INTERSTATE COMMERCE COMMISSION RYCROFT V.
V.
LEHIGH VAL.
B. 00.
177
GREEN. February 8, 1899.)
(O£rcutt Oourt, S. D. N61/J York. RBMd'VAL PFCAUSES-ExTENSION OF
,In view of the Code rules and practice of the courts of New York, an extension of till)e to answer by order of court extends the time for removal.
Tnm
TO ANSWER.
At Law. Motion to remand. Henry ThmnpsDn, for the motion. W. Wickersham, opposed. Circuit Judge. It is the law andpractice of thi!l circuit of time to answer by order of cQurt, whether made on that an stipulation or not, extends the time for removal. This was settled practice here before the decisions in other circuits, which are referred to on the and, in view of what an "extension of time to is under ,ilie rules and practice of the courts ,of this state, seems conformableal,ike ,to the 1etOOl: and the spirit of the rem,ova! act , (
INTERSTATE CoMMERCE COMMISSION
v.
LEmGR
VAI. R. Co.'
(Oircutt court, E. D. PennB1/1IIJanw.. January 15,1892.)
1.
The ful:ding of facts in a report by tbe interstate commerce commission has no greater weight where the. commission itself proceeds by petition under section 16; 24; St. at Large, p. 884, to enforce obedience to its orders, than where an individualaggrieved' so proceeds, and is not conclusive evidence of such facts. Kentucky, etc., Bridge Co. v. LfJutsvUle, eto" R. Co., 37 Fed. Rep; 567, follow(ld.
CoMMERCE COMMnlStON-FINDING OF FACTS.
B. SJ.ME-DISOJlEDIENOE OF ORDERS-INJUN;CTION. A preliminary injunction to restrain a carrier from disobeying aD. order of the interstate COmmerce commission will not be granted in proceedings under sootion 16, 24 St. at Large, p. 884, as amended, when the answer denies the on which the order was b a s e d . ' ,
In Equity. Motion for preliminary injunction. Petition by the interstate Commerce commission to restrain the Lehigh Valley Railroad Company from exacting an alleged excessive rate for transporting coal from the mines to Elizabethport. Upon complaint by Coxe Bros., miners and shippers of anthraCite coal, the interstate commerce commissioti had made an order, after hearing both parties, establishingrates for the carriage of coal from 'the mines 'to Elizabethport, lower than the rates previously charged. and declaring the latter excessive. The Lehigh Valley Company continued to charge its old rates, and this petition was filed to enforce obedience to the order. Motion denied, without prejudice to complainant to file replication, a.nd Reported by Mark Wilks Collet, Esq.; of tbe b4r.
v.49F.no.3-12
Simon Stern, John R. Read, and S. P. Wolverton, for complainant. The case of Kentucky, etc..;,BridgeCthY. Louisville, etc., R. Co.· 37 Fed. Rep. 567, was decided under the misapprehension that judicial power could not be gl.'antt!d wherl1those 'appointed to exercise 'it were not appointed during good behavior. Such grants have b,een declared constiCo. 1 Pet. 515; McAUifJterv. U. S., 141 tuti()oal in U. S. 174, 11 Sup. Ct.,Rrep.·949. When a disciplinary body, created by statute, comes to a conclusion, the courts, in enforcing its conclusion, will only inquire whether the party has had a fair trial, and the rules the body have been complied with, and will not try the question over again. Loubat v. Le Roy; 40 Hun, 546; PeOple v.OJnmisY. 97. The deci,sion of a tribunal, having author'ity to matters'in the,c.ourse of its dutieS;: is finat John,. 80n v.ibWkley;'fB :Walt 72; Marques v· .Frisbie, 101 U. S. 47'3· . JOhnson; for . ..,. ACllEBON/ Circnit,Jndge.:." :of Cou'; :Bros. & Co. Vall.ey.' Railroad made tdtheintf\tstate commerce cofurliission',pursuant to the 'net of cOngresfjtentitled"lu1 act to regulate commerce," approved February 4, 1887, (24 St. at Large, p. 379,) and the amendatory.. acts of March. 2, 1889, and February 10, 1891, (25 St. at Large, p. 855; 26 St. at Large, p. 743,) the said commission found and decided that the rates established by the said railroad companY', for the transportation of anthracite coal from the Lehigh anthracite coal region, in the state of,Pennsyl'Vltfiis,\, t(FPerthAmboY,·in the stateolf, New Jersey, were unreasonable and. unjustjand the.,c()mmisi3ion scaleQf .P1axilJlUm ,rates of rOJ-such issued an order railroad. company to cease .an.d a: any eXQ6Sl> of the rates so detenninedupol1 by the <lo'minission·. The ra.ilroadcompany having and refused; "'itli this. order, interstate com.mercecommission, proceeding under the sixteenth section of the law ·all 'limended, applied by 'petition to thiseourt, .sitting ill. praying fora writ ofinjunction or other proper process, mandatory or otherwise, .If? from, Jqrther violatipn ofand·.disobeto tqe Bllidorder ,Q.(. the .To this, the railrpa,d company filed. an: anIJwer, which, besides other defenses of a legal that establisheGl.and :U ,for. tl,le ,of. ,cPal, as ,were ,unreasontlles;upe were an4 .are reasqnable llnd tPat the findings of fllct by .jU,st rates;, .lI.l1!l the .answer; ,cOplmi.l1sion. which to; the rates .charged 1:>Y : .AAd, were errolWouS, and w,eie n()t in accorda,ncewitb. t,l,18 evidence, was I'let down for and,pas ·......'" ..... Several questions of great importance, both to the parties to this litigation Rnd to the"publicj are here involv.ed;butatthis :tilne we deem it
against
INTERSTATE COMMERCE CO¥Mij;SION '1. LEHI(}H VAL. R.
co.
179
:qecessarytoconsider only. one of tpese questions, namely: In this proceeding instituted by the interstate commerce commission to enforce its order against the defendant-railroad company, what effect is to be given to the fipdings of fact by'the commission embodied in its written report, and upon which its said order was based? It has been argued earnestly and ably by counsel representing the interstate commerce commiE\Sion that the present proceeding is to be regarded as a controversy between the commission and the defendant company, distinct from the original case between Coxe Bros. & Co. and the defendant; that the original case is not here retriahle upon its merits, however it mightbe were Coxe & Co. the petitioners; that while the court may look into the testitllonytaken by the commission to see whether there is anyjustification for its decision, yet, if the commission acted u poncompetent evidence, and within the scope of its authority, and the delendant had a fair trial before it, the findings of fact by the commission are not here open to question. but must be accepted as conclusive. But,as respects the weight to be given to the findings of fact, the statute, we think, no grollnd for making any distil).ction between an application to the court by the commiesion itself and such an application by the original complainants, at whose instance the order to be enforced was made. As we shall hereinafter see, the law provides that application to the court for the enloreemeiIt of any such order may be made either by the commission or by any company or person interested in theol'der. No sound reason exists for according greater efficacy to the findings of fact in the one case than in the other, and the statute does not recognize any such distinction. What force, then, have the findings of fact upon which the petitioner here relies? If the acts of congress had "beensi1ent as to the effect to be given,to.findings of fact by the interstate commerce commission, it might, perhaps, have been reasonably the legislative intention was that those findings should fall within the general rule that, where the law has ·confided to a special tribunaltbe authority to hear and determine certain matters. in the course of its duties, Uie decision of that tribunal, within the scope of its authority, is .conclusive upon all other tribunals. But any such implication is excluded by the express terms of the interstate commerce law. Section 14 oUhe act, as amended, after that whenever an investigation shall be made by the commission it shall be its duty to make a report in writing in thereto, which shall include the "findings of1act" upon which the conclusions of the commission are based, declares: "And auch findings, so made, shall thereafter, in all judicial proceedings, be deemed pri'TM fame evidence as to each and every fact found." Now, :clel\rly, this provision is quite irreconcilable with the idea that in a.n application like the present one the findings of fact by the commission But, 1urtbermore, section 16, as amended,. pro. operate videsaB follows: . "Tbltt whenever.any common carrier. as defined In aJJdsubject to the prO:visions of this act, shall violate or refuse ornel{lect to: obey or ,perform any lawful order or of the commission created by this act, not
180
FEDERALREl'OB.'N!IR,
vol. 49.
foundad:upon: a controversy requiring! by jury, provided by the seventh amendment to the constitution olthe United States, it shall be lawful for. the commission, or for any c0trtpany or person interested in such order or requirement, to apply in a sumlnary way, by petition, to the circuit court of the. United States, sitting in equity in the judicial district in which the common cartier complained of has its principal ollice, or in which the violation or disobedieme of such order or reqUirement shall happen, alleging such violation 01" disobedience, as the case may be; and the said court shall have power tQ hear and determine the matter; * * * and said court shall proceed to hear and determine the matter speedily as a court of l'quity, and suits in without the fQrmal pleadingll and proceedings applieable equity, but in such manner as to do justice in the premises: and to this end such court shall have power, if it think fit, tQdirect and prQsecute, in such lTIQdealld by such persQns 'al!l it may appoint, all such inquiries as the court may thillkneedful to enable it tQ fQrm a just judgment in the matter of such petition. and on such hearing the findings of fact in the report of· said commission shall be prima facie evidence o( the 81l,d if. it lJe madl'l t<.!ilPpear to sucll' .cQurt, on ,such Qr 011 report ,of any SUch person or persons, that the la\vful order 01' slI.id drawn in qnestiQn has been violated or' disQbej-ed,it shall be la WfliJ ,for sucb. court to' i!lsue'a writ of .injnnction or other proper process, mand'atory or' otherwise, to restrain such common carrier from .further pontinnin'g 'sllchviolation ol7disobeqienceoflluch order oJ;' requirement of said commilllsi01J; ,and enjoining to the same." ;";.:i ,,::"' .. 'l'his section further provides for proceedings on the ,law- side' Of the court where the matters involved are foundedupoJ!l ':Ii controversy requiring a trial by jury, and enacts that "at the trial the fii'ldings of , fact of said commission, .as' set· forth in its report; shall be prima facie evidence of;the matters therein stated." Thushascongressn'lost carefully defined and limited ,the effect of the findings of fact bytbeinterstate commerce commission ,in all judicial proceedings,whether 'at law or in equity. ' But then again, upon an analysis of the above-quoted 'provisions of section 16. it is demonstrable that in such a case as' this it is the duty of the court to investigate the merits of the wholecohtroversy, and form an .independentjudgment. The court, upon a. :petition alIegthe violation of a "lawful" order, is to proceed to llhear and mine the matter as a court of equity in such manner as to do justice in the premises;" and to this end it may, prosecute in such'm'ode and by such persons as it may appciint all "needful inquiries '7 to ellable it to "form a just judgment" in· the matter 'of the petition; -and, ,fii1ally, "on such hearing the findings of fact in the report of said· commission snaIl be primci Jaqie evidence of the matters therein stated." Nothing can be clearer than,that the findings by the commission 'are'n'ot,heredecisive of the questions of fact. We have only to add that ou'r conclusion is in barmonywith that of the circuit court in the case of 'Ktntucky;ete.; -Bridge etc., R. Co., 37 Fed.Rep.M7. In view, then, of the denials and averments of the answer, the present Ji1otion must be .t,» the right. of, thopetjtioner to· file a denied, .1:mt. without: replication; /lnd itil\sQ,ordered. j";
as
..
'"
BUTLER,
District Judge, concurs.
GANDOLFO f1. HARTMAN.
181
GANDOLFO f1. HAR'1'J\fAN
et
at
(Cirouit Oourt, B. D. California. January 25,1892.) COVENANTS IN
A covenant in a deed not to conveyor lease land to a Chinaman is void, as contrary to the public policy of the government, in contravention of its treaty with China, and in violation of the fourteenth amendment of the constitution, and is not enforceable in equity.
POLICy-SPECIFIO PERFORMANCE.
In Equity. Bill for an injunction. Denied. Blackstock & Shepherd and BickneU & Denis, for complainant. J. Marion Brooks, J. Hamer, and E. S. HaU, for defendants. R,oss, District Judge. The amended bill in this case shows that ou., the 22d of March, 1886, one Steward, for Ii valuable consideratiori,conto the. complainant a portion of lot 2, block 47, fronting on East Mili'ri street iri the town of San Buena Ventura, Ventura. county , of this state, together with a perpetual right of way over an adjoining alley" Thedeed also contal,ried the following: . ' , ' ," ,. "It ill alsoundel'stoodand agreed by and., between the parties hereto, their' heirs lind af:;signs, that the party of the part shall never, without,'the party.of ipe second part, his heirs or assigns,rent any of the jngs owned by said party of the first part, and fI'ontrng Msai.d: East Malti street, to a Chinaman or Chinamen. This agreement shall' only .apply to that part of lot 2, block 47, aforesaid, lying north of the descriQed, and fronting on said East Main street. And said party of th\'. second part agrees for himself and heirs that he will never rent any (;If the property hereby conveyed to a'Chinaman or Chinamen." The deed was duly recorded in the county in which the property is' situate, andsubseql1ently the portion of the lot retained by Steward was purchase<i of him by the defendant Hartman, who was thereafter' about 10 lease it to the defendants Fong Yet and Sam Choy, who. are China,men, when the present suit was commenced to him from so doing. The federal courts have had frequent occasion to declare null and, void hostile and discriminating state and municipallegislatiori aimedat Chinese residents of thiscouIitry. But it is urged on behalf of the complainant that; as the present does not preBent a case oflegi:;;latlon at all, it is not reached by the decisions referred to, and that it does not come within any of the inhibitions of the fourteenth amendment to the consti-' "tution of the United States, which, among other things, declares that no state shall "deny to any person the equal protection of the laws." ThiEr inhibition upon the stare, as said by Mr. Justice FJELD, iIi the of Ah Kow v. Nunan, 5 Sawy. 552'!Applies to allthe instrumentalities and agencies employed in the admin,and judicial' depart-, istration' of its government: to its executive, ments; and. to the subordinate legislative bodies of countieli and cities.', And the equality of protection thus jassured to every oue whilst within the, United: whate.ver country he maY come. ,or,of whatefer,T8Ce or:eolor he: