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644-647

SUPREME COURT OF THE UNITED STATES.

ognized and acknowledged by Rev. Stat. §
2339, above cited, but professed itself "un-
able to find from a preponderance of the evi-
dence in the record, that the defendants or
either of them, had appropriated the land in
dispute, and that they were, or that either
of them was, in actual possession of it when
the plaintiff located its right of way, took
actual possession, and engaged in grading
it.
We cannot regard the plaintiff as a
mere intruder on the defendants' possession,
nor can we hold that they had a right to
prevent the plaintiff's employees from grad-
ing it and to eject plaintiff from actual pos-
It is true that defendants had sur-
session.
veyed for dams and reservoirs at different
points on the river, but they had not taken
and did not hold actual possession of the
land in dispute."

[645] *The petition in error for the first time set
up a right and authority under the mining
laws of the United States (Rev. Stat. §
2339), and charged that the decision of the
trial court, as well as of the supreme court
of the state, was against the authority and
validity of the claim of the defendants. The
assignments of error turn principally, if not
wholly, upon the finding of prior possession
on the part of the plaintiff, the refusal of
the court to remove the cause, and its ruling
that the plaintiff had the right under its
charter to construct the road.

which are as follows: First, that the plain-
tiff, prior to the commencement of the suit,
had the possession, right of possession, and
the inchoate title of the lands described; sec-
ond, that the defendant company had no
power in Utah to engage in generating elec-
tric power for sale; third, that defendants
never had the title, possession, or right of
possession, to the lands, or acquired any
vested right in accordance with the laws or
customs of the country, or any right to flow
or otherwise occupy said lands, or prevent
the use and occupation thereof by the plain-
claim was unfounded; fourth, that the plain-
tiff railroad company, and that their adverse
tiff was entitled to judgment.

It is quite evident that these findings in-
volved either questions of fact or questions
of local law, and that while the finding of
the ultimate fact of prior possession may
possibly have been a legal conclusion, it was
not a Federal question. In this particular
the case is covered by Eilers v. Boatman,
111 U. S. 356, 28 L. ed. 454, 4 Sup. Ct. Rep.
432, which was an action for the settlement
of adverse claims to mineral lands. The
case turned upon the priority of location,
which the court held was a matter of fact,
although the court below called it a conclu-
sion of law.

The case under consideration in its mate-
rial aspects resembles that of Bushnell v.
From this résumé of the proceedings, it is Crooke Min. & Smelting Co. 148 U. S. 682,
evident that there was no denial to the de- 37 L. ed. 610, 13 Sup. Ct. Rep. 771, which
fendants of any right they may have pos- was an action of ejectrent growing out of
As stated by Mr. Justice Jack-
sessed by virtue of a priority of possession. conflicting and interfering locations of min-
The statute (Rev. Stat. § 2339) provides ing claims.
that "whenever, by priority of possession, son, "the question presented on the trial of
rights to the use of water" for certain pur- the controversy, under the pleadings, was
poses "have vested and accrued, and the purely one of fact, and had reference to the
same are recognized and acknowledged by true direction which the Monitor lode or vein
the local customs, laws, and the decisions," took after encountering a fault, obstruction,
"shall be
After
or interruption at a point south of the dis-
the owners of such vested rights
maintained and protected in the same," and covery shaft sunk thereon.
their right of way for the construction of the decision had been rendered by the su-
ditches and canals acknowledged and con-preme court of the state a petition for re-
firmed. But in order to establish any rights hearing was presented by the plaintiffs in
under the statute it was incumbent upon the error, which, for the first time, sought to
defendants to prove their priority of posses- present a question whether § 2322 of the Re-
"the exclusive right of pos-
sion, or at least to disprove priority on the vised Statutes of the United States gave to
part of the plaintiff. The question, Who had the appellants
acquired this priority of possession? was not session" and enjoyment of all other veins or
The court held it
a Federal question, but a pure question of lodes having their apexes within the Moni-
fact, upon which the decision of the state tor's surface ground.'
to be "plainly manifest that neither the
court was conclusive. No construction was
put upon the statute; no question arose un-pleadings *nor the instructions given and re-[647]
der it but a preliminary question was to be
decided before the statute became material,
and that was whether defendants were first
in possession of the land. Even if priority of
possession had been shown, it would still
have been necessary to prove that defend-
ants' right to the use of the water was rec-
ognized and acknowledged by the local cus-
toms, laws, and decisions, all of which were
questions of state law.

In this connection, an attempt is made to
distinguish between the findings of fact and
Defendants concede
the conclusions of law.
that they are bound by the findings of fact
upon the subject of possession, but that they
bound by the conclusions of law,
[646]re not
308

fused present any Federal question, and an examination of the opinion of the supreme court affirming the action of the trial court as to instructions given, as well as its refusal to give instructions asked by the defendants below, fail to disclose the presence of any Federal question." In this connection Mr. Justice Jackson quotes the remark of the chief justice in Cook County v. Cal umet & C. Canal & Dock Co. 138 U. S. 635, 653, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435: "The validity of a statute is not drawn into question every time rights claimed under such statute are controverted, nor is the validity of an authority every time an act done by such authority is disputed." See also Doe

175 U. S.

er dem. Barbarie v. Mobile, 9 How. 451, 13 L. ed. 212.

3.

4.

istence of a dissimilarity of circumstance and condition within the meaning of § 4 of the act, although that competition does not originate at the initial point of the traffic.

The Interest of the public,-especially at the place from which traffic moves and the place to which it is to be delivered, as well as that of the carrier, must be taken into consideration in determining the right of the carrier to charge, of his own motion, a lesser sum for the longer haul.

Evidence cannot be weighed by the Supreme Court, as a matter of first impression, in a suit to enforce an order of the Interstate Commerce Commission, for the purpose of ascertaining whether it establishes such substantial and material competition as justified a carrier in concluding that dissimilarity of circumstance and condition was brought about.

The position of the plaintiffs in error is that, as their whole case depended upon the rights asserted by them under § 2339, and that, as the courts decided adversely to the rights claimed by them, there was no necessity of a special reference to that statute, relying in this connection upon such cases as Miller v. Nicholls, 4 Wheat. 311, 4 L. ed. 578; Satterlee v. Matthewson, 2 Pet. 380, 410, 7 L. ed. 458, 468, and others cited in Columbia Water Power Co. v. Columbia Electric Street R. Light, & Power Co. 172 U. S. 475, 488, 43 L. ed. 521, 526, 19 Sup. Ct. Rep. 247, in which we have held that, if it sufficiently appear from the record that the validity of a state statute was drawn in question as repugnant to the Constitution of the United States, and the question was decided, or such decision was necessarily involved in the case, and the case could not have been determined without deciding such question, the fact that it was not in terms specially set up and claimed in the record is not conclusive against a review of the question here. But the difficulty in this case is that, before it could be said that any right or title under a statute of the United States had been denied, it was necessary to establish as a question of fact priority of possession on the part of the Telluride Company, as well as conformity to local customs, laws. and decisions. These were local, and not Federal, questions. The jurisdiction of this Argued April 17, 18, 1899. Decided Janu

court in this class of cases does not extend to questions of fact or of local law, which

are merely preliminary to, or the possible

basis of, a Federal question.

The writ of error must therefore be dismissed.

[648] LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., Appts.,

V.

HENRY W. BEHLMER.

(See S. C. Reporter's ed. 648-676.) Act to Regulate Commerce-competition as affecting similarity of conditions-greater charge for shorter haul-competition not originating at initial point-considering nterest of public-nature of competition to be considered-evidence weighed by Supreme Court-entering decree nunc pro

1.

2.

tunc.

5.

6.

The right of a carrier to take into consideration the existence of competition as the producing cause of dissimilar circumstances and conditions is subject to the requirement that all rates shall be just and reasonable and without undue discrimination, and that competition shall be not artificial or merely conjectural, but material and substantial.

A decree of reversal for further proceedings is properly entered nunc pro tunc as of the date of the submission of the cause on appeal, where one of the parties has died since the case was submitted.

[No. 46.]

ary 8, 1900.

A Circuit Court of Appeals for the Fourth Circuit reversing the judgment of the Circuit Court dismissing a bill for the enforcement of an order of the Interstate Commerce Commission. Reversed.

PPEAL from decree of the United States

See same case below, 42 U. S. App. 581, 83 Fed. Rep. 898, 28 C. C. A. 229.

Statement by Mr. Justice White: *This controversy was commenced on De-[649] cember 29, 1892, when Henry W. Behlmer, a resident of Summerville, South Carolina, and a wholesale hay and grain dealer therein, began proceedings before the Interstate Commerce Commission, under the Act to Regulate Commerce, passed February 4, 1887, as amended, to restrain the continuance of acts asserted by him to be a violation of the statute referred to. The petition was filed by Behlmer on his own behalf, and that of other merchants, residents of Summerville, and the parties complained of were the Memphis & Charleston Railroad Company, the East Tennessee, Virginia, & Georgia Railroad Company, the Georgia Railroad & Banking Company (the owner of a railroad designated as the Georgia Railroad), which additional exaction is received by the the South Carolina Railway Company, and local road alone, are to be regarded as constiother companies and individuals, who were tuting a continuous line subject to the Act averred to be lessees or receivers of some of to Regulate Commerce (24 Stat. at L. 379). the above-named companies. All the lines Competition which is material, arising from carriers who are subject to the Act to Regu- of railroad mentioned were asserted to be late Commerce, can be taken into considera-members of a combination styled the Southtion for the purpose of determining the ex- ern Railway & Steamship Association.

Railroads which share in an agreed rate on traffic to a certain point, and in a precisely equal rate on traffic to an intermediate point, although on traffic to this point there is added an amount equal to the local rate from that point to the end of the longer haul,

649-652

many markets other than Memphis, was
stated in the joint and several answers of
the Louisville & Nashville Railroad Com-
pany and the Central Railroad & Banking
Company as follows:

It was averred that the defendants were | freight rate on hay carried from Memphis to carriers under a common control, manage- Summerville, as well as the local rates from Charleston to Summerville, were just and ment, or arrangement for continuous carriage, and were engaged in the transporta- reasonable. By some of the defendants it tion of passengers and property wholly by was alleged that the transportation of hay railroad between Memphis in the state of from Memphis to Summerville was not done Tennessee and Summerville in the state of under substantially similar circumstances South Carolina and through Summerville to and conditions as the transportation of like [650]Charleston. The distance between *Memphis property from Memphis to Charleston, and and Summerville was averred to be 748 hence the carriers were justified in making miles, as follows: Between Memphis and a lesser charge to Charleston than was made Chattanooga, 310 miles over the Memphis & to Summerville. the shorter distance. The Charleston Railroad; between Chattanooga dissimilarity alleged was asserted to have and Atlanta, Georgia, 152 miles over the been caused. first, by the existence between East Tennessee, Virginia, & Georgia Rail- Memphis and Charleston of at least eight road; from Atlanta to Augusta, Georgia, 171 competing lines of railroad. and second, by miles over the Georgia Railroad; and from the competition by sea on hay and grain and Augusta, Georgia, to Summerville, South freight of that class, originating in Chicago, Carolina, 115 miles over the South Carolina New York, and eastern points and destined Railway. The principal subject of com to Charleston via the lakes, canal, and ocean, plaint was, that though Summerville was 22 and by part water and part rail. The exact miles west of Charleston and was that dis- condition of the competition existing at tance nearer to Memphis, where the hay and Charleston because of its situation on the grain shipments originated, yet the defend-seaboard and consequent relations with ants exacted from the petitioner and other merchants of Summerville a freight charge of 28 cents per 100 pounds for hay, carried from Memphis to Summerville, while only 19 cents per 100 pounds were charged for the same article when carried to Charleston, the longer distance. It was averred that the rate of 28 cents to Summerville was made up of the through rate to Charleston, with the addition of the local rate from Charleston to Summerville of 9 cents per 100 pounds. It was also alleged that the shipments of hay to Summerville were made over the same line, in the same direction as Charleston, and under substantially similar circumstances and conditions. The freight charges complained of were averred to be in violation of the 4th section of the Act to Regulate Commerce, commonly referred to as the long and short haul clause. Besides, it was alleged that the local rate between Summerville and Charleston of 9 cents per 100 pounds was excessive and unreasonable, and that such also was the case as regards the charge of 28 cents from Memphis to Summerville, and hence such charges were in violation of the 1st section of the Act to Regulate Commerce. It was also asserted that the discrimination and excessive rates against Summerville existed, not only on hay, "but on all articles of interstate commerce coming to that place, much to the detriment and disadvantage of the town and the business of its merchants."

"(Second.) Charleston is a port on the Atlantic coast, accessible and easily reached from the ports of Baltimore, Philadelphia, New York, Boston, and other eastern ports from which hay is shipped by water. If the rail lines from Memphis to Charleston charged rates to Charleston as high as the rate to Summerville, although the latter rate is in itself reasonable, no hay would be brought from Memphis to Charleston, but Charleston would be supplied with hay from north Atlantic ports and the railroads would lose the hay business and Memphis would lose a hay market.

as

(Third.) The rates on western produce[652] to Charleston and other coast cities, such as Savannah, Port Royal, and Brunswick, are Western produce, such made with a view to actual, existing water competition. grain, hay, etc., distributed from Chicago, can reach Charleston through the ports of New York, Philadelphia, and Baltimore over or over combined rail and water continuous water routes via the lakes and canal

routes.

"The all-rail lines seeking to do business between Chicago and Charleston and other coast cities are compelled to make their rates approximate those which are offered by the continuous water route or by the combined In their answers certain of the defend-rail and water routes. The all-rail routes ants conceded that they were subject to the make their rates as much higher as the dif [651]Act to Regulate Commerce, while *others, ference in the service will permit, and those rates are correspondingly adjusted from ail though admitting that they were common carriers and engaged in the transportation western points, such as Evansville, Cairo, St. At present the allof passengers wholly by railroad between Louis, Memphis, etc. points in the states of Tennessee and South rail rate from Chicago to Charleston on hay, Carolina, averred that they had no joint for instance, is 33c. per 100 lbs.; from St. through tariff from Memphis to Summer-Louis, 28c.; from Louisville, Evansville, and ville, and therefore had no "line" from Memphis to Summerville, in the sense of the Act to Regulate Commerce, and were in conseAll the quence not affected by the statute. that defendants averred the aggregate

Cairo, 23c.; and from Memphis, 19c.-the route through Memphis offering facilities for the transportation of hay, grain, and western products generally from the states 175 U.S. of Missouri, Kansas, Nebraska, etc.

"The rate from Memphis to Charleston on hay is therefore forced upon the defendant lines by actual existing water competition and other competition beyond the control of defendant.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

*The questions which arise on this record[654] involve the consideration of several provisions of the Act to Regulate Commerce. 24 Stat. at L. 379.

"The controlling element in said competition is the lake, canal, and ocean transportation between Chicago and Charleston; or the The particular questions at issue and the lake transportation from Chicago to But aspect in which they arise will be best shown falo, or other lake port, thence by rail to by first considering the action of the ComNew York, thence by ocean to Charleston; mission, then that of the circuit court in reor rail transportation from Chicago to Bal-viewing the order of that body, and, thirdly, timore, Philadelphia, or New York, thence by ocean to Charleston."

that of the circuit court of appeals in reversing the decree of the circuit court. The Commission held, as a matter of fact, that the carriers so conducted their business as to constitute a through line within the meaning of the commerce act, and were therefore amenable to its provisions. It did not, however, consider whether the rates to Summerville and Charleston were just and reasonable, because it deemed it unnecessary to do so. The reason for this conclusion was stated as follows:

"If it shall appear in this case that the defendants violate the long and short haul clause of the law by keeping the higher rate to Summerville in force, it will be unnecessary to consider in this report whether the rate to Summerville is in violation of other provisions of the law. In that event the prohibition in the 4th section will afford all the reduction demanded in the complaint." 4 Inters. Com. Rep. 522.

On the foregoing issues testimony was taken before the Commission, which entered an order requiring the defendants to desist on or before a date named from charging any greater sum in the aggregate for the transportation from Memphis to Summerville of hay, or other commodities carried [653]by them, *under circumstances and conditions similar to those appearing in the case, than was being charged for such transportation for the longer distance to Charleston. This order, however, stated that it was made without prejudice to the right of the defendants to apply to the Commission for | relief under the 4th section of the Act to Regulate Commerce. The order not having been obeyed, Behlmer, as authorized by § 5 of the act of March 2, 1889 (25 Stat. at L. 855, chap. 382), amending § 16 of the orig. inal act, filed his complaint in the circuit court of the United States for the fourth circuit, eastern district of South Carolina, against the defendants in the proceedings before the Commission and the purchasers, assignees, and successors of some of them, praying that the court might enforce compliance with the order of the Commission. By stipulation the testimony taken before the Commission was used at the hearing in the circuit court, and by consent certain documentary evidence (consisting of railway agree- This determination of the Commission to ments, tariffs, reports, etc.), was filed as ad-restrict its examination of the evidence soleditional evidence on behalf of the defendants. ly to the extent necessary to enable it to The case was heard by the circuit court, ascertain the source and inherent character, and on January 22, 1896, the bill was or- and not the materiality and substantiality, dered to be dismissed. 71 Fed. Rep. 835. of the competition, and therefore to exclude The controversy was then taken by appeal wholly from view the latter considerations, to the circuit court of appeals for the fourth was predicated on the conclusion that, as a circuit, and that court reversed the judgment matter of law, no competition, however of the circuit court, and remanded the cause great might be its influence on carriage and with instructions to render a decree sub-rate making, could be by the carrier taken stantially in accordance with the order made by the Commission. 42 U. S. App. 581, 83 Fed. Rep. 898, 28 C. C. A. 229. A motion for a rehearing having been denied, the case was then brought to this court.

act, the Commission declined to weigh the
When it approached the 4th section of the
evidence before it as to the existence of com-
petition, except in so far as to enable it to
determine that the evidence established that
the competition relied upon by the carriers
did not originate at the point of shipment,
or if it did arise at such place it was alone
engendered by the presence there of other
carriers who were subject to the commerce
law.

into consideration, of his own motion, in determining whether a lesser sum would be charged for the longer than for the shorter haul, if such competition arose from the sources or was wholly of *the character which[655] it was found by the Commission the proof established the competition relied on to be. That is to say, the Commission concluded, as a matter of law, that it was unnecessary to weigh the facts for the purpose of determining the materiality and extent of the competition, because, however strongly the proof might demonstrate its potency upon traffic and rates, nevertheless it would be without The contentions of counsel sufficiently ap-efficacy to give rise to such substantial dispear in the opinion. similarity as would justify the carrier, of

Mr. Ed. Baxter argued the cause and filed a brief for appellants.

Mr. Joseph W. Barnwell filed a brief for appellants in opposition to a motion to vacate supersedeas.

Mr. Claudian B. Northrop argued the cause and filed a brief for appellee.

655-657

Inters. Com. Rep. 120,
therefor and after investigation. Trammell
v. Clyde S. S. Co.

5 I. C. C. Rep. 324; and Gerke Brewing Co.
v. Louisville & N. R. Co. 4 Inters. Com. Rep.
267, 5 I. C. C. Rep. 596." 4 Inters. Com. Rep.
523.

The circuit court held that one of the de-
fendants had not been served with process
so as to cause any decree which might be ren-
dered to be conclusive, and, moreover, decided
that the proof did not establish that the car-
riers, in the matter complained of, were un-
der a common control and management for
continuous shipment, within the meaning of
the act, and therefore they were not, as to
such carriage, amenable to the provisions of
the act. The court, however, proceeded as
follows (71 Fed. Rep. 839):

his own motion, to charge a lesser rate for the longer than for the shorter haul. Whilst this was held to be the law, at the same time it was decided that the character of competition, which from its very nature was decided to be inadequate to create such legal dissimilarity in the conditions as to justify the carrier, of his own motiou, charging a lesser sum for the longer than that for the shorter haul, nevertheless might authorize the Commission to sanction the lesser charge if the facts were presented to the Commission and its previous sanction to making such charge was obtained. Therefore the right of the carrier to prefer to the Commission a request for authority to make the charge complained of, predicated upon the "But if we assume, for the sake of arguvery grounds which were held insuflicient to permit the carrier to do so, on his own motion, was fully reserved. The ruling was, ment, that all the defendants are affected by then, this, that some kinds of competition, this charge, does it violate the 4th section however material and substantial in their of the act above quoted? Judge Cooley, in operation, were vet inadequate, for the pur- Re Southern R. & S. S. Asso. 1 Inters. Com. pose of creating dissimilarity in circum- Rep. 278, sub nom. Re Louisville & N. R. Co. stance and condition, to justify the inde- 1 I. C. C. Rep. 57, says: The charging *or[657] pendent action of the carrier, although the receiving greater compensation for the shortidentical conditions of competition might beer than for the longer haul is sure [seen] to sufficient to produce such dissimilarity as to justify the Commission, on application made to it for such purpose, to authorize the carrier to charge less for a longer than was ex

acted for a shorter distance. sion said in its report:

The Commis

be forbidden only where both are under sub-
ditions. And, therefore, if in any case the
stantially the same circumstances and con-
carrier, without first obtaining an order of
relief, shall depart from the general rule, its
so doing will not alone convict it of illegal-
ity, since, if the circumstances and condi-
tions of the two hauls are dissimilar, the
statute is not violated.' This is quoted with
Inter-
approbation by the United States circuit
court, southern district California.
state Commerce Commission v. Atchison, T.
& S. F. R. Co. 50 Fed. Rep. 295, 4 Inters.
Com. Rep. 323.

to continue.

"There is no showing in this proceeding of competition by lines not subject to the Act to Regulate Commerce for the carriage of hay from Memphis to Charleston, and the fact that there may be competition for such traffic by lines which are subject to the act, or that hay may be carried to Charleston by "When, then, may the circumstances and various rail and water, or part rail and part [656]water, routes from points other than Mem- conditions of the two hauls be said to be disphis, does not justify the defendant carriers similar? Judge Cooley, in the same case, in departing from the general rule of the 4th answers this question: "Among other things section upon their own motion. Such con- in cases where the circumstances and condisiderations may constitute reasons for ap- tions of the traffic were affected by the eleplying to the Commission for relief under ment of competition, and where exceptions the proviso clause of that section, but for might be a necessity if the competition were And water competition was, reasons stated in our decisions of the cases above cited they do not justify carriers in beyond doubt, especially in view.' "In the case from 50 Fed. Rep. above cited, 'Los Angeles, departing from the rule of the 4th section without such a relieving order. Water com- this is one of the rubrics: petition, to justify lower long-haul rates, California, is a point to which there is active must exist between the point of shipment competition in certain kinds of freight beand the longer-distance point of destination. tween several transcontinental railway lines, James & M. Buggy Co. v. Cincinnati, N. O. direct or by water, via Vancouver and San & T. P. R. Co. 3 Inters. Com. Rep. 682, 4 I. Francisco; also, by ocean freights via AspinC. C. Rep. 744. One transportation line can- wall and the Straits of Magellan, from points not be said to meet the competition of an- east of the Missouri river. And a through other transportation line for the carrying rate on the same kind of freight, lower than trade of any particular locality, unless the to San Bernardino, an intermediate, noncomlatter line could and would perform the serv-petitive point, 60 miles from Los Angeles, ice alone if the former did not undertake it. on one of the competing railroad lines, is Chattanooga Bd. of Trade v. East Tennessee, not prohibited by the act, since the circumV. & G. R. Co. 4 Inters. Com. Rep. 213, 5 I. stances and conditions were substantially C. C. Rep. 546. The competition of markets, dissimilar.' or the competition of carrying lines, subject to regulation under the Act to Regulate Commerce, does not justify carriers in making greater short-haul or lower long-haul charges over the same line without an order issued by the Commission on application

"The circumstances of the case at bar are closely like those of the case just quoted. Charleston is a competitive point between all railroad routes, routes partly by rail and partly by water, and routes all water. If 175 U.S. the defendants had not consented with each

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