A judgment or decree which determines the particular cause is
final in the sense of § 237, Jud.Code.
A proceeding in mandamus is an independent adversary suit, and a
judgment awarding or refusing the writ is final within the meaning
of 237, Jud.Code.
The granting of a writ of mandamus to maintain or restore the
by requiring a railroad company to comply with
an order of the state Railroad Commission of Michigan which, under
the statute of the state was prima facie
the determination of a suit in equity brought by the railroad
company to enjoin enforcement of the order, held,
of the circumstances and requirement that a bond of indemnity be
given, not to deprive the railroad company of due process of law
guaranteed by the Fourteenth Amendment.
178 Mich. 230 affirmed.
The facts, which involve the constitutionality under the due
process provision of the Fourteenth Amendment of an order granting
a writ of mandamus enforcing obedience to an order of the Michigan
Railroad Commission directing a railroad company to relay tracks
removed by it from a logging spur, are stated in the opinion.
Page 240 U. S. 566
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a petition to the Supreme Court of Michigan by the
Railroad Commission of that state for a writ of mandamus to enforce
obedience to an order of the Commission, directing the Detroit
& Mackinac Railway Company to relay one-half mile of rails
removed by it from a five-mile logging spur, called Tubbs Branch,
and to resume service thereon. The railroad company answered, and,
after a hearing, the court granted the writ, subject to a condition
presently to be stated. 178 Mich. 230.
The Commission's action was invoked by a complaint presented by
the Fletcher Paper Company of which the railway company had due
notice. Before the Commission, the railway company insisted that
the logging spur was not a part of its railroad system, and that
its use had been only that of a private convenience, but the
Commission concluded from the pleadings and evidence that the fact
was otherwise, and made the order with the purpose of correcting
what it deemed an unreasonable and unjust discrimination and an
inadequate service within the meaning of the local statute, 3
Howell's Ann.Stat., 2nd ed., §§ 6526, 6537, 6545. Thereupon the
railway company filed a bill in equity in the Circuit Court of
Wayne County praying that the order be vacated and asking that its
enforcement be temporarily and permanently enjoined. In the bill,
the railway company repeated its insistence
Page 240 U. S. 567
that the logging spur was not a part of its railroad system, but
only a private convenience, and charged that an adequate hearing
was denied by the Commission in that the issues were determined
upon the evidence presented by the paper company, and in
contravention of an understanding, assented to by the Commission,
that if an objection of the railway company in the nature of a plea
of res judicata
should be overruled, as it afterwards was,
the company would be afforded a further opportunity to present
evidence in opposition to that of the paper company. The bill
invoked the due process of law clause of the Fourteenth Amendment.
Apparently the prayer for a temporary injunction was not insisted
It was during the pendency of that suit that the mandamus
proceeding was begun and carried to judgment in the supreme court.
In this proceeding, the railway company again asserted that the
logging spur was only a private convenience, and not a part of the
railroad system used by it as a common carrier, and that the
Commission had denied it an adequate opportunity to be heard upon
that question, and further insisted that to require it to give
effect to the Commission's order in advance of a hearing and
decision upon that question in the suit in equity would deprive it
of the due process of law guaranteed by the Fourteenth
In the course of its opinion, the supreme court said, pp.
"We are not called upon to consider and determine the merits of
the controversy between the Fletcher Paper Company and respondent
railway company upon the order of August 3, 1911. Such questions
are involved in the case now pending before the Circuit Court for
the County of Wayne, in chancery, wherein the respondent railway
company seeks to review, annul, and set aside said order. The sole
question before this court in this proceeding is whether the order
of the Railroad Commission shall
Page 240 U. S. 568
take effect and become operative pending the hearing and
determination of that chancery cause. . . ."
"Relative to an order made by this Commission, this court has
" . . . Its orders stand until modified or set aside by it or by
the courts. . . . Presumptively, the findings and orders of the
Commission are right. If attacked, the complainant has the burden
of showing 'by clear and satisfactory evidence' that the order of
the Commission complained of is unlawful or unreasonable, as the
case may be."
"Detroit &c. R. Co. v. Michigan R. Commission,
Mich. 335, 346."
"* * * *"
"The petitioner in the instant case before the Railroad
Commission offered, and upon this hearing before this Court keeps
such offer good, to indemnify respondent for all costs and expenses
incurred in relaying the track taken up by it, with interest, and
to pay all rates that may be fixed or charged by the railway
company and approved by the Commission, in case this order is
vacated and set aside by the Wayne Circuit Court in Chancery, or by
this court, if an appeal is taken. This indemnity would save
respondent harmless from any possible loss in complying with the
order, and save petitioner from claimed irreparable damage to
21,000,000 feet of forest products during the probable term of
years occupied in this litigation."
"It has been held by this court that an order of the Railroad
Commission is enforceable by mandamus, although a proceeding in
equity to review it is pending. Michigan Railroad Com. v.
159 Mich. 580."
"This order is prima facie
not unreasonable. There is
no question but that the legislative intent, clearly expressed in
this statute, was that the orders of the Commission should be and
continue in force during all subsequent proceedings until modified
or set aside by the Commission or by the courts."
"The statute provides a remedy by mandamus to enforce
Page 240 U. S. 569
the orders of the Commission, and this Court has granted such
writs. Upon the facts presented, the writ should be granted in this
"Upon furnishing bond by the petitioner before the Railroad
Commission, the Fletcher Paper Company, in the penal sum of $10,000
to indemnify respondent in manner and form as herein stated, with
two sureties, to be agreed upon between the parties, or approved by
the clerk of this Court, a writ of mandamus will issue as
And in the course of a separate opinion, one of the Justices
said, p. 248:
"So long as the respondent was operating the spur, accepting
thereon and transporting over it freight for those who offered it,
and so long as it published tariffs affecting such service, it was
undoubtedly, as to such operations, within the scope of the act in
question, and this we held in Detroit &c. R. Co. v.
171 Mich. 335. But whether the Michigan
Railroad Commission has power under the statute to require
respondent to continue to operate such a spur, or branch, against
its will, and in face of its efforts to abandon it, is quite a
different question. It is a question which we assume is presented
in the pending chancery proceeding to set aside the order which in
this proceeding is sought to be enforced. It need not be answered
The local statute, 3 Howell's Ann.Stat., 2nd ed., provides: (§
6545) Orders of the Commission shall take effect and become
operative twenty days after service; (§ 6547) the Commission may,
upon application, rescind or alter any order; (§ 6548) all
regulations, practices, and services prescribed by the Commission
shall be in force and be prima facie
lawful and reasonable
until finally held otherwise in a suit brought for the purpose
under § 6549, or until rescinded or altered by the Commission under
§ 6547; (§ 6549) a carrier may, within thirty days after notice of
an order, commence a suit in equity to vacate
Page 240 U. S. 570
it, the burden being upon the carrier to show that the order is
unlawful or unreasonable. In such a suit, original evidence may be
introduced in addition to the transcript of that presented before
the Commission, and if evidence be introduced by the carrier which
is different from or in addition to that presented before the
Commission, the court, unless the parties stipulate to the
contrary, shall transmit a copy thereof to the Commission and stay
further proceedings for the time being. The Commission shall
consider the evidence transmitted, and may alter or rescind its
order, and shall report its action to the court. If the Commission
rescind its order, the suit shall be dismissed; if it alter the
order, the same, in its changed form, shall take the place of the
original, and judgment shall be rendered thereon as though the last
action of the Commission had been taken at first; (§ 6570) in
addition to all other remedies, the Commission, and likewise any
party in interest, may compel compliance with an order of the
Commission by a proceeding in mandamus, injunction, or other
appropriate civil remedy.
It will be perceived that the supreme court, applying the
statute, held that the "sole question" for decision was whether the
Commission's order should be given effect pending the determination
of the equity suit, and then, coming to dispose of that question,
held that due regard for the provisions of the statute, especially
§§ 6545, 6548, and 6549, and for the relative consequences of
enforcing or refusing to enforce the order, required that it be
enforced by mandamus, if a suitable bond was given to indemnify the
railway company for any resulting loss in the event the order
ultimately should be vacated in the equity suit.
Our jurisdiction is called in question upon the ground that the
judgment is not final in the sense of § 237 Jud.Code, upon which
our power to review depends, because the judgment does not
determine the merits and end the
Page 240 U. S. 571
litigation. But, as this Court has said, "all judgments and
decrees which determine the particular cause" are final in the
sense of the statute. Weston v.
2 Pet. 449, 27 U. S.
-465; Central Transportation Co. v. Pullman
Co., 139 U. S. 24
139 U. S. 40
Mt. Vernon Cotton Co. v. Alabama Power Co., 240 U. S.
. This view has prevailed through a century of
practices in reviewing judgments and decrees dismissing causes for
want of jurisdiction or for other reasons not decisive of the
merits. And it is settled that a proceeding in mandamus is an
independent adversary suit, and a judgment awarding or refusing the
writ is a final judgment within the meaning of the statute.
Davies v. Corbin, 112 U. S. 36
112 U. S. 40
McPherson v. Blacker, 146 U. S. 1
146 U. S. 24
American Express Co. v. Michigan, 177 U.
, 177 U. S.
Under the local statutes, as interpreted by the supreme court of
the state, whether the logging spur was merely a private
convenience or was so used and operated by the railway company that
the latter was not free to discontinue service thereon, in the
circumstances existing when the rails were removed, was primarily a
question for the Commission, and secondarily for the Wayne Circuit
Court, wherein the Commission's order was sought to be vacated. By
the order, the Commission resolved this question against the
railway company. The order was valid upon its face, and recited
that it was made after a hearing and due consideration of the
proofs and briefs of the parties. Whether the hearing was adequate
and whether the facts relating to the logging spur were such as to
sustain the order were matters which were in issue in the suit in
the Wayne Circuit Court, where the railway company was at liberty
to produce any evidence legitimately bearing upon the propriety of
the order. It was in this situation that the supreme court, having
regard to the statutory requirement that the order be given effect
and treated as prima facie
lawful and reasonable until
adjudged otherwise in
Page 240 U. S. 572
the suit brought to vacate it, and also having regard to the
comparative consequences of enforcing or refusing to enforce it
while that suit was undetermined, held that it ought to be enforced
by mandamus if a suitable bond was given to indemnify the railway
company should the order ultimately be vacated. In this we perceive
no deprivation of due process. The granting of an order or writ to
maintain or restore the status quo
pending the outcome of
existing litigation, which really is what was done here, has been
practiced by the courts of the country since before the
Constitution was adopted, and the claim that relief of this nature
cannot be granted, even upon condition that ample security be given
to make good any loss that may be sustained thereby, without
encroaching upon the due process of law secured by the Constitution
is manifestly without merit.
MR. JUSTICE McREYNOLDS is of opinion that the judgment is not
final within the meaning of § 237 Jud.Code, and therefore that the
writ of error should be dismissed.