assignments of error rest upon the hypoth- | although numbered separately, but reiteresis that the order which the court be- ates grounds of error to be found in the low enforced was so arbitrary and un- others. In other words, the various grounds reasonable in its character as to transcend of error are so interblended in the several the limits of regulation, and to be in effect propositions as to render it impossible to a denial of due process of law, or a depriva- treat one as distinct from the other. All tion of the equal protection of the laws. the grounds, however, which the propositions assert as establishing the arbitrary and unreasonable character of the order complained of may be embraced under four general headings, which we proceed to dispose of. 1. That the order was arbitrary and unreasonable, because beyond the scope of the authority delegated to the corporation commission by the state law. As the public power to regulate railways and the private right of ownership of such property coexist and do not the one destroy the other, it has been settled that the right of ownership of railway property, like other property rights, finds protection in constitutional guaranties, and, therefore, wherever the power of regulation is exerted in such an arbitrary and unreasonable way as to cause it to be in effect not a regulation, but an infringement upon the right of ownership, such an exertion of power is void because repugnant to the due process and equal protection clauses of the 14th Amendment. The result, therefore, is that the proposition relied upon is well founded if it be that the order which the court below enforced was of the arbitrary and un-change of schedule, originally rendered the reasonable character asserted. As this proposition involves no Federal question, and is concluded by the judgment entered below, we put the subject out of view. And, although not cognate to this proposition, to clear the way for the consideration of the substantial issues, we also put aside the suggestion made in argument, that, as the Southern Railway, by its connection at Selma impossible, therefore In coming to consider the question just that road should have been compelled to restated it must be borne in mind that a store the connection by a modification of court may not, under the guise of protect- the schedule or schedules of the trains by ing private property, extend its authority it operated. We put this suggestion aside to a subject of regulation not within its because it does not seem to have been competency, but is confined to ascertaining seriously urged in the court below, and bewhether the particular assertion of the sides is so directly refuted by the findings legislative power to regulate has been exer- that we think it requires no further notice. cised to so unwarranted a degree as, in 2. The order was arbitrary and unreasonsubstance and effect, to exceed regulation, able, because, when properly considered, it and to be equivalent to a taking of proper-imposed upon the Coast Line a duty foreign ty without due process of law, or a denial to its obligation to furnish adequate faciliof the equal protection of the laws. We ties for those traveling upon its road. shall not, in analyzing the case, undertake to review in their order the ten propositions of error found in the record and reproduced in the briefs of counsel, as each proposition, ern R. Co. 161 U. S. 646, 665, 40 L. ed. 838,, 844, 16 Sup. Ct. Rep. 705; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 695, 40 L. ed. 849, 857, 16 Sup. Ct. Rep. 714; Wiscousin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900; Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53, 48 L. ed. 614, 24 Sup. Ct. Rep. 396; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 584, 50 L. ed. 596, 605, 26 Sup. Ct. Rep. 341; Atlantic Coast Line R. Co. v. Florida, 203 U. S. 256, 51 L. ed. 174, 27 Sup. Ct. Rep. 108; Seaboard Air Line R. Co. v. Florida, 203 U. S. 261, 51 L. ed. 175, 27 Sup. Ct. Rep. 109. Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 331, 29 L. ed. 636, 644, 6 Sup. Ct. Rep. 334, 388, 1191; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 455, This rests upon the assumption that, as the order was based not upon the neglect of the Coast Line to afford facilities for travel over its own road, but because of the fail33 L. ed. 970, 979, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 344, 36 L. ed. 176, 179, 12 Sup. Ct. Rep. 400; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 399, 38 L. ed. 1014, 1024, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 657, 39 L. ed. 567, 570, 15 Sup. Ct. Rep. 484; Chicago, B. & Q. R. Co. v. Chicago,. 166 U. S. 226, 241, 41 L. ed. 979, 986, 17 Sup. Ct. Rep. 581; Smyth v. Ames, 169 U. S. 466, 512, 42 L. ed. 819, 838, 18 Sup. Ct. Rep. 418; Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 172, 44 L. ed. 417, 420, 20 Sup. Ct. Rep. 336; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, 609, 26 Sup. Ct.. Rep. 341. here relied on to be without merit. Its error arises from assuming that adequate facilities were afforded at Selma or via Weldon and the Seaboard without reference to the order complained of. In view of the facts as to the connections at Selma and the Weldon route, found by the commission and reiterated by the court, which we have previously stated, and which we accept, we cannot escape drawing for ourselves the conclusion deduced both by the commission and the court below that the connections relied on were wholly inadequate for the public convenience, and, therefore, a state of things existed justifying the order. ure to furnish facilities to those traveling | ditional facilities, we think the proposition on the Coast Line who desired also to connect with and travel on the Southern road, therefore the order was in no just sense a regulation of the business of the Coast Line. This reduces itself to the contention that, although the governmental power to regulate exists in the interest of the public, yet it does not extend to securing to the public reasonable facilities for making connection between different carriers. But the proposition destroys itself, since at one and the same time it admits the plenary power to regulate, and yet virtually denies the efficiency of that authority. That power, as we have seen, takes its origin from the quasi public nature of the business in which the carrier is engaged, and embraces that business in its entirety; which, of course, includes the duty to require carriers to make reasonable connections with other roads, so as to promote the convenience of the traveling public. In considering the facts found below as to the connection in question, that is, the population contained in the large territory whose convenience was subserved by the connection, and the admission of the railroad as to the importance of the connection, we conclude that the order in question, considered from the point of view of the requirements of the public interest, was one coming clearly within the scope of the power to enforce just and reasonable regulations. 3. That the facilities afforded the public by the railroad were of such a character as to demonstrate that the extra burden which | would result from the compliance with the order was wholly arbitrary and unreasonable. 4. That, however otherwise just and reasonable the order may have been, it is inherently unjust and unreasonable because of the nature of the burden which it neces sarily imposes. This proposition is based on the hypothesis that the order, by necessary intendment, directed the Coast Line to operate an additional train, although such train could not be operated without a daily pecuniary loss. The premise upon which this proposition rests would seem to be irrelevant, since the court below, in one aspect of its opinion, treated the order of the commission as not requiring the operation of an extra train from Rocky Mount to Selma. Yet, as the facts found by the commission and which were affirmed by the court would indicate that it was considered that the operation of such train was the most direct and efficient means for making the ordered connection, and as the court considered and passed upon the duty of the railroad to comply with the order, even if to This rests upon the assumption that as do so it became necessary to operate the there were several existing daily connec-extra train at a loss, we think the propositions between trains of the Coast Line and those of the Southern at Selma, which might be availed of by those desiring to travel from eastern to western North Carolina and beyond, and as, besides, the proof established that another connection operating the same result was afforded by way of Weldon and the Seaboard Air Line to Raleigh and thence further west, therefore it was both arbitrary and unreasonable to superadd an unnecessary connection. Conceding, as must be done, that the nature and extent of the existing facilities furnished by a carrier for the public convenience are essential to be considered in determining whether an order directing an increase of such facilities is just and reasonable, and that the deficiency of facilities must clearly appear to justify an order directing the furnishing of new and ad27 S. C.-38. tion relied upon is open and must be decided. The contention is that the fact that some loss would result from the requirement that the extra train be operated, in and of itself, conclusively establishes the) unreasonableness of the order, and demonstrates that to give it effect would constitute a taking of property without due process of law, in violation of the 14th Amendment. Conclusive support for this contention, it is insisted, is afforded by the doctrine upheld in Smyth v. Ames, 169 U. S. 466, 42 L. ed 819, 18 Sup. Ct. Rep. 418, and the cases which preceded that decision. The cases relied upon, however, only involved whether a general scheme of maximum rates imposed by state authority prevented the railroads from earning a reasonable compensation, taking into view all proper considerations as to the value of *23 the property and the cost of operation, and, if so, whether the enforcement of rates so unreasonably low would be unjust and unreasonable, and, therefore, be confiscation,that is, a taking of property without due process of law, in violation of the Constitution of the United States. The principle upon which the cases in question proceeded was thus summed up by Mr. Justice Harlan, delivering the opinion of the court in Smyth v. Ames, 169 U. S. 526, 42 L. ed. 842, 18 Sup. Ct. Rep. 426: It is insisted that, although the case be not controlled by the doctrine of Smyth v. Ames, nevertheless the arbitrary and unreasonable character of the order results from the fact that to execute it would require the operation of a train at a loss, even if the result of the loss so occasioned would not have the effect of reducing the aggregate net earnings below a reasonable profit. The power to fix rates, it is urged, in the nature of things, is restricted to providing for a reasonable and just rate, and not to compelling the performance of a service for such a rate as would mean the sustaining of an actual loss in doing a particular service. To hold to the contrary, it is argued, would be to admit that a regulation might extend to directing the rendering of "A state enactment, or regulations made under the authority of a state enactment, establishing rates for the transportation of persons or property by railroad that will not admit of the carrier earning such compensation as, under all the circumstances, is just to it and to the public, would de-a service gratuitously or the performance of prive such carrier of its property without due process of law, and deny to it the equal protection of the laws, and would, therefore, be repugnant to the 14th Amendment of the Constitution of the United States." first one service and then another and still another, at a loss, which could be continued in favor of selected interests until the point was reached where, by compliance with the last of such multiplied orders, the sum total of the revenues of a railroad would But this case does not involve the en- be reduced below the point of producing a forcement by a state of a general scheme reasonable and adequate return. But these of maximum rates, but only whether an extreme suggestions have no relation to the exercise of state authority to compel a car- case in hand. Let it be conceded that if a rier to perform a particular and specified scheme of maximum rates was imposed by duty is so inherently unjust and unreason-state authority, as a whole adequately reable as to amount to the deprivation of munerative, and yet that some of such property without due process of law or a rates were so unequal as to exceed the denial of the equal protection of the laws. flexible limit of judgment which belongs to In a case involving the validity of an order the power to fix rates, that is, transcendenforcing a scheme of maximum rates, ofed the limits of just classification, and course the finding that the enforcement of amounted to the creation of favored class such scheme will not produce an adequate or classes whom the carrier was compelled return for the operation of the railroad, in to serve at a loss, to the detriment of other * and of itself*demonstrates the unreasonable-class or classes upon whom the burden of ness of the order. Such, however, is not the case when the question is as to the validity of an order to do a particular act, the doing of which does not involve the question of the profitableness of the operation of the railroad as an entirety. The difference between the two cases is illustrated in St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. Rep. 484, and Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900. But even if the rule applicable to an entire rate scheme were to be here applied, as the findings made below as to the net earnings constrain us to conclude that adequate remuneration would result from the general operation of the rates in force, even allowing for any loss occasioned by the running of the extra train in question, it follows that the order would not be unreasonable, even if tested by the doctrine announced in Smyth v. Ames and kindred cases. such loss would fall, that such legislation would be so inherently unreasonable as to constitute a violation of the due process and equal protection clauses of the 14th Amendment. Let it also be conceded that a like repugnancy to the Constitution of the United States would arise from an order made in the exercise of the power to fix a rate when the result of the enforcement of such order would be to compel a carrier to serve, for a wholly inadequate compensation, a class or classes selected for legislative favor, even if, considering rates as a whole, a reasonable return from the operation of its road might be received by the carrier. Neither of these concessions, however, can control the case in hand, since it does not directly involve any question whatever of the power to fix rates and the constitutional limitations controlling the exercise of that power, but is concerned solely with an order directing a carrier to furnish a facility which it is a part of its (205 U. S. 530) ROBERT M. GREEN, Plff. in Err., CHICAGO, V. BURLINGTON, & QUINCY RAILWAY COMPANY. Writ and process-service on foreign corporation-what is doing business. and general duty to furnish for the public convenience. The distinction between an order relating to such a subject and an order fixing rates coming within either of the hypotheses which we have stated is apparent. This is so because, as the primal duty of a carrier is to furnish adequate facilities to Soliciting through its district freight the public, that duty may well be compelled, although, by doing so, as an inci- and passenger traffic for a railway company passenger agent in Philadelphia, freight dent some pecuniary loss from rendering incorporated in Iowa and having its eastern such service may result. It follows, there-terminal at Chicago, is not doing business fore, that the mere incurring of a loss from within the eastern district of Pennsylvania the performance of such a duty does not, in such a sense that process can be served in and of itself, necessarily give rise to the upon the corporation there. conclusion of unreasonableness, as would be the case where the whole scheme of rates I' [No. 435.] 29, 1907. Decided April service of summons upon a foreign corpora- See same case below, 147 Fed. 767. Mr. Francis Rawle for defendant in er ror. *Mr. Justice Moody delivered the opinion of the court: was unreasonable, under the doctrine of Submitted April 8, 1907. Smyth v. Ames, or under the concessions made in the two propositions we have stated. Of course, the fact that the furnish- N ERROR to the Circuit Court of the ing of a necessary facility ordered may oc- United States for the Eastern District casion an incidental pecuniary loss is an of Pennsylvania to review a judgment makimportant criteria to be taken into viewing absolute a rule to show cause why the in determining the reasonableness of the order, but it is not the only one. As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance. A similar contention to the one we are considering was adversely passed upon in Wisconsin, M. & P. R. Co. ▼. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 | Sup. Ct. Rep. 115. That case involved the The plaintiff in error, & citizen of enforcement of an order of a state railroad Pennsylvania, brought an action in the commission directing a railroad company to circuit court for the eastern district of acquire the necessary land and make a Pennsylvania to recover damages for track connection for the purpose of afford-personal injuries alleged to have been ining facilities for the interchange of business curred in Colorado through the negligence with another road. The court, after holding that the order was not so unjust and unreasonable as to be repugnant to the Constitution of the United States, disposed of the contention that the order was void because compliance with it would necessitate the incurring of expense, by saying (179 U. S. 302, 45 L. ed. 201, 21 Sup. Ct. Rep. 120): "Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant in error. Worcester v. Norwich & W. R. Co. 109 Mass. 112; People ex rel. Green v. Dutchess & C. R. Co. 58 N. Y. 152, 163; People ex rel. Kimball v. Boston & A. R. Co. 70 N. Y. 569; People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 67, 58 Am. Rep. 484, 9 N.E. 856." Affirmed. of the defendant, against the defendant in error, a corporation created by the laws of the state of Iowa, and, therefore, for jurisdictional purposes, a citizen of that state. The return upon the writ shows a service "on Chicago, Burlington, & Quincy Railway Company, a corporation which is doing business in the eastern district of Pennsylvania by giving a true and attested copy to Harry E. Heller, agent of said corporation." The defendant appeared specially for the purpose of disputing jurisdiction. The circuit court held that the service was insufficient, because the defendant was not doing business within the district, and that decision is brought here by writ of error for review. The jurisdiction of the circuit court in this case was founded solely upon the fact that the parties were citizens of different states. In such a case the suit may be brought in the district of the residence of *533 either. Act of March 3, 1875, chap. 137, § 1 | the agent was sufficient; and one element [18 Stat. at L. 470, chap. 137], as corrected by act of August 13, 1888, chap. 866, § 1 (25 Stat. at L. 434, U. S. Comp. Stat. 1901, p. 508). But to obtain jurisdiction there must be service, and the service was upon the corporation in the eastern district of Pennsylvania. Its validity depends upon whether the corporation was doing business in that district in such a manner and to such an extent as to warrant the inference that, through its agents, it was present there. of its sufficiency is whether the facts show that the defendant corporation was doing business within the district. It is obvious that the defendant was doing there a considerable business of a certain kind, although there was no carriage of freight or passengers. In support of his contention that the defendant was doing business within the district in such a sense that it was liable to service there, the plaintiff cites Denver & R. G. R. Co. v. Roller, 49 L.R.A. 77, 41 C. C. A. 22, 100 Fed. 738, and Tuchband v. Chicago & A. R. Co. 115 N. Y. 437, 22 N. E. 360. The facts in those cases were similar to those in the present case. But in both cases the action was brought in the state courts, and the question was of the interpretation of a state statute and the jurisdiction of the state courts. The eastern point of the defendant's line of railroad was at Chicago, whence its tracks extended westward. The business for which it was incorporated was the carriage of freight and passengers, and the construction, maintenance, and operation of a railroad for that purpose. As incidental and collateral to that business it was The business shown in this case was, in proper, and, according to the business substance, nothing more than that of methods generally pursued, probably es- solicitation. Without undertaking to sential, that freight and passenger traffic formulate any general rule defining what should be solicited in other parts of the transactions will constitute "doing busicountry than those through which the de-ness" in the sense that liability to service fendant's tracks ran. For the purpose of is incurred, we think that this is not enough conducting this incidental business the de- to bring the defendant within the district fendant employed Mr. Heller, hired an office so that process can be served upon it. This for him in Philadelphia, designated him view accords with several decisions in the as district freight and passenger agent, and lower Federal courts. Maxwell v. Atchison, in many ways advertised to the public T. & S. F. R. Co. 34 Fed. 286; N. K. Fairthese facts. The business of the agent was bank & Co. v. Cincinnati, N. O. & T. P. R. to solicit and procure passengers and freight Co. 4 C. C. A. 403, 9 U. S. App. 212, 54 Fed. to be transported over the defendant's line. 420; Union Associated Press v. Times-Star For conducting this business several clerks Co. 84 Fed. 419; Earle v. Chesapeake & O. and various traveling passenger and freight R. Co. 127 Fed. 235. agents were employed, who reported to the agent and acted under his direction. He sold no tickets and received no payments for transportation of freight. When a prospective passenger desired a ticket, and applied to the agent for one, the agent took the applicant's money and procured from one of the railroads running west from Philadelphia a ticket for Chicago and a prepaid order, which gave to the applicant, upon his arrival at Chicago, the right to reccive from the Chicago, Burlington & Quincy Railroad a ticket over that road. Occasionally he sold to railroad employees, who already had tickets over intermediate lines, orders for reduced rates over the defendant's lines. In some cases, for the convenience of shippers who had received bills of lading from the initial line for goods routed over the defendant's lines, he gave in exchange therefor bills of lading over the defendant's line. In these bills of lading it was recited that they should not be in force until the freight had been actually received by the defendant. The question here is whether service upon The judgment of the Circuit Court is affirmed. (205 U. S. 521) SOLON L. FRANK and Samuel Frank, Doing Business under the Name of S. L & S. Frank, Plffs. in Err., V. JOSEPH VOLLKOMMER, Jr., as Trustee in Bankruptcy of the Estate of Jacob Vogt, a Bankrupt, and Jacob Vogt. Courts-conflict of jurisdiction-interference with bankruptcy court. 1. The possession by a court of bankruptcy of the proceeds of a sale of the chattels covered by a mortgage given by the bankrupt, which sale was had pursuant to an agreement, approved by that court, providing for the deposit of the net proceeds by a temporary receiver as a special fund to which the lien, if any, of the chattel mortgage, was transferred, does not deprive a state court of its jurisdiction, under the bankrupt act of July 1, 1898 (30 Stat. at L 544, chap. 541, U. S. Comp. Stat. 1901, p. 3431), § 23b, of a suit by the trustee in bankruptcy to set aside the mortgage as in fraud of creditors. *534 |