The statute, as construed by the court below, does not validly define a criminal offense, and by reason of its uncertainty is invalid under the 5th and 6th Amendments. 182, 187, 64 L. ed. 215, 219, 40 Sup. Ct., trial, prosecute this direct writ of error. Rep. 113. All the counts charged violations of the 4th section of the Lever Act; the first, a conspiracy under the section to exact, and to aid and abet in exacting, excessive prices for certain necessaries, that is, articles of wearing apparel; and each of the others a specific sale of such an article at an unjust and unreasonable rate or charge. United States v. Reese, 92 U. S. 214, 219-221, 23 L. ed. 563, 565; United States v. Brewer, 139 U. S. 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. Rep. 538; Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679; Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. 917; Louisville & N. R. Co. v. Com. 99 Ky. 132, 33 L.R.A. 209, 59 Am. St. Rep. 457, 35 S. W. 129; United States v. Capital Traction Co. 34 App. D. C. 592, 19 Ann. Cas. 68; Baltimore & O. R. Co. v. Railroad Commission, 196 Fed. 690; Hocking Valley R. Co. v. United States, 127 C. C. A. 285, 210 Fed. 735; Chicago, M. & St. P. R. Co. v. Polt, 232 U. S. 165, 58 L. ed. 554, 34 Sup. Ct. Rep. 301; International Harvester Co. v. Kentucky, 234 U. S. 216, 221, 58 L. ed. 1284, 1287, 34 Sup. Ct. Rep. 853; Collins v. Kentucky, 234 U. S. 634, 58 L. ed. 1510, 34 Sup. Ct. Rep. 924; United States v. Pennsylvania R. Co. 242 U. S. 208, 237, 238, 61 L. ed. 251, 267, 268, 37 Sup. Ct. Rep. 95. The statute in question is arbitrary class legislation, in violation of the Federal Constitution. Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; International Harvester Co. v. Missouri, 234 U. S. 199, 215, 58 L. ed. 1276, 52 L.R.A. (N.S.) 525, 34 Sup. Ct. Rep. 859; McFarland v. American Sugar Ref. Co. 241 U. S. 79, 86, 60 L. ed. 899, 904, 36 Sup. Ct. Rep. 498; Caldwell v. Texas, 137 U. S. 692, 697, 34 L. ed. 816, 818, 11 Sup. Ct. Rep. 224; Giozza v. Tiernan, 148 U. S. 657, 662, 37 L. ed. 599, 601, 13 Sup. Ct. Rep. 721; McGehee, Due Process of Law, p. 60; Willoughby, Const. pp. 873, 874; Brushaber v. Union P. R. Co. 240 U. S. 1, 60 L. ed. 493, L.R.A.1917D, 414, 36 Sup. Ct. Rep. 236, Ann. Cas. 1917B, 713: United States v. Armstrong, 265 Fed. 683. Solicitor General Frierson argued the cause and filed a brief for defendant in error. Mr. Chief Justice White delivered the opinion of the court: The plaintiffs in error, having been convicted and sentenced under an indictment containing eight counts, one of which, the sixth, was eliminated at the The indictment was demurred to because of its repugnancy to the Constitution upon these grounds: (1) Want of power in Congress because of a state of peace; (2) that the provisions in question were so vague and wanting in standard of criminality as to constitute a mere delegation by Congress of legislative power, in violation of the 5th and 6th Amendments; and, furthermore, because, by virtue of the exemptions which they contained, they denied to defendants the equal protection of the laws. The demurrer was overruled, and at the trial which followed the grounds of demurrer were again held to be without merit, and the questions which it presented were saved, and are pressed in the argument at bar as grounds for reversal. As the only difference between the charges in the L. Cohen Grocery Co. Case (255 U. S. 81, ante, 516, 14 A.L.R. 1045, 41 Sup. Ct. Rep. 298) and those in this is the fact that here, in one of the counts, there was a charge of conspiracy to exact excessive prices, it follows that the ruling in the Cohen Case is decisive here unless the provision as to conspiracy to exact excessive prices is sufficiently specific to create a standard, and to inform the [111] accused of the accusation against him, and thus make it not amenable to the ruling in the Cohen Case. But, as we are of the opinion that there is no ground for such distinction, but, on the contrary, that the charge as to conspiracy to exact excessive prices is equally as wanting in standard, and equally as vague as the provision as to unjust and unreasonable rates and charges dealt with in the Cohen Case, it follows, for reasons stated in that case, that the judg ment in this must be reversed and the case remanded, with directions to set aside the sentence and quash the indict ment. It is so ordered. Mr. Justice Pitney and Mr. Justice Brandeis concur in the result. Mr. Justice Day took no part in the consideration or decision of this case. Mr. Justice Pitney, concurring: In this case, as in No. 324, United States v. L. Cohen Grocery Co. [255 U. S. 81, ante, 516, 14 A.L.R. 1045, 41 Sup. Ct. Rep. 298], while concurring in the judgment of the court, I am unable to yield assent to the grounds upon which it is based. Most of the counts in the indictment upon which plaintiffs in error were convicted allege specific violations of that provision of the Act of October 22, 1919 (chap. 80, § 2, 41 Stat. at L. 297, 298, amending § 4 of the Act of August 10, 1917, chap. 53, 40 Stat. at L. 276, 277, Comp. Stat. § 3115ff, Fed. Stat. Anno. Supp. 1918, p. 183), which declares it unlawful "to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; " the alleged offenses having consisted in the sale of specific articles of merchandise at excessive prices. Respecting these, my views are expressed in the concurring opinion in the L. Cohen Grocery Co. Case. ! U. S. 634, 638, 58 L. ed. 1510, 1511, 34 Sup. Ct. Rep. 924. I assume (as the court has this day held) that the provision declaring it unlawful "to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" is unconstitutional for want of a definite standard; but this does not carry with it the provision now in question, since by § 22 of the Act of August 10, 1917 (40 Stat. at L. 283, chap. 53, Comp. Stat. § 3115100, Fed. Stat. Anno. Supp. 1918, p. 190), it is declared that if any clause, sentence, paragraph, or part of the act be adjudged to be invalid, this shall not affect or invalidate the remainder, but shall be confined in its operation to the clause, etc., directly involved,-a clusive declaration [113] by Congress that the various provisions of this complicated statute shall be regarded as separable. con The record shows, however, that the trial court repeatedly rejected testimony offered by defendants for the purpose of showing the market value of the goods in question at times material to the controversy, and that exceptions were duly allowed. The effect of the rulings was to deprive defendants of the benefit of this standard, by which the jury might have determined whether the prices defendants agreed to exact for the merchandise were excessive; and for this reason only I concur in the reversal of the judgment of conviction as to this count. As to the other counts, I concur in the reversal upon the ground that the statute, in declaring it unlawful "to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," does not include the exaction of an excessive price for mer [112] The remaining count alleges a conspiracy to exact, and to aid and abet in exacting, excessive prices for certain specified necessaries. I see no unconstitutional lack of definiteness in the prohibition of a conspiracy to exact excessive prices for necessaries. In the absence of a statutory definition of, or method of determining, standard prices, with which to compare the prices alleged to be excessive, the natural standard, according to which this provision of the act ought to be interpreted, is that adopted in the ordinary transactions of men, and adhered to by the common law time out of mind, the standard of fair market value: the price prevailing under current conditions of supply and demand, unin-chandise sold. fluenced by manipulation. So construed, I regard this provision as clearly constitutional, and need only refer to Nash v. United States, 229 U. S. 373, 377, 57 L. ed. 1232, 1235, 33 Sup. Ct. Rep. 780. International Harvester Co. v. Kentucky, VANDALIA RAILROAD COMPANY, PIff. 234 U. S. 216, 221-223, 58 L. ed. 1284, 1287, 1288, 34 Sup. Ct. Rep. 853, is distinguishable. In that case it was conceded, arguendo, that a standard fixed by market value under fair competition and normal market conditions was admissible; and the statute was denounced only because in truth it did not apply this standard, but called for an estimate of what prices would have been under non1. A state may not segregate a class of existent and imaginary conditions. To traffic and compel a carrier to transport it the same effect, Collins v. Kentucky, 234 in intrastate commerce at less than cost, Mr. Justice Brandeis concurs in this opinion. in Err., V. GUSTAV A. SCHNULL, William J. Griffin, and George C. Griffin, Composing the Firm of Schnull & Company, et al. (See S. C. Reporter's ed. 113-123.) Constitutional law due process of law state regulation of railway rates confiscation. [For other cases, see Pleading, I. c, in Digest Sup. Ct. 1908.] Pleading answer in rate case sufficiency of averments. 3. Averments in the answer, in a suit to compel a railway company to keep in force certain intrastate freight rates prescribed by the order of a state commission, which assert that the order of the commission will not yield revenue sufficient to reimburse the railway company for handling and carrying the classes of property specified in the order and provide a fair return on the property used in the service, and that, therefore, if the order be enforced, the railway company will be deprived of its property without due process of law, are sufficient to present the issue whether the order of the commission was invalid because it required a service that the rates did not compensate, although the answer does not allege that the rates are not compensatory of the cost of the service between the stations to which they apply, and fails to specify upon what part of the carrier's property the rates will not yield a fair return. [For other cases, see Pleading, III. h, in Digest Sup. Ct. 1908.] Note.-On state regulation, generally, of tolls, rates, and prices-see note to Winchester & L. Turnp. Road Co. v. Croxton, 33 L.R.A. 177. 4. The Federal Supreme Court, on writ of error to a state court to review a judgment which affirmed a decree below, sustaining a demurrer to the answer in a suit by a shipper against a railway company to compel it to observe freight rates established by the state railroad commission, must assume that the highest state court considered all that was pertinent to the grounds of suit and the railway company's resistance, including the contention, urged for the first time in the Federal Supreme Court, that the answer failed to state a defense because the railway company had not pursued the remedy which the state had prescribed for relief against an order of the commission. [For other cases, see Appeal and Error, VIII. d, 6, in Digest Sup. Ct. 1908.] res judicata Judgment decree in dismissal without preju rate case dice. 5. A decree of the Federal Supreme Court which, on the ground that the averments of the bill were not sustained by the proofs, reversed a decree below enjoining the enforcement of an order of a state railroad commission fixing maximum freight rates, challenged by a railway company as confiscatory, and remanded the cause with directions to dismiss the bill without prejudice, does not prevent such railway company from showing that such order is invalid when an attempt is made to enforce it at a subsequent period. [For other cases, see Judgment, III. f, in Digest Sup. Ct. 1908.] [No. 125.] L.R.A. 621; and State v. Loomis, 21 L.R.A. 789. As to how and when questions must be raised and decided in a state court in On elements entering into determina- order to make a case for a writ of error tion of reasonableness of railroad rates from the Supreme Court of the United prescribed by the state for local traffic-States-see note to Mutual L. Ins. Co. v. see notes to Pennsylvania R. Co. v. Phil- McGrew, 63 L.R.A. 33. adelphia County, 15 L.R.A. (N.S.) 108, and State ex rel. McCue v. Northern P. R. Co. 25 L.R.A.(N.S.) 1001. On valuation upon which return from intrastate railway rates prescribed by the state is to be computed-see note to Simpson v. Shepard, 57 L. ed. U. S. 1511. On effect of fact that return as a whole is reasonable on right to require railroad to transport commodity for less than reasonable compensation-see note to Northern P. R. Co. v. North Dakota, L.R.A.1917F, 1158. On reasonableness, generally, of state limitation of railroad rates-see note to Chicago, M. & St. P. R. Co. v. Tompkins, 44 L. ed. U. S. 417. As to validity of class legislation, generally-see notes to State v. Goodwill, 6 On conclusiveness of prior decisions on subsequent appeals-see note to Hastings v. Foxworthy, 34 L.R.A. 321. On effect of dismissal on second action -see note to Homer v. Brown, 14 L. ed. U. S. 970. On conclusiveness of judgments, generally-see notes to Sharon v. Terry, 1 L.R.A. 572; Bolling v. Schuyler Nat. Bank, 3 L.R.A. 142; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank of United States v. Beverley, 11 L. ed. U. S. 76; Johnson Co. v. Wharton, 38 L. ed. U. S. 429; and Southern P. R. Co. v. United States, 42 L. ed. U. S. 355. 255 U. S. 255 1920. Argued December 16 and 17, 1920. Decided | Ann. Cas. 1034; Northern P. R. Co. v. IN February 28, 1921. 'N ERROR to the Supreme Court of Re- case below, 188 Ind. 87, Mr. D. P. Williams argued the cause, ror: The state has no power to segregate a Since the carrier is entitled to receive Northern P. R. Co. v. North Dakota, While the state has a broad field for the exercise of its power in fixing intrastate rates of common carriers, it may not require the carriers to carry passengers at a rate which affords such a narrow, if any, margin over the cost of the traffic, that it is forced to carry, if not at or below cost, with merely a nominal reward. Norfolk & W. R. Co. v. Conley, 236 U. S. 605, 59 L. ed. 745, P.U.R.1915C, 293, 35 Sup. Ct. Rep. 437; Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183. It must necessarily be that the question to be determined as to the remunerative or unremunerative character of the rates must be determined as of the date when the evidence is heard and the cause submitted for decision. Wilcox v. Consolidated Gas Co. 212 U. S. 19, 52, 53 L. ed. 382, 399, 48 L.R.A. (N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 North Dakota, 216 U. S. 579, 581, 54 L. Cases (Simpson v. Shepard) 230 U. S. The answer clearly pleads an ultimate clusion. Bliss, Code Pl. §§ 140, 206, 209; Voiles v. Beard, 58 Ind. 510; Ripley County v. Hill, 115 Ind. 316, 16 N. É. 156. Mr. Karl Knox Gartner argued the cause, and, with Mr. Gibbs L. Baker, filed a brief for defendants in error: The supreme court of Indiana did not err in finding on the evidence of record that the rates were not shown to be confiscatory. Wood v. Vandalia R. Co. 231 U. S. 1, 58 L. ed. 97, 34 Sup. Ct. Rep. 7. The answer does not set out the facts The al which, if proved, would, as a legal con- Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 401, 38 L. ed. 1014, 1024, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047. Messrs. Charles W. Smith, Henry H. Hornbrook, Charles Remster, Albert P. Smith, and Paul Y. Davis also filed a brief for defendants in error: In attacking the reasonableness of a particular rate, it is not sufficient to show that such rate, applied generally, would be unremunerative. Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900. The principle involved in the ruling of the state supreme court remains unshaken by the North Dakota and West Virginia cases. St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. Rep. 484; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900; Willcox v. Consolidated Gas Co. 212 U. S. 19, 53 L. ed. 382, 48 L.R.A. (N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034. 51 Mr. Justice McKenna delivered the opinion of the court: and leave the company a fair return upon the property used in the service. Defendants in error, alleging them- (2) Nor aver that, when taken in conselves to be engaged either as wholesale nection with the other rates lawfully or retail grocers in Indianapolis, Indi- prescribed by the commission and its ana, brought this suit against plaintiff successor, the public service commisin error, herein [115] called the Rail- sion, the rates did not afford an aderoad Company, to restrain it from charg-quate and remunerative compensation ing or receiving any other compensation for the handling and transportation of than that mentioned and described in all classes of freight or passengers covan order entered by the railroad com- ered by such orders. (3) The averment mission of the state on December 14, that the rates were not compensatory 1906, and which, it is alleged, became "states no issue of fact, but the mere effective February 14, 1907, and to re- conclusion of the pleader as to a maquire the Railroad Company to receive terial fact." (4) The answer did not and transport freight at the rates pre- profess to set out the schedules of rates scribed in the order of the commission. filed with the commission or posted The first pleading of the Railroad in the offices of the Railroad Company. Company was a demurrer to the com- And further, that if the schedules of plaint. We omit it as it was overruled, rates varied from those of the commisand as the case depends upon the answer sion, they were thus far unlawful and of the Railroad Company and a demur- invalid under the laws of the state, and rer to it. It was in three paragraphs. constituted no defense to the action; In the first it denied "each and every "the mere continuance in such wrongful material allegation" of the complaint. conduct" did "not constitute a defense." In the second it alleged that the order And further, if the rates charged were of the commission would not yield "rev- the same as those prescribed by the enue sufficient to reimburse the Rail- commission, the fact could be proved road Company for handling and carry under the general denial. ing the classes of property specified in the order, and provide a fair return on the property used in the service." And that, therefore, if the order of the commission should be enforced, the Railroad Company would be deprived of its property without due process of law, in violation of the 14th Amendment In the third paragraph it alleged that within sixty days after the act of the state took effect, it filed with the commission a schedule of its rates and charges between all of the points in the state, that it had kept on file a like schedule in every station and depot and in its offices, that its charges had been in accordance with such schedules, and were legal rates for the services, and that complainants (defendants in error) had not been and were not damaged thereby. Dismissal of the suit was prayed. There was a demurrer to the second paragraph for insufficiency to constitute a defense, and, following the local practice, there was a memorandum specify ing the grounds, as follows: (1) There was no statement that the [116] order of the commission was unremunerative or confiscatory at the time it was made, or at the time suit was brought, but only at the time the answer was filed. Nor did it aver that at either of those times the rates would not pay the cost of the service to which they were applicable, The demurrer was sustained by the court and the Railroad Company ruled to answer by September 5, 1916. The company elected to stand by its answer and declined to plead further. The case, therefore, rested on the complaint and the denial of its allegations by the Railroad Company, and, upon the issue thus made, there was a trial upon which there were admitted in evidence over the objection of the Railroad Company, a The court enjoined the Railroad Company from charging, collecting, or receiving from plaintiffs and others in like situation other rates than those mentioned in the order of the commission, and enjoined the rates in excess thereof. The decree specifically mentioned the rates to be charged. It was |