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"The appellant does not assert that the find- [ other case the conveyance was of land in conings of fact are unsupported by competent evi- flict between two claims which were in litigadence, but contends that they are contrary to tion, and in execution of the intention of the the weight of the evidence. The trial court parties the deed was interpreted to convey made its findings after an evidently careful and "not merely the surface ground in conflict, painstaking investigation of the testimony and as contradistinguished from the mineral the exhibits, and after a personal inspection of the mining properties. We have examined the wealth beneath, but with this surface ground record sufficiently to see that the findings are all underlying minerals" except one vein all supported by the credible testimony of repu- which had been excluded. table witnesses. Upon settled principles, which this court has always recognized, findings so inade upon conflicting testimony are conclusive upon this appeal."

And we said in Lawson v. United States Mining Co., supra, of the conclusion of the Circuit Court of Appeals in such case-and the concession is as great as appellant is entitled to "that if the testimony does not show that it [the conclusion of the court] is correct, it fails to show that it is wrong, and under those circumstances we are not justified in disturbing that conclusion. It is our duty to accept a finding of fact unless clearly and manifestly wrong." The findings accepted, the conclusions of law must be pronounced to be of necessary sequence.

[7] One of the defenses of appellant is that on October 29, 1906, the Clark-Montana Realty Company, then being the owner of an

undivided one-fourth interest in the Black

Rock claim, executed and delivered to the predecessors in interest of appellant a deed of release and quitclaim of all its "right, title, interest, claim and demand in and to that certain portion, claim and mining right, title and property on those certain ledges, veins, lodes or de*posits of quartz and other rock in place, containing precious metals of gold, silver and other metals. And it was stated that it was "the intention of the party of the first part to convey to the party of the second part all of its right, title and interest in and to the above-described property" (referring to the claim, which was described), "together with all the dips, spurs and angles, and also all the metals, ores, gold, silver and metal bearing quartz, rock and earth therein.

The deed is urged as an estoppel and appellant insists that it "operates to grant the fractional interest in 'all earth, rock and ores' found within the exterior limits of the Black Rock claim extended downward vertically," citing therefor Montana Mining Co. v. St. Louis Mining & Milling Co. of Montana, 204 U. S. 204, 27 Sup. Ct. 254, 51 L. Ed. 444, and Bogart v. Amanda Consolidated Gold Mining Co., 32 Colo. 32, 74 Pac. 882. The cited cases are distinguishable from that at bar. In Montana Mining Co. v. St. Louis Mining & Milling Co. the land was conveyed "together with all the mineral therein contained," and the words were distinguished from those conveying extralateral rights and considered as a subject of the grant. In the

In the case at bar the conveyance was of an undivided one-fourth interest in and to the "mining claim known as the 'Black Rock' quartz lode mining claim." It passed no rights or interest that did not belong to that claim or would not appertain to it. Or, to put it in another way, the deed passed the rights and interests that were derived from the United States by the location of that claim and conveyed by the patent to the locators. It was not intended to convey any of the rights of the Elm Orlu and denude it of the extralateral rights that the law conferred upon it. In other words, the contention of appellant would make the deed a conveyance of the Elm Orlu as well as of the Black Rock.

We do not stop to specialize either the contests of or the judgments on particular veins. Their relative locations and the rights in them are disposed of by what we have said. But an earnest and special contest is made on the finding of the court in regard to a vein designated as the Pyle strand. The District Court said, as we have seen, "that the Pyle strand of the Rainbow at some depth in the Elm Orlu diverges from the south side of the said vein and, coursing easterly, unites with the Rainbow at the Black Rock 1,100 level." 8 And the court decreed the appellees to be the owners of and entitled to the possession of it throughout its entire depth as far as its apex was within the Elm Orlu, but expressly reserved the question of the point where the apex passes out of the Elm Orlu. In other words, in the language of the Circuit Court of Appeals, "the court left to future development the question of how far the Pyle apex continued in the appellees' location, and to what extent beneath the Black Rock it united with the Rainbow in such position as to be controlled by the apex in the Elm Orlu." This action of the District Court is attacked by appellant. It admits, however, that the Pyle strand in its downward course unites with the Rainbow at or about a point which would be intersected by a vertical plane passed through the easterly end line of the Elm Orlu extended northerly in its own direction, but denies that the apex or any portion of the apex is within the Elm Orlu and asserts that where its apex is found is altogether conjec

The formal finding of the District Court is as follows:

"That the Pyle strand of the Rainbow vein diverges from the south side of the latter vein in the Elm

Orlu claim, and there and for some indefinite distance easterly has its apex in the Elm Orlu claim.”

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tural and that "for aught that appears from | 2. CoURTS 385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT-SUBORDINATE the evidence, it may have its apex in the ANCILLARY PROCEEDING. Black Rock and, indeed, this is probably the case." And it is urged that a situation is presented not of the weight of evidence, but of the absence of evidence, or, to quote counsel, the decision is "one which finds no support whatever in the testimony." But manifestly these are but assertions-attacks on the estimate of the testimony made by the District Court and Circuit Court of Appeals and the conclusion it justifies.

[8] It is further said that issue was made upon the title to the Pyle strand and that it was the duty of the court to definitely pass upon it and to decide for appellant, but that "instead of entering such a decree, the court so framed, and intentionally so framed, its decree that it would not be a bar to a new suit which appellees might thereafter bring against this appellant to quiet title to all of the vein below the plane of union between it and the Pyle strand, if by further development they discovered additional evidence in support of their contention that the Pyle

strand did apex in the Elm Orlu at the point of alleged forking and at its apex continued thence easterly to and across the east end line of the Elm Orlu."

It is true the apex of the Pyle strand was found to be within the Elm Orlu, but all else as to the vein was reserved and, in the circumstances, properly reserved. There was simply retention of the case for supple mentary proceedings, as the Circuit Court of Appeals observed, to carry out the decree and make it effective under altered circumstances. Joy v. St. Louis, 138 U. S. 1, 47, 11 Sup. Ct. 243, 34 L. Ed. 843; Union Pacific Ry. v. Chicago, etc., Ry. Co., 163 U. S. 564, 603, 16 Sup. Ct. 1173, 41 L. Ed. 265. Decree affirmed.

(249 U. S. 134)

The main action being appealable directly to the Supreme Court from the District Court. under Judicial Code, § 238 (Comp. St. § 1215), as a case in which the law of a state is claimed to contravene the national Constitution, a subordinate proceeding not merely ancillary to but in effect a part of the main cause, taken for purpose of carrying into effect the decree of the Supreme Court reversing the final decree in the main cause, and at the same time to give effect to a reservation of jurisdiction by the Dis trict Court, as contained in that final decree, is likewise so appealable.

3. APPEAL AND ERROR 1197-SUPREME COURT REVERSAL- PROCEEDINGS BELOW AFTER REMAND.

The mandate of the Supreme Court, on reversing decree of District Court enjoining, as confiscatory, enforcement of rates prescribed by Railroad Commission, containing a provision authorizing further proceedings, the District Court can, after remand, determine liability of the railroad company on its injunction

bond.

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The clauses of the final decree of the District Court, whereby it, on enjoining enforcement of rates, prescribed by Railroad Commission, and vacating the injunction bond and releasing the sureties, retained jurisdiction for purpose of making such further orders as might become necessary, coupled with mandate of Supreme Court, permitting further proceedings in conformity to its opinion and decree and according to right and justice, empowered the District Court to set aside so much of its final decree as released the railroad and its sureties from liability previously incurred under such bond, irrespective of whether the reversal of the decree, in respect of its main provisions granting injunction, had the effect of reversing also the portion discharging liability on bond. 5. INJUNCTION 235-BOND-CONDITIONS

BREACH OR FULFILMENT.

The condition of the bond of a railroad company in suit to enjoin rates prescribed by Railroad Commission-that if it should be eventual

ARKADELPHIA MILLING CO. V. ST.
LOUIS SOUTHWESTERN RY. CO. et
al. HASTY et al. v. SAME. ST. LOUIS,
I. M. & S. RY. CO. et al. v. SOUTHERN
COTTON OIL CO. ST. LOUIS SOUTH-ly
WESTERN RY. CO. et al. v. SAME.

decided that the order inhibiting the enforcement of such rates should not have been made, complainant should refund-does not require

(Submitted Dec. 17, 1918. Decided March 3, express adjudication that the order should not

1. COURTS

1919.) Nos. 92-95.

385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT "STATE LAWS." Orders of State Railroad Commission, fixing rates, are "state laws," within Judicial Code, § 238 (Comp. St. § 1215), allowing appeal directly from District Courts to the Supreme Court in a case in which the law of a state is claimed to contravene the national Constitution. [Ed. Note.-For other definitions, see Words and Phrases, State Law.]

have been made, but it is enough that complainant fails in its burden of proof that the rates were inadequate.

6. INJUNCTION 239-BOND-EXTENT LIABILITY.

OF

Claims for overcharges after the final decree of injunction, afterwards reversed, in suit by railroad company to enjoin enforcement of rates prescribed by Railroad Commission, are not recoverable on the injunction bond, nor against the sureties; obligation of the bond, given on granting of temporary injunction, conditioned to refund if it should eventually be decided that the

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

order inhibiting the enforcement of the rates | Commission in the exercise of legislative auought not to have been made, expiring when the suit was brought to a final conclusion.

7. INJUNCTION

260-WRONGFUL INJUNCTION-RECOVERY IN INJUNCTION SUIT.

Claims for overcharges by railroad company between final decree enjoining enforcement of rates, prescribed by Railroad Commission, and reversal thereof, though not recoverable on the bond given on issuance of temporary injunction. may be allowed by the court against the railroad company under the inherent power of the court, so long as it retains control of the subject-matter and the parties, to correct that which has wrongfully been done by virtue of its process. 8. CARRIERS 18(6)-REGULATION OF RATES -RESTRAINING ENFORCEMENT-RELIEF TO SHIPPER.

A shipper, though not a party to suit by railroad to enjoin enforcement of rates prescribed by Railroad Commission, but coming in by intervention before the master, to whom, after reversal of the decree of injunction, reference was made for purpose of determining damages, is in a position to invoke the principle of restitution of overcharges during the continuance of the injunction; the Railroad Commission, in defending the rates, representing all shippers. 9. REFERENCE 48-ORDER-QUESTION DETERMINABLE INJUNCTION BOND-RESTITU

TION.

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thority of the state, cannot be set aside by the court on the ground of discrimination, unless it amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment.

42-PERSONS

13. CONSTITUTIONAL LAW
WHO MAY RAISE QUESTION OF CONSTITU-
TIONALITY.

A rough material rate, working no discrimi-
nation against railroad companies, being appli-
cable on all roads alike, cannot be complained of
by one of them as denying equal protection of
the laws, because of any possible discrimina-
tion therein against small shippers.
14. COMMERCE 34- RATES APPLICABLE
"INTERSTATE COMMERCE."

A shipment of rough material from forest to milling point, both within the state, is not interstate commerce, rendering state rates inapplicable thereto, though followed by forwarding of finished products to points outside the state, where it would eventually be sold not being known till after material was manufactured and stored, and this though previous experience indicated that 95 per cent. of it must be marketed outside the state.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

Appeals from the District Court of the United States for the Eastern District of Arkansas.

Decree for complainants in separate suits by the St. Louis Southwestern Railroad Com

Objection that order of reference was made under a rule of the court that related only to damages recoverable on injunction bond, given by railroad in suit to enjoin enforcement of rates prescribed by Railroad Commission, and furnished no foundation for decree against the railroad on the theory of restitution of the ex-pany and the St. Louis, Iron Mountain & cess charges between permanent injunction and reversal of that decree, not recoverable on the bond, is without weight; the railroad having been fully heard on the merits, and there being no question about the facts. 10. JUDGMENT

565-CONCLUSIVENESS JUDGMENT WITHOUT PREJUDICE.

Southern Railway Company against the Railroad Commission of Arkansas and two shippers, to enjoin enforcement of rates prescribed by the Commission, having been reversed by the Supreme Court, and its mandate having gone down, the District Court made a reference to determine damages, on which there intervened the Arkadelphia Milling Company, Joseph F. Hasty and others, part

That the reversal by the Supreme Court of the decree enjoining enforcement as confiscatory of rates prescribed by the Railroad Commission was without prejudice did not depriveners as J. F. Hasty & Sons, and the Southern Cotton Oil Company. Exceptions to the report the Supreme Court's decree of conclusiveness as to past transactions, and so did not, as leaving of the master in favor of the claims of the the rights of the parties still in doubt, render interveners were sustained by the District it improper for the District Court to award Court as to claims of the Arkadelphia Milling damages against railroad, either on the basis of Company and J. F. Hasty & Sons, and overa breach of injunction bond or on the basis of ruled as to claims of the Southern Cotton Oil restitution, but only prevented the decree from Company, and decree was made accordingly, being a bar to future injunction suits on a from which the first two claimants and the showing of changed conditions. Railway Companies appeal. Reversed on appeals of claimants, and modified and affirmed on appeal of Railway Companies, and cause remanded.

11. INTEREST 39(4) — OVERCHARGES

CRUAL.

Ac

Interest on overcharges by carrier, wrongfully made and without consent of shipper, runs from the date when made; the damage being then complete. 12. CARRIERS 18(1) RATES-FIXING COMMISSION-REVIEW BY COURT-DISCRIMI

NATION.

BY

A rough material rate, constituting part of a general schedule established by a Railroad

*Messrs. W. E. Hemingway, G. B. Rose, D. H. Cantrell, J. F. Loughborough, and V. M. Miles, all of Little Rock, Ark., for appellants in 92 and 93 and appellees in 94 and 95.

Messrs. J. M. Moore and George A. McConnell, both of Little Rock, Ark., for appellees in 92 and 93 and appellants in 94 and 95.

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

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Mr. Justice PITNEY delivered the opinion [ showing the difference between the tariff acof the Court.

These four cases were consolidated for the purposes of the hearing in the District Court, and have been treated as consolidated for the purposes of the hearing on appeal. They are so closely related that they may be dealt with in a single opinion.

Full answers having been filed by the Rail

taken, the cases were brought on to final hearing, and on May 11, 1911, final decrees They were made, the same in both cases. enjoined the commissioners and their successors, the individual shippers named as de

tually charged and that which would have been charged had the rate inhibited been applied, also showing the particulars of the carriage, and the names of the persons affected as far as practicable, the record to be kept subject to the further order of the court, and further conditioned that if it should eventual*On July 18, 1908, the two railway compa- ly be decided that so much of the order as nies concerned-the St. Louis, Iron Moun- inhibited the enforcement of the rates ought tain & Southern, which for brevity may be not to have been made, the complainant called the Iron Mountain, and the St. Louis should within a reasonable time to be fixed Southwestern, which may be called the by the court refund in every instance to the Southwestern-brought separate suits in eq- party entitled the excess in charge over uity in the Circuit Court (now the District what would have been charged had the inCourt) of the United States for the Eastern hibited rates been applied, together with lawDistrict of Arkansas against the members of ful interest and damages. Complainants enthe state Railroad Commission in their of- tered into such bonds with sureties. Later ficial capacity, and against two citizens of an additional injunction bond was required that state named as frequent shippers of to be and was furnished by each complainant, freight upon the railroad lines, for injunc- but without sureties, conditioned substantialtions to restrain the enforcement of certainly as above. intrastate freight and passenger rates; setting up that the commission was duly organ-road Commission, and testimony having been ized under an act of the Legislature, and was thereby authorized to fix rates to be charged by the railroads in the state of Arkansas for the transportation of freight and passengers in that state; that the commission had officially adopted a tariff of freight | fendants, and all other patrons of the road in rates applying to all classes and commodities of freight on all railroads operated in the state, and had ordered it to take effect on June 15, 1908; that the rates were unreasonable, unjust, discriminatory, confiscatory, and void; that they did not yield an adequate return for the services rendered; and that the operation of said tariff would deprive complainants of their property without due "And the court reserves and retains unto itself process of law and deny to them the equal protection of the laws, in violation of section jurisdiction of the subject-matter of this suit 1 of the Fourteenth Amendment to the Con- and of all parties hereto, to the end that such other and further orders and decrees may be It was furstitution of the United States. made herein as may become necessary by reason ther alleged that the rates for the transporta- of any changed conditions as to the facts, equition of passengers in the state fixed by anes or rights that may hereafter take place or act of the Legislature passed February 9, arise." 1907, and promulgated by order of the railroad commissioners, were confiscatory and void in their effect upon the complainant railways and, therefore, violative of the Fourteenth Amendment; but the passenger rates are not involved in the present appeals, and need not be further mentioned.

The jurisdiction of the federal court depended solely *upon the ground that the cases arose under the Constitution of the United States, and that the matter in controversy in each case exceeded the jurisdictional amount. Temporary injunctions were issued in September, 1908, and continued in force during the pendency of the suits. The Circuit Court upon granting them ordered in each case that the complainant should execute a bond in the penal sum of $200,000, conditioned that complainant should keep a correct account re specting its carriage of passengers and freight, |

the shipment of freight between stations in the state of Arkansas, from enforcing or attempting to enforce any of the provisions of the freight tariff in question. In addition to this, and after disposing of the question of costs, each decree ordered that the bond for injunction be released and the sureties thereon discharged from liability, and concluded as follows:

The railroad commissioners appealed to this court (the defendant shippers having been severed), the cases were heard together, and the decrees of the Circuit Court were reversed June 16, 1913, with directions to dismiss the bills without prejudice. Allen v. St. Louis, Iron Mountain & Southern Ry., 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625. The causes were remanded to the District Court, the mandate in each case reciting the reversal and the order remanding the cause with directions to dismiss the bill without prejudice, and concluding as follows:

"You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.”

*139

Upon the going down of the mandates the contravention of the Constitution of the UnitDistrict Court on July 18, 1913, entered de- ed States." crees in obedience thereto dismissing the bills without prejudice and dissolving the injunctions; and at the same time and as a

part of the same decrees made a reference under a rule of the court to a special master for the purpose of determining the damages alleged to have been sustained by the railroad commissioners by reason of the granting of the temporary and permanent injunctions, declaring:

"That in determining these damages, for the recovery of which the said commissioners are not acting for themselves but for the benefit of all persons, shippers, consignees and passengers, who have sustained any damages by reason of the granting of said injunctions," the master was authorized to examine witnesses and to give notice by publication that all persons naving claims against the complainants by reason of the granting of the injunctions should present them within a time specified for the

purpose.

Under this reference the appellants in cases Nos. 92 and 93 and the appellees in Nos. 94 and 95 intervened and presented claims for a refund of the difference paid by them in freight rates between the rates prescribed by the commission and those put in force by the railway companies. The master reported favorably upon these claims, dividing the amounts allowed into three periods, the first and second of which included the time elapsed between September 3, 1908, when the interlocutory injunctions were issued, and May 11, 1911, the date of the final decrees, and the third period included the time elapsed between the latter date and July 18, 1913, the date of the decrees entered upon the mandates. The railway companies filed exceptions to the master's report, which were sustained by the District Court as to the claims involved in cases Nos. 92 and 93 and overruled as to those involved in Nos. 94 and 95, and a combined decree was made accordingly. [1, 2] The parties aggrieved desiring to appeal, and being in doubt whether the appeal lay to this court or to the Circuit Court of Appeals, prayed for and were allowed appeals to both courts. Hence the first question that confronts us is whether the decree is the subject of a direct appeal to this court. We are clear this question must be answered in the affirmative. The appeals from the final decrees in the main causes were brought direct to this court, because of the constitutional question, under section 5 of the Circuit Court of Appeals Act of March 3, 1891 (26 Stat. 827, c. 517), which provided for such an appeal in the following *cases, among others:

"In any case that involves the construction or application of the Constitution of the United States. * In any case in which the Constitution or law of a state is claimed to be in

This section, of course, was the predeces3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § sor of section 238, Judicial Code (Act March 1215]), under which the present appeals of the Railroad Commission were state laws were taken. And it is plain that the orders within the meaning of this provision. Williams v. Bruffy, 96 U. S. 176, 183, 24 L. Ed. 716; Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 555, 34 Sup. Ct. 364, 58 L. Ed. 721. The provisions of the Judicial Code which regulate the jurisdiction of the Circuit Court of Appeals originated in section 6 of the act of 1891. They must be construed together with those provisions of law that confer upon the District Court (section 24, Judicial Code [Comp. St. § 991]), and formerly conferred upon the Circuit Court, original jurisdiction in suits of a civil nature arising under the Constitution or laws of the United States, and in suits between citizens of different states. By section 128 of the Code (Comp. St. § 1120), the Circuit Courts of Appeals are to exercise appellate jurisdiction over the final decisions of the District Courts "in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section 238, unless otherwise provided by law; and, except as provided in sections 239 and 240, the judgments and decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely" upon diversity of citizenship. Section 239 (Comp. St. § 1216) provides for the certification of questions by the Circuit Court of Appeals to this court; section 240 (section 1217) permits this court to review by certiorari any case in which the judgment or decree of the Circuit Court of Appeals is made final; and, by section 241 (section 1218), in any case in which the judgment or decree of that court is not made final, there may be an appeal or writ of error *to this court where the matter in controversy exceeds $1,000 besides costs.

The present appeals relate to a decree made in a subordinate action ancillary to the main causes, in which, as has been stated, the federal jurisdiction was invoked solely upon the ground that the cases arose under the Constitution of the United States. It has been held repeatedly that jurisdiction of subordinate actions is to be attributed to the jurisdiction upon which the main suit rested, and hence that where jurisdiction of the main cause is predicated solely on diversity of citizenship and the decree therein is for this reason made final in the Circuit Court of Appeals, the judgments and decrees in the ancillary litigation also are final. Rouse v. Letcher, 156 U. S. 47, 15 Sup. Ct. 266, 39 L. Ed. 341; Gregory v. Van Ee, 160 U. S. 643, 16 Sup. Ct. 431, 40 L. Ed.

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