(40 Sup.Ct.)

*158

to upper lake ports is an interstate carriage." | same sections in White's Supplement thereto), For this reason the enforcement of the order and a sound public policy forbids that a less of the State Commission was enjoined as an attempt to regulate and control interstate onerous rule should be applied to a *passenger commerce. Here again it was the committing injured by like negligence when lawfully upof a designated kind of coal to a carrier for on one of its trains. This much of protection transportation in interstate commerce that was due the plaintiff as a human being who rendered the federal law applicable. had intrusted his safety to defendant's keeping. Southern Pacific Co. v. Schuyler, 227 U. S. 601, 603, 33 Sup. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901; Chicago, Rock Island & Pacific Railway Co. v. Maucher, 248 U. S. 359, 363, 39 Sup. Ct. 108, 63 L. Ed. 294.

[1, 2] To what extent the analogy between the shipments of property and the transportation of passengers may profitably be pressed, we need not inquire, for in this case the only contract between the carrier defendant and the plaintiff was the annual pass issued to the latter. This written contract, with its release, is the sole reliance of the defendant. But that contract in terms was good only between Air Line Junction and Collingwood, over a line of track wholly within

*157

The evidence in the record as to the terms and conditions upon which the pass was issued to the plaintiff is so meager that, since it is not necessary to a decision of the case, we need not and do not consider the extent to which the case of Railroad Co. v. Thompson, 234 U. S. 576, 34 Sup. Ct. 964, 58 L. Ed. 1476, is applicable to an employé using a pass furnished to him seemingly as a nec

The judgment of the Court of Appeals is
Affirmed.

Ohio, and the company was charged *with no-
tice when it issued the pass that the public
policy of that state rendered the release up-essary incident to his employment.
on it valueless. The purpose of the plaintiff
to continue his journey into Pennsylvania
would have been of no avail in securing him
transportation over the Erie Line to Youngs-
town, for that he must pay the published fare
and very surely the release on the pass to
Collingwood would not have attached to the
ticket to Youngstown. Whether there was a
similar release on the pass to Pittsburgh,
which Mohney expected to get at Youngs-
town, the record does not disclose and it is
of no consequence whether there was or not.
The contract which the defendant had with
its passenger was in writing and was for an
intrastate journey, and it cannot be modified
by the purpose of Mohney to continue his
journey into another state, under a contract
of carriage with another carrier, for which
he would have been obliged to pay the pub-
lished rate, or by an intended second con-
tract with the defendant in terms which are.
not disclosed. The mental purpose of one of
the parties to a written contract cannot
change its terms. Southern Pacific Co. v.
State of Arizona, 249 U. S. 472, 39 Sup. Ct.
313, 63 L. Ed. 713. For these reasons the
judgment of the trial court was right and
should have been affirmed.

Mr. Justice DAY and Mr. Justice VAN DE

VANTER concur in the result, being of opinion that Mohney was using the annual pass in an interstate journey, and that to such a use of the pass the Ohio law was inapplicable, but that the releasing clause on the pass did not cover or embrace his injury, because the latter resulted from willful or wanton negligence, as to which such a clause is of no force or effect.

But the Court of Appeals affirmed the judgment on two grounds, one of which was that all of the judges were "clearly of the opinion that the negligence in the case, under the evidence, was willful and wanton." This court does not weigh the evidence in such cases as we have here, but it has been looked into sufficiently to satisfy us that the argument that there is no evidence whatever in the record to support such a finding cannot be sustained.

[3] A carrier by rail is liable to a trespasser or to a mere licensee willfully or wantonly injured by its servants in charge of its train (Commentaries on the Law of Negligence, Thompson, §§ 3307, 3308, and 3309, and the

(251 U. S. 407)

UNITED STATES v. THOMPSON. (Argued Jan. 27 and 28, 1920. Decided March 1, 1920.)

No. 250.

DETERMINING

1. COURTS 385(12) IN
WHETHER RULING WILL SUPPORT DIRECT
WRIT OF ERROR BY GOVERNMENT, FORM OF
RULING IS NEGLIGIBLE.

Whether a ruling sustaining a motion to
quash an indictment constitutes a decision or
judgment sustaining a special plea in bar, so
as to authorize the government to take a di-
rect writ of error to the Supreme Court, under
Act March 2, 1907 (Comp. St. § 1704), is to
be determined by its substance, and not by its
form, and the fact that it took the form of
granting a motion to quash is negligible.
2. COURTS 385(1)

RULING GRANTING MOTION TO QUASH HELD TO SUPPORT DIRECT WRIT OF ERROR BY GOVERNMENT AS "DECISION OR JUDGMENT SUSTAINING SPECIAL PLEA IN BAR."

A ruling sustaining a motion to quash an indictment, on the ground that the matters cov

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
40 SUP.CT.-19

ered thereby had been submitted to and ignored On March 17, 1916, the Attorney General by one grand jury, and resubmitted to another grand jury without leave of court, was reviewable on a direct writ of error taken by the government, under Act March 2, 1907 (Comp. St. § 1704), as a "decision or judgment sustaining

of the United States, pursuant to the Act of June 30, 1906 (34 Stat. 816 [Comp. St. § 534]), appointed a special assistant for the purpose of co-operating with the district attorney in the matter of the steps to be taken to procure the indictment of Thompson. The next session of the court was held in March, 1916, at Erie, and the district attorney and the assistant to the Attorney General, without asking authority of the court, directed the attention of the grand jury to the charges against Thompson covered by the counts as to which the grand jury at Pittsburgh had failed to make a presentment, and after hearing witnesses called by the district at

4. COURTS 337-STATE RULE AS TO RESUB- torney, the Erie grand jury on the 24th day

of March, found a true bill containing 30
counts covering such charges. When this
indictment was presented the court express-
ed doubt, in view of the fact that the charges
had been submitted to a previous grand jury
and no presentment had been made, whether
there was any authority in the Erie grand
jury, at the instance of the district attorney,
to consider such charges without previously
obtaining the consent of the court.
ever, the court observed that as the grand
jury had reported a true bill, it would be
placed on file, with the reservation of a right
to take such future action regarding it as
might be deemed appropriate.

Mr. Chief Justice WHITE delivered the that indictment, not of its own motion, but opinion of the Court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

braced by the 30 counts as to which the Pittsburgh grand jury had failed to find a true bill, and that the witnesses introduced by the district attorney at Erie were virtually the same witnesses previously by him introduced as to the same charges before the Pittsburgh grand jury.

The motion as to the Pittsburgh indictment was rejected and we put it out of view. That as to the Erie indictment was granted on the ground that the district attorney had no authority, after the action of the Pittsburgh grand jury, to resubmit the same matters to the Erie grand jury without the approval of the court, and that the Erie grand jury, for the same reason, had no authority to consider the subject. The court said:

*411

"The resubmission of those matters to the later grand jury at the Erie term was without the knowledge or approval of the court. The resubmission of the offenses against the government to a new grand jury is a matter of the highest prerogative, and is always subject to the control of the court, and, in proper cases, always granted by the court. Again, it appears * that there was a special designation by the Attorney General, of some one, to attend the sessions of the grand jury at Erie and proceed with the investigation.

# * 串

"We find, then, a subsequent introduction of the same matters to a later grand jury with the pressure, perhaps, of a specially designated representative of the highest officer in the Department of Justice, without the approval or without the permission of the court, and perhaps to the prejudice of the defend

denied, the court reiterating its previous rulings and pointing out that, as the Pittsburgh indictment had not been quashed, there was opportunity for the government to prosecute for the offenses therein charged, although its right to further prosecute the offenses charged in the Erie indictment would be lost.

This direct writ of error was then prosecuted under the Criminal Appeals Act of March 2, 1907, c. 2564 (34 Stat. 1246 [Comp. St. § 1701]), both parties agreeing, for the purposes of a motion to dismiss for want of jurisdiction, which we now consider, that under the circumstances here disclosed the authority to review must depend upon whether the quashing of the indictment was a "decision or judgment sustaining a special plea in bar when the defendant has not been put in jeopardy."

[1, 2] As it is settled that this question is to be determined, not by form but by substance (United States v. Barber, 219 U. S. 72, 78, 31 Sup. Ct. 209, 55 L. Ed. 99; United States v. Openheimer, 242 U. S. 85, 37 Sup. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516), it follows that the fact that the ruling took the form of granting a motion to quash is negligible. Testing, then, the existence of jurisdiction by the substantial operation of the judgment, and assuming for the purpose of that test that the United States possessed the right to submit the indictment to the second grand jury without leave of court, which right was denied by the judgment below, we are of opinion that the power to review the judgment is conferred by the provision of the statute quoted, (a) because its necessary effect was to bar the absolute right of the United States to prosecute by subjecting the exercise of that right, not only as to this indictment, but as to all subsequent ones for the same offenses, to a limitation resulting from the exercise of the judicial power upon which the judgment was based; and (b) because a like consequence resulted as to the "Mr. Rush (the district attorney): May it authority of the district attorney and the please the court, the holding, then, of the court, powers of the grand jury, since the exercise as I understand it, is that the presentation of in both cases of lawful authority was barred the case to the grand jury, which has been formerly ignored, would be a bar to a subse-by the application of unauthorized judicial quent presentation, unless leave of court were granted.

ant.

"I am satisfied that the matters in connection with the finding of the indictment at Erie were more than irregularities, and, therefore, I must sustain the motion to quash the indictment found at Erie, and note an exception to

the government.

"The court further wishes to state that the control of the grand jury by common law and by statute law is under the court and the proceedings are under the control of the court.

"By the court: Without the permission of the court; yes. I think that is the law and that is what I have stated."

A rehearing was asked on the ground, among others, that if the allowance of the motion to quash were adhered to, the result would be to bar the right of the government to further prosecute for the offenses charged, as in consequence of the continuances which had been granted and the delay in making

*412

the motion to quash, the statute of limitations would be operative. The rehearing was

discretion.

*413

It is true it is argued that as the rights which the United States asserted were not possessed, the judgment did not bar the United States or the district attorney or the grand

jury from the exercise of any lawful power. But this can only rest upon the assumption, that is there was no error in the judgment there is no power to review it, which, if its premise has any force, will be disposed of by the decision of the merits to which we now proceed.

The government urges that in the absense of statute of the United States giving such authority, the want of power in the court

to quash the indictment for the reasons by | cannot be sustained, since the assumed exit stated, is clearly established by the follow- ception is so incompatible with the general ing propositions, which in an elaborate argu- principles governing the subject as to cause ment it is insisted are made certain by a it to be, in substance, not an exception at consideration of the common law, of the all, but, under the guise of an exception, statutory law of the United States, of the a mere disregard or repudiation of the prinpractices from the beginning, and of the ad- ciples themselves, for the following reasons: judications of this court which settle the In the first place, because while admitting question. The propositions are these: the power of the grand jury, it yet denies such power, since it limits the right of that body to inquire by causing it to be unlawful for it to listen, without the approval of the court, to a suggestion of the district attorney

(1) That the power and duty of the grand jury to investigate is original and complete, susceptible of being exercised upon its own motion and upon such knowledge as it may derive from any source which it may deem proper, and is not therefore dependent for its exertion upon the approval or disapproval of the court; that this power is continuous and is therefore not exhausted or limited by adverse action taken by a grand jury or by its failure to act, and hence may thereafter be exerted as to the same instances by the same or a subsequent grand jury.

(2) That the United States district at torney, in virtue of his official duty and to the extent that criminal charges are susceptible of being preferred by information, has the power to present such informations with out the previous approval of the court; and that by the same token the duty of the district

*414

*415

under the circumstances stated, and there fore causes any finding made to depend upon an inquiry as to the particular source of inwhich the finding resulted. In the second formation which led to the investigation from place, because, while conceding that the power of the grand jury is continuous, so

that unfavorable action does not exhaust

the authority of that or of another grand jury to examine, it limits or restrains thereafter the power of both to do so. In the third place, because, while the general rule which is stated establishes the authority of the district attorney as official prosecutor, with the right of the grand jury to consider, and makes it, as we have seen, coterminous the exception subjects that authority to the exercise of a judicial discretion, which, as well illustrated by the case under consideration, destroys it. In the fourth place, because, comprehensively considering the subject, the assertion of the judicial discretion which was the basis of the judgment below is incompatible with the spirit and purpose underlying the admitted principles as to the power of grand juries, and the right of the goverment to initiate prosecutions for crime, since in the case stated such powers are controlled, not by a rule of law, but depend upon a mere exercise of judicial discretion.

From the point of view of authority, the argument seeks to establish the existence of the exception upheld by the court below by a reference to a number of cases decided in Pennsylvania and in other states. As to the Pennsylvania cases, they undoubtedly support the existence of the exception, not

attorney to direct the attention of a grand jury to crimes which he thinks have been committed is coterminous with the authority of the grand jury to entertain such charges. [3] We do not stop to review or even cite the extensive array of authorities from which the government deduces these propositions, but content ourselves with referring to the following cases and the authorities therein cited by which the propositions are sustained: Hale v. Henkel, 201 U. S. 43, 59-66, 26 Sup. Ct. 370, 50 L. Ed. 652; Blair v. United States, 250 U. S. 273, 39 Sup. Ct. 468, 63 L. Ed. 979. And see, with particular reference to the second proposition, Weeks V. United States, 216 Fed. 292, 297, 298, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524; Creekmore v. United States, 237 Fed. 743, 150 C. C. A. 497, L. R. A. 1917C, 845; Abbott Bros. v. United States, 242 Fed. 751, 155 C. C. A. 339; Kelly v. United States, 250 Fed. 947, 163 C. C. A. 197. To do in virtue of any statutory provision to that more than to make this reference is unnec-effect, but solely in contemplation of the comessary as in argument the abstract cor- mon law of the state. But, in view of what rectness of the propositions advanced by the government is conceded and the only controversy is as to their application, based upon the insistence that the present case is governed by an exception which exacts the necessity of procuring the prior approval of the court wherever a district attorney presents to one grand jury charges which a previous grand jury has ignored. The existence of this particular exception was expressly declared by the court below to be the basis for its decision. But we think the ruling, although it rested upon the assumption stated,

*416

we have just said concerning the error upon which the exception rests, its departure from the common law, its conflict with the settled

1 Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Stoner, 70 Pa. Super. Ct. 365; Commonwealth v. Allen, 14 Pa. Co. Ct. 546; Commonwealth v. Whitaker, 25 Pa. Co. Ct. 42; Commonwealth v. Priestly, 24 Pa. Co. Ct. 543; People v. Neidhart, 35 Misc. Rep. 191, 71 N. Y. Supp. 591; People v. Clements, 5 N. Y. Cr. R. 288; People v. Dillon, 197 N. Y. 254, 90 N. E. 826, 18 Ann. Cas. 552; State v. Collins, 73 Iowa, 512, 35 N. W. 625, Sutton v. Commonwealth, 97 Ky. 308, 30 S. W. 661; People v. Warren, 109 N. Y. 615, 15 N. E. 880; Rea v. State, 3 Okl. Cr. 269, 105 Pac. 381.

(40 Sup. Ct.)

rule applicable in the courts of the United States, as sustained by the decisions of this court, we are unable to accept the doctrine

UNITED STATES V.

(251 U. S. 417)

UNITED STATES STEEL CORPORATION et al.

of the Pennsylvania cases as being even per- (Argued March 9, 12, 13, and 14, 1917. Resuasively controlling.

stored to docket May 21, 1917. Reargued Oct. 7, 8, 9, and 10, 1919. Decided March 1, 1920.)

No. 6.

As to the cases from other states which are relied upon as sustaining the exception, they are inapplicable because, with one or two exceptions, they rest exclusively upon the provisions of state statutes which on their 1. MONOPOLIES 8-STATUTE NOT DIRECTED face show intention to deviate from the general rule which otherwise would prevail at the common law.2

AGAINST MERE EXPECTATION OF MONOPOLY.

The Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830) is not directed against a mere expectation of monopoly, but against its realization.

2. MONOPOLIES 12 (1)-HOLDING CORPORA

TION NOT SUBJECT TO DISSOLUTION, WHERE
MONOPOLY WAS NOT ACHIEVED AND LAW WAS

NOT VIOLATED.

[4] It remains only to consider the contention that, irrespective of the want of persuasive power of the Pennsylvania cases, as the case in hand concerns the prosecution for a crime committed in Pennsylvania, even though it be a crime against the United States, the state rule, in virtue of the provisions of section 722 of the Revised Statutes of the United States (Comp. St. § 1542), was authoritatively controlling on the court below and is so controlling here. But the section relied upon provides for applying a state rule only where that course is required by an absence of federal rule on the subject. In view of the existence of a controlling federaltition reflected in prices and production, and its rule which would be overthrown by applying the state law, the want of merit in the contention is so self-evident that we leave it without further notice.

The difference between calling into play a discretion for the purpose of prohibiting the performance of duties authorized by law, lest if their performance be permitted, they may be abused, and the exertion of a sound *417

discretion possessed, for the purpose of reasonably regulating the performance of duties by law imposed, serves, in the last analysis, to dispose of the arguments concerning the dangers of abuse of power which may result from a failure to uphold the existence of the discretion which the court below deemed it possessed and upon which its action was based.

As we have exercised jurisdiction to review on the writ of error, the prayer of the United States for the granting of a rule to show cause why mandamus and prohibition should not issue, if jurisdiction of the writ of error was not maintained, has nothing now to rest upon and it is denied. It further follows from what we have said on the merits that the judgment below must be

and it is

Reversed and the cause remanded for further proceedings in conformity with this opinion.

2 People v. Warren, 109 N. Y. 615, 15 N. E. 880; People v. Dillon, 197 N. Y. 254, 90 N. E. 820, 18 Ann. Cas. 552; Sutton v. Commonwealth, 97 Ky. 308, 30 S. W. 661; State v. Collins, 73 Iowa, 542, 35 N. W. 625; Rea v. State, 3 Okl. Cr. 281, 105 Pac. 386, 106

Pac. 982.

A holding company, organized by competing manufacturers of iron and steel, and which is greater in size and productive power than any of its competitors, and equal or nearly equal to them all, will not be dissolved under the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), where a monopoly was not thereby achieved, and it was not able to fix prices, and there was genuine, direct, and vigorous compe

attempts to persuade competitors, by means of
pools, associations, trade meetings, etc., had
been abandoned as futile prior to the institution
of the suit, especially where it was not attacked
millions of dollars had been spent and invest-
for 10 years after its formation, during which
ments by the public invited and made, and a
foreign trade developed that the government
would not include in the decree of dissolution.
3. MONOPOLIES 12 (1)-PURCHASE OF PROP-
ERTY OF COMPETITOR NOT VIOLATION OF LAW.

The purchase, by a corporation manufacturing steel and iron nearly equal in size and productive power to all of its competitors, of the property of a competitor, with the approval of the president, who believed the property nearly worthless in the hands of its then owner, was not a violation of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).

4. MONOPOLIES 24(2)—Evidence AS TO EX

ISTENCE OF COMPETITION NOT OVERCOME BY
OPINIONS.

The testimony of the officers, competitors, and customers of a company, charged with violating the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830), that there was a genuine, direct, and vigorous competition reflected in prices and production, was not overruled by the opinions of an editor of a trade who testified that, when prices were constant journal and an author and teacher of economics, through a definite period, an artificial influence was indicated.

For other cases see same topic and KEY-NUMBER în all Key-Numbered Digests and Indexes