otherwise ordered by the commission, which will discontinue the unjust discrimination which the commission in these proceedings has found to exist, in so far as such discrimination arises from the rates charged by the Boston and Maine Railroad on intrastate movements of freight to and from the premises of the petitioner from and to points on the Boston and Maine Railroad in Massachusetts as compared with the rates on like traffic between the Commonwealth pier in South Boston and the same points."

Thereafter the respondent filed new schedules of tariffs with the public service commission designed to remove the discrimination of which complaint is made here, by cancelling the rates to Commonwealth pier. Before these tariffs could take effect, the Commonwealth brought suit in the Supreme Judicial Court for Suffolk County to enforce specific performance of the contract of the respondent with it, dated July 1, 1912, and to restrain the respondent from breaking that contract by cancelling the rates to the Commonwealth pier provided for by that contract. An injunction issued on or about July 16, 1915, which appears to be still in force and which suspended the operation of the rates of the new schedules of tariffs and forbade in substance the making of any additional charge respecting freight at Commonwealth pier above that provided in the contract. The respondent complied with the terms of the injunction. Thereafter, on September 13, 1915, the public service commission wrote to the respondent referring to its previous orders, to the filing of the new schedules of tariffs by the respondent, and to the injunction against their enforcement; it recited that these facts had been called to its attention by the present petitioner at a public hearing at which it asked the commission to enforce its previous order; and that the commission recognized that the respondent, while the injunction remained in force, could not remove the discrimination by ceasing to absorb the transfer charges to and from Commonwealth pier, and could only remove that discrimination by absorbing the transfer charges made by the Boston and Albany Railroad Company for freight transported to and from the docks of the petitioner to the tracks of the respondent, and that this was the only way in which the respondent could comply with the order of the public service commission. It then proceeded, "Whether such a compliance would result in unreasonably low rates for the service rendered it

is unnecessary for the Commission at this time to decide." It directed the respondent to comply with its order and stated that in the event of failure on its part the commission would proceed to enforce its order. On October 13, 1915, the commission requested the Attorney General to take steps to enforce its order under St. 1913, c. 784, § 28. "The Attorney General declined to take such steps on the ground that in his opinion some discretion was vested in him under the statute and it would be highly inconsistent for him to institute such a proceeding while in other proceedings he was in his official capacity making contentions that the contract of the defendant with the port directors was valid and constituted no discrimination. The soundness of that contention need not now be considered. The present petition is brought to enforce the order or orders of the public service commission.

These orders and decisions as a whole are not within the jurisdiction of the public service commission under the facts here revealed and ought not to be enforced now. It is provided by St. 1913, c. 784, § 22, as to commerce within the State that "Whenever the commission shall be of opinion. . . that the rates, fares or charges or any of them demanded, exacted, charged or collected by any common carrier . . . or the regulations or practices of such common carrier affecting such rates, are unjust, unreasonable, unjustly discriminatory or unduly preferential . . . the commission shall determine the just and reasonable rates, fares and charges to be charged for the service to be performed." The discrimination in the case at bar rested upon a rate charged by the respondent. It had no other basis. It was not a regulation or practice as distinguished from a rate. The very question in the present posture of the case is the compensation which the respondent shall receive for the service of transportation of freight between the petitioner's wharf and pier and points within the Commonwealth on the respondent's line of railroad. Thus, for this reason if for no other, Pennsylvania Co. v. United States, 236 U. S. 351, 361, 362, and Louisville & Nashville Railroad v. United States, 238 U. S. 1, 20, are distinguishable from the case at bar.

It was the duty of the public service commission under the statute, since under the circumstances here disclosed the discrimination arose out of a rate, to "determine the just and reasonable

rates" to be charged. St. 1913, c. 784, § 22. An order baldly directing a carrier to remove a discriminatory rate when the only possible way in which that discriminatory rate can be removed is by making a substantial reduction in its rates, and where there is no election to raise some rates or reduce others, without at the same time determining what is a reasonable rate, is not an exercise of the jurisdiction conferred. The determination by the commission that whether compliance with its earlier orders "would result in unreasonably low rates for the service rendered it is unnecessary for the commission at this time to decide," was not in conformity to law. The respondent had attempted to comply with the order of the commission in another way, which involved no reduction in rates. It was prevented by a mandate of the court from carrying out this removal of discriminatory rate. When the orders of the commission according to its own statement required a reduction of rates, it must make a further decision based on evidence that such reduced rate would be fair and reasonable and not confiscatory before its earlier orders would be ripe for enforcement. The wisdom of this requirement of the statute is illustrated by the case at bar. If the respondent cannot absorb into its regular rate the charges made by the Boston and Albany Railroad Company for transportation from the wharf and dock of the petitioner to the Boston and Maine tracks without deprivation of adequate compensation for the service it would be required to render, in the transportation of freight from that source, serious questions would arise. The commission, however, made no finding upon this point. It has not considered in any respect the questions which ought to be considered, if the respondent would not receive a compensatory rate by complying with its orders in the only way in which now it can comply with those orders. See in this connection National Dock & Storage Warehouse Co. v. Boston & Maine Railroad, 38 I. C. C. Rep. 643.

There is nothing at variance with this conclusion in St. 1906, c. 463, Part II, § 201. It appears from the record that there are numerous other wharves at the port of Boston situated similarly to that of the petitioner. The absorption of transportation charges from these wharves to its tracks by the respondent may or may not be a grave matter to it and may result in its doing that business at a loss. Whether the contract entered into between the

respondent and the directors of the port of Boston and the other carriers is unwise, or open to other objections, are matters not now before us and are left undetermined. It cannot be said, from what is set forth in the record, that the question of absorbing the freight charges for transportation from the petitioner's wharf to its tracks is negligible.

Since the order which is sought to be enforced is not an order issued in conformity to the statutory power of the commission under all the conditions here disclosed, it cannot be enforced at this time. It is not necessary to decide any other question either of form or substance because on this ground the entry must be Petition dismissed.

GEORGE W. GALE LUMBER COMPANY vs. RALPH C. BUSH & others.

Suffolk. March 5, 1917. - May 26, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Joint Tortfeasors. Execution. Equity Pleading and Practice, Findings of judge, Appeal.

A transaction, otherwise valid, will not be set aside because the parties to it acted from the motive of forcing both of two wrongdoers to contribute toward the satisfaction of an execution obtained against them jointly for a wrong in which both of them participated.

Where an execution was obtained against a lumber company and a street railway corporation as joint wrongdoers, the street railway corporation asked an attorney, who sometimes tried cases for it, to arrange to buy the execution before it was satisfied. The attorney bought the execution and had it assigned to an employee of the street railway corporation. Thereupon the lumber company brought a suit in equity to enjoin the holder of the execution from enforcing it against the lumber company on the ground that in equity the execution had been paid by one of two joint wrongdoers and that this was an attempt to enforce contribution between the wrongdoers. A judge before whom the case was tried without a jury found, on evidence warranting such findings, that there was no agreement that the street railway corporation or any one for it guaranteed the purchase of the execution, that the attorney who bought the execution was acting for himself and paid for it with his own money and that he was not acting as the agent or attorney of the street railway corporation, and that the holder of the execution was not acting as a servant or agent of the street railway corporation and did not hold the execution on any trust for that corporation. The judge also found that the prevailing motive of most of the

persons connected with the purchase and assignment was to aid in avoiding a disposition of the execution by which the lumber company should escape all liability upon it, and that the execution would be enforced against the street railway corporation for any portion not obtained from the lumber company. He made a decree dismissing the bill. Held, that the finding of the judge would not be disturbed, and that the motive to use legal means to make joint tortfeasors contribute to the payment of the damage caused by a wrong in which they both had participated did not invalidate the transaction; and accordingly the decree dismissing the bill was affirmed.

In the present suit in equity, where the evidence, reported in full, amply supported the conclusions of the trial judge, it was remarked that the familiar rule, that on an appeal in equity where all the evidence is reported this court will review the evidence and decide the case for themselves, does not apply where the findings depend on oral testimony, in which case the findings of the trial judge as to facts will not be reversed unless plainly wrong.

BILL IN EQUITY, filed in the Superior Court on April 13, 1916, by the George W. Gale Lumber Company, a corporation, against Ralph C. Bush, the Boston Elevated Railway Company, Charles J. Martell, counsel for Fleming, and Patrick J. Fleming, to enjoin the levying of a certain execution upon the property of the plaintiff, as more fully described in the opinion.

The case was heard by Wait, J., who made a memorandum of decision containing the findings that are described in the opinion. By his order a final decree was entered that the bill be dismissed; and the plaintiff appealed. The whole of the evidence, which was taken by a commissioner appointed under Equity Rule 35 at the request of the parties, was reported to this court.

W. G. Todd, for the plaintiff.

A. E. Pinanski & G. E. Morris, for the defendant Bush, submitted a brief.

RUGG, C. J. One Fleming brought an action of tort against the plaintiff and the Boston Elevated Railway Company to recover damages alleged to have been caused him by a wrong committed jointly by these two defendants and arising from a collision between a motor truck of the plaintiff and a street railway car of the Boston Elevated Railway Company. Fleming recovered a joint judgment against the two defendants and took out execution against them both. His attorney was asked by the attorney for the Boston Elevated Railway Company to try to collect one half of the execution from the plaintiff, agreeing for the Boston Elevated Railway Company to pay the other half, but the attorney for Fleming declined. Then the at