strued as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." sentially the same as a reciprocal switching | necting lines; but this shall not be conarrangement,' constituting a facility for the interchange of traffic between the lines of the two railroads, within the meaning of the second paragraph of § 3 of the Interstate Commerce Act. That each railroad It is clear, I think, that in the second does not separately switch for the other, paragraph of this section the word "facilibut that such switching operations are car- ties" is employed in two meanings. Where ried on jointly, is not, in our opinion, ma- it first occurs, it means those acts or operaterial. If it were, all reciprocal switching tions that facilitate or render easy the inoperations carried on by two railroads at terchange of, traffic; while, in the final any connecting point of several carriers clause, "to give the use of its tracks or could be easily put beyond the reach of the terminal facilities," the words "terminal act, and its remedial purpose defeated, by facilities" are employed in a figurative sense the simple device of employing a joint and as equivalent to "terminal properties." agency to do such reciprocal switching. The This is obvious from the association togethcontrolling test of the statute, however, er of tracks and terminal facilities as things lies in the nature of the work done, rather subject to use. And the same words are than in the particular device employed or used in the same sense in the 1906 amendthe names applied to those engaged in it." ment to § 1 of the act (chap. 3591, 34 Stat. With these views I agree. Elaborate at L. 584, Comp. Stat. 1913, § 8563), by argument is made in behalf of appellants which the definition of the term "railroad" in the effort to show that the method of was expanded so as to include "all switches, operating the Nashville Terminals is not spurs, tracks, and terminal facilities of "reciprocal switching" within a certain nar- every kind used or necessary in the transrow definition of that term. This is an importation of the persons or property desigmaterial point; the real question being | nated herein." whether it constitutes a facility for the interchange of traffic between the respective lines of appellants, and for the receiving, forwarding, and delivering of property be tween connecting lines, within the meaning of § 3 of the Interstate Commerce Act (chap. 104, 24 Stat. at L. 380, Comp. Stat. 1913, § 8565), so that it must be rendered to the patrons of the Tennessee Central upon equal terms with those of the Louisville & Nashville and the Nashville & Chattanooga. I cannot doubt that it bears this character. There is nothing in the order of the Com mission now under review that requires appellants or either of them, or their agency, the Nashville Terminals, to give the use of tracks or terminal facilities to the Tennessee Central, either physically or in any other sense, within the meaning of the final clause of § 3. It requires them merely to interchange interstate competitive traffic to and from the tracks of the Tennessee Central on the same terms as interstate noncompetitive traffic, so long as they interchange both kinds of traffic with each other The section reads as follows: "Sec. 3. on the same terms; and also to establish That it shall be unlawful for any common and apply to the switching of interstate carrier subject to the provisions of this act traffic to and from the Tennessee Central to make or give any undue or unreasonable rates and charges not different from those preference or advantage to any particular that they contemporaneously maintain with person, company, firm, corporation, or local- respect to similar shipments as between ity, or any particular description of traffic, themselves. Undoubtedly the expenditures in any respect whatsoever, or to subject any made by appellants in the construction of particular person, company, firm, corpora- the joint terminal property, so far as that tion, or locality, or any particular descrip- property is used in interchange switching, tion of traffic, to any undue or unreasonable is an element to be taken into consideration prejudice or disadvantage in any respect whatsoever. "Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such con37 S. C.-5. in fixing the amount of the switching charges. And the same is true with respect to the value of the separately owned tracks of appellants, so far as necessarily used in mutual interchanges. The practice of the Louisville & Nashville and the Nashville & Chattanooga in refusing to interchange competitive on the same terms as noncompetitive traffic with the Tennessee Central, while interchanging both kinds of traffic as between themselves, was found by the Commission to be unduly dis criminatory, there being no substantial dif- ties in question and used them alone, it ference in the conditions of the interchange, could not be deemed to discriminate against nor any increased cost of interchanging the Tennessee Central because of a mere competitive as compared with noncompeti- refusal to switch for it in the interchange tive traffic. of traffic. Of course, if it refused all connecting carriers alike, it could not be held for discrimination. But whether it would be at liberty to refuse to switch for the Tennessee Central would depend upon circumstances; for instance, upon whether the Interstate Commerce Commission, pursuant to its authority under § 15 of the act, as amended in 1910 (chap. 309, 36 Stat. at L. 552, Comp. Stat. 1913, § 8583), should establish the two lines as a through route, or (without that) should determine upon adequate evidence that the refusal of switching privileges was a failure to afford reasonable and proper facilities for the interchange of traffic between the connecting lines under § 3. Car interchange between connecting lines was made by the 1910 amendment of § 1 of the act a positive duty on the part of the carrier, even without action by the Commission. 36 Stat. at L. 545, chap. 309, Comp. Stat. 1913, § 8563. The tracks included in the joint terminal arrangement of appellants include 8.10 miles of main and 23.80 miles of side tracks separately owned by the Louisville & Nashville, 12.15 miles of main and 26.37 miles of side tracks separately owned by the Nashville & Chattanooga, and some yard tracks owned by the Louisville & Nashville Terminal Company, whose entire stock is owned by the Louisville & Nashville R. R. Company. It may be conceded that, by virtue of the lease from the Terminal Company to the appellant railroads, even as modified in December, 1902, there remains in some sense a joint tenure of the property of the Terminal Company. But, in my view, the question of the ownership of the property is entirely aside from the real point. The discrimination charged and found by the Commission is not so much in the use of terminal property as in the performance of interchange services; and for such discrimination a community of interest in the property affords neither justification nor excuse. I deem it a most material fact that the appellants already interchange noncompetitive traffic with the Tennessee Central, upon terms like those upon which they interchange both competitive and noncompetitive traffic between themselves. So far as their method of doing this amounts to an interchange of trackage rights they have by their voluntary action thrown open the use of their terminals to all branches of traffic, excepting So far as the nondiscriminatory performance of those services requires that cars from the Tennessee Central shall be admitted to the terminal tracks of the Louisville & Nashville and the Nashville & Chattanooga, and to tracks in which these companies have a joint interest, this is so only 80 far as they discriminate because appellants have, as between them against competitive traffic over the Tennesselves, and also as regards traffic from the see Central. Not only so, but the CommisTennessee Central, thrown their terminals sion has expressly found (33 Inters. Com. open to the public use. The argument for Rep. 82) that the Louisville & Nashville appellants rests upon the essential fallacy will switch competitive coal and other comthat the terminal facilities are, in an abso-petitive traffic to and from the Tennessee lute sense, and for all purposes, private property. But they, like all other parts of the railroad line, are, with respect to their use, devoted to the benefit of the public. And the final clause of § 3, while it protects each carrier to a certain extent in the separate use of its terminal property, does so not otherwise than it protects its particular use of the main line of railroad. "Tracks" are mentioned together with "terminal facilities," and the same rule is ap-ice to and from the Tennessee Central at its plied to both. The fact that a carrier owns its own terminals is no more an excuse for discriminatory treatment of its patrons with respect to services performed therein than its ownership of the main line is an excuse for discrimination with respect to transportation thereon. Central, the interchange being usually ef- local rates, and published a terminal tariff December 14, 1913, expressly providing that such local rates would apply to competitive traffic from and destined to the Tennessee Central. This, however, was revoked shortly after the complaint in the present case was filed. There is here a very plain dis It is said that if either of the appellants crimination, found by the Commission to were the sole owner of the terminal proper-be an undue discrimination, not merely against the Tennessee Central, but against | et seq., 59 L. ed. 616, 625, P.U.R.1915B, 261, ■ "particular description of traffic," which 35 Sup. Ct. Rep. 370. In these cases many is distinctly prohibited by § 3. The conduct of the same arguments that are here adof appellants is quite analogous to the mak-vanced were considered and overruled by the ing of a discrimination in the charge for carriage, not because of any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere basis of the ownership of the goods, a discrimination condemned by this court in Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 252, 55 L. ed. 448, 456, 31 Sup. Ct. Rep. 392. court. The latter case concerned the switching of interstate carload traffic between industrial tracks and junction points within the switching limits at New Castle, Pennsylvania. The Pennsylvania Company undertook to sustain a practice of doing such switching at $2 per car for three railroads | while refusing to do it for the Buffalo, Rochester, & Pittsburgh, upon the ground of its sole ownership of the terminals and the fact The present system of interchanging traf- that the three other carriers were in a posi fic between appellants was established in tion, either at New Castle or elsewhere, August, 1900, a year or two before the line to offer it reciprocal advantages fully comof the Tennessee Central was constructed pensatory for the switching done for them into Nashville. Emphasis was laid upon in New Castle, whereas the Buffalo, Rochthis, in argument, as refuting the sugges-ester, & Pittsburgh was not in a position tion that the arrangement could be deemed a to offer similar advantages. The Interstate "device" to avoid the discrimination clause Commerce Commission (29 Inters. Com. of § 3 of the Interstate Commerce Act. The Rep. 114) overruled this contention, and findings of the Commission show, however in this was sustained by the district court (33 Inters. Com. Rep. 81), that when the (214 Fed. 445), and by this court. We Tennessee Central entered Nashville it was there held (236 U. S. 361) that the quesonly after strong opposition from the Louis- tion what was an undue or unreasonable ville & Nashville; and (p. 79) that, prior preference or advantage under § 3 of the to the year 1898, the people of Nashville Interstate Commerce Act was a question not had become desirous of better terminal of law, but of fact; and that if the order facilities, particularly of a union passenger of the Commission did not exceed its condepot, and an ordinance authorizing a con- stitutional and statutory authority and was tract to that end between the city and the not unsupported by testimony, it could not Terminal Company was proposed, contain- be set aside by the courts; held (p. 363), ing a proviso that the terminal facilities that the provisions of § 3, although that sec should also be available on an equitable tion remains unchanged, must be read in basis to railroads which might be built in connection with the amendments of 1908 the future. The present appellants opposed and 1910 to other parts of the act, and this proviso and an ordinance omitting it that by these amendments the facilities for was passed, but was vetoed by the mayor on delivering freight at terminals were brought account of the omission. It clearly enough within the definition of transportation to appears, therefore, that the agreement of be regulated; and also (pp. 368, 369) that August, 1900, was made by appellants in the order did not amount to a compulsory view of the probability of some other road taking of the use of the Pennsylvania tracks entering Nashville thereafter. by another road within the inhibition of the final clause of § 3; no right being given to the Buffalo road to run its cars over the terminals of the Pennsylvania Company, or to use or occupy its stations or depots for purposes of its own. But were it otherwise, the result should be the same. The obligation to avoid discrimination and to afford "all reasonable, proper, and equal facilities for the interchange of traffic" is not qualified by any rights of priority. The new road is a servant of the public, equally with the others; subject to the same duty and entitled, for its patrons, to demand reasonable and impartial performance of the reciprocal duty from carriers that preceded it in the field. In my opinion the present case is controlled by our decisions in the former case between the same parties (Louisville & N. R. Co. v. United States, 238 U. S. 1, 18, 19, 59 L. ed. 1177, 1183, 1184, 35 Sup. Ct. Rep. 696), and the earlier case of Pennsylvania Co. v. United States, 236 U. S. 351, 366 In the former case between the present parties (Louisville & N. R. Co. v. United States, 238 U. S. 1, 59 L. ed. 1177, 35 Sup. Ct. Rep. 696), we sustained the district court (216 Fed. 672) in refusing an injunc tion to restrain the putting into effect of an order of the Commission (28 Inters. Com. Rep. 533, 540) requiring appellants to interswitch interstate coal with the Tennessee, Central as they did with each other. The findings of the Commission (p. 542) recognized that the terminals were in part jointly owned and in part the separate prop [No. 412.] erty of the two appellants. The district is barred by the statute of limitations is a court (216 Fed. 682, 684) alluded to this bar-irrespective of any question of former fact. And this court (238 U. S. 17-20) | jeopardy-to a second prosecution under a did not ignore that fact, but laid it aside new indictment for the same offense. [Ed. Note. For other cases, see Criminal Law, as immaterial, declaring: "If the carrier, Cent. Dig. §§ 313-319; Dec. Dig. 177.] however, does not rest behind that statutory shield [the final clause of § 3], but chooses voluntarily to throw the terminals open to many branches of traffic, it to that Argued October 19 and 20, 1916. Decided extent makes the yard public. Having made the yard a facility for many purposes and to many patrons, such railroad facility is within the provisions of § 3 of the statute, which prohibits the facility from being used in such manner as to discriminate against patrons and commodities." If the decision reached in the present case is adhered to, and remains uncorrected by remedial legislation, it will open a wide door to discriminatory practices repugnant alike to the letter and the spirit of the Act to Regulate Commerce. Mr. Justice Day, Mr. Justice Brandeis, and Mr. Justice Clarke concur in this dissent. (242 U. S. 85) UNITED STATES, Plff. in Err., V. HERMAN H. OPPENHEIMER et al. COURTS 385(1)-APPEAL BY GOVERN MENT IN CRIMINAL CASE "SUSTAINING SPECIAL PLEA IN BAR." 1. A judgment of a Federal district court quashing an indictment because of a previous adjudication upon a former indictment for the same offense, that it was barred by the statute of limitations, is one sustaining a special plea in bar, within the meaning of the Act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704), governing the right of the government to a review in a criminal case, although the defense was presented by demurrer and motion to quash, and the court granted what was styled the motion to quash. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1022-1025, 1031; Dec. Dig. 385(1).] COURTS 385(1)—APPEAL — BY GOVERN- 2. The clause of the Act of March 2, December 4, 1916. IN ERROR to the District Court of the of New York to review a judgment quash- The facts are stated in the opinion. Assistant Attorney General Warren and Mr. A. J. Clopton for plaintiff in error. Messrs. Benjamin Slade, L. Laflin Kellogg, and Abram J. Rose for defendants in error. Mr. Justice Holmes delivered the opinion of the court: The defendant in error and others were indicted for a conspiracy to conceal assets from a trustee in bankruptcy. Act of July 1, 1898, chap. 541, § 29, 30 Stat. at L. 544, 554, Comp. Stat. 1913, §§ 9585, 9613. The defendant Oppenheimer set up a previous adjudication upon a former indictment for the same offense that it was barred by the one-year statute of limitations in the Bankruptcy Act for offenses against that act, § 29d,-an adjudication since held to be wrong in another case. United States v. Rabinowich, 238 U. S. 78, 59 L. ed. 1211, 35 Sup. Ct. Rep. 682. This defense was pre sented in four forms entitled respectively, The 1907 (34 Stat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704), giving a writ of error to the United States to review a decision of a Federal district court in a criminal case sustaining a special plea in bar, when the defendant has not been put in jeopardy, is The defendant objects that the statute not limited, like the earlier clauses of that statute, to judgments based on the invalid-giving a writ of error to the United States ity or construction of the statute upon which the indictment is founded. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 1022-1025, 1031; Dec. Dig. 385(1).] CRIMINAL LAW 177-RES JUDICATA DISMISSAL OF INDICTMENT. from the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy, Act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246, Comp. Stat. 1913, § 1704, is limited like 3. A judgment dismissing an indict- the earlier clauses to judgments based ment on the ground that the offense charged on the invalidity or construction of the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes statute upon which the indictment is founded. But that limitation expressly in each of the two preceding paragraphs of the statute is not repeated here. The language used in United States v. Keitel, 211 U. S. 370, 399, 53 L. ed. 230, 245, 29 Sup. Ct. Rep. 123, had reference only to the construction of the indictment and to its sufficiency upon matters not involving a statute, in cases brought up by the United States under the earlier clauses of the act. That quoted from United States v. Kissel, 218 U. S. 601, 54 L. ed. 1168, 31 Sup. Ct. Rep. 124, so far as material also meant that the sufficiency of the indictment would not be considered here upon a writ of error to the allowance of a plea in bar. In view of our opinion upon the merits, we do not discuss the preliminary objections at greater length. Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged. It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government's consent before a jury is empaneled; or that it is conclusive if entered upon the general issue (United States v. Kissel, 218 U. S. 601, 610, 54 L. ed. 1168, 1179, 31 Sup. Ct. Rep. 124), but if upon a special plea of the statute, permits the defendant to be prosecuted again. We do not suppose that it would be doubted that a judgment upon a demurrer to the merits would be a bar to a second indictment in the same words. State v. Fields, 106 Iowa, 406, 76 N. W. 802; Whart. Crim. Pl. & Pr. 9th ed. § 406. In free as matter of substantive law is as good as another. A plea of the statute of limitations is a plea to the merits (United States v. Barber, 219 U. S. 72, 78, 55 L. ed. 99, 101, 31 Sup. Ct. Rep. 209), and however the issue was raised in the former case, after judgment upon it, it could not be reopened in a later prosecution. We may adopt in its application to this case the statement of a judge of great experience in the criminal law: "Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, the adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offense. this respect the criminal law is in unison with that which prevails in civil proceedings." Hawkins, J., in Reg. v. Miles, L. R. 24 Q. B. Div. 423, 431. The finality of a previous adjudication as to the matters determined by it is the ground of decision in Com. v. Evans, 101 Mass. 25, the criminal and the civil law agreeing, as Mr. Justice Hawkins says. Com. v. Ellis, 160 Mass. 165, 35 N. E. 773; Brittain v. Kinnaird, 1 Brod. & B. 432, 129 Eng. Reprint, 789, 4 J. B. Moore, 50, Gow, N. P. 164, 21 Revised Rep. 680. Seemingly the same view was taken in Frank v. Mangum, 237 U. S. 309, 334, 59 L. ed. 969, 983, 35 Sup. Ct. Rep. 582, as it was also in Coffey v. United States, 116 U. S. 436, 445, 29 L. ed. 684, 687, 6 Sup. Ct. Rep. 437. The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice (Jeter v. Hewitt, 22 How. 352, 364, 16 L. ed. 345, 348) in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time. Judgment affirmed. (242 U. S. 56) ATLANTIC CITY RAILROAD COMPANY, Plff. in Err. V. LEWIS S. H. PARKER. MASTER AND SERVANT 286(13)-TRIALQUESTION FOR JURY-NEGLIGENCE-SAFETY APPLIANCES. Of course, the quashing of a bad indictment is no bar to a prosecution upon a There was enough evidence to go to good one, but a judgment for the defendant the jury on the question whether a railway upon the ground that the prosecution is company had failed to furnish such couplers "coupling automatically by impact" as are barred goes to his liability as matter of sub-required by the Safety Appliance Act of stantive law, and one judgment that he is March 2, 1893 (27 Stat. at L. 531, chap. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |