After this overruling of their motion for a stay by the Circuit Court of Appeals for the Sixth Circuit, the petitioners herein made a similar application to the District Court for the Southern District of Ohio for a stay of proceedings until the New York case should be decided by this court, which motion was also denied.

The District Court and the judge thereof in the return to the rule issued herein, give as reasons for such denial:

(1) That the defendants had permitted the time to expire in which to apply to this court for a review of the decree of the Circuit Court of Appeals for the Sixth Circuit on certiorari without making any application for such review, and therefore the court concluded that the rights of the parties as to unfair competition and copyright infringement, which remained after the holding that the patent was invalid, had become settled.

(2) That the case before the Circuit Court of Appeals for the Second Circuit was an appeal from an order granting a preliminary injunction and that to the court, not having the record in that suit before it, the New York case seemed to involve only the question as to the effect of the decree of the Circuit Court of Appeals for the Sixth Circuit upon the case in the Second Circuit and could not, therefore, be determinative of the rights of the parties in the Ohio case.

(3) That there did not seem to the court to be any conflict between the decisions by the Sixth and Second Circuit Courts of Appeals because the facts of the two cases, as the court was advised, were so different that the decisions could not be the same upon their merits.

(4) That from the statement of counsel for Wagner that a fire had occurred on the floor of the building in which the Wagner outfits, manuals, etc., and books had been stored, resulting in great injury to them, the court concluded it to be the part of prudence that the marshal should take possession of such property and

465.

Opinion of the Court.

books as soon as possible, and that there seemed to it no good reason for further delay in the accounting.

This answer of the District Court and judge is also clearly sufficient and conclusive. It shows that the court was called upon to judicially determine the scope of the decision of the Circuit Court of Appeals for the Second Circuit, reversing the action of the District Court granting a temporary injunction, and whether or not that decision was in conflict with the decision by the Circuit Court of Appeals for the Sixth Circuit; to forecast, as best it might, what the scope and effect of the decision of this court in the New York case would be upon the rights of the parties as determined in the Ohio case, and, having regard to the rights of the plaintiff and the conduct of the defendants, whether, after four years of obviously very strenuous litigation, the accounting should be further delayed by the prospect that the decision of this court might render the results of it valueless.

Mandamus is an extraordinary remedy, to be resorted to for the purpose of securing judicial action, not for determining in advance what that action shall be. In re Rice, 155 U. S. 396. It may not be resorted to, as the petitioners seek to resort to it here, for the purpose of controlling minor orders made in the conduct of judicial proceedings, and the fact that the result of litigation may possibly be such that interlocutory proceedings taken may not prove of value is not a sufficient reason for calling the writ into use for the purpose of forbidding such proceedings, even though the cost of them cannot be recovered from the opposing party or even though the order cannot be reversed on error or appeal. Ex parte Ex parte Newman, 14 Wall. 152, 165, 168. This from American Construction Co. v. Jacksonville, Tampa & Key West Ry. Co., 148 U. S. 372, 379, is sharply pertinent to the application before us:

"Least of all, can a writ of mandamus be granted to review a ruling or interlocutory order made in the progress of a cause: for, as observed by Chief Justice Marshall, to do this 'would be a plain evasion of the provision of the act of Congress that final judgments only should be brought before this court for reëxamination;' would 'introduce the supervising power of this court into a cause while depending in an inferior court, and prematurely to decide it;' would allow an appeal or writ of error upon the same question to be 'repeated, to the great oppression of the parties;' and 'would subvert our whole system of jurisprudence."

The petitioners have misconceived the scope and applicability of the remedy of mandamus and the rule is

Discharged and the petition dismissed.

SOUTHERN PACIFIC COMPANY v. STATE OF

ARIZONA.

ERROR TO THE SUPREME COURT OF THE STATE OF ARIZONA.

No. 238. Submitted March 13, 1919.-Decided April 14, 1919.

Whether a shipment was at a given time interstate is a question of fact. P. 477.

Evidence held insufficient to prove that a traveling show was moving interstate, at the time of proceedings before a state commission, to require transportation within the State and fix the rate. Id. The mere intention to continue the tour of a traveling show beyond the State where it was performing, held not enough to give interstate character to a contemplated journey within the State. Id. A claim of federal right which was not set up in the state court and made in the assignments of error held not open in this court. P. 478. Semble, that when required by a state commission to transport a

472.

Argument for Plaintiff in Error.

traveling show at a rate which is not objected to and upon terms the same as it has habitually and voluntarily agreed to in like cases, a railroad company has no ground to complain that it is thus deprived of its liberty to make or refuse a contract as a private carrier, in violation of the equal protection and due process clauses of the Fourteenth Amendment. P 478.

19 Arizona, 20, affirmed.

THE case is stated in the opinion.

Mr. C. W. Durbrow, Mr. Henley C. Booth and Mr. Wm. F. Herrin for plaintiff in error, in support of the contention that the movement was interstate, cited South Covington Ry. Co. v. Covington, 235 U. S. 537, 545; United States v. Union Stock Yards of Chicago, 226 U. S. 266, 304; Missouri, Kansas & Texas Ry. Co. v. Texas, 245 U. S. 484; Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 348.

In support of the contention that the right of private contract was invaded, in violation of the Fourteenth Amendment, Chicago, Rock Island & Pacific Ry. Co. v. Maucher, 248 U. S. 359; Santa Fe, Prescott & Phoenix Ry. Co. v. Grant Brothers Construction Co., 228 U. S. 177; Baltimore & Ohio S. W. Ry. Co. v. Voigt, 176 U. S. 498; Wilson v. Atlantic Coast Line, 129 Fed. Rep. 774; affd. 133 Fed. Rep. 1022; Chicago, Milwaukee & St. Paul Ry. Co. v. Wallace, 66 Fed. Rep. 506; Cluff v. Grand Trunk Western Ry. Co., 155 Fed. Rep. 81; 1 Hutchinson on Carriers, 3d ed., § 88; Moore on Carriers, § 38, pp. 79, 80.

It is not necessary in order to render an order or a statute obnoxious to the Federal Constitution that it in terms or in effect authorize the actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment or the power of disposition at the will of the owner. Forster v. Scott, 136 N. Y. 577; Monongahela Navigation Co. v. United States, 148 U. S. 336.

Mr. Wiley E. Jones, Attorney General of the State of Arizona, for defendant in error.

MR. JUSTICE CLARKE delivered the opinion of the court.

An agent for Campbell's United Shows applied to the Southern Pacific Company to transport eighteen cars, carrying a carnival show equipment, including employees and animals, from Tucson via Maricopa, to Phoenix, Arizona.

In reply to this application the company gave two reasons for refusing the request. The first of these was that the company had contracted for the transportation of another show, under an agreement not to carry a second one within thirty days, which had not expired; and the second, that the company was not a common carrier of shows and would not make the customary contract with Campbell, but would serve him only at certain published interstate rates, which it regarded as applicable. These were many times greater than had been charged for the same show and than had been the customary charge by the Southern Pacific and other companies for similar service.

Upon receiving this refusal, an application by the owner of the shows to the Arizona Corporation Commission for relief, resulted in an order to the Southern Pacific Company and the Arizona Eastern Railroad Company, operating a connecting line, to show cause why they should not publish, on one day's notice, a special rate, designated in the order of the commission, for the transportation of the shows between the points named. The reasonableness of the required rate is not contested, and the order permitted the Southern Pacific Company to make the special terms for transportation of the shows which had been customary with it in like cases.