CORRESPONDENCE p\, CONCERNING A DECISION IN TELE SUIT BETWEEN THE Kansas Pacific and Union Pacific Railroads. D IN THE UNITED STATES CIRCUIT COURT, DISTRICT OF NEBRASKA. WASHINGTON: NATIONAL REPUBLICAN PRINTING HOUSE. 1818. CORRESPONDENCE. Judge Dillon to Mr. Usher. St. Louis, Mo., January 1J. 1878. Hon. J. P. Usher: Dear Sir : I enclose copy of an official letter I have this clay sent to Judge Dundy. I sincerely hope you will not be dissatisfied with my resolution. I send a copy of my letter to Judge Dundy, and of this let¬ ter, to Mr. Poppleton. Please notify the counsel associated with you hereof. Very respectfully your obedient servant, JOHN F. DILLON. Judge Dillon to Mr. Poppleton. St. Louis, Mo., January 1J, 1878. Hon. A. J. Poppleton, Omaha, Neb.: Dear Sir : I enclose copy of an official communication I have this day sent to Judge Dundy. I sincerely ^ope you will not be dissatisfied with my resolution. I send a copy of my letter to Judge Dundy, and of this letter to Mr. Usher. Please notify the counsel associated with you hereof. Very respectfully your obedient servant, JOHN F. DILLON. Judge Dillon to Judge Dundy. St. Louis, January ij, 1878. lion. E. S. Dundy, Falls City, Nebraska: My Dear Sir : I have your letter of the 11th instant, in which you state that you have not been well for some time 4 and are not yet well, and that you have not commenced on the " prorate " case between the Kansas Pacific and Union Pa¬ cific railroads, and inquire if I have done so. I have not, for two reasons: First. I have been constantly in court in Jetferson City and in Kansas, Minnesota, and here, where I am now en¬ gaged almost every day (the holiday vacation excepted) since the argument, and have had no time. Second. As after the argument was closed we had no time for conference and came to no conclusion, it was understood that you were to examine the case and send me the result of your investigation, and, if possible, write an opinion for my consideration; and I did not, therefore, expect to look into the case until I had heard from you, and I have not done so. It so happens that my uncle is the president of the Union Pacific Company, in view of which I stated to you the em¬ barrassment I felt in sitting in the case where such vast public and private interests were involved, and therefore de¬ sired you to take the leading part. Although this fact may constitute 110 legal disqualification on my part, yet, as you can decide the case without me, reflection has impressed me with the conviction that it will be altogether more delicate and in consonance with judicial propriety to decline to take any part j.n the decision. The correctness of this course is much strengthened in my mind by the advice of our brother, Treat, to whom I have submitted this question of judicial propriety under the circumstances. I am the more satisfied with this conclusion since, unques¬ tionably, the cause is one which the Supreme Court will have ultimately to determine, irrespective of what we, or either of us, might decide. You must, therefore, act without reference to me. In an¬ nouncing your judgment, please state that I took no part in the decision. I send a copy of this letter to the opposing counsel in the cause. I am very truly yours, JOHK F. DILLON. 5 Mr. Usher to Judge Dillon. January 16, 1878. Hon. John F. Dillon, St. Louis, Mo.: Dear Sir : I have yours of the 14th, infolding copy of your letter to Judge Dundy. I am very much confounded to know what I ought to do. %t CD I assume that you did not realize, when the argument was made before you at Omaha, the vast and far-reaching effect which a decision of the questions in issue would have. But now, because of the position and large pecuniary interest of Mr. Sidney Dillon in the Union Pacific Railroad Company, I fully appreciate the delicacy which you have manifested in declining to take any part in the decision of the cause. I will not conceal from you that we knew and considered of this matter before the argument commenced, but such was our confidence that you could and would suppress all feelings that might arise from consanguinity or friendship, that we went as cheerfully forward as we would if the parties had never before been heard of by you. I regret, exceedingly, the conclusion which you have reached. Your decision, whichever way it might have been, would have been supported by reasons that would have carried confidence in their correctness. We would not have sub¬ mitted the cause to the district judge, not for the want of any personal respect for him or of confidence in his general ability. What we wanted was the decision of yourself, and if we had known that we could not have had it, we should have desired that the cause lay over until Justice Miller could be present and hear it. The suit was an amicable one, with the express understanding that you should decide it. The complainants desired the moral effect of a decision by you or Justice Miller, confi¬ dently expecting it would be in their favor, and, if so, that the parties would have wisdom and prudence enough to con¬ form to the decision, without being compelled to invoke the coercive power of the court. 6 In the present attitude of the case, I do not see that we should be materially advanced though the decision should be in our favor, and I fear we may be prejudiced, only to be relieved after tedious delay. I must be entirely candid with you, and, since you will not sit in the cause, unless it can lay over until the next term of the court, with the expecta¬ tion of having it heard by Justice Miller, I think the inter¬ ests of the complainants require that I should present a pe¬ tition to dismiss the cause. I should be embarrassed to say this much to Judge Dundy, for whom I have the most pro¬ found respect, but I am sure you will appreciate the condi¬ tion in which I find myself placed as well as the duty bear- ing upon me, that I should forego nothing from delicacy to any one, in a cause as important as this to my clients and all the people. If you see no impropriety, after what you have written to Judge Dundy, in again addressing him, asking him to suspend his decision until the cause can be heard by Justice Miller with him, I shall be glad, otherwise I am constrained at this moment to say that I think it my duty to ask you to receive a petition to dismiss the cause without prejudice. Be kind enough to reply to this upon its receipt. Very respectfully, your obedient servant, J. P. USHER. v. P. S.—If it can be arranged to have the decision of Justice Miller in the cause, which I have no doubt Judge Dundy would very much desire, I shall be entirely willing to submit the case, so far as the complainants are concerned, upon the briefs of Messrs. Holmes, Woolworth, and myself; and he might find time to render an opinion while in Washington, and forwTard it for entry by the clerk. In a matter of such grave importance, so deeply affecting the public welfare—for public repose, if for nothing more—it does seem to me that it can be somehow arranged to have the decision of Justice Miller. I believe he would, in con¬ sideration of the great interests involved, consent in this 7 case to waive ceremony and give the country the benefit of his opinion. Can't it be arranged some way that it may be done ? Judge Dillon to Judge Dundy. St. Louis, January 18, 1878. Hon. E. S. Dundy : Dear Sir : Since writing you on the 14th instant, declin¬ ing to take part in the decision of the pro rata case, it has occurred to me, in view of the vast importance of the cause to the immediate parties and the people of the whole country, to suggest for your consideration the propriety and advisability of your endeavoring to get Justice Miller to take part in the cause if he will do so, as this will relieve you of the undivided responsibility, and give the decision, whatever it may be, the greater weight which will attach to your united judgments. This could he done in one of two ways: 1. By suspending your action until you could obtain the consent of the counsel on both sides to submit the cause to Justice Miller, on the printed briefs already filed or addi¬ tional briefs if they desire ; or if this cannot be done, then— 2. By letting the cause lie over until Justice Miller comes on to the circuit in the spring. This will probably be more just and satisfactory to the parties, as they understood that two judges were to sit in the cause. Very truly yours, JOIEST F. DILLOK Judge Dillon to Mr. Usher. St. Louis, January 18, 1878. Hon. J. P. Usher, Lawrence, Kansas: My Dear Sir : I have just received your letter of the 16th instant, in answer to mine of the 14tli instant. 8 I sincerely thank you for what you say concerning your appreciation of the delicacy of the situation which led me to take the course I did. I have this day sent to Judge Dundy a communication, of which I enclose you a copy. I have also written to Justice Miller a letter, enclosing him a copy of my letter to Judge Dundy of the 14th instant, and of your letter to me of the 16th instant, and of my let¬ ter to Judge Dundy of this date, of which I enclose, as above stated, a copy. If Judge Dundy answers my letter of this date, I will ad. vise you and the counsel on the other side of its tenor. Very respectfully, your obedient servant, JOHN F. DILLON. Judge Dillon to Justice Miller. St. Louis, January 18, 1878. Hon. Samuel F. Miller: My Dear Sir: T enclose you copy of my letter of the 14th instant, and of this date, to Judge Dundy, in respect to the pro rata case between the K. P. and U. P. Railroad Com¬ pany, also copy of Judge Usher's letter of the 16th instant to myselt. I trust that you will confirm Judge Treat's judgment as to the propriety of the course I have taken, and send you these letters for your information, and to give you data for your action should you be called upon to act as it appears not improbable you may he. Your judgment would have a weight legal and moral that would belong to the judgment of no one else wTlo could possibly act in the matter, and which will, perhaps, make you regard, as I trust you will, such an application as a pub¬ lic duty which, under the circumstances, you ought to perform. Very truly yours, JOHN F. DILLON. 9 Mr. Usher to Mr. Poppleton. The Kansas Pacific Railway Company et al. vs. The Union Pacific Railroad Company. Washington, D. C., January 26, 1878. Sir: With this I hand you copies of correspondence in my hands relative to the pro rate suit of the Kansas Pacific Railway Company et al.vs.tYie Union Pacific Railroad Com¬ pany. You will observe from my letter to Judge Dillon of the 16th inst. the great anxiety of complainants that the very grave questions involved should he decided either by Judge Dillon or Mr. Justice Miller. It was believed by all of us that the decision of Judge Dillon would carry such weight that the companies and the public would be likely to ac¬ quiesce in it. For reasons we did not foresee we are deprived of his decision, and as this was an amicable suit, designed to obtain a decision upon which we could all rely, our object will not be accomplished by submitting the cause to the judgment of the district judge alone. I am advised by recent dispatches that Mr. Justice Miller consents to consider the question now in issue upon printed arguments, or hear the case in March next. If we can ar¬ range to save the important matters in issue between the companies by stipulation, or otherwise, I am advised that Mr. Justice Miller, to relieve the case of the embarrassments occassioned by Judge Dillon's action, suggests that a decree pro forma be entered and an appeal taken to the Supreme Couit, and that he anticipates the court will be pleased to advance the cause on the docket for argument at an early dav. I heg to say that it seems to me that there ought to be no difficulty in agreeing to one or the other of the above sug¬ gestions. For the complainants, we are willing to adopt either of them, as may be most agreeable to you. Consider¬ ing the importance of the case and its public nature, we earnestly hope you will unite with us in devising some plan 10 which shall lead to an early decision of this cause by Mr. Justice Miller or the Supreme Court, and so have the matter set at rest. You will observe that in my letter of the 16th inst. I pro¬ pose a dismissal of the cause in the event of failing to obtain the decision of Mr. Justice Miller. Of course the decision of the Supreme Court would be still more satisfactory. We have, therefore, to solicit an early reply to this communica¬ tion to the end, if adverse to our proposition, that we may dismiss the cause and resort to such other means as are open to us. As I am about to leave the city, please hand your answer to the above to Mr. Wool worth or Mr. Holmes, who will make all necessary arrangements to speed the cause as sug¬ gested. Respectfully yours, J. P. USHER. To Hon. Andrew J. Poppleton, General Solicitor of the Union Pacific Railroad Company. Mr. Poppleton to Mr. Usher. Washington, D. C., January 28th, 1878. Hon. J. P. Usher, General Solicitor Kansas Pacific Railway Company: Dear Sir : I am in receipt of your letter of the 26th in¬ stant, enclosing printed copies of a correspondence between yourself and Hon. John K. Dillon, judge of the eighth judi¬ cial circuit, in respect to the case of the Kansas Pacific Rail¬ way Company et al., vs. the Union Pacific Railroad Com- panyy, commonly known as the pro-rate case. The object of this letter is to obtain the consent of the Union Pacific Company to a withdrawal of the case from the judge to whom it lias been submitted for decision, and a rehearing by or in connection with another judge who did not sit at the first argument, or a decree pro forma, which 11 you know, in the present stage of the case, is impracticable. Failing to obtain our consent you declare your purpose to dismiss the suit, and resort to such harsher remedies' as the law provides. Let me recall the history of this case, in order that, in the the light of its facts, a proper judgment of the reasonable¬ ness of this request may be formed. On the 29th of September, 1874, more than three years ago, the two companies, mainly at your instance, made an agreement in writing, in respect to the division of rates on business interchanged at Cheyenne, and also providing that 4 • the legal rights and status of the respective companies shall be the subject of an amicable legal adjudication." This argument was understood to be a final submission of the rights of the two companies in respect to the interchange of business to a judicial determination, a pledge not to seek Congressional legislation changing the law, but a legal construction of ex¬ isting laws, by which both parties should abide. Your company instructed you to institute a suit for that purpose, January 21,1875. You commenced the suit in the circuit court of the district of Nebraska. There never was any agreement that it should be instituted in any particular court, or heard before any particular judge. An answer to the merits was filed March 15, 1875, less than sixty days. You took no further steps in the case until May 9, 1877, over two years, when you filed exceptions to the answer. Even these you did not call up for hearing at the then pend¬ ing May term. It was not until about November 1, 1877, that you signi¬ fied your desire to bring them to a hearing. One of these exceptions raised the vital question in the case. The im¬ portance of the issue was not underrated, and upon ample preparation the case was elaborately argued on the 15th of November, 1877, both the circuit and district judges sitting at the hearing. We had then no intimation of any hesi¬ tancy on the part of Judge Dillon, in hearing and deciding the case, and no reason to apprehend that such a del ermina- 12 tion was possible, in view of the fact that, within five years past the Union Pacific Company lias been a party to more than an hundred cases pending in his court, some of tliem of not less magnitude, either in respect to pecuniary amount or the character of the questions involved, than this ; none of which had he ever declined to hear and decide for the reason assigned in this. Yet, after holding the case under advisement two months, for the reason stated in his letter of January 14,1878, which being satisfactory to him we do not question, he declines anj^ further participation in the case, and hands it over to the district judge for determination. In the meantime, in violation, as it seems to us, of the agreement for a judicial solution of the questions at issue be¬ tween the companies, the Kansas Pacific Company, by a numerous and organized force of agents and attorneys, is at the doors of Congress clamoring for legislation changing the laws by which you have agreed to abide, and have submit¬ ted to judicial construction in a court of your own choice and selection. From all these facts, and your declaration now made of your purpose to dismiss the agreed case, unless given a direction subject to your dictation, we are reluct¬ antly led to doubt the purpose of your company to abide a judicial decision. You have hut to leave the suit where it is to be speedily decided. Of what avail is a consideration by any other court, so long as your company is struggling to change the law, whose construction you have by agreement submitted to a court, whose decision you now decline to ac¬ cept? Should you succeed, long before a final judgment could be reached it would be worthless, because it would be forestalled by legislation. So long, therefore, as a legislative change in the existing law is sought by your company, in violation of the agreement of the two companies, I am in¬ structed to decline entering into any further agreements for a judicial construction of it. The Union Pacific Company has always been willing to abide a judicial construction of the existing law on the sub¬ ject in controversy between the companies, when such de- 13 cision is accepted in good faith as a finalty, but it sees noth¬ ing to be gained by burdening courts and judges with ques¬ tions on which their judgment is sought to be forestalled by pending legislation. It will abide by its present agreement in respect to the "agreed case." That case has been argued, submitted, and under advisement more than two months. If you insist upon dismissing it, it will not be our fault that this vexed question has not received a judicial, rather than a legislative, solution, according to the agreement of the companies. We can only regard your action as an acknowledgment of failure in the courts, and a determination to engraft upon the law, by act of Congress, a construction you despair of obtain¬ ing from the judiciary. Very respectfully, your obedient servant. A. J. POPPLETOK. Mr. Usher to Mr. Popjpleton. Lawrence, Kansas, February #, 1878. Dear Sir: Your letter of the 28tli January is received. I understand by it that you decline to accede to the sugges¬ tion of Judge Miller that a decree pro jorma be entered, and an appeal taken at once to the Supreme Court; also, that you decline to enter into any agreement whatever respect¬ ing it. I am in receipt of a copy of a letter from Judge Dillon to Judge Dundy, dated the 24th January, in which the former communicates officially the alternative suggestions kindly made by Justice Miller to relieve him (Judge Dillon) of the embarrassment under which he labors. As you decline to entertain either of these suggestions, we need not argue the matter further. 14 Your letter implies that I, or the Kansas Pacific Com¬ pany, exercise some control over the honorable Senator from Colorado (Mr. Chaffee) and the honorable member of the House from Missouri (Mr. Crittenden), and that we have persuaded or induced them to make a public grievance out of a case pending before the judicial tribunals of the coun¬ try. This assumption is erroneous in fact, and is scandalous as regards those gentlemen. If the practical operation of the Union Pacific Railroad has provoked indignation in im¬ portant sections of the country, that is something we are not responsible for. At all events, it is wholly outside the rec¬ ord, and not fit to be brought into this correspondence. I could instance more than one violation on the part of your clients of what you are pleased to call the spirit of the agree¬ ment between us. But I decline to be drawn aside from the issue, and remain, Very respectfully, your obedient servant, J. P. USHER. To the Hon. Andrew J. Popplleton, General Solicitor, of the Union Pacific Railroad Company. Judge Dillon to Judge Dundy. St. Louis, January 1878. Hon. E. S. Dundy, Falls City, Neb.: My Dear Sir: I am in receipt of a letter from Justice Miller, in respect of the 'pro rata case. He has kindly con¬ sented that if the case is submitted to him, as well as to your¬ self, on written argument, he will give it as early considera¬ tion as possible. If the Supreme Court has the usual vaca¬ tion in March, as he thinks probable, he will, if desired all around, hear it on oral arguments at Washington, on exactly the day he names. He suggests and advises, if possible, that a pro forma decree be entered, an immediate appeal taken, 15 and he will ask his brethren of the Supreme Bench to agree to hear it at an early day this term. I send copy of this letter to Mr. Poppleton and Judge Usher. Very truly yours, JOHN F. DILLON. TV SHIXGTON N A JV A O R E G O N Of \ \ flE V A D A . ' 1 y Ir JDafi 3