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sentially the same as a reciprocal switching | necting lines; but this shall not be conarrangement,' constituting a facility for the strued as requiring any such common carinterchange of traffic between the lines of rier to give the use of its tracks or terminal the two railroads, within the meaning of facilities to another carrier engaged in like the second paragraph of § 3 of the Inter- business.” state Commerce Act. That each railroad It is clear, I think, that in the second does not separately switch for the other, paragraph of this section the word "facili. but that such switching operations are car. ties” is employed in two meanings. Where ried on jointly, is not, in our opinion, ma- it first occurs, it means those acts or operaterial. If it were, all reciprocal switching tions that facilitate or render easy the inoperations carried on by two railroads at terchange of , traffic; while, in the final any connecting point of several carriers clause, “to give the use of its tracks or could be easily put beyond the reach of the terminal facilities," the words "terminal act, and its remedial purpose defeated, by facilities” are employed in a figurative sense the simple device of employing a joint and as equivalent to "terminal properties.” agency to do such reciprocal switching. The This is obvious from the association togeth. controlling test of the statute, however, er of tracks and terminal facilities as things lies in the nature of the work done, rather subject to use. And the same words are than in the particular device employed or used in the same sense in the 1906 amendthe names applied to those engaged in it.” ment to § 1 of the act (chap. 3591, 34 Stat.

With these views I agree. Elaborate at L. 584, Comp. Stat. 1913, § 8563), by argument is made in behalf of appellants which the definition of the term "railroad” in the effort to show that the method of was expanded so as to include "all switches, operating the Nashville Terminals is not spurs, tracks, and terminal facilities of "reciprocal switching" within a certain nar. every kind used or necessary in the transrow definition of that term. This is an importation of the persons or property desig. material point; the real question being nated herein." whether it constitutes a facility for the in- There is nothing in the order of the Com. terchange of traffic between the respective mission now under review that requires aplines of appellants, and for the receiving, pellants or either of them, or their agency, forwarding, and delivering of property be the Nashville Terminals, to give the use of tween connecting lines, within the meaning tracks or terminal facilities to the Tenof 3 of the Interstate Commerce Act nessee Central, either physically or in any (chap. 104, 24 Stat. at L. 380, Comp. Stat. other sense, within the meaning of the final 1913, § 8565), so that it must be rendered clause of § 3. It requires them merely to to the patrons of the Tennessee Central interchange interstate competitive traffic to upon equal terms with those of the Louis- and from the tracks of the Tennessee Cen. ville & Nashville and the Nashville & Chat-tral on the same terms as interstate nontanooga. I cannot doubt that it bears this competitive traffic, so long as they intercharacter.

change both kinds of traffic with each other The section reads as follows: "Sec. 3. on the same terms; and also to establish That it shall be unlawful for any common and apply to the switching of interstate carrier subject to the provisions of this act traffic to and from the Tennessee Central to make or give any undue or unreasonable rates and charges not different from those preference or advantage to any particular that they contemporaneously maintain with person, company, firm, corporation, or local respect to similar shipments as between ity, or any particular description of traffic, themselves. Undoubtedly the expenditures in any respect whatsoever, or to subject any made by appellants in the construction of particular person, company, firm, corpora- the joint terminal property, so far as that tion, or locality, or any particular descrip- property is used in interchange switching, tion of traffic, to any undue or unreasonable is an element to be taken into consideration prejudice or disadvantage in any respect in fixing the amount of the switching whatsoever.

charges. And the same is true with respect "Every common carrier subject to the pro- to the value of the separately owned tracks visions of this act shall, according to their of appellants, so far as necessarily used in respective powers, afford all reasonable, mutual interchanges. prope, and equal facilities for the inter- The practice of the Louisville & Nashville change of traffic between their respective and the Nashville & Chattanooga in refusing lines, and for the receiving, forwarding, and to interchange competitive on the same delivering of passengers and property to and terms as noncompetitive traffic with the from their several lines and those connect. Tennessee Central, while interchanging both ing therewith, and shall not discriminate in kinds of traffic as between themselves, was their rates and charges between such con-'found by the Commission to be unduly dis

37 S. C.-5.

excuse,

criminatory, there being no substantial dif- ties in question and used them alone, it ference in the conditions of the interchange, could not be deemed to discriminate against nor any increased cost of interchanging the Tennessee Central because of a mere competitive as compared with noncompeti- refusal to switch for it in the interchange tive traffic.

of traffic. Of course, if it refused all conThe tracks included in the joint terminal necting carriers alike, it could not be held arrangement of appellants include 8.10 miles for discrimination. But whether it would of main and 23.80 miles of side tracks sepa- be at liberty to refuse to switch for the rately owned by the Louisville & Nashville, Tennessee Central would depend upon cir12.15 miles of main and 26.37 miles of side cumstances; for instance, upon whether the tracks separately owned by the Nashville Interstate Commerce Commission, pursuant & Chattanooga, and some yard tracks owned to its authority under § 15 of the act, as by the Louisville & Nashville Terminal Com- amended in 1910 (chap. 309, 36 Stat. at L, pany, whose entire stock is owned by the 552, Comp. Stat. 1913, § 8583), should esLouisville & Nashville R. R. Company. It tablish the two lines as a through route, may be conceded that, by virtue of the lease or (without that) should determine upon from the Terminal Company to the appel. adequate evidence that the refusal of switchlant railroads, even as modified in Decem- ing privileges was a failure to afford reasonber, 1902, there remains in some sense a able and proper facilities for the interjoint tenure of the property of the Ter- change of traffic between the connecting minal Company. But, in my view, the lines under $ 3. Car interchange between question of the ownership of the property connecting lines was made by the 1910 is entirely aside from the real point. The amendment of § 1 of the act a positive duty discrimination charged and found by the on the part of the carrier, even without acCommission is not so much in the use of tion by the Commission. 36 Stat. at L, 545, terminal property as in the performance chap. 309, Comp. Slat. 1913, § 8563. of interchange services; and for such dis- I deem it a most material fact that the crimination a community of interest in the appellants already interchange noncompetiproperty affords neither justification nor tive traffic with the Tennessee Central, upon

terms like those upon which they interSo far as the nondiscriminatory perform change both competitive and noncompetitive ance of those services requires that cars traffic between themselves. So far as their from the Tennessee Central shall be admit- method of doing this amounts to an interted to the terminal tracks of the Louisville change of trackage rights they have by their & Nashville and the Nashville & Chatta voluntary action thrown open the use of nooga, and to tracks in which these com- their terminals to all branches of traffic, panies have a joint interest, this is so only excepting 80 far they discriminate because appellants have, as between them against competitive traflic over the Tennesselves, and also as regards trafic from the see Central. Not only so, but the CommisTennessce Central, thrown their terminals sion has expressly found (33 Inters. Com. open to the public use. The argument for Rep. 82) that the Louisville & Nashville appellants rests upon the essential fallacy will switch competitive coal and other comthat the terminal facilities are, in an abso-petitive traffic to and from the Tennessee lute sense, and for all purposes, private Central, the interchange being usually efproperty. But they, like all other parts of fected at Shops Junction and over the rails the railroad line, are, with respect to their of the Nashville & Chattanooga. But the use, devoted to the benefit of the public. Louisville & Nashville insists upon charging And the final clause of § 3, while it pro- local rates as if for transportation between tects each carrier to a certain extent in the Nashville and Overton, Tennessee, which separate use of its terminal property, does amount to from $12 to $36 per car, and are 80 not otherwise than it protects its par- therefore in effect prohibitory. For a time ticular use of the main line of railroad. the Nashville & Chattanooga in like manner “Tracks" are mentioned together with "ter- offered to perform the same switching servminal facilities," and the same rule is ap- ice to and from the Tennessee Central at its plied to both. The fact that a carrier owns local rates, and published a terminal tariff its own terminals is no more an excuse for December 14, 1913, expressly providing that discriminatory treatment of its patrons such local rates would apply to competitive with respect to services performed therein traffic from and destined to the Tennessee than its ownership of the main line is an Central. This, however, was revoked shortexcuse for discrimination with respect to ly after the complaint in the present case transportation thereon.

was filed. There is here a very plain disIt is said that if either of the appellants crimination, found by the Commission to were the sole owner of the terminal proper: 'be an undue discrimination, not merely

as

against the Tennessee Central, but against , et seq., 59 L. ed. 616, 625, P.U.R.1915B, 261,

“particular description of traffic,” which 35 Sup. Ct. Rep. 370. In these cases many is distinctly prohibited by $ 3. The conduct of the same arguments that are here adof appellants is quite analogous to the mak- vanced were considered and overruled by the ing of a discrimination in the charge for court. The latter case concerned the switchcarriage, not because of any difference in ing of interstate carload traffic between in. hering in the goods or in the cost of the dustrial tracks and junction points within service rendered in transporting them, but the switching limits at New Castle, Pennupon the mere basis of the ownership of the sylvania. The Pennsylvania Company ungoods,-a discrimination condemned by this dertook to sustain a practice of doing such court in Interstate Commerce Commission switching at $2 per car for three railroads v. Delaware, L. & W. R. Co. 220 U. S. 235, while refusing to do it for the Buffalo, Roch252, 55 L. ed. 448, 456, 31 Sup. Ct. Rep. ester, & Pittsburgh, upon the ground of its 392.

sole ownership of the terminals and the fact The present system of interchanging traf. that the three other carriers were in a posi. fic between appellants was established in tion, either at New Castle or elsewhere, August, 1900, a year or two before the line to offer it reciprocal advantages fully comof the Tennessee Central was constructed pensatory for the switching done for them into Nashville. Emphasis was laid upon in New Castle, whereas the Buffalo, Rochthis, in argument, as refuting the sugges- ester, & Pittsburgh was not in a position tion that the arrangement could be deemed a to offer similar advantages. The Interstate "device" to avoid the discrimination clause Commerce Commission (29 Inters. Com. of $ 3 of the Interstate Commerce Act. The Rep. 114) overruled this contention, and findings of the Commission show, however in this was sustained by the district court (33 Inters. Com. Rep. 81), that when the (214 Fed. 445), and by this court. We Tennessee Central entered Nashville it was there held (236 U, S. 361) that the ques. only after strong opposition from the Louis- tion what was an undue or unreasonable ville & Nashville; and (p. 79) that, prior preference or advantage under § 3 of the to the year 1898, the people of Nashville Interstate Commerce Act was a question not had become desirous of better terminal of law, but of fact; and that if the order facilities, particularly of a union passenger of the Commission did not exceed its con. depot, and an ordinance authorizing a constitutional and statutory authority and was tract to that end between the city and the not unsupported by testimony, it could not Terminal Company was proposed, contain be set aside by the courts; held (p. 363), ing a proviso that the terminal facilities that the provisions of g 3, although that secshould also be available on an equitable tion remains unchanged, must be read in basis to railroads which might be built in connection with the amendments of 1906 the future. The present appellants opposed and 1910 to other parts of the act, and this proviso and an ordinance omitting it that by these amendments the facilities for was passed, but was vetoed by the mayor on delivering freight at terminals were brought account of the omission. It clearly enough within the definition of transportation to appears, therefore, that the agreement of be regulated; and also (pp. 368, 369) that August, 1900, was made by appellants in the order did not amount to a compulsory view of the probability of some other road taking of the use of the Pennsylvania tracks entering Nashville thereafter.

by another road within the inhibition of But were it otherwise, the result should the final clause of g 3; no right being given be the same. The obligation to avoid dis- to the Buffalo road to run its cars over the crimination and to afford "all reasonable, terminals of the Pennsylvania Company, or proper, and equal facilities for the inter to use or occupy its stations or depots for change of traffic" is not qualified by any purposes of its own. rights of priority. The new road is a serv. In the former case between the present ant of the public, equally with the others; parties (Louisville & N. R. Co. v. United subject to the same duty and entitled, for States, 238 U. S. 1, 59 L. ed. 1177, 35 Sup. its patrons, to demand reasonable and im- ct. Rep. 696), we sustained the district partial performance of the reciprocal duty court (216 Fed. 672) in refusing an injuncfrom carriers that preceded it in the field. tion to restrain the putting into effect of

In my opinion the present case is con. an order of the Commission (28 Inters. trolled by our decisions in the former case Com. Rep. 533, 540) requiring appellants between the same parties (Louisville & N. to interswitch interstate coal with the TenR. Co. v. United States, 238 U. S. 1, 18, 19, nessee, Central as they did with each other. 59 L. ed. 1177, 1183, 1184, 35 Sup. Ct. Rep. The findings of the Commission (p. 542) 696), and the earlier case of Pennsylvania recognized that the terminals were in part Co. v. United States, 236 U. S. 351, 366 'jointly owned and in part the separate prop

error.

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erty of the two appellants. The district is barred by the statute of limitations is a court (216 Fed. 682, 684) alluded to this i bar-irrespective of any question of former fact. And this court (238 U. S. 17-20) i jeopardy—to a second prosecution under a did not ignore that fact, but laid it aside new indictment for the same offense. as immaterial, declaring: “If the carrier, cent. Dig. $$ 313-319; Dec. Dig. 177.)

[Ed. Note.-For other cases, see Criminal Law, however, does not rest behind that statutory shield [the final clause of § 3), but

[No. 412.] chooses voluntarily to throw the terminals open to many branches of traffic, it to that Argued October 19 and 20, 1918. Decided

Having extent makes the yard public.

December 4, 1916. made the yard a facility for many purposes

N ERROR to the District Court of the and to many patrons, such railroad facility I is within the provisions of g 3 of the stat- of New York to review a judgment quash

United States for the Southern District ute, which prohibits the facility from being ing an indictment because of a previous used in such manner as to discriminate

adjudication upon a former indictment for against patrons and commodities.” If the decision reached in the present case

the same offense that it was barred by the

statute of limitations. Affirmed. is adhered to, and remains uncorrected by

The facts are stated in the opinion. remedial legislation, it will open a wide

Assistant Attorney General Warren and door to discriminatory practices repugnant alike to the letter and the spirit of the Act Mr. A. J. Clopton for plaintiff in error.

Messrs. Benjamin Slade, L. Laflin Kel. to Regulate Commerce.

logg, and Abram J. Rose for defendants in Mr. Justice Day, Mr. Justice Brandeis, and Mr. Justice Clarke concur in this dissent.

Mr. Justice Holmes delivered the opinion of the court:

The defendant in error and others were (242 U. S. 85) UNITED STATES, Piff. in Err.,

indicted for a conspiracy to conceal assets

from a trustee in bankruptcy. Act of July HERMAN H. OPPENHEIMER et al.

1, 1898, chap. 541, § 29, 30 Stat. at L. 544,

554, Comp. Stat. 1913, $$ 9585, 9613. The COURTS O385(1)-APPEAL By GOVERN defendant Oppenheimer set up a previous MENT IN CRIMINAL CASE "SUSTAINING

adjudication upon a former indictment for SPECIAL PLEA IN BAR."

1. A judgment of a Federal district the same offense that it was barred by the court quashing an indictment because of a one-year statute of limitations in the Bankprevious adjudication upon a former indict- ruptcy Act for offenses against that act, ment for the same offense, that it was $ 290,

-an adjudication since held to be barred by the statute of limitations, is one wrong in another case. United States v. sustaining a special plea in bar, within the Rabinowich, 238 U. S. 78, 59 L. ed. 1211, 35 meaning of the Act of March 2, 1907.(34 Sup. Ct. Rep. 682. This defense was preStat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704), governing the right of the sented in four forms entitled respectively, government to a review in a criminal case, demurrer, motion to quash, plea in abatealthough the defense was presented by de ment, and plea in bar. After motion by murrer and motion to quash, and the court the government that the defendant be regranted what was styled the motion to quired to elect which of the four he would quash.

stand upon, he withdrew the last-mentioned [Ed. Note.--For other cases, see Courts Cent. two, and subsequently the court granted Dig. $$ 1022-1025, 1031; Dec. Dig. 385(1).] Courts Ow385(1)—APPEAL – By Govern- what was styled the motion to quash, or

MENT IN CRIMINAL CASE,"SUSTAINING dered the indictment quashed, and disSPECIAL PLEA IN BAR."

charged the defendant without day. The 2. The clause of the Act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, Comp: ing the so-called motion to quash as a plea

government brings this writ of error, treatStat. 1913, § 1704), giving a writ of error to the United States to review a decision in bar, which in substance it was. United of a Federal district court in a criminal case States v. Barber, 219 U. S. 72, 78, 55 L. ed. sustaining a special plea in bar, when the 99, 101, 31 Sup. Ct. Rep. 209. defendant has not been put in jeopardy, is

The defendant objects that the statuto not limited, like the earlier clauses of that statute, to judgments based on the invalid giving a writ of error to the United States ity or construction of the statute upon from the decision or judgment sustaining which the indictment is founded.

a special plea in bar, when the defendant has [Ed. Note.-For other cases, see Courts, Cent. not been put in jeopardy, Act of March 2, Dig. $$ 1022-1025, 1031; Dec. Dig. On385(1).)

1907, chap. 2564, 34 Stat. at L. 1246, CRIMINAL LAW 177–RES JUDICATA DISMISSAL OF INDICTMENT.

Comp. Stat. 1913, § 1704, is limited like 3. A judgment dismissing an indict. the earlier clauses to judgments based ment on the ground that the offense charged 'on the invalidity or construction of the

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We may

statute upon which the indictment is free as matter of substantive law is as founded. But that limitation expressly in good as another. A plea of the statute of each of the two preceding paragraphs of the limitations is a plea to the merits (United statute is not repeated here. The language States v. Barber, 219 U. S. 72, 78, 55 L. ed. used in United States v. Keitel, 211 U. S. 99, 101, 31 Sup. Ct. Rep. 209), and however 370, 399, 53 L. ed. 230, 245, 29 Sup. Ct. the issue was raised in the former case, Rep. 123, had reference only to the con- after judgment upon it, it could not be restruction of the indictment and to its suf- opened in a later prosecution. ficiency upon matters not involving a stat- adopt in its application to this case the ute, in cases brought up by the United statement of a judge of great experience in States under the earlier clauses of the act. the criminal law: “Where a criminal That quoted from United States v. Kissel, charge has been adjudicated upon by a court 218 U. S. 601, 54 L. ed. 1168, 31 Sup. Ct. having jurisdiction to hear and determine Rep. 124, so far as material also meant it, the adjudication, whether it takes the that the sufficiency of the indictment would form of an acquittal or conviction, is final not be considered here upon a writ of error as to the matter so adjudicated upon, and to the allowance of a plea in bar. In view may be pleaded in bar to any subsequent of our opinion upon the merits, we do not prosecution for the same offense. .. In discuss the preliminary objections at great this respect the criminal law is in unison er length.

with that which prevails in civil proceedUpon the merits the proposition of the ings.” Hawkins, J., in Reg. v. Miles, L. R. government is that the doctrine of res 24 Q. B. Div. 423, 431. The finality of a judicata does not exist for criminal cases previous adjudication as to the matters deexcept in the modified form of the 5th termined by it is the ground of decision Amendment, that a person shall not be sub- in Com. v. Evans, 101 Mass. 25, the crimiject for the same offense to be twice put in nal and the civil law agreeing, as Mr. Jusjeopardy of life or limb; and the conclusion tice Hawkins says. Com. v. Ellis, 160 Mass. is drawn that a decision upon a plea in bar 165, 35 N. E. 773; Brittain v. Kinnaird, 1 cannot prevent a second trial when the de- Brod. & B. 432, 129 Eng. Reprint, 789, 4 fendant never has been in jeopardy in the J. B. Moore, 50, Gow, N. P. 164, 21 Resense of being before a jury upon the facts vised Rep. 680. Seemingly the same view of the offense charged. It seems that the was taken in Frank v. Mangum, 237 U. S. mere statement of the position should be 309, 334, 59 L. ed. 969, 983, 35 Sup. Ct. its own answer. It cannot be that the Rep. 582, as it was also in Coffey v. United safeguards of the person, so often and so States, 116 U. S. 436, 445, 29 L. ed. 684, rightly mentioned with solemn reverence, 687, 6 Sup. Ct. Rep. 437. are less than those that protect from a lia- The safeguard provided by the Constitu. bility in debt. It cannot be that a judg. tion against the gravest abuses has tended ment of acquittal on the ground of the to give the impression that when it did not statute of limitations is less a protection apply in terms, there was no other principle against a second trial than a judgment up that could. But the 5th Amendment was on the ground of innocence, or that such not intended to do away with what in the a judgment is any more effective when en- civil law is a fundamental principle of justered after a verdict than if entered by the tice (Jeter v. Hewitt, 22 How. 352, 364, government's consent before a jury is em- 16 L. ed. 345, 348) in order, when a man paneled; or that it is conclusive if entered once has been acquitted on the merits, to upon the general issue (United States v. enable the government to prosecute him a Kissel, 218 U. S. 601, 610, 54 L. ed. 1168, second time. 1179, 31 Sup. Ct. Rep. 124), but if upon Judgment affirmed. special plea of the statute, permits the defendant to be prosecuted again. We do not

(242 U. S. 56) suppose that it would be doubted that a

ATLANTIC CITY RAILROAD COMPANY, judgment upon a demurrer to the merits

Piff, in Err. would be a bar to a second indictment in the same words. State v. Fields, 106 Iowa,

LEWIS S. H. PARKER. 406, 76 N. W. 802; Whart. Crim. Pl. & Pr.

MASTER AND SERVANT 286(13)-TRIAIS 9th ed. § 406.

QUESTION FOR JUBY-NEGLIGENCE-SAFEOf course, the quashing of a bad indict- TY APPLIANCES. ment is no bar to a prosecution upon a There was enough evidence to go to good one, but a judgment for the defendant the jury on the question whether a railway upon the ground that the prosecution is company had failed to furnish such couplers barred goes to his liability as matter of sub-required by the Safety Appliance Act of

"coupling automatically by impact” as are stantive law, and one judgment that he is 'March 2, 1893 (27 Stat. at L. 531, chap.

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