The San Francisco call., 1908-10-04
LUMBER CASE GOES
TO SUPREME COURT
Circuit Court Judges Differ Re-
garding Virtue of Southern
Pacific's Complaint
Application for Order to Delay
Enforcement of New Rate
Is Denied

Division of opinion on the part Of
United States Circuit Judge Gilbert,
Ross and Morrow as to several ques-
tions involved in the suit OF the South
ern Pacific against the Interstate COM
merce commission viii necessitate the
transferring of the entire proceedings
TO the United States supreme court for
settlement. The injunction applied for
by the Southern Pacific to restrain the
interstate commerce commission from
enforcing the sS.4O rate for the ship
ment of lumber from the Willamette
valley to San Francisco was denied by
the circuit court judges yesterday. Un-
less the interstate commerce commits
sion grants an extension of time or a
restraining order is issued by the su-
preme court. the railroad company will
be compelled to conform on October
Is to the rate as fixed by the COM
mission.
According to the provisions of the
expedition act. which was passed for
the purpose Of governing just such
cases as this one, three judges must
decide unanimously all questions
brought before the court. and il they
do not the matter must be referred to
the United States supreme court The
court was unable to agree on the ques-
tion OF sustaining the demurrer inter
posed by the commission to the
amended complaint fled by the South
ern Pacific.
Judge Gilbert delivered the ruling
OF the circuit court yesterday and At
torney Peter F. Dunno representing
the Southern Pacific, sought to se-
cure stay. of the interstate commerce
commissions order. The record of the
proceedings follows:
PROCEEDINGS IN COURT
Judge Gilbert-In the case of the
Southern Pacific company versus the
| interstate commerce commission on the
question whether the demurrer shall
be sustained and on the question
whether in this investigation the court
is to be confined to the case as. made
before the commission, the members
Of this court are Of divided opinion.
Counsel VIII prepare a statement for
the purpose of certifying the case to
! the supreme court.
Attorney Dunne-If your Honor
! please, that leaves undetermined the ef-
! feet of the order OF the commission.
and in the presence of divided court
/ on these important questions il seems
! to me that the status quo should be
| preserved, and that it is entirely COM
petent to this court to preserve the
status quo pending the determination of
! these questions.
Judge Hilbert-When the case is GER
| titled to the supreme court that court
will have jurisdiction, and you may
make your application to that court, or
! to the Interstate commerce commission.
DunneI quite appreciate that, IL
your honor please, but L think it is
my duty to make application to this
court.
Judge Gilbert-You may consider
your application made and denied.
Dunne-To which we except, If your
honor please.
BOTH SIDES CONFIDENT
In speaking of the failure of the cir
cult court judges to agree, Luther NJ.
Walter, attorney for the interstate
commerce commission, said
Now that the matter has been
passed on to the United States supreme
court for final decision, the Interstate
commerce commission feels that the
question as TO what Jurisdiction courts
have in reviewing the rulings of the
commission will be definitely settled
The government is satisfied that the
supreme court will decide in its favor
| Our contention is that the Southern
| Pacific has failed to show that the rate
as established by the commission is an
| unremunerative one and, further that
the railroad has made no showing that
would warrant a court OF equity in re-
vising the ruling of the commission"
Attorney Dunno said: I'VE feel that
the Interstate commerce commission
will not be any moro successful in the
| United States supreme court than It has
been in this court and that the SUI
preme court will sustain the position
we have taken. 1t is vital to the COM
mercial interests of San Francisco and
the entire Pacific coast that our posi-
| tion should be sustained
In all probability the United States
supreme court will return it's ruling
/ 40