Prior to the passage of the Act of Congress "to further regulate
commerce with foreign nations and among the states," approved
February 19, 1903, a District Attorney of the United States, under
the direction of the Attorney General of the United States given in
pursuance of a request made by the Interstate Commerce Commission,
was without power to commence a proceeding in equity against a
railroad corporation to restrain it from
Page 189 U. S. 275
discriminating in its rates between different localities.
Held, therefore, that there was error committed below in
refusing to sustain a demurrer of a defendant railroad company to a
bill filed by a District Attorney of the United States under the
circumstances stated.
As, however, the Act of February 19, 1903, expressly conferred
the power which did not theretofore exist, and as that act
specifically provided that the new remedies which it created should
be applicable to all causes then pending,
held that,
although the action of the lower court in refusing to sustain the
demurrer would be overruled, the case would not be finally disposed
of, but would be remanded for further proceedings in consonance
with the provisions of the Act of February 19, 1903.
The original bill of complaint in this cause was filed on behalf
of the United States against the present appellant in the Circuit
Court of the United States for the Second Division of the District
of Kansas on July 26, 1893. To the bill, a demurrer was filed and
overruled. 65 F. 903. Subsequently, exceptions were sustained to an
answer, and thereafter an amended answer and a replication were
filed. The questions now presented for decision, however, were
raised by an amended bill filed on July 19, 1897. In such amended
bill, it was alleged that the suit was brought on behalf of the
United States by the United States Attorney for the District of
Kansas, by the authority of and under the direction of the Attorney
General of the United States, and that such authority and direction
had been given in pursuance of a request of the Interstate Commerce
Commission of the United States
"that the United States Attorney for the District of Kansas be
authorized and directed to institute and prosecute all necessary
proceedings, legal or equitable, for the enforcement of the
provisions of the Interstate Commerce Law against the defendant in
relation to the matters herein complained of."
It was further averred, in substance, that the respondent was
subject to the terms and provisions of the Act to Regulate
Commerce, and operated lines of railway between the City of St.
Louis, in the State of Missouri, and the City of Omaha, in the
State of Nebraska, a distance of 501 miles, and between the City of
St. Louis and the City of Wichita, in the State of Kansas, a
distance of 458 miles. It was charged that, in the transportation
of freight between St. Louis and said Cities of Omaha and Wichita,
the service was
Page 189 U. S. 276
substantially of a like, contemporaneous character, and was made
under substantially similar circumstances and conditions, but that,
notwithstanding such fact, the rates exacted upon shipments of
freight between St. Louis and Wichita very much exceeded the rates
charged on freight shipped between St. Louis and Omaha. It was
averred that the collection of such alleged excessive freight rates
or any rate of freight on shipments between St. Louis and Wichita
in excess of the rate charged for shipments of freight of a similar
character and classification between St. Louis and Omaha, operated
an unjust and unreasonable prejudice and disadvantage against the
City of Wichita and the localities tributary thereto, and against
the shippers of freight between St. Louis and the City of Wichita.
Averring that the wrongs complained of "are remediless in the
premises under the ordinary forms and proceedings at law, and are
relievable only in a court of equity and in this form of
procedure," the ultimate relief asked was the grant of a perpetual
injunction restraining the respondent from continuing to exact a
greater rate for transportation of freight of like classification
between the City of Wichita and the City of St. Louis than was
asked between the City of St. Louis and the City of Omaha. A
demurrer was filed to the amended bill upon various grounds, one of
which denied the right of the United States to institute the
suit.
On hearing, the demurrer was overruled, exception was reserved,
and, the defendant electing to stand on its demurrer, a final
decree was entered granting a perpetual injunction as prayed, and,
on appeal, the circuit court of appeals affirmed the decree, but
filed no opinion. An appeal was thereupon allowed.
Page 189 U. S. 282
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The violation of the Act to Regulate Commerce, complained of in
the amended bill, was an asserted discrimination between localities
by a common carrier subject to the act, averred to operate an
unjust preference or advantage to one locality over another. The
right to bring the suit was expressly rested upon a request made by
the Interstate Commerce Commission to do so in order to compel
compliance with the provisions of the Act to Regulate Commerce
relating to the matters complained of in the bill.
Bearing in mind that, prior to the request of the Commission
upon which the suit was brought, no hearing was had before the
Commission concerning the matters of fact complained of, and
therefore no finding of fact whatever was made by the Commission,
and it had issued no order to the carrier to desist from any
violation of the law found to exist, after opportunity afforded to
it to defend, the question for decision is whether, under such
circumstances, the law officers of the United States at the request
of the Commission were authorized to institute this suit.
Testing this question by the law which was in force at the time
when the suit was begun and when it was decided below,
Page 189 U. S. 283
we are of the opinion that the authority to bring the suit did
not exist.
But this is not the case under the law as it now exists, since
power to prosecute a suit like the one now under consideration is
expressly conferred by an act of Congress adopted since this cause
was argued at bar -- that is, the act "to Further Regulate Commerce
with Foreign Nations and among the States," approved February 19,
1903. By section third of that act, it is provided:
"That whenever the Interstate Commerce Commission shall have
reasonable ground for belief that any common carrier is engaged in
the carriage of passengers or freight traffic between given points
at less than the published rates on file, or is committing any
discrimination forbidden by law, a petition may be presented
alleging such facts to the circuit court of the United States
sitting in equity having jurisdiction, and when the act complained
of is alleged to have been committed or is being committed in part
in more than one judicial district or state, it may be dealt with,
inquired of, tried, and determined in either such judicial district
or state, whereupon it shall be the duty of the court summarily to
inquire into the circumstances upon such notice and in such manner
as the court shall direct, and without the formal pleadings and
proceedings applicable to ordinary suits in equity. . . ."
And the same section, moreover, provides as follows:
"It shall be the duty of the several district attorneys of the
United States, whenever the Attorney General shall direct, either
of his own motion or upon the request of the Interstate Commerce
Commission, to institute and prosecute such proceedings, and the
proceedings provided by this act shall not preclude the bringing of
suit for the recovery of damages by any party injured or any other
action provided by said act approved February 4, 1887, 1 entitled
'An Act to Regulate Commerce,' and the acts amendatory
thereof."
Although by the fourth section of the act, conflicting laws are
repealed, it is provided,
"but such repeal shall not affect causes now pending, nor rights
which have already accrued, but
Page 189 U. S. 284
such causes shall be prosecuted to a conclusion and such rights
enforced in a manner heretofore provided by law [italics ours]
and as modified by the provisions of this act."
We think the purpose of the latter provision was to cause the
new remedies which the statute created to be applicable as far as
possible to pending and undetermined proceedings brought, prior to
the passage of the act, to enforce the provisions of the Act to
Regulate Commerce. In the nature of things, it cannot be
ascertained from the record whether the railroad company now exacts
the rates complained of as being discriminatory and which it was
the purpose of the suit to correct; but if it does, of course, the
power to question the legality of such rates by a suit in equity,
brought like the one now here, clearly exists. Under these
conditions, we think the ends of justice will best be served by
reversing the decrees below and remanding the cause to the circuit
court for such further proceedings as may be consistent with the
Act to Regulate Commerce as originally enacted and as subsequently
amended, especially with reference to the powers conferred and
duties imposed by the Act of Congress approved February 19, 1903,
heretofore referred to.
The decree of the circuit court of appeals is reversed, the
decree of the circuit court is also reversed, and the cause is
remanded to the circuit court for further proceedings in conformity
with this opinion.
MR. JUSTICE BROWN Concurs in the result.
MR. JUSTICE BREWER, dissenting:
I am unable to concur in either the opinion or the judgment in
this case.
I think there was no final decree in the circuit court, and that
therefore the court of appeals should have dismissed the appeal.
After the cause had been once put in issue by bill, answer, and
replication, a stipulation was filed as follows:
"Whereas, after joining issue upon the pleadings heretofore
filed in the above-entitled suit, to-wit, the original bill of
complaint, the demurrer thereto, the original answer, the
amended
Page 189 U. S. 285
answer, and the replication thereto, it has been determined by
all of the parties to, and all of the parties interested in, said
suit that it is desirable and best that the questions of law
arising upon the bill of complaint as amended and a demurrer
thereto be first finally adjudicated any put at rest by the circuit
court of appeals of the United States and the Supreme Court of the
United States;"
"Now therefore it is hereby agreed and stipulated by and between
the above-named complainants, by their solicitors, W. C. Perry and
M. Cliggitt, and the above-named defendant, by its solicitors, J.
H. Richards and C. E. Benton, that said complainants shall file an
amended bill of complaint in said suit, to which said defendant
shall file a demurrer, and that, if the court before which said
cause is now pending shall overrule said demurrer and allow the
relief prayed for in said amended bill of complaint, then said
defendant shall proceed to appeal said cause in due course, and
that the party, complainants or defendant, against which said
circuit court of appeals shall decide adversely, shall, if said
party so desires, in due course appeal said cause for final
determination to the Supreme Court of the United States."
"And it is further hereby agreed and stipulated that pending
said appeal and all the procedure incident thereto the decree and
order of said courts, whether it be said Circuit Court of the
United States for the District of Kansas, or said circuit court of
appeals, or said Supreme Court of the United States, if adverse to
said defendant, allowing and decreeing the reliefs and remedies
prayed for in said amended bill of complaint, shall be suspended
and not enforced against said defendant the Missouri Pacific
Railway Company, and when a decision has been rendered in said suit
by said circuit court of appeals, or by the Supreme Court of the
United States, if the cause is taken to that court, then it is
further hereby agreed and stipulated that the decision and judgment
of either or both of said courts, if adverse to said defendant the
Missouri Pacific Railway Company, shall be vacated, set aside, and
annulled, and shall not be regarded as of any force or effect
against said defendant the Missouri Pacific Railway Company except
so far
Page 189 U. S. 286
as holding the amended bill to be sufficient, but that said the
Missouri Pacific Railway Company shall have the right and shall be
permitted to file an answer in said suit, to which said
complainants the United States of America shall in due course file
a replication thereto, and the issues shall be duly joined and the
cause proceed to hearing and determination upon its merits in due
course, the intention of this agreement being that the proceedings
had upon the demurrer to said amended bill of complaint and the
proposed appeal of said suit to a higher court shall in no manner
prejudice the right of said defendant to a trial of said suit upon
its merits."
"Dated this 16th day of July, 1897."
"W. C. Perry,"
"Morris C. Cliggitt"
"
Solicitors for Complainant"
On an application made by the complainant, supported by the
affidavit of its solicitor, stating that the defendant consented
thereto, an order was entered giving the complainant leave to file
an amended bill, and also to the defendant, with consent of the
complainant, like leave to file a demurrer. An amended bill of
complaint and a demurrer thereto were filed, the demurrer was
sustained, and, the defendant electing to stand on its demurrer, a
decree was entered in behalf of the complainant. A transcript
before us shows that all this, from the filing of the stipulation
to the entering of the decree, took place on the same day, to-wit,
July 19. Obviously all subsequently thereto was done in pursuance
of the stipulation. That the stipulation was not signed by the
solicitors for the defendant is immaterial, as it was for its
benefit alone. In the brief for the government in this Court, after
a statement of preliminary proceedings, it is said:
"It being manifest that the great volume of testimony would have
to be taken, and as the defendant had raised the serious question
whether the United States could maintain the suit, or had the
right, in its own name, and without a preliminary hearing before
the Interstate Commerce Commission, to enforce, by injunction, the
provisions of the Interstate Commerce
Page 189 U. S. 287
Act which forbids discrimination, it was thought best to finally
settle that question. Therefore, the stipulation on pages 53, 54
was entered into. That stipulation provides for the filing of an
amended bill, the leveling of a demurrer thereat, and an appeal or
appeals to the United States circuit court of appeals and to this
Court. The amended bill was filed (pp. 55-60); the defendant
demurred (p. 61); the court overruled the demurrer, and the
defendant, electing to stand on its demurrer, final decree was
entered in favor of the complainant (pp. 62-73)."
And in the brief for the defendant and appellant, it is in like
manner said:
"After all this, the parties made the stipulation found on page
53, to the effect that"
"it is desirable and best that the questions of law arising upon
the bill of complaint as amended and a demurrer thereto be first,
finally adjudicated and put at rest by the circuit court of appeals
of the United States and the Supreme Court of the United
States,"
"which it was stipulated might be done without prejudice to the
right of the defendant if it were held that the bill was
maintainable to a trial of the suit upon its merits."
"The amended bill was accordingly filed (Record, pp. 55-60);
demurrer thereto was filed (p. 61), and a decree rendered in favor
of the complainant."
Now although it may be that the stipulation was not brought into
the record by means of a bill of exceptions, and although it does
not affirmatively appear that the trial court was made aware of
this stipulation or acted in pursuance thereof, yet as the railway
company brings here a record containing the stipulation, and as it
is admitted by counsel for both parties that it was entered into,
and that subsequent proceedings were had in pursuance of its
agreements, I think notice should be taken of it by this Court.
Indeed, if nothing appeared of record, and counsel should admit
before us that a stipulation had been entered into between the
parties in respect to the finality of the decree, ought we not to
act on such admission? Can parties stipulate that questions of law
shall alone be presented to this Court, and that, if our decision
be one way the case shall thereafter
Page 189 U. S. 288
proceed in the trial court for an inquiry and decree upon the
facts? I know that the statutes of some states permit the taking of
a case to the appellate court upon a ruling made on a demurrer, but
we have always held that the decree or judgment must be final
before we are called upon to review it. When a case has once been
decided by this Court, no further proceedings can be had in the
trial court except upon our direction, whereas here the parties
have stipulated that, without such direction, a new trial may be
had. In other words, our decision is not to be final, although we
affirm the decree. It seems to me that the decree of the court of
appeals should be reversed and the case remanded to that court with
directions to dismiss the appeal.
Upon the merits also I dissent. The bill is an original bill in
behalf of the United States, filed under the direction of the
Attorney General, and the fact that the Interstate Commerce
Commission requested him to cause this suit to be instituted in no
manner adds to or affects the question of the government's right to
maintain it. The Commission was not asking the Department of
Justice to enforce any of its orders, in which case, as we held in
East Tennessee, Virginia & Georgia Railway Company v.
Interstate Commerce Commission, 181 U. S.
1, it would become our duty to examine the proceedings
had before the Commission. This is an independent suit instituted
by the government, not to carry into effect any orders of the
Commission, but to enforce a duty cast upon carriers of interstate
commerce, and the right of the government to maintain such a suit
does not depend upon the request of any individual or board. The
twenty-second section of the Act to Regulate Commerce provides
that
"nothing in this act contained shall in any way abridge or alter
the remedies now existing at common law or by statute, but the
provisions of the act are in addition to such remedies."
Every remedy, therefore, that the government or any individual
had to compel the performance by carriers of interstate commerce of
their legal obligations remains unaffected by that act.
We held in
In re Debs, 158 U.
S. 564, that the United States had a right, even in the
absence of a statute specially authorizing
Page 189 U. S. 289
such action, to come into the federal courts by an original bill
to restrain parties from obstructing and interfering with
interstate commerce. It seems to me singular that the government
can maintain a bill to prevent others from obstructing and
interfering with interstate commerce, and yet cannot maintain a
bill to compel carriers to fully discharge their duties in respect
to such commerce. Can it be that the government has power to
protect the carriers of interstate commerce, and not power to
compel them to discharge their duties?
It is said that this is a suit to compel the carrier to refrain
from discriminating between places; that there was no common law
duty to abstain from such discrimination; that it is forbidden only
by statute. But confessedly it was a common law duty of a carrier
to make no unreasonable charges. It is distinctly averred in the
amended bill (Rec. 57, 59):
"And your orators further aver and show unto your honors that
said defendant has established, and for a long time has maintained,
and still maintains, in force on the line of its railroad between
the City of St. Louis and the City of Wichita rates, rules, and
regulations governing all freight traffic between said cities over
the said railroad which are unjust and unreasonable in this, that
said charges for services rendered by said company in the
transportation of property and freight of each and every
classification between the said City of St. Louis and the City of
Wichita is excessive, exorbitant, unreasonable, and unjust to the
extent and amount that such rates and charges exceed the rates and
charges on the line of said defendant's railroad between the cities
of St. Louis and Omaha, all of which is to the great detriment and
hindrance of commerce and trade between the said cities of St.
Louis and Wichita, and between the localities to which said cities
contribute as a supply point, and to the irreparable injury of the
public and to the people of the United States."
"
* * * *"
"And your orators further aver and show unto your honors that
any schedule rates and freight charges for the various shipments
and classifications, hereinbefore set forth between the said cities
of St. Louis and Wichita, that are in excess of the
Page 189 U. S. 290
tariff schedules and freight charges for shipments of the like
kind and class of property between the cities of St. Louis and
Omaha, are unreasonable, excessive, exorbitant, and unjust in and
of themselves, and constitute an unreasonable discrimination
against Wichita and the localities tributary thereto and the people
living therein and against persons shipping freight between the
cities of Wichita and St. Louis, and subject such persons and
localities to an unjust and unreasonable prejudice and
disadvantage."
The truth of these allegations is admitted by the demurrer. The
charges for shipments for freight between St. Louis and Wichita are
"unreasonable, excessive, exorbitant, and unjust in and of
themselves." Surely here is a disregard of what was, at common law,
a plain and recognized duty of the carrier.
Further, while at common law a mere difference in the prices
charged by the carrier to two shippers respectively might not have
been forbidden, yet it may well be doubted whether, if the
difference was so great as to amount to an unreasonable
discrimination, the rule would not have been otherwise. In
Interstate Commerce Commission v. Baltimore & Ohio R.
Co., 145 U. S. 263,
145 U. S. 275,
we said:
"Prior to the enactment of the Act of February 4, 1887, to
Regulate Commerce, commonly known as the Interstate Commerce Act,
24 Stat. 379, c. 104, railway traffic in this country was regulated
by the principles of the common law applicable to common carriers,
which demanded little more than that they should carry for all
persons who applied, in the order in which the goods were delivered
at the particular station, and that their charges for
transportation should be reasonable. It was even doubted whether
they were bound to make the same charge to all persons for the same
service.
Fitchburg R. Co. v. Gage, 12 Gray, 393;
Baxendale v. Eastern Counties Railway Co., 4 C.B. (N.S.)
63;
Great Western Ry. Co. v. Sutton, L.R. 4 H.L. 226, 237;
Ex Parte Benson, 18 S.C. 38;
Johnson v. Pensacola Ry.
Co., 16 Fla. 623, though the weight of authority in this
country was in favor of an equality of charge to all persons for
similar service."
But beyond this, the Interstate Commerce Act itself forbids
Page 189 U. S. 291
unjust discrimination, and such discrimination is also clearly
and fully set forth in the bill. Can it be that the government is
powerless to compel the carriers to discharge their statutory
duties? It is nowhere said in the Interstate Commerce Act that this
duty or any other duty prescribed by statute is to be enforced only
through the action of the Commission. On the contrary, as we have
seen, it expressly provides that all other remedies are left
unaffected by the act, and a duty cast by statute equally with a
common law duty may by the very language of the act be enforced in
any manner known to the law.
Further, the Act to Regulate Commerce, as originally passed, in
section 16, required the district attorneys of the United States,
under the direction of the Attorney General, to prosecute suits to
compel carriers to obey the orders of the Commission. If all
remedies were to be secured only through action in the first
instance by the commission, that provision was all that was
necessary, but in the amendatory act of 1889, 25 Stat. 855, there
was added in section 12 this clause:
"The Commission is hereby authorized and required to execute and
enforce the provisions of this act, and, upon the request of the
Commission, it shall be the duty of any district attorney of the
United States to whom the Commission may apply to institute in the
proper court and to prosecute, under the direction of the Attorney
General of the United States, all necessary proceedings for the
enforcement of the provisions of this act and for the punishment of
all violations thereof."
Clearly that contemplates just such a case as the present, and
when, in the judgment of the Commission, it is better that the
proceedings should be had primarily in the courts, it may call upon
the legal officers of the United States to bring the proper
actions.
For these reasons, I am compelled to dissent, and I am
authorized to say that MR. JUSTICE HARLAN concurs in this
opinion.