The charge of unfair competition being established, it follows that equity will afford relief by injunction to prevent such unfair competition for the future. Several acts of unfair competition having been shown, we are warranted in concluding that petitioner is willing to continue that course of conduct unless restrained. Hennessy V. Wine Growers' Asso. 212 Fed. 308, 311. It remains to consider the character and extent of this relief.

methods an extensive and valuable mar- | gan's Sons Co. v. Whittier-Coburn Co. ket for the sale of respondent's prepara- 118 Fed. 657, 661. One who induces antion already had been established when other to commit a [531] fraud, and the preparation of petitioner was put on furnishes the means of consummating it, the market. It is apparent, from a con- is equally guilty and liable for the injury. sideration of the testimony, that the ef- Hostetter Co. v. Brueggeman-Reinert forts of petitioner to create a market for Distilling Co. 46 Fed. 188, 189. Quin-Coco were directed not so much to showing the merits of that preparation as they were to demonstrating its practical identity with Coco-Quinine; and, since it was sold at a [530] lower price, inducing the purchasing druggist, in his own interest, to substitute, as far as he could, the former for the latter. In other words, petitioner sought to avail itself of the favorable repute which had been established for respondent's preparation in order to sell its own. Petitioner's salesmen appeared more anxious to con- Respondent has no exclusive right to vince the druggists with whom they were the use of its formula. Chocolate is used dealing that Quin-Coco was a good sub- as an ingredient not alone for the purstitute for Coco-Quinine and was cheap- pose of imparting a distinctive color, but er, than they were to independently for the purpose, also, of making the demonstrate its merits. The evidence preparation peculiarly agreeable to the establishes by a fair preponderance that palate, to say nothing of its effect as a some of petitioner's salesmen suggested suspending medium. While it is not that, without danger of detection, pre- a medicinal element in the preparascriptions and orders for Coco-Quinine tion, it serves a substantial and decould be filled by substituting Quin-Coco: sirable use, which prevents it from More often, however, the feasibility of being a mere matter of dress. It does such a course was brought to the mind not merely serve the incidental use of of the druggist by pointing out the iden- identifying the respondent's preparation tity of the two preparations and the en- (Coca Cola Co. v. Gay-Ola Co. supra, p. hanced profit to be made by selling Quin- [724), and it is doubtful whether it should Coco because of its lower price. There be called a nonessential. The petitioner is much conflict in the testimony; but, or anyone else is at liberty, under the on the whole, it fairly appears that pe- law, to manufacture and market an extitioner's agents induced the substitu- actly similar preparation containing tion, either in direct terms or by sugges- chocolate, and to notify the public that tion or insinuation. Sales to druggists it is being done. Saxlehner v. Wagner, are in original bottles, bearing clearly 216 U. S. 375, 380, 54 L. ed. 525, 527, 30 distinguishing labels, and there is no Sup. Ct. Rep. 298; Chadwick v. Covell, suggestion of deception in those trans-151 Mass. 190, 6 L.R.A. 839, 21 Am. St. actions; but sales to the ultimate pur- Rep. 442, 23 Ń. E. 1068. But the imitachasers are of the product in its naked tor of another's goods must sell them as form out of the bottle; and the testimony his own production. He cannot lawfully discloses many instances of passing off palm them off on the public as the goods by retail druggists of petitioner's prep- of his competitor. The manufacturer or aration when respondent's preparation vendor is entitled to the reputation was called for. That no deception was which his goods have acquired, and the practised on the retail dealers, and that public to the means of distinguishing bethey knew exactly what they were get-tween them and other goods; and protecting, is of no consequence. The wrong was in designedly enabling the dealers to palm off the preparation as that of the respondent. Coca Cola Co. v. Gay-Ola Co. 119 C. C. A. 164, 200 Fed. 720; N. K. Fairbank Co. v. R. W. Bell Mfg. Co. 23 C. C. A. 554, 45 U. S. App. 190, 77 Fed. 869, 875, 877, 878; Lever v. Goodwin, L. R. 36 Ch. Div. 1, 3, 57 L. T. N. S. 583, 36 Week. Rep. 177-C. A.; Enoch Mor

tion is accorded against unfair dealing, whether there be a technical trademark or not. The wrong is in the sale of the goods of one manufacturer or vendor as those [532] of another. Elgin Nat. Watch Co. v. Illinois Watch Case Co. 179 U. S. 665, 674, 45 L. ed. 365, 379, 21 Sup. Ct. Rep. 270. If petitioner had been content to manufacture the preparation and let it make its own way in the field of

V.

NEW RIVER COMPANY et al. (No. 627.)

open and fair competition, there would, UNITED STATES OF AMERICA and be nothing more to be said. It was not Interstate Commerce Commission, Appts., thus content, however, but availed itself of unfair means, either expressly or tacitly, to impose its preparation on the ultimate purchaser as and for the product of respondent.

SLAB FORK COAL COMPANY et al.,
Appts.,

V.

NEW RIVER COMPANY et al. (No. 628.) (See S. C. Reporter's ed. 533–545.)

Courts

- order of Interstate Commerce Commission review.

Nevertheless, the right to which respondent is entitled is that of being protected against unfair competition, not of having the aid of a decree to create or support, or assist in creating or supporting, a monopoly of the sale of a preparation which everyone, including petitioner, is free to make and vending carriers to put into force the rule with

1. An order of the Interstate Commerce Commission permitting and authoriz

respect to distribution of cars to mines is not merely negative, so as to deprive the district court of jurisdiction to review it.

Interstate Commerce Commission

-va

lidity of rule as to car distribution. 3. The rule limiting the total orders for cars of the owner of a mine served by two carriers to the gross daily rating of the needs of the mine is not so arbitrary or unreasonable as to transcend the power of the Interstate Commerce Commission with respect to car distribution, although, in time of car shortage, by being able to order his quota from both carriers, he might be able to profit by his location by more nearly receiving a supply of cars adequate to his needs. [For other cases. see Interstate Commerce

The legal wrong does not consist in the mere use of chocolate as an ingredient, but in the unfair and fraudulent advanCourts review of findings of Intertage which is taken of such use to pass state Commerce Commission. off the product as that of respondent. 2. Courts will not review the deterThe use dissociated from the fraud is mination of the Interstate Commerce Comentirely lawful, and it is against the mission, made within the scope of its powfraud that the injunction lies. But re-ers, or substitute their judgment for its findings and conclusions. spondent, being entitled to relief, is entitled to effective relief; and any doubt in respect of the extent thereof must be resolved in its favor as the innocent producer, and against the petitioner, which has shown by its conduct that it is not to be trusted. Clearly, the relief should extend far enough to enjoin petitioner and its various agents from, directly or indirectly, representing or suggesting to its customers the feasibility or possibility of passing off Quin-Coco for CocoQuinine. The court of appeals held that petitioner should be unconditionally enCommission, 20-23, in Digest Sup. Ct. 1918 Supp.] joined from the use of chocolate. Constitutional law due process think this goes too far; but, having re- rules for car distribution to mines. gard to the past conduct of petitioner, 4. A rule limiting total orders for cars the practices of some druggists to which of the owner of a mine served by two carit has led, and the right of respondent to of the mine does not deprive the owner of riers to the gross daily rating of the needs an effective remedy, we think the decree such mine of his property without due fairly may require that the original process of law, although, in time of car packages sold to druggists shall not only shortage, by being able to order his quota bear labels clearly distinguishing peti-profit by his location by receiving a supply from both carriers, he might be able to tioner's bottled product from the bottled of cars more nearly adequate to his needs. product of [533] respondent, but

We

[Nos. 627 and 628.]

Note.-On right of carrier to dis

that these labels shall state affirmatively Argued April 24, 1924. Decided June 9, 1924. that the preparation is not to be sold or dispensed as Coco-Quinine, or to be used in filling prescriptions or orders calling criminate_in_distribution of cars-see for the latter. With these general sugnotes to Di Georgio Importing & S. S. gestions, the details and form of the in- Co. v. Pennsylvania R. Co. 8 L.R.A. (N.S.) 108; Illinois C. R. Co. v. River junction can be more satisfactorily de& R. Coal & Coke Co. 44 L.R.A. (N.S.) termined by the district court. The de- 648; and Baltimore & O. R. Co. v. Pubcree of the Court of Appeals is reversed, lic Service Commission, L.R.A.1918D, 274. and the cause remanded to the District On car shortage as affecting liability Court for further proceedings in conformity with this opinion.

Reversed.

of carrier for failure to furnish carssee note to Pacific Fruit & P. Co. v. Northern P. R. Co. 10 A.L.R. 342.

APPEALS by defendant and inter-Co. v. Pennsylvania R. Co. 230 U. S.

veners from a decree of the United 247, 57 L. ed. 1472, 33 Sup. Ct. Rep.
States District Court for the Southern 916; Morrisdale Coal Co. v. Pennsyl
District of West Virginia, setting aside vania R. Co. 230 U. S. 304, 57 L. ed.
an order of the Interstate Commerce 1494, 33 Sup. Ct. Rep. 938; Pennsyl-
Commission, and enjoining interference vania R. Co. v. Puritan Coal Min. Co.
with complainants' rights to distribu-
tion of cars. Reversed

See same case below, 293 Fed. 460.
The facts are stated in the opinion.

Assistant to the Solicitor General
Blackburn Esterline argued the cause,
and, with Solicitor General Beck, filed
a brief for the United States:

The order directed no affirmative re-
lief; it is purely negative, and one which
the district court should not have re-
viewed.

Procter & G. Co. v. United States, 225
U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep.
761; Hooker v. Knapp, 225 U. S. 302, 56
L. ed. 1099, 31 Sup. Ct. Rep. 769; Lehigh
Valley R. Co. v. United States, 243 U. S.
412, 414, 61 L. ed. 819, 821, 37 Sup. Ct.
Rep. 434.

The findings of fact and conclusion
embodied in the decree of the district
court are a clear substitution for the find-
ings and conclusion of the Commission.
Interstate Commerce Commission v.
United States, 260 U. S. 32, 34, 67 L.
ed. 112, 114, 43 Sup. Ct. Rep. 6.

237 U. S. 121, 59 L. ed. 867, 35 Sup. Ct.
Rep. 484; Pennsylvania R. Co. v. Clark
Bros. Coal Min. Co. 238 U. S. 456, 59
L. ed. 1406, 35 Sup. Ct. Rep. 896; Penn-
sylvania R. Co. v. Stineman Coal Min,
Co. 242 U. S. 298, 61 L. ed. 316, 37 Sup.
Ct. Rep. 118; Loomis v. Lehigh Valley
R. Co. 240 U. S. 43, 60 L. ed. 517, 36
Sup. Ct. Rep. 228.

Mr. J. Carter Fort argued the cause,
and, with Mr. P. J. Farrell, filed a brief
for the Interstate Commerce Commis-
sion:

The Commission did not grant af-
firmative relief and its action, therefore,
is not subject to review.

Procter & G. Co. v. United States, 225
U. S. 282, 56 L. ed. 1091, 32 Sup. Ct.
Rep. 761; Lehigh Valley R. Co. v. United
States, 243 U. S. 412, 61 L. ed. 819, 37
Sup. Ct. Rep. 434; Baltimore & O. R. Co.
v. United States, 264 U. S. 258, ante, 667,
44 Sup. Ct. Rep. 317; Hooker v. Knapp,
225 U. S. 302, 56 L. ed. 1099, 32 Sup. Ct.
Rep. 769.

Morrisdale Coal Co. v. Pennsylvania R.
Co. 230 U. S. 304, 57 L. ed. 1494, 33 Sup.
Ct. Rep. 938; Interstate Commerce Com-
mission v. Illinois C. R. Co. 215 U. S.
452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155;
Baltimore & O. R. Co. v. United States,
215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct.
Rep. 164; Pennsylvania R. Co. v. Clark
Bros. Coal Co. Min. Co. 238 U. S. 456,
468, 469, 59 L. ed. 1406, 1411, 1412, 35
Sup. Ct. Rep. 896; Pennsylvania R. Co.

What is a fair and just distribution of
The subject of mine ratings is within cars between mines, when the available
the jurisdiction of the Commission, and supply is not sufficient to meet all re-
its findings of fact are conclusive. quirements, is a question for the admin-
Railroad Commission v. Hocking Val-istrative discretion of the Commission.
ley R. Co. 12 Inters. Com. Rep. 398;
Powhatan Coal & Coke Co. v. Norfolk &
W. R. Co. 13 Inters. Com. Rep. 69;
Royal Coal & Coke Co. v. Southern R.
Co. 13 Inters. Com. Rep. 440; Traer v.
Chicago & A. R. Co. 13 Inters. Com.
Rep. 451; Rail & River Coal Co. v. Balti-
more & O. R. Co. 14 Inters. Com. Rep.
86; Hillsdale Coal & Coke Co. v. Penn-
sylvania R. Co. 19 Inters. Com. Rep.
356; Re Irregularities in Mine Ratings,
25 Inters. Com. Rep. 286; Interstate v. Puritan Coal Min. Co. 237 U. S. 121,
Commerce Commission v. Diffenbaugh,
222 U. S. 42, 46, 56 L. ed. 83, 87, 32 Sup.
Ct. Rep. 22; Seaboard Air Line R. Co. v.
United States, 254 U. S. 57, 65 L. ed.
129, 41 Sup. Ct. Rep. 24; Interstate Com-
merce Commission v. Illinois C. R. Co.
215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct.
Rep. 155; Interstate Commerce Commis-
sion v. Chicago & A. R. Co. 215 U. S.
479, 54 L. ed. 291, 30 Sup. Ct. Rep. 163;
Baltimore & O. R. Co. v. United States,
215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct.
Rep. 164; Procter & G. Co. v. United
States, 225 U. S. 282, 56 L. ed. 1091, 32
Sup. Ct. Rep. 761; Mitchell Coal & Coke'

59 L. ed. 867, 35 Sup. Ct. Rep. 484;
Pennsylvania R. Co. v. Sonman Shaft
Coal Co. 242 U. S. 121, 61 L. ed. 188,
37 Sup. Ct. Rep. 46; Pennsylvania R. Co.
v. Stineman Coal Min. Co. 242 U. S. 298,
61 L. ed. 316, 37 Sup. Ct. Rep. 118;
Mitchell Coal & Coke Co. v. Pennsylvania
R. Co. 230 U. S. 247, 57 L. ed. 1472, 33
Sup. Ct. Rep. 916; Loomis v. Lehigh
Valley R. Co. 240 U. S. 43, 60 L. ed.
517, 36 Sup. Ct. Rep. 228; Director Gen.
v. Viscose Co. 254 U. S. 498, 65 L. ed.
372, 41 Sup. Ct. Rep. 151.
The Commission's action
arbitrary.

was not

Interstate Commerce Commission v. Sup. Ct. Rep. 174; Interstate Commerce
Illinois C. R. Co. 215 U. S. 452, 470, 54 Commission v. Illinois C. R. Co. 215 U.
L. ed. 280, 287, 30 Sup. Ct. Rep. 155; S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep.
Interstate Commerce Commission v. 155; Baltimore & O. R. Co. v. United
Union P. R. Co. 222 U. S. 541, 547, 56 States, 215 U. S. 481, 54 L. ed. 292, 30
L. ed. 308, 311, 32 Sup. Ct. Rep. 108; Sup. Ct. Rep. 164; Morrisdale Coal Co.
United States v. Louisville & N. R. Co. v. Pennsylvania R. Co. 230 U. S. 304,
235 U. S. 314, 320, 59 L. ed. 245, 250, 57 L. ed. 1494, 33 Sup. Ct. Rep. 938;
35 Sup. Ct. Rep. 113; O'Keefe v. United Pennsylvania R. Co. v. Puritan Coal Min.
States, 240 U. S. 294, 303, 60 L. ed. 651, Co. 237 U. S. 121, 59 L. ed. 867, 35 Sup.
657, 36 Sup. Ct. Rep. 313; Seaboard Air Ct. Rep. 484; Pennsylvania R. Co. v.
Line R. Co. v. United States, 254 U. S. Clark Bros. Coal Min. Co. 238 U. S. 455,
57, 62, 65 L. ed. 129, 133, 41 Sup. Ct. 59 L. ed. 1406, 35 Sup. Ct. Rep. 896;
Rep. 24; Manufacturers R. Co. v. United Loomis v. Lehigh Valley R. Co. 240 U. S.
States, 246 U. S. 457, 62 L. ed. 831, 38 43, 60 L. ed. 517, 36 Sup. Ct. Rep. 228;
Sup. Ct. Rep. 383.
Pennsylvania R. Co. v. Sonman Shaft
Coal Co. 242 U. S. 120, 61 L. ed. 188, 37

Mr. James W. Carmalt argued the cause, and, with Messrs. Addison C. Burnham and August G. Gutheim filed a brief for appellees:

The Commission's order is affirmative in substance and effect.

Union P. R. Co. 222 U. S. 541, 56 L ed. 308, 32 Sup. Ct. Rep. 108.

The order of the Commission invades legal rights.

143, ante, 216, 44 Sup. Ct. Rep. 72; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 220 U. S. 235, 251, 252, 55 L. ed. 448, 456, 457, 31 Sup. Ct. Rep. 392; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219, 40 L. ed. 940, 947, 5 Inters. Com. Baltimore & O. R. Co. v. Lambert Run Rep. 405, 16 Sup. Ct. Rep. 666; Inter- Coal Co. 267 Fed. 776; Lambert Run state Commerce Commission v. Chicago, Coal Co. v. Baltimore & O. R. Co. 258 U. R. I. & P. R. Co. 218 U. S. 88, 103, 54 S. 377, 66 L. ed. 671, 42 Sup. Ct. Rep. L. ed. 946, 955, 30 Sup. Ct. Rep. 651; 349; Interstate Commerce Commission v. Traer v. Chicago & A. R. Co. 13 Inters. Illinois C. R. Co. 215 U. S. 452, 470, 54 Com. Rep. 451; Interstate Commerce L. ed. 280, 287, 30 Sup. Ct. Rep. 155; Commission v. Illinois C. R. Co. 215 U. Interstate Commerce Commission V. S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155; California Fruit Growers' Exch. v. Southern P. Co. 12 Inters. Com. Rep. 553; Railroad Commission v. Chicago, R. I. & P. R. Co. 29 Inters. Com. Rep. 396; Farmers' Elevator Co. v. Chicago, M. & St. P. R. Co. 47 Inters. Com. Rep. 475; Tanner & Co. v. Chicago, B. & Q. R. Co. 53 Inters. Com. Rep. 401; Wausau Southern Lumber Co. v. Gulf & S. I. R. Co. 64 Inters. Com. Rep. 732; Board of Trade v. Atchison, T. & S. F. R. Co. 29 Inters. Com. Rep. 443; Rice v. Louisville & N. R. Co. 1 Inters. Com. Rep. 738, 1 I. C. C. Rep. 503; Portsmouth Asso. v. Seaboard Air Line R. Co. 55 Inters. Com. Rep. 380; Ridge Coal Min. Co. v. Missouri P. R. Co. 62 Inters. Com. Rep. 259; Dering Mines Co. v. Director Gen. 62 Inters. Com. Rep. 265; Hillsboro Coal Co. v. Cleveland, C. C. & St. L. R. Co. 63 Inters. Com. Rep. 401; Benton Coal Min. Co. v. Chicago, B. & Q. R. Co. 63 Inters. Com. Rep. 396; Franklin County Min. Co. v. Chicago, B. & Q. R. Co. 63 Inters. Com. Rep. 396; Cameron Coal Co. v. Marion & E. R. Co. 63 Inters. Com. Rep. 434; Independent Refiners' Asso. v. Western New York & P. R. Co. 4 Inters. Com. Rep. 162; Penn. Ref. Co. v. Western New York & P. R. Co. 208 U. S. 208, 220, 221, 52 L. ed. 456, 461, 462, 28 Sup. Ct. Rep. 268; Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 43, 46, 56 L. ed. 86, 87, 32 Sup. Ct. Rep.

22.

The final order by the full Commission was a negative order, a mere denial of affirmative relief sought, and not within the jurisdiction of the district court to review or enjoin.

Procter & G. Co. v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. Rep. 761; Hooper v. Knapp, 225 U. S. 302, 56 L. ed. 1099, 32 Sup. Ct. Rep. 769; Lehigh Valley R. Co. v. United States, 243 U. S. 412, 61 L. ed. 819, 37 Sup. Ct. Rep. 434; Baltimore & O. R. Co. v. United States, 264 U. S. 258, ante, 667, 44 Sup. Ct. Rep. 317.

Baltimore & O. R. Co. v. United States, 264 U. S. 258, ante, 667, 44 Sup. Ct. Rep. 317; Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Interstate Commerce Commission V. Illinois C. R. Co. 215 U. S. 452, 54 L ed. 280, 30 Sup. Ct. Rep. 155; Hooker v. Knapp, 225 U. S. 302, 323, 56 L. ed. 1099, 1106, 32 Sup. Ct. Rep. 817; Louisville & N. R. Co. v. F. W. Cook Brewing Co. 223 U. S. 70, 56 L. ed. 355, 32 Sup. Ct. Rep. 189; Loomis v. Lehigh Valley R. Co. 240 U. S. 43, 60 L. ed. 517, 36 Sup. Ct. Rep. 228; Kansas City Southern R. Co. v. United States, 231 U. S. 423, 439, 440, 58 L. ed. 296, 302, 303, 52 L.R.A. (N.S.) 1, 34 Sup. Ct. Rep. 125; Tap Line Cases (United States v. Louisiana & P. R. Co.) 234 U. S. 1, 58 L. ed. 1185, 34 Sup. Ct. Rep. 741; Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 58 L ed. 1408, 34 Sup. Ct. Rep. 986; McLean Lumber Co. v. United States, 237 Fed. 460; Hillsdale Coal & Coke Co. v. Pennsylvania R. Co. 237 Fed. 272; St. Louis Southwestern R. Co. v. United States, 234 Fed. 668; Louisiana & P. R. Co. v. United States, 209 Fed. 244; Manufacturers R. Co. v. United States, 246 U. S. 457, 62 L. ed. 831, 38 Sup. Ct. Rep. 383; Central R. Co. v. United States, 257 U. S. 247, 66 L. ed. 217, 42 Sup. Ct. Rep. 80; Skinner & E. Corp. v. United States, 249 U. S. 557, 63 L. ed. 772, 39 Sup. Ct. Rep. 375.

The carriers themselves could not so deny the transportation right of the mine owner, and there is no right in the Interstate Commerce Commission thus to deprive either the railroad or the mine owner of lawful rights to contract for transportation, and the Commission is clothed with no power to authorize or permit or compel or require the railroads