United States Commerce Court.

No. 1.-APRIL SESSION, 1911.

SOUTHERN PACIFIC COMPANY AND THE ATCHISON, Topeka & Santa Fe Railway Company, petitioners,

V.

INTERSTATE COMMERCE COMMISSION, RESPONDENT.

UNITED STATES, PACIFIC COAST JOBBERS AND MANUfacturers' Association and Associated Jobbers of Los Angeles, intervening respondents.

Mr. Robert Dunlap, Mr. H. A. Scandrett, and Mr. C. W. Durbrow, with whom Mr. T. J. Norton, Mr. F. C. Dillard, Mr. W. R. Kelly, Mr. P. F. Dunne, Mr. Gardiner Lathrop, and Mr. W. F. Herrin were on the brief, for the petitioners.

Mr. J. A. Fowler, Assistant to the Attorney General, and Mr. Blackburn Esterline, special assistant to the Attorney General, for the United States.

Mr. P. J. Farrell, for the Interstate Commerce Commission.

Mr. Seth Mann, for the intervening shippers.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

CARLAND, Judge:

[July 20, 1911.]

The bill in this case was filed for the same purpose as the bill in case No. 2, Atchison, Topeka & Santa Fe Railway Co., Southern Pacific Co., and San Pedro, Los Angeles & Salt Lake Railroad Co. v. Interstate Commerce Commission and United States, except that the switching service for which a charge is claimed is performed at the city of San Francisco, Cal.

For the reasons stated in the opinion filed in case No. 2, above mentioned, the motion for a temporary injunction made by the petitioners is granted, and the motion to dismiss made by the United States and the Interstate Commerce Commission is denied.

MACK, Judge, dissenting.

United States Commerce Court.

No. 2.-APRIL SESSION, 1911.

THE ATCHISON, TOPEKA & SANTA FE RAILWAY Company, Southern Pacific Company, and San Pedro, Los Angeles & Salt Lake Railroad Company, petitioners,

บ.

INTERSTATE COMMERCE COMMISSION, RESPONDENT. UNITED STATES, PACIFIC COAST JOBBERS AND MANUfacturers' Association, and Associated Jobbers of Los Angeles, intervening respondents.

Mr. Robert Dunlap, Mr. H. A. Scandrett, and Mr. C. W. Durbrow with whom Mr. T. J. Norton, Mr. F. C. Dillard, Mr. W. R. Kelly, Mr. P. F. Dunne, Mr. Gardiner Lathrop and Mr. W. F. Herrin were on the brief, for the petitioners.

Mr. J. A. Fowler, Assistant to the Attorney General, and Mr. Blackburn Esterline, special assistant to the Attorney General, for the United States.

Mr. P. J. Farrell, for the Interstate Commerce Commission.

Mr. Seth Mann, for the intervening shippers.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

48250-S. Doc. 789, 62-2-5

65

CARLAND, Judge:

[July 20, 1911.]

This case has been submitted upon a motion for a temporary injunction made by the petitioners, and upon a motion to dismiss made by the United States and the Interstate Commerce Commission. The motion to dismiss is made by virtue of the provisions of section 1 of the act to create a Commerce Court, which allows such a motion to be made where it is claimed the petition does not set forth a cause of action. As determinative of these motions, our view is necessarily limited to the facts, which are well pleaded in the petition. These facts, as they appear in the petition, are substantially as follows:

The petitioners are railroad corporations, organized under the laws of the States of Kansas, Kentucky, and Utah, respectively. At all times each of said petitioners and their respective predecessors in interest have maintained and do now maintain public freight depot buildings theretofore, respectively, established by them in said city of Los Angeles upon or adjacent to their respective tracks connecting with their respective main tracks in said city where freight in less than carload lots is and has been received for transportation for shippers in said city destined to various points upon their respective lines of railroad or points upon connecting lines of railroad in the United States, and where