United States v. Terminal Railroad Association of St Louis No 452 Terminal Railroad Association of St Louis v. United States No 572 re Evens Howard Fire Brick Company No

• Decision Date: 23 February 1915
• Docket Number: 572,Nos. 452,s. 452
• Citation: 35 S.Ct. 408,236 U.S. 194,59 L.Ed. 535
• Parties: UNITED STATES, Appt., v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al. NO 452. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al. v. UNITED STATES. NO 572. RE EVENS & HOWARD FIRE BRICK COMPANY and Union Sand & Material Company. NO ___, Original. , and ___, Original
• Court: U.S. Supreme Court

236 U.S. 194

35 S.Ct. 408

59 L.Ed. 535

UNITED STATES, Appt.,

v TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al.

NO 452.

TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS et al.

v. UNITED STATES.

NO 572.

RE EVENS & HOWARD FIRE BRICK COMPANY and Union Sand &

Material Company.

NO ___, Original.

Nos. 452, 572, and ___, Original.

Argued October 20, 1914.

Decided February 23, 1915.

Mr. Edward C. Crow, Special Assistant to the Attorney General, for the United States.

Messrs. H. S. Priest and T. M. Pierce for the Terminal Railroad Association et al.

Messrs. George M. Block and John F. Lee for the Evens & Howard Fire Brick Company.

Mr. Chief Justice White delivered the opinion of the court:

This case was decided April 22d, 1912 (224 U. S. 383, 56 L. ed. 810, 32 Sup. Ct. Rep. 507), and the question now is, Was due effect given to the mandate of this court? A clearer understanding will come by the merest outline of some of the legal proceedings preceding and following that decision. The decree which was reversed was entered by a circuit court composed of four judges in accordance with the expedition act. The circuit courts having been abolished when the decision of this court was rendered, the mandate was directed to the appropriate district court. There the United States filed the mandate and asked an interlocutory decree giving the time fixed by this court to take the steps which were decided to be necessary to make the organization of the defendants a legal one under the anti-trust act. The defendants presented a statement of what was proposed by them to be done in compliance with the decree of this court to accomplish the result stated, and over some objection on the part of the United States, an interlocutory decree was entered which in many respects accepted as sufficient what was proposed to be done by the defendants. On the taking of those steps and after a full hearing of the parties the court announced its purpose to enter a final decree, not following in some respects a proposed form of final decree suggested by the United States. Thereupon the United States, by petition for prohibition, filed in this court, asserted the entire want of jurisdiction in the court as constituted to entertain the enforcement of the mandate, as that could only be done by a court composed like the one which had rendered the judgment; that is, one composed under the expedition act. The prohibition was granted (226 U. S. 420, 57 L. ed. 281, 33 Sup. Ct. Rep. 170), and jurisdiction to enforce the mandate was assumed by a court of three circuit judges sitting in the district court in pursuance of the expedition act. In that court, after a hearing as to a proposed interlocutory decree, and as the result of steps taken by the defendants to comply with the decision of this court which were deemed sufficient for that purpose, a final decree was entered on March 2, 1914. This decree was objected to by the United States because of the insufficiency, at least in form, of the steps taken by the defendants for the purpose of complying with the decree of this court, and of the failure by the court below to insert in the decree various clauses suggested by the United States, and which it was insisted were necessary to give effect to the mandate of this court. For these reasons the United States on March 27, 1914, appealed, and such appeal is now before us and constitutes No. 452, referred to in the caption.

The day after this appeal (March 28) the defendants moved to modify the decree by striking out the first paragraph on two grounds: First, because it referred to the terminal company as illegally organized, in violation of the anti-trust act, although under the supervision and approval of the court such steps had been taken as were directed by this court to remove all ovjection to the organization of the company. Second, because the restrictions imposed on the business which the terminal company might lawfully do were susceptible of being construed as forbidding the company to carry on, as ancillary to its strictly terminal work, a transportation business originating upon one part of its line, and destined exclusively to other points on such line. And the necessity of not prohibiting the company from doing such work, the petition to modify asserted, was shown by the fact that 'on account of the necessary extent of its tracks, covering an area of 75 to 100 square miles, it is frequently called upon to take traffic from one point on its line to another point on its line, completing the entire movement on its own tracks.' In addition the petition to modify alleged as follows:

'As an illustration: The terminal association operates in the early morning and late in the afternoon some trains to transport laborers engaged in industrial factories from Granite City, Illinois, to the different stations on its line in St. Louis, Missouri. This it is prohibited from doing under the decree.

'Another illustration: Many factories are located upon the terminal association's tracks on both sides of the Mississippi river. Under this order the defendant, terminal association, would be restrained from accepting either raw material or finished products shipped from one such factory to another, although it could, with great convenience to the public, render such service.'

At about the same date petitions to be allowed to intervene were filed on behalf of the Evens & Howard Fire Brick Company, Union Sand & Material Company, and fifty-three others, all based upon the ground that the petitioners would suffer great injury by the serious loss occasioned to their business or the destruction thereof which would arise from forbidding the terminal company to engage in transportation moving exclusively from one point on its line to another point on its line. Some of these petitions alleged that the raw material was prepared at one point and the manufactured product made by using the raw material at another, and that consequently an impossibility of continuing business would result from the inability to transport from one place to another. All these petitions prayed a modification of the order, so as to make it clear that it did not forbid the terminal company, as an incident to its purely terminal business, to carry on the business in question. On the 20th of June the petition of the terminal company to modify and the petitions of the various parties to be allowed to intervene, and praying a modification, came on for hearing, the United States opposing the allowance of all. In support of its petition affidavits were filed by the terminal company showing the movement of many thousands of cars annually in the business referred to, and giving the names of very many of those concerned in the movement. The prayer of the terminal company for a modification was refused without passing on its merits, the court expressly holding that it had no jurisdiction to do so, as the previous appeal taken by the United States from the final decree had transferred the case to this court. The petitions of intervention of the other parties over the objection of the United States were permitted to be filed, but, after filing, the prayer to modify was also in each of said cases denied on the ground that the court was without jurisdiction because of the appeal taken by the United States. From this decree all the defendants to the original suit appealed, and the record referred to in the caption as No. 572 is the one embracing such appeal.

In this court the Evens & Howard Fire Brick Company and the Union Sand & Material Company have filed a petition praying leave to be allowed here to intervene to ask a modification of the decree so as to make it clear that it does not forbid the terminal company from engaging, as an incident to its terminal business, in transportation movements beginning and terminating exclusively on its own lines, the prayer being supported by statements concerning the situation and the alleged injury which would be suffered by prohibiting such business, as set out in the petitions to intervene and modify, filed in the court below.

The challenge by the United States of the right to hear the intervening petitioners is without merit, since even, although the petitioners were not parties, they are entitled to be originally heard concerning the settlement of the decree in so far as it might operate prejudicially to their rights.

A motion made by the United States to dismiss the appeal taken by the defendants in No. 572 is also without merit. The duty of the court below was but to execute the mandate of this court, and every controversy between the parties concerning the discharge by the court below of its duty was open for this court to examine either originally, if essential, or as the result of an appeal by one of the parties, or by way of assertions of right made by the other party as an appellee even in the absence of a cross appeal, a result inevitably arising from the fact that both parties, so far as the settlement of the decree of this court was concerned, were in this court and endowed with the capacity to invoke its action for the proper shaping and execution of the decree, either by original proceeding or in any other appropriate form. Perkins v. Fourniquet, 14 How. 328, 14 L. ed. 441; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291; Re Potts, 166 U. S. 263, 41 L. ed. 994, 17 Sup. Ct. Rep. 520. As under these conditions the dismissal of the appeal would in no way limit the power and duty to pass upon the questions raised on the appeal, we think the motion to dismiss ought not to prevail, and that the better practice is to consolidate the appeal of the defendants in No. 572 with the appeal taken by the United States in No. 452, and treat the cases as one for the purposes of settling the questions raised by both parties. In doing this we shall also dispose of the contentions arising on the petition of intervention, since the right to...