189 U.S.

274
23 S.Ct. 507
47 L.Ed. 811

MISSOURI PACIFIC RAILWAY COMPANY, Appt.,

v.
UNITED STATES.
No. 108.
Argued January 23, 26, 1903.
Decided March 9, 1903.

The original bill of complaint in this cause was filed on behalf of the
United States against the present appellant in the circuit court of the
United States for the second division of the district of Kansas on July 26,
1893. To the bill a demurrer was filed and overruled. 5 Inters. Com. Rep.
106, 65 Fed. 903. Subsequently, exceptions were sustained to an answer,
and thereafter an amended answer and a replication were filed. The
questions now presented for decision, however, were raised by an
amended bill filed on July 19, 1897. In such amended bill it was alleged
that the suit was brought on behalf of the United States by the United
States attorney for the district of Kansas, by the authority of and under the
direction of the Attorney General of the United States, and that such
authority and direction had been given in pursuance of a request of the
Interstate Commerce Commission of the United States 'that the United
States attorney for the district of Kansas be authorized and directed to
institute and prosecute all necessary proceedings, legal or equitable, for
the enforcement of the provisions of the Interstate Commerce Law against
the defendant in relation to the matters herein complained of.' It was
further averred, in substance, that the respondent was subject to the terms
and provisions of the Act to Regulate Commerce, and operated lines of
railway between the city of St. Louis, in the state of Missouri, and the city
of Omaha, in the state of Nebraska, a distance of 501 miles, and between
the city of St. Louis and the city of Wichita, in the state of Kansas, a
distance of 458 miles. It was charged that in the transportation of freight
between St. Louis and said cities of Omaha and Wichita the service was
substantially of a like, contemporaneous character, and was made under
substantially similar circumstances and conditions, but that,
notwithstanding such fact, the rates exacted upon shipments of freight

between St. Louis and Wichita very much exceeded the rates charged on
freight shipped between St. Louis and Omaha. It was averred that the
collection of such alleged excessive freight rates or any rate of freight on
shipments between St. Louis and Wichita in excess of the rate charged for
shipments of freight of a similar character and classification between St.
Louis and Omaha, operated an unjust and unreasonable prejudice and
disadvantage against the city of Wichita and the localities tributary
thereto, and against the shippers of freight between St. Louis and the city
of Wichita. Averring that the wrongs complained of 'are remediless in the
premises under the ordinary forms and proceedings at law, and are
relievable only in a court of equity and in this form of procedure,' the
ultimate relief asked was the grant of a perpetual injunction restraining the
respondent from continuing to exact a greater rate for transportation of
freight of like classification between the city of Wichita and the city of St.
Louis than was asked between the city of St. Louis and the city of Omaha.
A demurrer was filed to the amended bill upon various grounds, one of
which denied the right of the United States to institute the suit.
On hearing, the demurrer was overruled exception was reserved, and, the
defendant electing to stand on its demurrer, a final decree was entered
granting a perpetual injunction as prayed, and, on appeal, the circuit court
of appeals affirmed the decree, but filed no opinion. An appeal was
thereupon allowed.
Messrs. John F. Dillon, J. H. Richards, C. E. Benton, B. P. Waggener ,
and Alexander G. Cochran for appellant.
[Argument of Counsel from pages 276-280 intentionally omitted]
Messrs. W. C. Perry and Assistant Attorney General Beck for appellee.
[Argument of Counsel from pages 280-282 intentionally omitted]
Mr. Justice White, after making the foregoing statement, delivered the
opinion of the court:

The violation of the Act to Regulate Commerce, complained of in the amended

bill, was an asserted discrimination between localities by a common carrier
subject to the act, averred to operate an unjust preference or advantage to one
locality over another. The right to bring the suit was expressly rested upon a
request made by the Interstate Commerce Commission to do so, in order to
compel compliance with the provisions of the Act to Regulate Commerce

relating to the matters complained of in the bill.

2

Bearing in mind that, prior to the request of the Commission upon which the
suit was brought, no hearing was had before the Commission concerning the
matters of fact complained of, and therefore no finding of fact whatever was
made by the Commission, and it had issued no order to the carrier to desist
from any violation of the law found to exist, after opportunity afforded to it to
defend, the question for decision is whether, under such circumstances, the law
officers of the United States at the request of the Commission were authorized
to institute this suit.

Testing this question by the law which was in force at the time when the suit
was begun and when it was decided below, we are of the opinion that the
authority to bring the suit did not exist.

But this is not the case under the law as it now exists, since power to prosecute
a suit like the one now under consideration is expressly conferred by an act of
Congress adopted since this cause was argued at bar, that is, the act 'to Further
Regulate Commerce with Foreign Nations and among the States,' approved
February 19, 1903. By 3 of that act it is provided:

'That whenever the Interstate Commerce Commission shall have reasonable

ground for belief that any common carrier is engaged in the carriage of
passengers or freight traffic between given points at less than the published
rates on file, or is committing any discrimination forbidden by law, a petition
may be presented alleging such facts to the circuit court of the United States
sitting in equity having jurisdiction; and when the act complained of is alleged
to have been committed or is being committed in part in more than one judicial
district or state, it may be dealt with, inquired of, tried, and determined in either
such judicial district or state, whereupon it shall be the duty of the court
summarily to inquire into the circumstances upon such notice and in such
manner as the court shall direct, and without the formal pleadings and
proceedings applicable to ordinary suits in equity. . . .'

And the same section, moreover, provides as follows:

'It shall be the duty of the several district attorneys of the United States,
whenever the Attorney General shall direct, either of his own motion or upon
the request of the Interstate Commerce Commission, to institute and prosecute
such proceedings, and the proceedings provided by this act shall not preclude
the bringing of suit for the recovery of damages by any party injured or any

other action provided by said act approved February 4, 1887,1 entitled 'An Act
to Regulate Commerce,' and the acts amendatory thereof.'
8

Although by the 4th section of the act conflicting laws are repealed, it is
provided, 'but such repeal shall not affect causes now pending, nor rights which
have already accrued, but such causes shall be prosecuted to a conclusion and
such rights enforced in a manner heretofore provided by law [italics ours]and as
modified by the provisions of this act.' We think the purpose of the latter
provision was to cause the new remedies which the statute created to be
applicable as far as possible to pending and undetermined proceedings brought,
prior to the passage of the act, to enforce the provisions of the Act to Regulate
Commerce. In the nature of things, it cannot be ascertained from the record
whether the railroad company now exacts the rates complained of as being
discriminatory and which it was the purpose of the suit to correct; but if it does,
of course the power to question the legality of such rates by a suit in equity,
brought like the one now here, clearly exists. Under these conditions we think
the ends of justice will best be served by reversing the decrees below and
remanding the cause to the circuit court for such further proceedings as may be
consistent with the Act to Regulate Commerce as originally enacted and as
subsequently amended,especially with reference to the powers conferred and
duties imposed by the act of Congress approved February 19, 1903, heretofore
referred to.

The decree of the Circuit Court of Appeals is reversed; the decree of the Circuit
Court is also reversed, and the cause is remanded to the Circuit Court for
further proceedings in conformity with this opinion.

10

Mr. Justice Brown Concurs in the result.

Mr. Justice Brewer, dissenting:

11

I am unable to concur in either the opinion or the judgment in this case.

12

I think there was no final decree in the circuit court, and that, therefore, the
court of appeals should have dismissed the appeal. After the cause had been
once put in issue by bill, answer, and replication, a stipulation was filed as
follows:

13

Whereas, after joining issue upon the pleadings heretofore filed in the aboveentitled suit, to wit, the original bill of complaint, the demurrer thereto, the
original answer, the amended answer, and the replication thereto, it has been

determined by all of the parties to, and all of the parties interested in, said suit,
that it is desirable and best that the questions of law arising upon the bill of
complaint as amended and a demurrer thereto be first finally adjudicated any
put at rest by the circuit court of appeals of the United States and the Supreme
Court of the United States;
14

Now, therefore, it is hereby agreed and stipulated by and between the abovenamed complainants, by their solicitors, W. C. Perry and M. Cliggitt, and the
above-named defendant, by its solicitors, J. H. Richards and C. E. Benton, that
said complainants shall file an amended bill of complaint in said suit, to which
said defendant shall file a demurrer, and that, if the court before which said
cause is now pending shall overrule said demurrer and allow the relief prayed
for in said amended bill of complaint, then said defendant shall proceed to
appeal said cause in due course, and that the party, complainants or defendant,
against which said circuit court of appeals shall decide adversely, shall, if said
party so desires, in due course appeal said cause for final determination to the
Supreme Court of the United States.

15

And it is further hereby agreed and stipulated that pending said appeal and all
the procedure incident thereto the decree and order of said courts, whether it be
said circuit court of the United States for the district of Kansas, or said circuit
court of appeals, or said Supreme Court of the United States, if adverse to said
defendant, allowing and decreeing the reliefs and remedies prayed for in said
amended bill of complaint, shall be suspended and not enforced against said
defendant the Missouri Pacific Railway Company, and when a decision has
been rendered in said suit by said circuit court of appeals, or by the Supreme
Court of the United States, if the cause is taken to that court, then it is further
hereby agreed and stipulated that the decision and judgment of either or both of
said courts, if adverse to said defendant the Missouri Pacific Railway
Company, shall be vacated, set aside, and annulled, and shall not be regarded as
of any force or effect against said defendant the Missouri Pacific Railway
Company except so far as holding the amended bill to be sufficient, but that
said the Missouri Pacific Railway Company shall have the right and shall be
permitted to file an answer in said suit, to which said complainants the United
States of America shall in due course file a replication thereto, and the issues
shall be duly joined and the cause proceed to hearing and determination upon
its merits in due course, the intention of this agreement being that the
proceedings had upon the demurrer to said amended bill of complaint and the
proposed appeal of said suit to a higher court shall in no manner prejudice the
right of said defendant to a trial of said suit upon its merits.

16

Dated this 16th day of July, 1897.

17

W. C. Perry,

18

Morris C. Cliggitt,

19

Solicitors for Complainant.

20

On an application made by the complainant, supported by the affidavit of its

solicitor, stating that the defendant consented thereto, an order was entered
giving the complainant leave to file an amended bill, and also to the defendant,
with consent of the complainant, like leave to file a demurrer. An amended bill
of complaint and a demurrer thereto were filed, the demurrer was sustained,
and, the defendant electing to stand on its demurrer, a decree was entered in
behalf of the complainant. A transcript before us shows that all this, from the
filing of the stipulation to the entering of the decree, took place on the same
day, to wit, July 19. Obviously, all subsequently thereto was done in pursuance
of the stipulation. That the stipulation was not signed by the solicitors for the
defendant is immaterial, as it was for its benefit alone. In the brief for the
government in this court, after a statement of preliminary proceedings, it is said:

21

'It being manifest that the great volume of testimony would have to be taken,
and as the defendant had raised the serious question whether the United States
could maintain the suit, or had the right, in its own name, and without a
preliminary hearing before the Interstate Commerce Commission, to enforce,
by injunction, the provisions of the Interstate Commerce Act which forbids
discrimination, it was thought best to finally settle that question. Therefore, the
stipulation on pages 53, 54 was entered into. That stipulation provides for the
filing of an amended bill, the leveling of a demurrer thereat, and an appeal or
appeals to the United States circuit court of appeals and to this court. The
amended bill was filed (pp. 55-60); the defendant demurred (p. 61); the court
overruled the demurrer, and the defendant, electing to stand on its demurrer,
final decree was entered in favor of the complainant. (pp. 62-73.)'

22

And in the brief for the defendant and appellant it is in like manner said:

23

'After all this, the parties made the stipulation found on page 53, to the effect
that 'it is desirable and best that the questions of law arising upon the bill of
complaint as amended and a demurrer thereto be first, finally adjudicated and
put at rest by the circuit court of appeals of the United States and the Supreme
Court of the United States,' which it was stipulated might be done without
prejudice to the right of the defendant if it were held that the bill was
maintainable to a trial of the suit upon its merits.

24

'The amended bill was accordingly filed (Record, pp. 55-60); demurrer thereto
was filed (p. 61), and a decree rendered in favor of the complainant.'

25

Now, although it may be that the stipulation was not brought into the record by
means of a bill of exceptions, and, although it does not affirmatively appear that
the trial court was made aware of this stipulation, or acted in pursuance thereof,
yet as the railway company brings here a record containing the stipulation, and
as it is admitted by counsel for both parties that it was entered into, and that
subsequent proceedings were had in pursuance of its agreements, I think notice
should be taken of it by this court. Indeed, if nothing appeared of record, and
counsel should admit before us that a stipulation had been entered into between
the parties in respect to the finality of the decree, ought we not to act on such
admission? Can parties stipulate that questions of law shall alone be presented
to this court, and that if our decision be one way the case shall thereafter
proceed in the trial court for an inquiry and decree upon the facts? I know that
the statutes of some states permit the taking of a case to the appellate court
upon a ruling made on a demurrer, but we have always held that the decree or
judgment must be final before we are called upon to review it. When a case has
once been decided by this court no further proceedings can be had in the trial
court except upon our direction, whereas here the parties have stipulated that
without such direction a new trial may be had. In other words, our decision is
not to be final although we affirm the decree. It seems to me that the decree of
the court of appeals should be reversed, and the case remanded to that court
with directions to dismiss the appeal.

26

Upon the merits, also, I dissent. The bill is an original bill in behalf of the
United States, filed under the direction of the Attorney General, and the fact
that the Interstate Commerce Commission requested him to cause this suit to be
instituted in no manner adds to or affects the question of the government's right
to maintain it. The Commission was not asking the Department of Justice to
enforce any of its orders, in which case, as we held in East Tennessee, V. & G.
R. Co. v. Interstate Commerce Commission, 181 U. S. 1, 45 L. ed. 719, 21 Sup.
Ct. Rep. 516, it would become our duty to examine the proceedings had before
the Commission. This is an independent suit instituted by the government, not
to carry into effect any orders of the Commission, but to enforce a duty cast
upon carriers of interstate commerce, and the right of the government to
maintain such a suit does not depend upon the request of any individual or
board. The 22d section of the Act to Regulate Commerce provides that 'nothing
in this act contained shall in any way abridge or alter the remedies now existing
at common law or by statute, but the provisions of the act are in addition to
such remedies.'1 Every remedy, therefore, that the government or any
individual had to compel the performance by carriers of interstate commerce of

their legal obligations remains unaffected by that act.

27

We held in Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900, that
the United States had a right, even in the absence of a statute specially
authorizing such action, to come into the Federal courts by an original bill to
restrain parties from obstructing and interfering with interstate commerce. It
seems to me singular that the government can maintain a bill to prevent others
from obstructing and interfering with interstate commerce, and yet cannot
maintain a bill to compel carriers to fully discharge their duties in respect to
such commerce. Can it be that the government has power to protect the carriers
of interstate commerce, and not power to compel them to discharge their duties?

28

It is said that this is a suit to compel the carrier to refrain from discriminating
between places; that there was no commonlaw duty to abstain from such
discrimination; that it is forbidden only by statute. But, confessedly, it was a
common-law duty of a carrier to make no unreasonable charges. It is distinctly
averred in the amended bill (Rec. 57, 59):

29

'And your orators further aver and show unto your honors that said defendant
has established, and for a long time has maintained, and still maintains, in force
on the line of its railroad between the city of St. Louis and the city of Wichita
rates, rules, and regulations governing all freight traffic between said cities over
the said railroad which are unjust and unreasonable, in this, that said charges
for services rendered by said company in the transportation of property and
freight of each and every classification between the said city of St. Louis and
the city of Wichita is excessive, exorbitant, unreasonable, and unjust to the
extent and amount that such rates and charges exceed the rates and charges on
the line of said defendant's railroad between the cities of St. Louis and Omaha,
all of which is to the great detriment and hindrance of commerce and trade
between the said cities of St. Louis and Wichita, and between the localities to
which said cities contribute as a supply point, and to the irreparable injury of
the public and to the people of the United States.

30

*****

31

'And your orators further aver and show unto your honors that any schedule
rates and freight charges for the various shipments and classifications,
hereinbefore set forth between the said cities of St. Louis and Wichita, that are
in excess of the tariff schedules and freight charges for shipments of the like
kind and class of property between the cities of St. Louis and Omaha, are
unreasonable, excessive, exorbitant, and unjust in and of themselves, and

constitute an unreasonable discrimination against Wichita and the localities

tributary thereto and the people living therein and against persons shipping
freight between the cities of Wichita and St. Louis, and subject such persons
and localities to an unjust and unreasonable prejudice and disadvantage.'
32

The truth of these allegations is admitted by the demurrer. The charges for
shipments for freight between St. Louis and Wichita are 'unreasonable,
excessive, exorbitant, and unjust in and of themselves.' Surely, here is a
disregard of what was at common law a plain and recognized duty of the
carrier.

33

Further, while at common law a mere difference in the prices charged by the
carrier to two shippers respectively might not have been forbidden, yet it may
well be doubted whether, if the difference was so great as to amount to an
unreasonable discrimination, the rule would not have been otherwise. In
Interstate Commerce Commission v. Baltimore & O. R. Co. 145 U. S. 263, 275,
36 L. ed. 699, 703, 4 Inters. Com. Rep. 92, 96, 12 Sup. Ct. Rep. 844, 847, we
said:

34

'Prior to the enactment of the Act of February 4, 1887, to Regulate Commerce,

commonly known as the Interstate Commerce Act (24 Stat. at L. 379, chap.
104),1 railway traffic in this country was regulated by the principles of the
common law applicable to common carriers, which demanded little more than
that they should carry for all persons who applied, in the order in which the
goods were delivered at the particular station, and that their charges for
transportation should be reasonable. It was even doubted whether they were
bound to make the same charge to all persons for the same service. Fitchburg
R. Co. v. Gage, 12 Gray, 393; Baxendale v. Eastern Counties R. Co. 4 C. B. N.
S. 63; Great Western R. Co. v. Sutton, L. R. 4 H. L. 226, 237; Ex parte Benson,
18 S. C. 38, 44 Am. Rep. 564; Johnson v. Pensacola & P. R. Co. 16 Fla. 623,
26 Am. Rep. 731, though the weight of authority in this country was in favor of
an equality of charge to all persons for similar service.'

35

But beyond this, the Interstate Commerce Act itself forbids unjust
discrimination, and such discrimination is also clearly and fully set forth in the
bill. Can it be that the government is powerless to compel the carriers to
discharge their statutory duties? It is nowhere said in the Interstate Commerce
Act that this duty or any other duty prescribed by statute is to be enforced only
through the action of the Commission. On the contrary, as we have seen, it
expressly provides that all other remedies are left unaffected by the act, and a
duty cast by statute equally with a common-law duty may by the very language
of the act be enforced in any manner known to the law.

36

Further, the Act to Regulate Commerce, as originally passed, in 16,2 required

the district attorneys of the United States, under the direction of the Attorney
General, to prosecute suits to compel carriers to obey the orders of the
Commission. If all remedies were to be secured only through action in the first
instance by the commission that provision was all that was necessary, but in the
amendatory act of 1889 (25 Stat. at L. 855, chap. 382),3 there was added in 12
this clause: 'The Commission is hereby authorized and required to execute and
enforce the provisions of this act; and, upon the request of the Commission, it
shall be the duty of any district attorney of the United States to whom the
Commission may apply to institute in the proper court and to prosecute, under
the direction of the Attorney General of the United States, all necessary
proceedings for the enforcement of the provisions of this act, and for the
punishment of all viclations thereof.' Clearly, that contemplates just such a case
as the present, and when, in the judgment of the Commission, it is better that
the proceedings should be had primarily in the courts, it may call upon the legal
officers of the United States to bring the proper actions.

37

For these reasons, I am compelled to dissent, and I am authorized to say that

Mr. Justice Harlan concurs in this opinion.

U. S. Comp. St. 1901, p. 3154.

U. S. Comp. St. 1901, p. 3170.

U. S. Comp. St. 1901, p. 3154.

U. S. Comp. St. 1901, p. 3165.

U. S. Comp. St. 1901, p. 3162.