The Birmingham age-herald., 1913-05-07

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of 1t. The service of the order on com
plainant, the effect of which was to put
the order into effect within D days there
after. would constitute step to enforce
the order Upon the order becoming effec-
tive by this means, the rate created by
II was by force of the order and Of the
statute prima facie a valid one in any
iegal proceeding against complainant,
made effective to the order, by collect
ing rate in excess of it, subjected the
complainant To penalties at the instance
OF those compelled by it to pay the higher
rates. The order was attended with these
results without further action on the
part OF the commission than the service
OF the order upon the complainant and
the lapse of % DAYS. It seems lear that
the making of tile order, if its purpose is
held TO he the enforcement of the maxi
mum passenger rate act. combined with
service of it on the complainant, was the
taxing of a step by the commission tc
enforce the statute against complainant.
q 1t is further contended by the conf
mission that the effect of the injunction
was. merely to restrain the commission
rfom enforcing the schedule of rates conf
pr1sed Ia the group of statutes, consisting
OF the maximum freight act, the eight
group acts and the maximum passenger
rate act, in their entirety, and that ii left
the commission at liberty to put in force,
singlY, any one of the several acts COM
pflslng the group; that the report of the
special master and the opinion of the
court upon the final Decree as well as
the language of the final decree. shows
that the combined schedule was de-
houhced as confiscatory, and that there
was no ruling by either the master or
the court that the passenger rate act,
apart from its association with the other
acts assailed, would in it's operat tion de-
prive the complainant of its property
without due process OF law.
No Adjudication
An examination of the masters report,
OF the opinion of the court and of the
language of the final decree Is persuasive
that there was no adjudication in the
cause that the operation of the maximum
passenger rate, Independently of its asso-
eiated rate acts. would be confiscatory
II may be true that the pleadings were
| broad enough to present this issue and
that there is.ezdence in the record from
which the inft ; might arise that the
passenger business complainant when
conducted under the atutory rate was
un1emunerative and confiseatory, even
though considered apart from complain
| ants freight business. The masters re-
port the courts opinion and the final de
| cree, in connecting the cause Indicate
that the court did not attempt to deter
mine whether the passenger rate act
would be confiscatory in its operation
If it alone were enforced and the re-
naming rate statutes enjoined, and the
complainant in that event al liberty to
put In freight rates not limited by the
statutory maxima.
1T Is conceivable that the court might
| have reached different conclusion as
to the confiscatory effect of the statu-
tory passenger rate, when put in force
by itself or in connection with a group
OF statutory freight rates. In the former
| case, the revenue from the freight busi-
ness when unregulated, might make the
total revenue from freight and passen-
ger traffic remuneratiVe, though the
passenger traffic, unaided, might not be
so. In the latter case, the freight traf-
fic conducted under statutory rates
might not only not lend aid to the pas
senger traffic under like regulation. but
be detriment to it, so that the entire
business of the carrier would be con-
Quoted at a loss. The passenger traffic
is conducted on the same rails and large
ly with the same plant as Is the freight.
and might be held remunerative in con-
nection with remunerative freight
business, though If it were conducted
alone, the holding would be different.
The question as to whether the statu-
tory passenger rate. if it alone was put
in force, would prove confiscatory seems
not to have been presented to or decided
by the court. What the court did decide
was that the entire schedule represented
by the statutory passenger and freight
rates as fixed by the group of acts, the
enforcement of which was enjoined, was
conflscatory in its operation. The court
in it's final decree was careful in each in
stance to limit its findings, as to each
class of statutory rates, to their effect
when taken In connection with every
other class. The assault was made by
complainant upon the effect of the rates,
as an entirety, upon the intrastate busi-
ness of the complainant, and the master
and court determined that the schedule
of rates. taken as a whole, was confisca-
tory with relation to complainants intra-
state business, both freight and passen-
ger, and not that the 21A-cent passenger
rate, in connection with freight rates
unrest tricted by statutory regulation
would be.
Complainants' Contention
"The complainant contends that the
unreasonableness of the statutory pas
senger rate in and of itself, being within
the issues which We're or might have
been litigated by the commission under
the pleadings and evidence in the case,
has become res adjudicata between the
parties without regard to what the court
actually decided, upon the well recog-
nized legal principle that where a gen.
eral judgment is rendered all matters
that We're or might have been interposed
as a defense to it are considered as ad-
judged between the parties. While this
principle would govern in cases where
the Judgment did not set out the issues
actually adjudicated it does not seem to
me that it should apply when the decree
of the court specifically expresses the
issues determined by 1t and upon which
the relief is granted The inquiry as to
the reasonabeness of the passenger rate
was material in any event upon the liti-
gated question as to whether the sched-
ule in its entirety was contiscatory, and
for that reason the presence of evidence
in the record tending to support that is
sue would not be conclusive that the is
s1e itself was within the litigated is
sues.
II the unreasonableness of the passen-
ger rate of itself was not actually de-
termined by the district court in the