or libellant's time to file any other [531] or further papers herein be extended to and including the 23d day of December, 1918, and in case application is made for a writ of prohibition to the Supreme Court on or before December 23d, 1918, all proceedings herein be stayed and the time of the special claimant or of the libellant to file any other or further papers herein be extended until ten (10) days after the entry and service of an order or decree on the final decision of the United States Supreme Court on the said writ of prohibition." master, appearing specially for the interest of the owner and for the purpose of objecting to the arrest and detention of the vessel, interposed a special claim to the effect that the Gleneden Steamship Company, Limited, was the true and sole owner of the vessel, and he, as master, was her true and lawful bailee; and also interposed therewith a peremptory exception to the jurisdiction of the court on the grounds taken in the suggestion on behalf of the British Embassy. This claim and exception concluded [530] with a prayer that the process be quashed and the vessel released. The exception was not set down for hearing and remains undisposed of. There was no appearance by either the owner or the master save as just stated; nor was there any appearance by the British government or by any representative of that government other than through the suggestion which coun- the British Embassy was overruled, and sel for the Embassy in Washington presented as amici curiæ. The master thereupon asked leave of this court to file a petition for a writ of prohibition preventing the district court from proceeding with the suit, and from interfering with the Gleneden in any manner, and for a writ of mandamus directing that court to vacate the order made when the suggestion on behalf of to enter an order releasing the vessel without requiring security,-the grounds advanced in the petition being essentially a repetition of those embodied in the suggestion of counsel for the British Embassy. The requested leave was given, a rule to show cause was issued, a return was made by the district judge, and counsel have been heard. Whether, on the case thus made, either of the writs 166 should be granted, is the matter to be decided. After filing the special claim and exception, the master applied to the circuit court of appeals for the second circuit for writs of prohibition and mandamus preventing the district court from exercising further jurisdiction, and commanding it to undo what had been done; but the application was denied for reasons which need not be noticed now. C. C. A. 352, 255 Fed. 24. A few days later an arrangement was effected whereby an acceptable surety company undertook to enter into and file a stipulation for value in the usual form and in a sum to be named by the libellant, not exceeding $450,000, unless, on an intended application to this court for a writ of prohibition, the vessel should be held immune from the process under which she was arrested and detained. Following that arrangement, on December 10, 1918, the district court entered the following order: "On the annexed agreement for security, and consent of the proctors for the libellant herein, and the record herein, it is is The principal question sought to be presented-whether the Gleneden such a public vessel of the British government as to be exempt from arrest in a civil suit in rem in admiralty in a court of the United States-is one of obvious delicacy and importance. No decision by this court up to this time can be said to answer it. The nearest approach is in the case of The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287, where an armed ship of war, owned, manned, and controlled by a foreign government at peace with the United States, was held to be so exempt. To apply the principle or doctrine of that decision to the Gleneden would be [532] taking a long step, and the present posture of this litigation is such that we find no occasion to consider whether there is proper warrant for taking it. Ordered that, in order to prevent further delay and expense, the steamship Gleneden be and she hereby is allowed to proceed on her voyage and leave the physical custody of the marshal of the It is conceded that the Gleneden is not eastern district of New York, provided, an armed ship of war, and that she is however, that this order does not and not owned by a foreign government, but shall not be deemed to constitute any by a private corporation. In a sense withdrawal or quashing of the writ of she may be temporarily in the service arrest; and it is and under the control of the British Further ordered that all proceedings government, but the nature and extent herein be stayed and special claimant's of that service and control are left in uncertainty by the proofs, although the facts evidently are susceptible of being definitely shown. lowed. The suggestion on behalf of the British Embassy was presented by private counsel appearing as amici curiæ, Prima facie the district court had ju- and not through the usual official chanrisdiction of the suit and the vessel (The nels. This was a marked departure Belgenland, 114 U. S. 355, 368, 369, 29 from what theretofore had been recogL. ed. 152, 157, 5 Sup. Ct. Rep. 860); nized as the correct practice (see cases and to call that jurisdiction in question last cited); and in our opinion the libelwas to assume the burden of showing lant's objection to it was well taken. what was in the way of its existence or The reasons underlying that practice are exertion. Merely to allege that the ves- as applicable and cogent now as in the sel was in the public service, and under beginning, and are sufficiently indicated the control of the British government as by observing that it makes for better inan admiralty transport, was not enough. ternational relations, conforms to diploThese were matters which were not with-matic usage in other matters, accords to in the range of judicial notice, and need- the Executive Department the respect ed to be established in an appropriate rightly due to it, and tends to promote way. They were not specially within harmony of action and uniformity of dethe knowledge of the libellant, nor did cision. See United States v. Lee, 106 U. it have any superior means of showing S. 196, 209, 27 L. ed. 171, 177, 1 Sup. Ct. the real facts. Thus from every point Rep. 240. Of course, the suggestion as of view it was incumbent on those who made could not be given the consideration called the jurisdiction in question to pro- and weight claimed for it. duce whatever proof was needed to sustain their challenge. As of right the British government was entitled to appear in the suit, to propound its claim to the vessel, and to raise the jurisdictional question. The Sapphire, 11 Wall. 164, 167, 20 L. ed. 127, 130; The Santissima Trinidad, 7 Wheat. 283, 353, 5.L. ed. 454, 471; Colombia v. Cauca Co. 190 U. S. 524, 47 L. ed. 1159, 23 Sup. Ct. Rep. 704. Or, with its sanction, its accredited and recognized representative might have appeared and have taken the same steps in its interest. The Anne, 3 Wheat. 435, 445, 446, 4 L. ed. 428, 430, 431. And, if there was objection to appearing as a suitor in a foreign court, it was open to that government to make the asserted [533] public status and immunity of the vessel the subject of diplomatic repsentations to the end that, if that claim was recognized by the Executive Department of this government, it might be set forth and supported in an appropriate suggestion to the court by the Attorney General, or some law officer acting under his direction. Ketland v. The Cassius, 2 Dall. 365, 1 L. ed. 418, Fed. Cas. No. 7,743; The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287, s. c. Fed. Cas. No. 8,786; The Pizarro v. Matthias, 10 N. Y. Leg. Obs. 97, Fed. Cas. No. 11,199; The Constitution, L. R. 4 Prob. Div. 39, 48 L. J. Prob. N. S. 13, 40 L. T. N. S. 219, 27 Week. Rep. 739, 4 Asp. Mar. L. Cas. 79; The Parlement Belge, L. R. 4 Prob. Div. 129, s. c. L. R. 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 Week. Rep. 642, 4 Asp. Mar. L. Cas. 234. But none of these courses was fol From all that has been said it is apparent that the status of the Gleneden, judged in the light of what was done and shown in the district court, is at best doubtful and uncertain, both as matter of fact and in point of law. The jurisdiction of that court is correspondingly in doubt, for it turns on the status of the vessel. The suit is still in the interlocutory stage. The court may take up again the question of its jurisdiction. If it does, the inquiry may proceed on other lines and the facts may be brought out more fully than before. In addition, the question [534] may be re-examined in regular course on an appeal from the final decree. The power of this court, under § 234 of the Judicial Code, to issue writs of prohibition to the district courts, when proceeding as courts of admiralty, to prevent an unlawful assumption or exercise of jurisdiction, is not debatable. But this power, like others, is to be exerted in accordance with principles which are well settled. In some instances, as where the absence of jurisdiction is plain, the writ goes as a matter of right. Ex parte Phenix Ins. Co. 118 U. S. 610, 626, 30 L. ed. 274, 280, 7 Sup. Ct. Rep. 215; Ex parte Indiana Transp. Co. 244 U. S. 456, 61 L. ed. 1253, 37 Sup. Ct. Rep. 717. In others, as where the existence or absence of jurisdiction is in doubt, the granting or refusal of the writ is discretionary. Re Cooper, 143 U. S. 472, 485, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Re New York & P. R. S. S. Co. 155 U. S. 523, 531, 39 L. ed. 246, 249, 15 Sup. Ct. Rep. 183; Re Alix, 166 U. S. 136, 41 L. ed. 948, 17 Sup. Ct. Rep. 522. And see Ex parte Gordon, 104 U. S. 515, 518, 519, 26 L. ed. 814, 815; The Charkieh, L. R. 8 Q. B. 197, 42 L. J. Q. B. N. S. 75, 28 L. T. N. S. 190, 21 Week. Rep. 437. Here the most that can be said against the District Court's jurisdiction is that uary 17, 1921. it is in doubt; and in other respects the Submitted December 9, 1920. Decided Jansituation is such that we deem it a proper exercise of discretion to refuse the writ. Nothing need be added to show that the request for a writ of mandamus is on no better footing. Re Morrison, 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; Re Oklahoma, 220 U. S. 191, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Ex parte Roe, 234 U. S. 70, 58 L. ed. 1217, 34 Sup. Ct. Rep. 722. Rule discharged and petition dismissed. [535] ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Plff. in Err., V. PUBLIC SERVICE COMMISSION OF THE (See S. C. Reporter's ed. 535–537.) Commerce state regulation detour of through passenger trains at designated town. stop A railway company cannot, consistently with the commerce clause of the Federal Constitution, be required to detour its two through interstate day passenger trains via a city of some 4,000 inhabitants, instead of running such trains over a cutoff forming a part of the main line, where such city is otherwise served by fourteen local daily passenger trains, seven each way, and where to make the detour will require the railway company to maintain 16 more miles of track at the high standard essential Note.-On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107, and Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158. On state regulation of stops of interstate passenger and mail trains-see notes to Gulf, C. & S. F. R. Co. v. Texas, 62 L. ed. Ú. S. 574; Chicago, B. & R. Co. v. Railroad Commission, 59 L. ed. U. S. 926, and Herndon v. Chicago, R. I. & P. R. Co. 54 L. ed. U. S. 970. On power to compel stoppage of trains at stations-see notes to Peterson v. State, 14 L.R.A. (N.S.) 293; Minneapolis, St. P. & S. Ste. M. R. Co. 17 L.R.A. (N.S.) 821; St. Louis & S. F. R. Co. v. Langer, 44 L.R.A. (N.S.) 478, and Missouri, K. & T. R. Co. v. State, 29 L.R.A. (N.S.) 159. IN ERROR to the Supreme Court of the State of Missouri to review a judgment which affirmed a judgment of the Circuit Court of Cole County, in that state, upholding an order of the state Public Service Commission directing a rerouting of interstate passenger trains. Reversed and remanded for further proceedings. See same case below, 277 Mo. 264, P.U.R.1919D, 185, 210 S. W. 72. The facts are stated in the opinion. Messrs. William F. Evans and Edward T. Miller submitted the cause for plaintiff in error: The order of the defendant in error, affirmed by the supreme court of Missouri, constitutes a regulation of, an interference with, and an undue burden upon, interstate commerce. Illinois C. R. Co. v. Illinois, 163 U. S. 142, 41 L. ed. 107, 16 Sup. Ct. Rep. 1096; McNeill v. Southern R. Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121; Herndon v. Chicago, R. I. & P. R. Co. 218 U. S. 135, 54 L. ed. 970, 30 Sup. Ct. Rep. 633; Kansas City Southern R. Co. v. Kaw Valley Drain age Dist. 233 U. S. 75, 58 L. ed. 857, 34 Sup. Ct. Rep. 564; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Co. v. Minnesota, 238 U. S. 340, 59 Sup. Ct. Rep. 560; Great Northern R. L. ed. 1337, P.U.R.1915D, 701, 35 Sup. Ct. Rep. 753; Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. R. Commission v. Illinois C. R. Co. 203 868, 20 Sup. Ct. Rep. 722; Mississippi U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, 56 L. ed. 83, 32 Sup. Ct. Rep. 22. Mr. James D. Lindsay submitted the cause for defendant in error. Mr. R. Perry Spencer was on the brief: The order of the Commission is a requirement necessary and reasonably adapted to the attainment of proper local service and facilities not otherwise adequately provided by plaintiff, and is not a regulation of, an interference | connections with all through trains at with, or an undue burden upon, interstate commerce. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Houston & T. C. R. Co. v. Mayes, 201 U. S. 321, 50 L. ed. 772, 26 Sup. Ct. Rep. 491; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 296 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560; Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, 61 L. ed. 1216, 37 Sup. Ct. Rep. 602; Missouri, K. & T. R. Co. v. Texas, 245 U. S. 484, 62 L. ed. 419, L.R.A.1918C, 535, P.U.R.1918B, 602, 38 Sup. Ct. Rep. 178; Gulf, C. & S. F. R. Co. v. Texas, 246 U. S. 58, 62 L. ed. 574, 38 Sup. Ct. Rep. 236. Mr. Justice McReynolds delivered the opinion of the court: Hayti. These locals do not carry equipment of the highest class, but apparently they afford fair facilities for reaching and leaving Caruthersville without serious delay or great inconvenience. If deficient in schedule or equipment there is an easy remedy by means other than detours of the through trains. The applicable general doctrine has been often considered, and in Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 226, 59 L. ed. 926, 930, P.U.R. 1915C, 309, 35 Sup. Ct. Rep. 560, this court said: "In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing, that is, the local conditions being adequately met,the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command, through the orders of an administrative body. (4) The fact of local facilities this court may determine, such Plaintiff in error's main line extends fact being necessarily involved [537] from St. Louis to Memphis,-305 miles. in the determination of the Federal As originally constructed it turned sharp-question whether an order concernly southeastward at Hayti, Missouri, ing an interstate train does or does 220 miles from St. Louis, ran thence 7 not directly regulate interstate commiles to Caruthersville, a city of four thousand people, thence southwestward 9 miles to Grassy Bayou, and thence south. A "cut-off" between Hayti and Grassy Bayou-6 miles-became part of the main line in 1904, and thereafter through freight and night passenger trains passed that way. The through day passenger trains-Nos. 801 and 802-continued to [536] move along the old line until August, 1913, when they were routed over the "cut-off." At the same time two new daily passenger trains were put on and operated between Blytheville, Arkansas, and Cape Girardeau, Missouri, by way of Caruthersville. merce by imposing an arbitrary requirement. Gladson v. Minnesota, 166 U. S. 427, 41 L. ed. 1064, 17 Sup. Ct. Rep. 627; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep. 722; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121." The Missouri Public Service Commission directed the railway company to restore trains 801 and 802 to the route followed prior to 1913, and the state Considering the facts disclosed, we supreme court approved this action. think it plain that the fourteen local pasWe are asked to declare the order in- senger trains meet the reasonable revalid because it unduly burdens inter- quirements of Caruthersville, and that state commerce. The point is well taken. the Commission's order unduly burdens Fourteen local daily passenger trains interstate commerce. Compliance with move in and out of Caruthersville,-sev- it would require the railway to maintain en each way. Some of these make close 16 more miles of track at the high stand 1920. ard essential for the through trains, and The judgment of the court below must not whether justified or not, is, in legal con- new carrier's road. see Carriers, II. b, 4, in Carriers delivery possession of bill 2. It is the physical possession of the bill of lading which is made a justification for delivery by the provision of the Uniform Bills of Lading Act of August 29, Mr. Justice Pitney and Mr. Justice 1916, § 9, that a carrier is justified in deClarke dissent. Carriers delivery turning car over to another carrier. 1. The terminal carrier, by surrendering a car at destination to another carrier for further transportation, at the request of an employee of the latter, makes a disposal of such car in assumed termination and discharge of its obligations which, Note. As to whom delivery may be made under bill of lading-see note to Nebraska Meal Mills v. St. Louis Southwestern R. Co. 38 L.R.A. 358. Delivery by carrier without requiring surrender of bill of lading as amounting to conversion. Only the fault of the shipper can exonerate the carrier from the consequences of a delivery to the wrong person. Furman v. Union P. R. Co. 106 N. Y. 579, 13 N. E. 587. Delivery to the wrong parties without the production or assignment of the bill of lading is a conversion. Mobile, J. & K. C. R. Co. v. Bay Shore Lumber Co. 165 Ala. 610, 138 Am. St. Rep. 84, 51 So. 956; St. Louis & T. H. R. R. Co. v. Rose, 20 Ill. App. 670. And no effect can be accorded to a practice, or so-called custom, that sanetions a delivery otherwise than in accordance with the absolute obligation resulting from the terms of the ordinary bill of lading. Mobile, J. & K. C. R. Co. v. Bay Shore Lumber Co. supra; Southern R. Co. v. Harris, 202 Ala. 263, 80 So. 101. A carrier's absolute duty in the premises, resulting from a bill of lading, is not at all qualified by directions in a way livering goods to one who is in possession [For other cases, see Carriers, II. b, 4, in possession of bill 3. If the physical possession of a bill of lading were deemed legally the principals' shipment to such agent at his request, later possession, the physical delivery of the ratified by his principals, would likewise be deemed legally a delivery to them. [For other cases, see Carriers, II. b, 4, in Digest Sup. Ct. 1908.] bill; therefore, the fact that an agent of an initial carrier erroneously substituted on the waybill the name of another party as one to be notified will not excuse a wrongful delivery. Southern R. Co. v. Harris, supra. And delivery by the last carrier to one other than the consignee named in the bill of lading, without surrender of the bill of lading, is conversion, although such delivery is to one named in the in name of consignee was made by an Waybill as consignee, where the change intermediate carrier without authority. Minn. 255, 65 N. W. 627. Foy v. Chicago, M. & St. P. R. Co. 63 Under a shipment to shipper's order, delivery to another without production of the bill of lading, properly indorsed, amounts to a conversion as to the shipper or his assignor who is damaged thereby, although delivery is made to the actual purchaser. Midland Valley R. Co. v. J. A. Fay & E. Co. 89 Ark. 342, 116 S. W. 1171; First Nat. Bank v. OregonWashington R. & Nav. Co. 25 Idaho, 58, 136 Pac. 798. So, too, under such a shipment, delivery without production of the bill of lading to a purchaser from consignee's indorsee is conversion as to one to whom such indorsee had indorsed the bill of lading over as security for money ad 391 |