Lake Shore, etc., Ry. Co. (decided by the Supreme Court April 10, 1905) 25 Sup. Ct. 538, 49 L. Ed. 870, in which it was held that jurisdiction "in a federal Circuit Court of an original proceeding by mandamus to compel an interstate carrier to make the report which the Interstate Commerce Commission is authorized by the act to regulate commerce to require cannot be inferred from the grant of authority to the commission to enforce that act, or from the direction to district attorneys of the United States or the Attorney General to institute all necessary proceedings for the enforcement of its provisions."

The only authority, then, for the exercise of jurisdiction by way of mandamus in a case like the present, is to be found in the act of March 2, 1889, supplementary to the Interstate Commerce Act and its amendments, and which provides:

"That the Circuit and District Courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms, or conditions as favorable as those given by said common carrier for like traffic under similiar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ."

It is equally elementary that mandamus will not lie for the enforcement of mere private contractual obligations. Miller v. State Board of Agriculture, 46 W. Va. 192, 32 S. E. 1007, 76 Am. St. Rep. 811; State v. Paterson, etc., R. R., 43 N. J. Law, 505, affirmed 45 N. J. Law, 186; Rosenfeld v. Einstein, 46 Ñ. J. Law, 479; State v. N. O., etc., R. Co., 37 La. Ann. 589; State v. Zanesville, etc., Turnpike Co., 16 Ohio St. 308; State v. Howard Co. Court, 39 Mo. 375; State v. Republican River Bridge Co., 20 Kan. 404; People v. Dulaney, 96 Ill. 504; Parrott v. Bridgeport, 44 Conn. 180, 26 Am. Rep. 439; Bailey v. Oviatt, 46 Vt. 627; High on Extraordinary Remedies, § 25; Merrill on Mandamus, § 16; Spelling on Injunctions & Other Extraordinary Remedies, § 1379.

It is unquestionably true that the pleadings of the relator do set up the existence of an agreement between the railway company, the relator, and the defendant coal companies for the distribution of all the coal and coke cars of the railway company available for shipments of coal and coke from the coal field where the mine of the relator is situated, and that the petition prays, and the writ nisi, following its prayer, commands, that the railway company be required to furnish the relator with cars in accordance with the terms of that agreement. It is a cardinal principle that pleadings should be true, and upon this motion to quash, which is in the nature of a demurrer for want of jurisdiction apparent upon the face. of the pleadings, the allegations of the writ and petition are to be conclusively taken to be true. We have it then, for the present purposes, as a fact, that such a private and general agreement for

car distribution was made and entered into, and, as alleged by relator, has not been kept by the railway company.

It is ingeniously argued by counsel for the relator that the facts. set forth as to the agreement for distribution of cars are merely by way of recital, and that, inasmuch as it is alleged that said. agreement provided for a fair and equitable distribution of the car supply, it was in harmony with, and merely declaratory of, the requirements of the interstate commerce act, and where, as in this case, there is an averment of dereliction of duty under the act, the court is empowered and it is its duty to assume jurisdiction and issue the writ. The question presented is somewhat novel, but the view of counsel for relator presents some difficulties to my mind. I consider that it must be true that in any investigation of alleged discrimination in car supply, under the interstate commerce act, made by this court upon the relation of a shipper of interstate traffic, it is not only competent, but necessary, for the court to hear evidence concerning and render its independent judgment upon the question as to what proportion of the cars available for interstate traffic the relator is entitled to, and upon such finding to issue its peremptory writ, commanding the respondent to furnish the car equipment found to be the share or allotment justly due the relator. Now, in the case at bar, assuming that the allegations of the petition are true, and that the respondent, in its return, should affirm the existence of the agreement asserted in paragraph 5 of the petition and alternative writ, and aver that it had furnished relator with such proportion of cars as said agreement provided for, nothing would be left for ascertainment, under the pleadings, except the bare fact whether the respondent had in fact furnished to the relator its due proportion of cars under the agreement recited in the petition. In other words, there would be left no issue upon which evidence could be taken as to whether the relator had received its due proportion of cars for interstate traffic under the law, or what that due proportion was. But assuming that the court undertcok to brush aside the mere state of the pleadings, and to make its own inquiry as to facts and conditions; following, let us say, the recent case of U. S. ex rel. Kingwood Coal Co. v. West Virginia Northern R. Co. (C. C.) 125 Fed. 252, and arriving at the due proportion of cars for relator by an investigation of the relative capacity of all the coal companies interested in the distribution, what would be the result? In the event that the proportion thus ascertained exactly tallied with the proportion due relator under the contract, the court might, it is true, award its peremptory writ, but in any other contingency I do not see how it could do so. As it appears by the record that all the parties interested in the distribution of these cars entered into an agreement for such distribution according to an arbitrary basis, which agreement, as between themselves, they had a right to make, I can see no ground upon which the court could award any writ impairing the obligation of that agreement. If I am right in this view, it follows that the court could act by way of mandamus only in so far as its findings coincided with the terms of the said agreement, and a proceeding by

way of mandamus under the statute in name, would in fact be merely a proceeding to enforce by peremptory writ the execution of such agreement or contract. If a contract exists, that contract measures the duty of the railway company, for it is surely true that a shipper need not take all the cars he may be entitled to under the provisions of the law. If no contract exists, the shipper may demand under the law, and the law measures the duty of the railway company by those general principles adopted by the courts for guidance in its ascertainment.

Has the court a right to entertain jurisdiction for the purpose of determining whether or not a valid agreement exists, where the existence of such an agreement is asserted by the relator? This is not the case of a relator asserting the invalidity of a contract it. was induced to make, and asserting its rights under the statute, but of one asserting the validity and essential legality and equality of the contract under the law, and seeking its enforcement by aid of the writ. Neither is this such a case as would be presented upon a petition declaring simply upon the statutory rights of relator, and asserting that under the law it was entitled to a certain number or a certain percentage of all cars available for interstate coal traffic. If in such a case the return of respondent asserted a contract between the parties regulating the question of car supply, and the relator replied generally to such return, the court would, of course, inquire into the existence and legality of such contract. If it were found to exist and to be legal, the court would be bound to dismiss the proceeding. If found not to exist or to be illegal, the court would administer relief. But suppose the relator, instead of replying generally to such a return, were to admit the existence and legality of the contract pleaded by respondent. We would then have a case much like the one at bar, save that the question would arise later in the proceeding. Such a case has arisen under the interstate commerce act, though not in a proceeding by way of mandamus, and has been passed upon by a very able judge, then chairman of the Interstate Commerce Commission, namely, the late Judge Cooley, of Michigan. In Haddock v. Delaware, L. & W. R. Co., 4 Interst. Com. Com'n R. 296, where complainant, a miner and shipper af anthracite coal, complained of a preference in the rates given for carriage of coal, the company set up as a defense that complainant was not entitled to be heard, because he had entered into a contract with the defendant before the passage of the statute by which the rates were determined. Complainant admitted the contract, but contended that certain sizes of coal which were not marketed when the contract was entered into ought not to be governed by the terms of the contract, but the commission held that no evidence could be admitted to show that the rates on such coal ought to be different from those fixed in the contract; Judge Cooley, in the opinion (page 314) saying:

"If the rate of transportation were not fixed by contract, we might have jurisdiction to determine what it ought to be; but, when the contracts before us made by the parties themselves have undertaken to determine how the rates shall be fixed, that matter is taken entirely out of our hands. We say

this assuming all the while that the contracts are valid, just as the parties assume them to be, and expressing no opinion for ourselves on that point."

I might almost paraphrase this language and apply it to this case, for, doubtless, if the question of car supply were not fixed by agreement, and complaint was made of a violation of duty under the interstate commerce act, the court might have jurisdiction to determine what the car supply of the relator ought to be; but when the relator asserts an agreement which it says is fair and equitable, by which the parties have undertaken to determine how the cars shall be distributed, that matter is taken out of the hands of the court; and, even though there may have been a breach of that agreement by the respondent, this court is powerless to aid the relator by the writ of mandamus.

I am of opinion that the pleadings herein do not present a case for relief under the act of March 2, 1889, and accordingly order that the alternative writ heretofore issued herein be quashed, and the petition dismissed.

Let an order be entered in conformity with this opinion.

VIRGINIA HOT SPRINGS CO. v. HEGEMAN & CO.

(Circuit Court, S. D. New York. July 3, 1905.)

1. TRADE-MARKS AND TRADE-NAMES UNLAWFUL COMPETITION. Complainant and R. purchased parts of a tract of land containing springs which since 1845 had been known as "Healing Springs." R. named his springs the "Rubino Healing Springs," and sold the water under the name "Rubino Healing Springs Natural Lithia Water," while complainant's water was sold under the label, "Healing Springs. A Table & Medicinal Water," etc., until after R. began successfully to market his waters, when plaintiff imitated R.'s labels by dropping the words "A Delicious Table Water," and using the words "Uric Acid Solvent," suggested by R.'s labels, containing the words "Eliminates uric acid." Up to the time R.'s labels appeared, complainant had said nothing in its labels of "Healing Springs, Va.," used in R.'s labels, except: "Healing Springs. A Table & Medicinal Water. From the Great Thermal Region of the Appalachian Ranges"-and ending its label with the words, "For sale by leading druggists in the United States, or can be ordered direct from the Virginia Hot Springs Company, Hot Springs, Bath Co., Virginia," after which complainant changed its labels, and added the words, "Healing Springs, Bath County, Va." It also appeared that all of the springs were at a place having a post office known as "Healing Springs." Held, that R.'s labels so clearly differentiated the waters sold by him from those marketed by complainant that he was not guilty of unlawful competition.

2. SAME-LACHES.

Complainant having been idle in the development of its springs from 1895 to 1896 or 1897, while R. was building up the springs in that locality and expending large sums of money in the enterprise, and until 1903, when it filed the bill for injunction, and in the meantime having imitated and copied R.'s methods, labels, and mode of advertising, it was guilty of such laches as estopped it from maintaining the suit.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 95.]

3. SAME-WORDS-RIGHT TO USE.

Where certain springs on an entire tract of land were known as the "Healing Springs," a purchaser of a portion of such tract, containing a part of the springs, was not entitled to the exclusive use of such name as against a purchaser of the balance, with the springs known as "Little Healing Springs," or "New Healing Springs," thereon.

In Equity.

Suit for injunction perpetually restraining defendant, Hegeman & Co., from in any form or manner whatsoever making use of the name "Healing" or "Healing Springs" in connection with any water not from the spring of the complainant, and from in any form or manner placing or causing to be placed upon containers of water not containing water from such spring, or upon the advertising indicia relating to such water, the name "Healing" or "Healing Springs," or any name or names substantially resembling such names "Healing" or "Healing Springs," and also from holding itself out to the public as the owner of the name or mark "Healing" or "Healing Springs," or as the owner of the springs known as the "Healing Springs," in Bath county, Va., and also from placing on containers of water, other than those holding water from the springs of the complainant, or upon the advertising indicia relating thereto, the twin waterfall mark shown in an exhibit attached to the bill of complaint. The defendant denies the existence of the alleged right to these names in complainant, and denies that it has in any way violated any of the complainant's rights. Further facts will appear in the opinion. Defendant gets its water from one Mr. Rubino, who is the real defendant, and who sells the water from his springs under the name, etc., complained of.

Joseph A. Stetson (Melville E. Ingalls, Jr., of counsel), for complainant.

Stern & Rushmore (Charles E. Rushmore, of counsel), for defendant.

RAY, District Judge (after stating the facts). The complainant is a corporation of the state of Virginia, and owns and operates three properties in the county of Bath, in said state, all in the same section, known respectively as "Healing Springs," the "Warm Springs," and the "Hot Springs." It was incorporated about April, 1892, and then became the owner of part of what is called the "Healing Springs Property." The complainant bottles and sells water from its spring known as the "Healing Springs," and on its bottles and other retainers for such water has certain labels and trade-marks containing the words "Healing Springs." In the bottles used for marketing this water up to 1894 were blown the words "Healing Springs Water, Bath County, Va." Since 1845 these springs now owned by complainant have been known as the "Healing Springs." Prior to 1892 there was a hotel there known as "Healing Springs Hotel." People came there and drank of the waters, and bathed in them. The property on which this spring, or these particular springs, was situated since 1845 has been known and designated in deeds and other papers and conveyed as the "Healing Springs Property." These statements refer generally to the property now owned in part by complainant, but largely by defendant.

In a book, "Mineral Springs of the United States and Canada,” by Walton (3d Ed.), published in 1883, we find: "Healing Springs." "Location and Post Office-Healing Springs, Bath County, Vir