# United States ex rel. Attorney General v. Union Stockyard & Transit Co. of Chicago > Commerce Court · November 14, 1911 · 192 F. 330 URL: https://www.frixlaw.com/law-library/cases/9304798 ## Case - **Full name:** UNITED STATES ex rel. ATTORNEY GENERAL v. UNION STOCKYARD & TRANSIT CO. OF CHICAGO - **Court:** Commerce Court - **Decided:** November 14, 1911 - **Citations:** 192 F. 330; 1911 U.S. Commerce Ct. LEXIS 6 - **Precedential status:** Published - **Opinion:** On rehearing by Mack - **Judges:** Archbald, Bald, Carland, Hunt, Knapp, Mack - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9304798 ## Opinion text On Petition for Rehearing. Blackburn Esterline and William E- Ramb, Sp. Asst. Attys. Gen., for the United States. Ralph M. Shaw, for Union Stockyard & Transit Co. of Chicago and .Chicago Junction Ry. Co. Willard M. McEwen, for Rouis Pfaelzer & Sons. Before KNAPP, Presiding Judge, and ARCHBARD1, HUNT, CARRAND, and MACK, Judges. MACK, Judge. It is urged that this court, in the opinion heretofore filed, has too narrowly limited its jurisdiction in declining to consider whether or not the proposed payment by the Stockyards Co. to the Pfaelzers is a rebate or discrimination forbidden by law. Counsel contend that inasmuch as the Junction Co., which is alleged and has been found by us to be a common carrier'engaged in interstate commerce, is one of the defendants, therefore, under section 2, as well as under section 3, of the Elkins act, other parties not common carriers involved in the subject-matter of the proceedings may likewise be proceeded against in the same action. But, as we stated in the former opinion, two entirely separate cases have been joined in this proceeding — the one against the Junction Co. and the Stockyards Co. to compel compliance with sections 6 and 20 of the act to regulate commerce; the other against the Stockyards Co., the Investment Co., and the Pfaelzers, under the Elkins act, to enjoin an alleged discrimination and .rebate. While we have not, of our own motion, dismissed the petition for misjoinder of actions and multifariousness, nevertheless we cannot deal with the case otherwise than as involving the two distinct causes of action.- The fact that the Junction Co. is a party to the first of these does not make it also a party to the second. No relief of any kind is prayed for against it in respect to the alleged discrimination and rebate. If, as we interpret sections 2 and 3 of the Elkins act, a proceeding thereunder in-equity cannot be-maintained against parties other than a common carrier engaged in interstate commerce, unless'on proper allegations relief is also sought against the commission by such a carrier of one or more of the acts therein prohibited, the fact that the Junction Co., which is such a carrier, is a party defendant on the other branch of the case furnishes no basis for this "proceeding against the other defendants. But counsel further urge that, inasmuch as the Stockyards Co. is, in good faith, alleged to be an interstate common carrier, this court not only has jurisdiction but is in duty bound to determine the legality of the contract with the Pfaelzers. There is no question as to the jurisdiction of the court in the premises. The petition purports to state a case under the Elkins act. If the defendants had admitted that the Stockyards Co. was an interstate common carrier, the only question to be determined by this court *349 would have been the legality oí the contract. But, when the defendants denied this allegation, they raised an issue of fact the determination of which necessarily preceded any consideration of the issue of law. When that issue of fact was decided in their favor the petition had to be dismissed. The court nevertheless had the power and the right to base its decision on either or both of two possible grounds, and if we had been clearly of the opinion that such.a contract as the one in question, made by an interstate common carrier, were legal, the petition would have been dismissed on both grounds. The only case stated, or that could properly have been stated, in the petition, was one charging that an interstate carrier had made a contract in violation of the law. Defendants, however, are now asking us to decide a totally different question — whether or not such a contract made by one not a carrier is legal. However important it may be to them to secure an authoritative ruling thereon, any answer that we might give would not be responsive to the issues raised in the case before us, and would, therefore, be a mere dictum, and of no binding force. No authority has been vested in this court to advise parties, on their application, whether proposed undertakings would, if consummated, violate the law, or, on the application of the government, to enjoin the commission of alleged illegal acts, except only when such an injunction is sought against an interstate common carrier. An order will therefore be entered in accordance with the original opinion filed herein. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9304798. Public record. Not legal advice.