upon the findings and determination of the said Commission with respect thereto, agreeably to the requirements of the statute in such case made and provided, which said order now remains in full force and effect, never having been vacated, set aside, altered, modified, or changed in any respect whatever, and is now on file in the office of the said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit D.

That thereafterwards, to wit, on the 23d day of February, 1888, the said Commission, agreeably to the provisions of the law in that regard, duly caused a properly authenticated copy of its said report in respect thereto as aforesaid, together with the order and notice aforesaid, to be delivered to the said defendant.

And thereupon the petitioner shows that it has not been made to appear to the said Commission that the said defendant has ceased and desisted from the violations of law set forth in the said report and order of the said Commission, but on the contrary thereof the said defendant, unmindful of its duty in that regard and of the decision and determination of the said Commission, as stated in the report aforesaid, has, through its officers, servants, and attorneys, wholly disregarded and set at naught the authority and order of the said Commission in that regard, and has willfully and knowingly violated and disobeyed the said order, and has from the time of the issuance and service of the said order and notice, as herein before set forth, hitherto wholly neglected and refused and still does neglect and refuse to comply with the same, in this that the said defendant did not cease and desist from subjecting colored passengers to undue and unreasonable predjudice and disadvantage, and also in that having had since the promulgation of the order aforesaid a rule in regard to the transportation of passengers over its line of road separating the colored passengers from the white passengers, it has not furnished to all passengers carried by it from points without the State of Georgia to points within the State of Georgia, paying the same fare, cars in all respects equal, and provided with the same comforts and accommodation and protection for such travelers, but on the contrary has maintained a rule during all the time aforesaid, to wit, from thence hitherto, under which it has furnished to colored passengers, paying the same fare, cars which were not provided with the same comforts and accommodation and protection which during the same time were furnished to white passengers.

And the said Interstate Commerce Commission further shows that the said defendant was heretfore, to wit, on the 9th day of February, 1889, also duly impleaded in another controversy, not requiring a trial by jury as provided by the seventh amendment to the Constitution of the United States, before the said Interstate Commerce Commission, upon anothor petition of him, the said W. H. Heard, a citizen of the United States, then residing at Philadelphia, in the State of Pennsylvania, for another alleged violation on the part of the said defendant of the provisions of the said act entitled "An act to regulate commerce," as at large and more fully appears by the said last-mentioned petition on file in the office of the said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Ex hibit E.

That thereafterwards, to wit, on the 5th day of March, 1889, the said Georgia Railroad Company filed its answer to the last above-mentioned petition of the said W. H. Heard, as at large and more fully appears in and by the said answer on file in the office of the said Commis

sion, a copy whereof is hereunto annexed as a part of this petition, the same being marked Exhibit F.

That thereafterwards, the said last-mentioned complaint being at issue upon the pleadings last aforesaid, the same duly came on for investigation and hearing before the said Interstate Commerce Commission, duly and legally assembled for that purpose at the city of Washington, in the District of Columbia, on the 10th day of April, 1889, when said complainant, the said W. H. Heard, and the said defendant, the said Georgia Railroad Company, again duly appeared by their respective officers and attorneys, and thereupon the said last-mentioned complaint proceeded to a hearing and determination.

That at the said last-mentioned hearing it was made to appear to the satisfaction of the said Commission that the said defendant had violated in certain respects the provisions of the said act entitled "An act to regulate commerce," as it was stated to have been violated by it in the said last-mentioned petition herein before referred to as a part hereof, and thereupon said Commission upon the 8th day of May, 1889, duly and legally determined the matters and things in controversy and at issue between the said parties in that regard, and made a report in writing in respect thereto, which included the findings of fact upon which the conclusions of said Commission were based, as at large and more fully appears in and by the report of the determination of the said Commission in regard thereto, on file in the office of the said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit G.

That thereafterwards, to wit, on the 9th day of May, 1889, upon the determination of the said last-mentioned cause as aforesaid, the said Commission duly formulated an order and notice in relation to the matters and things stated and charged in the said last-mentioned petition based upon the findings and determination of the said Commission with respect thereto, agreeably to the requirements of the statute in such case made and provided, which said last-mentioned order now remains in full force and effect, never having been vacated, set aside, altered, modified, or changed in any respect whatever, and is now on file in the office of the said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit H.

That afterwards, to wit, on the 10th day of May, 1889, the said Commission, agreeable to the provisions of the law in that regard, duly caused a properly authenticated copy of its said last-mentioned report in respect thereto, as aforesaid, together with the order and notice aforesaid, to be delivered to the said defendant.

:

And thereupon the petitioner shows that it has not been made to appear to the said Commission that the said defendant has ceased and desisted from the violations of law set forth in the said last-mentioned report and order of the said Commission, but on the contrary thereof the said defendant unmindful of its duty in that regard and of the decision and determination of the said Commission, as stated in its lastmentioned report as aforesaid, has, through its officers, servants, and attorneys wholly disregarded and set at naught the authority and order of the said Commission in that regard, and has willfully and knowingly violated and disobeyed the said order and notice as herein before set forth and has hitherto wholly neglected and refused, and still does neglect and refuse, to comply with the same, in this that the said defendant did not cease and desist without further delay from subjecting colored passengers to undue and unreasonable prejudice and disadvanS. Mis. 31- -20

tage, and also in that having had since the promulgation of the last mentioned order aforesaid, a rule in regard to the transportation of passengers over its line of road separating the colored passengers from white passengers, it has not furnished to all passengers carried by it from points without the State of Georgia to points within the State of Georgia, paying the same fare, cars in all respects equal and provided with the same comforts and accommodations for such travelers, nor has the said defendant furnished the equal protection required by law to him, the said W. H. Heard, or persons of his race and color engaged in interstate travel as passengers upon its passenger trains, the same as it furnishes to passengers who are of the white race, against disorderly conduct on the part of other passengers and other persons, but, on the contrary, have maintained a rule during all the time aforesaid, to wit, from thence to hitherto, under which it has furnished to such colored passengers paying the same fare, cars which were not provided with the same comforts and accommodation which during the same time were furnished to white passengers; and also during all the time last aforesaid it has not furnished the equal protection required by law to him, the said W. H. Heard, or to other persons of his race and color engaged in interstate travel as passengers upon its passenger trains, but has permitted the said Heard and such other persons to be subjected to abuse, inconvenience, and discomfort by reason of the disorderly conduct on the part of other passengers, as well as of the emyloyés of the said defendant and other persons.

And the said Interstate Commerce Commission further shows that the two said several orders of the said Interstate Commerce Commission above set forth have been continuously violated, disobeyed, and set at naught from the time of their promulgation aforesaid until the present time, to wit, at the different stations on the line of its said road in the northern district of Georgia aforesaid and within the jurisdiction of this honorable court.

Wherefore the petitioner prays—

1. That a subpoena or other suitable process may issue according to the course of equity, requiring the said Georgia Railroad Company to appear at such time and places as this honorable court may determine, then and there to make full, complete, and perfect answer to all the matters and things, hereinabove stated and charged as fully and particularly as if the said company was distinctly and specially interrogated in regard thereto, without verifying said answer by oath, which said verified answer is hereby specially waived.

2. That upon the filing of this petition an order may be passed by this honorable court directing the method of service of notice of the pendency of this proceeding.

3. That such order or orders may be passed pending the cause as will secure a speedy hearing and determination of the matters and things stated and charged in the foregoing petition.

4. That such order or orders may be passed pending the cause as may be necessary for the prosecution of all such inquiries as the court may think needful to enable it to form a just judgment of the matters and things stated and charged in the foregoing petition.

5. That an order may be entered pending the cause granting to the petitioner a writ of injunction or other proper process, mandatory or otherwise, to restrain the said defendant, its officers, servants, and attorneys from further continuing in its violation of and disobedience to the said order of the said Commission, and that upon final hearing such injunction may be made perpetual.

6. That a decree may be entered, if it shall seem meet to this honorable court, requiring the said defendant to pay such sum of money, not exceeding the sum of $500, for every day after a day to be named in said decree that it shall fail to obey the said injunction or other proper process.

7. For such other and further relief in the premises as to the court may seem meet and the equities of the petitioner's cause may require. THE INTERSTATE COMMERCE COMMISSION,

[L. S.]

By EDW. A. MOSELEY,

The Secretary thereof, thereunto duly authorized.

IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.

In equity.

THE INTERSTATE COMMERCE COMMISSION vs. THE GEORGIA RAILroad Company.

The Georgia Railroad Company, in pursuance of the order passed in the above-stated case, shows as cause why the prayer of the petition should not be granted as follows, to wit:

I.

This defendant respectfully demurs to said petition and, as cause of said demurrer, says that section 3 of the act to regulate commerce, upon which section the petition is founded, has no application to such facts as are set out in the petition.

II.

Without prejudice to its aforesaid demurrer, this defendant, answering said petition, adopts as a part of this its answer, the answer (with the exhibit thereto), which this respondent made before the Interstate Commerce Commission in the case of William H. Heard versus The Georgia Railroad Company, February 28, 1889, which said answer (with the exhibit thereto), is annexed to the petition in this cause as Exhibit F.

Further answering, this defendant says, that the order of the Interstate Commerce Commission, which this present proceeding seeks to enforce, was rendered by said Interstate Commerce Commission under the following circumstances:

The petition and answer, upon which the hearing before said Commission was held, raised no issue, except as to the condition of the car complained of, its appointments, accommodations, and close connection with the smoking car, as will fully appear by reference to Exhibits E and F of the petition in this cause.

Nevertheless the Interstate Commerce Commission, without requiring the pleadings to be amended, and over the objection of this defendant, and without allowing this defendant a postponement to procure testimony upon a question not raised by the pleadings, entered upon the investigation of the conduct of the conductor and white passengers, heard a mass of false testimony which the defendant, if opportunity had been

given it, could have easily refuted before any impartial tribunal, and rendered judgment against the defendant under circumstances abhorrent to judicial methods and traditions. In this connection this defendant refers to the following language on page 13 of Exhibit G of the pending petition, (page 69 of pamphlet), to wit:

We have held that this required us to report and to act upon a violation of the statute, discovered by evidence before us in an investigation, although it had not been the subject of complaint in the petition.

IV.

Wherefore, this defendant denies that it was ever duly impleaded in the controversy upon which the order now sought to be enforced was issued; and denies that it ever had its day in court (if the Interstate Commerce Commission be a court) in said controversy, or that it ever had a fair, just, and impartial hearing in said controversy, according to the universal established usage of the courts of the land.

V.

Finally, this defendant says: It was not at the time of the filing of the petition in this honorable court, and is not now subjecting colored passengers to undue and unreasonable prejudice and disadvantage, in violation of the act to regulate commerce.

That it does now, and did at the time of the filing of the petition, furnish to all passengers paying the same fare, cars substantially equal, and substantially as well provided with comforts and accommodations for travelers;

That it does now furnish, and has ever furnished the equal protection required by law alike to white and colored passengers.

And having fully answered, this defendant prays to be hence dismissed, etc.

Jos. B. CUMMING,
GEORGIA HILLZER,
Defendant's Solicitors.

I, Jos. B. Cumming, counsel for the defendant, the Georgia Railroad Company, do certify that the foregoing demurrer is well founded in law.

Jos. B. CUMMING,
Defendant's Solicitor.

Charles H. Phinizy, being duly sworn, deposes and says that he is the acting general manager of the Georgia Railroad Company, and that the foregoing demurrer of said company is not interposed for delay. C. H. PHINIZY.

Sworn to and subscribed before me this 26th day of December, 1891. IRWIN ALEXANDER, Deputy Clerk U. S. Circuit Court, Southern District, Georgia.