the plaza is of the essence of a town, we | conditions exist, and to make an order dican do neither. There is no question of recting the carrier to comply with the act. law before us, for it hardly was argued, Cent. Dig. §§ 116-118, 120; Dec. Dig. § 51.] [Ed. Note.-For other cases, see Railroads, and could not be with any seriousness, that the supreme court was not authorized to review the evidence under § 497 of the Argued October 25 and 28, 1912. Decided Philippine Code, or that this court can November 11, 1912. consider whether it was right in finding [No. 648.] the preponderance of evidence to be on the APPEAL from the United States Com defendant's side. Appeal and writ of error dismissed. (226 U. S. 14.) UNITED STATES OF AMERICA, Cincinnati & Columbus Traction Company, and Interstate Commerce Commission, Appts., v. BALTIMORE & OHIO SOUTHWESTERN RAILROADS (§ 51*)-REGULATION-SWITCH 1. The words "lateral branch line" in the act to regulate commerce of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), § 1, as amended by the act of June 18, 1910 (36 Stat. at L. 539, 547, chap. 309 [U. S. Comp. St. Supp. 1911, p. 1288]), § 7, requiring carriers subject to the act to establish switch connections with such lines on certain conditions, and permitting owners of such lines, as well as shippers, to make complaint to the Interstate merce Court to review a decree setting aside an order of the Interstate Commerce Commission, directing certain steam railroads to establish switch connections with an interurban electric railway, and to maintain through routes to and from points on that road. Affirmed. See same case below, 195 Fed. 962. Assistant Attorney General Denison, Special Assistant Attorney General Thurlow M. Gordon, and Messrs. Charles W. Needham and C. B. Matthews, for appellants. Messrs. R. Walton Moore, Edward Barton, Theodore W. Reath, Joseph I. Doran, and F. Markoe Rivinus, for appellees. Mr. Justice Holmes delivered the opinion of the court: * This is a suit to set aside an order of the Interstate Commerce Commission, directing the appellees to establish switch connections with the road of the appellant, and also through routes to and from points Commerce Commission in case of the car on that road. 20 Inters. Com. Rep. 486. rier's failure upon written application, and The commerce court made a decree as authorizing such Commission to hear, inves-prayed (195 Fed. 962), and an appeal was tigate, and determine whether such condi- taken to this court. The facts material tions exist, and to make an order directing the carrier to comply with the act, do not refer to what the applicant line may become or be made by the order of the Commission, but to what it already is when it applies. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 116-118, 120; Dec. Dig. § 51.*] RAILROADS (§ 51*)-SWITCH CONNECTIONS, "LATERAL BRANCH LINE OF RAILROAD" -ELECTRIC RAILWAY. to our decision are as follows: The Baltimore & Ohio Southwestern Railroad and the Norfolk & Western Railway are trunk lines of steam railroads running east and under a state charter between Norwood and west across the state of Ohio. After almost touching each other at Norwood, a former in a northerly, the latter in a suburb of Cincinnati, they draw apart, the southerly, direction, but come together 2. An interurban electric railway for pas-again at Hillsboro, about 53 miles further sengers and some freight, running under a to the east. The line of the Traction Comstate charter between points in the state pany is an "interurban" electric railway, through the middle of a diamond-shaped for passengers and some freight, running area inclosed by two steam railways, and in its general course parallel to and more or less competing with the steam roads, and working on a different plan, is not a "lateral branch line of railroad," within the meaning of the act to regulate commerce of February 4, 1887, as amended by the act of June 18, 1910, requiring carriers subject to the act to establish switch connections with such lines on certain conditions, and permitting owners of such lines as well as shippers to make complaint to the Interstate Commerce Commission in case of the carrier's failure upon written application, and authorizing such Commission to hear, investigate, and determine whether such Hillsboro, through the middle of the diamond inclosed by the steam roads, and authorized to go on to Columbus. For a number of miles easterly from Norwood to Stonelick, near Boston, the last-mentioned road is very near and almost parallel to the tracks of one or the other of the steam roads, as it is again for the last 5 In the miles before reaching Hillsboro. intervening space, between Boston and Dodsonville, the towns and villages on the electric line are from 5 to 10 or 12 miles by wagon distant from the nearest station on For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes one of the steam roads. The Traction Com- | commodated by a switch connection is not pany applied to the Commission for switch enough. connections, and they were ordered as we have said. The order to maintain through routes was incident to the requirement of switch Some technical objections were raised, connections and falls with it. We underbut the substantial question is whether the stand that it was based on the assumption Traction Company is a "lateral branch line that the connections were to be made, and of railroad" within the meaning of the therefore do not go into the question of 1st section of the act to regulate com- | power under § 15. merce, amended by act of June 18, 1910, It is unnecessary to consider objections chap. 309, § 7, 36 Stat. at L. 539, 547. to the conclusion of the Commission that That section requires carriers subject to the it was safe and reasonably practicable, etc., act to establish switch connections with to establish the switch. We remark that such lines on certain conditions; and, as it is stated in the Commissioner's report amended, permits owners of such lines as that they base their conclusion more largely well as shippers to make complaint to the upon their own investigation than upon Commission in case of the carriers' failure the testimony of the witnesses. It would upon written application, and authorizes be a very strong proposition to say that the Commission to hear, investigate, and the parties were bound in the higher courts determine whether the conditions exist, by a finding based on specific investigations and to make an order directiing the carrier made in the case without notice to them. to comply with the act. It will be seen See Washington ex rel. Oregon R. & Nav. without much argument that, unless the Co. v. Fairchild, 224 U. S. 510, 525, 56 Traction Company is a lateral, branch line L. ed. 863, 868, 32 Sup. Ct. Rep. 535. Such of railroad, the trunk line carriers, the ap- an investigation is quite different from a pellees, are not subject to the requirement view by a jury, taken with notice and subof the statute, so far as the Traction Com- ject to the order of a court, and different pany is concerned. again from the question of the right of the Commission to take notice of results reached by it in other cases, when its doing so is made to appear in the record, and the facts thus noticed are specified, so that matters of law are saved. Decree affirmed. The words "lateral branch line" do not refer to what the applicant may become or be made by order of the Commission, but to what it already is when it applies. The power of the Commission does not extend to ordering a connection wherever it sees fit, but is limited to a certain and somewhat narrow class of lines. The most (226 U. S. 53.) ORMOND G. SMITH, George C. Smith, and V. FRANK H. HITCHCOCK Postmaster-General of the United States. (No. 31.) tion, Appt., V. FRANK H. HITCHCOCK Postmaster-Gen- obvious examples of such lines are those that are dependent upon and incident to the main line,-feeders, such as may be built from mines or forests to bring coal, ore, or lumber to the main line for shipment. We agree with the commerce court that the Traction Company is not within FRANK TOUSEY, Publisher, a Corpora this class. It is an independent venture, in its general course parallel to, more or less competing with, the steam roads, and working on a different plan. Presumably and so far as appears it was built and would have been run without regard to the existence of the steam roads. The cases 1. Books, being expressly embraced in cited on behalf of the appellants as to the mail matter of the third class by the act of March 3, 1879 (20 Stat. at L. 359, chap, power of railroad companies to construct 180, U. S. Comp. Stat. 1901, p. 2648), § 17, branch roads under their charter do not cannot be removed from that class and givapply. There the determination of the com- en the benefit of second-class postal rates acpany fixes the character of the branch; it corded by § 14 to periodical publications, builds the branch from the beginning as by the simple device of publishing them in incident to the purposes of the company. a series, at regular intervals of time, whether such publications be reprints of wellBut here, as we have said, this determina-known works or new matter. tion of the Commission that the applicants [Ed. Note.-For other cases, see Post Office, shall be a branch is not enough; the applicant must be a branch before it applies. That is the absolute and reasonable condition. That some shippers would be ac Cent. Dig. 22; Dec. Dig. § 15.] POST OFFICE ( 15*)-SECOND-CLASS POST- 2. Weekly 32-page publications, each con For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes taining a single story, complete in itself,, §§ 7, 10, 14, 20 Stat. at L. 358, 359, U. S. which are generally by the same author, Comp. Stat. 1901, p. 2646, and therefore and carry the same character through the must be carried as second-class matter, by series, and leave the reader to expect fur- the very terms of the law. ther tales, but which contain nothing else except a roll of honor, some laudatory letters with insignificant comment, and a page or two containing answers to inquiries, are not "periodical publications" entitled to second-class postal rates, under the act of March 3, 1879, § 14, but are "books," which, by 17, take the higher third-class rate. [Ed. Note.-For other cases, see Post Office, Cent. Dig. § 22; Dec. Dig. § 15.* For other definitions, see Words and Phrases, vol. 1, pp. 836-838; vol. 6, p. 5303; vol. 8, p. 7751.1 POST OFFICE (§ 4*) - REVOKING SECONDCLASS PRIVILEGES-HEARING. 3. Persons whose second-class mail privileges have been revoked on the ground that their publications were not periodicals, but books, have no cause to complain as to the sufficiency of the hearing before the Department, although, beyond the submission and acceptance of a printed brief upon the question, which was purely one of law, nothing further was done, the Department assigning no reasons for its ruling, and evincing no desire to discuss the matter, where not even by manner or indirection was the offer of any material evidence prevented. [Ed. Note.-For other cases, see Post Office, Cent. Dig. § 3; Dec. Dig. § 4.*] [Nos. 31 and 32.] We will take up the second question first. The facts are not in dispute and are alike in the two cases. The publications are weekly, each containing a single story complete in itself, but the same character is carried through the series, and the reader is led by announcements to expect further tales after the one before him. Most of the stories are by the same author. The element of sequence may be indicated by a few of the titles in the Tip Top Weekly: Frank Merriwell in Arizona; or, the Mys teries of the Mine. Friend; or, Muriel the Moonshiner. Frank Merriwell's Double; or, Fighting for Life. Frank Merriwell Meshed; or, the Last of the Danites. Frank Merriwell's Magic; or, the Pearl of Tangier. Frank Merriwell in London; or, The Grip of Doom, etc., etc. There is nothing else in a number except Frank Merriwell's a roll of honor or list of some of those who, have endeavored to increase the circulation of the series, laudatory letters with insignificant comments, and a page or two of inquiries as to physical culture, purporting to come from readers, with short replies, Argued November 5 and 6, 1912. Decided all more or less incident to the muscular tenor of the tales. The publications measure about 11 by 8 inches on the outside, are said to contain about thirty thousand words, have thirty-two pages, including a page of advertisement, and exclusive of the cover, of which twenty-six are filled by the story. The front cover bears a colored illustration of some incident narrated See same case below, No. 31, 34 App. D. within. C. 521; No. 32, 34 App. D. C. 535. The facts are stated in the opinion. Messrs. J. J. Darlington and H. Glassie for appellants. Thus a question of law is raised, although, as suggested in Bates & G. Co. v. Payne, H. 194 U. S. 106, 108, 48 L: ed. 894, 895, 24 Sup. Ct. Rep. 595, we should not interfere with the decision of the Postmaster General unless clearly of opinion that it was wrong. Id. 110. American School v. McAnnulty, Mr. Justice Holmes delivered the opin- 187 U. S. 94, 106, 47 L. ed. 90, 95, 23 Sup. ion of the court: Solicitor General Bullitt and former Solicitor General Lehmann for appellee. Ct. Rep. 33; Public Clearing House ▼. These are bills to restrain the Postmas Coyne, 194 U. S. 497, 50 48 L. ed. 1092, ter General from revoking orders accord- 1098, 24 Sup. Ct. Rep. 789. We have no ing second-class mail privileges to the sever- such clear opinion, as the decision is pretty al plaintiffs, in the first-named case in nearly if not wholly sustained by Houghton respect of a series of publications issued v. Payne, 194 U. S. 88, 48 L. ed. 888, 24 under the name of the Tip Top Weekly; Sup. Ct. Rep. 590, and Smith v. Payne, 194 in the second, in respect of a similar one U. S. 104, 48 L. ed. 893, 24 Sup. Ct. Rep. entitled Work and Win. The ground of 595. Indeed, the latter case dealt with the bills is that the privileges were annulled The Medal Library, which was a periodical without granting the hearing required by publication of several issues of the Tip Top the act of March 3, 1901, chap. 851, 31 Weekly, bound together; as the principal Stat. at L. 1099, 1107, U. S. Comp. Stat. plaintiff now puts it, in book form, and 1901, p. 2655, and that the publications are it is true, reprinted in a different size and periodical publications within the mean-shape. Some attempt was made to reargue ing of the act of March 3, 1879, chap. 180, the law of the decisions just cited, but we For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 09. The decision that these weeklies are books shortens what needs to be said as to the sufficiency of the hearing. The parties were notified that they would be granted a hear Postmaster General, Washington, District of Columbia, at a fixed day and hour, to show cause why the admission to the secondclass should not be revoked and the third do not feel called upon to reopen the discus-, are books. They are large enough to raise sion in that part of the appellants' brief. no doubt on that score; each volume is It must be taken as established that not complete in itself and betrays no inward every series of printed papers published need of more, notwithstanding that, as in at definite intervals is a periodical publica- the highwayman stories of an earlier gention within the meaning of the law, eveneration, further adventures to follow are if it satisfies the conditions for admission promised at the end. to the second class, set forth in § 14. Houghton v. Payne, 194 U. S. 88, 96, 48 L. ed. 888, 889, 24 Sup. Ct. Rep. 590. It is established by the same authorities that books that are expressly embraced in mailing at the office of the Third Assistant matter of the third class by § 17, and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series at reg-class rate of postage charged, on the ground ular intervals of time. It was suggested, to be sure, that the distinction was between reprints of well-known works and new matter, but we can see nothing in that; neither do we find much weight in the identity of authorship, the retention of the name of the hero through successive tales, or the ever-renewed promise of further wonders in the next. All these might co-exist and yet each number might be a book, and if so, it goes into the third class. "Mail matter of the third class shall embrace books." § 17. The noun "periodical," according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion, if not a promise, of matter on a variety of topics, and certainly implies that no single number | is contemplated as forming a book by itself. But we can approach the question more profitably from the other end, and shall have gone as far as we need when we decide whether the numbers exhibited constitute 80 many books. The word "book," also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. For purposes of copyright the common monthly magazines may be books, yet they are not so under the present § 17. As books are not turned into periodicals by number and sequence, the magazines are not brought into the third class by having a considerable num ber of pages itched together. Without that the issues were not periodical publications, but were books. They sent a representative to Washington who left a printed response in advance, asking for further opportunity for argument if the authorities were not satisfied, and who called at the appointed time. He was referred to the Chief of the Classification Division,—the proper person. Rev. Stat. § 161, U. S. Comp. Stat. 1901, p. 80; Postal Laws and Regulations, 1902 ed. §§ 6, 19, subsec. 1, 8. He saw him and asked if the brief had been received, was answered yes, and then asked if the other had any questions to ask, and was answered no. He presented a pamphlet, "The Influence of the Dime Novel," and departed, offering no further argument, seemingly somewhat aggrieved at not having seen the Third Assistant Postmaster General in person. Subsequently, the Assistant Attorney General for the Postoffice Department was consulted by the officials, and in accordance with his opinion the order was issued which the plaintiffs seek to restrain. The matter was argued to us with some feeling, and it is not impossible that the interview gave an impression of official indifference. But the plaintiffs allege in their bills that the question was a pure question of law; it was a question that they had a right to have reviewed and have had reviewed in this court; it was clearly defined; the official was not called on to state reasons or to discuss,-his only attempting a definition, we may say that generally a printed publication is a book when its contents are complete in them-duty was to hear; and beyond offering the selves, deal with a single subject, betray printed brief, the plaintiffs' representatives no need of continuation, and, perhaps, have showed no desire to be heard. This is not an appreciable size. There may be ex- a case in which even by manner or indirecceptions, as there are other instances of tion, the plaintiffs were prevented from books. It hardly would be an exception if, offering material evidence. The facts and where the object is information and the the question were as plain then as now. subject-matter is a changing one, a publica- The conclusion reached was right; and in tion periodically issued, giving information the circumstances disclosed, we are of opinfor the time, should be held to fall into ion that the plaintiffs had no cause to the second class. From this point of view complain. the Tip Top Weekly and Work and Win I Decrees affirmed. (226 U. S. 20.) STANDARD SANITARY MANUFACTUR- V. UNITED STATES OF AMERICA. MONOPOLIES (§ 17*)—MANUFACTURERS AND called to give them immunity from the criminal prosecution then pending, notified them that if they testified, they would dɔ so at their peril, as immunity could only be claimed by witnesses for the government, whereupon, on the advice of counsel, they refused to testify, leaving the defendants without the benefit of the evidence which they could have given. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 24.*] [No. 554.] 1. Agreements embracing 85 per cent of the manufacturers of, and 90 per cent of the jobbers in, enameled ironware, which, in addition to a provision against the marketing of "seconds," intended to carry out the ostensible object of the agreements, also provide for regulating prices through the instrumentality of a price and schedule committee, fix preferential discounts, confining them to sales to jobbers only, authorize rebates if the agreements shall be faithfully observed, and forbid all sales to jobbers not A United States for the District of Mary in the combination, making a condition of their entry a promise not to resell to plumbers except at the prices determined by the manufacturers, and not to deal in the products of manufacturers not in the combination, cannot escape condemnation under the Sherman anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3,200), because the agreements take the form of licenses from the owner of a patent for a device used in the enameling process. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. 13; Dec. Dig. § 17.*] COMMERCE (8 40*)-MONOPOLY - CORPORA- Argued October 15, 16, and 17, 1912. Decided November 18, 1912. PPEAL from the District Court of the land to review a decree in favor of the See same case below, 191 Fed. 172. lants. Attorney General Wickersham, and Mr. Edwin P. Grosvenor, Special Assistant to the Attorney General, for appellee. Mr. Justice McKenna delivered the opin of July 2, 1890 [26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200], commonly known as the Sherman anti-trust act. 2. A corporation manufacturing its prod-ion of the court: ust in New Jersey, and buying also from Suit by the government against appelother manufacturers and jobbers, which lants for a violation by them of the act ships from there to its warehouses in Massachusetts and New York, from which sales are made in those states and in Connecticut, is engaged in interstate commerce, and as such is subject to the prohibitions of the Sherman anti-trust act of July 2, 1890, against restraints of trade and monopolies. government, from which appellants (desig[Ed. Note.-For other cases, see Commerce,nated herein as defendants) have proseCent. Dig. §§ 29, 30; Dec. Dig. § 40.*] cuted this appeal. 191 Fed. 172. MONOPOLIES (§ 12*) - MANUFACTURERS OR DEALERS-CULPABILITY. 3. The culpability of a party to a combination of manufacturers and jobbers which accomplishes a restraint of trade condemned by the Sherman anti-trust act of July 2, 1890, is not removed because it was restricted in less degree than the other job [Ed. Note.-For other cases, see Monopolies, JOURNMENT. OR AD A decree was entered in favor of the There are sixteen corporate and thirtyfour individual defendants, the latter, with the exception of Edwin L. Wayman, being the officers, presidents, or secretaries, of the companies. to be the manufacturers of enameled ironThe corporate defendants were alleged war in various places in the United States, manufacturing 85 per cent of such ware, and engaged in interstate commerce in such ware throughout the United States and with foreign countries, in competition with 4. The trial court did not abuse its dis-one another and with certain other manueretion in denying a motion by defendants in a civil suit brought by the government under the Sherman anti-trust act of July 2, 1890, for an enlargement of time to take testimony, based upon the ground that they had been prevented by the action of the government in instituting criminal proceed- against them, Wayman doing so in a sepa ings from properly presenting their de-rate answer. The Colwell Lead Company fense, in that the government. apprehend- denied that it was engaged in interstate ing that the witnesses for the defense were commerce. facturers of such ware, and that in 1909, or early in 1910, they entered, into and engaged in a combination and conspiracy to restrain such trade and commerce. The defendants denied the charges other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |