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

Sun Pub. Co. v. Lake Erie Asphalt Block Co. 84 C. C. A. 584, 157 Fed. 80; Paul v. Delaware, L. & W. R. Co. 130 Fed. 954.

The exhibits become part of the pleading.

Weir v. Jones, 84 Miss. 610, 37 So. 128; Hamer v. Rigby, 65 Miss. 41, 3 So. 137; Moline Plow Co. v. Webb, 141 U. S. 616, 35 L. ed. 879, 12 Sup. Ct. Rep. 100.

The defendants answered the complainant, admitting the rendition of the award, but alleging it was improperly and illegally made, thereby tendering this issue. If the complaint did not state a cause of action, this should have been raised by demurrer.

Marshal v. Hamilton, 41 Miss. 229. After verdict and judgment, the objection comes too late.

[410] Mr. Justice Clarke delivered the opinion of the court:

its agent.

The shipper prevailed in both lower courts.

The venue provision of the Interstate Commerce Act allows such an action as we have here to be commenced in any district "through which the road of the carrier runs;" and it is contended, first, that the Vicksburg Company did not have a road running through the district of suit, and that, therefore, the court did not have jurisdiction over the

case.

[411] It is stipulated that the Vicksburg Company is a Louisiana corporation, and that, at the times involved, it owned a railroad extending through Louisiana to Delta Point, a station on the west bank of the Mississippi river, opposite Vicksburg. Its cars were ferried to and fro across the river, and were hauled by the Alabama & Vicksburg Railroad Company, hereinafter called the Alabama Company, over its rails to freight and passenger stations in Vicksburg. 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 Interstate Commerce Act, as amended June 18, 1910 (36 Stat. at L. 539, 554, chap. 309, Comp. Stat. §§ 993, 8584, 5 Fed. Stat. Anno. 2d ed. p. 1108, 4 Fed. Stat. Anno. 2d ed. p. 475), against various carriers, based upon an order of the Interstate Commerce Commission for the payment of money found due as reparation for the exacting of an unreasonable rate for the transportation of "box shooks" in carload lots from Vicksburg, Mississippi, to Port Arthur, Texas, which the carriers refused to pay. It will be necessary to consider only the liability of the defendant the Vicksburg, Shreveport, & Pacific Railway Company, hereinafter referred to as the Vicksburg Company.

ticket offices in Vicksburg, at which tickets were sold and bills of lading issued by the Vicksburg Company from Vicksburg to various points on its line. The Vicksburg Company filed passenger and freight tariffs with the Interstate Commerce Commission without any division of rates with the Alabama Company, that company being paid on a mileage basis for the service which it rendered east of the river. It is also stipulated "that exactly the same arrangement is now in force between" the Vicksburg and Alabama companies "as was in effect before the United States government took control of these two roads."

Thus the mileage, passenger, freight, 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 the tracks of the Alabama Company east of the river, in the district [412] of suit, under the circumstances of operation as the parties stipulated them to be, constituted them the road of the Vicksburg Company within the meaning of the act.

It is next contended that the person on whom summons was served was not, at the time, an agent of the Vicksburg Company.

(October 22, 1913, 38 Stat. at L. 208, 219, chap. 32, Comp. Stat. § 3279, 2 Fed. Stat. Anno. 2d ed. p. 169), repealed by implication the provisions of § 16, supra, permitting such reparation suits as we have here to be filed in the district court for any district "through which the road of the carrier runs," and that for this reason the district court was without jurisdiction.

The plaintiff was a Michigan corporation, and, if the provisions of § 16 referred to had been repealed at the time the case was commenced, the venue was improperly laid and the court was without jurisdiction.

The return of the marshal is that he executed the writ "by handing a true copy of this summons and petition for judgment to Austin King, freight agent for the Vicksburg, Shreveport, & Pacific Railway Company." The plea in abatement denied, on "information, knowledge, and belief" of counsel, that King was, at the time of service, an agent of either of the defendants. No evidence whatever was introduced to sustain this plea, and, in support of it, sole reliance is placed upon the stipulation that the government was in control|trict wherein is the residence of the of the lines of the Vicksburg Company at the time the petition was filed.

The argument is that the act of Congress abolishing the commerce court, in restoring to the district courts the jurisdiction which had been vested exclusively in that court, provided that "the venue of any suit hereafter brought to enforce, suspend, or set aside, any order of the Interstate Commerce Commission shall be in the judicial dis

party or any of the parties upon whose petition the order was made" (38 Stat. at L. 219, chap. 32); and that this provision for venue is so inconsistent with that of § 16, supra, allowing suit to be commenced, on an order for the payment of money, in any district through which the road of the carrier runs, that the latter must be regarded as repealed by implication.

The unreasonable rate for which the reparation order was made was exacted on shipments moving long prior to the taking over of the railroads by the government in December, 1917, and there being no evidence that King was not the agent of the Vicksburg Company, the return of the marshal was properly accepted 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 agent | 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, 3115j, 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. §§ 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 with the foregoing provisions relating to the commerce court." 38 Stat. at L. 219, 221, chap. 32. The venue provided for, and relied upon in this suit, was for suits in the circuit (district) court on an order for the payment of money, and of such suits the commerce court never had jurisdiction.

The contention that Congress intended by implication to repeal and cut down to such narrow limits the venue which has gradually been so liberally extended cannot be entertained. The terms of the repealing act do not justify it, and we cannot doubt that if such purpose had been intended, it would not have been left to inference and implication, but would have been clearly expressed.

claimed, and the order of the Commission in the premises. (36 Stat. at L. 539, 554, chap. 309, § 16.)

The contention that the petition does not state a cause of action against the carriers first appears in the assignment of errors in the circuit court of appeals, after an elaborate answer and adverse judgment in the district court. However, the petition avers that the shipper filed its petition with the Interstate Commerce Commission, claiming that it had been charged an unreasonable rate; that, upon hearing, the Commission entered an order for the payment of money "as reparation on account of unreasonable rate exacted for the transportation" of its freight; that the order required payment to be made by a date named; that the carriers had refused payment when demanded; and that the 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 causes for which damages are merce Commission, which resulted in the order relied upon, and that any of the printed reports and findings of the Commission 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 determination of such application by the Commission was applicable. To this it is sufficient to say that it appears from the Commission's first report that, immediately after the filing of the complaint with the Commission, the carriers amended their tariffs so as to correct the unreasonable rate which was complained of under § 3 of the act, and we quite agree with the Commission that whatever the application under § 4 may have been (there is no copy of it in the record), such amendment removed the occasion for further suspension of action by the Commission under the provision quoted. The Commission aptly says that the rate then on file conformed "to the requirements of the 4th section,

There was no request made by the carriers for any ruling of law, and no exception whatever was taken during the trial. There being no special findings of fact by the court, its general finding has the effect of a verdict of a jury (Rev. Stat. § 649, Comp. Stat. § 1587, 6 Fed. Stat. Anno. 2d ed. p. 130), is conclusive upon all matters of fact, and there not being any exceptions to rulings of law in the progress of the trial, the review in this court is limited to the sufficiency of the complaint (Rev. Stat. §700, Comp. Stat. § 1668, 6 Fed. Stat. Anno. 2d ed. p. 205). Norris v. Jackson, 9 Wall. 125, 19 L. ed. 608; St. Louis v. Western U. Teleg. Co. 166 U. S. 388, 41 L. ed. 1044, 17 Sup. Ct. Rep.

and defendants' application, in so far ON PETITION for a Writ of Manda

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

The final contention that the facts found by the Interstate Commerce Commission were so adopted by the District Court as to become special findings of fact by that court, which may be reviewed by this court without exception being taken to any of them, is too triv

ial to deserve discussion.

It results that the judgment of the Circuit Court of Appeals is affirmed.

[417] IN THE MATTER OF MATTHEW
ADDY STEAMSHIP & COMMERCE
CORPORATION, a
tion, Petitioner.

(See S. C. Reporter's ed. 417-420.)

to control judicial act remanding cause to state court.

mus to the District Judge for the Eastern District of Virginia, to vacate an order remanding the cause to the state court whence it had been removed. Rule discharged. Petition dismissed.

The facts are stated in the opinion. Mr. Thomas K. Schmuck argued the cause, and, with Mr. Nelson B. Cramer, filed a brief for petitioner.

Messrs. Edward R. Baird, Jr., and Gilbert R. Swink argued the cause and filed a brief for respondent.

Mr. Justice Clarke delivered the opinion of the court:

The Coalmont Moshannon Coal Company, a Pennsylvania corporation, filed Delaware Corpora- its petition in the circuit court of the city of Norfolk, Virginia, against the petitioner, Matthew Addy Steamship & Commerce Corporation, a Delaware company, for the recovery of damages for the alleged breach of a contract, and, under Virginia practice, garnisheed other defendants. In due time, and in proper form, the defendant, the petitioner herein, filed its petition for the removal of the case to the district court of the United States for the eastern district of Virginia. Thereafter the plaintiff, in the state court, filed a motion to remand the case, claiming that it was, not removable, for the reason that the plaintiff and the principal defendant [418] were nonresidents of the eastern district of Virginia. The district court sustained this motion and ordered the case remanded to the state court.

Mandamus to vacate an order which improperly remanded a cause removed from a state court is not permitted under Judicial Code, § 28, which provides that, "when ever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed." [For other cases, see Mandamus. II. c, 1; Supreme Court of the United States, I. b, 2, in Digest Sup. Ct. 1908.]

[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 east

1921.

Note. As to when mandamus is the proper remedy, generally-see notes to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 160; M'Cluny v. Silliman, 4 L. ed. U. S. 263; Fleming v. Guthrie, 3 L.R.A. 54; Burnsville Turnp. Co. v. State, 3 L.R.A. 265; State ex rel. Charleston, C. & C. R. Co. v. Whitesides, 3 L.R.A. 777, and Ex parte Hurn, 13 L.R.A. 120.

On mandamus to control judicial action-see notes to Re Morgan, 29 L. ed. U. S. 135, and State ex rel. Bayha v. Kansas City Ct. of Appeals, 3 L.R.A. 476.

On mandamus in exercise of superintending control over inferior court-see note to State ex rel. Fourth Nat. Bank v. Johnson, 51 L.R.A. 33.

ern district of Virginia to vacate the orin the district court, and that it thereder remanding the case, to redocket it upon be heard and determined according to law. A rule to show cause was issued, and the judge has filed his return, in which he asserts that the petition should be dismissed, for the reason that mandamus is not an appropriate remedy, because not permitted by the provisions of § 28 of the Judicial Code [36 Stat. at L. 1094, chap. 231, Comp. Stat. § 1010, 5 Fed. Stat. Anno. 2d ed. p. 16], reading as follows:

"Section 28.

Whenever any

cause shall be removed from any state court into any district court of the United States, and the, district court shall decide that the cause was improp erly removed, and order the same to be remanded to the state court from