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(45 S. Ct.)

the

The Chicago, Burlington & Quincy Railroad | the final decree in the respects above set Company and the Wabash Railway Company forth, and that the east side lineseach has a line which enters St. Louis from "be and they are hereby required to pay within the east and a line which enters it from the 60 days after the amount of same shall have west, but they are aligned with the east side been ascertained and determined for the use and benefit of said west side lines lines on this appeal. The capital stock *of total amount of the transfer charges of dethe Association is owned in equal amounts fendant Terminal Railroad Association of St. by all these companies, and they are called Louis and its subsidiary companies paid by said proprietary companies. west side lines on west-bound through freight of said east side lines to the rails of said west side lines at St. Louis, Mo., from the date of the entry of said final decree, to wit, March 2, 1914, to the date of this order.

In August, 1920, the west side lines filed a petition and motion in the District Courts to have the Terminal Association and its subsidiaries and the east side lines and also their representatives on the board of directors of the Terminal Association adjudged guilty of contempt of court for violating the decree. The parties so complained of (appellants here) appeared and moved to dismiss the petition and also filed answer. An examiner was appointed, and, after the taking of evidence and a hearing, the court denied the motion to dismiss, and entered its decree that the appellants

"have continuously since the entry of said final order and decree, in contempt of this court, violated the terms thereof and are still violating its said terms

(a) In that defendants, the Terminal Railroad Association of St. Louis and its subsidiary companies, are not acting in good faith as the impartial agents of the various proprietary lines.

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And the decree prescribed and directed how such total amount should be determined. [1] In these proceedings, the United States did not join in the complaint or participate in the hearing in the District Court, but has since appeared and is aligned with the appellees. The proceedings were instituted by the west side lines, not to vindicate the authority of the court, but to enforce rights claimed by them under the original decree. The controversy is between them and the east side lines as to whether the former or the latter shall bear transfer charges on west bound through freight. The nature of the proceedings is civil and remedial, not criminal. See In re Nevitt, 117 F. 448, 458, 54 C. C. A. 622; Bessette v. W. B. Conkey Co., 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997; Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 441, et seq., 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; In re

639, 32 S. Ct. 339, 56 L. Ed. 584; Morehouse

"(b) In that the proprietary lines other than the petitioners, through the domination and control of the board of directors of defendant the Terminal Railroad Association of St. Louis | Merchants' Stock Co., Petitioner, 223 U. S. and its subsidiaries compelled the petitioners to pay the Terminal Railroad Association its transfer charges for supplying and operating facilities for the interchange of both through east-bound and through west-bound freight traffic between the east side lines and the west side lines.

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v. Giant *Powder Co., 206 F. 24, 124 C. C. A. 158; Merchants' Stock & Grain Co. v. Board of Trade, 201 F. 20, 23, 120 C. C. A. 582.

[2] This appeal was taken under the Expedition Act of February 11, 1903, c. 544, 32 Stat. 823. Appellants applied to the Circuit Judges for allowance of appeal and supersedeas. The appeal was allowed and su

"(c) In that the defendants [the east side lines above named] * have not paid and are not now paying the reasonable transfer charges of defendant the Terminal Railroad Association of St. Louis and its subsi-persedeas was granted on condition, among diary companies on west-bound through freight to the rails" of the petitioners and other defendants whose lines enter St. Louis from the West.

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*"(d) In that the said Terminal Railroad Association has been issuing bills of lading or receipts taking the place of bills of lading usable for the transportation of through freight from points on its lines to distant points beyond its lines, and has been issuing passes usable by passengers riding on passes or tickets from points on its lines to distant points beyond its lines."

And the decree commands that within 60 days the appellant companies cease violating

land, Cincinnati, Chicago & St. Louis Railway Company, Illinois Central Railroad Company, Louisville & Nashville Railroad Company, Southern Railway Company, Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, St. Louis Southwestern Railway Company, Chicago, Burlington & Quincy Railroad Company, and the Wabash Railway Company.

others, that, commencing 60 days after the entry of the decree, the east side lines pay to the Terminal Association and its subsidiaries charges for transferring west-bound through freight from the east side lines to the rails of the west side lines. Appellants, being unwilling to accept that burden, applied to a justice of this court, who allowed their appeal and, upon the giving of appropriate security, granted supersedeas without requiring such payments to be made pending the appeal. Appellees assert that the allowance of the appeal was under rule 36, which provides that an appeal from a District Court may be allowed and supersedeas granted by a justice of this court, in cases provided for in sections 238 and 252 of the Judicial Code (Comp. St. §§ 1215, 1229); that thereby the case was brought under section 238, and that the question of jurisdiction is all that may be considered on this appeal. The contention is without mer

it. The authority of a justice of this court, to allow appeals and grant supersedeas does not depend upon and is not limited by rule 36 or any other rule of this court. See Hudson v. Parker, 156 U. S. 277, 284, 15 S. Ct. 450, 39 L. Ed. 424. The Expedition Act gives the right of appeal in this case, and the appeal was properly allowed by a justice of this court. Revised Statutes, §§ 999, 1012 (Comp. St. §§ 1659, 1673) Sage v. Railway Co., 96 U. S. 712, 715, 24 L. Ed. 641; Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed.

495.

[3] The original decree was not enlarged by the decree appealed from. And, as there is no cross-appeal, no question is presented as to the right of the appellees to have it amended, so as to impose any additional condition on the continued existence of the com

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bination as unified ter*minal facilities. Peoria Ry. Co. v. United States, 263 U. S. 528, 536, 44 S. Ct. 194, 68 L. Ed. 427. The question whether the east side lines are bound to pay transfer charges on west-bound through freight depends upon the proper construction and application of the original decree.

[4-6] In contempt proceedings for its enforcement, a decree will not be expanded by implication or intendment beyond the meaning of its terms when read in the light of the issues and the purpose for which the suit was brought, and the facts found must constitute a plain violation of the decree so read. See United States v. Atchison, T. & S. F. Ry. Co. (C. C.) 142 F. 176, 182, 183; In re Cary (D. C.) 10 F. 622, 625, 626; Ophir Creek Water Co. v. Ophir Hill Mining Co., 61 Utah, 551, 556, 216 P. 490; Louisville & Nashville R. R. Co. v. Miller, 112 Ky. 464, 472, 66 S. W. 5; Wisconsin Central R. Co. v. Smith, 52 Wis. 140, 143, 8 N. W. 613; Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72, 85, 86, 70 A. 775; Weston v. Lumber Co., 158 N. C. 270, 273, 73 S. E. 799, Ann. Cas. 1913D, 373; Deming v. Bradstreet, 85 Conn. 650, 658, 84 A. 116; Porous Plaster Co. v. Seabury, 1 N. Y. Supp. 134. The statement of the decree appealed from [subdivision (a)] that the Ter

miual Association and its subsidiaries are

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vision so directs, and there is nothing in the circumstances to indicate that the court intended to prescribe the amount of such transfer charges or to fix liability therefor. United States v. St. Louis Terminal, *236 U. S. 194, 204, 35 S. Ct. 408, 59 L. Ed. 535. The suit was brought by the United States to prevent restraint of trade and monopoly in violation of the Sherman Anti-Trust Act. It did not relate to the transfer charges or division of joint rates. All the proprietary companies were defendants. The pleadings presented no issue between the west side lines and the east side lines; and no controversy between them was determined by the decree.

The practice of "breaking" the rates on west-bound through freight at the east bank of the Mississippi river in East St. Louis has prevailed since 1877; that is, joint rates on freight moving from the east through St. Louis to points in the West have been considered as made up of an amount to cover the haul to the east bank of the river and an amount to cover the haul beyond that point. The former has been divided among the carriers hauling to the east bank of the river; the balance among those hauling from that point, including the Terminal Association and its subsidiaries, making the transfer from the lines on the east to the lines on the west side of the river. It has also been the practice at this crossing to "break" the joint rates on east-bound through freight at the same place. All rates have been set forth by tariffs, and the divisions of the charges among the participating carriers have been shown by their division sheets filed with the Interstate Commerce Commission. The practice has been the same on all competing routes crossing the river at points between East St. Louis and Dubuque.

[7-10] The making of rates is a legislative Keller v Potoand not a judicial function mac Electric Co., 261 U. S. 428, 440, 43 Sup. Ct. 445, 67 L. Ed. 731; Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287, 289, 40 S. Ct. 527, 64 L. Ed. 908; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298, 305, 34 S. Ct. 48, 58 L. Ed. 229; Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474, 483, 32 Sup. Ct. 556, 56 L. Ed. 849; Prentis v. Atlantic Coast Line, 211 U. s. 210, 226, 29 S. Ct. 67, 53 L. Ed. 150. The di

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not acting in good faith as the impartial agents of the various proprietary lines is too general and vague, when considered by itself, to constitute a specification of facts amounting to contempt of court. The meaning and application of this general language is to be limited by the specification of details which follow it in (b) and (c) of the same section. Atkins v. Disintegrating Co., 18 Wall. 272, 302, 21 L. Ed. 841; Bock v. Per-ditions upon which such routes shall be opkins, 139 U. S. 628, 634, 635, 11 S. Ct. 677, 35 L. Ed. 314; Brunson v. Carter Oil Co. (D. C.) 259 F. 656, 664.

The original decree does not require the east side lines to pay the charges for transferring west-bound through freight. No pro

3 Reported in full in the New York Supplement; not reported in full in 48 Hun, 620.

vision of joint rates is also legislative in character. The Interstate *Commerce Commission is authorized to establish through routes and joint rates and to prescribe con

erated, and to fix divisions of such rates among carriers. Section 15 (1), (3), (6), Interstate Commerce Act, as amended by Act Feb. 28, 1920, § 418, c. 91, 41 Stat. 485, 486 (Comp. St. Ann. Supp. 1923, § S583). It is well settled as a general rule that the ques

tion of the reasonableness of rates or of divisions of joint rates will not be considered

(45 S.Ct.)

by the courts before application has been | is untrammeled by the decree and may make made to the Commission. Texas & Pacific and regulate rates on through freight and the divisions thereof. As the original decree does not prescribe charges or fix divisions of joint rates, contempt proceedings will not lie to determine whether the west side lines have paid more than their fair share of the charges for the services rendered by the Terminal Association, or to require the east side lines to make the payments specified in the decree appealed from. The refusal or failure of the east side lines to pay the charges in controversy or any other transfer charges is not contempt of court.

Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 440, 27 S. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075; Robinson v. Baltimore & Ohio R. R., 222 U. S. 506, 32 S. Ct. 114, 56 L. Ed. 288; Mitchell Coal Co. v. Pennsylvania Coal Co., 230 U. S. 247, 254-261, 33 S. Ct. 916, 57 L. Ed. 1472; Skinner & Eddy Corporation v. United States, 249 U. S. 557, 562, 39 S. Ct. 375, 63 L. Ed. 772; Kansas City, Mexico & Orient Divisions Case (U. S. v. Abilene & S. R. Co.), 44 S. Ct. 565, 68 L. Ed. 106. The Terminal Association and it subsidiaries are common carriers by railroad and, like the proprietary companies, are subject to regulation by the Commission. The original decree does not purport to regulate rates or prescribe divisions of joint rates, or fix liability for such transfer charges. On the other hand, it expressly provides that it shall not affect in any wise or at any time the power of the Commission over charges to be made by the Terminal Association or its subsidiaries, or any power conferred by law upon the Commission. In the exercise of its powers under existing law, the Commission

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[11] *The issuing of the bills of lading, receipts and passes referred to in the decree [subdivision (d)] appealed from is not expressly forbidden by the original decree. But assuming in favor of the west side lines that such issuing is not included in the terminal business which the combination is permitted to do, it is not shown that any injury to them has resulted therefrom, or that they are entitled to any relief. Gompers v. Buck's Stove & Range Co., supra, 451, (31 S. Ct. 492). Decree reversed.

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(266 U. S. 637)

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No. 355. SUMNER SOLLITT COMPANY, petitioner, v. Anna Belle ELLISON, etc., et al. Oct. 6, 1924. On petition for a writ of certiorari to the Court of Civil Appeals for the Fourth Supreme Judicial District of the State of Texas. For opinion below, see 255 S. W. 680. Mr. Sylvan Lang, of San Antonio,

No. 97. FREIBERG MAHOGANY COMPANY, appellant, v. BIORN BIORNSTAD & COMPANY, OF CHRISTIANIA, NORWAY, et al. Oct. 6, 1924. Appeal from the District Court of the United States for the Eastern Dis-Tex., for petitioner. Dismissed, per stipulation. trict of Louisiana. Mr. J. Blanc Monroe, of New Orleans, La., for appellant. Dismissed with costs, on motion of counsel for the appellant.

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No. 188. DANE COUNTY, Wisconsin, et al., plaintiffs in error, v. Charles H. TYLER et al., etc. Oct. 6, 1924. In error to the District Court of the United States for the Western District of Wisconsin. For opinion below, see 289 Fed. 843. Messrs. Franklin E. Bump and Herman L. Ekern, both of Madison, Wis., for plaintiffs in error. Messrs. John B. Sanborn and Chauncey E. Blake, both of Madison, Wis., for defendants in error. Dismissed, per stipulation.

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No. 371. NORTHERN PACIFIC RAILWAY COMPANY et al., plaintiffs in error, v. DEPARTMENT OF PUBLIC WORKS OF THE STATE OF WASHINGTON et al. Oct. 6, 1924. For opinion below, see 125 Wash. 584, 217 Pac. 507. Mr. John H. Carroll, of WashMessrs. ington, D. C., for plaintiffs in error. John H. Dunbar and Raymond W. Clifford, both of Olympia, Wash., and Scott Z. Henderson, of Tacoma Wash., for defendants in error. Walter B. Whitcomb, successor to Hance H. Cleland as supervisor of public utilities and member of the department of public works of the State of Washington, substituted as a party defendant in error herein, on motion of Mr. J. H. Carroll in that behalf.

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No. 208. COMMONWEALTH OF AUSTRALIA et al., petitioners, v. John L. McLEAN, as Trustee in Bankruptcy, etc. Oct. 6, 1924. On writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. For opinion below, see 292 Fed. 700. See, also, 263 U. S. 698, 44 S. Ct. 137, 68 L. Ed. 512. Mr. Corwin S. Shank, of Seattle, Wash., for petitioners. Messrs. Ira Bronson and H. B. Jones, both of Seattle, Wash., for respondent. Dismissed, per stipulation.

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(266 U. S. 636)

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No. 224. CAROLINA, CLINCHFIELD & OHIO RAILWAY v. The UNITED STATES of America. Oct. 6, 1924. On a certificate from the United States Circuit Court of Ap

(266 U. S. 638)

No. 29. The LOUISVILLE & NASHVILLE
RAILROAD COMPANY, appellant, v. The
Mr. Ben-
UNITED STATES. Oct. 8, 1924.
jamin Carter, of Washington, D. C., for appel-

(45 S.Ct.)

lant. The Attorney General, for the United States. Order of dismissal (266 U. S. 638, 45 S. Ct. 10, 69 L. Ed.-) entered October 7 vacated; cause restored to the docket; dered that record be printed and cause submitted on briefs within thirty days, on motion of Mr. Benjamin Carter for the appellant.

(266 U. S. 601)

or

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No. 76. SUMTER GAS & POWER COMPANY, appellant, v. The CITY OF SUMTER et al. Oct. 10, 1924. For opinion below, see 283 Fed. 931. Mr. G. L. B. Rivers, of Charleston, S. C., for appellant. Mr. A. S. Harby, of SumNo. 69. David W. SWEYDEN, petitioner, v. ter, S. C., for appellees. Stipulation and moThe STATE OF KANSAS ex rel. Albert C. tion to remand to the District Court of the WHITTAKER, etc. Oct. 10, 1924. On peti- United States for the Eastern District of South tion for a writ of certiorari to the Supreme Carolina with direction to dismiss the bill withCourt of the State of Kansas. For opinions out prejudice, granted, on motion of Mr. G. L. below, see State ex rel. Whittaker, v. Coffman, B. Rivers for the appellant.

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