Messrs. James McNamara and Fred A. Baker for plaintiff in error.[ Detroit & M R Co v. Michigan R R Commission 240 U.S. 564 (1916) ]
[240 U.S. 564, 566] Messrs. David H. Crowley and I. S. Canfleld, and Mr. Grant Fellows, Attorney General of Michigan, for defendants in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This was a petition to the supreme court of Michigan by the Railroad Commission of that state, for a writ of mandamus to enforce obedience to an order of the Commission, directing the Detroit & Mackinac Railway Company to re-lay 1/2 mile of rails removed by it from a 5-mile logging spur, called Tubbs Branch, and to resume service thereon. The railroad company answered, and, after a hearing, the court granted the writ, subject to a condition presently to be stated. 178 Mich. 230, 144 N. W. 696.
The Commission's action was invoked by a complaint presented by the Fletcher Paper Company, of which the railway company had due notice. Before the Commission the railway company insisted that the logging spur was not a part of its railroad system, and that its use had been only that of a private convenience; but the Commission concluded from the pleadings and evidence that the fact was otherwise, and made the order with the purpose of correcting what it deemed an unreasonable and unjust discrimination and an inadequate service within the meaning of the local statute (3 Howell's Anno. Stat. 2d ed. 6526, 6537, 6545). Thereupon the railway compnay filed a bill in equity in the circuit court of Wayne county, praying that the order be vacated, and asking that its enforcement be temporarily and permanently enjoined. In the bill the railway company repeated its insistence [240 U.S. 564, 567] that the logging spur was not a part of its railroad system, but only a private convenience, and charged that an adequate hearing was denied by the Commission in that the issues were determined upon the evidence presented by the paper company, and in contravention of an understanding, assented to by the Commission, that if an objection of the railway company in the nature of a plea of res judicata should be overruled, as it afterwards was, the company would be afforded a further opportunity to present evidence in opposition to that of the paper company. The bill invoked the due process of law clause of the 14th Amendment. Apparently the prayer for a temporary injunction was not insisted upon.
It was during the pendency of that suit that the mandamus proceeding was begun and carried to judgment in the supreme court. In this proceeding the railway company again asserted that the logging spur was only a private convenience, and not a part of the railroad system used by it as a common carrier, and that the Commission had denied it an adequate opportunity to be heard upon that question, and further insisted that to require it to give effect to the Commission's order in advance of a hearing and decision upon that question in the suit in equity would deprive it of the due process of law guaranteed by the 14th Amendment.
In the course of its opinion the supreme court said, pp. 243-246:
... * *
And in the course of a separate opinion one of the justices said, p. 248:
The local statute, 3 Howell's Anno. Stat. 2d ed., provides: ( 6545) Orders of the Commission shall take effect and become operative twenty days after service; ( 6547) the Commission may, upon application, rescind or alter any order; ( 6548) all regulations, practices, and services prescribed by the Commission shall be in force and be prima facie lawful and reasonable until finally held otherwise in a suit brought for the purpose under 6549, or until rescinded or altered by the Commission under 6547; ( 6549) a carrier may, within thirty days after notice of an order, commence a suit in equity to vacate [240 U.S. 564, 570] it, the burden being upon the carrier to show that the order is unlawful or unreasonable. In such a suit original evidence may be introduced in addition to the transcript of that presented before the Commission; and if evidence be introduced by the carrier which is different from or in addition to that presented before the Commission, the court, unless the parties stipulate to the contrary, shall transmit a copy thereof to the Commission and stay further proceedings for the time being. The Commission shall consider the evidence transmitted, and may alter or rescind its order, and shall report its action to the court. If the Commission rescind its order, the suit shall be dismissed; if it alter the order, the same in its changed form shall take the place of the original, and judgment shall be rendered thereon as though the last action of the Commission had been taken at first; ( 6570) in addition to all other remedies, the Commission, and likewise any party in interest, may compel compliance with an order of the Commission by a proceeding in mandamus, injunction, or other appropriate civil remedy.
It will be perceived that the supreme court, applying the statute, held that the 'sole question' for decision was whether the Commission's order should be given effect pending the determination of the equity suit; and then, coming to dispose of that question, held that due regard for the provisions of the statute, especially 6545, 6548, and 6549, and for the relative consequences of enforcing or refusing to enforce the order, required that it be enforced by mandamus, if a suitable bond was given to indemnify the railway company for any resulting loss in the event the order ultimately should be vacated in the equity suit.
Our jurisdiction is called in question upon the ground that the judgment is not final in the sense of 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, 1214], upon which our power to review depends, because the judgment does not determine the merits and end the [240 U.S. 564, 571] litigation. But, as this court has said, 'all judgments and decrees which determine the particular cause' are final in the sense of the statute. Weston v. Charleston, 2 Pet. 449, 463-465, 7 L. ed. 481, 486, 487; Central Transp. Co. v. Pullman's Car Co. 139 U.S. 24, 40 , 35 S. L. ed. 55, 61, 11 Sup. Ct. Rep. 478; Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. 240 U.S. 30 , 60 L. ed. --, 36 Sup. Ct. Rep. 234. This view has prevailed through a century of practices in reviewing judgments and decrees dismissing causes for want of jurisdiction or for other reasons not decisive of the merits. And it is settled that a proceeding in mandamus is an independent adversary suit, and a judgment awarding or refusing the writ is a final judgment within the meaning of the statute. Davies v. Corbin, 112 U.S. 36, 40 , 28 S. L. ed. 627, 629, 5 Sup. Ct. Rep. 4; McPherson v. Blacker, 146 U.S. 1, 24 , 36 S. L. ed. 869, 873, 13 Sup. Ct. Rep. 3; American Exp. Co. v. Michigan (American Exp. Co. v. Maynard) 177 U.S. 404, 406 , 44 S. L. ed. 823, 824, 20 Sup. Ct. Rep. 695.
Under the local statutes, as interpreted by the supreme court of the state, whether the logging spur was merely a private convenience or was so used and operated by the railway company that the latter was not free to discontinue service thereon, in the circumstances existing when the rails were removed, was primarily a question for the Commission and secondarily for the Wayne circuit court, wherein the Commission's order was sought to be vacated. By the order the Commission resolved this question against the railway company. The order was valid upon its face and recited that it was made after a hearing and due consideration of the proofs and briefs of the parties. Whether the hearing was adequate and whether the facts relating to the logging spur were such as to sustain the order were matters which were in issue in the suit in the Wayne circuit court, where the railway company was at liberty to produce any evidence legitimately bearing upon the propriety of the order. It was in this situation that the supreme court, having regard to the statutory requirement that the order be given effect and treated as prima facie lawful and reasonable until adjudged otherwise in [240 U.S. 564, 572] the suit brought to vacate it, and also having regard to the comparative consequences of enforcing or refusing to enforce it while that suit was undetermined, held that it ought to be enforced by mandamus, if a suitable bond was given to indemnify the railway company should the order ultimately be vacated. In this we perceive no deprivation of due process. The granting of an order or writ to maintain or restore the status quo pending the outcome of existing litigation, which really is what was done here, has been practised by the courts of the country since before the Constitution was adopted; and the claim that relief of this nature cannot be granted, even upon condition that ample security be given to make good any loss that may be sustained thereby, without encroaching upon the due process of law secured by the Constitution, is manifestly without merit.
Mr. Justice McReynolds is of opinion that the judgment is not final within the meaning of 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, 1214], and therefore that the writ of error should be dismissed.