2. EQUITY (§ 290*)-COMPLAINT AMENDMENT.

Where leave is asked to file a substituted bill of complaint, the court can only permit or reject it, and cannot be expected to revise it, and permit it to be filed if drawn in a different form.

[Ed. Note. For other cases, see Equity, Cent. Dig. § 549; Dec. Dig. § 290.*]

3. EQUITY (§ 290*)-BILL-AMENDMENT.

Where, after the pleadings are closed and the evidence taken, complainant deems it necessary to file an amendment to the bill, he should present specific amendments to the paragraphs of the original bill, supporting his application by affidavits, according to equity rule 29, and not make an application to file a substituted bill, which the court would not grant unless satisfied that complainant is entitled to make all the changes which would be made by the substituted bill.

[Ed. Note. For other cases, see Equity, Cent. Dig. § 549; Dec. Dig. § 290.*]

Action by the Old Dominion Copper Mining & Smelting Company against Frederick Lewisohn and others. On motion for leave to file a substituted bill of complaint. Denied.

Edward F. McClennen, for the motion.
Eugene Treadwell, opposed.

NOYES, Circuit Judge. It appears that the pleadings in this case were long since closed, and that the evidence has been taken and is ready for printing. In this situation it is not obvious why the complainant, in seeking an amendment, should not strictly follow equity rule 29. The complainant, however, without any supporting affidavits and without specific amendments, asks leave to file a substituted bill of complaint. Aside from matters of form, it is clear that such leave at this late day should only be granted for the purpose of making the pleadings correspond to the evidence. But, without affidavits or proper references presenting the relevant evidence, it is quite impossible for the court to determine whether the changes in the original bill made by the substituted bill are necessary, and only such as are necessary, to make the allegations conform to the proofs.

Of course the objection just noted might be met by now receiving references to the testimony. But that would not be sufficient to enable the court to really dispose of the questions presented upon the motion. The complainant desires to file a substituted bill. The court can only permit it to be filed or reject it. The court cannot be expected to revise it, and permit it to be filed if drawn in a different form. Consequently, as I am not satisfied that the complainant should be permitted to make all the changes which would be made by the substituted bill, I have no other course than to refuse the complainant leave to file it. Had the complainant presented specific amendments to the paragraphs of its original bill, I should have taken a different course, and should have passed upon each of the proposed changes.

The motion is denied, without prejudice to the right of the complainant to ask leave to amend the paragraphs of the original complaint in accordance with the rules of courts of equity.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

MAZIEKA v. NORTH & JUDD MFG. CO.

(Circuit Court, E. D. New York. February 8, 1910.)

REMOVAL OF CAUSES (§ 112*)-DISMISSAL OF CAUSE-PROCEEDINGS FOR DIS

MISSAL.

Where defendant, by obtaining an order to show cause on a motion to dismiss for insufficiency of service of process, permits the record on removal of the cause to be completed by including a stipulation that the service made should have the same effect as if made on an officer of the defendant company within the state, provided that this should not be construed so as to prejudice defendant's rights in the United States Circuit Court if the action should be removed to that court, and he contends that on removal plaintiff is limited to reliance on the actual service, but argues that, even if service were on an officer, dismissal could be demanded, the court will require defendant to elect which interpretation it will assert it intended. For other cases, see Removal of Causes, Dec. Dig. § 112.*}

[Ed. Note.

Action by Joseph Mazieka against the North & Judd Manufacturing Company. On motion by defendant to dismiss. Motion set for hearing.

O'Neill, McDowell & Kennedy, for plaintiff.
George H. Mitchell, for defendant.

CHATFIELD, District Judge. The defendant has moved to dismiss by obtaining an order to show cause, which called upon the plaintiff to furnish proof, by way of affidavits, as to the facts relating to the allegations that the defendant did no business in the state of New York, and had no officers here engaged in business and capable of being served with process. The plaintiff has submitted affidavits and a stipulation in the following language:

"It is stipulated on behalf of defendant that the service of the summons and complaint herein on John C. Moore, managing agent, on the 9th day of September, 1909, shall have the same force and effect as if served upon an officer of the company within the state. Nothing herein, however, shall be construed so as to prejudice in any way the rights of the defendant in the United States Circuit Court, should this action be removed to that court."

One motion to set aside service in the state court had been granted, and the second service was no better. If the present motion rested upon the removal record alone, this stipulation would appear to have been unavailable, as it had never been filed, and this court would have had no knowledge thereof. The order to show cause has given the plaintiff the right to complete the record by including the stipulation. But under the defendant's interpretation the plaintiff is still limited to reliance upon the actual service, which has apparently been held insufficient in the state court. On the other hand, if the stipulation be held to mean that no waiver or consent shall be claimed which would interfere with the defendant's rights in the United States court, even if the summons had been served upon an officer, then this court would have to pass upon the question of whether such service would be held sufficient after removal. As the defendant has by its own act al

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

lowed this ambiguous stipulation to be submitted to the court, and yet has argued that, even if the service had been upon an officer, a dismissal could be demanded, the court is unwilling, to decide what the defendant intended thereby. The defendant must elect which position it will take, or, rather, which meaning of the stipulation it will assert it intended.

To hold that the service was the same as if upon an officer would be to the prejudice of the defendant, if it could have demanded a dismissal in the United States court upon the service actually made, and it would then be necessary to determine whether the case ought to be remanded to prevent injustice to the plaintiff, inasmuch as the stipulation conferring jurisdiction upon the state court was signed, and an entire failure of consideration for the $20 paid would result if it be treated as futile. If the defendant elects to treat the stipulation as equivalent to service upon an officer, but to be without prejudice (that is, not to be considered as a voluntary appearance or waiver) to any rights it may urge, even upon such service, then this court will be in a position to decide the question of federal jurisdiction upon the merits.

The motion may be brought on February 18th, at 3:30 p. m., when either party may make such motion as they are advised.

MORRISDALE COAL CO. v. PENNSYLVANIA R. CO.
(Circuit Court, E. D. Pennsylvania. February 5, 1910.)
No. 102,

CARRIERS (§ 36*) — DISCRIMINATION - DISTRIBUTION OF CARS-PAST ACTS-AcTIONS FOR DAMAGES-INTERSTATE COMMERCE COMMISSION-COURTS-JURISDICTION.

Where an alleged unlawful discrimination in the distribution of coal cars in violation of Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 3. 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]) had been practiced by defendant railroad company, resulting in injury to plaintiff, for which it was entitled to damages, such discrimination having been applicable to a class of shippers and not to complainant alone, the Interstate Commerce Commission had exclusive original jurisdiction to afford complainant relief, it not being entitled to sue in the first instance in an action for alleged damages sustained thereby, authorized by section 9, and this, though the acts constituting the alleged discrimination had ceased prior to the commencement of the suit.

[Ed. Note. For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 36.*

Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & G. R. Co., 61 C. C. A. 414.]

Action by the Morrisdale Coal Company against the Pennsylvania Railroad Company to recover damages for alleged discrimination in the distribution of coal cars in violation of the interstate commerce act. On motion to dismiss for want of jurisdiction. Granted.

Chester N. Farr, Jr., and Wm. A. Glasgow, Jr., for plaintiff.
Francis I. Gowen and John G. Johnson, for defendant.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

J. B. MCPHERSON, District Judge. This suit was brought to recover damages from the Pennsylvania Railroad Company for a practice that is alleged to be in violation of the act to regulate commerce. Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]. The plaintiff's coal mine is in the Clearfield region of this state, and the defendant carries much of the product in commerce between the states. The practice complained of was a method of distributing coal cars. among the mines of the region at times when the supply of cars fell short. The plaintiff averred that an undue preference was given thereby to other miners and shippers in the same region, while it was obliged to bear an unreasonable burden. This being forbidden by section 3, the plaintiff sued to enforce the liability referred to in section 8, and claims the right to recover, in spite of the conceded fact that no complaint was made in the first instance to the Interstate Commerce Commission. The suit is said to be brought under the permission given by section 9, a trial was had before a jury, and a special verdict was rendered in favor of the plaintiff. The right to judgment, however, was still undetermined when the present motion was made; and this right was believed at the trial to depend upon the decision of certain questions that are referred to in the verdict. Among these, it was a vital question whether the method that was followed by the railroad company during the years 1902-1905 for distributing its available supply of cars during periods of shortage imposed unreasonable disadvantage upon the plaintiff, or gave unreasonable preference to its competitors in the Clearfield region. Briefly, the method was this: The railroad company determined the capacity of the various mines in the region by a computation that is not complained of, and thus arrived at the proportion of cars to which the plaintiff and other miners would be entitled when cars were too few to meet the demand completely. This proportion was applied to the deficient car supply in the following manner: Each day the total number of cars available for the whole region was ascertained by the railroad company, and a distribution sheet was then made up, allotting to the plaintiff and the other miners the cars to which the defendant's method of distribution showed them to be entitled. The total available cars consisted of four classes: Those that belonged to private individuals. or corporations; those that were to be filled with coal that the railroad company had bought for its own use as fuel; those that belonged to foreign railroad companies, and were also to be filled with coal that these companies had bought for their own use as fuel; and sys tem, or company, cars-meaning such cars as did not belong to either. of the first three classes but were available generally for the carriage of coal. If the railroad company had distributed the total number of these four classes ratably among the mines according to capacity, the plaintiff would not be now complaining. But a different method was pursued. From the total number of available cars the defendant deducted the aggregate of the first three classes-assigning the private cars to the individuals or corporations who owned them or were entitled to use them, and assigning its own fuel cars and the fuel cars of foreign railroads to the mines from which the supply was to come

and distributed the fourth class alone in proportion to capacity. The result was that the owners or users of private cars received these cars, and also their ratable proportion of the fourth class; and the miners who had contracted to fill the fuel cars, either of the defendant or of foreign railroad companies, received these cars, and also their ratable proportion of the fourth class; while the plaintiff received only its ratable proportion of the fourth class, and was thus confined to a supply that was necessarily smaller than if its proportion had been allotted out of the total of the four classes. Averring injury by this method of distribution, and asserting that the total number of the four classes without any deduction should have been divided among the mines of the region in proportion to their ascertained capacity, the plaintiff sought to recover damages in this action for unlawful discrimination.

It will at once be observed that the suit requires a court and jury to decide whether the defendant's method of distribution offended against the act. The questions are (1) whether this method gave a preference to any particular person, company, firm, or corporation, or subjected the plaintiff to any prejudice or disadvantage; and (2) if such preference or disadvantage existed, whether it was undue or unreasonable. These are questions of fact, and manifestly cannot be decided merely by considering what methods may have been held to be lawful, when adopted and applied by other railroads under other circumstances. There is no "rule of law" that requires the aggregate of available cars always and everywhere to be divided ratably in times of shortage. Even if it be conceded that, whenever a dispute upon the subject has been presented to a court or to the Commission, this method of distribution has usually been decided to be the fairest, it does not follow necessarily that the method is to be applied in the next dispute that arises. It is perhaps more nearly correct to speak of the "rule" as similar to a working hypothesis. It may do to start with, if or since-it represents a fairly general opinion concerning what is just and equitable; but the circumstances of a given case may require the rule to be modified, and would certainly require it to be modified, if, instead of avoiding, it would cause, an undue preference or disadvantage. What is undue or unreasonable is ordinarily a pure question of fact; and, where such a question is presented, it is necessary to be cautious in applying a rule that may have been properly used to decide a similar question, but under different circumstances. And, since the question is of fact, there will always be the danger that different courts and juries may reach different conclusions, even when the evidence and the facts are essentially the same. Different minds occupy different points of view, and may therefore see the same question from opposite angles with varying results. Moreover, as a question of fact can only be resolved by evidence, it may easily happen that the quantity or quality of evidence may differ in one trial from another, so that recovery by one plaintiff and failure by another may both be just-one having evidence enough, while the other has too little, to support a verdict.

These remarks may perhaps serve as a preface to the examination of two or three recent decisions of the Supreme Court, which deal