DDE!W. '1iEPoltTD, voL 50.

open'ttHl tlrnnkln the ,preaenceoftbe mRstelr .nd'no' other llnd ,that, ,alter examination by the master; In the presence()f no one, docuqJllnt!J, and other if any. !'8 .e the pl'opertyot the )j:l.'verlckB"nk. ,and are, not material to tQll il,lsuesuggested in tpe iJ)!>tionof attofD:ey !Ii this matter; after bping' tbe p1li.mtiff, be delivered to the defendant Beal by the clerk. Second. That such. if any, illflfire'private, and are Itotthe propertyof'the togl'ther with 8uch/8sdlil,relate to Maverick Bank transactions, and aTe necessary and ma,t;t,pa1 Lobe intl'Qduct'd by 14r. Potter in his own behalf, be forth with tlelivered t9 lIla'couusel, Mr.;Uuwe. ThatSllch, if any, not included in thl as relate to Ma,verick Bank transactions,,,, in the judgment ottb.e'IMstl'r are or may be material to the issue in said muLion of tbe and the proper presentml'nt of the government's case. be sealeitj'returned to the trunk and the safe custody 'Of ·the clerk. and that the relock the trunk in the presence of the master, rl'turn the key to JII)"'e. and hol,d tbe trpnk and such contents until furthtlrdirectetl. That tbeiJ)Rster, withQut fllrthercbaracterizatlon, report whetber or not he finds anti document.S within the named, and. what disposition has been m'Me thereof. The examination contemplatt'd by this order is to he considered lIS part of the preliminary hl'arillg, or, in olher words, in aid thereof, . a.nd is designed to enahle ttleparties to lay evidence before the court in a l'ri. vate and rt'Bsonable manner, the natureo' the CBse being such that it would be unrllllsonable to ask or permit it to be done in a public manner. Upon report,.tl1e parties will be further heard as to the proper use and disposition of if. allY, papers and other tbings 81,1 are material to the govern ment's case. I Tbe examinationberein provitled for Is to be private, and no pUbli,city whatevn Is to begiventb It except such as is conveyed through the report of the·mll8tel', of the clllU'acter IndicatE'd. ,Before the examination contemplated bytbis.order, the parties and their coun8el may. in the presenl'e of each otl,ler. or separately. if, t.hey so agree, make such explailation to the master as the-y desire as to thecha.racter of the papers, and until such examination and report. or until the foregoinlo{ order is vacated or mudified, all parties are strictly enjoined from intetfering in any way with the trunk or ita oontents."'·'.

ana

lant. , Edward W. Hutchi'M. Henry Wheeler,and .M-ank D. Allen, for defendant Beal.

From this order, plaintiff took the present appeal. Henry D. Hyrh, M. F. DWkinson, Jr., and El'TT/6 P. HO'I.tM, for appel-

Frank D· .Allen, U. S.Atty., pro Be. Before.CoLT and PUTNAM, Circuit JUdges, and

NBLSON,

District Judge.

PuTNAM, Circuit Judge. The order of the cirouit court provides that, without proof, and without hearing the parties, except the explanation authorized by it, the m8:ster shall make a secret, private examination 01 the contents of the trunk in question in this case; noHor informing the court or counsel, but for distribution. He is directed to divide the conients into three parts, delivering one to complainant, one t() the original Beal, and l'etjlrning thei third into court for the purpose 01 further CQnsideration.This 80 clearly violates the constitutional and fundamental rights Qf litigants. as to the method of trial, that it is to be presumed the learned judge wh() entered the order had reason to understand it would be accepted by all interested al a matter of convenience; though to provide for aU continiencies. he. both in 111S opin-

· POTTER

v.

BEAt..

863

ion and by · ,1Ip'Qial the rights of all parties till they could be passed on by this court. The questi()n which meets us is whether this appeal shall beregarded asJrOIn an injun.ction granted by an interlocutory order under the se.ventb section oftpeactestablishingthiscourt,orwhetheritis to be taken hold of as .from a final decree. The record states that· the order was preliminary; but,ofcourse, this is not effectual, as it is for this court, and not for. the circuit court, to determine that question in all cases, and the determination is to be governed by the essence of whaH13 done, and not by. the appellation given to it. If this is to be regarded as an appeal under se<;tion, there might yet be some matters concerning which thiso.ourt' could ,take jurisdiction, as, for instance, the fact that the holds the papers .after they pass from the custody of the court; bt;lt.it may be dQubted whether we can be given jurisdiction by an inj entered under color for that purpose, or by one purely nominal,<;Qncurrentwith proceediu£!s a master, or the appointJDent of a or the impounding of papers or moneys pendingJitigation, if as:etfllctual without the injunction as with it. The power of the circuit court to proceedings before a ma."Iter, or to make effective arilceivership, or in impounding papers or moneys, is in the main ample, both theoretically and practically, without any injunction; and if, in cl:U3e, we should dissolve a superfluous iujunction, we maybe pepnitteq to touch only the surface, and required to leave unaffected the substance of the order appealed from. As, however, the order in this suit places a part, and perhaps the whole, of the contents of this trunk absolutely beyond the control of the court, it seems to dispose of apart or the whole. of the matter in controversy so effectually that we are forced to accept as a final decree so much as directs a distribution. notwithstanding the difficulty of determining, as between cases apparently analogous, on which side of the line thif1at bar properly falls, in acc0rdance with the practice and principles of the supreme court. It seems to us the case is more akin to p"orgny v. Qmrad, 6 How. 201, 1homson. v.· Dean, 7 Wall. 342, Railroad 00. v. Bradley" Id. 575, Hill v. Railroad ·. S. 52, 11 Sup. Ct. Rep. 690, and Gr'mt v. Raitroad 00., 50. Rep. 795, than to Pulliam v. Ohristian, 6 How. 209, or U. 11 How. 22. In Barnard v. Gibson, 7 How. 650, Forgay supra, was referred to, and distinguished from the ordinary cases with refere;nce to the right of appeal from a decree for an inju:Q(ltion in patent cau,ses the master's accounts are takf'n. It \\ Uti also. cited with apparent approval in Hill v. Railroad Co., Inasmuch 8S in the case at bar the papera which may be delivered the complainant, or the original defendant, under the ordf'l appealed frqm, may go effectually beyond the control of the other party claiming them, or even be destroyed, before an appeal can be taken to thif1 court from any decree which entirely disposes 01 the suit, the necessity of our taking jurisdiction is as apparent 8S it was in any of the cases cited, or in Farmer" Loan & G>., Petitioner, 1291]. S. 206, 9 Sup. Ct. Rep. 265.. Therefore. we conclude to hold theappe8J as one from a final decree, with reference to 80 much of

FEDERAL REPORTER,

Vol. 50.

tIle order to the l:JOmplnilittnt'andiliedet'endan': Beal of any part of the contents of the trunk. We have no doubt that when this court properly takes jurisdiction on appeal from a final decree it has power to go beyond a mete reversal, and to enter such decree as should have been entered by the court below on the whole case as appearing in the record; nor have we any doubt that it is likewise its duty to review all the interlocutory proceedings of every character, using the term in the largest sense, with reference to which objections have been seasonably made and insisted on. Therefore we consider first the order of the court below making the attorney of the United States for the district of Massachusetts a party defendant. In accordance with the broad principles of Florida'v. Georgia, 17 How. 478, we presume the United States would generally be allowed to intervene summarily, or by a supplemental information or bill, for protecting property rights involved in a pending suit in equity; but in this case the petition of the district attorney,asking to be made a party, does not state the grounds on which he bases it. It is gathered from the record at various points that his purpose is to teach for lise in criminal proceedings;certain papers said to be in the trunk in controversy. Fot such purpose we think the proper course was for him to obtain at the outset a 8ubp'Omaduce8 tecum from the court where the criminal proceedings were pending, to be framed in accordance with the rules of criminal procedure, and thereafterwards to make summary application to the court which had impounded the papers covered by the subprena. We are unable to Ilee that, for any purpose connected with criminal proceedings, it waS necessary or proper that the attorney of the United States be made a party to the pending hill, or that the law authorizes him to thus prejudice either the original parties to the suit or the United States. These suggestions, however, we will leave for further considerlition in the event the necessity therefor arises, holding for the present that, in the absence of a subpama. or other alleged specific fight, the attorney of the United States ha$no standing in this suit. So far· asshowri by the record the title of the complainant to the trunk and its contents is clear, and no facts were proven which suggest the contrary, or which are llufficient to authorize the court to defeat at the outset his presumed purpose in bringing this bill, namely, to obtain the trunk and its contents free from public or private inspection, as is his right if the same are his property. We are unable, however, to enter on this account a decree for the complainant, by reason of the exclusion by the court below of the testimony of Edward W. Hutchins as to the nature of the papers which he had inspected. Whether or not this evidence, if admitted, would have overcome in any particular the facts now shown by the record, we, of course, have no method of determining. Nor can we determine whether the evidence should have been admitted; nor hlLve we the jurisdiction to direct in detail what course the circuit court should pursue for the purpose of ascertaining whether or not it is It- is enough for us to say that, as evidence was offered which, if admitted, might possibly have shown that the com-

as

POTTER V. BEAL.

865

plainant was not entitled to the entire contents of the trunk, and was rejected in such way that the record does not disclose the nature of the proposed proof, we are unable to enter a decree dismissing the billj and to say;also that the question of the admission of this evidence is to be determined primarily by the circuit court as all like matters are disposed of. It is for the judge of the circuit court to ascertain by private examination of the witnesses, or in such other way as the rules of law permit, whether or not the evidence is prim,a facie admissiblej and if he is satisfied that it is, we know of no rule of law which debars the defendant of his right to prove facts relevant to the case by Mr. Hutchins, if the complainant has, either purposely or unguardedly, permitted Mr. Hutchins to so far inspect the contents of the trunk as to know what it contains in any part. In short, we know of no rule of law which,so far as concerns the admission of the testimony offered, differs from that applicable to causes in general; with reference to all which the court will always see to it that private transactions are not unnecessarily exposed to the public gaze, though it will not shrink from permitting them to go into the record when the necessities of justice require it. We do not hold that it is not, in proper cases, within the power of the chancellor to substitute in lieu of himself a suitable master or referee for the purpose of ascertaining prima facie whether or not testimony offered is entitled to be heard; but we do hold that, on the state of this record. without some proof beyond what is here disclosed', the court should, not inspect,nor permit an inspection of, the contents of the trunk, either private or public, and thus perhaps defeat the very purpose of the bill. We draw a broad distinction between the right of the circuit court .to pass on the admissibility of the testimony of Mr. Hutchins, offered and ruled out, and to determine this preliminary question privately, and its right, on the other hand, to order an inspection of the contents of the trunk. either private or public; and we limit this distinction to the case as shown, without undertaking to deny that there are possibilities that, under some circumstances, an inspection may become necessary for the ends of justice. An inspection, however, if ever ordered, should be only in cases of real necessity, when the other proofs make it clear that private rights cannot be determined without itj nor should it be made without positive evidence that there are papers of doubtful ownership, nor without some evidence of their identity and character. No inspection should be permitted, in suits of this character, merely because the defendant is unable to prove his case without it, nor because of mere doubts, suspicions, or suggestions, nor, as we repeat, except there is a clear emergency demanding it. It is true that in a limited sense the party who seeks the aid of equity to obtain possession of private papers submits himself to the court; and yet it is to be remembered that the main object of going into equity may be, not to obtain the papers themselves, but to secure the privacy to which the owner of them is entitled, and which he may not be able to protect except with the aid of the chancellorj and it is not permissible that the chancellor should defeat at the outset-unless under extreme circumstances-any portion of the relief v.50F.no.1l-55

I'EDElUL' BEP,ORTER.

vol. 50.

permitting the prh'acy of his papers to be violated than, ' ,.',. byranY,refusillto give 'possession: of.them. 'nie::rulell laid do.wn by' u.s are in: harmony with ·those applied to pr(}o fol' produotion fbe: private papers in suits' in equity, or in' ceedii1gs at law.under Rev. St. §724; for either· of which it is necessary oi\ly tbatspecific papers exist and are in the possession of against whom the order ill aSked, but also that they are the issue. !Therecord in ,thiS' case' fails in all. these ,particulars. against whom an order of production tnay run a'te that:heL-seems to be at liberty to seal up suc9 '})9ttiol'l138sh,e. is'wi}!ing .to make privileged or evant., TbeHormofsoobaffidavlts appel1rs In Seton, Decrees, (4th Ed.) 136;I(tO.) , When iheaffidavit, contains'stateme1'lts at variance with each other,l6l' the aocuments, 'so far asmadeknown,lIlhow a discrepancy, the practice seefils to be:tMt the: court may get at the truth by compelling.a disCovery, and, if necessary for that pnrpose, may' unseal the documents and examine them. It is said, however, that this exception to the general rule' does not apply when the affidavitis mBl'ely, suspected, or "even ifope11toevery possible suspicion." Bowe8 v. Fernie, 3 Mylne & C. 632. eloc;er to the case' at bar, it is said that interlocutory production not be ordered on the motion of a plaintiffin equity:, if in;this way ,he would practically obtain the object of his bill. This IWas'BO 'by Sir- JbJt1'lLEACH ·in· Lingen v. Simpson, 6 Madd, 290. ,This 'cas$,·'is 'explained iinOh:ichester v. MarquJiB of Donegal, 4 Ch. App. )416419,where it was sa;id that the production would have enabled the [plaintiff to hlilv'e gotten agreat portion of the custom of the defendant, :and'thusto lllive accomplished on an interlocutory order the main I poae of the suit. In the case at bar the bill l\lleges that the contents of ;thetrunk ate· 11 priva.te prbperty," and "persorial intheir nature;" and the is thatthedefenda:rit may be enjoined from permitting the papers 'to be inspected, and that also, pending the prosecution of the suit, he In'lay be enjoined them, or any of them! or or any-of them, to be inspected.'" Therefore to permIt an inSpectIOn, as orderedhy thecir<iuit oourt, would perbapsdefeat the purpose of the ;biU as etrectuallYRs the production asked andrelused in Lingm v. Simp<8on,8Upra. These principles and cases relating to the ordinary practice 'concerning production of private papers are bot brought in here as strictly capplicable,but they iUustrate the tenderness with which courts guard -aga;inst ubnElQeSsary exposure., . , The order ad rhitting the attorney of the United' States a party defendll.ntis reversel:li and his petition to be so admitted is dismissed, without ooE:ts,atld without prejlidice to any rights of him or the United States in any other proceeding.: The order elitE)redFebruary25, 1892, appointing a master, is reversed, and the case is remanded for further proceedings in accordance. with this opinion, so far as it appertains. The complainant recovers the costs of this appeal'against the original defendant, Beal.

which' thecompJalnant!seeks,and which, perhaps; 'maY' be more effeCe

lIEW YORK &.N: RY; CO,'fI'NE\V YORK &iN. E. R. CO.

NEW

YORK

& N. R,y., CO.

YORK

& N. ;E. R. Co.

, (CWeuit Court. S: DJ iNe1!J York.

May Sl,18\}2.)

L

INTERSTATE PLEADING.

COMMEROB -

CARRIERS- CONNECTING LINB8-"EQUAL FAOILITIES-' '

3 of the interstate, commerce act, as.mended by the Laws of 1889. prO" vides that every common c!\rrier shall provide equal for the inter. changs of traffic with connecting 1\ne8; and (2)tbat there shaH be no discrimination in rates li\nd cbarges between such lines,' A petition, presented by a line affected, averred that petitiontlr was deprived" by respondent of equal, facilities with a competing conneoting line ,or intero,hange of tramo, a disorill:liuation in rates, the withdrawal of, a joint through, traffic, and a threat to close a tbrough route via petitioner's line. Held a chal'll'e; not only of db.crimination in rates, but of failure to provide equal faei ities fOl' InteJ'cbang'e of traffic, and to bring before the oom· mission the determination of. both ojl'ensea.
li.:SAME-GHANGES OF SCHEDULlIl,

Under the charge of a denialot"equal facilities" for the interchange of tramo the conduct of respondent in so arranging the running of its trains that greater facilities for intercbanging,forwarding, and delivering freight were aftorded to a competing conneoting line than to petitioner, was proper to be shown to the oourt in a, proceeding to enforce an ordel',of the oommission, tbougllno question of tile hours of running trains was presented to the commission in,ecltpress terms.

S.

The, offending line, being a separate, independent company from the favored line. owning no stock therein, neither haVing built, bought, nor ,leased it, conducted its , business, nor received its could not escape the inhibition of the statute bv a mere contraot for the interchange of traffic. The effect uf such contract cnuld not be to make the oneUne a mere extension of the other.
SAME-EFFECT OF COMBINATIoN OJ' CARRIERS.

SAME-EFFECT OF CONTRAOT FOR FACILITIES.

4.

the offending line, and the favored line, being members of a "terminal company, to a oombination of carriers by which the terminus of the favored line wll.s conneoted with New York. were a legal unit within section I of the aot (24 St. at Large, p. Sill) providing that it shall "apply to any common carrier or car., riers engaged in the transportation of passengers or property Wholly by railroad, * * * when both are used undel' a common control 41 * * for a continuous carriage or shipment fl'om one state," etc., it was nut thereby relieved from its obligations under the act to all roads connecting directly with itself, of which petitioner was one.

In Equity. Applir..ation by the New York & Northern Railway Company to compel obedience on the part of the New York & New England Railroad Company to an order of the interstate commerce commission in respect of discrimination against petitioner in affording freight facilities. Heard on motion to dismiss the petition. Motion denied. Sherrllfl'fi. Evarts, for conlplainant. Wager Swayne, for defendant. LACOMBE, Circuit Judge, This is an application on petition of the New York & Northern Railway Company, as a person interested, to 1891, by the enforce obedience to an order or requireinent made May interstate commerce commission, and is presented under section 16 of the interstate commerce act, as amended by chapter 382 of the Laws of 1889. Upon the return day of the order to show cause, heretofore granted, defendant tiled its answer, and, before any proofs were taken, moved to dismiss the petition. Such a motion must be' determined upon the assumption that the averments of the petition and the finrlings of fact .of the commission (made by the statute prima facie eviden<:e) cor-

86$;
., rectly set forth the ma.tters therein stated. It seems undesirable at this stage o(the.case to sumJ;Darize gen;eraJly the facts thus assumed to be true, as subsequent evidence taken in this court may J;Dodify such assumptions. The section invoked by-the petitioner upon its application to the commission reads as follows: ·'-Sec.8. That it be unlawful for any common carrier subject to the provisions of this act to make or giveany undue or unreasonable preference or aliVlultage toany particular person, company, firm, corporation, or locality, oranJl,pahimllar description of traffic, luany respect whatsoever, or to subjectany particular person, company, firm; corporation, or locality, or allY particular description oftraftic, to any undue or unreasonable prejudice or disadvantage in any whatsoever. Eyery common carrier sUbject to according to their respective powers, afford the provisions of all reasonable, proper and equal facilities for the interchange of traffic between their respective lines,andfor the receiving, forwarding, and delivery of passengersand property to and from their several lines, and those connecting therewitb.,andshall in their rates and charges between such cOllnecting lines. Buttbis shall not beCollstrued as requiring any such common carrier to the ulleof its tracksot'terminal facilities to another carrier engaged in like busineSs." · 13 provides that any person (or) corporation complaining of anything done or to be done by any common carrier subject to the' provisions of this act, in contravention of the provisions thereof, may apply to the commission by petition, which shall briefly state the facts. Under section this petitioner applied to the commission, and, after taking proofs, obtained the order or requirement it is now seeking to enforce.' ;, . . The respondent contends that the second clause of section 3, above two different and subjects as grounds of quoted, . complaint against carriers; the one being the denying reasonable, proper, and equal facilities for the physicalinterchangeand prosecution of traffic between'B conlpany's line and connecting lines; the other being discrimination in respect to rates and charges between such connecting lines. A sirriilar construction is adopted in' the opinion of the commission, the provision" embraces the imposition ofan affirmative which holds duty to interchange and forward traffic. between 'connecting lines, and a prohibition that there shall be no discrimination in rates and charges between such connecting lines." Respondent further contends that the charge and allegations before the commission dealt only with onf' of these subjects, and that, therefore, any order of the commission requiring the respondent t.ocease and desist from any violation which is embraced within the other subject would not be a "lawful" order; and apparently also insists that the judgment of the commission was in fa..lt confined to discrimination in rates 'and charges. An examination of the record, however, does not support this contention. The petition which was presented to the commission charged that the respondent was depriving petitioner. of reasonable, proper, and equal facilities (as compared with thQse,a<fforded to the Housatonic Railroad, a competing connecting line) fOJ;':the interchange of traffic between petitioner and respondent,.

NEW YORK &: N. RY. CO. ". NEW YORK &: N. E. R. CO.

86,\}·

ind for the receiving, forwarding, and delivering of property to and' from the line of said petitioner and the line of the respondent. In port of such charge it averred, not only a discrimination in rates, and thei withdrawal of a joint through tariff which had been theretofore in force: and operative between tBe parties, but also that respondent had threatened to close the through route via petitioner's line altogether, and had' refused to accept freight at all on through bills, thus compelling the' shippers to attend at Brewsters,-the point of connection,-to transfer and rebill their goods. This was plainly a charge, not only of a discrim-: ination in rates, but of a failure to discharge the affirmative duty to interchanp;e and forward traffic with the equal facilities, required by the first subdivision of the second clause of the third section, above quoted. The' petition prayed for an order directing the respondent to grant equal facilities for the interchange of traffic, and for the receiving, forwarding,' and delivering of property to and from the line of petitioner and that of respondent, as were here afforded to the Housatonic Railroad. The commission found that there had been a refusal to afford facilities for the interchange of interstate traffic, and the receiving, and delivering of the same, reasonable, proper, and equal to the facilities forded to the other connecting road; that the respondent was "guilty of the discrimination charged in the complaint, in its rates and charges for the interchange of interstate traffic, and in the arrangements it makes for through lines for the freight traffic." And the order or requirement of the commission commanded the respondent to desist from ing against petitioner (1) by refusing to make such arrangements with, or afford such facilities to, the petitioner for the interchange, at the point of connection, of interstate traffic, and for the receiving, forwarding; and delivering of such traffic, as are reasonable and proper and equal toarrangements made or facilities afforded by it for interchange between respondent's line and the other connecting road; and also (2) from discriminating in respect to rates and charges, etc. The decision ofthe commission manifestly disposed of both subjects of complaint, and it seems' quite plain from the record that both subjects were before them. Since the service of the order the respondent has restored the joint' through tariff. It has also desisted from refusing to accept freight on through bills, but has so arranged the running of its trains that the facil.. ities for interchange, forwarding, and delivering are is alleged) substantially no better than before, and not equal to those afforded to the competing line. The respondent contends, however, that such acts may not be shown before this court, acting summarily under section 16 in review and enforcement of the order of the commission, because no question of the hours of running trains was presented to the commission. It is manifest that equal facilities may be refused quite as much in one way as in the other, and both grounds of complaint relate to the subjectmatter of physical interchange and prosecution of traffic, instead of to a discrimination in rates. To refuse altogether to receive traffic from one '.lonnecting line; to receive it only under arrangements which impose such obligations upon the shippers as to transfer and rebilling as would