Eastern R. Co. 28 Inters. Com. Rep. 193; Steinhauser v. Order of St. Benedict,
Orange Rice Mill Co. v. Texas & N. 0. supra.
R. Co. 49 Inters. Com. Rep. 250; New The question of whether or not, at the
York Harbor Case, 47 Inters. Com. Rep. close of a trial; there has been substan-
643; Interstate Commerce Commission v. tial evidence to sustain a finding in fa-
Nashville, C. & St. L. R. Co. 57 C. C. A. vor of the party, is a question of law
224, 120 Fed. 934; Interstate Co merce which arises in the trial. It is raised
Commission v. Louisville & N. R. Co. 73 by a motion for a judgment or a request
Fed. 409.

for a declaration of the law, or by any The sufficiency of the facts found by other action which presents this issue the Commission, and adopted by the low- of law for the court to determine before er court, to support the judgment, may the trial ends. be examined in an appellate court with- Sun Pub. Co. v. Lake Erie Asphalt out the necessity of any exceptions. Block Co. 84 C. C. A. 584, 157 Fed. 80;

Seeberger v. Schlesinger, 152 U. S. Paul v. Delaware, L. & W. R. Co. 130 581, 38 L. ed. 560, 14 Sup. Čt. Rep. 729; Fed. 954. Hooven, O. & R. Co. v. John Feather- Treating the declaration of the trial stone's Sons, 49 C. C. A. 229, 111 Fed. judge that the award of the Commission 81; Philadelphia Casualty Co. v. Fech- was prima facie evidence of all the facts heimer, 136 C. C. A. 25, 220 Fed. 401, stated therein as a finding of fact, it Ann. Čas. 1917D, 64; Mercantile Trust was a general finding, and cannot be Co. v. Wood, 8 C. C. A. 658, 19 U. S. reviewed in this court. App. 567, 60 Fed. 346; Chicago, R. I. Chicago, G. W. R. Co. v. Minneapolis, & P. R. Čo. v. Barrett, 111 C. C. A. 158, St. P. & S. Ste. M. R. Co. 100 C. C. A. 190 Fed. 123; Mutual L. Ins. Co. v. Kel- 41, 176 Fed. 242, 20 Ann. Cas. 1200; ly, 52 C. C. A. 154, 114 Fed. 271; Wayne Schmid v. Dolan, 93 C. C. A. 194, 167 County v. Kennicott, 103 U. S. 554, 26 Fed. 804; Union County Nat. Bank v. L. ed. 486; Anderson v. Messinger, 7 Ozan Lumber Co. 103 C. C. A. 584, 179 L.R.A.(N.S.) 1094, 77 C. C. A. 179, 146 Fed. 710; Dirst v. Morris, 14 Wall. 490, Fed. 929; Guaranty Trust Co. v. Koeh-21 L. ed. 723. ler, 115 Ç. C. A. 475, 195 Fed. 669; If there be any special findings of Louisiana Mut. L. Ins. Co. v. Tweed, 7 ultimate facts that are not agreed upon, Wall. 44, 19 L. ed. 65.

there can be no review, under a general Mr. Harry B. Anderson argued the judgment is supported by the facts

verdict, of the question whether the cause and filed a brief for defendant in found. error:

National Surety Co. v. Cincinnati, N. Where a case is tried without a jury, o. & T. P. R. Co. 76 C. C. A. 19, 145 there is no right of review by the appel- Fed. 35. late court, when findings of fact are

Under the practice in Mississippi, denot made, except as to rulings of the fective pleading can be challenged only court during the trial, excepted to at by demurrer, both under the state statthe time, and presented by the bill of ute and by decisions of its supreme exceptions; and a statement of the court

court. in its opinion as to the facts and the evi

Marshal v. Hamilton, 41 Miss. 229; dence does not fall within rulings as Whitaker v. Comfort, Walk. (Miss.) contained in the statute.

421. Keeley v. Ophir Hill Consol. Min. Co.

The through rate should not exceed the 95 C. C. A. 99, 169 Fed. 598; Mason v. combination of the intermediate rates. Smith, 112 C. C. A. 146, 191 Fed. 502;

Sylvester v. Pennsylvania R. Co. 14 Streeter v. Chicago Sanitary Dist.. 66 Inters. Com. Rep. 573; Ryan v. Great C. C. A. 190, 133 Fed. 127; Bell v. Union Northern R. Co. 18 Inters. Com. Rep. P. R. Co. 114 C. C. A. 326, 194 Fed. 366; 226; Randolph Lumber Co. v. Seaboard Steinhauser v. Order of St. Benedict, Air Line R. Co. 14 Inters. Com. Rep. 339. 194 Fed. 289.

To raise the question of the sufficiency The assignment that there is no evi- of the evidence before the Interstate dence to support the judgment raises a Commerce Commission to support its question of law, which cannot be re- order of reparation sued upon herein, viewed unless presented to and passed the defendants would have had to exon by the trial court by some appropriate cept to the findings at the time, and action during the trial, unless the find raise the question by a motion for judging is entirely without evidence to sup- ment, or by a request for a declaration

of law, or by some other action which

1023 65 L. ed.

port it.



would have presented the matter for de- , mons was served was not, at the time, termination by the court before the trial its agent. ended.

The shipper prevailed in both lower Sun Pub. Co. v. Lakė Erie Asphalt courts. Block Co. 84 C. C. A. 584, 157 Fed. 80; The venue provision of the Interstate Paul v. Delaware, L. & W. R. Co. 130 Commerce Act allows such an action as Fed. 954.

we have here to be commenced in any The exhibits become part of the plead- district “through which the road of the ing.

carrier runs;" and it is contended, first, Weir v. Jones, 84 Miss. 610, 37 So. that the Vicksburg Company did not 128; Hamer v. Rigby, 65 Miss. 41, 3 So. have a road running through the dis137; Moline Plow Co. v. Webb, 141 U. trict of suit, and that, therefore, the S. 616, 35 L. ed. 879, 12 Sup. Ct. Rep. court did not have jurisdiction over the 100.

The defendants answered the com- [411] It is stipulated that the Vicksplainant, admitting the rendition of the burg Company is a Louisiana corporation, award, but alleging it was improperly and that, at the times involved, it owned and illegally made, thereby tendering a railroad extending through Louisiana this issue. If the complaint did not to Delta Point, a station on the west state a cause of action, this should have bank of the Mississippi river, opposite been raised by demurrer.

Vicksburg. Its cars were ferried to and Marshal v. Hamilton, 41 Miss. 229. fro across the river, and were hauled

After verdict and judgment, the ob- by the Alabama & Vicksburg Railroad jection comes too late.

Company, hereinafter called the Ala

bama Company, over its rails to freight [410] Mr. Justice Clarke delivered and passenger stations in Vicksburg. the opinion of the court:

The Vicksburg and the Alabama comThis is an action instituted by a ship- panies shared the expense of freight and per under the provisions of § 16 of the ticket offices in Vicksburg, at which İnterstate Commerce Act, as amended tickets were sold and bills of lading isJune 18, 1910 (36 Stat. at L. 539, 554, sued by the Vicksburg Company from chap. 309, Comp. Stat. $$ 993, 8584, 5 Vicksburg to various points on its line. Fed. Stat. Anno. 2d ed. p. 1108, 4 Fed. The Vicksburg Company filed passenger Stat. Anno. 2d ed. p. 475), against vari- and freight tariffs with the Interstate ous carriers, based upon an order of the Commerce Commission without any diviInterstate Commerce Commission for sion of rates with the Alabama Comthe payment of money found due as pany, that company being paid on a reparation for the exacting of an un mileage basis for the service which it reasonable rate for the transportation rendered east of the river. It is also of "box shooks” in carload lots from stipulated “that exactly the same arVicksburg, Mississippi, to Port Arthur, rangement is now in force between” the Texas, which the carriers refused to pay. Vicksburg and Alabama companies “as

It will be necessary to consider only was in effect before the United States the liability of the defendant the Vieks-government took control of these two burg, Shreveport, & Pacific Railway roads." Company, hereinafter referred to as the Thus the mileage, passenger, freight, Vicksburg Company.

and tariff publication, arrangements The petition in the case was filed in which the Vicksburg Company had with the United States district court for the the Alabama Company, plainly were western division of the Southern dis- equivalent in practice to a lease of the trict of Mississippi, and the plaintiff road of that company to the Vicksburg therein, defendant in error, for the pur- Company for its transportation purpose of showing the venue, allowed in poses, and the dealings of the Vicksburg § 16 of the Interstate Commerce Act, Company with the public and with the supra, alleged that the defendant the Interstate Commerce Commission with Vicksburg Company was operating a respect to traffic to and from Vicksburg part of its road within that district. were precisely the same as if it had The Vicksburg Company challenged the owned or had leased the Alabama Comjurisdiction of the district court by a pany's tracks. The applicable venue plea in abatement, denying that it provision of the Interstate Commerce owned or operated a railroad in the dis- Act does not require that the carrier trict at the time or for many months shall be the owner of a railroad in the before the petition was filed, and district, but only that its road must run averred that the person on whom sum-| through it; and we agree with the cir


cuit court of appeals in concluding that, (October 22, 1913, 38 Stat. at L. 208, the tracks of the Alabama Company east 219, chap. 32, Comp. Stat. § 3279, 2 of the river, in the district [412] of Fed. Stat. Anno. 2d ed. p. 169), repealed suit, under the circumstances of opera- by implication the provisions of § 16, tion as the parties stipulated them to be, supra, permitting such reparation suits constituted them the road of the Vicks- as we have here to be filed in the disburg Company within the meaning of the trict court for any district “through act.

which the road of the carrier runs," and It is next contended that the person that for this reason the district court on whom summons was served was not, was without jurisdiction. at the time, an agent of the Vicksburg The plaintiff was a Michigan corpoCompany.

ration, and, if the provisions of $ 16 The return of the marshal is that he referred to had been repealed at the executed the writ' "by handing a true time the case was commenced, the venue copy of this summons and petition for was improperly laid and the court was judgment to Austin King, freight agent without jurisdiction. for the Vicksburg, Shreveport, & Pacif- The argument is that the act of Conic Railway Company." The plea in gress abolishing the commerce court, in abatement denied, "information, restoring to the district courts the juknowledge, and belief” of counsel, that risdiction which had been vested exKing was, at the time of service, an clusively in that court, provided that agent of either of the defendants. No "the venue of any suit hereafter brought evidence whatever was introduced to to enforce, suspend, or set aside, sustain this plea, and, in support of it, any order of the Interstate Commerce sole reliance is placed upon the stipula- Commission shall be in the judicial distion that the government was in control trict wherein is the residence of the of the lines of the Vicksburg Company party or any of the parties upon whose at the time the petition was filed. petition the order was made" (38 Stat.

The unreasonable rate for which the at L. 219, chap. 32); and that this proreparation order was made was exacted vision for venue is so inconsistent with on shipments moving long prior to the that of 16, supra, allowing suit to be taking over of the railroads by the gov- commenced, on an order for the payernment in December, 1917, and therement of money, in any district through being no evidence that King was not the which the road of the carrier runs, that agent of the Vicksburg Company, the the latter must be regarded as repealed return of the marshal was properly ac- by implication. cepted by both lower courts as conclu- This contention is much too artificial sive. He may not have been in the em- and unsubstantial for us to consider it ploy of the Director General of Rail- in much detail. It is enough to say that roads at all, and it was entirely possible the two principal amendments to the for him to have been serving as agents Interstate Commerce Act of 1887 show for both the Director and the company that it has been the plainly expressed

Since the shipment for which repa- policy of Congress to make the prosecuration was allowed moved prior to the tion of suits upon reparation orders for taking over of the railroads by the the payment of money progressively United States government, as against easier and less expensive for the shipthe objection of government control, we per by enlarging the venue provisions of think the provision of § 10 of the Fed- them,-doubtless because (414) many eral Railroad Control Act (March 21, such claims are so small that if suit could 1918, 40 Stat. at L. 451, 456, chap. 25, be maintained by the owners only in disComp. Stat. $$ 31152a, 3115%j, Fed. Stat. tant jurisdictions, a large part of them Anno. Supp. 1918, pp. 757, 762) is ap- would be abandoned. Act February 4, plicable and ample to support the juris- 1887, 24 Stat. at L. 379, 384, chap. 104, diction; viz., that “actions at law or $ 16; Act June 29, 1906, 34 Stat, at L. suits in equity may be brought by and 584, 590, chap. 3591, § 16; Act June 18, against such carriers, and judgments 1910, 36 Stat. at L. 539, 554, chap. 309, $ rendered as now provided by law; and 16, Comp. Stat. SS 993, 8584, 5 Fed. Stat. in any action at law or suit in equity Anno. 2d ed. p. 1108, 4 Fed. Stat. Anno. [413] against the carrier, no defense 2d ed. p. 475. The commerce court reshall be made thereto upon the ground pealing act was a section of an approthat the carrier is an instrumentality priation act, and dealt with venue only or agency of the Federal government.” | to the extent necessary to redistribute

It is further claimed that the act of the jurisdiction of the court abolished, Congress abolishing the commerce court , and in terms it repealed only acts or



parts of acts in so far "as they relate , 608; Lehnen v. Dickson, 148 U. S. 71, 37 to the establishment of the commerce L. ed. 373, 13 Sup. Ct. Rep. 481. court," and again so far as “inconsistent The contention that the petition does with the foregoing provisions relating not state a cause of action against the to the commerce court.” 38 Stat. at L. carriers first appears in the assignment 219, 221, chap. 32. The venue provided of errors in the circuit court of appeals, for, and relied upon in this suit, was after an elaborate answer and adverse for suits in the circuit (district) court judgment in the district court. Howon an order for the payment of money, ever, the petition avers that the shipper and of such suits the commerce court filed its petition with the Interstate never had jurisdiction.

Commerce Commission, claiming that it The contention that Congress intended had been charged an unreasonable rate; by implication to repeal and cut down that, upon hearing, the Commission ento such narrow limits the venue which tered an order for the payment of has gradually been so liberally extended money "as reparation on account of uncannot be entertained. The terms of the reasonable rate exacted for the transrepealing act do not justify it, and we portation" of its freight; that the order cannot doubt that if such purpose had required payment to be made by a date been intended, it would not have been named; that the carriers had refused left to inference and implication, but payment when demanded; and that the would have been clearly expressed. suit was instituted under the Act to

Coming to the essentials of the case. Regulate Commerce of 1887, and amendWhen the cause came on for trial on its ments thereof. To this petition copies merits, a jury being duly waived, it is of the report and order of the Commisrecited in the entry of the judgment sion were attached. These allegations that it was stipulated that either party were amply sufficient to meet the remight use in evidence any part of the quirements of the statute, that the petirecord and evidence introduced in the tion in such a case shall set forth briefly hearings before the Interstate Com- the

for which damages merce Commission, which resulted in the claimed, and the order of the Commisorder relied upon, and that any of the sion in the premises. (36 Stat. at L. printed reports and findings of the Com- 539, 554, chap. 309, $ 16.) mission might be used. It is also re- [416] It is also contended that it was cited that the plaintiff introduced the not competent for the Interstate Comreport of the Interstate Commerce Commerce Commission to enter the order mission and the order of the Commission which was made, for the reason that, bedirecting the payment of the money fore the hearing by the Commission, the sued for, and rested its case, and that carriers had filed an application for re"the defendant introduced no evidence.” lief under § 4 of the Interstate Commerce Thereupon the [415] court found that Act, as amended in 1910, which had not the report and order of the Commission been disposed of at the time the order constituted prima facie evidence of the was made, and that therefore the profacts therein stated, and entered judg- vision of that act that no rates or ment in favor of the plaintiff for the charges lawfully existing at the time of amount of the order, with interest and the passage of the amendment should be an attorney's fee.

required to be changed until the deterThere was no request made by the mination of such application by the carriers for any ruling of law, and no Commission was applicable. To this it exception whatever was taken during is sufficient to say that it appears from the trial. There being no special find the Commission's first report that, imings of fact by the court, its general mediately after the filing of the comfinding has the effect of a verdict of a plaint with the Commission, the carriers jury (Rev. Stat. § 649, Comp. Stat. § amended their tariffs so as to correct 1587, 6 Fed. Stat. Anno. 2d ed. p. 130), the unreasonable rate which was comis conclusive upon all matters of fact, plained of under § 3 of the act, and we and there not being any exceptions to quite agree with the Commission that rulings of law in the progress of the whatever the application under $ 4 may trial, the review in this court is limited have been (there is no copy of it in the to the sufficiency of the complaint (Rev. record), such amendment removed the Stat. $ 700, Comp. Stat. § 1668, 6 Fed. occasion for further suspension of acStat. Anno. 2d ed. p. 205). Norris v. tion by the Commission under the proJackson, 9 Wall. 125, 19 L. ed. 608; St. vision quoted. The Commission aptly Louis v. Western U. Teleg. Co. 166 U. S. says that the rate then on file conformed 388, 41 L. ed. 1044, 17 Sup. Ct. Rep. I "to the requirements of the 4th section,


and defendants' application, in so far ONE" To the District Judge for the

PETITION Writ of as this adjustment is concerned, has no further office to perform."

Eastern District of Virginia, to vacate The final contention that the facts an order remanding the cause to the found by the Interstate Commerce Com- state court whence it had been removed. mission were so adopted by the District Rule discharged. Petition dismissed. Court as to become special findings of The facts are stated in the opinion. fact by that court, which may be re

Mr. Thomas K. Schmuck argued the viewed by this court without exception being taken to any of them, is too triv- cause, and, with Mr. Nelson B. Cramer,

filed a brief for petitioner. ial to deserve discussion. It results that the judgment of the

Messrs. Edward R. Baird, Jr., and Circuit Court of Appeals is affirmed. Gilbert R. Swink argued the cause and

filed a brief for respondent.

Mr. Justice Clarke delivered the opin

ion of the court: [417] IN THE MATTER OF MATTHEW


pany, a Pennsylvania corporation, filed Delaware Corpora. its petition in the circuit court of the tion, Petitioner.

city of Norfolk, Virginia, against the (See S. C. Reporter's ed. 417–420.) petitioner, Matthew Addy Steamship &

Commerce Corporation, a Delaware comMandamus to control judicial act pany, for the recovery of damages for remanding cause to state court. the alleged breach of a contract, and,

Mandamus to vacate an order which under Virginia practice, garnisheed othimproperly remanded a cause removed from

defendants. In due time, and in a state court is not permitted under Judicial Code, 28, which provides that,, "when-proper form, the defendant, the petiever any cause shall be removed from any

tioner hereịn, filed its petition for the state court into any district court of the removal of the case to the district court United States, and the district court shall of the United States for the eastern disdecide that the cause was improperly re-trict of Virginia. Thereafter the plainmoved, and order the same to be remanded tiff, in the state court, filed a motion to to the state court from whence it came, remand the case, claiming that it was such remand shall be immediately carried not removable, for the reason that the into execution and no appeal or writ of plaintiff and the principal defendant error from the decision of the district court so remanding such cause shall be allowed." [418] were nonresidents of the eastern [For other cases, see Mandamus, II. c, 1; Su- district of Virginia. The district court

preme Court of the United States, 1. b, 2, in sustained this motion and ordered the Digest Sup. Ct. 1908.)

case remanded to the state court. [No. 30, Original.]

The petition in this proceeding prays

that a writ of mandamus shall be issued, Argued April 11, 1921. Decided May 16, directing the district judge for the east1921.

ern district of Virginia to vacate the orNote.-As to when mandamus is the in the district court, and that it there

der remanding the case, to redocket it proper remedy, generally—see notes to upon be heard and determined accordUnited States ex rel. International Con- ing to law. A rule to show cause was tracting Co. v. Lamont, 39 L. ed. U. S. issued, and the judge has filed his re160; M'Cluny v. Silliman, 4 L. ed. U. S. turn, in which he asserts that the peti263; Fleming v. Guthrie, 3 L.R.A. 54; tion should be dismissed, for the reason Burnsville Turnp. Co. v. State, 3 L.R.A. that mandamus is not an appropriate 265; State ex rel. Charleston, C. & C. remedy, because not permitted by the R. Co. v. Whitesides, 3 L.R.A. 777, and provisions of § 28 of the Judicial Code Ex parte Hurn, 13 L.R.A. 120.

[36 Stat. at L. 1094, chap. 231, Comp. On mandamus to control judicial ac- Stat. § 1010, 5 Fed. Stat. Anno. 2d ed. tion-see notes to Re Morgan, 29 L. ed. p. 16), reading as follows: U. S. 135, and State ex rel. Bayha v. “Section 28.

Whenever any Kansas City Ct. of Appeals, 3 L.R.A. cause shall be removed from any state 476.

court into any district court of the On mandamus in exercise of superin-, United States, and the district court tending control over inferior court--see shall decide that the cause was improp.. note to State ex rel. Fourth Nat. Bank erly removed, and order the same to be v. Johnson, 51 L.R.A. 33.

1 remanded to the state court fron

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