94 FEDERAL REPORTER,'
It is only at law that the mortgagee is regarded as the owner of the legal title. The Georgia statute changes thefefl'ect; in this regard, of a mortgage at law, but it is only a legislative'recognition of the equitable rule, which views a mortgage as merely, a security for debt. It is held in Hart V': Respe8s, 89 Ga. 87, 14 FLE,,9l0, as stated in the syllabus: ''While the mortgagee has no legal title' to the rents and profits, he has an eq.uitable claim upon the same in so far as they may be needed to discharge so tuuch of the mortgage debt 'as cannot be realized out of the corpus of the prolJerty, the facts of the. ease indicating that the debtors are insolvent, and the creditors likely to sustain loss."
.is'iu eqriityalways regarded as 'a'mere security for debt.
The decree of the circuit court is affirmed.
INTERSTATE COMMERCE CmlMISSION v. CHICAGO, B. & Q. R. CO.
et aI. (Circuit Court, N. D. Illinois, N. D. May 9, 1899.) No. 25,101.
1.
CARRlEIlS-INTERSTATE COMMERCE ABLE CHARGES.
TO ENJOIN UNREASON-
A petition by the Interstate comwerce for an order of a federal,court enjoining a 'carrier from making certain charges, which the commission has declared to be unrellsonable .and unjust, is authorized by the 'interstate commerce act, and is not 'subject to objection as an attempt to :fix maximum rates; the question of the reasonableness of the charges. complaine(l of being one which the cOli+t is required to determine in such proc:eeding.
, " The findings of the interstate commerce commission on which it basI'S I an order requiring carriers to cease and desist from making certain charges as unreasonable and unjust, which are made. prima facie evidence of the facts tberein ,stated on the hearl;ng of a petition by the commission asking ,a court to enjoin obedience to SUCh, order, will not, in view of the terms of the statute and its remedIal character, be given a narrow construction on ! the hearing Ora demur'rer to the petition' on the ground that such findings do riot sUstain the order made. S. 1)E Novo. . Tbe court will not be limited on the to a review of the evidence before the Interstate commerce c()mmlssion, and a hearing de novo on the merits should be granted where the findings and petition of the commission are within the letter of tbe act.
·2.,8.,6.ME.
On to Petition. S. H. Be-thea, U. S. Dist. Atty., for plaintiff'. R.obeIlt Dunlop, for defendant Atchison,T. & S. F. R. Co. Robert Mather, for defendant Chicago, R. I. & P. R. Co. Sidney F. Andrews,for defendalli'tIllinois Cent. R. Co. William Brown, for defendant Chicago' & A. R. Co. " G. S. Bennett, for Wl1bash R. Co. C. M. Dawes, for defenidant Chieag{},iB. & Q. R. Charles R Keeler, for defendant. Chica'go, M. & St. P. R. Co. Lloyd W.Bllrrows, for defendant Chicago & N. W. R. Co. FrankE. Kellogg, for defendant Chit"ago G. W.' R. Co.
,
,!
INTERSTATE COMMERCE COMMISSION V. CHICAGO, B. & Q. R. CO.
273
KOHLSAAT, District Judge. This cause comes on to be heard upon demurrer of the defendants to the petition filed herein by the interstate commerce' commission seeking an order of this court enjoining the defendants to cease and desist from niakingcertain charges which the said commission had declared to be unreasonable and It is contended on the part of defendants that the petition attempts, by indirection, tpfix a maximum rate of transportation, and is therefore obnoxious to the rule of law laid down in Interstate Commerce Commission v. Cincinnati, K. O. & T. P. R Co., 167 1;. 8. 479, 17 Sup. Ct. 896, wherein, conceding that sueh power might have been conferred, the court held that the commission was not vested by the statute with authority to fix rates, either maximum or minimum. The statute does, however, in express terms, empower the commission to exeeute and enforce the provisions of the act, by notifying the transgressor thereof to cease and desist from specific violations, and to invoke the aid of the federal courts in compelling obedience to such notice or order. It is not an anomal.v in law that the commission should have the right to declare any given rate unreasonable and unjust, while it may at the same time be without jurisdiction to .fix a rate. The language of section 15 of the act (24 Stat. 384) investing the commission with authority to notify the defendants to cease and desist from the violation of any given provision of the act may fairly be applied to the clause in section 1 reading, "and every unjust and unreasonable charge for such service, is prohibited and declared to be unlawful," without in any way conflicting with the rule of law laid down in Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. The defendants further contend that the decision of the court of appeals in the case of Walker v. Keenan, 19 C. C. A.. 668, 73 Fed. 755, is conclusive in this case.. The court in that case expressly said that the. unreasonableness of the charge was not suggested. Here it is the question at issue. Even if it were raised in that case, however, the facts before that court are not available for the purpose of this motion. ' The d,efendants further insist that the finding of facts by the commiS$ion do not support its notice or order. The act provides that the findings of the commission shall be prima facie evidence of the matters therein stated, and that this court shall proceed to hear the matter without formal pleadings and proceedings applicable to ordinary suits in equity; so that, certainly for the purposes of a delIlurrer, no narrow construction should be applied by the court in such a case. The commission does find, among other facts, that the flat rate to Chicago includes compensation for a portion of said two-dollar charge, that the two-dollar charge is made in part for ser,:,ices whicq should be included in the flat Chicago rate, that the flat Chicago rate is a reasonable charge for all the services which should .be included in the transportation of freight to Chicago, and fllat ,the two-dollar charge is unreasonable and unjust. Anyone of theSe issufticient to sustain the petition herein, as against this demurrer. 94F.-18
94 1'1IIDlllUL RJIlPORTlll:a.
. MEARS
(Oitcult Court ot i Appeals, Eighth Olrcuit. April 10, 1899.) No. 1,131.
1
APPlIlALSDf EQUITy...,RlIlCORD...,FAILURE
taken in an equity caUSe in a federal court must be made a of the recordalldcertified on appeal, otherWise it wJll be disregarded; an,4,'unless the recotd' contains some evidence to sustain the finding, the decree' will be reversed.'; ,
ro .FILE PROOF'S.
S.
EQlnTY'PRAOTICE-MANNER OF'TAKING ,PROOF's.
'.restimony can only be ,taken orallJrbetore the court on the hearing of an equity cause "upo;rqlue notice given, alf prescribed by previous order," with eql:1ity rule g7. It cannot be so. taken 011 an ex parte
Appeal from the Circuit of the United for the District ,ofNocth Dakota.' ,!', . E. A,sliley Mears (W.n. 'Standish,'(}n brief), for appellant. John"':-.Greene (John P.' 'CowaD,onblief),for appellee. bAillWEIiL,. THing, dtcuit Judges. · , . . ,. , , . i ' ,1 · . j
a greatdea.lofjrreleequitable title to. the in :fjlea t(), the which !o allege.AA ,fullY, as the pleading p,revailmg lD ,In eqwpi ,whatclaJJ;D he had; nor be file the ,as eXhibits to the answer. ·were ,p\>;t l;i;I'()ught, t9t a hearing. AI?pellee fi,led. a repli<:a,tioll to the answer. qIl 6, 1897, c()unsel ..fot appellee order; pp. .the rule setting the cause f?r hearing on Decemper other than the entry of this order mthe rule bo()k, was given, to .the appellant, which was "for,ftnal hearing upon the bill,answer, an4 to be at that tiine taken orally.beforethe, co:urt." that day there was a. hearing, and a decree in favor' of the appellee; The decree recites. i
Circuit tr9lq ireal plulrging! tQ est. 9T:'ieswte in it 10oselY.4rawn, and vant. set
d.ALDWELL,
hIs bili to'remove a An .answer, }Vas. filed, ,whIch,
cla,imed some in!er-
On