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illegal allowances to his competitors.'*^

40. Relief against discrimination. — 46. Relief against discrimination in joint

Lang-don v. Pennsylvania R. Co., ISd Fed. traffic arrangements. — I'nitcd wStatcs v.

2:i~. Pacific, etc., Nav. Co., :i:i .^. Ct. 44:i, 228

41. Acts Mar. 2, 1889 and Feb. 10, 1891. U. S. 87.

42. United States v. Missouri Pac. R. 47. Relief against discrimination in dis-
Co., 05 Fed. 903. tribution of cars. — Morrisdalc Coal Co. v.

43. Act Feb. 19, 190.3, c. 708, § 3, 32 Pennsylvania P. Co., 230 U. S. 304, 33 S.
Stat. 848 [U. S. Comp. St. Supp. 1905, p. Ct. 93S.

600. 48. Relief against rebates. — Mitchell

44. Interstate Commerce Comm. v. Coal, etc., Co. v. Pennsylvania R. Co., 230
Chicago, etc., R. Co., 141 Fed. 1003, af- U. S. 247, 57 L. Ed. 472, 33 S. Ct. 916.
firmed in 28 S. Ct. 493, 209 U. S. 108, 49. Mitchell Coal, etc., Co. v. Pennsyl-
52 L. Ed. 705. vania R. Co., 230 U. S. 247, 57 L. Ed.

45. Morrisdale Coal Co. v. Pennsylvania 472, 33 S. Ct. 910.

R. Co., 100 C. C. A. 269, 183 Fed. 929. Previous action by the interstate com-

§ 4194 CARRIERS. 3814

Action for Loss of Baggage. — An action for loss of baggage through neg-
ligence of an interstate carrier is maintainable without first presenting the claim
to the interstate commerce commission, although the carrier had filed with that
commission a rule limiting its liability for the loss of baggage."'"

Action for Demurrage. — A circuit court of the United State has jurisdiction
to determine in the first instance the indebtedness of a shipper to a railroad com-
pany for demurrage, under the rules adopted by the company and filed with
the interstate commerce commission, where it depends on the construction, and
not on the reasonableness or unreasonableness, of such rules, although the latter
question is one primarily for the commission.''^

Refusal of Carrier to Transport Goods. — A shipper seeking relief for re-
fusal of carrier to accept interstate shipments of intoxicating liquors to local op-
tion points may invoke the jurisdiction of the courts without first applying to the
interstate commerce commission.^- A suit against a railway company to recover
for its refusal to accept shipments of cross ties for a point beyond its own line
can not be maintained in the absence of previous action of the interstate com-
merce commission, when based on the want of any published rate ; its position
being that such cross ties were a distinct commodity, not embraced by its filed
taritt' fixing joint through lumber rates. ^^ And the acceptance by a railway com-
pany of three interstate carload shipments of cross ties for a point beyond its
own line under its joint through lumber rate does not dispense with previous ac-
tion by the interstate commerce commission before the shipper may maintain a
suit to recover damages for failure to accept further shipments, based on want
of any applicable and published rate.^^

Refusal to Afford Equal Facilities. — The obligation of a railroad company
to afford equal facilities to all connecting lines of telegraph is not enforceable by
bill in equity, the remedy before interstate commerce commission being exclu-
sive. "•''

Averment of Resort to Commission. — Congress by Interstate Commerce
Act having established the interstate commerce commission with plenary power to
determine in the first instance what rates for the transportation of interstate com-
merce are legal and reasonable and what are illegal and excessive, it will be pre-
sumed, in the absence of averments to the contrary, that every interstate carrier

merce commission is not a condition pre- 96 C. C. A. 322.

cedent to the maintenance of an action un- A suit to compel an interstate carrier

der the Interstate Commerce Act of Feb- to receive and transport goods tendered

ruary 4, 1887 (24 Stat, at L. 382, chap. to it for shipment, which it wholly refuses

104, U. S. Comp. Stat. 1901, p. 3159), § 8, to do, is one to compel the performance

to recover from a carrier the damage sus- of a duty imposed on it by law, and

tained by a shipper who has been charged within the jurisdiction of the courts; and

and who has paid the lawful published complainant is not required to resort in

freight rates on interstate shipments of the first instance to the interstate com-

"free" coal, while lower rates resulting merce commission. Danciger v. Wells,

from rebates have been allowed to other Fargo & Co., 154 Fed. 379.
shippers of "contract" coal during the 53. A carrier's insistence as a pretext to

same period, and between the same prevent an interstate shipment_ over its

termini, the published tariffs making no line on the absence of any published^ rate

distinctions between "contract" and "free" does not justify a resort by the shipper

coal, but naming one rate for all alike. to the courts, in advance of action by the

Pennsylvania R. Co. v. International Coal interstate commerce commission, to re-

Min. Co., 230 U. S. 184. 33 S. Ct. 893. cover damages resulting from the car-

50. Action for loss of baggage. — Homer rier's refusal to furnish cars for such
V. Oregon, etc., R. Co. (Utah), 128 Pac. shipment. Texas, etc., R. Co. v. Anieri-
522. can, etc., Timber Co., 234 U. S. 138, 34

51. Action for demurrage. — Order, Cen- S. Ct. 885.

tral R. Co. v. Hite, 166 Fed. 976, reversed 54. Texas, etc., R. Co. v. American, etc.,

in 171 Fed. 370, 96 C. C. A. 326. Timber Co., 234 U. S. 138, 34 S. Ct. 885.

52. Refusal of carrier to transport goods. 55. Refusal to afford equal facilities.—
— Louisville, etc., R. Co. v. Cook Brewing Act Aug. 7, 1888, § 3; Union Pac. R. Co.
Co., 32 S. Ct. 189, 223 U. S. 70, 56 U v. United States, 59 Fed. 813, 8 C. C. A.
Ed. 355, affirming judgment 172 Fed. 117, 282.

3815 INTERSTATE COMMERCE ACT. §§ 4194-4195

has complied with the law by establishing, printing, filing, publishing, and post-
ing them ; and hence no action can be maintained unless the complaint alleges
Uiat resort has been had to the interstate commerce commission and the rate
charged and paid declared excessive or unreasonable.-"'''

Action for Damages because of Allowance to Other Shippers. — Allow-
ing shippers of coal a rebate from published tariff which named the rate as from
station to destination, but which was uniformly construed to include the haul
from the mine to the station, being forbidden by the Act of Feb. 4, 1887, where
the carrier does the hauling, previous action by the commission is not a condition
precedent for maintenance by another shipper to recover damages for such illegal
allowances to his competitors.-"*'^

Enjoining Shipment of Intoxicating Liquor. — Where a bill to restrain in-
trastate shipments of licjuor by express did not involve any question of regula-
tion of rates, it was immaterial that the trial court had no jurisdiction to pass on
the validity of a dift'erence of rates applicable to such shipments and interstate
shipments until the interstate commerce commission had passed on it.-''-'^

§ 4195. After Hearing by Commission. — The ultimate power of deter-
mining the right and justice in the matter of discriminating rates rests with the
courts. 5'^ The Interstate Commerce Act provides that if, after hearing on a
complaint by shippers, the commission shall determine that any party is entitled
to an award of damages for a violation of the act, the commission shall direct pay-
ment thereof, and if the carrier does not pay within the time limited in the order
the complainant may sue to recover such damages, and in such suit the findings
and order of the commission shall be prima facie evidence of the facts therein
stated. All complaints for the recovery of damages are also required to be filed
with the commission within two years after the cause of action accrues, and a
petition for the enforcement of an order within one year after the date of the
order. An action by an interstate shipper to recover damages for a charge of
illegal and excessive rates is not maintainable until after a hearing and award
before the interstate commerce commission.'^"

What Amounts to Hearing by Commission. — Where an interstate rate on
railroad ties duly filed, had never in itself been declared illegal or excessive by
the interstate commerce commission, the fact that such rate was higher than the
rate charged for rough lumber, and that the commission in another proceeding
had determined that rough lumber and railroad ties should take the same classi-
fication, was insufficient to entitle a shipper having paid the tie rate to recover
the excess over the rate fixed for luml^er, without a hearing and an award before
the commission.*'^

Discrimination and Preference. — Where there has been a preliminary in-
quiry and findings by the interstate commerce commission on the (juestion of an
unlawful discrimination, a suit against the carrier may be maintained by the gov-
ernment. *"'-

Pleading Hearing by Commission.— Since, by the Interstate Commerce Act,
the interstate commerce commission is charged with the duty of determining
whether a carrier's charge for service rendered in interstate commerce is reason-
able, a shii)pcr seeking to recover for imposition of an alleged um-easonable charge

56. Averment of resort to commission. 53. After hearing by commission. — In-

— Meeker v. Lehigh Valley R. Co., 102 Icrstatc Coniiiierce Comin. v. East Ten-
Fed. :i54. nessee, etc., R. Co., 85 Fed. 107.

57. Action for damages because of al- 60. Howard vSupply Co. v. Chesapeake,
lowance to other shippers. — Mitchell Coal, etc., R. Co., 1C)2 I'ed. 188.

etc.. Co. 7'. Pennsylvania R. Co., 2:50 U. 61. What amounts to hearing by com-

S. 247, .")? L. l-'.d. 17 2, :'.:! S. Ct. '.)Hi. mission. - Ho\var(l vSu]:)ply Co. v.

58. Enjoining shipment of intoxicating luake, etc., R. Co., I(;;i h'ed. 188.
liquor. — Southern h.x]}. Co. v. Long, 202 62. Discrimination and preference. —
Fed. 402, 120 C. C. A. r)08, rcvcrsinf,^ de- United States v. Michigan Cent. R. Co.,
cree, 201 Fed. 441. 122 Fed. 544.

§§ 4195-4197 CARRIERS. 3816

must, as a condition to his right, allege and produce an order from the commis-
sion showing that the rate charged was unreasonable, and therefore illegal.''-^
Congress having established the interstate commerce commission with plenary
power to determine in the first instance what rates for the transportation of in-
terstate commerce are legal and reasonable and what are illegal and excessive, it
will be presumed, in the absence of averments to the contrary, that every inter-
state carrier has complied with the law by establishing, printing, filing, publish-
ing, and posting them ; and hence no action can be maintained unless the com-
plaint alleges that resort has been had to the interstate commerce commission and
the rate charged and paid declared excessive or unreasonable/^^

§ 4196. Offenses Arising in Several Districts. — Where an objection to
the jurisdiction of the circuit court for the southern district of New York was
raised by plea in abatement denying that the railroad company had its principal
office in the state of New York, or that the acts complained of took place within
the judicial district of said court, it was held, upon affidavits submitted under
stipulation, that the ruling of the circuit court against the plea, based on said
affidavits, did not appear to be erroneous/'-"^

§ 4197. Mandamus. — Statutory Provision. — The only authority for the
issuance of mandaiuus by a federal court in a suit by a shipper to prevent unlaw-
ful discrimination by an interstate railroad is conferred by the Act of March 2,
1889, supplementary to the interstate commerce act and its amendments, provid-
ing that the federal circuit and district courts shall have jurisdiction, on relation
of any person, firm, or corporation, alleging violation by a common carrier of any
of the provisions of the act which prevents relator from having interstate traffic
moved on terms or conditions as favorable as those given by the common carrier
for like traffic under similar conditions to any other shipper, to issue mandamus
to prevent such discrimination, etc.*''' Tlie Interstate Commerce Act authorizes
the court, in its discretion, to grant a mandamus, when any question of fact as to
the proper compensation of the carrier is raised, notwithstanding such question
of fact is undetermined pending the determination of such question. This does
not authorize the court to grant relief where a case of unjust discrimination is
not made out.*^'' An arrangement between an interstate railroad company and
coal shippers in a certain field, fixing a basis which should be considered equitable
for the distribution of cars between such shippers, does not operate to relieve the
railroad company from the obligations imj^osed on it by § 3 of the Act of Feb-
ruary 4, 1887, to treat shippers without discrimination, nor does it deprive one
of such shippers of the right to maintain a proceeding in a federal court for a
writ of mandamus under the Amendatory Act of March 2, 1889, to compel the
company to furnish to relator its equitable proportion of cars, upon allegations
that the basis of distribution fixed by the agreement was equitable and that de-
fendant has refused to observe it, but has discriminated in favor of other ship-
pers ; the agreement being in fact in aid of the act of fixing as between the par-
ties what should be considered and accepted as a compliance with its require-
ments. ''^^

63. Pleading hearing by commission. — merce commission. Meeker v. Lehigh
Geraty r. Atlantic, etc., R. Co.. 211 Fed. Valley R. Co., 163 Fed. 354.

327. 65. Offenses arising in several districts.

64. In an action for injuries to complain- — Texas, etc., R. Co. r. Interstate Com-
ant's property and business by an alleged merce Comm., 163 U. S. 197, 40 L. Ed.
combination and conspiracy between in- 940, 16 S. Ct. 666.

terstate railroads controlling the ship- 66. Statutory provision. — United States
ment of anthracite coal, an allegation that v. Norfolk, etc., R. Co., 138 Fed. 849, re-
plaintiffs' loss resulted from their Ijeing versed in 74 C. C. A. 404, 143 Fed. 266,
obliged to pay "unlawful rates" for the on another point.

tran'sportation of coal due to such combi- 67. United States v. Delaware, etc., R.

nation and conspiracy was not effective Co., 40 Fed. 101.

to allege that the rates charged had been 68. United States v. Norfolk, etc., R.

declared unlawful by the interstate com- Co., 143 Fed. 266, 74 C. C. A. 404.

3817 interstate: commerce act. § 4197

To Compel Carrier to Make Report. — It is not within the jurisdiction of a
federal court to issue a writ of mandamus to compel a railroad company to make
.a report which the act to regulate commerce gives the interstate commerce com-
mission the right to require, and sucii jurisdiction can not be inferred from any
of the powers granted by congress as collateral to the enforcement of that act.^^^
A suit for a mandamus to compel a common carrier to make annual reports to
the interstate commerce commission, can be maintained only after such report
has been demurred and refused.'^'*

To Compel Carrier to Publish Schedule of Rates. — Section 6 provides
that if any common carrier fails or neglects or refuses to file or publish its sched-
ules as provided in the section, it may be subject to a writ of mandamus issued
in the name of the people of the United States, at the relation of the commission,
failure to comply with which is punishable as for a contempt.''^

To Compel Equal Distribution of Cars.^The grievances produced by regu-
lations adopted by a railway company for the distribution of coal cars in times of
car shortage to the bituminous coal mines served by it, which are alleged to vio-
late the provisions of the act to regulate commerce of February 4, 1887, prohibit-
ing unjust preferences or undue discriminations, can not be redressed, in advance
of the action of the interstate commerce commission, by mandamus to prohibit
the acts complained of and prescribe a rule or regulation for the future, since the
provisions of the Act of March 2, 1889 § 10, authorizing mandamus to compel the
furnishing of cars and other facilities for transportation, must be limited either
to the performance of duties which are so plain and so independent of previous
administrative action of the commission as not to require a prerequisite exertion
of power by that body, or to compelling the performance of duties which plainly
arise from the obligatory force which the statute attaches to the orders of the com-
mission, rendered within the lawful scope of its authority, until set aside by the
commission or enjoined by the courts.'^ -

In Aid of Investigation by Commission. — Section 20 of the Interstate Com-
merce Act does not confer on the court power to compel by mandamus, in aid of
an investigation by the interstate commerce commission ordered by the senate, a
railroad company to disclose the amount of securities of another railroad company
it controls, and whether the two companies serve the same territory, and whether,
luider separate ownership, they would be competitors, and facts showing further
relations between them."'' Mandamus will not lie to compel a disclosure of priv-
ileged communications between an individual and his counsel. Where the peti-
tion for mandamus under the Hepburn Act calls for the production of papers
which originated before the act, and the allegations thereof are vague, so that
the court can not determine what papers are privileged communications between
attorney and client, and what not, and what part of them may be within the act
and what not, the court in its discretion will deny the writ.'^'*

Necessity for Discrimination. — In mandamus under the Act of March 2,
1889, to compel a common carrier to move and transport interstate traffic, or to
furnish cars or other facilities for such transportation, on the ground that there has
been such a violation of the Interstate Commerce Act of Feb. 4, 1887, as prevents

69. To compel carrier to make report. — Comm. v. Brimson, 154 U. S. 447, 38 L.
Knapp V. Lake Shore, etc., R. Co., 197 U. Ed. 1047, 14 S. Ct. 1125. Interstate Com-
S. 536, 49 L. Ed. 870, 25 S. Ct. 538. merce Act, § (>, as amended March 2, 1889.

70. Attorney General v. Union Stock- 72. To compel equal distribution of cars,
yard, etc., Co., 102 Ecd. 330. — Baltimore, etc., R. Co. v. J'itcairn Coal

71. To compel carrier to publish sched- Co., 215 U. S. 481, 54 L. Ed. 292, 30 S.
"ule of rates. — Interstate Commerce Comm. Ct. 104.

■V. Cincinnati, etc., R. Co., 107 U. S. 479. 73. In aid of investigation by commis-

42 L. ]'",d. 243, 17 S. Ct. 890, affirmed and sion. — Attorney Ceneral v. Louisville, etc.,

followed in Savannah, etc., R. Co. v. Flor- R. Co., 212 Fed. 480.

ida Fruit Exch., 167 U. S. 512, 42 L. Ed. 74. Attorney General v. Louisville, etc.,

257, 17 S. Ct. 998; Interstate Commerce R. Co., 212 Fed. 486.

§§ 4197-4198 CARRIERS. 3818

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 similar conditions to any other shipper,,
the gist of the whole proceeding is an unjust discrimination in favor of one ship-
per over another similarly situated. It is for the remedy of such a wrong that
congress, by the act in question, gave the federal courts the power of mandamus,
and for such a wrong alone. There must not only be a discrimination, but it must
be an unjust discrimination ; and that character of discrimination must not only
be pleaded, but it must be proved, by the relator, otherwise the writ of mandamus
will be denied him."^^

§ 4198. Injunction. — A bill in equity exhibits a case arising under the con-
stitution and laws of the United States, where it appears to have been brought
solelv to enforce a compliance with the provisions of the Interstate, Commerce
Act of 1887, and to compel the defendants to comply with such act, by offering
proper and reasonable facilities for the interchange of traffic with complainant,
and enjoining them from refusing to receive from complainant, for transporta-
tion over their lines, any cars which might be tendered them.'^'' And it does not
follow, because an action at law for damages to recover unreasonable rates which
have. been exacted in accordance with the schedule of rates as filed, is forbidden
by the interstate commerce act, that a suit in equity is also forbidden to prevent
a filing or enforcement of a schedule of unreasonable rates or a change to un-
just or unreasonable rates.'^ \\'hen a carrier has violated the terms of the In-
terstate Commerce Act in any particular, the court may grant a perpetual injunc-
tion as to the act, commodity and means employed; but the injunction will not be
granted in general terms, prohibiting the carrier from any violation of the act."^®
It is competent for the shipper to proceed in the circuit court to apply by petition
to the circuit court, "sitting in equity," for the court to hear and determine the
matter "as a court of equity," and issue an injunction "or other proper process,
mandatory or otherwise," to enforce the order of the commission. Under the
broad powers conferred upon the circuit court by § 16 of the act and the
direction there given to the court to proceed with efficiency, but without the for-
mality of equity proceedings, "but in such manner as to 9o justice in the prem-
ises," and in view of the stipulation of the parties, recited in the decree of the
court, the carriers are precluded from making the objection that the court did not
have jurisdiction to entertain the petition and grant the relief prayed for and de-
creed." '^

Applicability of General Principles of Law. — "The requirement of the a'ct
to regulate commerce, that a court shall enforce an observance of the statute
against a carrier who has been adjudged to have violated its provisions, in na
way gives countenance to the assumption that congress intended that a court
.'-hould issue an injunction of such a general character as would be violative of
the most elementary principles of justice." ^^

75. United States v. Norfolk, etc., R. Atlantic, etc., R. Co., 215 U. S. 501, 54
Co.. 109 Fed. 831. L. Ed. 300, 30 S. Ct. 184.

76. Injunction.— In re Lennon, 166 U. 77. Southern R. Co. v. Tift, 206 U. S.
S. 54S, 41 L. Ed. 1110, 17 _S. Ct. 658._ _ 428. 51 L. Ed. 1124, 27 S. Ct. 709, 11 Am.

A case arising upon a bill to enjoin in- ^ Eng. Ann. Cas. 846.

terstate carriers from putting into effect ^g^ New York, etc., R. Co. v. Interstate

alleged unreasonable rates is a case ans- Commerce Comm., 200 U. S. 361, 50 L.

ing under the constitution and laws of ^^ ^g g_ ^^ ^^^

the United States, since the right to be „„ c .^u -on ^-u onr tt c:

exempt from such unlawful exactions is 79. Southern R Co v. Tift 206 U S,

one protected by the Interstate Com- 428, 51 U Ed. 1124, 27 S. Ct. 709, 11 Am.

merce Act as well as the Anti-Trust Act, & Eng. Ann. Cas. 846.

and, of necessity, in determining the right 80. Applicability of general principle of

to the relief prayed for, a construction of law.— New York, etc., R. Co. v. Interstate

the act to regulate commerce is essen- Commerce Comm., 200 U. S. 361, 50 L.

tially involved. Macon Grocery Co. v. Ed. 515, 26 S. Ct. 272.


To Prevent Irreparable Injury. — The injury which will be caused to a
common carrier against which a combination to induce the officers of a common
carrier corporation subject to the provisions of the Interstate Commerce Act, and
its locomotive engineers, to refuse to receive, handle, and haul interstate freight
from another like common carrier as directed will be irreparable ; and in order
to prevent this, and maintain the status quo until full relief can be granted, a
preliminary mandatory injunction will issue against the company and its em-
ployees threatening the injury, restraining them from refusing to afford the
proper interchange of interstate freight and traffic facilities to complainant.^^

To Prevent Multiplicity of Suits. — Where, on a petition for an injunction
to restrain a railroad company, a common carrier of freights, from practicing an
unlawful discrimination, it appears that the plaintiffs' business is such as to make
them frequent shippers, and that a continuous series of shipments was necessary
m conducting their business, and that a remedy sought by actions at law would

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 134 of 214)