JONES, District Judge
(after stating the facts as above). The bill was filed many months since by' the Rouisville & Nashville Railroad Company against the Attorney General and the Railroad Commission of Alabama to enjoin the enforcement of an order of the commission regarding the entrance of its passenger trains into a union passenger depot in the city of Mobile. At one time a decree pro confesso was taken, for want of an answer, which was subsequently set aside. Then the bill was amended at different times to meet changes in the personnel of the Railroad Commission. Counsel on both sides were engaged in the rate litigation complainant and other railroads were waging against the Railroad Commission, and for that reason the case was passed from term to term by consent, and now comes on to be heard on the demurrers to the original bill as amended. •
The general right of a state to compel railroads entering a city or town to receive and deliver passengers at a union or common depot, very properly, is not questioned in this case. The state may so direct by a statute giving specific regulations covering the whole matter, or leave the question and its details to the determination of an administrative body or commission. When the matter is left to the determination of a commission, and it does not depart from the- authority given it by the statute, or where -the Regislature ácts directly upon the subject, the courts, in the absence of a statute providing for a judicial review of such order, have no power to interfere with the enforcement of an order of that kind, unless its necessary effect, in view of the particular situation with which it deals, operates the deprivation of some right given or secured by the state or federal Constitutions.
[1, 2] The demurrer challenges the jurisdiction of a court of equity to enjoin criminal proceedings or qui tarn actions, or to entertain the proceeding here, because it is, in reality, a suit against the state. That the proceeding is not a suit against the state and that a court of equity should entertain such a suit and grant the relief prayed in a proper case has been put beyond the pale of controversy, adversely to defendants. by the decisions of this court and of the Supreme Court. Louisville & Nashville Railroad Co. v. Railroad Commission of Alabama (C. C.) 157 Fed. 944; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932. The other demurrers question the right of complainant, upon the facts stated in the bill, to protection either under the interstate commerce clause of the Constitution of the United States or under the due process clause, or under the clause vesting in Congress exclusive jurisdiction over the mails. Each of these constitutional provisions operates as a limitation upon what would otherwise be an undoubted attribute of state power. The right of complainant to protection against the order by virtue of one or another of these provisions of the Constitution of the United States is dependent upon the same principles, and the demurrers will be considered together.
[764]*764[3] The well-recognized powers of a state are, first, the right under its police power to do anything reasonably necessary for the preservation of the health, safetjq morals, or the general welfare of the people; and, second, to regulate public corporations, such as railroads, who have dedicated their property to public use, as the reasonable requirements of the public convenience may dictate. The limitations of the power of the state in this respect are well stated in Wisconsin Railroad Co. v. Jacobson, 179 U. S. 296, 301, 21 Sup. Ct. 115, 118, 45 L. Ed. 194, where it is said:
“If power were granted by the Legislature, and it amounted in the particular case simply to a fair, reasonable, and appropriate regulation of the business of the corporation, when considered with regard to the interests both of the company and of the public, the legislation would be valid, and would furnish, therefore, ample authority for the courts to enforce it. * * * The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor upon the question of its validity. A statute or a regulation provided for therein is frequently valid, or the reverse, according, as the fact may be, whether it is a reasonable or Unreasonable exercise of legislative power over the subject-matter involved. And in many cases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action.”
In Atlantic Coast Line v. Wharton, 207 U. S. 334, 28 Sup. Ct. 121, 52 L. Ed. 230, and in Mississippi Railroad Commission v. Illinois Central Railroad, 203 U. S. 235, 27 Sup. Ct. 90, 51 L. Ed. 209, these principles were applied to questions of interference with interstate commerce; while in Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 6, 27 Sup. Ct. 585, 51 L. Ed. 933, and in Missouri Pac. Ry. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472, the principle is applied to the due process clause of the Constitution of the United) States.
In Atlantic Coast Line v. Wharton, supra, it is said:
“That any exercise of state authority, in whatever form manifested, which directly regulates interstate commerce, is repugnant to the commerce clause ■ of the Constitution, is obvious. It hence' arises that any command of a state, whether made directly or through the instrumentality of a railroad commission, which orders, or the necessary effect of which is to order, the stopping of an interstate train at a named station or stations, if it directly regulates interstate commerce, is void. * * * When, therefore, an order made under state authority to stop an interstate train is assailed because of its repugnancy to the interstate commerce clause, the question whether such regulation is void as a direct regulation of such commerce may be tested by considering the nature of the order, the character of the interstate train to which it applies, and its necessary and direct effect upon the operation of such train. But the effect of the order as a direct regulation of interstate commerce may also be tested by considering the adequacy of the local facilities existing at the station or stations at which the interstate train has been commanded to stop.”
The right which the state undertakes to exercise in the present case is its inherent right to regulate public carriers for the promotion of the public convenience, and does not involve the exercise of the state’s police power. In Herndon v. Chicago, Rock Island & Pacific Ry., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970, where an effort was made to require a'railroad to stop its trains at a certain junction point, the Supreme Court observed:
[765]*765“It is to be remembered that this statute is not of that class passed in the exercise of the police power of the state for the promotion of the public safety and requiring the stoppage of trains by one railroad before crossing the tracks of another railroad. This statute, as its second section shows, was passed for the purpose of providing greater facilities of travel and not for the protection of life and limb.”
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JONES, District Judge
(after stating the facts as above). The bill was filed many months since by' the Rouisville & Nashville Railroad Company against the Attorney General and the Railroad Commission of Alabama to enjoin the enforcement of an order of the commission regarding the entrance of its passenger trains into a union passenger depot in the city of Mobile. At one time a decree pro confesso was taken, for want of an answer, which was subsequently set aside. Then the bill was amended at different times to meet changes in the personnel of the Railroad Commission. Counsel on both sides were engaged in the rate litigation complainant and other railroads were waging against the Railroad Commission, and for that reason the case was passed from term to term by consent, and now comes on to be heard on the demurrers to the original bill as amended. •
The general right of a state to compel railroads entering a city or town to receive and deliver passengers at a union or common depot, very properly, is not questioned in this case. The state may so direct by a statute giving specific regulations covering the whole matter, or leave the question and its details to the determination of an administrative body or commission. When the matter is left to the determination of a commission, and it does not depart from the- authority given it by the statute, or where -the Regislature ácts directly upon the subject, the courts, in the absence of a statute providing for a judicial review of such order, have no power to interfere with the enforcement of an order of that kind, unless its necessary effect, in view of the particular situation with which it deals, operates the deprivation of some right given or secured by the state or federal Constitutions.
[1, 2] The demurrer challenges the jurisdiction of a court of equity to enjoin criminal proceedings or qui tarn actions, or to entertain the proceeding here, because it is, in reality, a suit against the state. That the proceeding is not a suit against the state and that a court of equity should entertain such a suit and grant the relief prayed in a proper case has been put beyond the pale of controversy, adversely to defendants. by the decisions of this court and of the Supreme Court. Louisville & Nashville Railroad Co. v. Railroad Commission of Alabama (C. C.) 157 Fed. 944; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932. The other demurrers question the right of complainant, upon the facts stated in the bill, to protection either under the interstate commerce clause of the Constitution of the United States or under the due process clause, or under the clause vesting in Congress exclusive jurisdiction over the mails. Each of these constitutional provisions operates as a limitation upon what would otherwise be an undoubted attribute of state power. The right of complainant to protection against the order by virtue of one or another of these provisions of the Constitution of the United States is dependent upon the same principles, and the demurrers will be considered together.
[764]*764[3] The well-recognized powers of a state are, first, the right under its police power to do anything reasonably necessary for the preservation of the health, safetjq morals, or the general welfare of the people; and, second, to regulate public corporations, such as railroads, who have dedicated their property to public use, as the reasonable requirements of the public convenience may dictate. The limitations of the power of the state in this respect are well stated in Wisconsin Railroad Co. v. Jacobson, 179 U. S. 296, 301, 21 Sup. Ct. 115, 118, 45 L. Ed. 194, where it is said:
“If power were granted by the Legislature, and it amounted in the particular case simply to a fair, reasonable, and appropriate regulation of the business of the corporation, when considered with regard to the interests both of the company and of the public, the legislation would be valid, and would furnish, therefore, ample authority for the courts to enforce it. * * * The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor upon the question of its validity. A statute or a regulation provided for therein is frequently valid, or the reverse, according, as the fact may be, whether it is a reasonable or Unreasonable exercise of legislative power over the subject-matter involved. And in many cases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action.”
In Atlantic Coast Line v. Wharton, 207 U. S. 334, 28 Sup. Ct. 121, 52 L. Ed. 230, and in Mississippi Railroad Commission v. Illinois Central Railroad, 203 U. S. 235, 27 Sup. Ct. 90, 51 L. Ed. 209, these principles were applied to questions of interference with interstate commerce; while in Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 6, 27 Sup. Ct. 585, 51 L. Ed. 933, and in Missouri Pac. Ry. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472, the principle is applied to the due process clause of the Constitution of the United) States.
In Atlantic Coast Line v. Wharton, supra, it is said:
“That any exercise of state authority, in whatever form manifested, which directly regulates interstate commerce, is repugnant to the commerce clause ■ of the Constitution, is obvious. It hence' arises that any command of a state, whether made directly or through the instrumentality of a railroad commission, which orders, or the necessary effect of which is to order, the stopping of an interstate train at a named station or stations, if it directly regulates interstate commerce, is void. * * * When, therefore, an order made under state authority to stop an interstate train is assailed because of its repugnancy to the interstate commerce clause, the question whether such regulation is void as a direct regulation of such commerce may be tested by considering the nature of the order, the character of the interstate train to which it applies, and its necessary and direct effect upon the operation of such train. But the effect of the order as a direct regulation of interstate commerce may also be tested by considering the adequacy of the local facilities existing at the station or stations at which the interstate train has been commanded to stop.”
The right which the state undertakes to exercise in the present case is its inherent right to regulate public carriers for the promotion of the public convenience, and does not involve the exercise of the state’s police power. In Herndon v. Chicago, Rock Island & Pacific Ry., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970, where an effort was made to require a'railroad to stop its trains at a certain junction point, the Supreme Court observed:
[765]*765“It is to be remembered that this statute is not of that class passed in the exercise of the police power of the state for the promotion of the public safety and requiring the stoppage of trains by one railroad before crossing the tracks of another railroad. This statute, as its second section shows, was passed for the purpose of providing greater facilities of travel and not for the protection of life and limb.”
On the other hand, in Southern Railway v. King, 217 U. S. 533, 30 Sup. Ct. 594, 54 L. Ed. 868, the statute under discussion required railroads to slow down their trains when approaching a crossing, and it was held that the statute was enacted by the state in the exercise of its police power.
Under these authorities, whether the action of the state be in the exercise of its power to regulate public corporations, or in the exercise of its police power, and regardless of whether the action complainéd of was taken directly or through a commission, and irrespective of whether the action is complained of as a direct interference with interstate commerce, or as the taking of property without just compensation (except in cases like those cited in Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472, and in Mobile, Jackson & K. C. R. R. Co. v. Mississippi, 210 U. S. 187, 28 Sup. Ct. 650, 52 L. Ed. 1016, where the thing required to be done is that the corporation comply with the terms of its charter or franchise), the final test of the validity or invalidity of the order necessarily turns upon the consideration whether, in view of all the circumstances, it is reasonable or unreasonable.
When the thing required is the furnishing of facilities, such as stopping a train at a given point, or making connections with another railroad, the fact that reasonable facilities have already been furnished is sufficient in itself to render the order unreasonable, and therefore invalid as a direct interference with interstate commerce, as well as denying to the complainant due process of law. But an order may be unreasonable in itself, in view of the situation it seeks to control, even where the facilities furnished are wholly insufficient. In Atlantic Coast Riñe v. Wharton it is said:
“When therefore, an order made under state authority to stop an interstate train is assailed because of its repugnancy to the interstate commerce clause, the question whether such order is void as a direct regulation of such commerce may be tested by considering the nature of the order, the character of the interstate commerce train to which it applies, and its necessary and direct effect, upon the operation of such train. But the effect of the order as a direct regulation of interstate commerce may also he tested by considering the adequacy of the local facilities existing at the station or stations at which the interstate commerce train has been commanded to stop.” ■
It is a just construction of this bill that complainant did not have adequate or sufficient facilities for its passengers at the time the order was made. Hence arose the power of the state to compel it to furnish reasonable facilities, but the lack of such facilities does not give rise to any power to compel the carrier to furnish unreasonable or excessive facilities, or to subject it to arbitrary, unreasonable, and onerous burdens in doing so.
[4] The demurrer admits that the complainant operates as a common carrier between the cities of Cincinnati and New Orleans, and [766]*766over intervening states and through intervening cities; that, in addition to that, it forms part of a line of transportation to and from many-other portions of the United States; that it operates through the city of Mobile more passenger trains than the aggregate of all of the passenger trains operated by the other three railroads entering the city; that it transports more passengers than do the other three roads combined; that it is under contract to and does transport the mails of the United States; that much the larger portion of the passengers upon its trains in the city of Mobile are passengers whose destination is beyond that city; that there is but little exchange of passengers between complainant and the other roads entering the city of Mobile arising out of the fact that each of the other roads terminate in the city of Mobile and transport to said city but few passengers whose destination is beyond -said city; that the effect of the order requiring complainant to stop all of its passenger trains at the Gulf Terminal Depot would be to delay each, of its trains from 35 to 45 minutes, and that it would also require complainant to operate its trains over the track of the Southern Railway Company and around two difficult and dangerous curves; that part of these trains wouldi in going in and coming out of the depot have to be operated air additional distance of 5,600 feet, while the other of its trains would have to be operated an additional distance of 7,600 feet, or else complainant would be obliged to construct a track of its own through a part of the city of Mobile at an expense of at least .$50,000, and that such track would have to cross the yards of the Mobile & Ohio Railroad Company, and its trains in crossing these yards wouldi be subject to irregular delays, which would render its schedules irregular and uncertain. If this be the situation with which the order deals, and the demurrer admits that it is, the operation of the order would delay the United States mails and greatly inconvenience and delay a majority of the passengers served by complainant’s road, and! would add to the convenience of but very few of them, and would create an unreasonable and unnecessary expense in the operation of the trains and in the maintenance of the depot.
The demurrer further admits that complainant’s railroad enters the city of Mobile at One Mile creek, andl continues in practically a straight line down Commerce street to Government street, where its passenger depot is situated; that it there changes its engines and proceeds to New Orleans; that its roundhouse is south of its depot. Conceding, as must be done, that complainant at the time the original bill was filed did not maintain adequate facilities, the fact that the order of the Railroad Commission disarranges the schedules of the complainant, requires it to leave its line for a mile or more, and delays andl inconveniences the majority of its passengers and adds a heavy expense to reach the depot, and burdens complainant with the maintenance of facilities greatly in excess of the demands of its business, renders the order in and of itself an unreasonable regulation, and, under the influence of the authorities cited, the order must be held to be violative of the interstate commerce clause of the Constitution, and amounting [767]*767also to a taking of the property of the complainant for public use without just compensation within the meaning of the 14th amendment.
[5] Pretermitting the above objections to the order, it is plainly illegal and void on other grounds. It is very properly conceded by counsel that the sole authority of the commission to make the order here in question is derived from the provisions of the local act, set forth in the statement of facts, approved September S, 1903, which act displaced, as to Mobile, the general authority of the commission to direct railroads to provide union stations for passengers in other places. The commission has no authority except as given by this local act to compel or regulate the construction of a union passenger depot at Mobile, and, in whatever particular its order departs from the authority given by the statute, its action to that extent is in excess of the power conferred and therefore void. It is apparent from even a casual reading of the statute that the Legislature intended to provide for the construction and maintenance of a union passenger depot by all the “railroad companies whose tracks enter the city of Mobile,” and that all of them should share equitably in the expense of constructing and operating such union depot. The language of the statute, (section 6) is mandatory:
“All railroads entering the city of Mobile are required to stop all of their passenger trains in said Union Depot for the embarkation and debarkation of passengers.”
The entire authority granted the commission is to make orders, regarding a union depot to be constructed and maintained by “all the railroads entering said city,” that may be “pursuant to the provisions (of this act) hereof.” It is upon this ground, as the court is informed, that the city court of Mobile, when the complainant was indicted for not complying with the order, directed a verdict of not guilty, when it was shown that the Union Station in Mobile was not constructed or maintained by all or any of the railroads, but by a private corporation, although it was built upon the property of the Southern Railway Company.
If it be conceded that the local act requiring all the railroads entering the city to join in the construction and maintenance of a union depot in view of their relative situations as disclosed by the bill and map of the city, was not unreasonable or arbitrary, in the light of the principles by which such action must be tested as set forth in the decisions cited above, and a valid exercise of legislative power, it cannot help or support the order made by the commission in this case. The Legislature itself defines the class upon all of whom the statute must operate. That class is “all the railroads entering the city of Mobile,” and it gave no authority whatever to the commission to exempt any railroad from the operation of the statute or to place the burden of complying with its order upon any less number of the railroads than the act itself designated). The burden of sharing in the construction and expense of maintaining the Union Station equitably was placed by the lawmaking power upon all four railroads. The order of the commission places the burden on three only, in repudiation of the mandatory command of the Legislature that all of [768]*768them should share in the burden of constructing and maintaining the Union Station. The effect of the order of the commission was to confer benefits on some of the class and impose burdens upon others of the class when the lawmaking power had declared! that all of them were situated alike with respect to the duty, and should fare alike — ■ none receiving benefits or sharing burdens which were not conferred or imposed impartially upon all of the class. Conceding that the Legislature itself might have passed a statute for a union depot in Mobile which did not include all the railroads entering the city, yet, when it refused to do so and put all the railroads in the same class the commission had no authority to classify them differently or to exercise any discretion whatever in that regard.
The commission in making its order, however, was an administrative instrumentality of the state, and exercised its authority. The prohibitions of the fourteenth amendment against deprivation of property without due process or a denial to any person of the equal protection of the laws operate upon all of the instrumentalities of the state. As such acts are those of public bodies clothed with state power, they are, within the meaning of the 14th amendment, the acts of the state. The order here made amounts to a denial to complainant by authority of the state of the right to the equal protection of the laws, and is therefore invalid and void, and by an unbroken array of authorities its execution must be enjoined, if the Constitution of the United States or equivalent provisions in our state Constitution are to be observed. Chicago, Burlington & K. C. R. R. v. Chicago, 166 U. S. 227, 17 Sup. Ct. 581, 41 L. Ed. 979; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676; Railroad Companies v. Morris, 65 Ala. 199; Joseph v. Randolph, 71 Ala. 506, 46 Am. Rep. 347; Smith v. Railroad Co., 75 Ala. 455; Gulf, etc., Railroad v. Ellis, 165 U. S. 154, 17 Sup. Ct. 255, 41 L. Ed. 666; Atchison Ry., etc., v. Matthews, 174 U. S. 104, 19 Sup. Ct. 609, 43 L. Ed. 909; Missouri v. Lewis, 101 U. S. 22, 25 L. Ed. 989.
The demurrers are overruled, and the respondents have 40 days in which to answer.