Opinion of the Court.

nane of an action in the Circuit Court of the United States to recover damages solely occasioned by the payment of excessive, unjust, or unreasonable rates for the transportation of interstate commerce, even when the exaction of such excessive rates was the result of a combination or conspiracy made unlawful by the "Sherman Anti-Trust Law," then the complaint in such an action to recover such damages solely must aver that the rates charged and exacted have been declared excessive or unreasonable or unjust by the Interstate Commerce Commission. Until that is done, the rates established, filed, published, and posted must be regarded as legal rates or lawful rates. Whether or not that has been done is an issuable fact, and the defendant has the right to be informed whether the plaintiff will attempt to prove that the rate has been condemned by the Interstate Commerce Commission. If alleged to have been so condemned, the defendant may show that the proceeding was irregular, that he did not have notice or an opportunity to be heard, etc. The plaintiff might show, under proper allegations, that the rate exacted was illegal or unlawful, because in excess of that established, filed, published, and posted, or that the rate exacted was illegal, or unlawful, because in excess of that fixed by the commission, or because no rate at all had been established, filed, and published as required by law. In either case the rate would be unlawful. Under the act for the regulation of commerce, the carrier has no right to charge or collect any rate whatever until it has been established, filed, and published. So the carrier has no right to exact a higher rate than that fixed in the filed and published schedules, and, if that has been held to be excessive, or unjust, or unreasonable, then the carrier cannot exact that. Should not the complaint state the ground on which it is claimed the rate paid was an unlawful rate? Facts showing it was an unlawful rate? I think this clearly so. Hieronymus v. N. Y. Nat. L. Assn., 107 Fed. 1005, 46 C. C. A. 684, affirming 101 Fed. 12; Williamson v. Beardsley, 137 Fed. 467, 469, 69 C. C. A. 615; W. H. Thomas & Son v. Barnett (C. C.) 135 Fed. 172, 176; St. Louis R. Co. v. Johnston, 133 U. S. 566, 577, 10 Sup. Ct. 390, 33 L. Ed. 683; Ritchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. 171, 40 L. Ed. 133, affirming

Opinion of the Court.

(C. C) 41 Fed. 502, 8 L. R. A. 268; England v. Russell (C. C.) 71 Fed. 818. I do not think the Sherman AntiTrust Law, so called, gives any right of action for damages sustained by the payment of excessive, unjust, or unreasonable rates. I do not think that this complaint states any cause of action whatever under the provisions of that act. The cause of action for such damages as [364] are alleged here is given by the act to regulate commerce. But, treating the allegations of the complaint to the effect that this was a combination and conspiracy in restraint of trade and commerce among the several states, and that by reason thereof the plaintiffs have been injured in their business and property by the defendant in the sum of $250,000 as surplusage, see American Union Coal Co. v. Pennsylvania R. Co. (C. C.) 159 Fed. 278, 279, and treating the action as really under the provisions of the act to regulate commerce-" Interstate Commerce Act"-no cause of action is stated. The allegation that "plaintiffs have been obliged to pay excessive and unlawful rates " is the statement of a mere conclusion of law with no facts to support it. It is a familiar rule that such allegations are not admitted by a demurrer.

The plaintiff says that the complaint charges, and the defendant admits by the demurrer, that by reason of the combination and conspiracy, the plaintiffs were compelled to do business "at a loss." Concede this to be so, still the action is for damages, and the only loss or injury in business or property is stated to be the payment of excessive and illegal rates for the transportation of coal from Pennsylvania into New Jersey; that, therefore, he made no profit and even lost money to the extent of the excessive charge made and exacted over a reasonable rate. Hence no damages to business or property is alleged except in the payment of "excessive rates or unlawful rates," and, as this is a mere conclusion not accompanied by the statement of any facts showing the rates paid to be either unlawful or excessive, the complaint does not state facts sufficient to constitute a cause of action, and the demurrer is sustained, with costs. The plaintiffs may file and serve an amended complaint within 30 days after being served with a copy of the order to be entered pursuant hereto on payment of such costs.

66

Syllabus.

[66] UNITED STATES v. VIRGINIA-CAROLINA CHEMICAL CO. ET AL.

(Circuit Court, M. D. Tennessee. July 3, 1908.)

[163 Fed. Rep., 66.]

CRIMINAL LAW-CONSPIRACY IN RESTRAINT OF INTERSTATE TRADE— INDICTMENT-SERVICE OF PROCESS ON NONRESIDENT CORPORATION.— Upon an indictment for conspiracy in restraint of trade under Sherman Anti-Trust Act July 2, 1890, c. 647, § 3, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201), the court has power, by virtue of Rev. St. § 716 (U. S. Comp. St. 1901, p. 580), which authorizes such courts to issue all writs "necessary for the exercise of their respective jurisdictions," to issue process to another state to bring before it corporation defendants who are citizens of such state and cannot be found or served in the state or district of the indictment."

MONOPOLIES-INDICTMENT.-An indictment for conspiracy in restraint of interstate trade and commerce, in violation of Sherman AntiTrust Act July 2, 1890, c. 647, § 3, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201), considered, and held sufficient.

GRAND JURY-APPEARANCE OF GOVERNMENT COUNSEL-SPECIAL ASSISTANT TO UNITED STATES ATTORNEY.-Under Rev. St. §§ 363, 366 (U. S. Comp. St. 1901, pp. 208, 209), the former of which authorizes the Attorney General to employ counsel "to assist the district attorneys in the discharge of their duties," while the latter provides for the issuance of a commission to such attorneys as are specially retained by the department of justice "to assist in the trial of any case in which the government is interested," which must be construed together and as referring to the same class of special assistants, the Attorney General was not authorized to appoint special assistants to a district attorney having the authority or right to appear before and participate in the proceedings of a grand jury, and the presence of two such attorneys specially appointed for a particular case and their examination of witnesses on whose testimony an indictment was returned renders such indictment invalid.

A. M. Tillman, U. S. Atty., Oliver E. Pagan, Special Asst. Atty. Gen., and Edward T. Sanford, Asst. Atty. Gen., for the United States.

John J. Vertrees, John S. Miller, James C. Bradford, Henry A. M. Smith, Marcellus Green, Geo. F. Von Kolintz and James M. Gifford, for defendants.

• Syllabus copyrighted, 1908, by West Publishing Co. 10870°-S. Doc. 111, 62-1, vol 3——26

Opinion of the Court.

MCCALL, District Judge.

The indictment in this case is found under the "Sherman Anti-Trust Law." The defendants are corporations and individuals, numbering about 60. The corporation defendants may be divided into three classes, viz.: (1) Foreign corporations; those chartered under the laws of other states, and which have not complied with the laws of Tennessee in relation to such corporations doing business within this state, and have no agents nor are doing business in Tennessee. (2) Foreign corporations which have complied with the laws of Tennessee, and have agents and are doing business in Tennessee. (3) Domestic corporations, those chartered under the laws of Tennessee. One class of defendants move to quash the summons and return. Another class demurs to the indictment, and also files pleas in abatement. These several defenses are [67] interposed, heard, and disposed of by agreement of counsel without regard to the order of pleading.

ON MOTION TO QUASH SUMMONS.

Motions to quash the summonses are made by the corporation defendants which are citizens and residents of states other than Tennessee and have no agents or place of business in Tennessee. The motions are based upon the ground that defendants are foreign corporations, and had no agents or other representatives within the state of Tennessee upon whom summons could be legally served, and that summonses, issued to the states of their respective residences and citizenship, and there served, were without authority of law, and that this court has no jurisdiction over them.

This precise question was before me in the case of United States v. Standard Oil Company. The conclusions there reached are stated in the opinion, reported in 154 Fed. 728. The summons in that case, as in the case at bar, was issued under Rev. St. § 716 (U. S. Comp. St. 1901, p. 580), which is as follows:

"Sec. 716. The Supreme Court and the Circuit and District Courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

Opinion of the Court.

It is respectfully but earnestly insisted for the defendants that the conclusion in that case is erroneous, and several cases are cited to sustain that contention, viz.: McIntire v. Wood, 7 Cranch, 506, 3 L. Ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340; Bath County v. Amy, 13 Wall. 249, 20 L. Ed. 539; Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743. A careful examination of these cases discloses that the question therein decided was that the court, having no jurisdiction of the subject-matter of a controversy, could not, by virtue of section 716, Rev. St., acquire and exercise jurisdiction by the issuance of a writ of mandamus and cause the same to be served upon the party whom it was sought to force to do some act; the refusal or failure to do which being the subject of complaint. In the case of Bath County v. Amy, supra, the Supreme Court, after reviewing McIntire v. Wood, McClung v. Silliman, and Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181, announced the rule that the power to issue a writ of mandamus as an original and independent proceeding does not therein belong to the Circuit Court, and approving the holding in the Silliman case, supra, that the power to issue writs of mandamus was authorized by section 716, Revised Statutes, only in cases where the jurisdiction already existed, and not where it is to be created or acquired by means of the writ proposed to be sued out. "In other words, the writ cannot be made to confer a jurisdiction which the Circuit Court would not have without it. It is authorized only when ancilary to a jurisdiction already acquired." To the same effect is Rosenbaum v. Bauer, supra.

In the case of the United States v. Plumer, 27 Fed. Cas. No. 16,056, it was held that section 716, Revised Statutes, did not authorize the issuance of a writ of error to review the judgment of a District Court [68] in a criminal case, when such authority had not been given the Circuit Court by the judiciary act. In that case the defendant had been indicted, tried, convicted, and sentenced, and the right of appeal lost by the waiver of the motion for a new trial, and the court said:

"Completed, as the proceedings in this case were, the Circuit Court, at the date of this application, had no more power over it than if the indictment had not been found."