(273 F.) "We are of the opinion that upon the face of the statute the intention of the legislature is manifest that it is only where some question of law or fact, involved in or leading to the final disposition actually made of the case, has been submitted, or at least presented to the consideration of the court, that there can be said to have been a final hearing which warrants the taxation of a solicitor's or proctor's fee of $20." This statement meets my views. It will be noticed that nothing is here said about any "controversy" or dispute. We all know that many final hearings are had, both in equity and admiralty, and decrees written thereon, which do finally dispose of a question of law or fact involved in the bill or libel as filed, in which there is no "controversy," but the parties have agreed on the facts or on an adjustment. It seems to me that, where this has been done, the parties are strictly within the terms of the statute, and the fee must be taxed. The H. C. Grady (D. C.) 87 Fed. 483. The language of the statute is not "on the final hearing of the controversy," but merely "on the final hearing," so that the proctor must represent the libelant's claim to a decree on some final hearing whch disposes of the case as made in the libel, whether this decree is made on the law, or whether it is made on a disputed state of facts, or whether it is made on an agreed state of facts. If the cause was dismissed by the libelant, or was disposed of in some such manner, there is never such final hearing as entitles the proctor to have his fee taxed; but, on the other hand, there is nothing in the statute which limits the allowance of the fee to cases in which there is a controversy over the law or facts. We should follow the statute, and not try and distort its meaning, but give its words their fair and ordinary meaning. [3] It is conceded that at present no fee can be taxed in favor of the libelant's proctor, because no final decree has been rendered. It is contended that, because the money has been paid into the court to cover libelant's claim and the costs now accrued, the libelant cannot now proceed to take a final decree on these facts. It is conceded in argument that, if no appearance had been made by the vessel or her owner, the libelant could have taken a decree pro confesso, and then on the submission have obtained a final decree, which would have authorized the taxing of his fee. Contention is made, though, that because the money has been paid in court the libelant must dismiss his libel, so that the fee cannot be taxed. I know of no power on the part of the defendant to control the conduct by the libelant of his cause, and it seems to me that, where the money has been paid into the court by the vessel, the libelant has his option either. to dismiss the libel and take the money, in which event no fee could be taxed, or to ask, as he here has done, for a final decree because of the confession made by the payment into court of his wages. It seems to me that a decree so rendered would be such a final hearing as was contemplated by section 824, though there is no controversy or dispute over the facts or law as stated in the libel; the only dispute being whether or not the taxed fee shall be allowed. [4] Again, if the proctor is entitled to his fee on a final decree on a decree pro confesso, or on a plea filed confessing his cause, how can claimant contend that, if he does less than expressly confess the de mand by merely paying the money into court, the right to the fee is defeated. [5] It is further contended that this libel was improperly filed, because the libelant was informed before it was filed, and at the time he made his demand for his money, that his wages would be paid on the following day, and that the litigation was vexatious, and no costs should be allowed. In this case I find that the sailor honestly believed that the owner was going to deduct the hospital bill from his wages before payment, and there was no impropriety in his bringing suit when. he did. The decree will therefore be entered in accordance with this opinion, and the clerk is hereby directed that, when the decree is finally entered, he will tax a fee of $10 for libelant's proctor. BELT LINE RY. CORPORATION v. NEWTON, Atty. Gen., et al. (District Court, S. D. New York. January 25, 1921.) 1. Carriers 12 (4)-Interest on bonds can be included in cost of carrying passengers. The interest paid by a street railway company on its bonds can be included in computing the cost of carrying each passenger, though the street railway company, with consent of the state Public Service Commission, had ceased to operate cars over a portion of the lines mortgaged to secure the bonds. 2. Courts 493 (3)-Parties can choose forum for relief against rate order after exercising legislative remedy. A public service corporation, after exercising its legislative remedy against a confiscatory rate by proceedings before the state Public Service Commission, which had taken under advisement an application for rehearing thereof, and had not decided such application within 30 days after submission as required by Public Service Commissions Law, N. Y. § 22, can choose its forum for review of such action and bring suit in United States District Court. 3. Carriers 12 (5)—Share of railroad in fare of transfer passengers held confiscatory. Where the cost of carrying each passenger on a street railway exceeds four cents, and a majority of its passengers either travel on or receive transfers as required by an order of the state Public Service Commission, which allows it only two cents for such passengers and its income is less than the operating expenses and interest on borrowed money, the order requiring the acceptance and issuing of transfers for the prescribed share in the fare is confiscatory, so that its enforcement should be restrained. In Equity. Suit by the Belt Line Railway Corporation against Charles D. Newton, as Attorney General of the State of New York, and others, to restrain the enforcement of an order of the Public Service Commission of New York. On motion for preliminary injunction enjoining the operation of the Public Service Commission's order, dated October 29, 1912, in so far as it fixes at five cents the maximum joint rate or fare to be exacted for through transportation over the lines of the plaintiff and the lines operated by all other street service railway corporations or any of them named in said order, except Third For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (273 F.) Avenue Railway Company and the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company, on the ground that the same has become and now is in contravention of section 10 of article 1 of the Fourteenth Amendment to the Constitution of the United States. Granted. Alfred T. Davidson, of New York City, for plaintiff. Wilber W. Chambers, Ely Neumann, M. Maldwin Fertig, and Charles Horowitz, all of New York City, for defendants. Before HOUGH, Circuit Judge, and LEARNED HAND and MAYER, District Judges, holding the court pursuant to section 256 of the Judicial Code (Comp. St. § 1233). PER CURIAM. This motion in substance seeks to have abrogated as confiscatory, and therefore unconstitutional, the system by which the Fifty-Ninth Street crosstown surface line is obliged to issue to and receive transfers from passengers desiring to exchange at the intersection of Fifty-Ninth street with Seventh, Sixth, Lexington, Second, and First avenues, in the borough of Manhattan, the result of which system is that for each passenger so exchanging and from a through rate of five cents the plaintiff receives two cents and no more. As the result of this long-standing system, the major portion of the passengers on plaintiff's crosstown line pay a fare of two cents only to plaintiff— the proportion of two-cent passengers to five-cent passengers being (with sufficient accuracy for present purposes) in the proportion of 10 to 7. The facts presented are simple and not in dispute. The propositions of law are easy to state, and their elaborate discussion unnecessary in a court of first instance. For these reasons we shall content ourselves with briefly stating our findings of fact and legal conclusions therefrom. 1. Plaintiff is a corporation organized in 1911, which by purchase in foreclosure acquired the franchises, property, and rights formerly of the Central Park, North & East River Railroad Company, and by virtue of such acquisition became authorized to operate a surface railway on Fifty-Ninth street, between First and Tenth avenues, on First avenue, between Fifty-Ninth street and Fourteenth street, and on Tenth avenue and West street, between Fifty-Ninth street and the Battery. 2. It is still operating what is known as the Crosstown Line on FiftyNinth street, and that on West street and Tenth avenue; but the operation of the line on First avenue south of Fifty-Ninth street has been abandoned with assent of the Public Service Commission. 3. Plaintiff is subject to the operation of the Commission's order of October 29, 1912, under which no greater fare than five cents can be charged for the through transportation of one passenger, and of such fare of five cents the two cents long allotted by treaty or agreement to plaintiff is a fair and equitable provision. For the year ending June 30, 1920, the actual cost to plaintiff of carrying each passenger was 3.46 cents, of which sum .53 cents represents interest on first mortgage bonds and other borrowed money. 273 F.-18 4. For the period of four months ending October 31, 1920, said actual cost was 3.96 cents, and the carrying charges for borrowed money amounted to .56 cents. 5. For the year ending June 30, 1920, a comparison between the actual cost of carrying passengers plus interest on borrowed money and the total income of the plaintiff from every source showed a deficit of $20,814.82, and by the same comparison a deficit exists of $28,120.27 for the four months ending October 31, 1920. These calculations allow for payment of taxes, but do not cover any reserve or any sum for replacement or depreciation of physical property. By the same system of computation the accumulated deficit, without depreciation allowances, of this plaintiff since January 1, 1916, amounts to $201,270.13. 6. In May, 1920, plaintiff applied to the Public Service Commission for a modification of the order of October 29, 1912, substantially praying to be relieved from the obligation to carry passengers for two cents-in other words to abolish transfers at the points above mentioned. 7. Hearings were had before the Commission under the above application, and on July 9, 1920, the Commission entered an order holding that the joint rate of five cents fixed by the order of October 29, 1912, had by reason of changed conditions become "unjust, unreasonable, and insufficient to render a fair and reasonable return for the service furnished, wherefore [continued the order] the said maximum joint fare or rate was fixed," commencing September 13, 1920, at the sum of seven cents, instead of five cents. 8. Thereupon plaintiff, on July 23, 1920, applied for a rehearing pursuant to section 22 of the Public Service Commissions Law (Consol. Laws, c. 48), and in respect of the matters determined in and by said. order of July 9. 9. On November 4, 1920, the Commission made an order granting said application for rehearing, and on November 5 entered an order by which it "deferred and postponed" the operation of the order of July 9, 1920, "until such date or dates as shall or may be fixed by the Commission at or after the termination of such rehearing." 10. The matter of the rehearing before the Commission was terminated on November 10, 1920, was then finally submitted to said Commission for decision, and has never been decided, although section. 22 of the Public Service Commissions Law requires that any rehearing "shall be determined by the Commission within thirty days after the same shall be finally submitted." This bill was filed more than 30 days after such final submission to the Commission. [1] 11. Plaintiff's method of computing cost per passenger by including as an item of expense interest on borrowings is proper, and the abandonment of the "East Side Belt Line" makes no difference in the indebtedness or the interest thereupon of the plaintiff. The debt attaches to every part of the line, and almost all of said debt is represented by first mortgage bonds approved by the defendant Commis (273 F.) 12. The action or non-action of the Public Service Commission has in effect continued and is now continuing in force the order of 1912. 13. The deficits produced by plaintiff's carriage of a majority of all passengers for two cents apiece amount to or result in confiscation. 14. In this case the "legislative" act of rate making is complete and is now requiring carriage of passengers at a rate resulting in confisca tion. 15. The only remedy for or review of such rate or rate making under the laws of the state of New York is the writ of certiorari, which remedy is wholly judicial. 16. By reason of the neglect or refusal of the defendant Public Service Commission to render any decision in respect of a rehearing. of the matters involved in the order of July 9, 1920, no certiorari is now possible; nor will the issuance of such writ ever be possible unless and until by mandamus or proceedings in the nature thereof the Public Service Commission is required to comply with section 22 afore said. [2] 17. When the legislative remedy for the creation or maintenance of a confiscatory rate is exhausted, the parties injured may choose their forum of reviews and assert their rights (as has here been done) in the courts of the United States. Home Telephone Co. v. Los Angeles, 211 U. S. at page 278, 29 Sup. Ct. 50, 53 L. Ed. 176; Prentis v. Atlantic Coast Line, 211 U. S. 210, 228, 29 Sup. Ct. 67, 53 L. Ed. 150; Bacon v. Rutland R. R., 232 U. S. 134, 34 Sup. Ct. 283, 58 L. Ed. 538. [3] 18. In the case at bar the aggregate transactions of the plaintiff are resulting, and long have resulted, in failure to pay actual operating expenses. This fact renders unnecessary an inquiry of the character considered in Chesapeake, etc., Ry. v. Public Service Commission, 242 U. S. 603, 37 Sup. Ct. 234, 61 L. Ed. 520. 19. This decision is limited to the enjoining of the transfers complained of in combination with or as obtainable from a five-cent fare. The basic fare of five cents is not attacked in this litigation. The motion is granted and order filed herewith. UNITED STATES v. KANE (SILVER BOW MOTOR CAR CO., Intervener). (District Court, D. Montana. May 31, 1921.) No. 3639. 1. Intoxicating liquors 255-Relieving vehicle, used in illegal transportation, from forfeiture, is discretionary with court; "good cause." Under National Prohibition Act, tit. 2, § 26, providing that, on conviction of a defendant of illegal transportation of liquor the court shall order the sale of the vehicle used, and seized, "unless good cause to the contrary is shown by the owner," what constitutes "good cause" rests in the discretion of the court, which should be reasonably convinced, from For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |