"Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced." In the former case it is said: "The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agent acts in that transportation, it is subject to the regulation of Congress." Page 565, 10 Wall., 19 L. Ed. 999. And in the latter: "But this movement [from state to state] does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them to the depot where the journey is to commence is no part of that journey. Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain." Page 528, 116 U. S., page 479, 6 Sup. Ct., 29 L. Ed. 715. The Daniel Ball Case involved the authority of the United States to license a vessel engaged in transportation on its navigable waters, and Mr. Justice Field, who delivered the opinion, took pains to say (page 566, 10 Wall., 19 L. Ed. 999): "We are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation." In 1887, Congress passed what is known as the "Interstate Commerce Act" (Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), and, not content with the definition to be drawn from these cases, in the first section defined as follows, common carriers engaged in interstate or foreign commerce made subject to the act: "The provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment, from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country." In Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940, the Supreme Court, speaking by Mr. Justice Shiras, after quoting the above provisions, said (page 212, 162 U. S., page 672, 16 Sup. Ct., 40 L. Ed. 940): "It would be difficult to use language more unmistably signifying that Congress had in view the whole field of commerce (excepting commerce wholly within a state), as well that between the states and territories as that going to or coming from foreign countries." If this statement be accurate, if Congress, by this definition, did mean to include within its regulating power every carrier engaged in interstate or foreign commerce, then to be a "common carrier engaged in interstate commerce by railroad," within the meaning of the Safety Appliance Act, a railroad must be "engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water when both are used, under a common control, management, or arrangement for the continuous carriage or shipment" from one state to another. The court below, taking the view that the interstate commerce act and the safety appliance act are in pari materia, and referring to the above definition, reached the conclusion there was no arrangement between the two roads for a continuous carriage or shipment from one state to another, and therefore found in favor of the defendant, holding it was not engaged in interstate commerce. It is vigorously insisted that the acts are not in pari materia, and that Congress, by the use of broader terms in the later act, intended a wider application of its provisions. In one sense, the two acts are in pari materia, in another, not. Both relate to the regulation of commerce among the states under the supervision of the Interstate Commerce Commission. The first deals largely with rates and fares-the cost of the commerce; the second with locomotives and cars-the instrumentalities used to carry it on. The first was intended, primarily, to protect shippers; the second, railroad employés; both, ultimately, to promote the best interests of the public. In each act, Congress seeks to regulate commerce. What commerce? Commerce among the several states. It was desirable, therefore, in the first act, to define that commerce. Having done this once, it was sufficient, in the second act, to apply its provisions to carriers "engaged in interstate commerce,' adopting the definition of the first. This brings us to the question whether the defendant was "engaged in interstate commerce" within the meaning of the congressional definition. In the case of Cincinnati, New Orleans & Texas Pacific Railway v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935 (the Social Circle Case), it was held that the Central Railroad of Georgia was engaged in an act of interstate commerce in transporting from one point to another in Georgia freight which had been shipped from Cincinnati, Ohio, to Social Circle, Ga., under a through bill of lading, with a through charge and an arrangement for a conventional division of the entire charge among the railroads contributing to the movement of the traffic. Mr. Justice Shiras, speaking for the court, said (page 193, 162 U. S., page 704, 16 Sup. Ct., 40 L. Ed. 935): "All we wish to be understood to hold is that when goods shipped under a through bill of lading, from a point in one state to a point in another, are received in transit by a state common carrier under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. When we speak of a through bill of lading, we are referring to the usual method in use by connecting companies, and must not be understood to imply that a common control, management, or arrangement might not be otherwise manifested." "It may be true," said the same Justice (page 191, 162 U. S., page 703, 16 Sup. Ct., 40 L. Ed. 935), "that the Georgia Railroad Company, as a corporation of the state of Georgia, and whose entire road is within that state, may not be legally compelled to submit itself to the provisions of the act of Congress, even when carrying between points in Georgia freight that has been brought from another state." In the present case there was no through bill of lading, no through charge, no conventional division thereof among the carriers, and no arrangement for a continuous carriage or shipment, unless the method of transfer by which the receiving road assumed the payment of the charges of the delivering road constituted such an arrangement. If it did, then the only way a local road can escape participation in an arrangement for a continuous carriage or shipment of freight from one state to another is to refuse altogether to handle such freight; and it cannot do this, for, as a common carrier, it is bound to receive and transport from one point to another on its line, freight offered it for transportation, regardless of the origin or destination of the freight; so, notwithstanding the fact that, in the cases of Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586, Pullman Company v. Adams, 189 U. S. 420, 23 Sup. Ct. 494, 47 L. Ed. 877, and Pennsylvania R. R. Co. v. Knight, 192 U. S. 21, 24 Sup. Ct. 202, 48 L. Ed. 325, the Supreme Court apparently recognized the privilege of express, sleeping car, and railroad companies to limit the nature of their business, making it local or interstate or both, as they please, under this construction of the law, there could be no option or choice on the part of the local road as to whether it would or would not engage in interstate commerce, and thus subject itself to the acts of Congress regulating that business. The defendant company did all it could to keep its business local. It limited its interest, so far as it could, to the transportation of the freight over its own line. It made no arrangement with the Baltimore & Ohio for through carriage either way. It was interested in none. It shared in none. It was interested only in its own local charge, and whatever arrangement it made was with a view simply of securing this. The fact that certain goods transported by it were marked for other states or received from other states did not make it a party to any arrangement for their interstate transportation in either direction. The part it performed was purely local. The interstate portion of the transportation was performed by the Baltimore & Ohio. When it delivered the goods to that road, they were still in Ohio. They might have stopped there for aught it cared. It had made no arrangement for their transportation any further. And so with the goods it received from the Baltimore & Ohio. They were offered to it in Ohio, and it was a matter of indifference to it where they came from. It had been no party to their transportation into Ohio. It received them virtually as Ohio goods, and carried them from one point to another in the state. Taking the view that the defendant road, at the time of the acts complained of, was not engaged in interstate commerce, and that the cars which hauled the cases of eggs from Summerfield to Bellaire, and the coils of rope from Bellaire to Woodsfield, were not engaged in "moving interstate traffic," we affirm the judgment of the lower court. (131 Fed. 577.) THOMPSON et al. v. SCHENECTADY RY. CO. et al. No. 167. 1. JUDGMENT-CONCLUSIVENESS-PARTIES. Where whatever rights complainants acquired in the property of a street railway company were acquired after a foreclosure decree had been entered, but before the decree had been executed by a sale of the mortgaged property, under an agreement between complainants and the street railway company's receiver, and complainants were not parties to the foreclosure proceeding, they were not bound by the decree therein. 2. STREET RAILWAYS-FRANCHISE-Surrender-CONSENT OF STATE. Where the consent of the state was not obtained to a contract between complainants and the receiver of a street railway company and a city, by which the railway company was permitted to permanently discontinue its railway on a certain street, such contract was void as against public policy, the right to operate the same being a franchise granted by the state on considerations of public welfare. Appeal from the Circuit Court of the United States for the Northern District of New York. See 119 Fed. 634; 124 Fed. 274. Marcus T. Hun, for railway company. A. H. Van Brunt, for trust company. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. WALLACE, Circuit Judge. This is an appeal from a decree for the complainants, and presents the question whether, upon the conceded facts, as appearing by the bill of complaint, the complainant was entitled to relief. The bill is one in the nature of a bill of review to revise a decree of the United States Circuit Court for the Northern District of New York in an action brought by the Central Trust Company against the Schenectady Street Railway Company for the foreclosure of a mortgage made by the railway company. The decree was entered September 1, 1894. Included in the property covered by the mortgage was that part of the railroad of the mortgagor which had been constructed along Washington avenue, in the city of Schenectady, and this part of the railroad was included in the property decreed to be sold, and was sold under the decree January 12, 1895, to Kobbe and others. The sale was confirmed, and a conveyance made to the purchasers February 8, 1895. The complainants are property owners upon Washington avenue, who seek to restrain the Schenectady Railway Company, a corporation, which acquired the mortgaged premises February 17, 1895, from operating its road upon a portion of that street. They assert by their bill that during the pendency of the foreclosure action the receiver in the action, appointed by the court, was in possession of the mortgaged property, and joined with certain property owners upon Washington avenue, including some of the present complainants, in a petition to the common council of the city of Schenectady asking that body to consent and authorize the mortgagor to discontinue permanently the running of its cars. upon said street and to remove its track, and that October 2, 1894, the common council adopted a consenting resolution. The specific relief prayed for by the bill is that the foreclosure decree be revised so as to omit the Washington avenue property from the property therein, and so as to provide that the agreement between the receiver and the Washington avenue property owners and the city of Schenectady be approved by the court, and be binding upon all the parties to the action; and that the defendants be permanently enjoined from doing any act in the construction or operation of any sort of a railroad upon any part of the street. Whether the matters set forth in the bill make a case which, assuming it to be one entitling the complainants to relief in equity, can be appropriately presented by a bill or a supplemental bill in the nature of a bill of review, or which can be presented only by an original bill, we need not decide. The original suit decided nothing which could prejudice the complainants. They were not parties, and could not be affected by any decree. Whatever rights they acquired in the mortgaged premises were acquired after the decree had been entered, but before the decree had been executed by a sale of the mortgaged premises by an agreement made with the receiver. Doubtless they could have applied to the court for an approval of that agreement and a modification of the decree recognizing and giving effect to it. The requisite diversity of citizenship to maintain an original bill in this court does not exist between the parties. We think the facts did not afford any ground of relief, whether by a bill of review, or one in the nature of such a bill. The relief which they seek to obtain is the enforcement of an agreement which they assert was constituted by the action of the receiver, the property owners, and the common council of Schenectady, and by which they claim that the parties to the foreclosure action and their successors in title to the mortgaged premises are bound to an abandonment of the right to operate a railroad upon part of the street; and they urge that the court can now approve the action of the receiver and ratify the agreement with the same effect as though an application had been made and granted in the foreclosure suit. To do this would be, in effect, to decide that the court, whose officer the receiver was, would have approved the agreement if an application had been made to it, or ought to have approved it had an application been made. The approval of a receiver's contract rests in the sound discretion of the court. It will not be granted merely because the agreement is for the interests of the immediate parties to the suit, and is often determined upon consideration of the interests of those who are not parties, or of the public. It is apparent, from the facts disclosed by the bill, that the so-called agreement was made in the supposed interests of the receiver and the parties to the foreclosure action, and in order to lift the burden of maintaining an unprofitable part of the railroad. It does not appear by the bill that the receiver obtained the consent of the Railroad Commissioners or of the state to the agreement, and the argument for the complainants concedes that such consent was not |