MARCUS K. BITTERMAN, Julius Mehlig, and Charles T. Kelsko, Petitioners, v.

LOUISVILLE & NASHVILLE RAILROAD COMPANY.

(See S. C. Reporter’s ed. 205-229.)

Carriers — excursion or round-trip tick¬ ets.

round-trip, reduced-rate excursion tickets, and the condition of nontransferability and forfeiture embodied therein is not only bind¬ ing upon the original purchaser, but upon

Note. — As to multifariousness in bill — see note to Gains v. Chew, 11 L. ed. U. S. 402. Injunction against dealing in nontransfer¬ able railroad tickets.

The decided weight of authority supports the proposition that an injunction will lie to restrain the dealing in nontransferable rail road tickets, at least, so far as the issuance of the tickets has been announced and they have been offered for sale. Schubach v. Mc¬ Donald, 179 Mo. 163, 65 L.R.A. 136, 101 Am. St. Rep. 452, 78 S. W. 1020; Kinner v. Lake Shore & M. S. R. Co. 69 Ohio St. 339, 69 N. E. 614; Lytle v. Galveston, H. & S. A. R. Co. (Tex.) 10 L.R.A. (N.S.) 437, 99 S. W. 396; Nashville, C. & St. L. R. Co. v. McConnell (C. C.) 82 Fed. 65; Illinois C. R. Co. v. Caffrey (C. C.) 128 Fed. 770; Penn¬ sylvania Co. v. Bay, 150 Fed. 770, Affirming 138 Fed. 203. na l. *4.

171

200

Supreme Court of the United States.

Oct. Term,

enue of the complaining railroad company, and the operation of the illegal dealing in such tickets upon the company’s right to is¬ sue them in the future, coupled with the admissions in the answer that defendants had not only in the past dealt in such tick¬ ets, but intended to carry on the business as to all future issues.

Injunction — adequate remedy at law.

dealing in nontransferable reduced-rate ex¬ cursion tickets will not be denied on the ground that an adequate remedy at law exists, where such brokers admit past deal¬ ings, and avow their purpose to continue the practice, and where the number of such tickets issued is large, the risk to be in¬ curred by the steps necessary to prevent their wrongful use is considerable, and nu¬ merous suits will be necessitated if redress is sought at law.

Pleading’ — multifariousness.

on misjoinder of parties and causes of ac¬ tion does not lie against a bill to enjoin ticket brokers from dealing in nontransfer¬ able reduced-rate excursion tickets, where the acts complained of as to each defend¬ ant were of a like character, their operation and effect upon the rights of the complain¬ ing carrier were identical, the relief sought against each defendant being the same, and the defenses which might be interposed be¬ ing common to each defendant, and involv¬ ing like legal questions.

Injunction — extent of relief — future

acts.

On the other hand, it is said in Lytle v. Galveston, H. & S. A. R. Co. supra, that, “when a railroad company has determined upon selling tickets at a reduced rate for a particular occasion, good for a return trip, but nontransferable, and have so advised the public, and placed such tickets upon sale, then, in our opinion, the company has the right to enjoin dealing in the return tickets. In such a case there is a live issue and a threatened injury which is imminent. But, when tickets of the character designated are not upon sale, to enjoin dealing in such as may thereafter be issued as occasions may arise savors of action appropriate to the legislative branch, rather than to the judi¬ cial department, of the state government. It seems to us that the railroad companies have an adequate and complete remedy by enjoining dealing in tickets which are on the market for sale, without interference as to those that have not been, but may thereafter be, offered for sale.”

The preponderance of authority as above set forth is opposed only by a trial-term de¬ cision (New York C. & II. R. R. Co. v. Reeves, 41 Misc. 490, 85 N. Y. Supp. 28), where it is said, in substance, that the whole case rests upon assumptions that persons will act unlawfully, while all the presump¬ tions of law are in favor of innocence, hon- 172

unlawfully dealing in nontransferable re¬ duced-rate excursion tickets may extend to the restraining of like dealings as to similar tickets which may be issued in the future.

[No. 34.]

Argued November 4, 1907. Decided De¬ cember 2, 1907.

ON WRIT of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit to review a decree remanding to the Circuit Court for the Eastern District of Louisiana a suit to restrain ticket brok¬ ers from dealing in nontransferable reduced- rate excursion tickets, with directions to en¬ ter a decree enjoining the defendants gen¬ erally from dealing in such tickets, whether already issued or thereafter to be issued. Affirmed.

See same case below, 75 Cl C. A. 192, 144 Fed. 34.

Statement by Mr. Justice White:

Upon a bill filed on behalf of the Louis¬ ville & Nashville Railroad Company, the circuit court of the United States for the eastern district of Louisiana entered a de¬ cree perpetually enjoining the petitioners herein and four other ticket brokers, en¬ gaged in business in the city of New Or¬ leans, from dealing in nontransferable round-trip tickets issued at reduced rates for passage over the lines of railway of the complainant on account of the United Con-

esty, and the discharge of the duties of cit¬ izenship; and that where the plaintiff has reserved to itself the power of regulating the method of authenticating the ticket, and of taking it up and collecting full fare where it is presented by a person other than the original purchaser, it takes a good deal of presumption against the current of law to make out irreparable injury.

As to whether the right to relief is af¬ fected by the fact that the tickets in ques¬ tion were issued under an unlawful arrange¬ ment with other railroad companies, fixing the rate to be charged, there is a difference of opinion, it having been held in Kinner v. Lake Shore & M. S. R. Co. supra, that the maxim of equity that “he who comes into equity must come with clean hands” did not apply, even though the arrangement fix¬ ing the rate was unlawful, because the ac¬ tion was not to enforce such arrangement or any rights thereunder, but related en¬ tirely to a contract for transportation be¬ tween a railroad company and a servant of its patrons; while a contrary conclusion was reached in Delaware, L. & W. R. Co. v. Frank, 110 Fed. G89, where it is said that the aid of equity may not be invoked to protect tickets representing rates unlawfully fixed.

207 U. S.

Bitterman v. LouisvnxE & N. R. Co.

206-209

federate Veterans’ Reunion and the Mardi Gras celebration held in the city of New

Orleans in the ’years 1903 and 1904, re spectively. On an appeal prosecuted by the railroad company, complaining of the lim¬ ited relief awarded, the circuit court of ap peals held that the defendants should also be enjoined generally from dealing in non transferable round-trip reduced-rate tickets whenever issued by the complainant, and ordered the cause to be remanded to the circuit court with directions to enter a decree in accordance with the views ex¬ pressed in the opinion. (75 C. C. A. 192, 144 Fed. 34.) A writ of certiorari was thereupon allowed.

We summarize the averments of the com¬ plaint and answer. It was averred in the bill that complainant was a Kentucky cor¬ poration, operating about 3,000 miles of railway for the carriage of passengers, bag¬ gage, mail, express, and freight, its lines of road extending from New Orleans through various states, and making connections by which it reached all railroad stations in the United States, Canada, and Mexico. The seven persons named as defendants were averred to be citizens and residents of Lou¬ isiana, each engaged in the city of New Or¬ leans as a ticket broker or scalper in the business of buying and selling the unused return portions of railroad passenger tick¬ ets, especially excursion or special-rate tick¬ ets issued on occasions of fairs, expositions, conventions, and the like. It was further averred that the defendants were joined in the bill, “because their business and trans¬ actions complained of are in act, purpose, and effect identical, and in order to prevent a multiplicity of suits, the same relief being sought as to each and all of them.”

Six articles or paragraphs of the bill re¬ lated to an approaching reunion of United Confederate Veterans to be held in the city of New Orleans, which it was expected would necessitate the transportation by the rail¬ roads entering New Orleans of 100,000 vis¬ itors, one fourth of which number would pass over the lines of railway of the com¬ plainant. A necessity was alleged to exist for special reduced rates of fare to secure a large attendance at such reunion, and it was averred that a rate of 1 cent a mile, '2 0 8]one third the regular rate, had ’been agreed upon for nontransferable round-trip, re¬ duced-rate tickets which were to be issued for the occasion, and it was stated “that among the conditions on the face of said ticket, which ticket contract is signed by the original purchaser and the company, is one that said ticket is nontransferable, and, if presented by any other than the original purchaser, who is required to sign the same at date of purchase, it will not be honored, 52 L. ed.

but will be forfeited, and any agent or con¬ ductor of any of the lines over which it reads shall have the right to take up and cancel the entire ticket.” And for various alleged reasons, based mainly upon the large number of expected purchasers, it was averred that the return portion of each ticket was not required to be signed by the original purchaser or presented to an agent of the complainant in the city of New Or¬ leans for the purpose of the identification of the holder as the purchaser of the ticket.

It was averred that each defendant was accustomed to buy and sell the return cou¬ pons of nontransferable tickets, for the ex¬ press purpose, and no other, of putting them in the hands of purchasers, to be fraudu¬ lently used for passage on the trains of com¬ plainant, and it was further averred that the defendants intended in like manner to fraudulently deal in the return portion of the tickets about to be issued for the re¬ union in question, and that complainant would sustain irreparable injury, for which it would have no adequate remedy at law, unless it was protected from such wrongful acts. It was further averred that unless re¬ lief was given the complainant would be compelled to abandon the making of re¬ duced rates for conventions or other assem¬ blies to be held in the city of New Orleans. Averments were also made as to the addi¬ tional burden which would be cast upon complainant’s conductors and train collect¬ ors by reason of the practice complained of, the danger which would arise of a multiplic¬ ity of suits for damages by reason of er¬ rors of such employees in endeavoring to prevent the fraudulent use of such tickets, and it was averred that it would be impossi¬ ble, in many instances, *to discover the per-[ sons who were wrongfully traveling upon the tickets and who were bound to pay the lawful and reasonable one-way rate for their transportation. The impossibility of securing evidence establishing the facts as to said fraud, the necessity, if such evidence could be obtained, of bringing a multiplicity of suits if a remedy at law was availed of, and the impracticability of estimating in dollars and cents the injury to its business, was set forth as making the remedy at law inadequate, and in addition it was charged that the defendants were financially irre¬ sponsible. The existence was also averred of various ticket brokers’ associations, the members of which acted in concert. It was averred that a large part of the stock in trade of all ticket brokers and scalpers was the disposal of nontransferable rail¬ road tickets, and it was further averred that ticket brokers and scalpers usually sought to avoid injunctions prohibiting the dealing in such tickets by assigning their

173

209-211

Supreme Court or the United States.

Oct. Teem,

business to some other ticket broker not named in the order, and it was averred that, in order to atTord complete and effective relief, “the restraining injunctive orders should be broad enough to include all who knowingly do what the order of court pro¬ hibits defendants from doing, or who aid or abet defendants in violating the injunction or in defeating the objects and purposes thereof.” Finally, it was alleged that the amount involved in the controversy ex¬ ceeded, exclusive of interest and costs, the sum of $5,000, and that the value of the business which was sought to he protected, and the rights which the complainant asked to have recognized and enforced, exceeded, in the case of eacli defendant, the sum of $5,000, exclusive of interest and costs.

In addition to asking a temporary re¬ straining order the bill prayed that defend¬ ants, their agents, etc., “and all other per¬ sons whomsoever, though not named herein, from and after the time when they severally have knowledge of the entry of the restrain¬ ing order and the existence of the injunc¬ tion herein,” should be perpetually en- [2 10] joined “from buying, selling, dealing *in, or soliciting the purchase or sale of, any ticket or tickets or the return coupons or unused portions thereof issued by orator or by any other railroad company for use over orator’s lines of railway or any part of them, which, by the terms thereof, are non- transferable, or from soliciting, advertis¬ ing, encouraging, or procuring any person other than the original purchaser of such tickets, to use or attempt to use said tickets for passage on any train or trains of orator, especially including the nontransferable round-trip tickets issued for use on the occasion of the United Confederate Vet¬ erans’ Reunion at New Orleans in May, 1903.”

Of the seven persons made defendants, three only appeared and answered, viz., Marcus K. Bitterman, Julius Mehlig, and Charles T. Kelsko, the petitioners in this court, on whose behalf a joint and several answer was filed.

The averments of the bill in respect to the citizenship of the complainant and the character and extent of its railway busi¬ ness was admitted. It was also admitted that the answering defendants were citi¬ zens and residents of Louisiana, bat it was averred that they were each separately en¬ gaged in the ticket brokerage business, duly licensed to conduct such business by the state of Louisiana and the city of New Orleans, and it was expressly denied that ! the business operations and transactions of all the defendants named in the bill were in act, purpose, and effect identical. So also the answer admitted the averments of the bill in respect to the proposed reunion, the 174

large attendance expected, the issue of re¬ duced-rate, nontransferable tickets, and the necessity therefor, and the impracticability of requiring the signing, of the return por¬ tion of each ticket by the purchaser.

It was admitted in the answer that the tickets usually issued by complainant and its connections when making reduced rates as to excusion tickets purported to be non¬ transferable and upon condition that, if presented by other than the original pur¬ chaser, who was supposed to sign the same at the date of purchase, it would not be honored, but would bo forfeited, and *tliat

any agent or conductor should have the right to take up and cancel such ticket if presented for passage. In various para¬ graphs these restrictions or conditions were assailed as impracticable, unenforceable, and unlawful, and without' consideration, and it was averred that the conditions were never enforced, and that the tickets were issued and bought with that understanding, and that no damage was caused to com¬ plainant by a person other than the origi¬ nal purchaser of a nontransferable reduced- rate ticket, traveling upon the return por¬ tion of such ticket, and that no loss or dam¬ age could be caused complainant by rea¬ son of the expected dealing by defendants in the reunion tickets referred to in the bill.

It was not only admitted in the answer that the answering defendants had in the past dealt in nontransferable railroad tick¬ ets issued by the complainant, but it was expressly declared to be their intention to continue the practice, particularly in re¬ spect to the tickets issued on account of the approaching reunion, and coupled with such averment it was asserted that no fraud would be committed or was intended in re¬ spect to the dealing in such tickets. We insert in the margin, f portions of the an¬ swer relating to suen admissions.

to.

Respondents further admit that, in ac¬ cordance with the general custom of the trade, they separately buy and sell the re¬ turn coupons of railway tickets, whether the same are stamped “nontransferable” or not, for the reason that the term “non¬ transferable” does not import any practical or legal meaning in the business, accord¬ ing to the common understanding of the railways themselves, the ticket brokers, and the traveling public to whom said tickets are issued, who freely sell them to brokers, who, in turn, sell them to other persons de¬ siring to use said tickets for transportation, when genuine and bona fide.

Respondents do not deny that the com¬ plainant, on occasions of Mardi Gras fes¬ tivals in the city of New Orleans, have

20 7 U. S.

Bitterman v. Louisville & N. R. Co.

212, 213

*It was denied that the answering defend¬ ants were insolvent, but, on the contrary, it was averred that each was able to pay any judgment for damages which might be recovered against him. Denial was made of

the allegation of the bill that the * willing¬ ness or ability of the complainant to con¬ tinue issuing special-rate tickets would be affected by the failure to obtain the relief sought by the bill, and, in the main, the averments of the article of the bill relating

to various ticket brokers’ associations were also denied.

As a distinct ground for denying the re¬ lief prayed, it was alleged in various forms that the issue of the proposed nontransfer- able tickets was the result of an unlawful confederation or combination between the various railroads whose roads entered into the city of New Orleans.

Upon the bill and answer a preliminary injunction was issued, restraining the deal-

joined in the issuing of reduced rates and the putting out of said so-called “nontrans- ferable” tickets, but, as above set out, the general traveling public, the railways, and the ticket brokers, by common consent, by usage, and by understanding, have all treat¬ ed said tickets as articles of property, and as negotiable and transferable to any person desiring to purchase and travel on the same when genuine and bona fide; and respond¬ ents deny that these respondents have ever fraudulently dealt in the return coupons of such tickets, or that complainant has ever been damaged in respect thereto, by any act of respondents.

Respondents admit that it is their hope and expectation to buy and sell the return portions of said U. C. V. Reunion tickets, but they deny that they will solicit, induce, or persuade the holders thereof to sell such return portions to respondents upon any false or fraudulent pretense or representa¬ tion upon the part of respondents.

Respondents admit that they, in common with the general public, have some knowl¬ edge of the character and terms of the pro¬ posed tickets; that they are informed and believe that such tickets will be issued at low rates, to induce and enable the travel¬ ing public to attend said reunion in large numbers; that respondents expect to offer the same for sale, if they shall acquire any of said tickets, and will sell such tickets to persons other than the original purchas¬ ers, for such price as they are willing to pay, and that it is no concern of complainant or its connections, or other railways, whether respondents make a profit or a loss in the proposed dealing in said U. C. V. reunion tickets.

• ••*••••

Respondents admit that it is the custom and usage of complainant and its connec¬ tions to issue railroad tickets at reduced rates to the traveling public on various occasions, such as expositions, conventions, Mardi Gras, reunions, or other public gath¬ erings, and that the tickets which are usual¬ ly issued by complainant purport by their terms to be nontransferable and to con¬ stitute a so-called “special contract” in ex¬ press terms between complainant, the lines issuing the same, all other lines over which the same entitle the holders to travel, and the original purchasers of said tickets, 52 L. ed.

whereby the said original purchasers are forced to agree that said ticket shall not be transferred by them to any other per¬ sons ; but respondents show that said tick¬ ets, when issued by complainant and its con¬ necting lines and other railways, on such occasions as expositions, reunions, conven¬ tions, Mardi Gras, and the like, are, in prac¬ tice and general consent and common under¬ standing of the traveling public, the rail¬ ways, and the ticket brokers, when bona fide and genuine tickets, good for the return passage over the lines of said complainant and its connections and other railways, in the hands of the holders thereof, whether such holders be the original purchasers or not; that such practice and such under¬ standing are common and general all over the United States; that such tickets are sold and dealt in as legitimate business in every large city, to the knowledge of the complainant, and such tickets are and have been for many years sold by complainant with full knowledge of the fact that they are, in practice and general understanding of the traveling public, good in the hands of any holder.

Respondents jointly and severally admit that each of them are, and have been for some time, separately engaged in the law¬ ful business of buying, selling, and dealing in such tickets, and in soliciting and in¬ ducing the original purchasers thereof to sell and transfer the same to respondents, with the intent and purpose that such tick¬ ets shall be used by the second purchaser thereof, but respondents deny that such use is a violation in law or in fact of the terms thereof. And respondents deny any knowl¬ edge that such use of said tickets by per¬ sons other than the original holders is any fraud upon complainant or the railways issuing such tickets when the same are genuine and bona fide; and respondents again aver that it is a matter of no con¬ cern or interest to the complainant or the railways issuing such tickets, whether the original purchasers are the holders and pre¬ senters of the same, or whether the holder has purchased said ticket from the original purchaser, or whether such holder has pur¬ chased the same from a ticket broker, or whether, as frequently happens, one of such tickets is accidentally or otherwise ex¬ changed for another of the same class and form.

175

213, 214

Supreme Court of the United States.

Oct. Term,

ing in nontransferable tickets issued for the approaching United Confederate Veterans’ Reunion. Replication was duly filed to the answer. Subsequently, upon depositions taken in the cause, and upon affidavits showing the character of nontransferable

tickets proposed to be issued *for an ap¬ proaching Mardi Gras festival, a further in¬ junction pendente lite was granted as to dealings in the nontransferable reduced- rate, round-trip tickets issued for use on the occasion of the aforesaid Mardi Gras festival.

Thereafter a demurrer was filed to the bill for want of equity and because the case made by the bill was a moot, and not a real, controversy, and it was overruled. Then an application was made for leave to file a plea to the jurisdiction, which was refused.

At the hearing the complainant intro¬ duced the depositions of two witnesses and no evidence was given on behalf of the de¬ fendants. As before stated, the circuit court entered a final decree perpetually en¬ joining the dealing in nontransferable re¬ duced-rate, round-trip tickets issued for the United Confederate Veterans’ Reunion and the Mardi Gras festivals, and denying re¬ lief as to future issues of tickets of a like character.

On appeal and cross appeal the circuit court of appeals held that the complainant was entitled to the full relief prayed in the bill, and consequently to an injunction re¬ straining the dealing by the defendants not only in the tickets issued for the United Confederate Veterans’ Reunion and the past Mardi Gras festival, but from carrying on the business of like dealing in nontrans¬ ferable reduced-rate tickets which might be issued in the future by the complainant, and the circuit court was directed to decree accordingly.

Mr. Louis Marshall argued the cause, and, w'ith Messrs. Henry L. Lazarus and Moritz Rosenthal, filed a brief for petition¬ ers :

A railroad ticket is property in the con¬ stitutional sense of the term.

People ex rel. Fleischman v. Caldwell, 64 App. Div. 46, 71 N. Y. Supp. 654, Affirmed in 168 N. Y. 671, 61 N. E. 1132.

The business of a ticket broker is legiti¬ mate, and legislation seeking to prohibit it is a violation of the liberty of a citizen, and violative of both the state and Federal Con¬ stitutions.

Ibid.; People ex rel. Tyroler v. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006.

There is nothing to indicate malice to¬ ward the railway company.

Adler v. Fenton, 24 How. 407, 16 L. ed. 176

696; Dickerman v. Northern Trust Co. 176 U. S. 190, 44 L. ed. 430, 20 Sup. Ct. Rep. 311; McMullen v. Ritchie, 64 Fed. 253; Toler v. East Tennessee, V. & G. R. Co. 67 Fed. 168; Morris v. Tuthill, 72 N. Y. 575; Davis v. Flagg, 35 N. J. Eq. 491; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93.

The theory of the complainant precludes the conception of a privity of contract, since the very foundation of its contention is, that the contract between it and the original purchaser of the ticket was nonassignable.

Spencer’s Case, 5 Coke, 16a, 1 Smith, Lead. Cas. 68; Garst v. Hall & L. Co. 179 Mass. 588, 55 L.R.A. 631, 61 N. E. 219; Harrison v. Maynard, M. & Co. 10 C. C. A. 17, 26 U. S. App. 99, 61 Fed. 689; Keeler v. Standard Folding Bed Co. 157 U. S. 659, 39 L. ed. 848, 15 Sup. Ct. Rep. 738; Apollinaris Co. v. Scherer, 23 Blatchf. 459, 27 Fed. 18.

The condition of nontransferability which it has sought to impress upon its tickets is unreasonable.

New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627 ; Liverpool & G. W. Steam Co. v. Plienix Ins. Co. 129 U. S. 443, 32 L. ed. 792, 9 Sup. Ct. Rep. 469.

In the law of landlord and tenant, in¬ volving a private, and not a public, relation, it is a well-recognized principle that, in the case of a covenant not to assign a lease, without a provision for re-entry or forfei¬ ture, the assignment itself is valid, and the lessee is merely liable for damages for breach of the covenant.

Paul v. Nurse, 8 Barn. & C. 488; Doe ex dem. W'iison v. Phillips, 2 Bing. 13; Den ex dem. Bockover v. Post, 25 N. J. L. 289; Randol v. Tatum, 98 Cal. 390, 33 Pac. 433.

But assuming that the company had a right to require the original purchaser to identify himself at its office in New Orleans, and to indorse upon the ticket his signature as the means of identification, it by no means follows that the principal acts com¬ plained of in the bill constituted such a grievance as would give rise to a cause of action. The purchaser of the ticket had the right to give it away, to destroy it, to use it, and, as we claim, he could dispose of it.

New York C. & H. R. R. Co. v. Reeves, 41 Misc. 490, 85 N. Y. Supp. 28.

He also had the right to authorize an¬ other person to indorse his name on the ticket, and, on disposing of his ticket before such indorsement, he necessarily gave im¬ plied authority to the purchaser to indorse his name if he desired to make use of the ticket. Certainly, such a signature is not and cannot be a forgery. It was either expressly or impliedly authorized, just as any man may give authority to another to sign or indorse his name to a check, note, or draft. Such signature being authorized,

207 U. S.

Bittebman v. Louisville & N. R. Co.

although not the name of the party affixing it, is not a forgery within the purview of any penal law.

People ex rel. Newburn v. Keeper of City Prison (Unreported).

Assuming that the contract of nontrans¬ ferability was valid, and that the original purchaser of the ticket committed a breach of contract when he disposed of it, that fact would not support an action at law against the ticket broker, under the circumstances of this case.

The broker did not, by fraud, force or coercion, or by malicious act, bring about such breach of contract, and the case does not, therefore, fall within the rule laid down in Angle v. Chicago, St. P. M. & 0. R. Co. 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240; Cooley, Torts, 2d ed. p. 581, *407 ; Green v. Button, 2 Cromp. M. & R. 707 ; Benton v. Pratt, 2 Wend. 385, 20 Am. Dec. 623 ; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Ashley v. Dixon, 48 N. Y. 430, 8 Am. Rep. 559; First Nat. Bank v. Whit¬ man, 94 U. S. 345, 24 L. ed. 231 ; Mobile L. Ins. Co. v. Brame, 95 U. S. 759, 24 L. ed. 583; Chambers v. Baldwin, 91 Ky. 121, 11 L.R.A. 545, 34 Am. St. Rep. 165, 15 S. W. 57; Boyson v. Thorn, 98 Cal. 578. 21 L.R.A. 233, 33 Pac. 492; Daly v. Cornwell, 34 App. Div. 27, 54 N. Y. Supp. 107; Kimball v. Harman, 34 Md. 407, 6 Am. Rep. 340; Mc¬ Cann v. Wolff, 28 Mo. App. 447; Allen v. Flood [1898] -A. C. 1; New York C. & H. R. R. Co. v. Reeves and Adler v. Fenton, supra; Hurwitz v. Hurwitz, 10 Misc. 353, 31 N. Y. Supp. 25.

But even if it should be conceded that the facts just considered constitute an injury, we contend that no cause of action is es¬ tablished, because of the absence of such legal damage as is necessary to be conjoined to a wrong, juridically considered, in order to make out a cause of action.

Bowen v. Hall, L. R. 6 Q. B. Div. 337 ; People ex rel. Tyroler v. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763,

51 N. E. 1006.

The complainant has shown no sufficient ground of equitable intervention, since, as¬ suming, but not admitting, that the acts charged against the defendants are wrong¬ ful, tortious, or even fraudulent, it has a plain, adequate, and complete remedy at law to redress such wrongs.

Hipp v. Babin, 19 How. 278, 19 L. ed. 635 ; Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 551, 17 L. ed. 337 ; Phoenix Mut. L. Ins. Co. v. Bailey, 13 Wall.

15 Wall. 375, 21 L. ed. 175; Root v. Lake Shore & M. S. R. Co. 105 U. S. 212, 26 L. ed. 983; Killian v. Ebbinghaus, 110 U. S. 673, 28 L. ed. 248, 4 Sup. Ct. Rep. 232;

52 L. ed.

Fussell v. Gregg, 113 U. S. 555, 28 L. ed. 995, 5 Sup. Ct. Rep. 631; Buzard v. Hous¬ ton, 119 U. S. 351, 30 L. ed. 452,7 Sup. Ct. Rep. 249; Cates v. Allen, 149 U. S. 451, 37 L. ed. 804, 13 Sup. Ct. Rep. 883, 977; White- head v. Sliattuck, 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Rop. 276; 3 Pom. Eq. Jur. § 1338; Jersey City v. Gardner, 33 N. J. Eq. 622; Watson v. Sutherland, 5 Wall. 74,

18 L. ed. 580; North v. Peters, 138 U. S. 271, 34 L. ed. 936, 11 Sup. Ct. Rep. 346; Davis v. American Soc. 75 N. Y. 362; Life Asso. of America v. Boogher, 3 Mo. App. 173; Raymond v. Russell, 143 Mass. 295, 58 Am. Rep. 137, 9 N. E. 544; Boston Diat- ite Co. v. Florence Mfg. Co. 114 Mass. 69,

19 Am. Rep. 310; Whitehead v. Kitson, 119 Mass. 484 ; Prudential Assur. Co. v. Knott, L. R. 10 Ch. 142; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 59 L.R.A. 310, 64 N. E. 163; Tiede v. Schneidt, 99 Wis. 201, 74 N. W. 798; Rochester v. Walters, 27 Ind. App. 194, 60 N. E. 1101; Manchester v. Smyth, 64 N. H. 380,10 Atl. 700; State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478; People ex rel. L’Abbe v. District Court, 26 Colo. 386, 46 L.R.A. 850, 58 Pac. 604; Ocean City Asso. v. Schurch, 57 N. J. Eq. 268, 41 Atl. 914; O’Brien v. Harris, 105 Ga. 732, 31 S. E. 745; Mt. Vernon v. Seeley, 74 App. Div. 50, 77 N. Y. Supp. 250; Fisher v. Lakeside Park Hotel & Amusement Co. 4 Ohio N. P. 329; York v. Ysaguairre, 31 Tex. Civ. App. 26, 71 S. W. 563; Globe Mut. L. Ins. Co. v. Reals, 79 N. Y. 202; Ameri¬ can Waterworks Co v. Venner, 45 N. Y. S. R. 441, 18 N. Y. Supp. 379; Northern P. R. Co. v. Cannon, 49 Fed. 517; , Dorsey v. Mon- nett (Md.) 20 Atl. 196; Erickson v. First Nat. Bank, 44 Neb. 622, 28 L.R.A. 577, 48 Am. St. Rep. 753, 62 N. Y. 1078; Fowler v. Palmer, 62 N. Y. 533; Venice v. Woodruff, 62 N. Y. 467, 20 Am. Rep. 495; Springport v. Teutonia Sav. Bank, 75 N. Y. 401; New York C. & H. R. R. Co. v. Reeves, 41 Misc. 490, 85 N. Y. Supp. 28.

There was an improper joinder of de¬ fendants and of independent causes of ac¬ tion. The bill is multifarious and the case does not fall within the rule concerning the avoidance of a multiplicity of suits.

Pfohl v. Simpson, 74 N. Y. 142; Bouton v. Brooklyn, 15 Barb. 375; 2 Story, Eq. Jur. §§ 853, 854; Tribette v. Illinois C. R. Co. 70 Miss. 182, 19 L.R.A. 660, 35 Am. St. Rep. 642, 12 So. 32 ; Dvknian v. Keeney, 154 N. Y. 483,48 N. E. 894; O’Brien v. Fitzgerald, 150 N. Y. 572, 44 N. E. 1126; Empire State Sav. Bank v. Beard, 151 N. Y. 638, 45 N. E. 1131; Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380, 23 Sup. Ct. Rep. 244; Marsh v. Kaye, 168 N. Y. 196, 61 N. E. 177; O’Brien v. Fitzgerald, 143 N. Y. 377, 38 N. E. 371; Washington County v. Williams (C. C. App. 12 177

Supreme Court of the United States.

Oct. Term,

Btli C.) 49 C. C. A. G21, 111 Fed. 801; Scott v. McFarland (C. C. D. Or.) 70 Fed. 280; New York C. & H. It. R. Co. v. Reeves, su¬ pra.

The circuit court was without jurisdic¬ tion, notwithstanding the colorable aver¬ ments contained in the bill that the injury sustained in consequence of the defendants’ acts exceeded $2,000, there being no founda¬ tion in fact in support of such averment.

Williams v. Nottawa, 104 U. S. 209, 211, 26 L. ed. 719, 720; Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, 28 L. ed. 4C2, 463, 4 Sup. Ct. Rep. 510; Morris v. Gilmer, 129 U. S. 325, 32 L. ed. G93, 9 Sup. Ct. Rep. 289; King Iron Bridge & Affg. Co. v. Otoe County, 120 U. S. 225, 30 L. ed. 623, 7 Sup. Ct. Rep. 552; Farmington v. Pillsbury, 114 U. S. 144, 29 L. ed. 116, 5 Sup. Ct. Rep. 807 ; Nashua & L. R. Cor]), v. Boston & L. R. Corp. 136 U. S. 373. 34 L. ed. 367, 10 Sup. Ct. Rep. 1004; Anderson v. Watt, 138 U. S. 701, 34 L. ed. 1080, 11 Sup. Ct. Rep. 449; Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 287, 46 L. ed. 913, 22 Sup. Ct. Rep. 681; Bank of Arapa¬ hoe v. David Bradley & Co. 19 C. C. A. 206, 36 U. S. App. 519, 72 Fed. 867.

The decree of injunction awarded by the circuit court of appeals, so far as it relates to nontransferable tickets that may be here¬ after issued, is in effect the exercise of legislative, as distinguished from judicial, power, since it undertakes to promulgate a rule applicable to conditions and circum¬ stances which have not yet arisen, and to prohibit the petitioners from dealing in tick¬ ets not in cssc and not even in contempla¬ tion; and is, therefore, violative of the most fundamental principle of our government.

Davis v. Elmira Saw Bank, 161 U. S. 290, 40 L. ed. 703. 16 Sup. Ct. Rep. 502; McCray v. United States, 195 U. S. 61, 49 L. ed. 97, 24 Sup. Ct. Rep. 769; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 66, 43 L. ed. 77, 18 Sup. Ct. Rep. 895; Atchison, T. & S. F. R. Co. v. Den¬ ver & N. O. R. Co. 110 U. S. 682, 28 L. ed.

297, 4 Sup. Ct. Rep. 185; Reagan v. Farm¬ ers’ Loan & T. Co. 154 U. S. 400, 38 L. ed.

1024, 4 Inters. Com. Rep. 560, 14 Sup. Ct.

Rep. 1047 ; Parkersburg & O. River Transp. Co. v. Parkersburg, 107 U. S. 701, 27 L. cd. 588, 2 Sup. Ct. Rep. 732; Burnett v. United States, 116 U. S. 161, 29 L. ed. 587, 6 Sup. Ct. Rep. 327; Gordon v. United States, 117 U. S. 706, Appx.; Interstate Commerce Com¬ mission v. Brimson, 155 U. S. 9, 39 L. ed. 51, 15 Sup. Ct. Rep. 19; Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 440, 15 L. cd. 441; The Lottawanna (Rodd v. ITeartt) 21 Wall. 576, 22 L. ed. 662; Sink¬ ing Fund Cases, 99 U. S. 761, 25 L. ed. 516; Calhoun County v. Galbraith, 99 U. S. 178

219, 25 L. ed. 412; Cary v. Curtis, 3 How. 166, 11 L. ed. 590; United States v. Duell, 172 U. S. 589, 43 L. ed. 564, 19 Sup. Ct. Rep. 286; Schick v. United States, 195 U. S. 99, 49 L. ed. 114, 24 Sup. Ct. Rep. 826; State v. Caster, 45 La. Ann. 636, 12 So. 740; Montesquieu, Spirit of Laws, p. 174; Cooley, Principles of Const. Law, p. 44; Osborn v. Bank of United States, 9 Wheat. 819, 6 L. cd. 223; Mill, Considerations on Represent¬ ative Government, p. 326; 13 Law Quar¬ terly Review, p. 362; Dunbar, Govern¬ ment by Injunction; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 18 L.R.A. 702, 34 Am. St. Rep. 645, 25 All. 597; Bates v. Kimball, 2 D. Chip. (Yt.) 77; State ex rcl. McCaffcry v. Aloe, 152 Mo. 466, 47 L.R.A. 393, 54 S. W. 494; Dillon, Law & Juris¬ prudence of England & America, p. 236; New York & N. If. R. Co. v. Interstate Com¬ merce Commission. 200 U. S.' 404, 50 L. cd. 526, 26 Sup. Ct. Rep. 272; Swift & Co. v. United States, 196 U. S. 375, 396. 401, 49 L. ed. 518, 524, 526, 25 Sup. Ct. Rep. 276; Reagan v. Farmers’ Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Interstate Commerce Commission v. Cincinnati. N. O. & T. P. R. Co. 167 U. S. 499. 42 L. ed. 253, 17 Sup. Ct. Rep. 896; Sehubaeh v. McDonald, 179 Mo. 163, 65 L.R.A. 136. 101 Am. St, Rep. 452, 78 S. W. 1020, 1028: New York C. & H. R. R. Co. v. Reeves, 41 Alisc. 490, 85 N. Y. Supp. 28; Lytle v. Galveston, II. & S. A. R. Co. (Tex.) 10 L.R.A. (N.S.) 437, 99 S. W. 396; Nashville. C. & St. I,. R. Co. v. McConnell, 82 Fed. 65; Delaware & R. Canal Co. v. Cam¬ den & A. R. Co. 15 N. J. Eq. 13; Thomas v. Musical Mut. Protective Union, 121 N. Y. 45, 8 L.R.A. 175, 24 N. E. 24 ; Flint v. Hutch¬ inson Smoke Burner Co. 110 Afo. 492, 16 L.R.A. 243. 33 Am. St. Rep. 476, 19 S. W. 804; World’s Columbian Exposition v. Unit¬ ed States, 6 C. C. A. 58, 18 U. S. App. 42, 56 Fed. 654.

Messrs. Joseph Paxton Blair and Rrode B. Davis argued the cause, and, with Air. George Denegro, filed a brief for respondent:

Defendants filed no formal plea to the jurisdiction, but; simply denied, in their an¬ swer, the averments of the bill in respect to the amount of damages. Under such cir¬ cumstances, proof of damages was not neces¬ sary to sustain the jurisdiction.

Butchers’ & D. Stock-Yards Co. v. Louis¬ ville & N. R. Co. 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. 40; 1 Fost. Fed. Pr. § 16, pp. 56, 57; Pine v. New York. 103 Fed. 337; Adams v. Shirk, 55 C. C. A. 25, 117 Fed. 801; Afafl’et v. Quine, 95 Fed. 199; Penn¬ sylvania Co. v. Bay, 138 Fed. 203.’

It is enough to sustain the jurisdiction — the jurisdictional iacts appearing in the complaint that it does not, at any time

207 U. S.

Bittebman v. Louisville & N. R. Co.

thereafter, satisfactorily appear to the court that the suit does not really and substan¬ tially involve the jurisdictional amount.

Maffet v. Quine, 95 Fed. 201.

Considering the magnitude of complain¬ ant’s business, the admissions of the answer, the uncontradicted testimony of complain¬ ant's witnesses, the absence of any evidence whatever on the part of defendants, and the well-settled principle of law that a suit can¬ not properly be dismissed as not involving an amount sufficient to give jurisdiction un¬ less the facts, when made to appear on the record, create a legal certainty of that con¬ clusion (Put-in-Bay Waterworks, Light, & R. Co. v. Ryan, 181 U. S. 431, 45 L. ed. 937, 21 Sup. Ct. Rep. 709), we submit that there in no merit in the contention that the court below was without jurisdiction because the amount in controversy was less than $2,000.

In cases of this character the value of the business to be protected determines the amount involved.

Texas & P. R. Co. v. Kuteman, 4 C. C. A. 503, 13 L. S. App. 99, 54 Fed. 552; Southern Exp. Co. v. Ensley, 116 Fed. 756; Board of Trade v. Celia Commission Co. ( C. C. App. 8th C.) 76 C. C. A. 28, 145 Fed. 28; Louisville & X. R. Co. v. Smith, 63 C. C. A. 1, 128 Fed. 5; Riverside & A. R. Co. v. Riverside, 118 Fed. 743; Humes v. Ft. Smith, 93 Fed. 857; Western U. Teleg. Co. v. Charleston, 56 Fed. 420; Scott v. Donald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262; Fost. Fed. Pr. § 16; Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. 65; Delaware, L. & W. R. Co. v. Frank, 110 Fed.

The magnitude of the evil which complain¬ ant seeks relief from cannot be exaggerated.

Duncan v. Atchison, T. & S. F. R. Co. 4 Inters. Com. Rep. 390; Nashville, C. & St. L. R. Co. v. McConnell, supra; State v. Cor¬ bett, 57 Minn. 345, 24 L.R.A. 498, 4 Inters. Com. Rep. 694, 59 N. W. 317 ; Pensacola & A. R. Co. v. State, 25 Fla. 310, 3 L.R.A 661, 2 Inters. Com. Rep. 527, 5 So. 833 ; Samuel - son v. State, 116 Tenn. 470, 115 Am. St. Rep. 805, 95 S. W. 1016.

The legislatures of many states have ap¬ preciated the unlawful and fraudulent char¬ acter of the ticket scalpers’ business, and statutes have been enacted making their dealing in these tickets a violation of the criminal law. Such laws have been held constitutional by the courts of last resort on the broad question of the right of the scalp¬ ers to buy and sell these tickets without the authority of the railroad company issuing them, in all those states in which the ques¬ tion has been raised, with the exception of New York.

Fry v. State, 63 Ind. 552, 30 Am. Rep. 238; Burdick v. People, 149 Ill. 600, 24 L.R.

52 L, ed.

A. 152,41 Am. St. Rep. 329,36 A. E. 948, 952; State v. Corbett, supra; Jannin v. State, 42 Tex. Crim. Rep. 631, 53 L.R.A. 349, 96 Am. St. Rep. 821, 51 S. W. 1126, 62 S. W. 419; Com. v. Keary, 198 Pa. 500, 48 Atl. 472; State v. Bernheim, 19 Mont. 512, 49 Pac. 441; Re O’Neill, 41 Wash. 174, 3 L.R.A. (N.S.) 558, 83 Pac. 104; Samuelson v. State, supra ; State v. Thompson, 47 Or. 492, 4 L.R.A. (N.S.) 480, 84 Pac. 476; State v. Manford, 97 Minn. 173, 106 N. W. 907.

While this is the first case of the kind to reach a Federal appellate court, it is one of a large number of cases in which rail¬ road companies have obtained from various circuit courts of the United States, and from state courts, injunctive relief against the unlawful interference with their business by so-called ticket brokers or scalpers.

Nashville, C. & St. L. R. Co. v. McCon¬ nell, supra; Delaware, L. & W. R. Co. v. Frank, supra; Ixinner v. Lake Shore & M. S. R. Co. 69 Ohio St. 339, 69 N. E. 614; Pennsylvania R. Co. v. Beekman, 30 Wash. L. Rep. 715; Illinois C. R. Co. v. Caffrey, 128 Fed. 770; Schubach v. McDonald, 179 Mo. 163, 65 L.R.A. 136, 101 Am. St. Rep. 452, 78 S. W. 1020; Union P. R. Co. v, Pliil- bin (June 19, 1906) ; D. & R. G. R. Co. v. Groshell (July 6, 1906) ; Pennsylvania Co. v. Bay, 138 Fed. 203.

In all these cases it was held that facts similar to those presented in the present record make out a clear case of equitable jurisdiction on the grounds of irreparable injury, inadequacy of the remedy at law, and necessity for avoiding a multiplicity of suits. They all declare the correctness and applicability of the following propositions of law:

The contract evidenced by the nontrans- ferable tickets described in complainant’s bill is a legal contract between the railroad company and the original purchaser of such tickets, and it binds the parties thereto and limits the benefits of the contract to the use of the original purchaser only. No one oth¬ er than such purchaser can become the bene¬ ficiary of the contract, and under its terms the railroad company is under no obligation to carry as a passenger any person present¬ ing such ticket unless such person is in fact the original purchaser.

Mosher v. St. Louis, I. M. & S. R. Co. 127 U. S. 390, 32 L. ed. 249, 8 Sup. Ct. Rep. 1324; Boylan v. Hot Springs R. Co. 132 U. S. 146, 33 L. ed. 290, 10 Sup. Ct. Rep. 50; Drummond v. Southern P. Co. 7 Utah, 118, 25 Pac. 733.

Such a ticket is not property in the hands of the purchaser in the sense that it can be transferred or sold by him ; and traffick¬ ing in such tickets is not, and cannot be made, a legitimate business.

i79

State v. Corbett, 57 Minn. 345, 24 L.R.A. 498, 4 Inters. Com. Rep. 694, 59 N. W. 317; Jannin v. State, supra; Burdick v. People, 149 Ill. 600, 24 L.R.A. 152, 41 Am. St. Rep. 329, 36 N. E. 948, 952 ; Drummond v. Southern P. Co. supra; Cody v. Central P. R. Co. 4 Sawy. 114, Fed. Cas. No. 2.940; Samuelson v. State and Pennsylvania R. Co. v. Beekman, supra; Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. 68.

The right of a railroad company to sell its passenger tickets, and its right to re¬ ceive money or valid tickets for transporta¬ tion of passengers, and its right to make reasonable charges and regulations for the transportation of passengers, are rights of property, and, as such, are entitled to the protection of the law.

Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

The business of a person or corporation is property which is entitled, under the law, to protection from unlawful interference, and such interference may be prevented by injunction.

National Teleg. News Co. v. Western U. Teleg. Co. 60 L.R.A. 805, 56 C. C. A. 198, 119 Fed. 294; Hopkins v. Oxley Stave Co. 28 C. C. A. 99, 49 U. S. App. 709, 83 Fed. 912; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622, 32 S. W. 1106; Flaccus v. Smith, 199 Pa. 128, 54 L.R.A. 640, 85 Am. St. Rep. 779, 48 Atl. 894; Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551; Sherry v. Perkins, 147 Mass. 212, 9 Am. St. Rep. 689, 17 N. E. 307; Nash¬ ville, C. & St. L. R. Co. v. McConnell, 82 Fed. 80.

By the scalping of its nontransforable tickets, the railroad company sustains a direct pecuniary injury.

There is no process of reasoning, however strained, which can, even as a matter of form, conceal this practical fact, that the company is deliberately cheated out of the regular fare of every mile of its line over which travel is made under color of one of these void papers.

Angle v. Chicago, St. P. M. & 0. R. Co. 151 U. S. 1, 13, 38 L. ed. 55, 62, 14 Sup. Ct. Rep. 240; Flaccus v. Smith, supra; Raymond v. Yarrington, 96 Tex. 443, 62 L.R.A. 962, 97 Am. St. Rep. 914, 72 S. W. 580, 73 S. W. 800; Seelig v. Dumas, 48 La. Ann. 1494, 21 So. 91; Illinois C. R. Co. v. Caffrey, 128 Fed. 773; Exchange Teleg. Co. v. Central News [1897] 2 Ch. 48, 76 L. T. N. S. 591 ; Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. 68.

In addition to the direct pecuniary loss inflicted, the carrier’s business js seriously J80

the United States. Oct. Term,

interfered with by the scalping of its non- transferable tickets. ^

One who maliciously interferes in a con¬ tract between two parties, and induces one of them to break that contract, to the in¬ jury of the other, commits an actionable wrong. If the wrong is recurrent, inflicting irreparable injury, and the remedy at law is inadequate, a court of equity will afford appropriate relief.

Sperry & H. Co. v. Brady, 134 Fed. 691; Exchange Teleg. Co. v. Howard, 22 Times L. R. 375; American Law Book Co. v. Ed¬ ward Thompson Co. 41 Misc. 396, 84 N. Y. Supp. 225; Fleckenstein Bros. Co. v. Fleckenstein, 66 N. J. Eq. 252, 57 Atl. 1025; Sperry & H. Co. v. Mechanics’ Cloth¬ ing Co. 128 Fed. 800, 1015; Sperry & H. Co. v. Temple, 137 Fed. 992; National Teleg. News Co. v. Western U. Teleg. Co. 60 L.R.A. 805, 56 C. C. A. 198, 119 Fed. 294; Garst v. Charles, 187 Mass. 144, 72 N. E. 839; Board of Trade v. Christie Grain & Stock Co. 198 U. S. 236, 49 L. ed. 1031, 25 Sup. Ct. Rep. 637 ; Board of Trade v. Celia Com¬ mission Co. 76 C. C. A. 28, 145 Fed. 28; Board of Trade v. McDearmott Commission Co. 143 Fed. 188; Knudsen v. Benn, 123 Fed. 636; Martin v. McFall, 65 N. J. Eq. 91. 55 Atl. 465; Wells & R. Co. v. Abraham, 146 Fed. 190.

The railroad company is manifestly with¬ out any adequate remedy at law for the violation of its ticket contracts and the in¬ terference with its business complained of, so that, for the damages and injury sus¬ tained, if there is no remedy in equity, there is none whatever in any just sense. To bring a separate suit for damages in the case of each ticket sold would involve a mul¬ titude of suits, excessively burdensome and expensive, and not likely to afford any sub¬ stantial result to the carrier. It is a case of frequently recurring wrong, calling for injunctive relief.

A bill filed by a railway company making as party defendants all the “scalpers” en¬ gaged in the scalping business at a particu¬ lar place is not multifarious.

Smith v. Bivens, 56 Fed. 352; Barcus v. Gates, 32 C. C. A. 337, 61 U. S. App. 596, 89 Fed. 783; Hale v. Alii ison, 188 U. S. 72, 47 L. ed. 390, 23 Sup. Ct. Rep. 244 ; Wyman v. Bowman, 62 C. C. A. 189, 127 Fed.' 257; Pennsylvania Co. v. Bay, 150 Fed. 770; 2 Pom. Eq. Jur. p. 634; i High, Inj. 4th ed. p. 621e.

The original and primary office of a writ of injunction is to prevent a wrong or in¬ jury from being done.

16 Am. & Eng. Enc. Law, 2d ed. p. 342; High, Inj. 4th ed. p. 912.

In the case of a trespass or any wrongful interference with a legitimate business,

20 7 U. S.

219-221

Bitterman v. Louisville & N. R. Co.

where the acts complained of were of a con¬ tinuing nature, whose constant recurrence rendered the remedy at law' inadequate, un¬ less by a multiplicity of suits, courts of equi¬ ty have always granted injunctive relief.

Donovan v. Pennsylvania Co. 199 U. S. 279, 50 L. ed. 192, 26 Sup. Ct. Rep. 91 ; El¬ lis v. Blue Mountain Forest Asso. 69 N. H. 385, 42 L.R.A. 570, 41 Atl. 856; Kellogg v. King, 114 Cal. 378, 55 Am. St. Rep. 74, 46 Pac. 166; Blondell v. Consolidated Gas. Co. 89 Md. 732, 46 L.R.A. 187, 43 Atl. 817; Krueger v. Wisconsin Telepli. Co. 106 Wis. 96, 50 L.R.A. 298, 81 N. W. 1041; Wheelock v. Noonan, 108 N. Y. 179, 2 Am. St. Rep. 405, 15 N. E. 67; Scott v. Donald. 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262; Illinois C. R. Co. v. Caffrey, 128 Fed. 773; Pennsylvania Co. v. Bay, 138 Fed. 203; Hop¬ kins v. Oxley Stave Co. 28 C. C. A. 99, 49 U. S. App. 709, 83 Fed. 919; Sherry v. Per¬ kins, 147 Mass. 212, 9 Am. St. Rep-! 689, 17 N. E. 307 ; Kinner v. Lake Shore & M. S. R. Co. 69 Ohio St. 339, 69 N. E. 614; Schubach v. McDonald, 179 Mo. 163, 65 L.R.A. 136, 101 Am. St. Rep. 452, 78 S. W. 1020; Na¬ tional Teleg. NewTs Co. v. Western U. Teleg. Co. supra; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The points urged at bar on behalf of the petitioners as establishing that the decrees below should be reversed and the bill of complaint dismissed, and, in any event, the injunction be modified and restricted, are the following:

“1. The bill of complaint does not state a cause of action, either at law or in equity, against any of the defendants, even though the tickets in which they dealt are in form nontransferable, when the original pur¬ chasers disposed of them in breach of their contract with the complainant.

“2. The complainant has shown no suffi¬ cient ground for equitable intervention, since, assuming, but not admitting, that the acts charged against the defendants are wrongful, tortious, or even fraudulent, it has a plain, adequate, and complete remedy at law to redress such wrongs.

[2 2 0] *“3. There was an improper joinder of de¬

fendants and of independent causes of ac¬ tion. The bill is multifarious and the case does not fall within the rule concerning the avoidance of a multiplicity of suits.

“4. The circuit court was without juris¬ diction, notwithstanding the colorable aver¬ ments contained in the bill that the injury sustained in consequence of the defendants’ act exceeded $2,000, there being no founda¬ tion in fact in support of such averment.

52 L. ed.

“5. The decree of injunction awarded by the circuit court of appeals, so far as it re¬ lates to nontransferable tickets that may be hereafter issued, is in effect the exercise of legislative, as distinct from judicial, power, since it undertakes to promulgate a rule applicable to conditions and circum¬ stances which have not yet arisen, and to prohibit the petitioners from dealing in tickets not in esse, and not even in con¬ templation, and is, therefore, violative of the most fundamental principle of our gov¬ ernment.”

Stated in logical sequence and reduced to their essence, these propositions assert:

First, want of jurisdiction from the in¬ sufficiency of the amount involved, want of power in a court of equity to grant relief because, on the face of the bill, relief at law was adequate, and because equitable re¬ lief was improper on account of misjoinder of parties and causes of action.

Second, because the case as made did not entitle to relief, since it did not show the commission of any legal wrong by the de¬ fendants.

Third, because, conceding the right to re¬ lief, the remedy by injunction which the court accorded was so broad as, in effect, to amount to the exertion of legislative, as distinct from judicial, power, and hence was equivalent to the denial of due process of law.

As, for reasons hereafter to be stated, we think the contentions embodied in the first proposition as to want of jurisdiction, etc., are without merit, we come at once to the fundamental *question involved in the[22 second proposition; that is, the absence of averment or proof as to the commission of a legal wrong by the defendants.

That the complainant had the lawful right to sell nontransferable tickets of the character alleged in the bill at reduced rates we think is not open to controversy, and that the condition of nontransferability and forfeiture embodied in such tickets was not only binding upon the original pur¬ chaser, but upon anyone who acquired such a ticket and attempted to use the same in violation of its terms, is also settled. Mosher v. St. Louis, I. M. & S. R. Co. 127 U. S. 390, 32 L. ed. 249, 8 Sup. Ct. Rep. 1324.

See also Boylan v. Hot Springs R. Co. 132 U. S. 146, 33 L. ed. 290, 10 Sup. Ct. Rep.

True, these cases were decided before the passage of the act to regulate commerce, but the power of carriers engaged in interstate commerce to issue nontransferable reduced- rate excursion tickets was expressly recog¬ nized by that act, and the operation and binding effect of the nontransferable clause in such tickets upon all third persons ac-

181

221-223

Supreme Court or the United States.

Oct. Term,

quiring the same and attempting to use them, and the duty of the carrier in such case to use due diligence to enforce a for¬ feiture, results from the context of the act. Thus, by § 22, it was provided “that noth¬ ing in this act shall apply to . . . the

issuance of mileage, excursion, or commu¬ tation passenger tickets.” [24 Stat. at L. 387, chap. 104, U. S. Comp. Stat. 1001, p. 3170.] And it is to be observed that, de¬ spite the frequent changes in the act, in¬ cluding the comprehensive amendments em¬ bodied in the act of June 29, 1900 (34

Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), the provision in question remains in force, although the Interstate Commerce Commission, charged with the administrative enforcement of the act, has directed the attention of Congress to the importance of defining the scope of such tickets in view of the abuses which might arise from the exercise of the right to issue them. (2 Inters. Com. Rep. 340.) And, when the restrictions embodied in the act concerning equality of rates and the prohibitions against preferences are borne in mind, the conclusion cannot be escaped that the right to issue tickets of the class referred to carried with it the duty on the ]*carrier of exercising due diligence to pre¬ vent the use of such tickets by other than the original purchasers, and therefore caused the nontransferable clause to be operative and effective against anyone who wrongfully might attempt to use such tick¬ ets. Any other view would cause the act to destroy itself; since it would necessarily imply that the recognition of the power to issue reduced-rate excursion tickets con¬ veyed with it the right to disregard the prohibitions against preferences which it was one of the great purposes of the act to render efficacious. This must follow, since, if the return portion of the round-trip tick¬ et be used by one not entitled to the ticket, and who otherwise would have had to pay the full one-way fare, the person so suc¬ cessfully traveling on the ticket would not only defraud the carrier, but effectually enjoy a preference over similar one-way travelers who had paid their full fare, and who were unwilling to be participants in a fraud upon tbe railroad company.

Any third person acquiring a nontrans¬ ferable reduced-rate railroad ticket from the original purchaser, being therefore bound by the clause forbidding transfer, and the ticket in the hands of ,all such per¬ sons being subject to forfeiture on an at¬ tempt being made to use the same for pas¬ sage, it may well be questioned whether the purchaser of such ticket acquired anything more than a limited and qualified owner¬ ship thereof, and whether the carrier did not. for the purpose of enforcing the for- 182

feiture, retain a subordinate interest in the ticket, amounting to a right of property therein, which a court of equity would pro¬ tect. Board of Trade v. Christie Grain & Stock Co. 198 U. S. 236, 49 L. ed. 1031, 25 Sup. Ct. Rep. 637, and authorities there cited. See also Sperrv & II. Co. v. Mechanics’ Clothing Co. 128 Fed. 800. We pass this question, however, because the want of merit in the contention that the case as made did not disclose the commission of a legal wrong conclusively results from a previous decision of this court. The case is Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 55, 1.4 Sup. Ct. Rep. 240, where it was held that an actionable wrong is committed bv one “who malicious¬ ly "interferes in a contract between two[2 parties and induces one of them to break that contract to the injury of the other.” That this principle embraces a case like the present, that is. the carrying on of the busi¬ ness of purchasing and selling nontrans¬ ferable reduced-rate railroad tickets for profit, to the injury of the railroad com¬ pany issuing such tickets, is. we think, clear. It- is not necessary that the in¬ gredient of actual malice, in the sense of personal ill will, should exist to bring this controversy within the doctrine of the Angle Case. The wanton disregard of the rights of a carrier, causing injury to it, which the business of purchasing and selling nontrans¬ ferable reduced-rate tickets of necessity in¬ volved, constitute legal malice within the doctrine of the Angle Case. We deem it unnecessary to restate the grounds upon which the ruling in the Angle Case was rested, or to trace the evolution of the prin¬ ciple in that case announced, because of the consideration given to the subject in the Angle Case and the full reference to the authorities which was made in the opinion in that case.

Certain is it that the doctrine of the Angle Case has been frequently applied in cases which involved the identical question here at issue, — that is, whether a legal wrong was committed by the dealing in non¬ transferable reduced-rate railroad excursion tickets. Pennsylvania R. C’o. v. Beekman,

30 Wash. L. Rep. 715; Illinois C. R. Co. v. Caffrey, 128 Fed. 770; Delaware, L. & W.

R. Co. v. Frank, 110 Fed. GS9; Nashville,

C. & St. L. R. Co. v. McConnell, 82 Fed. 65.

Indeed, it is shown by decisions of vari¬ ous state courts of last resort that the wrong occasioned by the dealing in non¬ transferable reduced-rate railroad tickets has been deemed to be so serious as to call for express legislative prohibition correct¬ ing the evil. Kinncr v. Lake Shore & M.

S. R. Co. 69 Ohio St. 339, 69 N. E. 614; Selmbach v. McDonald, 179 Mo. 163, 65 L. R.A. 136. 101 Am. St. Rep. 452, 78 S. W. 1020, and cases cited; Samuelson v. State,

207 U. S.

Bittebman v. Louisville & N. R. Co.

223-220

110 Term. 470, 115 Am. St. Rep. 805, 95 S. W. 1012. In the case last referred to, where the subject is elaborately reviewed, the su¬ preme court of Tennessee, in holding that

the ‘prohibitive statute was not unconstitu¬ tional as forbidding a lawful business, and in affirming a criminal conviction for vio¬ lating the statute, observed :

“That the sale as well as the purchase of nontransferable passage tickets is a fraud upon the carrier and the public, the ten¬ dency of which is the demoralization of rates, has been settled by the general con¬ census of opinion among the courts.”

Concluding, as we do, that the commis¬ sion of a legal wrong by the defendants was disclosed by the case as made, we are brought to consider the several contentions concerning the jurisdiction of the court and its right to afford relief. The bill con¬ tained an express averment that the amount involved in the controversy exceeded, ex¬ clusive of interest and costs, the sum of $5,000 as to each defendant. The defend¬ ants not having formally pleaded to the jurisdiction, it was not incumbent upon the complainant to offer proof in support of the averment. Nevertheless, the complainant introduced testimony tending to show that, on the New Orleans division of its road, a loss of from fifteen to eighteen thousand dollars a year was sustained through the practice by dealers of wrongfully purchas¬ ing and selling nontransferable tickets. That hundreds of the tickets annually is¬ sued fer the Mardi Gras festivals in New Orleans were wrongfully bought and sold; that other nontransferable reduced-rate tickets were, in a like manner, illegally trafficked in to the great damage of the cor¬ poration, and that the defendants were the persons principally engaged in conducting such wrongful dealings. But, even if this proof be put out of view, we think the con¬ tention that a consideration of the whole bill establishes that the jurisdictional amount alleged was merely colorable and fictitious is without merit. We say this because the averments of the bill as to the number of such tickets issued, the recurring occasions for their issue, the magnitude of the wrongful dealings in the nontransfer¬ able tickets by the defendants, the cost and the risk incurred by the steps necessary to prevent their wrongful use, the injurious effect upon the revenue of the complain-

ant, the ‘operation of the illegal dealing in such tickets upon the right of the com¬ plainant to issue them in the future, coupled with the admissions of the answer, sustain the express averment as to the requisite jurisdictional amount. Besides, the sub¬ stantial character of the jurisdictional aver¬ ment in the bill is to be tested, not by the mere immediate pecuniary damage result¬ ing from the acts complained of, but by 5 2 L. ed.

the value of the business to be protected and the rights of property which the com¬ plainant sought to have recognized and en¬ forced. Hunt v. New York Cotton Ex¬ change, 205 U. S. 322, 336, 51 L. ed. 821,

826, 27 Sup. Ct. Rep. 529.

The contention that, though it be ad¬ mitted, for the sake of the argument, that the acts charged against the defendant “were wrongful, tortious, or even fraudu¬ lent,” there was no right to resort to equity, because there was a complete and adequate remedy at law to redress the threatened wrongs when committed, is, we think, also devoid of merit. From the nature and character of the nontransferable tickets, the number of people to whom they were issued, the dealings of the defendants therein and their avowed purpose to continue such dealings in the future, the risk to result from mistakes in enforcing the forfeiture provision, and the multiplicity of suits nec¬ essarily to be engendered if redress was sought at law, — all establish the inadequacy of a legal remedy and the necessity for the intervention of equity. Indeed, the want of foundation for the contention to the con¬ trary is shown by the opinions in the cases which we have previously cited in consider¬ ing whether a legal wrong resulted from acts of the character complained of, since, in those cases, it was expressly held that the consequences of the legal wrong flowing from the dealing in nontransferable tickets were of such a character as to entitle an in¬ jured complainant to redress in a court of equity.

There is an opinion of the supreme court of New York (not the court of last resort) which would seem to express contrary views (New York C. & II. R. R. Co. v. Reeves,

41 Misc. 490, 85 N. Y. Supp. 28), but the reasoning there relied on, in our opinion, is inconclusive.

‘The proposition that the bill was multi- [22 0 farious because of the misjoinder of parties and causes of action was not assigned as error in the circuit court of appeals, and, therefore, might well be held not to be open.

But, passing that view, we hold the objec¬ tion to be untenable. The acts complained of as to each defendant were of a like char¬ acter, their operation and effect upon the lights of the complainant were identical, the relief sought against each defendant was the same, and the defenses which might be interposed were common to each defend¬ ant and involved like legal questions. Un¬ der these conditions the case is brought within the principle laid down in Hale v. Allinson, 188 U. S. 56, 77, 47 L. ed. 380,

392, 23 Sup. Ct. Rep. 244.

As we have stated, the circuit court granted a preliminary injunction, restrain¬ ing the defendants from illegally dealing

183

226-228

Supreme Court of the United States.

Oct. Term,

in tickets issued on account of the United Confederate Veterans’ Reunion, and, before final hearing, granted a second injunction, restraining such dealing in like tickets is¬ sued for the approaching Mardi Gras fes¬ tival. By the final decree these injunctions were perpetuated, the court declining to grant the relief sought by the complain¬ ant in relation to nontransferable tickets to be issued for the future, without preju¬ dice, however, to the right of the complain¬ ant to seek relief by independent proceed¬ ings on each occasion when it might issue such nontransferable tickets. The circuit court of appeals decided that error had been committed in refusing to grant an injunc¬ tion against dealing in nontransferable tickets to be issued in the future, and di¬ rected that the decree below be enlarged in that particular. It is insisted that the circuit court of appeals erred in awarding an injunction as to dealings “in nontrans¬ ferable tickets that may be hereafter issued . . . since it thereby undertook to pro¬

mulgate” a rule applicable to conditions and circumstances which have not yet arisen, and to prohibit “the petitioners from dealing in tickets not in esse . . .

and is, therefore, violative of the most fun¬ damental principles of our government.” But when the broad nature of this proposi¬ tion is considered, it but denies that there [2 2 7]is power in *a court of equity in any case to afford effective relief by injunction. Cer¬ tain is it that every injunction, in the na¬ ture of things, contemplates the enforce¬ ment, as against the party enjoined, of a rule of conduct for the future as to the wrong to which the injunction relates. Take the case of trespasses upon land where the elements entitling to equitable relief exist. See Slater v. Gunn, 170 Mass. 509, 41 L.R.A. 268, 49 N. E. 1017, and cases cited. It may not be doubted that the au¬ thority of a court would extend, not only to restraining a particular imminent tres¬ pass, but also to prohibiting like acts for all future time. The power exerted by the court below which is complained of was in no wise different. The bill averred the cus¬ tom of the complainant at frequently oc¬ curring periods to issue reduced-rate, non¬ transferable tickets for fairs, conventions, etc., charged a course of illegal dealing in such nontransferable tickets by the defend¬ ants, and sought to protect its right to is¬ sue such tickets by preventing unlawful dealings in them. The defenda'nts in effect not only admitted the unlawful course of dealing as to particular tickets then out¬ standing, but expressly avowed that they possessed the right, and that it was their intention to carry on the business as to all future issues of a similar character of tick- 184

| ets. The action of the circuit court of ap¬ peals, therefore, in causing the injunction to apply not only to the illegal dealings as to the then outstanding tickets, but to like dealings as to similar tickets which might be issued in the future, was but the exertion by the court of its power to re¬ strain the continued commission against the rights of the complainant in the future of a definite character of acts adjudged to be wrongful. Indeed, in view of the state of the record, the inadequacy of the relief afforded by the decree as entered in the circuit court is, we think, manifest on its face. The necessary predicate of the de¬ cree was the illegal nature of the dealings by the defendants in the outstanding tick¬ ets, and the fact that such dealings, if al¬ lowed, would seriously impair the right of the complainant in the future to issue the tickets. Doubtless, for this' reason the de¬ cree was made without ‘prejudice to the[22 8] right of the complainant to apply for relief as to future issues of tickets by independ¬ ent proceedings whenever, on other occa¬ sions, it was determined to issue nontrans¬ ferable tickets. But this was to deny ade¬ quate relief, since it subjected the complain¬ ant to the necessity, as a preliminary to the exercise of the right to issue tickets, to begin a new suit with the object of re¬ straining the defendants from the commis¬ sion in the future of acts identical with those which the court had already adjudged to be wrongful and violative of the rights of the complainant.

In Scott v. Donald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262, on holding a particular seizure of liquor under the South Carolina dispensary law to be invalid, an injunction was sustained, not only ad¬ dressed to the seizure in controversy, but which also operated to restrain like seizures of liquors in the future, and the exertion of the same character of power by a court of equity was upheld in the cases of Dono¬ van v. Pennsylvania Co. 199 U. S. 279, 50 L. ed. 192, 26 Sup. Ct. Rep. 91, and Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276.

Nor is there merit in the contention that the decision in New York, N. H. & H. R.

Co. v. Interstate Commerce Commission, 200 U. S. 404, 40 L. ed. 526, 26 Sup. Ct. Rep.

272, supports the view here relied upon as to the limited authority of a court of equity to enjoin the continued commission of the same character of acts as those adjudged to be wrongful. On the contrary, the ruling in that case directly refutes the claim based on it. There certain acts of the carrier were held to have violated the act to regu¬ late commerce. The contention of the gov¬ ernment was that, because wrongful acts of a particular character had been committed,

207 U. S.

United States v. R.

therefore an injunction should be awarded against any and all violations in the future of the act to regulate commerce. Whilst this broad request was denied, it was care¬ fully pointed out that the power existed to enjoin the future commission of like acts to those found to be illegal, and the in¬ junction was so awarded. The whole argu¬ ment here made results from a failure to distinguish between an injunction generally restraining the commission of illegal acts [22 9]in the ’future and one which simply re¬ strains for the future the commission of acts identical in character with those which have been the subject of controversy, and which have been adjudged to be illegal.

Affirmed.