656

FEDERAL REPORTER,

vol. 38.

presses what these words mean. 'The court, speaking through Mr. Jus. tice HARLAN, .says; · "If the substantial, cause of the'death of the insured was an excessive use of alcoholic sthnulants. not taken in good faith for medical purposes, or under medical his health was impaired by intemperance. within the meaning of the \Vords ·so far intemperate as to impair his health,' although he may notha've. had deli1-ium tremens, and although, previously to his last illness, 11e had not indulged in strong ddnk for such a longpel'iod of time, or so frequently', as to become habitually intemperate. Whether death was so caused is a matter to be determined by the jury, under all the evidence. " This langling-e'is plain,i.mequivocal, and cannot be misunderstood. If, Mr:'Davey died' ftorn a single debauch, continued for one day or for ten.'days, he did become "safar intemperate as to impair his health!"altMugh hehad 1 previously to his last illness, led a temperate, or even strj'6tly ab'stemious,'1ife; This construction of the words contained in. tbe"third clause Of the policy is binding on this and on all other federa,}courts, nnditis yotirduty,as well.as ours,to obey it. You are the jud'gesof the facts and'ofthe credibility of witnesses, but you must give yourobedience to ttie lawtls announced by the highest tribunal in the land. In what we 'haVe"nOW said to you; we have endeavored to substatitially all the for special instructions made by the counsel fo't'tnEl respectively, with perhaps one .exception, Which is'this: deliberations you will not be infiuenced or. controllEld .by any, motives of sympathy or, prejudice for or agai'n'st eitbel"of the parties ''to this action', but thatyoq.will renden verdibtaccordingto 'thee:vidence,"';';"ajust and impartial verdict, which will commandtheapprov'al of your own consciences. . .
· . 1 .. · ' ;'

i' ,

Yert;lict for

plaintUl·

.'CBICAGb.B.·'.&Q. R; DcL ",

;

\

;

,- .

;

,

'

DEY et

ai., Railroad

,

CommIssioners.

,CHICAGO,

M. &

St.

P. Ry. Co.

dfirer-it (JQurt, 8. 'D. iowa, 1.

1. D.
   

February 2, 1889.)

Act ,Iowa, April provides ·for, tile regulation of transportatlon charges byreilroad companies, and for,a board of commissioners to fix reasOl)able charges. Section 17 requires said .board to make a schedule of maximum rates, which shall be deemed primafacie reasonable, Sections 18 and 20 ,provide tlJ.at any; pel(son may .complalll that the charglls made or published by any cpmPllny, are hlgher than .thosefixed,by the schedule, or that the latter are unreasonably, high, upon'which the. board s.hallinvestigate the complailJt. ',The d'ecision .made thereon, shrall' set out the maximum rates to becharged tj}erllarter. alld neitheJ! th. ,deCIsion nor the schedule therein con- ' 'lairied shall be limited to the caseco'mplained of, but shall extend to all such .rateabetwMn'poiiits in the state.li.hd to whatever part of the line of said road " i'within been ,f.uuj'withinthe;sc.ope of tbe investigation, Held, that the power to make a fult schedule is not only conferred by section 17, but is given also by said other sections, in case a complaint has. been made and investigated. . . ';..

RAILROAD' coMMISSTONEREl-REGtTI.ATXONOF CHARGES.

cHICAGO, B. & Q. B. CO. V. DEY.

:657

I.

SAME.

On a. bill to restrain the board from carrying into effect a schedule of rates so establIshed on the ground that they are' so loW' as to be ruinous to the business of the road, if the evidence as to the probability of loss is so conflicting that the effect of the rates is doubtful, and largely dependent on future developments, and only about 4 per cent. of the local traffic will be affected by the reduced rate, relief will not be granted until experience has demonstrated that the rates are not compensatory. !tis not a violation of a temporary injunction against putting in force a. schedule,of rates made pursuant to said section 17. on the ground that they were unreasonably low, for the commissioners to /Ilake another schedule after investigating a complaint filed against rates charl!'ed by a railroad company, althovgh the purpose of those making the complaint was to evade the injunction;and their conduct in attempting to procure a favorable decision on the complaint was improper,as the duty of the commissioners under the statnte was to hear the complaint and establish proper rates,

8.

SAME-VIOLATION OF INJUNCTION.

, Bill qy the, Chicago, Burlington & Quincy Railroad Company, to reatrain .A. Deyand others, constituting, the board of railroad commissioners: oLthe state of Iowa, from putting in force a schedule ,of charges,. A, preliminary injunction was granted in this and two other similar cases, but one opinion being filed, Railway (h. v. Dey, 35 Fed. .Rep. 866, t() which reference is made for a fuller discussion of the,.questiona herein considered, and for the statute under which the commie!lionersacted in making the schedule complained of. Wirt D¢er" for, complainant. A. J.Balcer, Atty. Gen., for defendants. J. This case is submitted on an application for a tempo.rary injunction., On the 28th of June, 1888, this complainant filed a bill in this court asking an injunction restraining the defendants all railroad commisSioners of the state of Iowa from putting in force a certain schedule of rates on freight. After a lengthy hearing, and on the 27th day 'of July,ll.temporary injunction was issued as prayed for. Now the cQQ'lplainant files, this, a supplemental bill, alleging that defendants are :seeking to evade the force of that injunction, and to cast upon complainant a schedule of I;atessubstantially the same as that heretofore enjoined. orat least that the difference is so slight as to indicate a mere evasion. The gist of the complaint is that certain jobbers and manufacturers of Iowa, inttlrested in reducing the rates of freight, formed associations for that purpose, and employed special counsel to assist the attorneY'general .in resisting the original application. That after the injunction had been granted a meeting of such jobbers and manufacturers was held in Davenporton August 14th, for the purpose of devising and adopting a plan of procedure for evading the operation of.such injunction. In pursuanoe of the plan devised a circular was sent out, marked "Strictly Confidentilll;"to varioUs parties in the state, in which it was recited that ,sections 18, 19, and 20 authorized complaints to the railroad commissionersof eve.ry:unreasonable charge, and required the commissioners upon such complaints to summon the railroad making such charge to ,appear"alldshow,that it was a reasonahleonej and, if found by the comv.38F.no.8-42

658

FEDERAL REPORTER, vol.

38.

were t()malrea rate which wouldbeQ(j)Ijl1e.Prt1l'l4 fame eVIdence; and further, that when such, rates were once established the: railroad would become liable for all the penalties. then reads: llhe:commiltee recommended. that the jobber at every shipping and manufacturing point secure evidence of the unreasonable rates being collected by the railroads, and flIe them with the proper petition with ,the railroadcomm18sidners at·oDce. This plan being carried out at all points would quiclHt' enable the commissioners to establish schedule rates which the 'could neither question nor controvert as prima facie evirailroad dence of rl;l8sonable rates, and they wo.uld be in forCe until their .unreasonableness was declared by the c;ourts.the important p.oint being to get the r8tesinto effect at once, and have them. in effect while the litigation, is proceeding." ' In pursuange 9f this plan a complaint was filed by Robert Donahue and . genElrally .that. the railroad. company, complainant herein, to pu,t, in force of rates and extorhoiiate,and prayuig:for' an exan1mahon.Upon after objection by the railroilddoPlplmy, a full schedule of rates for complainant's rO'ad; in the state of Iowa was prescribed by the commissioners, and then follows a matter Which it is painful t6 record. The three gentlemen who had beenl's,ihoad"c<;lInmissionetifwere candidates for election at the November -election.' A decision of this complaint was filed with the secretary on the 34 day of November, three d!lYs before the election, signed by two of tlie commissionets. The thirdappeilded to that decision the following: Fred 6f1.>avenpdtt, secretatyot the Twin Cities' :Freight Association, in ai letter dated Ootober 31, has threatened me in tMnameof the jobbers. oitha state with their opposition' to my candidacy for railroad Com.U1is.sioner unless.the opinion of this board in the Davenport case was m.ade public on or _ beforEl Friday, NQvember 2, 1888. ' I infer that. the demand is ,that the deci,Sio'n must be compliance' wltbthelr views. In this 'r feelings of setf-respept to decline until afterelection ·to give any expresSlonaf my views npon'tnesubject.· .Ido not a pUblic officer Whdse duty it is to determine qtlestionsof'this·kind. which are practically jUdicial, Should allow personal interests to sway,hisjudgment.; . . PETER A·.DEY· .. Des Moinel1, ;Noo. S. 1888." It'itl-further alleged that this soheduleadopted by the commissioners was'the same' as that they were enjoined from putting in forde, with merely a change in the classification from the· so-oalled'''Illinois'' to the so-called "Western" classification, that making a difference of only 2t percent. in: the complainant's earnings,--the' 'former schedule reducing them30pe!'oent., and the latter 27! percent.; and also thatthis'sched11le is unreasonable in that by it the eomplll.inantwouid not: earn its and fixed charges. It is that sections 18, 19;:is.nd20, under which these proceedings 1Vere had,gave no authority Jor:1he,making of an entire schedule, 'SInd only:aim at the correotion of a single iwrong in the matter of ·charges.. ' . To this biB t>f. complaint defendants have"'filed an answer, averring

The

B.& Q. R. CO· .,. l>EY.

659

that in: their actions they:were simply obeying the commands 'of the that a complaint was duly filed with them charging ,excessive rates on the part of the complainant; that they gave notice to complainant, a hearing was had, and that they endeavored to obtain evidence as to the actual cost of the railroad property in Iowa, or a fair and reasonable cost of such property, as well as the relation ·of such cost to the bonds and stocks upon whkh interest and dividends were claimed; that they failed to receive from· complainant any satisfactory information; that they heard all the testimony that was offered on either side, and made their decision on such testimony; that the complainant in fact is seeking dividends on watere4 stock. They further aver that they had no part in the transactions of the jobbers and manufacturers; and with reference to the letter'received by Mr. Dey the other commissioners say they received no letter or other of any nature or kind, verbRlor written, in to their action prior to the making that that decision was ma<;ie and signed on and signing of the tbe 26th of October, and was not then announced on account of the absence ofMr. Dey, and because they were waiting for his action. With reference to the allegation in the bill that the change in the classification from the Illinois to the Western makes but a slight change in the earnings of the complainant,-a difference of only 2lper aver that if such fact was s40",n by any calculation made by the complainant it was not communicated to them; and that the only evidence they had pn that subject was the affidavit of complainant's general manager filed on theoriginalheariug, averring that the two. classifications made a difference of about 15 per cElnt., and also the bills filed by the three railroad companies at that time, in one of which (the complainant's bill) it was "a Comparison between the Western classification being used by som!l fifty or more roads west of Chicago, and the Illinois classification which the Iowa commissioners proposed to adopt for their new rates, computEld upon a basis of one hundred mile distances, in each case shows an average reduction of about fifty per cent. upon fifteen or twenty per cent. of the total number of articles named in' the classification, and these articles soredllced comprise about three-fourths of the entire tonnage. of the state of Iowa." They further say that upon the hearing l>,efore them they in reference to this matter of the comg.eneral manager, and his reply was in accordance with the foregoing statements, and then generally allege that .the schedule as prejust, and will, if enforced everywhere pared by them is on complainant's line, enable it to pay operating expenses and fixed charges, and beyond that a handsome dividend. This summary of the bill of complaint and answer discloses the questions presented, and in support of these matters quite a volume of testimony.has been presented, consisting of affidavits, testimony taken before thecQrnmissioners upon the hearing of the complaint, and upon which they a(}ted in comparing tbe schedule with the reports of the complainant of itsl,)·l;1sjness to the railroad commissionersof.lowB for thelast, two or three years. ';I'his a.mount, of testimpny, as well,asthe intricacies

660

'FEDERAL REPORTER,

vol. 38."

and of the questions involved, is the reaSdl1 for'the time which has been taken for examination in reachingmycoriclusions. 'I'here are substantially three questions presented. Firat; Has there been an invasion of the injunction order heretofore issued, arid therefore a practical contempt of that order? Second. Did the sections of the statute under which the commissioners acted give autliority to render such decision and establish a full schedule of rates for the complainant? Third. Is the schedule announced just and reasonable? With reference to the first question there is little room for doubt. In the injunction which was issued there was no assumption of power to prescribe rates, and no pretense of interfering with the commissIoners in the discharge of any duties imposed upon them by statute. The limits of judicial interference were, I think, clearly stated in the opillion filed. Railway 0>. v. Dey, 35 Fed. Rep. 866. Beyond that limit, as !said, the courts have no power to go; and the whole matter is relegated to the discretion of the commissioners. It would be strange indeed, after the dications oHM supreme court, if any court should ,assume: to prescribe a scheduleofrates.' .Again, the commissionerstwted .simplyupon'con1plaints filed. They could not abandon the duty Cl1stupoll them; by the statute of receiving and acting upon such complaints;' Whatever misconduct may be imputed to the jobbers' association as a whole; or any individual members thereof, none can be imputed the commissioners. A trihunal, jndicial or quasi judicial, is not to be'held responsible for the conduct of the litigants before it, and there is no reason to doubt that the cotlimiiisiohers acted with the utmost impartiality, giving full) hearIngto both lJarties, and decidingacoording to their· While the obvious attempt to influence the opinion of Mr. :Dey was a gross outrage, it is pleasing to note the manliness with' which the insult was resented. In these days, when too many offiCials trim their course to meetptiblic favor, it is pleasing to note such courage of conviction; such unwillingness to even appear to be influenced by personal interest or public demand in discharge of official duties, And it is pleasitig also to notice the fact that, although Mr. Dey was run.. ning on the Democratic ticket, which received several thousand votes less than the Republican, he, and he alone, on his ticket wa3 viously the people of Iowa respect independence aS'well as 'integrity in office.' Nor is there any reason to believetnat tMothercomniissioners Were influenced by public clamor. ,Again, while it may be true that the difference between the Illinoisand the Western classification is slight ill its practical application to the local freight in Iowa, yet, as' thedom.:. missioners were advised by the com plainant itself thatthe difference was great, it is not to be wondered at that they took the'complainant atits word. And finally it must be observed that the question what are souable ratesis----'-as perhaps none kno,wbetter than these commissioners of exceeding intricaoyand'difficulty, and it 'would be 'deed,if an honest effort-oD their part to solve that question' in- 'the 'charge of their officialdutries could be dehO\:mced tas an telllpt ofjudieial·orders.' Ltb-ink I hut) VOice the olH'nion 'Of every

, CHICAGO, B. & Q. R.CO. V. DEY.

661

vidual who has been drawn to take' any part in this litigation, that w& all of us are simply searching after the truth. With reference to the second question, the contention of complainant is that sections 18, 19, and 20 contemplate simply the inquiring by the commissioilers into an alleged overcharge in a particular shipment,with power to declare what was a reasonable charge, and to make that dewr. mination applicable in the future to all chargeS of a kindred nature; that only under section 17 could the commissioners proceed to make a full schedule. My first reading of the statute gave me the same view, but subsequent examination convinces me that such is not the correct construction. Section 17 undoubtedly authorizes the commissioners on their own motion to proceed and establish schedules of rates for all the railroads; indeed, it directs them so to do. Under this section they proceed, not under any complaint, but simply obeying the mandate of the legislature. Sections 18, 19, and 20 contemplate proceedings against a particular railroad company upon complaint made. Under these' tions the hoard proceeds, not upon its own motion, but only in response to the application of some party. While the proceeding isquasi}udicial in that there, is a complainant and latter broughtin, by noticeaudahearing and decision,-yet the scope to which complaint may be made, inquiry may go,and decision rendered, is disclosed by the first part of section 18, and a portion of section 20, 'which reade as

.

'

"Sec. IS. Whenever any person, upon his own behalf, or class of similarly situated, or any fil'm, corporation, or association, or any niercatltile,' agricllltural"Qrmanufacturing society, or any body politic or municipal or.: ganization, shall make complaint to said board of railroad cOt:\lmissiotlers that, the rate chargeq or published by any raIlroad company, or the maximum rates fixed by said cO(Qnlissioners in the schedule of ratesJV.ade by them .uuder the prOVisions of section 17 of this act, or the maximum rate that now or here- ' aftel' may betixed by law is unreasonably high 01' 'discrirninating, it shalllJa the duty of said eommissioners to immediately investigate the matter of such complaint."" .. . . .; "Sec. 20 .. '" '" "'. Snch decision shall specifically set ont the S.ums or, rate'whicj. the ralli'oad common carrier so complained of may thereaftel ehal'ge or receive for the service thereiri named, and including a classification of such freight;ar,ld the said 'cotDmissi.oners Shall not be limited in their said decillion and the schedule to be contained therein to the specific Case or cases complained of. buUt shall be extended to all such rates between, points in this and whatever part of the line of rail way of s'llch company or common carrier within this state as mlj.y have been fairly within thl;! srope of such investigation."

Now, the brel1-dth of the inquiry is obvious from the matter :of which complaint may be made. It is not simply of a; rate charged or pub., lished by any railroad company, which of course presupposes someaetion on the part, of the company, but it may also be of the mUl!roum rates fixed by the commissioners in their schedule. madeunder;seetion 17; not nece,ssarily .asingle rate for a single class of;shipments, hut gEm· erally of their malriimum rates. In othe.r, :Word!!, the com'plaint :may: be· 11urrowlyoCa ,single matter, or. fixed by: the com·:

662

FEDERAL Rli<PORTER,

vol. 38. .

mIsSIoners.. Obviously, reading sections 17 and 18 together, the thought of the legislature was this: Thlttunder section 17 the sQould!proceed in a legislative or administrative oapacity, and, aftergiving notice generally, and not to any particular railroad company, and giving general opportunity to all for furnishing information, were to prepare schedules for all the 'roads, and then in order that the rates might be reduced to the lowest reasonable figure, it provided for complaint in 16 against any particular road, and authorized the commissionere, after notice and. hearing, to fix· a schedule for that road, or determine the reasonableness of any particular charge. Only by giving this construction 'does it. seem that fuU force can be given to all the words in section 18. The complaint generally of the railroad companies is that this statute is unnecessary, severe, and stringent. Obviously it was the thought of the legislature to provide for all contingencies, and to give the fullest power to. the commissioners. Nor do I think that this construction :tenders the statute obnoxious to the charge of class legislation. Power of classification unquestionably exists; that is conceded. Power to .determine upon c<Jmplaintwhether any charge or series of charges by a particular railroad company is reasonable or not cannot be questioned; and power to declare that that. determination shall, as to the particular road, be a rule for the future, would seem to follow · . This bJ;Ing$ us to the last of thEi three questions sup;gested, to-wit, the reasonableness of the rates. In respect to this I have nothing to add to what lhf!.ve in the opinion heretofore filed concerning the nIles controlling I abide by the propositions there laid down, and have simply sought to apply. those rules to the facts developed by the testimonY'llow presented. Neither shall '1 attempt any review of such testimony; its \1olume precludes this. All that I can do is to state \conclusio.ns anel results, with two .or three prinCipal matters controlling the same. It may be premised that the testimony now presented is more definite and satisfact<>ry than that before me in the summer. While much of it is by affidavit, still there has been since then time for examination and comparison, and the is more positivl:land direct, and less a matter of estimate. f do not mean to say that everythinghasbeeh made clear, but the testimony take!l upon the different hearings, and the examinations made by the railroad officials, are more and more bringing out the exact facts. I notice firl:ltthe testimony of Mr. Ripley, the general manager of complainant. His long experience and position with the company complainant give weight to this testimony. It shows the gross earnings of 1888 of complainant's entire road (the last two months estimated) will be $24,055,241.19, while the operating exp'ensesandfixed charges will be $24,826,801.40, leaving a deficit of $771,560.21. If the same percentage of reduction adopted by the Iowa commissioners in their last schedule be applied to the whole business of complainant it would reduce their gross freight earnings $4,360,000. Adding this to the actual deficit, there would be $5,131,560.21 of income less than the operating expenses and fixed' charges. Now, if this were an average year,-a fair standard upon which to base ourjudg-

CltICAGO, B. &: Q. R. CO. V.' DIilY.

663

ments,-obviously the proposed reduction by even the last schedule prepared by the commissioners could not be sustained. But it is not a fair standard; the year has not been an average· one. The testimony shows, even ifthe public history of the times did not compel the court to take judicial notice, that a wide-spread strike on the part 'ofthe engineers of complainant's road, continuing through many months, has added largely'to the expenses of operating, and struck a heavy blow at the business oithe company. Turning back to the year 1887, it appears, from the same testimony that the operating expenses and fixed charges were $21,383,997.60; and that the gross earnings subjected to the commissioners' last schedule would have amounted 'to $21,656,583.04, leaving a,balance of net earnings of $272,585.44, which would make a dividend of 35.100 of one per cent. on the capital stock. Mr.Ripley saysthatthiswRS a prosperous year for the complainant. While that may be tme,yet, looking back on the reports for prior years, it does not appear to'.have been an exceptionally prosperous year. While the tonnage of freight ,carriedex(Jeeded largely that in prior years, yet the gross freight earnings were less than that of three of the priOr years. Indeed, lbOking back the reports as far as 1870, it would 8eem that the 16l3sper ton for carrying freight during 1887, than in any prior.year. ,If that ,be true; and the reduction made by the last schedule of the ,defendants applied generally to all the freight business of the compltnywould still leave' a :balance, although a small one, for distrihutioI1 stockhdlders, how, rules laid down in the'. can I hoid that the rates are so 'unreasonable,as toJ"w,. tHy judici.aLJn.terference?TbEl testimony furnished by the officiaJsof other roads as to the effect of ,the, Iowa ,tariff on their earnings rups in the same, direCtion.· It is nnhec$'s8lll'Y to give figures. Agaip" these6gures have 'Peen givenupont'he bitSis of apr9portional reduction ofall. the freight the cornP!ainaIlt,. both state;tnd .Nowh,ere is it the witnesses Jor the complamant that, If the prescribed by this last' Iowa. tariff were applied to tbeir ,whole results, above, disclosed w.ould follow. On the coptrary, it is evident from the. if these Iowa rates were of universal applica.tion ttdhe entire business of the company , there would not only pe.1l0 deficit, but a considerable for distribution as that be 'true, can 'rates be declared unreasonable? .This opens the door to a sel'ious inquiry. Priqrto this act terminal, tariffs werein in 'towa;as. still are inotherstates. This act aboliShed withhI the of Iowatermimil tarifl's"and therefor uniform mileage 'Y,hen in Elome, states 'through whichthe company's road r\1ns-a., imposing no laws of cOJ!lp,etition compel' tariffs with qieir, lower rates, can to the laws of C'ompetition and'business in' one state be pleaded as an excuse for resisting the enforcement of low mileage tariff' in this state? I think the answer to that question will be found in the opinion heretofore filed. Railway Co. v.Dey, 35 Fed. Rep. 866. Neither necessity of business, real or seeming, in one state, nor the laws of that state, furi

664

FEDERAL REPORTER,

vol. 38.

nish any excuse {or reducing the local tariff beneath that which is compensatory. The real question is not what effect upon the earnings of complainant a similar percentage of reduction in all its tariffs would occasion, but what would be the effect if the Iowa schedule was applied to all hs business. The answer to this question seems, from the testimony, to be that the rates would be compensatory. I remark again that the amount of purely local freight, as compared with the other business of the company, is very smaIl,-four per cent., I believe,-so that, if the entire earnings from this part of its business were swept away; the loss of the company would be limited in amount. Of course this fact does not authorize. injustice, or sanction rates which are unreasonable; but it suggests the propriety, in view ofthe considerations heretofore noticed, of actual experiment as the' most satisfactory test of the .reasonableness of rates. I quote in this respect the language of Mr. Chief Justice WOODS in the case of Tilleyv. Railroad 00., 5 Ferl. Rep. 662: "The officers of the railroad company declare that, the rates fixed by the commission will so reduce its income that it will. not suffice to pay the running expenses of the road and the interest on its bonded debt, leaving nothing for dividends to its stockholders. The railroad commissioners assert that their schedule waa framed to produce eight per cent. income on .the value of the road after paying cost of maintenance and running expenses. Which view is the correct one it is impossible to df'cide from the evidence submitted. There Is, however. a conclusive way.-and it seems to me it is the only one, --by which controversy can be settled, and that is by experiment. A reduction of railroad charges is not always followed by a reduction of either ·gross or net income. It can Saari be settled which is right--.the railroad company's officel'S or the railroad commission-in their view of the effect of th,e commission's tariff of rates by allowing the tariff to go into operation." While quoting this language as applicable hereto, I do not mean to indorse it as of universal application, but only under the circumstances of the present case. Where the effect of the rates is doubtful, with a probability that will prove compensatory, !tnd the amount of busito be affected thereby is comP.aratively small, I think the courts may well wait for the test I)f experience. Influenced by these considerations, I am led to refuse the preliminary injunction, imdto set aside therestraining- order heretofore entered. It may well be that by the time this case comes to a final hearing the test of experience will have solved some' of these matters. and it may be clear-as now seems probablethat the rates imposed by this last schedule are compensatory within the rule laid down in the prior opinion, in which ca,se no injunction ought. ·to issue, or clear that they are not compen!latory, in which case, beyond ·any doubt iii my mind, a final and permanent injunction ought to begranted. The preliminary injunction will be refused, and the restrain-. ing order will' be set aside. The same order will.be made in the similal case of the Ohicag(j, M. St. P. R. Co. v. Satlne Dfjendanf.B.

BAND tI. UNITED STATEL .

665

RAND 11. UNITED STATES.

(District Court, D. Maine. April 27, 1889.)

1.

UNITED STATES COMMIsSIONERIY-FEEs""-DRAWmG COMPLAmTS.

Under Rev. St. O. S. § 847. allowing commissioners. "for issuing any war· rant or writ. and for any other service, the sRme compensation as is allowed to clerks for like services. " and in accordance with the construction thereof adopted by the accounting officers of the treasury, commissioners are entitled to fees f9r drawing complaints in criminal cases. .For entering returns on warrants to arrest and to commit. and on summons required by order of the circuit court, commissioners are enti tled to the same compensati<>n as is allowed to clerks for like services. Under Rev. St. U. S. § 1014, the commissioner is compelled to return copies of process to the court; and the accounting officers of the treasury have no right to make an arbitrary. rule limiting the length of such copies.

2.

SAME-ENTERING RETURNS.

8. SAME':-'COPIES OF PROCESS.

.. SAME-DOCKET FEES.

Asthecommissioner is required by the order of the circuit court to keep a docket in all criminal cascs. in which he shall make entry of all proce4;ld· ings before him, commencing with the complaint. he is entitled to docket feei in cases where the proceedings before himself have been discontinued, and the prisoner taken before another and nearer magistrate.

Petition for Allowance of Claim against the United States for fees as commissioner. E. M. Rand, pro se. George E.Bird, U. S.Atty.
WEBB, J .. This is a petition, under the act of March 3, 1887, for commissioner's fees, which have heen disallowed by the accounting·Qffieers of the treasury department. That the services have been perfo.rmed and accounts for the same presented in strict compliance with therequirements of the law, or that the items specified in the petition have been disallowed, there is nG denial. The case is presented on murrer, and the only contest is as to the right of the petitioner to compensation as demanded by him. The items claimed amount to $248.85, all but $45.35 depends on the questions considered and decided in Rand v. U. S., 36 Fed. Rep. 671, further discussion of which is now unnecessary. This $45.35, in regard to which objections, not before made, are now urged, is composed of items: "For complaints in excess of two folios, $8.55; for all complaints, $15; for'entering returns of warrants to arrest, $2.55; for entering returns of summons, $2.55; fer entering returns of warrants. to commit, $1.20; for copies of process to court, in excess of arbitrarily fixed by accounting officers as sufficient, $4.50; for docket fees of $1 in cases where the accused person on arrest was taken before another commissioner, $11. In respect to the disallowance of a portion of the commissioner's charge for copies of process returned to court, because the copies exceeded the number of folios the :accounting officer deems necessary, it needs only to be said,that by section 1014 of the Revised Statutes the <:ommissioner is compelled to