a discrimination, when, by deducting it from the rate, a difference in rate mathematically appears. There a carrier compressed the cotton bales of a certain shipper at its own expense, and another shipper complained that the expense should be deducted from the usual rate he paid for cotton not compressed; and it was held that, as he could have had his cotton bales compressed on the same terms, there was no discrimination. Plainly, it was no concern of the plaintiff in that case whether the carrier compressed his cotton or not, so it was carried according to the contract, as it is, on the particular facts of this case, no concern of Ionia whether Grand Rapids has cartage or not, so long as it only pays an equal rate for a shorter haul, which is not of itself forbidden.

From what has been already ruled, it is apparent that even if the commission had established, by its inquiry, an abuse to be remedied, the order it gave was not a proper one, and should not be enforced. Large as its powers may be, and plenary as may be the authority of the court to enforce, by mandatory injunctions or otherwise, obedience to its orders, its powers are those of regulation, and not construction or reconstruction. Interstate Commerce Commission v. Baltimore & O. R. Co., 43 Fed. 37, 50, and 145 U. S. 263, 12 Sup. Ct. 844. And now see Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission (Oct., 1895) 16 Sup. Ct. 700. This is, as the commission has made it, a dispute about discriminating rates, and the easy remedy, on such a complaint, is a readjustment of the rates to cover the discrepancy. As was said in one of the cases we have cited, the method of redress by readjusting the rates must always be left to the choice of the company, at least in the first instance; and in the subsequent St. Louis case, supra, the commission adopted that course, and made the proper order. Here was an arbitrary and peremptory order to abandon the accessorial cartage at Grand Rapids, without regard to any rates, or without option as to readjustment of them, the defendant company not even being allowed the alternative of establishing a like service at Ionia. It is, in its nature, not a regulation of commerce, so much as an interference with the rights of property and its use, which possibly even congress could not, in this way, prohibit. At all events, it is an attempted exercise of a legislative power which congress has not, we think, conferred upon the commission. Northern Pac. R. Co. v. Washington Territory, supra.

Nor was there any power in the circuit court to modify or change the order of the commission. Whatever may be the plenary power of a court of equity to command, at the suit of those who are injured, the performance of any duty arising out of a contract or statutory obligation, the jurisdiction it was exercising here is strictly special and statutory, and is limited, as all special jurisdiction is, to the precise power conferred by the interstate commerce act, which is only to compel obedience to the "lawful order" of the commission. It has not been granted any broader power to exercise the authority of the commission itself by substituting a new regulation or order of its own, or modifying that which the commission has given. It is purely an auxiliary jurisdiction. Interstate Commerce Commis

sion v. Delaware, L. & W. R. Co., 64 Fed. 723. The ordinary jurisdiction of the courts is open to any one injured to invoke their more plenary powers, except so far as that of an action at law for damages has been made optional with the cumulative statutory remedy by section 9 of the act. The remedy by bill in equity has not been so restricted, and is yet available; but here, the powers of the commission being administrative, and not judicial, the ancillary and sup plemental judicial jurisdiction is necessarily limited to the purpose of its creation, and can go no further than to grant or refuse compulsery obedience to the lawful orders of the commission, and as it makes them. Interstate Commerce Commission v. Delaware, L. & W. R. Co., supra; Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567; Interstate Commerce Commission v. Lehigh Val. R. Co., 49 Fed. 177; Shinkle, Wilson & Kreis Co. v. Louisville & N. R. Co., 62 Fed. 690; Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co., 47 Fed. 772. It confirms our confidence in the rulings we have made that since this opinion was prepared the supreme court has announced its decision in one of the cases herein cited, appealed to that court, in an opinion by Mr. Justice Shiras, which, although presenting differing facts, is in entire harmony with the views we have here expressed. Texas & P. R. Co. v. Interstate Commerce Commission, 16 Sup. Ct. 666. In any view, therefore, either because this order was not according to the right of the case, as we understand it, or because it directed an improper mode of redressing the abuse, if any existed, the decree must be reversed, and the cause remanded to the circuit court, with directions to dismiss the petition, with costs.

(74 Fed. 842.)

THE ST. JOHN.1

CONERY et al. v. DELAHOUSSAYE et al.

(Circuit Court of Appeals, Fifth Circuit. February 17, 1896.)

No. 423.

MARITIME LIENS-SUPPLIES FURNISHED BY VESSEL'S AGENTS.

A firm made large cash advances on mortgage account to the captain of a steamboat whose home port was in another state, to pay off debts owing to third persons. This was done, as stated by one of the firm, for the purpose of "getting his business." Thereafter the firm acted for several years as the exclusive financial agent of the steamboat, collecting her bills, making advances to the captain from time to time to pay his crew, and for coal bills, commissions, insurance, interest, etc., and also furnishing supplies. Held, that the agency was of such a character as to preclude the idea that the supplies were furnished on the credit of the vessel, so as to create a maritime lien, although the firm may have thought that she was bound.2

Appeal from the District Court of the United States for the Eastern District of Louisiana.

1Rehearing denied April 21, 1896.

2 As to what is necessary to the creation of maritime liens for supplies, etc., see note to The George Dumois, 15 C. C. A. 679.

W. W. Howe, for appellants.

John D. Grace and Frank E. Rainold, for appellees.

Before PARDEE and MCCORMICK, Circuit Judges, and BOARMAN, District Judge.

BOARMAN, District Judge. The libelants, L. P. Delahoussaye, Jr., bill clerk, and George Johnson, steward, of the defendant steamboat, filed their suit for wages, amounting to $94, in the district court for the Eastern district of Louisiana. Under the libel, process was issued, and the boat was seized. No claimant appearing, she was sold for $2,200, and the proceeds placed in the registry. A number of interveners, claiming for wages, supplies, etc., appeared in the suit. There is no dispute that the steamer St. John was a foreign vessel, having been enrolled and licensed in the state of Mississippi, and the domiciles of her owners and masters were in that state. The matters in the suit were referred to a commissioner, to take evidence, and report thereon; and all the claims favorably passed on by the commissioner were allowed without objection. Among those interveners are the appellants, E. Conery & Son, who intervened for a supply bill against the steamer for $769.42. All the supply claims prosecuted by the interveners were allowed except appellants' claim, which was rejected by the commissioner in his findings and report; and, appellants having excepted to such findings, the court below sustained the commissioner's rulings on E. Conery & Son's claim, for "the reason that E. Conery & Son, interveners and exceptors, were the agents of the steamboat St. John; and the presumption of law is that, as such agents, the advances or supplies they made were on the personal credit of the owners of the steamboat, which presumption has not been overcome, but, on the contrary, has been sustained by the evidence."

The appellants, among their several assignments of error, present the following:

"(8) The evidence shows that E. Conery & Sons were not the husband of defendant steamer, or general agents in any such manner, extent, or method as impaired their just lien, and the court below erred in holding otherwise."

In addition to the assignment quoted above, appellants complain of the district court's erroneous rulings on other issues passed on by the court adversely to them. Under the view we have of the rulings of the court below, it is not necessary that any of the assignments except the one quoted should be considered. That assignment puts at issue the facts and law upon which the district court decided adversely to the appellants. The evidence clearly shows that E. Conery & Son, when and during the time the supply bill was incurred by appellees, were the agents of the defendant steamboat. The appellants contend that their agency, as shown by the evidence, was of a limited kind, and that the facts showing them to be agents did not, under the law applicable thereto, warrant the judge a quo in depriving them of a lien in con curso with the other claimants for supplies against the defendant steamer.

There seems to be but little, if any, disputed evidence on the issues of fact which show the acts, transactions, etc., of the appellants for and with the defendant steamer herself, as well as with the captain or master thereof, during their various and complicated business relations. Appellants' books show several separate accounts against the steamer St. John. One of them shows a mortgage account, the first item therein being for $5,631, which was advanced, as cash, to Capt. Delahoussaye, to pay off his indebtedness to a firm in this city with which he had been previously dealing. It was advanced to him "for the purpose of getting the business of Captain Delahoussaye," as was said by one of appellants' witnesses. The "mortgage account" shows items for cash advances to pay insurance, interest, etc., amounting to $8,097, with credits of cash,-one for $1,300, collected as dividends on Capt. Delahoussaye's interest in the steamer Lafourche; and another cash credit collected for Delahoussaye, as the dividend on 10 shares in the steamer Josie W., $400. The transcript shows much testimony concerning the mortgage account which we will not further consider, except to say that our deductions from it are not favorable to the appellants' contention as to "the manner, extent, or method," etc., of their agency, or as to their right to a maritime lien, for their supply bill, against defendant steamer. The last credits on the mortgage account were made in January and May, 1895. Another account, called "cash or running account," shows charges against said steamer beginning in October, 1893, and running until February 13, 1895. It contains charges for cash advanced to the steamer's captain, and for payments made to various persons, for sundry purposes. Among them seem to be charges for commissions, for insurance, interest, etc., and for payments of drafts, and on deductions, etc. Said account amounts to about $40,000, and shows credit by cash collections beginning October 13, 1893, and continuing from day to day, and from time to time, until the account, on February 13, 1895, shows a balance of $43.78 against the steamer. It appears that appellants, during the time of their agency, from time to time, furnished supplies to the boat, and that their accounts therefor, except the one now sued on, beginning October, 1894, and ending January, 1895, seem to have been satisfactorily arranged between the parties.

Much, if not all, the evidence, besides the exhibits showing the several said accounts, which relates directly to the manner, extent, or method of appellants' agency, is shown in the testimony of E. Conery, Jr., a member of the commercial firm, whose intervention we are now considering. In the evidence appear the following questions, the answers to which were made by E. Conery, Jr.:

Q. From October 27, 1891, down to the time the last entry was made in your books in relation to the steamer St. John, who were the general agents of the steamboat St. John? A. You mean fiscal agents or freight agents? Q. Both. A. [page 96:] I don't know who were the freight agents. Q. Who were the fiscal agents? A. We were. Q. E. Conery & Son? A. Yes, sir; sometimes she would have freight agents with one, and sometimes with another; I never kept run of that. Q. Freight agents are those who solicit

freight? A. Yes, sir. Q. The other business outside of soliciting of freight was done by your house? A. Yes, sir; entirely. [At pages 112-113:] Q. What was the regular channel? A. As agents. Q. Who were the agents? A. E. Conery & Son. Q. For what? A. The steamboat St. John. * Q. Then am I to understand from your testimony that from October 27, 1891, down to the date that the credit was given on the back of this note, January 22, 1895, that your house, E. Conery & Son, were the agents of the steamboat St. John? A. Yes, sir. Q. They attended to all of her business, except the soliciting of freight? A. All of her business except the soliciting of freight. Q. Made her collections and disbursements? A. Made her collections, of course; never made her disbursements except when called upon. [At page 98:] Q. Now, this cash account that you speak of, and in reference to the steamboat St. John, alone, were the charges against the steamboat St. John in that cash account, for advances made by your house of cash? A. Yes, sir. Q. That cash was advanced for the purpose of what? A. For paying her crew, coal bills, that is, in the shape of drafts you know,-and charges. Q. What kind of charges? A. Such as you get; say, warehouse charges on sugar freight; boat charges. Q. In other words, where a consignor would deliver a certain quantity of goods to the boat, and would present a bill for charges against these goods for drayage, warehouse, etc., the money would be used for the purpose of paying those charges? A. That is what we presumed Captain Delahoussaye used it for.

In addition to this extract from his testimony, he says at another place that the credit for the supplies now in question was given to the steamboat. In considering the effect of the evidence quoted above, together with evidence on the same subject, we think that his statement that the credit was given to the steamboat St. John shows only an affirmation of his conclusions of law. Declarations made elsewhere as to the extent of appellants' agency also suggest his view of the law applicable to the facts which he has stated. We do not think his conclusions of law are sustained by his narrative of the facts relating to the manner, extent, or method, etc., of the appellants' agency. We think the evidence, shown in the said several accounts, taken together with appellants' relation, to the defendant steamer, and to the captain thereof, beginning, as they did, with the first advancement of cash, for the purpose of getting Capt. Delahoussaye's business, and running through several years, ending, as it appears, only on the day the steamer was libeled, were of such a character, whatever appellants themselves may have thought of the extent or method of their agency, as to forbid us to conclude that the credit of the defendant steamer was such an element in their sale of supplies to the boat as would impose a maritime lien in their favor, to the prejudice of the other interveners. The Kingston, 23 Fed. 200; The Lulu, 10 Wall. 192; The Howard, 29 Fed. 604; Berwind v. Schultz, 25 Fed. 912.

Under the evidence and the law applicable thereto, we think the court a qua could not have concluded otherwise than it did, and the judgment is affirmed.