Opinion of the Court.

Company held the property of the Depot Company. Neither did the mere fact that he took possession of the Depot ComWhatpany's property operate as an adoption of the lease. ever doubt was at one time entertained as to the effect of a receiver's taking possession of leasehold property under an order of a court of equity, it is now well settled that such a receiver may take and retain possession of leasehold interests for such reasonable time as will enable him to elect intelligently whether the interest of his trust will be best subserved by adopting the lease and making it his own, or by returning the property to the lessor. Sunflower Oil Company v. Wil son, 142 U. S. 313, 322; Quincy, Missouri and Pacific Railroad Company v. Humphreys, 145 U. S. 82; Kneeland v. American Loan and Trust Company, 136 U. S. 89; Thomas v. Western Car Company, 149 U. S. 95; United States Trust Company v. Wabash Western Railway Company, 150 U. S. 287; Park v. New York, L. E. & W. R. Co., 57 Fed. Rep. 799; Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 58 Fed. Rep. 257; New York, P. & O. R. Co. v. New York L. E. & W. R. Co., 58 Fed. Rep. 268.

The Depot Company was a party defendant to the suit in which the receiver was appointed, and appears to have made no objection to the appointment of a receiver, nor to have made any application to the court for a restoration of its property.

case.

The suggestion that the retention by the receiver of the possession of this property for ten months was unreasonable, and unnecessary to enable him to make an intelligent election, is, we think, untenable in view of the circumstances of this The evidence shows that the contract rent stipulated for in the lease was quite extravagant, and that the earnings of the Railway Company under the receiver were wholly inadequate to justify an assumption of the terms of that contract. This fact appears to have been clearly understood by both the receiver and the officers of the Depot Company. So it is clearly established that the receiver at no time had the slightest intention of adopting the lease, and that he remained in possession as long as he did only because of pending nego

Opinion of the Court.

tiations actively kept alive by the officers of the Depot Company concerning an agreement as to a reasonable rent. It is unnecessary to go into the details of the evidence touching these negotiations. It is sufficient to say that, until a receiver was appointed under another and an independent proceeding for the property of the Depot Company, the active officers and agents of the Depot Company, including one Erb, who was the sole stockholder of the Depot Company, were exceedingly anxious that the receiver should continue in possession at any reasonable rental rather than that the property should lie idle and suffer by disuse. These negotiations concerning the terms upon which the railway receiver should remain in possession continued down to the 26th day of November, 1892, when W. W. Millan was appointed receiver for the Depot Company under an order which recited that the depot and terminal facilities were then being used by the Chattanooga Union Railway Company and the Chattanooga Southern Railway Company, and which directed that the possession and control of the receiver then appointed should "not in any way interfere with the rights of said railroad companies to the use of said depot so far as the same are secured to said companies by virtue of any existing contract by and between the defendant depot company and said railroad or railroad company, unless otherwise directed or ordered hereafter by this court."

It is well to observe here that this order was not made in a case to which the Railway Company or its receiver was a party, and therefore it in no way operated as an adoption of the terms of any contract between the Railway Company and the Depot Company touching rentals for the property of the latter.

The evidence shows that the receiver thus appointed thought it preferable that Chamberlain, the Railway Company's receiver, should occupy the depot rent free, rather than that the property should be abandoned, and that he agreed that this might be done, if the court would make an order sanctioning it. This order, when requested, was opposed by Mr. Barr, counsel for the complainant trustee in the fore

Syllabus.

closure suit against the Depot Company; whereupon the premises were at once surrendered to the receiver for the Depot Company. The circumstances all tend to establish very satisfactorily that the retention of possession by the receiver did not indicate an intention to adopt the lease or to retain possession against the will of the Depot Company. On the contrary, the clear inference is that the possession was retained practically by consent of the Depot Company and under an implied understanding that the receiver should oc cupy subject to a reasonable rent. That the parties were unable to agree upon a reasonable rental does not operate as an adoption of the unreasonable stipulations of the lease. The evidence abundantly establishes the reasonableness of the rental allowance made by the master and confirmed by the court.

The decree is accordingly

Affirmed.

DETROIT, GRAND HAVEN AND MILWAUKEE RAILWAY COMPANY v. INTERSTATE COMMERCE COMMISSION.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DIVISION OF THE WESTERN DISTRICT OF MICHIGAN.

No. 252. Argued February 26, 1895. — Decided April 14, 1896.

In interpreting the act of Congress of February 4, 1887, 24 Stat. 379, c. 104, known as the "Interstate Commerce Act," which was largely modeled upon similar legislation in England, weight must be given to the fact that Congress must have had similar legislation in England in mind in framing it, and also to the fact that Congress must have known that in the United States railroad companies with the rarest exceptions had nothing to do as a matter of practice with the collection and delivery of goods to and from stations by engaging themselves in the business of carting.

It was not the intention of Congress in enacting the Interstate Commerce Act to confuse the carting of goods to and from the stations with their transportation by the roads, and if the act can be interpreted to avoid the confusion it should be done, and it is to be presumed that by that

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act it was not intended to interfere with such carting to and from the stations, except so far as it might affect directly the transportation of goods between the States, by being used to evade the jurisdiction over that subject.

In determining how far the provisions of the Interstate Commerce Act apply to the cartage of goods to and from stations it must be borne in mind that this is a separate and independent business, not usually carried on by railroad companies themselves, nor usually within the scope of the act, nor within the power of Congress to legislate about. The city of Grand Rapids and the town of Ionia, Michigan, are stations on the Detroit, Grand Haven and Milwaukee Railway Company thirtyseven miles apart, Ionia being much nearer to the eastern terminus of the road from and to which interstate traffic in that direction goes over the railway to and from Ionia and Grand Rapids. These two stations are grouped together on the published schedules of the company, an equal rate being charged to shippers at either place. Grand Rapids is a city of seventy thousand inhabitants, and Ionia a town of six thousand inhabitants. In 1887 the aggregate cartage of goods from Grand Rapids was 985,685 tons, and from Ionia 55,000 tons. The station of the Detroit, Grand Haven and Milwaukee Railway Company when it was first located, which was in 1858, was at an average distance of one and onefourth miles from the business sections of the city and thereafter continued in the same position. Two rival railway companies, competing with the Detroit, Grand Haven and Milwaukee Railway Company for interstate railway traffic to and from markets to the eastward, located their stations within an average distance of one-fourth of a mile from the business sections of the city. More than twenty-five years ago the Detroit, Grand Haven and Milwaukee Railway Company established at Grand Rapids a system of collecting and delivering goods upon the premises of the consignors and consignees by a cartage service which it provided, and for which no other charge was made than that general sum which appeared on the published schedules and rates of the railroad company as the equal freighting charge with that made to Ionia. The Interstate Commerce Commission filed a petition in the Circuit Court of the United States for the Western District of Michigan to compel the Detroit, Grand Haven and Milwaukee Railway Company to obey an order which it had made on an application asking that the railway company desist from certain alleged violations of the Interstate Commerce Act which the commission had found had been practiced by it and which the company refused to obey. In the proceedings before the Circuit Court it did not appear what would be the cost to the Detroit, Grand Haven and Milwaukee Railway Company of rail transportation proper, either to Grand Rapids or Ionia, or whether the carriage to Grand Rapids was free as being given without addition to the cost of transportation, or whether it was added to and included in the general sum. It appeared that the collecting and delivering at Grand Rapids were done by persons employed and paid by the railway com

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pany for that service, and that no such collecting and delivering were ever done at Ionia. It also appeared that it had long been the custom in Michigan for railway companies to collect and deliver goods by cartage services in exceptional places, and that in 1871, by an act of the legislature of Michigan, special authority was given to every railway company in the State to make personal delivery of goods to their consignees within certain limits. The proof also showed that competition between merchants and dealers at Grand Rapids and those at Ionia was very slight, amounting practically to nothing, and that the complainants before the Interstate Commerce Commission were merchants at Ionia who objected that the collection and delivery service furnished by the Detroit, Grand Haven and Milwaukee Railway Company at Grand Rapids was an unlawful discrimination under the Interstate Commerce Act. The Interstate Commerce Commission decided in favor of the merchants at Ionia and entered an order requiring the railway company within a certain time to "wholly cease and desist from furnishing free cartage and freights at Grand Rapids, in the State of Michigan, whereby rebates from its lawfully published schedule of rates, fares and charges at its station or office at Grand Rapids are given to shippers and consignees, and charges for the transportation over its line of property shipped from eastern points to Grand Rapids aforesaid are made less than charges for the transportation over its line of like kinds of property shipped from the same eastern points to Ionia, in the State of Michigan." On application to the Circuit Court the judges of that court were divided in opinion, and a decree was made in favor of the commission commanding the railway company and its officers and agents "to forthwith desist and refrain from affording such free cartage at said city of Grand Rapids unless a like service or its equivalent in value by reduced rates be at the same time afforded to said city of Ionia, and unless the fact that such free cartage or such equivalent reduced rate is afforded at both points shall be noted on the established tariffs of freights and charges published as required by law." After considering the authorities based upon similar legislation in England and authorities in the United States and considering the various questions raised and the facts in evidence in the case, this court held (1) that on the facts of the case there was no violation of the Interstate Commerce Act by reason of the fact that the Detroit, Grand Haven and Milwaukee Railway Company afforded free cartage at Grand Rapids by interstate traffic between its station and its customers in the city of Grand Rapids, and that by so doing it did not discriminate against the town of Ionia; (2) that, even if the Interstate Commerce Commission had established by its inquiry an abuse to be remedied under the act, the order which it entered was not a proper one and should not be enforced, as its powers were those of regulation and not of construction or reconstruction, the defect in the order being that it was an arbitrary and peremptory order to abandon the accessorial cartage at Grand Rapids without regard to any rates, or without option as to their readjustment, the railway company not even