if joined in the original bill herein; that a provisional order
may be issued out of and under the seal of this court, directed
to said P. M. Arthur and Sargent, enjoining and

restraining them from issuing, promulgating or continuing
in force any rule or order of any kind which shall require
or command any employes of any of the defendant companies
to refuse to receive, handle or deliver, or be in any way
instrumental in refusing to receive, handle or deliver, any
cars of freight from and to plaintiff, or from refusing to
receive or handle cars of freight which have been hauled
over plaintiff's road, and from in any way, directly or in-
directly, endeavoring to persuade or induce any employes of
the defendant companies not to extend the same facilities to
plaintiff for interchange of traffic as are extended by their
respective employes to other railway companies. And in case
such rule or orders shall have been promulgated by said de-
fendants, plaintiff prays the court to issue its mandatory
injunction herein requiring said defendants, and each of them,
to recall and rescind such orders and to instruct the members
of said Brotherhood of Locomotive Engineers and Firemen,
respectively to make no discrimination of any kind against
plaintiff in the interchange of traffic as aforesaid ; and for
such other and further relief as to the court shall seem equit-
able and proper. R. X.,

Solicitor for Complainant.
State of - ,
County of - , ss.

Personally appeared before the undersigned, a notary pub-
lic within and for - - county, - , R. X., who being duly
sworn says, that he is the solicitor and general counsel of the



BILLS OF SPECIAL CASES. 731

complainant corporation. The Toledo, Ann Arbor & North
Michigan Railway Company; that he has read the foregoing
amendment to its bill of complaint and knows the contents
thereof; that as to such matters and things therein as are al-
leged on information and belief, affiant believes them to be
true, and the other matters and things therein stated are true
in substance and in fact. R. X.

Sworn to before me and subscribed in my presence this

day of - - , A. D. - . B. R.,

Notary Public,
[Seal.] - County, - .



(1) This amendment was made to bill in Toledo, etc., R. Co. v. Penn-
sylvania Co., see No. 312, 54 Fed. 730, to bring in officers of the labor
unions ordering strike. In the matter of enjoining strikes see also Sec.
20 of the Clayton Act, Oct. 15, 1914, 38 Stat. L. 738, and Alaska Steam-
ship Co. v. International Longshoremen's Assn., 236 Fed. 964.



No. 474.

Bill in Equity to Subject Property of Absent Defendant to
Pay a Judgment.(l)

The District Court of the United States,
for the District of .



Tn Equity. No.



A. B.

vs.

C. D.
E. F.
G. H. j

To the Honorable Judge of the District Court of the United
States within and for the - - District of - ;

A. B., of - , plaintiff herein, respectfully shows unto
your honors that at the - - term, 1894, of this court he
recovered a judgment at law in cause No. , for



732 SUTIS IN EQUITY.

dollars, and costs amounting to - - dollars, amounting in
the aggregate to - - dollars, against C. D., which said judg-
ment is still in full force and unreversed.

That execution was duly issued upon said judgment to the

marshal of said district on the - day of , 1894, and

levy was duly made upon the personal property of said C. D.,
and only the sum of - - dollars made upon said writ of
execution, and the same was returned unsatisfied on the -

day of , 1894, leaving unpaid and still due upon said

judgment the sum of - - dollars, with interest.

That plaintiff is informed and believes that the said C. D.
has fled the country, and that certain, property of his, to wit,
money of or about the value of - - dollars, sufficient to
satisfy the judgment, is still in the possession and under the
control of one E. F., but which plaintiff is unable to reach
by process of law ; and plaintiff is also informed that one
G. H., an alien, residing in - , without this district and the
jurisdiction of this court, claims some interest or right to the
money aforesaid now in the possession of said E. F., and
the property of said C. D.

Wherefore plaintiff prays that C. D., E. F., and G. H.
be made parties defendant herein, and that process issue re-
quiring them to appear and answer this bill of complaint ;
that said G. H. be required especially to answer by what right
or title he claims the money -aforesaid, and to set forth his
claims in this suit; and that E. F. be required especially to
answer how much money belonging to said C. D. he has now
in his possession, and what is the indebtedness due to him from
the said C. D., and that after payment of all lawful and
equitable prior claims the said money may be applied to the
judgment recovered by plaintiff against said C. D. until further
order of this court, and for such other and further relief as
may be proper, just, and equitable. A. B.,

X. X.', Plaintiff.

Solicitors for Plaintiff.

[Verification.]



BILLS OF SPECIAL CASES. 733

(1) As to proceedings in case of absent defendant in a federal court,
see Desty's Fed. Proc., Sec. 25, and cases there cited, and R. S.. Sec.
738, brought forward in Judicial Code, Sec. 57; see Perez v. Fernandez,
220 U. S. 224, and Schultz v. Di'ehl, 217 U. S. 594.



No. 475.

Where Postmaster Excludes Mail Matter Under the Act of

June 15, 1917, 40 Stat. L., 230.
[Caption.]

The complainant above named brings this, his bill of com-
plaint, against the defendant and complains and alleges as
follows :

First. Complainant is and was at all times herein mentioned
a corporation duly organized and existing under the laws of
the state of New York, with its principal office and place of
business at 34 Union Square, East, borough of Manhattan,
city of New York, and engaged in the business of publish-
ing, among other things, a monthly magazine known as "The
Masses." owned by said complainant.

Second. The defendant is and was at all times herein
mentioned the postmaster of the city of New York, in said
state of New York, and in his official capacity as postmaster
in said city of New York has the control of the receiving and
distribution of mails in and through said post-office in the
city of New York.

Third. The said magazine called "The Masses" is a
monthly publication of about fifty (50) pages, with a circula-
tion of from twenty to twenty-five thousand copies and circu-
lates extensively through the city and state of New York, as
well as other states, and that for a number of years last past
the said magazine has so circulated and has been received
freely at the post-office of the city of New York and else-
where and transmitted through the same and circulated there-
from upon the payment to the postal authorities of the amount
required upon second-class mail matter. It is absolutely



734



SUTIS IN F.OUITY.



necessary to the maintenance of said magazine and to its con-
tinued publication and circulation that the said magazine
should be freely received at and delivered and circulated from
the said post-office in the city of New York and not be held
up or discriminated against or the delivery thereof delayed by
the said defendant or other person exercising control over the
delivery of mail from said post-office. The retail price of
said magazine is fifteen ($.15) cents a copy and the subscrip-
tion price one and 50/100 ($1.50) dollars a year. For more
particular description of said magazine, complainant begs leave
to attach a copy of the August, 1917, number or issue of said
magazine, more particularly hereafter referred to, and alleges
that all other August, 1917, numbers of said magazine are
identical with the copy hereto attached, and marked "Exhibit
A."

Fourth. According to the usual course of business of said
complainant in publishing its said magazine, calhd "The
Masses," the said issues of the magazine designed for circu-
lation through the mails, and particularly those intended for
circulation in different portions of the United States, are de-
livered properly wrapped and postage paid at the post-office at
the city of New York from the 1st to the 10th of each month.
Pursuant to this course of business, the complainant caused to
be delivered many hundred copies of said magazine of the
August, 1917, number, identical with Exhibit A herein, to the
defendant as postmaster of said city of New York on and be-
tween the 1st and 5th days of July, 1917, for the purpose of
having the same transmitted through the mails to their desti-
nation, and that said magazines were properly wrapped and
addressed in the usual way, and the postage thereon duly paid
to the proper post-office official in said post-office, agent of said
defendant, as required by law. which said money was duly re-
ceived and has ever since been retained by said defendant in
his said official capacity. Shortly after said magazines were
received at said post-office for mailing and the postage paid
thereon, as above stated, and on or about July 5, 1917, com-
plainant received from said defendant the following letter:



BILLS OF SPECIAL CASES. 735

In replying please refer to initials and date. SMC.

"OFFICE OF THE POSTMASTER, UNITED STATES POST-OFFICE.
"TFM New York, N. Y.

"Publishers of 'The Masses/ 34 Union Square, East, .New
York, N. Y.

"Gentlemen : Confirming the information telephoned to you
to-day, you are informed that according to advice from the
Solicitor for the Post-office Department, the August, 1917,
issue of 'The Masses' is non-mailable under the Act of June 15,
1917. Very respectfully,

"T. J. PATTEN, Postmaster.

"Per THOS. F. MURPHY,
"M-jj "Assistant Postmaster."

The reference in said letter to a telephone conversation is to
a communication received by Merrill Rogers, the business man-
ager of the complainant, over the telephone, from some assist-
ant of the defendant in said post-office to the effect that said
magazines would not be mailed or transmitted from said post-
office, but said conversation adds nothing to the information
contained in said letter. Although complainant has repeatedly
applied to the defendant, his agents and representatives and to
the solicitor for the post-office department to ascertain more
definitely than is stated in said letter the grounds for the ex-
clusion of said magazine from the mails, complainant has been
able to obtain no further information upon said subject, but
said magazines are still held at said post-office by order of the
said defendant as postmaster and he refuses to permit the same
to be delivered or transmitted therefrom.

Fifth. Complainant further shows that said magazines so
held by said defendant and refused access to the mails, as above
stated, are, as complainant is informed and verily believes, in
every respect mailable under the act of June 15, 1917, and
under any and all other laws of the United States, and that
complainant has, in all respects, duly complied with all pro-



736 SUTIS IN EQUITY.

visions of the law to entitle complainant to have said numbers
of said magazine duly mailed and transmitted through the
post-office as ordinary second-class matter, and that the act
and conduct of said defendant in refusing to mail said maga-
zines and holding the same to be non-mailable is wrongful and
unlawful and not authorized by law. Complainant further
alleges that it was not and never has been accorded any oppor-
tunity to be heard in the matter of determining said magazines
to be non-mailable either by said defendant or any other post-
office official. The action of said defendant in treating said
magazines as non-mailable matter and refusing to mail the
same, if continued, will work irreparable injury to the com-
plainant, will completely ruin the business thereof and damage
said complainant in the sum of many thousands of dollars, and
that said loss, damage and injury will amount to a sum far in
excess of $3,000, and that complainant is wholly without any
remedy at law, in consideration whereof complainant is remedi-
less in the premises by the rules of the common law and is
relievable only in a court of equity in this suit.

Wherefore complainant prays that this honorable court will
grant unto him due process of subpoena directed to said de-
fendant commanding said defendant to appear herein and to
answer, but not under oath, answer under oath being hereby
expressly waived, and to abide and perform such directions
and decrees as may be made in the premises ; that an injunction
forthwith issue enjoining and restraining the defendant, his
agents, servants and employes and all persons whomsoever,
from treating the August, 1917, issue of said magazine known
as "The Masses" as non-mailable under the act of June 15,
1917, or any other act or law whatsoever, and that said de-
fendant, his agents, servants and employes be forthwith com-
manded to transmit said magazines through the mail in the
usual way and accord to complainant thereon the rights and
privileges of second-class mail matter whereon the lawful post-
age has been duly paid and received by the proper post-office
officials ; that it be adjudged and determined by this honorable
court that said magazines, particularly the August, 1917, issue



BILLS OF SPECIAL CASES. 737

thereof, is mailable under the act of June 15, 1917. That an
order to show cause forthwith issue requiring said defendant,
at the time and place therein specified, to show cause why an
injunction should not issue pendente lite, enjoining and re-
straining the defendant, his agents, servants and employes and
all other persons whomsoever from treating the August, 1917,
issue of said magazine, known as "The Masses," or any num-
bers thereof, as non-mailable, under the act of June 15, 1917,
or any other act or law whatsoever, and that said defendant,
his agent, servants and employes be forthwith commanded to
transmit said magazines through the mail in the usual way and
accord to the complainant thereon the rights and privileges of
second-class mail matter whereon the lawful postage has been
duly paid and received by the proper post-office officials. That
it be adjudged and decreed that the said defendant was wholly
without authority or jurisdiction to determine that said maga-
zines were non-mailable and that the order and action of said
defendant in the premises is wholly void. That complainant
recover its costs and disbursements in this action and have such
other further order, judgment or relief in the premises as may
be just and proper. G. E. R.,

Solicitor and of Counsel for Complainant.
[Verification.']



No. 476.

To Enjoin Enforcement of Order of State Railway Com-
mission.

[Caption.]

The bill of complaint of the Mobile & Ohio Railroad Com-
pany against the Mississippi Railroad Commission, F. M.
Sheppard, president and member of said commissipn; George
R. Edwards and W. B. Wilson, members of said commission,
and Ross A. Collins, attorney general of the state of Mis-
sissippi.

I. Complainant, Mobile & Ohio Railroad Company, respect-
fully shows that it is a corporation organized and existing



738 SUTIS IN EQUITY.

under the laws of the state of Alabama, owning and operating
a main line of railroad, with certain branches, running be-
tween Mobile, Alabama, and East St. Louis, Illinois, through
the state of Mississippi and other states, as a common carrier
of freight and passengers.

Complainant further shows that the defendant, the Missis-
sippi Railroad Commission, is duly organized under the laws
of the state of Mississippi, and that its office is at Jackson,
Mississippi, the capital and seat of government of the said
state; that the defendant, F. M. Sheppard, is the president
and a member of said commission, and a resident and citizen
of the southern district of Mississippi ; and that defendant?.
George R. Edwards and W. B. Wilson, are also members of
said commission, and the said F. M. Sheppard, George R.
Edwards and W. B. Wilson constitute the said railroad com-
mission; that the said Edwards and the said Wilson are citi-
zens and residents of the northern district of Mississippi, and.
that the official residence of F. M. Sheppard, Edwards and
Wilson is at Jackson, Mississippi, in the southern district of
said state;. that defendant, Ross A. Collins, is attorney gen-
eral of the state of Mississippi, whose domicile and office are
both at Jackson, Mississippi, in the southern district thereof.

II. Complainant further shows that the matters in contro-
versy in this suit, and the questions involved therein, are
questions arising under the constitution and the laws of the
United States, and that the matter in controversy exceeds the
sum or value of three thousand dollars, exclusive of interest
and costs.

III. Complainant further shows that on account of the war
now being waged in Europe complainant's revenue decreased
to such an extent that it became imperatively necessary, as
will be more fully set out hereinafter, for complainant to
economize rigidly in every particular, and to that end the
vice-president and general manager of complainant wrote to
the members of the defendant railroad commission and re-
quested them to call a meeting at Jackson, Mississippi, on the
15th day of September, which they did, and at said meeting



BILLS OF SPECIAL CASES. 739

the said vice-president and general manager informed the de-
fendant railroad commission of the condition of the complain-
ant's finances, and the necessity of economy, and invited sug-
gestions from the commission as to the proper steps to take,
but the commission was unable to suggest anything. The
complainant's vice-president and general manager then stated
to the commission that it was his purpose to discontinue all
passenger trains then being run through the state of Missis-
sippi on complainant's main line, except two daily trains each
way.

The commission neither objected nor acquiesced by formal
order to the discontinuance of said trains, but one of the com-
missioners moved that permission be granted complainant to
discontinue said trains, which motion was seconded by an-
other of the commissioners. The third commissioner then
suggested that the matter be considered in executive session,
and no vote was taken, and complainant heard nothing more
from the commission concerning the matter. Thereafter the
complainant gave notice to the public that at 12 :01 a. m.,
Monday, September 28, 1914, it would discontinue two daily
passenger trains each way running south of Meridian, Missis-
sippi, and one daily passenger train running between Merid-
ian, Mississippi, and Okolona, Mississippi, on the north,
leaving two daily trains each way running between Meridian,
Mississippi, and Mobile, Alabama, and three daily trains each
way running north of Meridian beyond the Tennessee-Missis-
sippi state line.

The said scheduled passenger trains were discontinued in
accordance with the said notice to the public, but under an
injunction secured by the attorney general of Mississippi from
the chancellor of the chancery court of Lauderdale county,
Mississippi, special trains were operated on the former sched-
ules of said trains until the 5th day of October, 1914, on
which date said chancery court dissolved said injunction on
motion of defendant, your complainant herein. On the said
5th day of October, 1914, said special trains were discon-
tinued.



740 SUTIS IN EQUITY.

IV. On the 28th day of September, 1914, the defendant,
Mississippi Railroad Commission, caused to be issued a cita-
tion to this complainant, a copy of which is hereto attached,
requiring it to appear before said commission at its office at
Jackson, Mississippi, on the 7th day of October, 1914. and
show cause, if any it could, why it should not be required to
continue to operate between Corinth, Mississippi, and State
Line, Mississippi, passenger trains known as Nos. 7, 8, 9, 10,
11 and 12, which were the trains that had been discontinued
as above stated. In obedience to said citation, complainant
appeared by its officers and agents before the commission on
the 7th day of October, 1914, and protested against the entry
of any order requiring complainant to run any trains in addi-
tion to those being run on that date ; that is to say, two trains
daily each way south of Meridian, Mississippi, and three
trains daily each way north of Meridian, and complainant
presented its case fully to the commission both as to the law
and the facts.

But over complainant's protest the commission, on October
7, 1914, entered in the one case on the one citation six sepa-
rate orders, requiring complainant to run, in addition to those
run at that time, two trains each way daily from Meridian,
Mississippi, to Waynesboro, Mississippi, and one train each
way daily from Meridian, Mississippi, to Okolona, Missis-
sippi, over complainant's main line. Certified copies of said
order, marked "Exhibit A," are attached to this bill, and filed
herewith as part hereof.

V. Complainant further avers that it suffered many severe
losses in business during the fiscal year ending June 30, 1914,
and at the end of that year its financial condition was not
good, and it had no accumulated surplus out of which to pay
losses during this period of depression. During the month of
July, 1914, complainant's earnings were fair, but its expenses
were exceedingly heavy. There was at that time, and had
been for many months, a general business depression. On
the second day of August, 1914, the war now being waged in
Europe was begun, and this complainant, in common with



BILLS OF SPECIAL CASES.

other business interest generally, suffered a severe reduction
in its business and revenue. Complainant did not in the
month of August, 1914, or the months of July and August,
1914, earn sufficient net money above its operating expenses
to pay its fixed charges and taxes. During the month of
September its earnings decreased, and its total earnings dur-
ing the month of September were $133,975.96 less than they
were in September, 1913. During the period of the first two
days of October, 1914, the earnings were $21,461 less than
they were during the corresponding days of October, 1913,
or a loss of over $10,000 per day. Unless complainant is per-
mitted to economize in every possible way that is reasonable,
in view of the condition of its business, as well as of the needs
of the public which complainant serves, the outgo of com-
plainant's money will be larger than its income, and it will
have no means by which it can operate its road. Complain-
ant has put into effect, and is putting into effect as fast as
possible, every economy that it can, and still it has not yet
been able to reduce its expenses to the point where they can
be met from its income. Nor will all of the economies which
it had determined on, but has not yet had time to put into
effect, accomplish more than that result. The views of those
who are best able to judge are that the war in Europe will
last many months, and the complainant sees no hopes of im-
provement in its business so long as the war lasts.

Complainant delayed taking action to reduce its passenger
service in the state of Mississippi until the necessity therefor
became absolute. Complainant was not and is not confronted
with the mere possibility or a mere probability that it will be
unable to meet its expenses, but had and actually reached that
point. The people of the state of Mississippi, and several
states served by complainant, have ceased on account of the
depression in business to bring to complainant the volume of
business which they brought before the European war com-
menced, and have ceased to pay complainant the amount of
money which they paid prior to that time; and complainant
says that it is inequitable and morally wrong for them, or the



742 SUTIS IN EQUITY.

state of Mississippi, through the railroad commission, or any
of its officers, to seek to compel the complainant to provide
them with the same facilities when the amount of business
which they bring to complainant will not enable it to do so
and live. And complainant avers that the said orders of the
commission, attempting to require the complainant to furnish
the said passenger facilities as therein set out, when the com-
plainant's income is less than its expenses, separately and col-
lectively, deprives complainant of the equal protection of the
laws of its property without the process of the law, in viola-
tion of the fourteenth amendment of the Constitution of the
United States and of the constitution of Mississippi.