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Argument for Corporation Commission.

of answers the cause was referred to a master to report the testimony and findings of fact to the court. The court, concluding that the order of the corporation commission was repugnant to the commerce clause of the Constitution, entered a decree in favor of the railway company and perpetually enjoined the enforcement of the order of the corporation commission and the bringing of actions to recover penalties or damages for a violation of that order. 134 Fed. Rep. 82. The corporation commission and the ice and coal company appealed and the railway company prosecuted a cross appeal upon the ground that the court below erred in not deciding that the corporation commission was an unconstitutional body because of the alleged mixed and peculiar character of the functions conferred upon it by the state statutes.

Mr. R. H. Battle, Mr. E. J. Justice and Mr. Robert D. Gilmer, Attorney General for the State of North Carolina, for appellants in No. 370 and appellees in No. 594:

The amount involved was less than $2,000, and the Circuit Court had no jurisdiction. The jurisdictional amount cannot be added to by reason of the probative force of the judgment in other cases. Elgin v. Marshall, 106 U. S. 578; Holt v. Indiana Mfg. Co., 176 U. S. 68; United States v. Wanamaker, 147 U. S. 149; Washington &c. Ry. Co. v. District of Columbia, 146 U. S. 227; New England Mort. Security Co. v. Gay, 145 U. S. 123; Baltimore v. Postal Tel. Co., 62 Fed. Rep. 500, 592.

The North Carolina Corporation Commission was made a court of record under article IV, section 12, of the state constitution. Chap. 164, Laws of 1899; amendment of 1903, c. 342, Pub. Laws. Being a court of record, its record imports verity, and having jurisdiction of the parties and the subject matter of the proceedings before it, the Southern Railway Company was bound by its judgment. Caldwell v. Wilson, 121 N. Car. 423, at p. 453, citing: Jones v. Penland, 19 N. Car. 358; Hyatt v. Tomlin, 24 N. Car. 149; Duffey v. Averitt, 27 N. Car. 455; Middleton v. Duffey, 73 N. Car. 72; Wheeler v. Cobb, 75 N.

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Car. 21; Etheridge v. Woodley, 83 N Car. 11; Penniman v. Daniel, 95 N. Car. 341; Roberts v. Allman, 106 N. Car. 391; State v. Jones, 88 N. Car. 683, 685. See 2 Ency. of Pl. & Pr. 639. The "due process" clause of the Fourteenth Amendment to the Constitution of the United States does not control forms of procedure nor regulate practice therein. Its requirements are complied with if the party complaining has had sufficient notice and opportunity to defend. Louisville and N. R. R. v. Schmidt, 177 U. S. 230; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Hooker v. Los Angeles, 188 U. S. 314; Iowa Central Ry. Co. v. Iowa, 160 U. S. 389. This process is regulated by the state law, and the United States courts can only intervene when it is in conflict, with the Constitution and laws of the United States. Walker v. Sauvinet, 92 U. S. 90;

Leeper v. Texas, 139 U. S. 462, 467.

The question in this case is, whether the order of the commission, made in pursuance of the powers conferred upon it by the state law violates the "commerce clause" of the Federal Constitution.

Neither the act of Congress of February 4, 1887, establishing the Interstate Commerce Commission, nor the amendments thereto, adopted in 1889, 1893, and 1903, have any provision with reference to side-tracks at stations of railway companies. State legislation not intended to impede or interfere with interstate commerce, but rather to aid its safe and prompt delivery to consignees after reaching its place of destination, is not in conflict with the Constitution of the United States. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Wetson v. Black Bird Creek Marsh Co., 2 Pet. 245; Mayor, &c. of New York v. Miln, 11 Pet. 102; Mobile v. Kimball, 102 U. S. 691; Bagg v. Wilmington, C. & A. R. Co., 109 N. Car. 281; Leisy v. Hardin, 135 U. S. 100; Nashville, C. & St. L. R. R. v. Alabama, 128 U. S. 96; Western Union Tel. Co. v. James, 162 U. S. 650; Covington &c. Bridge Co. v. Kentucky, 154 U. S. 204.

Under the police power the State can legislate for the public convenience, as well as for the public health, morals and safety.

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Argument for Southern Railway Company.

Lake Shore &c. R. R. Co. v. Ohio, 173 U. S. 285; Gilman v. Philadelphia, 3 Wall. 713; Wisconsin &c. R. R. Co. v. Jacobson, 179 U. S. 294; Olsen v. Smith, 195 U. S. 332; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477; Railroad Commission Cases, 116 U. S. 307, 335; Chicago, M. & N. R. R. v. Solon, 169 U. S. 133.

The act of the general assembly of North Carolina constituting the corporation commission was not void as being in violation of the constitution of the State.

The act under which the North Carolina Corporation Commission was organized, and is exercising its functions for the benefit of the people of the State, is, in its essential particulars, so far as it relates to railway companies, but a rescript of the laws establishing the North Carolina Railroad Commission and making it a court of record (Laws of 1891, chapter 320 and chapter 498); and the acts establishing both the railroad commission and the corporation commission have been expressly declared to be constitutional by the Supreme Court. And like statutes, under which railroad commissions in other States have been organized, have been upheld by this court. Railroad Commission Cases, 116 U. S. 307; Caldwell v. Wilson, 121 N. Car. 425; Express Co. v. Railroad, 11 N. Car. 463; Railroad Company v. Telegraph Co., 113 N. Car. 213; Leavell v. Telegraph Co., 116 N. Car. 211; Pate v. Railroad Co., 122 N. Car. 877; Abbott v. Beddingfield, 125 N. Car. 256; Corporation Commission v. Railroad, 127 N. Car. 283; Corporation Commission v. Railroad, 139 N. Car. 126.

This court is concluded by the decisions of the Supreme Court of North Carolina upon this point. Duncan v. McCall, 139 U. S. 449; Leeper v. Texas, 139 U. S. 462; O'Neill v. Vermont, 144 U. S. 323; McNulty v. California, 149 U. S. 645; Bergemann v. Backer, 157 U. S. 655; Kohl v. Lehlbach, 160 U. S 293; Howard v. Fleming, 191 U. S. 126.

Mr. Claudian B. Northrop and Mr. Fabius H. Busbee fo Southern Railway Company:

It has been conclusively settled by this court that where the

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master and the court both concur this court will not disturb the findings, and in the language of Mr. Justice Brown “so far as there is any testimony consistent with the finding, it must be treated as unassailable." Davis v. Schwartz, 155 U. S. 636; Wiscart v. D'Auchy, 3 Dall. 321; Bond v. Brown, 12 How. 254; Graham v. Bayne, 18 How. 60; Norris v. Jackson, 9 Wall. 125; Ins. Co. v. Folsom, 18 Wall. 237; The Abbotsford, 98 U. S. 440; Crawford v. Neal, 144 U. S. 585; Turner v. Ferris, 145 U.S. 132; Evans v. State Bank, 141 U. S. 107; Kimberly v. Arms, 129 U. S. 512; Morewood v. Enequist, 23 How. 491; The Ship Marcellus, 1 Black, 414; Dravo v. Fabel, 132 U. S. 487; Companie de Navigacion v. Brauer, 168 U. S. 104; The Richmond, 103 U. S. 540; The Conqueror, 166 U. S. 110; Stuart v. Hayden, 169 U. S. 14; Baker v. Cummings, 169 U. S. 198.

The necessary diversity of citizenship exists, all of defendants being citizens and residents of a different State from that of which the complainant is a citizen and resident. There are also questions arising under the Constitution of the United States.

The amount or matter in dispute exceeds the sum or value of $2,000, exclusive of interest and costs, and is properly alleged. See Blackburn v. Portland Gold Mining Co., 175 U. S. 570, 574; Butchers' & Drovers' Stock Yards Co. v. Louisville & N. R. Co., 67 Fed. Rep. 35.

The question of jurisdiction, not having been raised in the case at bar by any special plea to the jurisdiction, it must be held under the rulings of this court that the facts sufficient to establish the jurisdiction are admitted when properly averred in the bill, as in the case here.

Both the master and the Circuit Judge have held that this suit involves the right of Southern Railway Company to conduct and manage its interstate business at Greensboro, North Carolina, and to dispose of its rolling stock, and to distribute it, and to refuse or permit its cars to be placed on private sidings, according to its reasonable rules and regulations, and that said right is of incalculable value to Southern Railway Com

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Argument for Southern Railway Company.

pany, and amounts to many thousands of dollars far in excess of the sum or value of $2,000 exclusive of interest and costs. Butchers' & Drovers' Stock Yards Co. v. Louisville & N. R. R. Co., supra; Nashville, C. & St. L. Ry. v. McConnell, 82 Fed. Rep. 65; Scott v. Donald, 165 U. S. 107; Louisville v. N. R. R. v. Smith, 128 Fed. Rep. 1.

This is not a suit against the State of North Carolina. A bill to restrain the executive officers of a State, under alleged authority of an unconstitutional statute, is not a suit against the State. Scott v. Donald, 165 U. S. 107 and cases cited; Belknap v. Schild, 161 U. S. 10, 18.

The equities of this bill are to prevent irreparable injury and a multiplicity of suits to which Southern Railway Company has a common defense, involving questions of law common to all said suits.

Where a failure to obey an order made by a state railroad commission, which was unauthorized and void, would under the state statutes, subject the company, in its daily business, to large numbers of individual actions, and to heavy penalties, a court of equity has jurisdiction of a suit to enjoin enforcement of such order, on the ground that its decree will avoid a multiplicity of suits and afford a more efficacious remedy than can be had at law. Dinsmore v. So. Express Co., 92 Fed. Rep. 714, 715; Smyth v. Ames, 169 U. S. 517; Va.-Carolina Chem. Co. v. Home Ins. Co., 113 Fed. Rep. 1; Louisville & N. R. R. v. Smith, 128 Fed. Rep. 1.

This is not a suit to restrain cases already pending in state courts contrary to section 720, United States Revised Statutes. Texas & P. R. Co. v. Kuteman, 54 Fed. Rep. 547. The corporation commission is not a "court" in the sense of the statuté. Gumee v. Brunswick, 11 Fed. Cas, No. 5,872; People v. Trustees, 39 N. Y. Supp. 607; People v. Van Allen, 55 N. Y. 31; White County Com'rs v. Givin, 136 Indiana, 562; Johnston v. Hunter, 50 W. Va. 52; Upshur v. Rich, 135 U. S. 467; Fuller v. County of Colfax, 14 Fed. Rep. 177. See Western Union Tel. Co. v. Wyatt, 98 Fed. Rep. 335.