tural and that "for aught that appears from | 2. COURTS 385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT-SUBORDINATE the evidence, it may have its apex in the ANCILLARY PROCEEDING. Black Rock and, indeed, this is probably the case." And it is urged that a situation is presented not of the weight of evidence, but of the absence of evidence, or, to quote counsel, the decision is "one which finds no support whatever in the testimony." But manifestly these are but assertions-attacks on the estimate of the testimony made by the District Court and Circuit Court of Appeals and the conclusion it justifies. [8] It is further said that issue was made upon the title to the Pyle strand and that it was the duty of the court to definitely pass upon it and to decide for appellant, but that "instead of entering such a decree, the court so framed, and intentionally so framed, its decree that it would not be a bar to a new suit which appellees might thereafter bring against this appellant to quiet title to all of the vein below the plane of union between it and the Pyle strand, if by further develop ment they discovered additional evidence in support of their contention that the Pyle strand did apex in the Elm Orlu at the point of alleged forking and at its apex continued thence easterly to and across the east end line of the Elm Orlu." It is true the apex of the Pyle strand was found to be within the Elm Orlu, but all else as to the vein was reserved and, in the circumstances, properly reserved. There was simply retention of the case for supple mentary proceedings, as the Circuit Court of Appeals observed, to carry out the decree and make it effective under altered circumstances. Joy v. St. Louis, 138 U. S. 1, 47, 11 Sup. Ct. 243, 34 L. Ed. 843; Union Pacific Ry. v. Chicago, etc., Ry. Co., 163 U. S. 564, 603, 16 Sup. Ct. 1173, 41 L. Ed. 265. Decree affirmed. The main action being appealable directly to the Supreme Court from the District Court. under Judicial Code, § 238 (Comp. St. § 1215), as a case in which the law of a state is claimed to contravene the national Constitution, a subordinate proceeding not merely ancillary to but in effect a part of the main cause, taken for purpose of carrying into effect the decree of the Supreme Court reversing the final decree in the main cause, and at the same time to give effect to a reservation of jurisdiction by the Dis trict Court, as contained in that final decree, is likewise so appealable. 3. APPEAL AND ERROR 1197-SUPREME PROCEEDINGS BELOW The clauses of the final decree of the District Court, whereby it, on enjoining enforcement of rates, prescribed by Railroad Commission, and vacating the injunction bond and releasing the sureties, retained jurisdiction for purpose of making such further orders as might become necessary, coupled with mandate of Supreme Court, permitting further proceedings in conformity to its opinion and decree and according to right and justice, empowered the District Court to set aside so much of its final decree as released the railroad and its sureties from liability previously incurred under such bond, irrespective of whether the reversal of the decree, in respect of its main provisions granting injunction, had the effect of reversing also the portion discharging liability on bond. 5. INJUNCTION 235-BOND-CONDITIONS BREACH OR FULFILMENT. (249 U. S. 134) ment of such rates should not have been made, complainant should refund-does not require (Submitted Dec. 17, 1918. Decided March 3, express adjudication that the order should not 1. COURTS 1919.) Nos. 92-95. 385(7)-SUPREME COURT-APPEAL FROM DISTRICT COURT-"STATE LAWS." Orders of State Railroad Commission, fixing rates, are "state laws," within Judicial Code, 238 (Comp. St. § 1215), allowing appeal directly from District Courts to the Supreme Court in a case in which the law of a state is claimed to contravene the national Constitution. [Ed. Note.-For other definitions, see Words and Phrases, State Law.] have been made, but it is enough that complainant fails in its burden of proof that the rates were inadequate. 6. INJUNCTION 239-BOND-EXTENT LIABILITY. OF Claims for overcharges after the final decree of injunction, afterwards reversed, in suit by railroad company to enjoin enforcement of rates prescribed by Railroad Commission, are not recoverable on the injunction bond, nor against the sureties; obligation of the bond, given on granting of temporary injunction, conditioned to refund if it should eventually be decided that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes order inhibiting the enforcement of the rates | Commission in the exercise of legislative auought not to have been made, expiring when the suit was brought to a final conclusion. 7. INJUNCTION 260-WRONGFUL INJUNCTION-RECOVERY IN INJUNCTION SUIT. Claims for overcharges by railroad company between final decree enjoining enforcement of rates, prescribed by Railroad Commission, and reversal thereof, though not recoverable on the bond given on issuance of temporary injunction. may be allowed by the court against the railroad company under the inherent power of the court, so long as it retains control of the subject-matter and the parties, to correct that which has wrongfully been done by virtue of its process. 8. CARRIERS 18(6)-REGULATION OF RATES -RESTRAINING ENFORCEMENT-RELIEF TO SHIPPER. thority of the state, cannot be set aside by the court on the ground of discrimination, unless it amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. 42-PERSONS 13. CONSTITUTIONAL LAW A rough material rate, working no discrimi- A shipment of rough material from forest to A shipper, though not a party to suit by milling point, both within the state, is not inrailroad to enjoin enforcement of rates preterstate commerce, rendering state rates inapscribed by Railroad Commission, but coming in plicable thereto, though followed by forwarding by intervention before the master, to whom, aft-of finished products to points outside the state, er reversal of the decree of injunction, reference where it would eventually be sold not being was made for purpose of determining damages, known till after material was manufactured and is in a position to invoke the principle of resti- stored, and this though previous experience intution of overcharges during the continuance of dicated that 95 per cent. of it must be marketed the injunction; the Railroad Commission, in outside the state. defending the rates, representing all shippers. 9. REFERENCE 48-ORDER-QUESTION DETERMINABLE INJUNCTION BOND-RESTITU TION. Objection that order of reference was made under a rule of the court that related only to damages recoverable on injunction bond, given by railroad in suit to enjoin enforcement of rates prescribed by Railroad Commission, and furnished no foundation for decree against the railroad on the theory of restitution of the excess charges between permanent injunction and reversal of that decree, not recoverable on the bond, is without weight; the railroad having been fully heard on the merits, and there being no question about the facts. 10. JUDGMENT 565-CONCLUSIVENESS JUDGMENT WITHOUT PRejudice. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] Appeals from the District Court of the United States for the Eastern District of Arkansas. Decree for complainants in separate suits by the St. Louis Southwestern Railroad Company and the St. Louis, Iron Mountain & Southern Railway Company against the Railroad Commission of Arkansas and two shippers, to enjoin enforcement of rates prescribed by the Commission, having been reversed by the Supreme Court, and its mandate having gone down, the District Court made a reference to determine damages, on which That the reversal by the Supreme Court of there intervened the Arkadelphia Milling the decree enjoining enforcement as confiscatory of rates prescribed by the Railroad Com-Company, Joseph F. Hasty and others, partmission was without prejudice did not depriveners as J. F. Hasty & Sons, and the Southern the Supreme Court's decree of conclusiveness as to past transactions, and so did not, as leaving the rights of the parties still in doubt, render it improper for the District Court to award damages against railroad, either on the basis of a breach of injunction bond or on the basis of restitution, but only prevented the decree from being a bar to future injunction suits on a showing of changed conditions. Cotton Oil Company. Exceptions to the report of the master in favor of the claims of the interveners were sustained by the District Court as to claims of the Arkadelphia Milling Company and J. F. Hasty & Sons, and overruled as to claims of the Southern Cotton Oil Company, and decree was made accordingly, from which the first two claimants and the Railway Companies appeal. Reversed on apAc-peals of claimants, and modified and affirmed on appeal of Railway Companies, and cause remanded. Interest on overcharges by carrier, wrongfully made and without consent of shipper, runs from the date when made; the damage being then complete. 12. CARRIERS BY 18(1)-RATES-FIXING COMMISSION-REVIEW BY COURT-DISCRIMI NATION. A rough material rate, constituting part of a general schedule established by a Railroad Messrs. W. E. Hemingway, G. B. Rose, D. H. Cantrell, J. F. Loughborough, and V. M. Miles, all of Little Rock, Ark., for appellants in 92 and 93 and appellees in 94 and 95. Messrs. J. M. Moore and George A. McConnell, both of Little Rock, Ark., for appellees in 92 and 93 and appellants in 94 and 95. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes •136 *138 Mr. Justice PITNEY delivered the opinion | showing the difference between the tariff acof the Court. These four cases were consolidated for the purposes of the hearing in the District Court, and have been treated as consolidated for the purposes of the hearing on appeal. They are so closely related that they may be dealt with in a single opinion. tually charged and that which would have been charged had the rate inhibited been applied, also showing the particulars of the carriage, and the names of the persons affected as far as practicable, the record to be kept subject to the further order of the court, and further conditioned that if it should eventual*On July 18, 1908, the two railway compa- ly be decided that so much of the order as nies concerned the St. Louis, Iron Moun- inhibited the enforcement of the rates ought tain & Southern, which for brevity may be not to have been made, the complainant called the Iron Mountain, and the St. Louis should within a reasonable time to be fixed Southwestern, which may be called the by the court refund in every instance to the Southwestern-brought separate suits in eq- party entitled the excess in charge over uity in the Circuit Court (now the District what would have been charged had the inCourt) of the United States for the Eastern hibited rates been applied, together with lawDistrict of Arkansas against the members of ful interest and damages. Complainants enthe state Railroad Commission in their of- tered into such bonds with sureties. Later ficial capacity, and against two citizens of an additional injunction bond was required that state named as frequent shippers of to be and was furnished by each complainant, freight upon the railroad lines, for injunc- but without sureties, conditioned substantialtions to restrain the enforcement of certainly as above. intrastate freight and passenger rates; setting up that the commission was duly organized under an act of the Legislature, and was thereby authorized to fix rates to be charged by the railroads in the state of Arkansas for the transportation of freight and passengers in that state; that the commission had officially adopted a tariff of freight rates applying to all classes and commodities of freight on all railroads operated in the state, and had ordered it to take effect on June 15, 1908; that the rates were unreasonable, unjust, discriminatory, confiscatory, and void; that they did not yield an adequate return for the services rendered; and that the operation of said tariff would deprive complainants of their property without due process of law and deny to them the equal protection of the laws, in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. It was further alleged that the rates for the transportation of passengers in the state fixed by an act of the Legislature passed February 9, 1907, and promulgated by order of the railroad commissioners, were confiscatory and void in their effect upon the complainant railways and, therefore, violative of the Fourteenth Amendment; but the passenger rates are not involved in the present appeals, and need not be further mentioned. The jurisdiction of the federal court depended solely upon the ground that the cases arose under the Constitution of the United States, and that the matter in controversy in each case exceeded the jurisdictional amount. Temporary injunctions were issued in September, 1908, and continued in force during the pendency of the suits. The Circuit Court upon granting them ordered in each case that the complainant should execute a bond in the penal sum of $200,000, conditioned that complainant should keep a correct account re specting its carriage of passengers and freight, | Full answers having been filed by the Railroad Commission, and testimony having been taken, the cases were brought on to fina) hearing, and on May 11, 1911, final decrees. were made, the same in both cases. They enjoined the commissioners and their suc cessors, the individual shippers named as defendants, and all other patrons of the road in the shipment of freight between stations la the state of Arkansas, from enforcing or attempting to enforce any of the provisions of the freight tariff in question. In addition to this, and after disposing of the question of costs, each decree ordered that the bond for injunction be released and the sureties thereon discharged from liability, and concluded as follows: "And the court reserves and retains unto itself jurisdiction of the subject-matter of this suit and of all parties hereto, to the end that such other and further orders and decrees may be made herein as may become necessary by reason of any changed conditions as to the facts, equities or rights that may hereafter take place or arise." The railroad commissioners appealed to this court (the defendant shippers having been severed), the cases were heard together, and the decrees of the Circuit Court were reversed June 16, 1913, with directions to dismiss the bills without prejudice. Allen v. St. Louis, Iron Mountain & Southern Ry., 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625. The causes were remanded to the District Court, the mandate in each case reciting the reversal and the order remanding the cause with directions to dismiss the bill without prejudice, and concluding as follows: such execution and further proceedings be had "You, therefore, are hereby commanded that in said cause, in conformity with the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding." #189 This section, of course, was the predecessor of section 238, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1215]), under which the present appeals were taken. And it is plain that the orders Upon the going down of the mandates the contravention of the Constitution of the UnitDistrict Court on July 18, 1913, entered de- ed States." crees in obedience thereto dismissing the bills without prejudice and dissolving the injunctions; and at the same time and as a part of the same decrees made a reference under a rule of the court to a special master for the purpose of determining the damages alleged to have been sustained by the of the Railroad Commission were state laws railroad commissioners by reason of the within the meaning of this provision. Wilgranting of the temporary and permanent in-liams v. Bruffy, 96 U. S. 176, 183, 24 L. Ed. junctions, declaring: "That in determining these damages, for the recovery of which the said commissioners are not acting for themselves but for the benefit of all persons, shippers, consignees and passengers, who have sustained any damages by reason of the granting of said injunctions," the master was authorized to examine witnesses and to give notice by publication that all persons having claims against the complainants by reason of the granting of the injunctions should present them within a time specified for the purpose. 716; Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 555, 34 Sup. Ct. 364, 58 L. Ed. 721. The provisions of the Judicial Code which regulate the jurisdiction of the Circuit Court of Appeals originated in section 6 of the act of 1891. They must be construed together with those provisions of law that confer upon the District Court (section 24, Judicial Code [Comp. St. § 991]), and formerly conferred upon the Circuit Court, original jurisdiction in suits of a civil nature arising under the Constitution or laws of the United States, and in suits between citizens of different states. By section 128 of the Code Under this reference the appellants in cas- (Comp. St. § 1120), the Circuit Courts of Apes Nos. 92 and 93 and the appellees in Nos. peals are to exercise appellate jurisdiction 94 and 95 intervened and presented claims over the final decisions of the District Courts for a refund of the difference paid by them "in all cases other than those in which apin freight rates between the rates prescribed peals and writs of error may be taken direct by the commission and those put in force by to the Supreme Court, as provided in section the railway companies. The master reported 238, unless otherwise provided by law; and, favorably upon these claims, dividing the except as provided in sections 239 and 240, amounts allowed into three periods, the first the judgments and decrees of the Circuit and second of which included the time elaps- Courts of Appeals shall be final in all cases ed between September 3, 1908, when the in- in which the jurisdiction is dependent enterlocutory injunctions were issued, and May tirely" upon diversity of citizenship. Sec11, 1911, the date of the final decrees, and tion 239 (Comp. St. § 1216) provides for the the third period included the time elapsed certification of questions by the Circuit between the latter date and July 18, 1913, the Court of Appeals to this court; section 240 date of the decrees entered upon the man- (section 1217) permits this court to review dates. The railway companies filed excep- by certiorari any case in which the judgment tions to the master's report, which were sus or decree of the Circuit Court of Appeals tained by the District Court as to the claims is made final; and, by section 241 (section involved in cases Nos. 92 and 93 and over- 1218), in any case in which the judgment or ruled as to those involved in Nos. 94 and 95, decree of that court is not made final, there and a combined decree was made accordingly. may be an appeal or writ of error *to this [1, 2] The parties aggrieved desiring to ap-court where the matter in controversy exceeds peal, and being in doubt whether the appeal $1,000 besides costs. lay to this court or to the Circuit Court of Appeals, prayed for and were allowed appeals to both courts. Hence the first question that confronts us is whether the decree is the subject of a direct appeal to this court. We are clear this question must be answered in the affirmative. The appeals from the final decrees in the main causes were brought direct to this court, because of the constitutional question, under section 5 of the Circuit Court of Appeals Act of March 3, 1891 (26 Stat. 827, c. 517), which provided for such an appeal in the following *cases, among others: "In any case that involves the construction or application of the Constitution of the United States. In any case in which the Constitution or law of a state is claimed to be in The present appeals relate to a decree made in a subordinate action ancillary to the main causes, in which, as has been stated, the federal jurisdiction was invoked solely upon the ground that the cases arose under the Constitution of the United States. It has been held repeatedly that jurisdiction of subordinate actions is to be attributed to the jurisdiction upon which the main suit rested, and hence that where jurisdiction of the main cause is predicated solely on diversity of citizenship and the decree therein is for this reason made final in the Circuit Court of Appeals, the judgments and decrees in the ancillary litigation also are final. Rouse v. Letcher, 156 U. S. 47, 15 Sup. Ct. 266, 39 L. Ed. 341; Gregory v. Van Ee, 160 U. S. 643, 16 Sup. Ct. 431, 40 L. Ed. 566; Rouse v. Hornsby, 161 U. S. 588, 16 | ville v. Cumberland Tel. Co., 231 U. S. 652, Sup. Ct. 610, 40 L. Ed. 817; Pope v. Louis- 34 Sup. Ct. 260, 58 L. Ed. 419. ville, etc., Ry., 173 U. S. 573, 577, 19 Sup. Ct. 500, 43 L. Ed. 814. [4] In support of the contention that the final decrees had the effect of discharging the complainants and their sureties from liability upon the bonds by reason of previous overcharges, it is pointed out that this part of the decrees was not appealed from, nor was error assigned to the court's action in vacating the bonds and releasing the sureties. Whether, under the circumstances, the action of this court in reversing the decrees The proceeding out of which the decree now in question arose was not merely ancillary, but was in effect a part of the main causes, taken for the purpose of carrying into effect the decrees of this court, reversing the final decrees in the main causes, and, at the same time, for the purpose of giving effect to a reservation of jurisdiction by the court below as contained in those final de-in respect of their main provisions granting crees. The supplementary decree that is now before us, since it simply brings to a conclusion those former suits pursuant to our decrees therein, must be treated as involving the construction and application of the Constitution of the United States and as being made in a case in which a state law was claimed to be in contravention of the federal Constitution, within the meaning of section 238, Judicial Code. permanent injunctions had the effect of reversing also that portion which discharged the liability upon the injunction bonds is a question upon which we need not pass. For, irrespective of this, those clauses of the final decrees by which the District Court retained jurisdiction for the purpose of making such further orders and decrees as might become necessary, coupled with the subsequent mandates of this court permitting further pro Therefore the motions to dismiss must be ceedings to be taken in conformity with our denied. Upon the merits, it will be convenient to take up first the case of the Southern Cotton Oil Company, appellee in Nos. 94 and 95, in whose favor claims were allowed by *the master as against each of the two railways and for each of the periods referred to. The railways excepted upon two grounds: (1) Because the final decrees of May 11, 1911, discharging the injunction bonds, and releasing the makers thereof from liability had the effect to relieve the railways and their sureties from all liability by reason of the granting of the injunctions; and (2) as to such claims for overcharges as accrued subsequent to the date of the final decrees, on the ground that upon the rendition of those decrees the injunction bonds ceased to be operative and created no further liability, and that the railways incurred no liability to the claimants under the final decrees. The District Court overruled the exceptions and sustained the claims of the Oil Company as against the railway companies and the sureties with interest at 6 per cent. per annum from the respective dates that the overcharges were made. opinion and decrees and according to right and justice, empowered the District Court to set aside so much of its final decrees as released the railways and their sureties from liabilities theretofore incurred under the injunction bonds. This is what the District Court in effect did when it ordered the reference and sustained the claims of the Oil Company so far as they accrued prior to the final decrees. [5] It is argued that the condition of the bonds-that if it should eventually be decided that the order inhibiting the enforcement of the commission rates should not have been made the complainant should refund, etc.never was broken because it was not at any time adjudged that the allowance of the temporary injunctions was improper. But this is to construe the bonds according to the letter and not according to the substance. The state statute and the orders of the Railroad Commission entitled shippers to the benefit of the rates thereby established; and they were thus entitled at all times except as it became necessary to stay the operation of the rates by equitable process in order to permit of a judicial investigation into the question of their adequacy. The burden of proof to show them inadequate was upon the railway companies; and when they failed to sustain this burden they at the same time showed that the injunctions ought not to have been allowed. [3] We deal first with so much of the overcharges as accrued prior to the final decrees. In St. Louis, Iron Mountain & Southern R. Co. v. McKnight, 244 U. S. 368, 373, 37 Sup. Ct. 611, 61 L. Ed. 1200, doubt was expressed whether, in view of the form of the mandate, there was any power in the District Court [6] As to that portion of the claims which to determine the liability of the railway com- accrued after the final decrees, this, as we panies upon the bonds. But at that time already have held in the McKnight Case, 244 our attention was not called to the fact that U. S. 368, 374, 37 Sup. Ct. 611, 61 L. Ed. 1200, the mandates contained a provision author- was not recoverable upon the injunction izing further proceedings-a provision that bonds, nor against the sureties therein. removes all question of the power of the Dis- a fair construction of the conditions of those trict Court. In re Louisville, 231 U. S. 639, instruments, their obligation expired by lim645, 34 Sup. Ct. 255, 58 L. Ed. 413; Louis-itation when the suits were brought to a final 39 SUP.CT.-16 On |