Argument for Appellants.

206 U. S.

of law and fact, in one of four ways: Either party may object to the admission or exclusion of evidence and require the trial court to rule on the objection. Or either party may present to the trial court his propositions of law and require the court to rule on them. Or either party may ask for definite ruling by the court as to whether all the evidence is sufficient in law to warrant a finding in his favor. Or either party may get the trial court to make a special finding, which raises the legal propositions. Norris v. Jackson, 9 Wall. 128, 129; Miller v. Life Ins. Co., 12 Wall. 297; Martinton v. Fairbanks, 112 U. S. 672, 673.

When the verdict of a jury is special, or the finding of facts by a court is special, such a verdict, or finding, "raises the legal propositions" involved in a mixed question of law and fact, and the power of review by this court extends "to the determination of the sufficiency of the facts found to support the judgment." Norris v. Jackson, 9 Wall. 128, 129; Miller v. Life Ins. Co., 12 Wall. 297; Martinton v. Fairbanks, 112 U. S. 672, 673.

Whether the verdict of a jury or the finding of a court be general or special, either party can compel the separation of matter of law from matter of fact involved in a mixed question of law and fact, and demand the judgment of the court upon so much of the question as consists of matter of law. But according to the contention of appellee, the finding of the Commission on the mixed question of law and fact as to the reasonableness of a rate is conclusive on the matter of law involved in the question, and neither this nor any other court can review the judgment of the Commission on such matter of law. To paraphrase the language of this court in C. M. &c. Ry. v. Tompkins, 176 U. S. 172, when we recall that, as estimated, over ten thousand millions of dollars are invested in railroad property, the proposition that such a vast amount of property is beyond the protecting principle which insures to everyone else the judgment of the courts upon all questions of law, is one which cannot be tolerated.

206 U.S.

Argument for Appellees.

Mr. William Hepburn Russell and Mr. William A. Wimbish, with whom Mr. W. D. Ellis was on the brief, for appellees: The Interstate Commerce Commission had power to adjudge the advanced rate unreasonable and the Circuit Court had jurisdiction to enforce the order of the Commission by injunction and a decree for an accounting. Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, N. Y. N. H. & Hartford R. R. Co. v. Interstate Com. Com., 200 U. S. 361.

There was no attempt in the case at bar to fix a rate. But the Commission decided that the advanced rate was unreasonable and ordered it discontinued, and this decision was enforced by the decree of the Circuit Court. Hence the procedure in this case is in full accord with the decisions of this court. Texas & Pac. Ry. Co. v. Abilene Oil Co., supra; C. N. O. & T. P. Ry. Co. v. Interstate Com. Com., 162 U. S. 184, 196; Interstate Com. Com. v. C. N. O. & T. P. Ry. Co., 167 U. S. 479, 499, 505; Beale & Wyman R. R. Rate Regulation, § 1046.

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On such state of the record, that equity had jurisdiction to order the reference, take an account and decree restitution, is clear upon settled principles of equity jurisdiction. Pomeroy's Eq. Jurisp. (3d ed.), § 181; Peck v. School Dist., 21 Wisconsin, 516, 523; United States v. Union Pacific Ry. Co., 160 U. S. 1, 52.

Jurisdiction in equity being acquired for the purposes of an injunction to prevent the enforcement of the advanced rates, the court, in order to avoid a multiplicity of suits, can proceed to a decree that will settle all matters in dispute between the complainants and the railroad companies. United States v. Union Pacific Ry. Co., 160 U. S. 1, 50, 52; Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 460. Nor is there an adequate remedy at law. Van Patten v. Chicago, M. & St. P. Ry. Co., 81 Fed. Rep. 545, 551.

Even if the Circuit Court was without primary jurisdiction in this case to enjoin the enforcement of the advanced rates and decree reparation through an accounting, it acquired secondary jurisdiction, justifying the final decree herein under

the petition based on the order of the Interstate Commerce Commission and the stipulations of the defendants as to what decree might be entered and what reparation would be made. Both the Interstate Commerce Commission and the Circuit Court had power to determine that the advance in rates was unreasonable, and the court had jurisdiction to prevent the enforcement of the rate by injunction, both before and after the order of the Commission directing the discontinuance of the rate as unreasonable. Act to Regulate Commerce, §§ 1, 16, 22; In re Lennon, 166 U. S. 548.

The courts have power to pass on the reasonableness or unreasonableness of railroad freight rates. Covington &c. Turnpike Co. v. Sandford, 164 U. S. 578, 579.

"A legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates." Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339, 344; Stone v. Farmers' Loan & T. Co., 116 U. S. 307; Chicago, Mil. &c. Ry. Co. v. Minnesota, 134 U. S. 418.

The rates in force at the time of the advance complained of, having been long in effect and remunerative to the carrier, constituted fair compensation for the service performed and therefore the advance was unreasonable. Beale & Wyman, Railroad Rate Regulation, §§ 399, 506; Noyes on Am. Railroad Rates, 211, 213.

The reasonableness of the rate in a given case depends on the facts, and the function of the Commission is to consider these facts and give them their proper weight. C. N. O. & T. P. Ry. Co. v. Int. Com. Com., 162 U. S. 184, 196. And see E. T. V. & G. Ry. Co. v. Int. Com. Com., 181 U. S. 1; L. & N. R. Co. v. Behlman, 175 U. S. 648.

The advance in rate being the result of a combination among the defendant carriers in restraint of trade and not the product of free competition but the consequence of a suppression of competition, it is illegal and unreasonable and its enforcement was properly enjoined.

Competition is a fact to be considered in determining whether

rates are reasonable. Int. Com. Com. v. Alabama Midland Ry. Co., 168 U. S. 144, 164; Int. Com. Com. v. B. & O. R. Co., 145 U. S. 263.

Hence the absence of competition, or agreements that suppress and prevent competition, are material and may be considered by the Commission. United States v. Freight Assn., 166 U. S. 290, 341; United States v. Joint Traffic Assn., 171 U. S. 505, 565, 575.

The necessary effect of the agreement is to restrain trade or commerce no matter what the intent was on the part of those who signed it. United States v. Freight Assn., 166 U. S. 290, 342. And it is not necessary to show that the agreement was entered into for the purpose of restraining trade or commerce if such restraint is its necessary effect. United States v. Trans-Missouri Freight Assn., 166 U. S. 291, 312.

Appellants are estopped from questioning the jurisdiction of the court below by the stipulations and agreements into which they entered, and have waived any right to demand a trial by jury as to their obligation to refund and the amount to be refunded by them to complainants and all other shippers of lumber at the advanced rate which has been adjudged unreasonable. Halliday v. Stuart, 151 U. S. 229; Perego v. Dodge, 163 U. S. 160, 166; Bank v. Okely, 4 Wheat. 235, 243.

Parties by their conduct or their silence may waive a right to trial by jury. Baird v. The Mayor, 74 N. Y. 382, 386; The Brooklyn &c. R. Co. v. R. Co., 105 App. Div. (N. Y.) 88; Book v. Justin Min. Co., 58 Fed. Rep. 827.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Appeals affirming a decree of the Circuit Court for the Southern District of Georgia, adjudging an advance in freight rates made by appellants to be effective June 22, 1903, upon yellow pine lumber of two cents per one hundred pounds over rates previously in force, to be unjust and unreasonable, and enjoining VOL. COVI-28

the appellants, jointly and severally, from maintaining the same, "in so far as they apply to shipments of lumber from points in Georgia to Ohio River destinations and points basing thereon."

The original bill was filed April 14, 1903, by appellees to enjoin such advance in rates and a temporary restraining order was issued and notice to appellants to show cause why an injunction should not issue. On May 8 the bill was amended. On May 12 the appellants filed a demurrer to the amended bill for want of jurisdiction in the court as a court of equity and as a court of the United States, and the Southeastern Freight Association filed an answer. Appellants also filed a response to the order to show cause. On May 16 the demurrer was overruled. The temporary injunction was, however, dissolved, but the following condition was expressed:

"In case the respondents shall enforce the rates complained of, and the complainants shall make proper application to the Interstate Commerce Commission to redress their alleged grievances, the court will entertain a renewed application on the record as made, and such appropriate additions thereto as may be proposed by either party, enjoining the enforcement of such rates, pending the investigation of the Commission, unless otherwise dissolved, and on presentation to the court of the report of the Commission such other action be taken as will be conformable to law and the principles of equity." 123 Fed. Rep. 789.

The appellants took the steps prescribed by the Interstate Commerce Act to put the advanced rates into effect, and the appellees, on June 23, 1903, filed a petition before the Interstate Commerce Commission, charging that "in promulgating said tariff of increased rates and maintaining and enforcing the same" the appellants were acting "in concert with each other and with other lumber carrying roads," who with them were "co-members of the Southeastern Freight Association." The petition also charged that the advance was "arbitrary, unreasonable and unjust," and prayed for an order commanding