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quo.^" On an appeal to the circuit court of appeals from a decree in proceed-
ings to enforce an order of the interstate commerce commission, the decree of
the circuit court is not superseded ; but, if an appeal be taken to the supreme
court from the decree of the circuit court of appeals, the latter decree is super-
seded, so that the decree of the circuit' court remains in force in any event. ^^
A circuit court will not supersede a decree enjoining railroad companies from
violating an order of the interstate commerce commission afifecting rates, entered
in a suit brought by the commission pursuant to § 16 of the Interstate Commerce
Act pending an appeal from such decree, where it does not appear that the
damage to defendants from the enforcement of the decree will be greater than
that which would result to shippers from its suspension.^"* The federal supreme
court will not disturb, on appeal, the granting by the commerce court of an in-
junction pendente lite, until final determination of the suit, suspending an order
of the interstate commerce commission requiring carriers to desist from alleged
discriminatory allowances, unless an abuse of discretion appears.-"^

§ 4190. Effect of Repeal of Statute on Pending- Proceedings.— The

new remedies to compel compliance with the act to regulate commerce, given by
the Act of Feb. 19, 1903, are so far made applicable to prior pending proceed-
ings to enforce the former act by the provision that pending causes shall not
be afifected by the repeal of conflicting laws provided for therein, but shall be
prosecuted to a conclusion in the manner theretofore provided, "and as modified
by the provisions of this act" that a decree granting the relief prayed for in a
suit brought on behalf of the United States by its law officers to enjoin dis-
crimination between localities, which suit was unauthorized, because brought
before the passage of the later act, must be reversed, and the cause remanded
for further proceedings consistent with the act to regulate commerce as orig-
inally enacted and subsequently amended.-^

§§ 4191-4211. Proceedings in Federal Courts— § 4191. In Gen-
eral. — It is the manifest purpose of the statutes regulating interstate commerce
to strike through all pretense and all ingenious devices to the substance of the

15. Supersedeas pending appeal.— Inter- 19. Interstate Commerce Comm. v,
state Commerce C(mim. v. Louisville, Southern Pac. Co., 137 Fed. 606.

etc R Co 101 Fed. 146. 20. United States v. Baltimore, etc., R.

16. interstate Commerce Comm. v. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S.
Southern Pac. Co., 137 Fed. 606. Ct. 817.

17. Omaha, etc., St. R. Co. v. Interstate 21. Effect of repeal of statute on pend-
Commerce Comm., 222 U. S. 582, 56 L- ing proceedings.— Missouri Pac. R. Co. v.
Ed. 324, 32 S. Ct. 833. United States, 189 U. S. 274, 47 L. Ed.

18. Louisville, etc., R. Co. v. Behlmer, 811, 23 S. Ct. 507.
169 U. S. 644, 42 L. Ed. 889, 18 S. Ct. 502.



3809 interstate; commerce act. §§ 4191-4193

transaction, and it is the duty of the courts to recognize and carry into effect such
purpose in suits for their enforcement. ^^

§ 4192. Statutory Provision. — Section 22 of the act to regulate commerce,
provides that nothing in the act contained shall in any way abridge or alter the
remedies now existing at common law or by statute, but the provisions of this
act are in addition to such remedies, can not in reason be construed as continuing
in shippers a common-law right, the continued existence of which would be ab-
solutely inconsistent with the provisions of the act. In other words, the act can
not be held to destroy itself. The clause is concerned alone with rights recognized
in or duties imposed by the act, and the manifest purpose of the provision in ques-
tion was to make plain the intention that any specific remedy given by the act
should be regarded as cumulative, when other appropriate common-law or statu-
tory remedies existed for the redress of the particular grievance or wrong dealt
with m the act.-^ The special remedies provided by the Interstate Commerce Act
are cumulative, and not exclusive of the general remedies given by the federal
judiciary act conferring jurisdiction of all suits and controversies arising under
an act of congress, regardless of any diversity of citizenship between the parties. - *
The Hepburn amendment of June 29, 1906, to the Interstate Commerce Act ma-
terially restricted the jurisdiction of the courts, and the primary jurisdiction of
the interstate commerce commission, particularly under § 10 of Act March 2,
1889, has been considerably extended.-^

§§ 4193-4200. Jurisdiction and Venue— § 4193, In General.— A

suit to enforce compliance with the provisions of the Interstate Commerce Act,
and to prevent a threatened breach thereof, brought by a person or corporation
concerned, is a case arising under the constitution and laws of the United States,
and IS within the jurisdiction of the federal circuit courts independently of the
citizenship of the parties.-"

No New Jurisdiction Conferred by Act. — Congress did not undertake by
the Interstate Commerce Act and its amendments to confer any new judicial
power upon the courts, but assumed that their ordinary powers would continue
and might be invoked by parties complaining of injuries, past or apprehended,
from some abuse of its power by the commission resulting in a trespass upon
vested rights.-"

Under Provisions of General Law. — A shipper seeking relief because of
the refusal of a carrier to accept interstate shipments of intoxicating liquors con-
signed to local option or "dry" points, which the carrier seeks to justify under a
state statute forbidding the transportation of such shipments, which is attacked
as an unlawful regulation of commerce, may invoke the jurisdiction of the courts
without first applying to the interstate commerce commission, since the question
involved is one of general law, for a judicial tribunal and one not competent for
the commission as a purely administrative body.-''

Under Provision Preserving Common- Law Remedies. — Investigation by
the interstate commerce commission and an appropriate finding and order are
prerecjuisite to the right of a shipper to maintain an action to recover from a
carrier the excess which he claims to have paid under a regularly established and
published rate which is attacked as unjustly discriminatory, notwithstanding the

22. Proceedings before court. — United Fed. 237.

States V. Milwaukee, etc., Trans. Co., 142 26. Jurisdiction.— In re Lennon. 166 U.

Fed. 247. S. 548, 41 L. l-'.d. 1110, 17 S. Ct. 65S.

23. Statutory provision. — Texas, etc., R. 27. No new jurisdiction conferred by
Co. V. .-Xhilene Cotton Oil Co., 204 U. S. act. — Louisville, etc., R. Co. v. Interstate
426, 51 L. Hd. 553, 27 S. Ct. 350, 9 Am. Ccnnmerce Comni., 1S4 l'\'d. lis.

& Kng. Ann. Cas. 1075. 28. Under provisions of general law. —

24. Little Rock, etc., R. Co. v. East Ten- Louisville, etc., R. Co. v. Cook Brewing
ncssee, etc.. R. Co., 47 Fed. 771. Co., 223 U. S. lO, 56 L. Ld. 355, 32 S-

25. Langdon v. Pennsylvania R. Co., 186 Ct. 189.



§§ 4193-4194 CARRIERS. 3810

provisions of the Act of Feb. 4, 1887, § 22, that nothing therein contained "shall
in any way abridge or alter the remedies now existing at common law or by stat-
ute, but the provisions of this act are in addition to such remedies."-^

Judicial Questions. — Where the questions involved are of a judicial char-
acter, not suitable to be determined by a purely administrative body, as in the
case of matters involving questions of general law, or where the complaint re-
lates to the performance of duties which are so plain and so independent of pre-
vious administrative action of the commission as not to recjuire a prerequisite
exertion of power by that body, resort may be had to the courts direct.^*'

§ 4194. Before Hearing by Commission. — Where the grievances com-
plauied of are primarily within the administrative competency of the interstate
commerce commission they are not subject to be judicially enforced until that
body has been afforded, by a complaint made to it, opportunity to exert its ad-
ministrative functions. ^^ Wlien the purpose of the act and the means selected
for the accomplishment of that purpose are understood, it is altogether plain that
the act contemplated that such an investigation and order by the designated tri-
bunal, the interstate commerce commission, should be a prerequisite to the right
to seek reparation in the courts because of exactions under an established sched-
ule alleged to be violative of the prescribed standards. And this is so, because
the existence and exercise of a right to maintain an action of that character, in
the absence of such an investigation and order, would be repugnant to the de-
clared rule that a rate established in the mode prescribed should be deemed the
legal rate, and obligatory alike upon carrier and shipper until changed in the man-
ner provided, would be in derogation of the power expressly delegated to the com-
mission, and would be destructive of the uniformity and equality which the act
was designed to secure.-^- The Act of Feb. 4, 1887, while it created new rights
in favor of shippers, in order to make those rights fruitful as to the subjects with
which the statute dealt coming w^ithin the scope of the administrative unity
which we have mentioned primarily made the judgment of the administrative
body to whom the statute confided the enforcement of the act in the respects
stated a prerequisite to a resort to the courts. In other words, as to the subjects
stated, the act did give to the courts power to hear the complaint of a

29. Under provision preserving common 406, 63 S. E. 323.

law remedies. — Robinson v. Baltimore, A person having a claim for overcharge

etc., R. Co., 222 U. S. 506, 56 L. Ed. 288, by a carrier or damages from discrimina-

32 S. Ct. 114, affirming 64 W. Va. 406, 63 tion or attacking the reasonableness of

S. E. 323. rates, rules, etc., governing interstate

30. Judicial questions. — Louisville, etc., commerce, can not sue in the courts until
R. Co. V. Cook Brewing Co., 223 U. S. 70, he has presented his claim to the Inter-
56 L. Ed. 355, 32 S. Ct. 189; Baltimore, state Commerce Commission. Homer v.
«tc., R. Co. V. Pitcairn Coal Co., 215 U. Oregon, etc., R. Co. (Utah), 128 Pac. 522.
S. 481, 54 L. Ed. 292, 30 S. Ct. 164. 32. Robinson v. Baltimore, etc., R. Co.,

31. Before hearing by commission.— 222 U. S. 506, 56 L. Ed. 288, 32 S. Ct.
Procter, etc., Co. v. United States, 225 U. 114; Texas, etc., R. Co. v. Abilene Cotton
S. 282, 56 L. Ed. 1091, 32 S. Ct. 761, cit- Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27
ing, as illustrating and making clear the S. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075.
point, Oregon R., etc., Co. v. Fairchild, The decision in Southern R. Co. v. Tift,
224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 206 U. S. 428, 51 L. Ed. 1124, 27 S. Ct.
535; Southern R. Co. v. Reid, 222 U. S. 709, 11 Am. & Eng. Ann. Cas. 846, does
424, 56 L. Ed. 257, 32 S. Ct. 140; Texas, not qualify the ruling in the Abilene Case,
etc., R. Co. V. Abilene Cotton Oil Co., and is not an authority supporting the
204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. right to resort to the courts in advance
350, 9 Am. & Eng. Ann. Cas. 1075; Balti- of action by the commission for relief
more, etc., R. Co. v. Pitcairn Coal Co., against unreasonable rates or unjust dis-
215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. criminatory practices which, from their
164; Southern R. Co. v. Tift, 206 U. S. nature, primarily require action by the
428, 51 L. Ed. 1124, 27 S. Ct. 709, 11 Am. commission. Baltimore, etc., R. Co. v.
& Eng. Ann. Cas. 846; Robinson v. Balti- Pitcairn Coal Co., 215 U. S. 481, 54 L.
more, etc., R. Co., 222 U. S. 506, 56 L. Ed. 292, 30 S. Ct. 164.

Ed. 288, 32 S. Ct. 114, affirming 64 W. Va.



3811 interstate: commerce act. § 4194

party concerning a violation of the act, but only conferred power to give effect
to such complainants, when by previous submission to the commission, they had
been sanctioned by a command of that body.^^ In the long interval which inter-
vened between 1887 when the act to regulate commerce was enacted, and June
18, 1910, when the Commerce Court Act was passed, there was no instance where
it was held or even seriously asserted, that as to subjects which in their nature
were administrative and within the competency of the commission to decide, there
was power in a court, by an exercise of original action, to enforce its conceptions
as to the meaning of the act to regulate commerce by dealing directly with the
subject irrespective of any prior affirmative command or action by the interstate
commerce commission. On the contrary, by a long line of decisions, whereby
applications to enforce orders of the commission were considered and disposed
of or where requests to restrain the enforcement of such orders were passed
upon, it appears by the reasoning indulged in that it was never considered that
there was power in the courts as an original question without previous affirma-
tive action by the commission to deal with what might be termed in a broad sense
the administrative features of the act to regulate commerce by a determining as
an original question that there had been a compliance or noncompliance with the
provisions of the act.^^ Prior to the Act of Congress Feb. 19, 1903, a United
States circuit court had no jurisdiction in equity over a suit instituted by the at-
torney general of the United States to enjoin a railroad company from granting
rebates under the interstate commerce law, especially where no order had been
made by the interstate commerce commission on the railroad company to discon-
tinue the forbidden act.^'^

Where Right to Hearing before Commission Barred. — The dismissal of
a suit brought by a shipper to recover damages from a carrier for alleged viola-
tions of the Act of February 4, 1887, will not be stayed by the federal supreme
court, where it concurs in the view of the two courts below that the circuit court
had no jurisdiction because of lack of previous action by the interstate commerce
commission, until plaintiff' can apply to the commission and obtain a ruling upon
the question, if the right to apply to the commission was barred by the Act of
June 29, 1906, when the case was filed in the court below.^^

Relief against Unreasonable Rates. — A shipper, seeking relief from unrea-
sonable rates established for interstate commerce, is required by the Interstate
Commerce Act to primarily invoke redress through the interstate commerce com-
mission, which is vested with exclusive original jurisdiction to determine the rea-
sonableness of rates fixed in an established schedule.^" An action against a car-

33. Procter, etc., Co. v. United States, in the first instance only before such com-
225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct. mission. Oregon R., etc., Co. v. Coolidge
761. (Ore.), 116 Pac. 93.

34. Procter, etc., Co. v. United States, A United States circuit court is with-
225 U. S. 282, 56 U Ed. 1091, 32 S. Ct. out jurisdiction to enjoin the enforcement
761. of interstate railroad rates in advance of

35. United States v. Atchison, etc., R. action thereon by the interstate com-
Co., 142 Fed. 176. merce commission under the Interstate

36. Where right to hearing before com- Commerce Act Feb. 4, 1887, as amended
mission barred.— Morrisdale Coal Co. v. by Act June 29, 1906. Atchison, etc., R.
Pennsylvania R. Co., 230 U. S. 304, 33 S. Co. v. Foster Lumber Co., 122 Pac. 139,
Ct. 938. _ _ 31 Okla. 661.

37. Relief against unreasonable rates. — Under the Interstate Commerce Act
Judgment, 108 N. Y. S. 659, 57 Misc. Rep. (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U.
614, reversed in Baltimore, etc., R. Co. v. S. Comp. St. 1901, p. 3154]) a court has
La Due, 112 N. Y. S. 964, 128 App. Div. not the power, in the first instance, to
594. inquire into the reasonableness of a rate

A transportation company may at the regularly established by a carrier and filed

outset establish its rates without previous with the interstate commerce commission

application to the interstate commerce and published, but whether or not a rate

commission and the question as to the is reasonable is, in the first instance, for

reasonableness of such rate can be heard the commission. Great Northern R. Co.

4 Car— 45



§ 4194 CARRIERS. 3812

rier for discrimination in rates and granting unlawful rebates to plaintiff's com-
petitors, affecting not only the plaintiff, but other shippers in the same region^
can not be first instituted in a federal circuit court, the interstate commerce com-
mission having exclusive original jurisdiction to determine whether a regulation
or a practice affecting rates or matters sought to be regulated by the Interstate
Commerce Act is unjust or unreasonable, unjustly discriminatory, preferential^
or prejudicial, and this though the regulation or practice complained of had
ceased/'*^ An interstate railroad company published a tariff on poles providing;
that the poles might be dressed, sawed, concentrated in transit, and shipped from
origin to concentration point and then to destination at through rates which were
less than the sum of the local rates but only on condition that the shipping bill
issued at the point of origin specified the ultimate destination. This condition,
having been submitted to the interstate commerce commission on the complaint
of other shippers, was declared void and an order passed that it should be disre-
garded. The complainant was entitled to sue in a federal court to recover the
difference in rates paid on shipments of poles on which it was not accorded
through rates because of the enforcement of such condition prior to its being de-
clared void by the commission without itself presenting its cause of action to the
commission and obtaining a reparation order on which to sue ; such requirement
imposed by § 16, Interstate Commerce Act, being intended only for the exercise
of the commission's legislative powers to determine the reasonableness of the con-
dition, and, the commission having once acted, it was not necessary that an in-
jured shipper should again present the same question to the commission before
electing to sue directly in the federal court as authorized by § 9.-"^

Relief against Discrimination in General. — The original jurisdiction of
the federal courts under § 9 of the Interstate Commerce Act, has not been entirely
destroyed, and they still may redress such wrongs as can consistently with the
act be redressed without previous action by the interstate commerce commission,
and, when one sues for discrimination by a carrier, it is necessary in the first in-

V. Loonan Lumbee Co., 25 S. Dak. 155, provided by the act to regulate commerce,
125 N. W. 644. and is the rate which it is the duty of
Enjoining increase in rates.— Where a the carrier, under that act, to enforce
railroad company entered into a contract against shippers until changed in accord-
with complainant that, in consideration of -nee with the provisions of that statute,
complainant's establishment of a cement since the independent right of an indi-
factory on its line with a capacity of not vidual originally to maintain actions to
less than 600 barrels a day, the carrier's obtain pecuniary redress for vio ations of
regular established tarifif rates on cement the act, must be confined to such wrongs
du^ring a specified period should not ex- as can, consistently with the context of
ceed "^those set out in a schedule, com- the act, be redressed without previous ac-
plainant, in a suit to restrain the railroad tion by the Commission, and the provi-
companv from establishing and falling sion that nothing therein shall in any
higher rates than those contained in the way abridge or alter the remedies now
schedule, could not obtain such relief in existing at common law or by statute,
the courts in advance of a finding by the '^tit the provisions of this act are in ad-
interstate commerce commission on the dition to such remedies, can not be con-
issue whether the subsequent rates were strued as continuing in shippers a com-
reasonable or unreasonable, to be deter- mon-law right the continued existence of
mined in the light of the railroad's op- which would be absolutely inconsistent
eration as an entirety. Sandusky-Port- with the provisions of the statute. Judg-
land Cement Co. v. Baltimore, etc., R. ment, Abilene Cotton Oil Co. v. Texas,
Co 187 Fed 583 etc., R. Co., 38 Tex. Civ. App. 366, 85

r , . ■ ■ . , . ,• S. W. 1052. reversed in 27 S. Ct. 350, 204

A shipper can not maintain an action ^ ^ ^^ ^^ ^ ^^^^_ ^ ^

against a common carrier to obtain reliei . ^ -,rvr~r

! 11 J ui f • 1,1- *^ Ann. Cas. 1075.

Iroin an alleged unreasonable freight rate n ^ , ^ -i->

exacted from him for an interstate ship- 38- Mitchell Coal^, etc., Co._ z;._Pennsyl-

ment, without reference to any previous vania R. Co., 183 Fed. 908, dismissing for

action by the interstate commerce com- want of jurisdiction 181 Fed. 403.

mission, where such rate has been filed 39. National Pole Co. v. Chicago, etc.,

with that commission and promulgated as R. Co., 211 Fed. 65.



3813 INTERSTATE COMMERCE ACT. § 4194

Stance to determine whether the wrong can be redressed by the courts.^" Under
the amendments-* 1 to the twelfth section of the Interstate Commerce Act, the dis-
trict attorney, when requested, may, under the direction of the attorney general,
prosecute suits in the name of the United States against railroad companies to
enjoin them from discriminating against the city in favor of another, and a pre-
liminary investigation by the commission is not necessary to jurisdiction.^- The
Act of Feb. 19, 1903,^^ provides a remedy in court, without going before the in-
terstate commerce commission, for any discriminations forbidden by law, includ-
ind discriminations or preferences prohibited by Interstate Commerce Act Feb.
4, 1887.^^ A party claiming to be injured by a discriminatory rule for the dis-
tribution of coal cars by an interstate railroad can not maintain in a court of law
an action for the recovery of damages before the interstate commerce commission
has investigated the case, and determined by its report that the rule is or was dis-
criminatory.-*"'

Relief against Discrimination in Joint Traffic Arrangements.— Discrim-
inations practiced in the giving or refusing of joint traffic arrangements contrary to
the act regulating commerce can not be redressed by the courts in advance of ac-
tion by the interstate commerce commission.-*"'

Relief against Discrimination in Distribution of Cars. — A suit by a ship-
per to recover damages from a carrier, alleged to have been occasioned by an un-
lawful distribution of cars to it and an undue allotment of cars to its competitors,
contrary to the Act of February 4, 1887, § 3, can not be maintained in advance
of a ruling by the interstate commerce commission that the method of distribu-
tion adopted by the carrier was unreasonable.^'^

Relief against Rebates. — A shipper of coal and coke can not maintain in
advance of action by the interstate commerce commission a suit against a carrier
for damages resulting from rebates, past or present, given to his competitors
doing their own hauling from mine to station, in the form of trackage or lateral
allowances from the published tariff, which, though naming the rate as from sta-
tion to destination, has been uniformly construed to include the haul from the
mine, since such lateral allowances would be unlawful only when unreason-
able, and this was a question in the first instance for the commission, notwith-
standing the provisions of the Act of February 4, 1887, § 9, giving an individual
the right to maintain actions to obtain pecuniary redress for violations of the
act, and of § 22, that nothing therein shall abridge or alter existing common-law
or statutory remedies.^'-' But allowing shippers of coal and coke as a rebate
from the published tariff which named the rate as from station to destination,
was uniformly construed to include the haul from the mine, a trackage or lateral
allowance for the haul from mine to station, being absolutely forbidden by the
Act of February 4, 1887, § 2, regardless of the amount, where the carrier itself
does the hauling, previous action by the interstate commerce commission is not
a condition precedent for the maintenance by another shipper, under §§ 8, 9, of
an action against the carrier to recover the damages sustained by reason of such



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 133 of 214)