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A treatise on the law of carriers (Volume 4) online

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lead to a multiplicity of suits, the court will intervene by injunction to prevent
a multiplicity of suits, and it is not a prerequisite that plaintiffs should have first
established their rights by an action at law.'^-

Where Carrier Fails to File Report. — The interstate commerce commis-
sioners are empowered, as complainants, to apply, in any proper circuit court of
the United States, for a writ of injunction against any common carrier neglect-
ing or refusing to file or publish such schedule or tariffs with rates, fares or
charges as provided in § 6 to restrain such carrier from receiving or transporting
property among the several states and territories of the United States, or be-
tween the United States and adjacent foreign countries or between ports of
transshipment and of entry and the several states and territories of the United
States, as mentioned in this section of the act, until such common carrier shall
have complied with the provisions of § 6 relating to the filing and publishing of
schedules or tariffs of rates, fares and charges. ^^

Enjoining Schedule Rates, — The interstate commerce commission having
been given exclusive jurisdiction in the first instance to determine the reasonable-
ness of interstate rates by the Interstate Commerce Act shippers can not main-
tain a suit in equity to prevent the filing or enforcement of a schedule of rates,
or a change to unjust or unreasonable rates, pending determination of the rea-
sonableness thereof by the commission. s* Under Interstate Commerce Act of

81. To prevent irreparable injury. — To- etc., Co. v. Norfolk, etc., R. Co., 171 Fed.
ledo, etc., R. Co. v. Pennsylvania Co., 54 723.

Fed. 730, 19 L. R. A. 387. A circuit court of the United States

82. To prevent multiplicity of suits.— possessed no jurisdiction, prior to the en-
Scofield V. Lake Shore, etc., R. Co., 43 actment by congress of legislation regu-
O. St. 571, 3 N. E. 907, 54 Am. Rep. 846. lating the transportation of interstate

o„ ,,„ . r -1 4. CI ,„ ^t. commerce, to enjoin the promulgation and

83. Where earner fails to file report.- ^^f^.^ement generally by a carrier of a
Interstate Commerce Act, § 6, as amended ^^^{^^,1^^. ^^^^ ^^ schedule of rates as un-
March 2, 1889. Interstate Co™merce j^.^^o^^i^le, jts power being limited in any

%TT<;J' 1?"'^'' r."' 1 lor • case to the protection of an individual

lid. 1047, 14 b. L,t. liw.). shipper against the exaction from liim of

84. Enjoining schedule rates.— Decree ^n unreasonable rate or charge, either lo-
Macon Grocery Co. v. Atlantic, etc., R. ^^\ ^^ interstate, when it had jurisdiction
Co., 1G3 Fed. 738, reversed in 100 Fed. i,y reason of diverse citizenship; nor has
206, 92 C. C. A. 114; Potlatch Lumber Co. \^ jurisdiction under Interstate Commerce
V. Spokane Falls, etc., R. Co., 157 Fed. Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.
588. S. Comp. St. 1901, p. 3154), as amended

A circuit court of the United States is by Act June 29, 1900, c. 3591, 34 Stat. 584

witliout jurisdiction to enjoin the estab- (U. S. Comp. St. Supp. 1907, p. 892), to

lislimcnt of an interstate freight rate by enjoin the filing, pulilication, or enforce-

a carrier, or to enjoin the enforcement of ment of a proposed rate alleged to be un-

a new rates which has l)een published and reasonable, in advance of action thereon

fded, before its reasonal)lencss and valid- by the interstate commerce commission,

ity have been passed on by the interstate which is l)y said acts vested with cxclu-

commerce commission. Houston Coal, .sivc jurisdiction to determine witli rea-

^ 4198 CARRIERS. 3820

Feb. 4, 1887, § 6, requiring carriers to file freight rate schedules with the inter-
state commerce commission and to post them in railway stations, and providing
that changes in rates shall not take effect until after thirty days' notice to the
commission and to the public in the same way, a rate filed with the commission
IS put in force, though not so posted, as affecting the circuit court's jurisdiction
to enjoin it.^-^ A court of equity, however, may properly enjoin carriers from
establishing, or increasing to, a rate believed to be unreasonable, at the sanip
time leavfng the matter in such shape that the commission may ultimately
iletermine the question of the reasonableness of the proposed rate and prescribe
what will be a just and reasonable rate.s^ Under § 22 of the Interstate Commerce
Act, which expressly preserves all legal remedies, a circuit court of the United
States has jurisdiction of a suit to enjoin railroad companies from filing or en-
forcing a proposed new schedule of rates alleged to be unjust and unreasonable
pending a determination of their reasonableness by the interstate commerce
commission, where it is shown that their enforcement would result in irreparable
injury to complainants.^^ The complainants having established a rate forlemons
from California to points between the Rocky Mountains and the Atlantic coast
of a certain amount in carload lots, the interstate commerce commission passed
an order prescribing a rate of not to exceed a less amount. The complainants
claiming that such rate had not been adjusted according to the cost and value
of the "service, and that the commission could not lawfully prescribe a single
blanket rate to points so widely separated, also that the rate was unjust and un-
reasonable, and so low that the traffic was not compensatory, applied for an in-
junction restraining the enforcement thereof until its validity could be finally
determined. The validity of such rate being subject to grave and serious doubt,
an interlocutory injunction will be granted until the case can be determined by
the commerce court.*^^ "Without now stopping to enumerate the contentions
on behalf of the commission, it will suffice, for present purposes, to say that, after
considering those contentions and giving effect to the presumption of validity
which should and does attend an order of the commission, v/e entertain such
grave and serious doubts of the validity of the order in question that we think
its enforcement should be suspended until the questions presented by the com-
plainants' objections can be adequately considered and thoughtfully determined.
Those objections turn chiefly upon questions of law which are new and have an
importance far beyond their bearing upon the present application. The time

sonableness of rates in the first instance. granted a determination of the reason-
Columbus Iron, etc.. Co. v. Kanawha, etc., ableness thereof by the interstate com-
R. Co. 171 Fed. 713. merce commission, the growers would be
For 'several years prior to November, compelled to destroy their lemon trees
1904, an emergency freight rate of $1 per and put their land to other uses, while the
Tiundred on lemons from California to rights of the railroad companies could be
the New York market was in force to protected by bond. Held, that the equi-
■enable California growers to compete ties were in favor of the growers, and
with lemons imported from Sicily. In that they were entitled to a temporary m-
November, 1904, after negotiation, the junction on executing a bond conditioned
growers understood the rate made perma- to pay the difference in the rates in case
nent, whereupon they enlarged their or- the higher rate was sustained. Arlington
chards and increased their business on the Heights Fruit Co. v. Southern Pac. Co.,
iDasis of that factor of expense. This rate 175 Fed. 141.

was continued for five years and until 85. Wickwire Steel Co. v. New York,

after the passage of the Payne-Aldrich etc., R. Co., 181 Fed. 316.

Tariff Law increasing the duty on lemons gg_ j^jg^j. q^ ^,_ Central, etc., R. Co.,

from 1 to lYi cents a pound, whereupon ^.g p^^ .^gg

defendants increased the freight rate to Northern Pac. R. Co. v. Pacific Coast

$1.15 on the plea of greater cost of labor. \: I [t^' \ak x^^a i qi r P

There was evidence however, that the ^"^I^i^'^T o ' p/. R Pn .f hJ;c.on etc '

cost of transportation was no greater than A. 39; U^'O" /^c- R Co. z;. Oregon, etc.,

before, and that if a temporary injunction Ass n, 165 Fed. 13, 91 C. C. A. 51

restraining the new rate which the grow- 88. Atchison, etc., R. Co. v. Interstate

ers claimed was unreasonable was not Commerce Comm., 182 Fed. 189.


when the order will become effective is near by, and this case is one which soon
will pass from our jurisdiction to that of the commerce court, which has been
•created especially to consider and determine controversies such as this. Act
Tune 18, 1910, c. 309, 36 Stat. 539. Any order which we may make will be
interlocutory, and the final hearing must be in the commerce court. The same
questions will then arise again, and they may arise in that court before that time,
either through a like application in some other case or through further inter-
locutory proceedings in this case." ^^ But when a controversy between parties
relative to transportation rates is pending before the interstate commerce com-
mission, and no irreparable injuries seem threatened, ecjuity, in advance of the
action of the commission, will not ordinarily enjoin the enforcement of the rates.^"
On an application for a temporary injunction to restrain the enforcement of an
increased interstate freight rate, pending determination of its reasonableness
b)y the interstate commerce commission, it is the duty of the court to balance the
equities between the parties, and ascertain which of them will suft'er greater
detriment l)y the court's action.-'^

Injunction Pending Hearing before Commission. — Under § 22 of the
Interstate Commerce Act of Feb. 4, 1887, which expressly presences all legal
remedies, a circuit court of the United States has jurisdiction of a suit to enjoin
railroad companies from filing or enforcing a proposed new schedule of rates
alleged to be unjust and unreasonable pending a determination of their reason-
>ibleness by the interstate commerce commission, where it is shown that their
•enforcement would result in irreparable injurv to complainants.^-

Perpetual Injunction. — If a suit by the attorney general of the United
States to enjoin a railroad from granting rebates could have been continued under
the Act of Feb. 19, 1903, where the antecedent offense of the railroad company
was being continued after such date, an action by the United States attorney
in the summary method authorized by the latter act would have presented an
issue of fact entitling defendant to a hearing thereon, and any injunction granted
would be as to violations of law then being committed, but would not vitalize
an antecedent injunctive order granted by the court when it had no injunction
to make it.''^ A carrier which has been adjudged to have violated the act to
regulate commerce in a specific particular may be restrained from further like
violations of the act, l)Ut should not be enjoined in general terms from violating
the act in the future in any particular.'^-*

Enjoining Violation of Anti- Trust Law. — The Interstate Commerce Act
and the Sherman anti-trust law are separate and independent acts, and jurisdic-
tion of the Circuit Court of the United States over a bill in equity to enjoin a
railroad company from granting rebates to favored shippers can not be main-
tained on the ground that such act of the railroad company is a monopoly within
the meaning of the second section of the Anti-Trust Act of July 2, 1890."-'^

Enjoining Increase in Rates. — Under Interstate Commerce Act Feb. 4,
1887, §§ 13, 13, authorizing complaints to the interstate commerce commission
against unjust freight rates fixed by a carrier, and under § 16, authorizing
awards of damages by the commission, and empowering the federal circuit court
to enforce the commission's orders by injunction or other ])ro])er ])rocess, the

89. Atchison, etc., R. Co. z\ Interstate Oregon, etc., Ass'n, IG") Fed. 13, 91 C. C.
Commerce Comm.. 182 Fed. 189. A. 51.



Tift V. Southern R. Co., 12.-3 Fed. 93. Perpetual injunction -United States

V. Atchison, etc., R. Co., 142 Fed. 176.
94. Decree 128 Fed. 59, modified in New

91. Arlington Heights Fruit Co. v. york, etc., R. Co. v. Interstate Commerce
Southern Pac. Co., 175 1-cd. 141. Comm., 26 S. Ct. 272, 200 U. S. 361, 50

92. Injunction pending hearing before L. Efl. .515.

commission. — Northern Pac. R. Co. v. Pa- 95. Enjoining violation of anti-trust law.

cific Coast Lumber, etc., Ass'n, 165 Fed. — United Stall's ?'. Atchison, etc., R. Co.,

1, 91 C. C. A. 39; Union Pac. R. Co. v. 143 y^.^\ i7(;_

§ 4198 ■ CARRIERS. 3822

circuit court has no jurisdiction of a suit to enjoin an advance in freight rates on
a commodity pursuant to a conspiracy to discriminate against complaints, though
§ 9 provides that one claiming to be damaged by a carrier may elect to complain
to the commission or sue in the federal courts, though § 22 provides that the
act shall not alter existing remedies, and though § 23 gives the circuit and dis-
trict courts jurisdiction in case of violations by carriers of certain provisions of
the act to issue mandamus to compel conformity.^" "Conceding this, it is argued
that the circuit court may exercise its inherent powers to prevent threatened
injury where the rates have not been actually fixed in accordance with the pro-
visions of the statute. In other words, if the carrier simply threatens to fix a
rate, or has not fixed the rate effectively, the court may restrain the carrier from
so doing, if it regards the rate as unreasonable or likely to cause irreparable
damage. The effect of this would be to prevent the carrier from ever fixing or
changing its rates in accordance with the law. Be this as it may, we think the
rate was fixed. Section 6 of the act requires the carrier to file with the commis-
sion and keep open to public inspection, by posting in every depot, station, or
office where passengers or freight are received for transportation, schedules
showing its rates between different points. Changes in rates are not to go into
effect until after thirty days' notice to the commission and to the public has been
given in the same way." ^'^

Venue of Suit to Enjoin Increase of Rates. — ^A bill to obtain an injunc-
tion against various interstate carriers, who were nonresidents of the district,,
to restrain them from putting into effect an advance of rates for carriage of
commodities in interstate commerce through a large area embracing parts of
several different states, charging that the carriers were members of a freight
association organized and maintained under agreements to constitute an illegal
combination in restraint of trade and fostering a monopoly, presents for neces-
.•-ary consideration the proper construction of the Federal Interstate Commerce
Act, so that the court's jurisdiction does not rest solely on diversity of citizenship
of the parties, and hence the federal circuit court in the district of complain-
ants' residence has no jurisdiction to compel the defendants to answer over
iheir obiection.^-^

Jurisdiction of Commerce Court.— The commerce court, under Act June
18, 1910, can enjoin an order of the commission recjuiring railroad companies to
cease charging lower rates for coal intended for railway consumption than is

96. Enjoining increase in rates. — Wick- words: 'Concluding, as we do, that a ship-
wire Steel Co. v. New York, etc., R. Co., per seeking reparation predicated upon
181 Fed. 316. the unreasonableness of the established

"These broad provisions would appar- rate must, under the act to regulate com-
ently justify the exercise by the court of merce, primarily invoke redress through
any of its inherent powers in behalf of the Interstate Commerce Commission,
persons complaining of any violations by which body alone is vested with power
carriers of the act; but the supreme court originally to entertain proceedings for the
has held, in Texas, etc., R. Co. v. Abilene alteration of an established schedule, be-
Cotton Oil Co., 204 U. S. 426, 51 L. Ed. cause the rates fixed therein are unrea-
553, 27 S. Ct. 350, 9 Am. & Eng. Ann. sonable, it is unnecessary for us to con-
Cas. 1075, that they are to be construed sider whether the court below would have
with reference to and limited by the pow- had jurisdiction to afford relief, if ♦he
ers conferred by congress upon the inter- right asserted had not been repugnant to
state commerce commission, for the pur- the provisions of the act to regulate com-
pose of insuring and enforcing the estab- merce.' " Wickwire Steel Co. z'. New
lishment and maintenance of reasonable York, etc., R. Co.. 181 Fed. 316.
and uniform rates. In other words, they 97. Wickwire Steel Co. v. New York,
are to be construed as intended to re- etc.. R. Co., 181 Fed. 316.
dress wrongs that need not be complained 98. Venue of suit to enjoin increase of
of in the first instance to the interstate rates. — Atlantic, etc., R. Co. v. Macon
commerce commission. Mr. Justice Grocery Co., 166 Fed. 206, 92 C. C. A.
W^hite concluded his opinion with these 114.

3823 INTERSTATE COMMERCE ACT. §§ 4198-4199

accorded to other shippers."^

Mandatory Injunction. — The duty imposed on railroad companies hy the
laws of a state and by the Interstate Commerce Act of receiving from connecting
roads freight and passengers, is one which the federal courts in that state will
enforce by mandatory injunction where the injury resulting from its nonper-
formance is continuing; and it is no defense to such relief that a strike of loco-
motive engineers and firemen has been ordered on plaintiff's road, and that, if
defendant's road should accept cars from the boycotted road, its own men would
be called out.^ Where a labor organization has declared a boycott against a
railroad, and connecting roads are therefore refusing, or seem about to refuse,
to aft'ord equal facilities to the boycotted road, in violation of § 3 of the Inter-
state Commerce Act, they may be compelled to do so by mandatory injunction,
since the case is urgent, the rights of the parties free from reasonable doubt, and
the duty sought to be enforced is imposed by law.-

Enjoining Receiver. — The petition of a railroad company, intervener, repre-
sented that the receiver appointed by the court had issued an order in violation
of his duties as a common carrier, and of a custom between the two roads, in-
structing his agents to receive no more through freight cars of the petitioner,
and that freight of that character offered by the petitioner had been refused,
though the proper tender of expense bills had been made. It also alleged that
the Brotherhood of Locomotive Engineers had commanded a strike on petition-
er's road, and, in order to boycott it, had issued instructions to its members on
other connecting systems not to handle any of petitioner's freight. The prayer
was for a peremptory order on the receiver to take such freight, for an injunc-
tion on the brotherhood from interfering with the engineers on the receiver's
road, and for a rule on the officers of the brotherhood to show cause why they
should not be punished for contempt. The answer of the receiver admitted the
issuance of the order complained of, but set out that it was intended to be
temporary only, and was, as a matter of fact, rescinded two days after the peti-
tion was filed, and another order made establishing intercourse on the old
basis, and that this order was meant to be permanent. It was denied that the
receiver or any of his engineers had been interfered w^ith in any manner by the
brotherhood, or that the first order was promulgated under moral duress of that
association. It was held, that the objectionable order having been permanently
rescinded, and no interference by the brotherhood having been proven, neither
the peremptory order, nor the injunction, nor the rule asked for should issue,
but that the petition should remain on file for further action, should any occa-
sion therefor arise. ^

§ 4199. In Particular Instances.— Proceeding to Compel Carrier to
Transport Goods. — A suit to compel an interstate carrier to receive and trans-
port goods tendered to it for shipment, which it wholly refuses to do, is one to
compel the performance of a duty imposed on it by law, and within the juris-
diction of the courts ; and complainant is not required to resort in the first in-
stance to the interstate commerce commission.^

Proceeding to Compel Publishing Schedules of Rates.— The Interstate
Commerrc Act provided that common carriers should ])ublish schedules of rea-
sonable and uniform rates, and, where such provision of the act had been com-
plied with, and copies of the schedule of rates had been filed with the commerce

99. Jurisdiction of commerce court.— In- Co., 54 Fed. 746, 19 L. R. A. 395, follow-

terstate Commerce Comm. v. Baltimore. ing Coe v. Louisville, etc., R. Co., 3 Fed.

etc., R. Co., .32 S. Ct. 742. 225 U. S. .'520, 775, 783.

56 L. VA. 1107, Ann Cas. 1914A, 504. 3. Enjoinmg receiver.— Beers v. Wa-

1. Mandatory injunction. — Chicago, etc., bash, etc., I\. Co., ;!4 Fed. 244.

R. Co. V. Burlington, etc., R. Co., 34 Fed. 4. Proceeding to compel carrier to trans-

481_ port goods. -Danciger v. Wells, Fargo &

2. Toledo, etc., R. Co. v. Pennsylvania Co., 154 h'cd. 379.

§ 4199 CARRIERS. 3824-

commission and not found unreasonable by that body, a shipper could not re-
cover, at common law, unreasonable freight charges on interstate shipments.^
Although, when the act to regulate commerce was enacted there was contrariety
of opinion whether, when a rate charged by a carrier was in and of itself reason-
able, the person from whom such a charge was exacted had at common law an
action against the carrier because of damage asserted to have been suffered by
a discrimination against such person or a preference given by the carrier to
another. It inevitably follows from the context of the act that the independent
right of an individual originally to maintain actions in courts to obtain pecuniary
redress for violations of the act conferred by the ninth section must be confined
to redress of such wrongs as can, consistently with the context of the act, be
redressed by courts without previous action by the commission, and, therefore,
does not imply the power in a court to primarily hear complaints concerning-
wrongs of the character of the one here complained of.''^

Action to Recover Excess of Freight. — Until a schedule of rates, filed
and published by a common carrier, pursuant to the act, has been declared ex-
cessive and unreasonable by the interstate commerce commission, a shipper can
not maintain an action for the excess of freight exacted on interstate shipments,
if the rates charged were those fixed by the schedule.' Where an interstate
rate on railroad ties, duly filed, had never in itself been declared illegal or ex-
cessive 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 classification, was insufficient to entitle a shipper having paid the
tie rate to recover the excess over the rate fixed for lumber, without a hearing
and an award before the commission.^

Action to Recover Damages.— The rule that an action at law to recover
excessive interstate freight charges can not be maintained in advance of action
by the interstate commerce commission will not prevent a federal circuit court
which has suspended proceedings on a bill seeking relief from an advance in
freight rates, pending action by the commission, from granting relief in the
exercise of its powers under Act Feb. 4, 1887, § 16, as a court of equity, on a

5. Proceeding to compel publishing June 29, 1906, c. 3591, § 5, 34 Stat. 590
schedules of rates.— Texas, etc., R. Co. v. (U. S. Comp. St. Supp. 1907, p. 902), pro-
Cisco Oil Mill, 204 U. S. 449, 51 L. Ed. vides that if, after hearing on a complaint
562. 27 S. Ct. 358; Texas, etc., R. Co. v. bj' shippers, the commission shall deter-
Abilene Cotton Oil Co.. 204 U. S. 426, 51 mine that any party is entitled to an
L. Ed. 553, 27 S. Ct. 350, 9 Am. & Eng. award of damages for a violation of the
Ann. Cas. 1075; Southern R. Co. v. Tift, act, the commission shall direct payment
206 U. S. 428, 51 L. Ed. 1124, 27 S. Ct. thereof, and if the carrier does not pay
709, 11 Am. & Eng. Ann. Cas. 846. within the time limited in the order the

6. Texas, etc., R. Co. v. Abilene Cotton complainant may sue to recover such

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 135 of 214)