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testify before it touching matters pertinent to any authorized inquiry an offence punishable by the courts, subject, however, to the privilege of witnesses to make no disclosures which might tend to criminate them, or subject them to penalties or forfeitures. A prosecution or an action for violation of such a statute would clearly be an original suit or controversy between parties within the meaning of the constitution, and not a mere application, like the present one, for the exercise of the judicial power in aid of a non-judicial body. So much of section 12 as authorizes or requires the courts to use their process in aid of inquiries before the Interstate Commerce Commission is unconstitutional and void, and the application is dismissed.

Constitutionality of Section 12 of the Interstate Commerce Act.--The above decision of Judge GRESHAM, holding that congress has no constitutional power to require the Federal courts to aid the Interstate Commerce Commission in obtaining evidence to support charges made by that body, has created wide comment. It is the first time the question has been directly raised and passed upon, and the decision of the learned judge has been both commended and criticised. It is not apparent from the opinions of other circuit and district judges who have decided cases arising under the act to regulate commerce that they would take a similar view of this part of section 12, had its constitutionality been questioned. The question must therefore remain in considerable doubt until the supreme court has passed upon it.

See, upon this subject, In re Pacific Railroad Commissioners, 31 Am. & Eng. R. Cas. 598.

NEW YORK AND NORTHERN R. R. Co.

V.

NEW YORK AND NEW ENGLAND R. R. Co.

(U. S. Circuit Court, S. D. New York, May 31, 1892, 50 Fed. Rep. 867.)

Interstate Commerce Act-Discrimination in Rates and Facilities-Order of Commission.-Upon the petition of the New York & Northern Railway Company, filed in this court under the sixteenth section of the act to regulate commerce, for the enforcement of an order of the Interstate Commerce Commission requiring the defendant, under the third section of said act, to cease and desist from discriminating in facilities and rates between petitioner and another connecting line,-held, (a) The motion to dismiss must be determined upon the assumption that the averments of the petition and the findings of fact of the commission (made by the statute prima facie evidence) correctly set forth the matters therein stated. (b) Neither the case before the commission, nor its decision therein, was confined to the question of discrimination in rates and charges, and the re

quirements in the order to cease and desist from refusing to interchange traffic was proper.

Same-Interchange of Traffic-Enforcing Order of Commission.-The respondent has restored the joint through tariff and desisted from refusing to accept freight on through bills, but has so arranged the running of its trains that the facilities for interchange, forwarding, and delivering are (as is alleged) substantially no better than before, and not equal to those afforded to the competing lines, and respondent contends that because no question of the hours of running trains was presented to the commission its acts in that respect may not be shown before this court acting summarily under section 16 of said act. To refuse altogether to receive traffic from one connecting line; to receive it only under arrangements which impose such obligations upon the shippers as to transfer and rebilling as would make the transaction of the business impracticable in competition with a more favored line; to receive it without reshipment and transfer indeed, but to systematically neglect to forward it; to receive and forward it, but to so arrange the hours or manner of delivery as to deprive it of facilities equal to those afforded to traffic coming from the competitor; these and a great variety of other devices which might be suggested, while differing some in detail are in substance practically the same. To require petitioner to begin a new proceeding each time the ingenuity of the offending carrier may devise some slight variation of the methods by the means of which its violation of the statute is persisted in, would be to fritter away the system of procedure provided in the statute to secure obedience to its requirements. The order of the commission was no broader than the petition and proofs before them warranted; and this court may properly investigate the charge that respondent is disobeying the requirements of such order by acts and omissions in substance the same as those considered by the commission, directed to the same end and accomplishing precisely the same result.

Facilities to Connecting Lines-Findings of Commission.-There is nothing in the act which makes mere distance between connecting points, whether a furlong, a mile, or ten or twenty, controlling of the question of discrimination in facilities to connecting lines. In the face of the finding of the commission, that "the physical conditions for interchange of traffic with both the connecting lines are suitable, adequate, and substantially equal," the requirements of the second clause of the third section seem to be plainly applicable. Until such finding is questioned and the record in this court completed, further discussion of this point is un

necessary.

Same-Effect of Contract with Connecting Line. The only link between respondent and its favored connecting line is such community of interest as springs from the existence of the contract for the interchange of traffic. If it be that such a contract makes each line a mere continuation or extension of the other, it is hard to conceive how a case of refusing equal facilities could ever be made out. The very granting of superior facilities to one line would make it a part of the one that favored it, and no longer a connecting road, when compared with its unsuccessful rival.

Same-Combined Continuous Lines.—The “arrangements" between the respondent, the Housatonic road, and the New England Terminal Company, are such that they form a combination of carriers, within the meaning and effect of section 1, so as to make them a legal unit within the provisions of the act, and, as such, jointly responsible for affording equal facilities in proper cases to competing lines connecting with such combined continuous Îines. But, besides the duty which any one of these corporations may owe, jointly with the others, it is not relieved from its obligations under the act to all roads which connect directly with itself.

APPLICATION to enforce an order of the Interstate Commerce

Commission.

Sherman Evarts, for complainant.

Wager Swayne, for defendant.

Case stated.

LACOMBE, Circuit Judge. This is an application on petition of the New York & Northern Railway Company, as a person interested, to enforce obedience to an order or requirement made May 6, 1891, by the Interstate Commerce Commission, and is presented under section 16, of the interstate commerce act, as amended by chapter 382 of the Laws of 1889. Upon the return day of the order to show cause, heretofore granted, defendant filed its answer, and before any proofs were taken moved to dismiss the petition. Such a motion must be determined upon the assumption that the averments of the petition and the findings of fact of the commission (made by the statute prima facie evidence) correctly set forth the matters therein stated. It seems undesirable at this stage of the case to summarize generally the facts thus assumed to be true, as subsequent evidence taken in this court may modify such assumptions.

The section invoked by the petitioner upon its application to the commission reads as follows:

"SECTION 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic in any respect whatsoever or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

"Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and for the receiving, forwarding, and delivery of passengers and property to and from their several lines, and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines.

"But this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business."

* * *

Section 13 provides that any person or corporation complaining of anything done or omitted to be done by any common carrier subject to the provisions of this act, in contravention of the provisions thereof, may apply to the

commission by petition, which shall briefly state the facts, Under that section this petitioner applied to the commission. and, after taking proofs, obtained the order or requirement it. is now seeking to enforce.

The respondent contends that the second clause of section 3, above quoted, enacts two different and independent subjects as grounds of complaint against carriers, the one being the denying the reasonable, proper, and equal facilities for the physical interchange and prosocution of traffic between a company's line and connecting lines, the other being discrimination in respect to rates and charges between such connecting lines. A similar construction is adopted in the opinion of the commission, which holds that the provision "embraces the imposition of an affirmative duty to interchange and forward traffic between connecting lines and a prohibition that there shall be no discrimination in rates and charges between such connecting lines." Respondent further contends that the charge and allegations before the commission dealt only with one of these subjects, and that therefore any order of the commission requiring the respondent to cease and desist from any violation which is embraced within the other subject. would not be a "lawful" order, and apparently also insists that the judgment of the commission was in fact confined to discrimination in rates and charges.

Case not con

rates.

An examination of the record, however, does not support this contention. The petition which was presented to the Commission charged that the respondent was depriving petitioner of reasonable, proper, and equal faciliflued to discrim-ties (as compared with those afforded to the ination in Housatonic Railroad, a competing connecting line) for the interchange of traffic between the petitioner and complainant and for the receiving, forwarding, and delivery of property to and from the line of said petitioner and the line of the respondent. In support of such charge it averred not only a discrimination in rates and the withdrawal of a joint through tariff, which had been theretofore in force and operative between the parties, but also that respond ent had threatened to close the through route via petitioner's line altogether and had refused to accept freight at all on through bills, thus compelling shippers to attend at Brewsters, the point of connection, to transfer and rebill their goods. This was plainly a charge not only of a discrimination in rates, but of a failure to discharge the affirmative duty, to interchange and forward traffic with the equal facilities required by the first subdivision of the second clause of the third section above quoted. The petition prayed for an order directing the respondent to grant equal facilities for the inter

change of traffic and for the receiving, forwarding, and delivering of property to and from the line of petitioner and that of respondent as were here afforded to the Housatonic Railroad. The commission found that there had been a refusal to afford facilities for the interchange of interstate traffic and the receiving, forwarding, and delivering of the same, reasonable, proper, and equal to the facilities afforded to the other connecting road; that the respondent was "guilty of the discrimination charged in the complaint, in its rates and charges for the interchange of interstate traffic, and in the arrangements it makes for through lines for the freight traffic."

And the order or requirement of the commission commanded the respondent to desist from discriminating against petitioner, (1) by refusing to make such arrangements with or afford such facilities to the petitioner for the interchange at the point of connection of interstate traffic, and for the receiving, forwarding, and delivering of such traffic as are reasonable and proper, and equal to arrangements made or facilities afforded by it for interchange between respondent's line and the other connecting roads, and also (2) from discriminating in respect to rates and charges, etc.

The decision of the commission manifestly disposed of both subjects of complaint, and it seems quite plain from the record that both subjects were before them.

change of traf

Since the service of the order the respondent has restored the joint through tariff. It has also desisted from refusing to accept freight on through bills, but has so arranged Connecting the running of its trains that the facilities for inter- lines-Interchange, forwarding, and delivering are (as is alleged) fle-Equal fasubstantially no better than before, and not cilities. equal to those afforded to the competing line. The respondent contends, however, that such acts may not be shown before this Court, acting summarily under section 16 in review and enforcement of the order of the commission, because no question of the hours of running trains was presented to the commission. It is manifest that equal facilities may be refused quite as much in one way as in the other, and both grounds of complaint relate to the subject-matter of physical interchange and prosecution of traffic instead of to a discrimination in rates. To refuse altogether to receive traffic from one connecting line; to receive it only under arrangements which impose such obligations upon the shippers as to transfer and rebilling as would make the transaction of the business impracticable in competition with a more favored line; to receive it without reshipment and transfer indeed, but to systematically neglect to forward it; to receive and forward it, but to so arrange the hours or manner of its

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