Page:Federal Reporter, 1st Series, Volume 10.djvu/227

BODTHEEN EXPRESS 00. W. SX. i.,:l. M. & S. RT. 00. 21;5; �ju;j,lor£'(l to ascertain the necessary compensation and compel its payment. �9. To permit the railroad company to fix upon a rate of compensa- lion which is absolute, and insist upon the payment iu advance or at the end of every train, [trip,] wonld be to enable them to defeat the just rights of the express company, to destroy their business, and would be a practical deniai of justice. �10. To avoid this difficulty I think that the court can assume that the .rates or other mode of compensation heretofore existing between any such companies are prima fade reasonable and just, and can require the parties to conform to it as the business progresses, with the right to either party to keep and present an account of the busi- ness to the court at stated intervais, and claim an addition to or rebate from the amount so paid; and, to secure the railroad ooin» pairiesin any sam which may be thus found due them, a bond from the express company may be required in advance. �.11. Where.no such arrangement has heretofore been in existence, it iS' competent for the court to devise some mode of compensation to be paid' as the business progresses, vrith like power of final revision on evidence, reference to matter, etc. �12. I am of the opinion that neither the statutes nor constitutions of Arkansas or Missouri were intended to affeot the right asserted in these cases; nor do they present any obstacle to such decrees as may enforce the rights of the express companies. �In the case of the Southern Express Go, v. Iron Mountain dk South- ern R. Co., MoCrary, J., made the followihg order: �In this case it is ordered that the injunctibn hereinbefore granted shall remain in force until otherwise ordered by the coiirt. Counsel .will be heard at a convenient time upon the question of the form of the decree to be entered herein,, in pursuance of the opinion of the «ourt, announced by Mr. Justice Miller, and here with filed.* �*0n concluding the reading of Justice Miller's opinion, Judge Tkeat said that when Justice Miller and Judge McCrary were present lie did not under the law have any voice in the decision of the case. Were it not so, he would put in writing a dissenting opinion as to some of the conclusions stated, for lie was elearly of the opinion that it was beyond the powers and f unctions of the court to hold, practieally, under their control the administration of rail- road affiairs as to freight and other business. The powers of the^court extend no further than to compel equality of rates without discrimination, but notto «ettle or prescribe rates. �' For final decree see posf, 869. ��� �