arrangement, constituting in no sense a lease of the line of the Union Pacific. That company continued to operate its own lines as before. The Chicago, Kansas & Nebraska Rail road did not extend to Kansas City and did not reach Lawrence. It was not incorporated to reach Lawrence. It was therefore merely to shorten their line that the respondent road desired to use the track of the Union Pacific from Kansas City to Topeka, and to save the expense of building parallel tracks between these points. It was not the purpose of the contract to divest the Union Pacific Railway Company of its rights, or duties, or privileges, in any respect whatsoever, but merely to enable the respondent to run its trains from points upon its own track to its own grounds in Topeka, taking no business at intermediate points. And it was claimed that if a contract of that kind and thus limited could not be made, then the cause of the complainant is at an end, because the respondent doing business at Kansas City and having neither a railroad nor franchises, nor business facilities, at Lawrence, could not be compelled to do business there. The agreement, dated the 17th day of March, 1887, was put in evidence, and the material parts thereof are in substance as follows: It recites that the party of the first part, the Union Pacific Railway, now owns and operates a railway, a portion of which extends from Kansas City, in the State of Missouri, by way of Topeka in the State of Kansas, to Denver in the State of Colorado; and the party of the second part is engaged in constructing its railway from a point on the Missouri river opposite the city of St. Joseph, Missouri, by way of Topeka, to a point indefinitely fixed on the southern boundary and in the western portion of the State of Kansas, which railway when completed will be operated in connection with the Chicago, Rock Island & Pacific Railway, at said Kansas City and other points. Therefore the party of the first part leases to the party of the second part, for the term of nine hundred and ninety-nine years, commencing on September 1, 1887, the right and privilege to connect the tracks of its railway with the track of the party of the first part, at North Topeka and Kansas City and Armstrong, and to run, operate and manage its engines, cars, freight and passenger trains, in both directions, over the railway of the party of the first part, between said points of connection, and to make use of said tracks, etc. The party of the second part covenants that it will pay to the party of the first part, for the use of said railway and appurtenances, annual sums which are particularly specified, together with taxes, etc. The parties covenant, promise and agree with each other as to the manner in which business shall be conducted, controversies settled, etc.; and the party of the second part agrees that it "will do no business as a carrier of persons or property to or from points between North Topeka and Kansas City; it will give reasonable notice to prevent the entry of passengers into the trains, and if despite such notice passengers do enter such trains, it will account for and pay to the party of the first part all fares which may be collected from them." It is further agreed that "this contract is hereby attached to and shall run with the railways of the parties, and enure to and bind the lessees, grantees and successors of each," with a provision, however, for the termination thereof by the party of the second part on giving a specified notice of its intention in writing. It was agreed by the parties to this proceeding that it was under this agreement that the respondent was operating its trains over the line of the Union Pacific, through the city of Lawrence. The position of the complainant, as stated on the hearing, and also more fully in a printed brief filed in the case, is as follows: A railway company is incorporated only to do business as a common carrier; when constructed, its road is a public highway, and the public, and every portion of the public, has a right to the use thereof on reasonable and proper terms; and no corporation holding a franchise for the construction and operation of such a road has the right by contract to deprive the public, or any portion of it, of such use, or to absolve itself from its obligation to perform its duties to the public. It can do no act amounting to a renunciation of its duties to the public, or directly tending to disable itself from performing the same. The respondent, in operating its |