United States v. New York, N.H. & H.R. Co.

• Decision Date: 04 December 1908
• Docket Number: 483.
• Citation: 165 F. 742
• Parties: UNITED STATES v. NEW YORK, N.H. & H.R. CO. et al.
• Court: U.S. District Court — District of Massachusetts

165 F. 742

UNITED STATES v. NEW YORK, N.H. & H.R. CO. et al.

No. 483.

United States Circuit Court, D. Massachusetts.

December 4, 1908

Asa. P French, U.S. Atty., and Wade H. Ellis, Asst. Atty. Gen., for the United States.

Henry W. Beal, for defendants, New York, N.H. & H.R. Co. Consolidated Ry. Co., and Providence Securities Co.

Coolidge & Hight and Edgar T. Rich, for defendant Boston & M.R.R.

F. A Farnham, for defendant Providence Securities Co.

J. H Benton, for defendants New York, N.H. & H.R. Co. and Providence Securities Co.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM Circuit Judge.

This is a bill filed by the United States by virtue of the provisions of the act approved July 2, 1890, c. 647, 26 Stat. 209 (U.S. Comp. St. 1901, p. 3200), commonly known as the 'Sherman' or 'Anti-Trust Act,' and perhaps of statutes in amendment thereof. After the bill had been filed and the subpoena issued, and certain demurrers and pleas filed by the whole or a portion of the respondents, and on October 1, 1908, the Attorney General filed the following certificate:

'In the Circuit Court of the United States for the District of

Massachusetts.

'No. 483, In Equity.

'The United States, Petitioner, v. The New York, New Haven and Hartford Railroad Company et al.

'I hereby certify that, in my opinion, the above-entitled case is of general public importance, and request that the same be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day before not less than three Circuit Judges of the First Judicial Circuit.

(Signed) Charles J. Bonaparte, 'Attorney General of the United States.' Thereupon, and with sufficient promptness, to wit, on October 20, 1908, the respondents filed the following paper, namely:

'Circuit Court of the United States for the District of Massachusetts.

'No. 483, In Equity.

'The United States of America, Complainant, v. The New York, New Haven and Hartford Railroad Company, and others, Defendants.

'Objection to hearing this case 'before not less than three Circuit Judges of the First Judicial Circuit,' as requested by the Attorney General of the United States.

'The defendants object to the hearing of this case 'before not less than three Circuit Judges of the First Judicial Circuit,' as requested by the Attorney General of the United States in his certificate filed October 1, 1908, for the following, among other, reasons:

'First. Because such three Judges sitting for the hearing of this case, as thus requested, will not be an inferior court ordained and established by the Congress of the United States, within the meaning of the Constitution of the United States, and especially within the meaning of section 1, art. 3, Constitution of the United States.

'Second. Because it is not competent for the Congress under the provisions of the Constitution of the United States to authorize the hearing and determination of this cause by three Circuit Judges in the manner requested by the Attorney General in his said certificate.

'Third. Because the three Circuit Judges who are requested by the Attorney General to hear and determine this cause have no jurisdiction thus to hear and determine it.

'Fourth. Because this cause being brought and now pending in the Circuit Court of the United States, and the parties being by proper pleadings at issue therein, the same cannot be transferred to the jurisdiction of three Circuit Judges and be by them tried as a special tribunal upon the discretionary request of the Attorney General of the United States.'

The proceedings with reference to determining the jurisdiction and organization of the courts of the United States are so simple and informal that we need not consider at all whether there is any particular method by which the respondents should raise the propositions which the paper copied seeks to raise, beyond stating that there is no question that none of the issues have been waived, or lost, either by express or implied estoppel, or otherwise.

The statute by virtue of which this certificate of the Attorney General was filed, namely, section 1 of the act of February 11, 1903, c. 544, 32 Stat. 823 (U.S. Comp. St. Supp. 1907, p. 951), reads as follows:

'That in any suit in equity pending or hereafter brought in any Circuit Court of the United States under the act entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety, 'An act to regulate commerce,' approved February 4, eighteen hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney General may file with the clerk of such court a certificate that, in his opinion, the case is of general public importance, a copy of which shall be immediately furnished by such clerk to each of the Circuit Judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day, before not less than three of the Circuit Judges of said circuit, if there be three or more; and if there be not more than two Circuit Judges, then before them and such District Judge as they may select. In the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter provided.'

In order that the issues may be understood, we will state that the respondents do not maintain that a statute having a general application, providing that for certain purposes the Circuit Court may sit with three judges, would be invalid. Their proposition is that the statute in question is so framed that it is limited to a particular class of cases, and operative only at the request of the United States, and can never be called on by a respondent, and never by either party in suits brought by others than the United States. There can be no question that this makes an apparent discrimination, yet we are unable to perceive that it is injurious to the respondents, or any other possible respondents, in any legal sense of the word. The interests involved under the Sherman anti-trust act and its amendments are liable to include exceedingly extensive pecuniary values; and the possible remedies given thereby, which combine, with the rest, the powers, express or implied, of issuing injunctions, and of appointing receivers, and declaring forfeitures, all relating to vast properties, are of so radical a character that a hasty or inapt administration of the statute by a single judge might inevitably embarrass industries as wide as the continent, and even practically destroy them, before an appellate tribunal could be reached. Therefore, we say the statute under which the Attorney General filed his certificate is not injurious, because, on the whole, when availed of, it operates for the protection of the interests of respondents more than for those of the United States. From the standpoint of the substantial effect of the statute, the only complaint that could apparently be made is that it is meritorious, but does not go so far as it might. Nevertheless, in the eyes of the law, when legislation is discriminatory, if it is both discriminatory and unconstitutional, it is the right of parties litigant to determine for themselves what their interests are, and object to it if they see fit so to do.

It certainly cannot be maintained that the statute under which the Attorney General acted is unconstitutional merely because it is discriminatory. We can find neither in the Constitution, nor in the fundamental principles which underlie free government where the English language is spoken, any inhibition on Congress with reference to the matter now before us, unless it be in that part of the fifth amendment which secures 'due process of law.' Even if there were any constitutional provision applying to Congress like the fourteenth amendment, which in terms prohibited the United States from denying 'the equal protection of the laws,' nevertheless, even then it would follow that there might be legislation discriminatory on its face, yet constitutional because of the broad rules which have been admitted by the Supreme Court with reference to legislation sustainable by reason of classification. It is, however, necessary to observe the substantial distinction between the fifth amendment, which is obligatory only on the United States, and the fourteenth amendment, which is obligatory only on the states. The limitation in the former is 'without due process of law.' In the fourteenth amendment this limitation is accompanied with a prohibition of the denial of the 'equal protection of the laws.' Of course, the latter expression is broader than the former, although it must be conceded that the mere denial of the 'equal protection of the laws' might run into the other limitation.

It is plain, nevertheless, that mere discrimination in certain particulars does not necessarily have this effect. 'Due process of law,' as understood when the Constitution was adopted, did not prohibit the establishment of special commissions or the assignment of special judges for trying specific offenders so long as there was compliance otherwise with the rules of the common law. Neither does it always entitle persons claiming mere civil rights to adjudications by strictly judicial tribunals. This was established as early as Murray's Lessee v. Hoboken Land Improvement Company, 18 How. 272, 15 L.Ed. 372, and indeed earlier followed by Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616, Turpin v. Lemon, 187 U.S....