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Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 damages, and in such suit the findings and
S. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075. order of the commission shall be prima

7. Action to recover excess of freight. facie evidence of the facts therein stated.
— In an action by a shipper to recover the All complaints for the recovery of dam-
excess of freight on interstate shipments, ages are also required to be filed with the
the rates charged being according to the commission within two years after the
schedule filed and published by ■the car- cause of action accrues, and a petition for
rier. pursuant to Act Cong. Feb. 4, 1887 the enforcement of an order within one
(Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. year after the date of the order. Held,
S. Comp. St. 1901, p. 3153]), and the sev- that an action by an interstate shipper to
eral acts amendatory thereof, nothing but recover damages for a charge pf illegal
a prior adjudication by the interstate and excessive rates is not maintainable
commerce commission that such rates are until after a hearing and award before the
excessive and unreasonable will justify a interstate commerce commission. How-
recovery. Robinson v. Baltimore, etc., R. ard Supply Co. v. Chesapeake, etc., R. Co.,
Co., 63 S. E. 323, 64 W. Va. 406. 162 Fed. 188.

Interstate Commerce Act Feb. 4, 1887, 8. Howard Supply Co. v. Chesapeake,.

c. 104, § 16, 24 Stat. 384 (U. S. Comp. St. etc., R. Co., 162 Fed. 188.
1901, p. 3165), as amended by Act Cong.



3825 INTERSTATE COMMERCE ACT. §§ 4199-4201

petition filed after the commission has acted, stating the substance of the find-
ings of the commission, and containing a copy of its report and opinion, where
defendants have stipulated in open court that, in case complainants prevailed,
decree of restitution might l)e made."

Action for Penalty for Failure to Feed and Water Stock. — Since an
action against an interstate carrier for violation of the twenty-eight hour law
is a civil action for a penalty, § 4, authorizing such action to be brought in the
circuit or district court of the United States within the district where the viola-
tion may have been committed or the person or corporation resides or carries
on business, is not unconstitutional, as a violation of the sixth amendment of
the federal constitution, declaring that in criminal prosecutions the accused shall
be entitled to a trial in the district where the crime has been committed.^"

§ 4200. Equity Jurisdiction. — Under its general chancery jurisdiction, a
court of equity has power to remedy wrongs consisting of the violation by a
carrier of the provisions of the interstate commerce law prohibiting discrim-
ination between shippers. ^^

Statutory Provision. — The Act of Feb. 19, 1903, providing that the equity
jurisdiction of the United States shall extend to cover a suit by the government
against a carrier for unlawful discrimination between shippers, applies not only
to violations of the interstate commerce law subsequent to its enactment, but
to every violation, whether previously or subsequently.^- Prior to the Act of
Feb. 19, 1903, a United States circuit court had no jurisdiction in equity over
a suit instituted by the attorney general of the United States to enjoin a rail-
road company from granting rebates under the interstate commerce law, es-
pecially where no order had been made by the interstate commerce commission
on the railroad company to discontinue the forbidden act.^^

Adequate Remedy at Law. — The rule that equitable relief will not be
granted until the complainant's right or title has been established in an action
at law does not apply where the subject matter of the litigation is alleged dis-
crimination in violation of the interstate commerce act ; and where, in such
case, the remedy at law is not adequate, equity will take jurisdiction. ^^

§ 42 01. Proceedings at Law or in Equity. — When the court is invoked
by the commission to enforce its lawful orders or requirements, the court shall
proceed, as a court of equity, to hear and determine the matter, and in such
manner as to do justice in the premises.^-''

Action for Reparation Distinguished from Suit to Enforce Order. —
The Interstate Commerce Act makes a clear distinction between a suit brought
to enforce an administrative order made by the interstate commerce commission,
which is in equity, the only question in issue being the lawfulness of the order,
and an action brought to recover damages for which reparation has been awarded
by the commission. The latter is not a suit to enforce the order, nor based
thereon, but is an independent plenary action at law, triable to a jury, and to
proceed "like all other civil suits for damages," except that the findings and
order of the commission are receivable as prima facie evidence of the facts
therein stated, the commission being required byǤ 14, on making an order award-

9. Action to recover damages. — South- v. Michigan Cent. R. Co., 122 Fed. 544.
ern R. Co. v. Tift, 200 U. S. 428, 51 L. 13. United vStates v. Atchison, etc., R.
Ed. 1124, 27 S. Ct. 709, 11 Am. & Eng. Co., 142 I'cd. 17r,.

Ann. Cas. 846, affirming 138 Fed. 753. 14. Adequate remedy at law. — Interstate

10. Action for penalty for failure to Stockyards Co. v. Indianapolis, etc., R.
feed and water stock. — Judgment United Co.. 99 Fed. 472.

States V. Soutlicrn T^ac. Co., 102 Fed. 412, 15. Proceedings at law or in equity. —

affirmed in 171 I'cd. 304, 90 C. C. A. 256. Interstate Commerce Comm. v. Alabama

11. Equity jurisdiction.— United States Mid. R. Co., 168 U. S. 144, 42 L. Ed. 414,.
V. Aliclii-an Cent. R. Co., 122 Fed. 544. 18 S. Ct. 45.

12. Statutory provision. — United States



§§ 4201-4202 CARRIERS. 3826

ing damages, but not otherwise, to make and report the findings of fact on
which the award is made.i^'

§ 42 02. Parties. — x\ll parties in whose favor the interstate commerce com-
mission has awarded damages by a single order may be joined as plaintiffs in a
suit to recover those damages. i''' As in such a suit separate recoveries in favor
of each plaintiff and against each defendant respectively may be secured by a
tingle judgment, that judgment and every part of it may be challenged by a
single writ of error to which all in interest are made parties. ^^ Where the
shipments under a schedule of rates were entirely without the district, and the
other carrier, which was a party to such schedule, is not before the court, it has
no jurisdiction over the schedule, or power to prevent a discrimination com-
plained of.^''

Proper and Necessary Parties. — A terminal or belt railroad company,
which owns and leases tracks and switches in and around a city, and entirely
within one state, and which has entered into a contract with the several roads
entering the city, under which its property is entirely managed and operated by a
board of managers composed of a member selected by each of such roads, who
pay a fixed rental therefor, is a proper, but not a necessary, party to a suit against
such roads for violating the Interstate Commerce Act by discriminating against
a business establishment located on its lines, and its joinder in such suit does not
deprive a federal court of jurisdiction. ^o

Action for Penalty. — An action under Interstate Commerce Act ^i against
an interstate carrier to recover damages for a violation of the act, is not one
strictly for the recovery of a penalty, and under a state statute 22 which provides
that executors or administrators shall have power to commence and prosecute all
personal actions which the decedent whom they represent might have com-
menced and prosecuted except actions for slander, for libels, and for wrongs
done to the person, such an action against a carrier which has abated by the
death of the plaintiff may be revived in the name of his executors. ^^

Where, in an action to recover damages against an interstate carrier for
nnposition of alleged unreasonable rates, it appeared that some of the shipments
were made by plaintiff, an objection that plaintiff was not the real party in in-
terest because the rights of other shippers had been illegally assigned to it was
unsustainable.-'*

Mandamus or Injunction to Prevent Discrimination. — The grant of
power to federal courts to issue mandamus against a common carrier corpora-
lion to prevent discrimination necessarily embraced power to act on the officers
of such corporation in control thereof, independent of § 2 of the Act of Feb. 19,
1903, providing that in any proceeding to enforce the statutes relating to in-
terstate commerce it should be lawful to include as parties, in addition to the
carrier, all persons interested in or aft'ected by the practice under consideration,
etc. 25 Where there has been a preliminary inquiry and finding by the interstate

16. Action for reparation distinguished 20. Proper and necessary parties. — In-
from suit to enforce order. — Lehigh Val- terstate Stockyards Co. v. Indianapolis,
ley R. Co. v. Meeker, 211 Fed. 785. etc., R. Co., 99 Fed. 472.

17. Parties. — Act June 29, 1906, c. 3591, 21. Action for penalty.— Act Feb. 4,
§ 16, par. 3, 34 Stat. 590 (U. S. Comp. St. 1S87, c. 104, § 9, 24 Stat. 382 (U. S. Comp.
Supp. 1909, p. 1160). St. 1901, p. 3159).

18. "This case will therefore he consid- 22. Act Pennsylvania Feb. 24, 1834. §
ered upon the writ of error against all the oR Pa. Laws, 78

defendants in error, and the writs against '^^ Langdon 7'.' Pennsylvania R. Co., 194

each of them respectively will be dis- p , .„g

missed, without costs." Union Pac. R. " ^^ ' . , -n , r^ r^, ■

Co. V. Updike Grain Co., 178 Fed. 223. 24. National Pole Co. v. Chicago, etc.,

See Kansas, etc.. R. Co. v. United States, ^- ^o- ^^ ^ed. 65.

231 U. S. 423, 34 S. Ct. 125. 25. Mandamus to prevent discrimina-

19. Allen v. Oregon R., etc., Co., 98 tion. — West Virginia, etc., R. Co. v. King-
Fed. 16. wood Coal Co., 134 Fed. 198.



3827 INTERSTATE COMMERCE ACT. §§ 4202-4204

commerce commission on the question of such unlawful discrimination, a suit
against the carrier may be maintained by the government.-'^ The Act of Feb.
19, 1903, § 3, authorizes a suit in equity by the United States to restrain a viola-
tion of the act by discrimination or the giving of rebates only against a common
carrier, subject to its provisions.-"

Injunction to Prevent Rebating. — The Act of Feb. 19, 1903, § 3, prohib-
iting rebates by carriers, provides for actions by the interstate commerce com-
mission after investigation, and declares that it shall be the duty of the several
district attorneys of the United States, whenever the attorney general shall
direct, either of his own motion or upon the request of the interstate commerce
commission, to institute and prosecute such proceedings. The attorney general
had authority to institute a proceeding to restrain rebating by interstate carriers
of his own motion, without direction or investigation on the part of the inter-
state commerce commission.-^

§ 42 03. Limitation and Laches. — A state statute providing that actions
to recover a forfeiture or penalty on a penal statute shall be brought within one
year, has no application to an action in a federal court against a common carrier
to recover damages for discrimination in violation of Act of Feb. 4, 1887, pro-
viding that for a violation of the terms of the act the carrier shall be liable to
the persons injured for the full amount of damages sustained and for a reason-
able counsel or attorney's fee to be taxed by the court. Such action is governed
by Rev. St., § 1047, providing that no suit or prosecution for any penalty or
forfeiture accruing under the laws of the United States shall be maintained,
except as otherwise specially provided, unless commenced within five years from
the time when the penalty or forfeiture accrued, etc.-^

Under Act of June 29, 1906. — State laws declaring contracts invalid which
require the l)ringing of an action against a carrier for loss of or damage to a
shipment in less than the statutory period were superseded, so far as interstate
shipments are concerned, by the Carmack amendment of June 29, 1906, which
furnishes the exclusive rule on the subject of the liability of the carrier under
contracts for shipment. ^*^

§ 4204. Pleadings. — Allegations as to Parties. — In an action brought
by a shipper against a common carrier subject to the Interstate Commerce Act to
recover alleged excessive charges discriminating against him in favor of other
shippers, where one of the grounds alleged was the nonpublication of the tariff
applicable at the stations of shippers as reciuired by law, and failure to file same
with the commission, and that the existence of the same was concealed from
the knowledge of the plaintiff and other shippers and the benefits of the rates
therein specified denied them, it was held that the allegations did not show, as
they must show, that plaintiff had been injured by facts alleged if true.^^ The
complainant's bill alleged that it was a wholesale dealer in merchandise, located
at Portland ; that the defendants, owners of connecting railroad lines, had es-
tablished a schedule of joint-freight tariffs between Portland and points in

26. Injunction to prevent discrimina- ment are not forbidden to stipulate that
tion. — United vStates v. Michij.?an Cent. R. an action ag^ainst the carrier in case of
Co.. 122 Fed. 544, damages to the shipment must be brought

27. Attorney General v. Union Stock- within ninety days after the damage was
yard, etc., Co., 192 Fed. 3.10. sustained, by the provisions of tlie Car-

28. By whom instituted. — ITnited States mack amendment of June 29, 1900, to the
V. Milwaukee, etc.. Trans. Co., 145 Fed. Act of Fel)ruary 4, 18.S7, § 20, prohibiting
1007. exemptions from the lialiility imposed by

29. Limitation and laches. — Carter v. that act. Missouri, etc., R. Co. v. Harri-
Xew Orleans, etc., R. Co.. 74 C. C. A. man, 227 U. S. 057, 3;$ S. Ct. 397.

293, 143 Fed. 99. 31. Pleadings. — Parsons v. Chicago, etc.,

30. Under Act of June 29, 1906.— The R. Co., 1()7 U. S. 447, 42 L. Fd. .231, 17
shijjper and carrier of an iiUerstate ship- S. Ct. 887.

4 Car— 46



§ 4204 CARRIERS. 3828

Idaho on the second hne ; that such second road, in connection with a third, had
also established a schedule of joint rates on freight from San Francisco to the
same points, under which the charge from San Francisco was the same as from
Portland, although the distance was greater ; and that, under the divisions made
between the respective roads, the second road received a smaller rate, relative to
the length of the haul over its line, under the latter than under the former sched-
ule, in which the haul was from the opposite direction. The bill charged that
such facts constitute an undue preference in favor of San Francisco and its
merchants over Portland and its merchants, in violation of § 3 of the interstate
commerce law, and that therefore the rates charged from Portland were unjust
and unreasonable, under § 1 of such law. The bill stated no grounds for relief
under either section, because the shipments under the second schedule being
entirely without the district, and the other road, which was a party to such
schedule, not being before the court, it had no jurisdiction over that schedule,
or power to prevent the discrimination complained of.-"^-

Allegations as to Discrimination. — Where a count in a complaint against an
interstate carrier alleged a discrimination in rates against plaintiff, in that de-
fendant charged plaintiff the full tariff rates and permitted plaintiff"s competitors
by a device to transport their similar products at a lower rate, it stated a cause
of action for violating the Pnterstate Commerce Act, prohibiting discrimina-
tion, and was therefore not demurrable, though it also insufficiently attempted
to allege a combination or conspiracy, on defendant's part, with certain other
railroads to restrain trade, and to recover treble damages under the Anti-Trust
xA.ct, of Act of Jnly 2, 1890.^^ The complainant's bill alleged that it was a whole-
sale dealer in merchandise, located at Portland : that the defendants, owners
of connecting railroad lines, had established a schedule of joint-freight tariff's
between Portland and points in Idaho on the second line ; that such second
road, in connection with a third, had also established a schedule of joint rates
on freight from San Francisco to the same points, under which the charge from
San Francisco was the same as from Portland, although the distance was greater ;
and that, under the divisions made between the respective roads, the second
road received a smaller rate, relative to the length of the haul over its line,
under the latter than under the former schedule, in which the haul was from
the opposite direction. The bill charged that such facts constituted an undue
preference in favor of San Francisco and its merchants over Portland and its
merchants, in violation of § 3 of the interstate commerce law, and that therefore
the rates charged from Portland were unjust and unreasonable, under § 1 of such
law. The bill stated no grounds for relief under either section, because the
rates from Portland, not being alleged to be unjust or unreasonable in them-
selves, could not become so by comparison with other joint rates from an oppo-
site direction, and from a different and competing point on a dift"erent line of
road.34

Allegations as to Rebates. — In a suit in equity by the United States against
interstate carriers and others, brought, under the Act of Feb. 19, 1903, to enjoin
the giving and receiving of unlawful rebates, in which the lawfulness of pay-
ments made by the carriers depends upon the intent with which they were made
and received, the bill is sufficient on its face to show the unlawful intent and the
illegality of the payments, where it alleges that a defendant brewing company,
which was a large shipper of beer prior to the enactment of such statute, habitu-
ally received rebates from carriers ; that shortly after such enactment its officers,
who were also its controlling stockholders, organized a transit company (de-
fendant) and became its officers and the owners of practically all of its stock, and

32. Allen v. Oregon R., etc., Co., 98 R. Co., 159 Fed. 278.

Fed. 16. 34. Allen v. Oregon R., etc., Co., 98

33. Allegations as to discrimination. — Fed. 16.
American Union Coal Co. v. Pennsylvania



3829 INTERSTATE COMMERCE ACT. § 4204

on behalf of the brewing company contracted with it to make all the shipments
for the brewing company ; that the transit company contracted for shipments
with such interstate carriers as would pay it from one-tenth to one-eighth of the
published rate for the transportation, ostensibly as a commission for obtaining
the business, but in fact, as was well known to the carrier defendants, as a rebate
for the benefit of the brewing company. ^^

Construing Allegations in Pleadings. — Where other shippers had brought
actions for recovery on similar grounds as in this case, while, this being an ac-
tion in behalf of a different plaintiiT, he is not concluded by the evidence intro-
duced on those trials, can state other and different facts, and recover on other
and distinct grounds, yet the same acts on the part of the defendant are made
m all the cases the basis of relief. Hence, allegations in this petition, which are
doubtful in their meaning and susceptible of two constructions, may not un-
fairly be taken as intended to mean that which the testimony in the former cases
showed were the facts. "The course of the litigation makes it apparent that the
purpose was not simply to present a new case to the same court, but to obtain
from a higher court a construction of the law applicable to the facts. The brief
of counsel, while it points out what is alleged are differences between the case
made in this petition and that established in the prior cases, also discloses that
in his judgment the views expressed by the court of appeals in those cases were
wrong, and that he is seeking the judgment of this court thereon. It was easy,
if counsel intended to present an entirely dift"erent case, to make the averments
so positive and distinct as to clearly distinguish it." ^'^ "It is urged as against
the sufficiency of the statement of facts contained in the pleas that the rates
fixed by the schedules are not so stated that the court may determine whether
such rates are different from those fixed by the contract; that the times when
the schedules were published is not shown ; that the facts are not sufficiently
stated to enable the court to determine that the rates provided by the contract
are less than charged others for like and contemporaneous services under sub-
stantially the same conditions and circumstances. The contract in question is,
however, set out in full in the plaintiff's declaration, and w^as thus properly
before the court for consideration in connection with the pleas. Whatever may
be said of the sufficiency of the first, second, and fourth pleas, it seems clear
that the allegations of the third plea, taken in connection with the contract,
definitely apprise the plaintiff of the defendant's contention that, at the time
of the making of the contract and during its continuance defendant's rates,
fares and charges were established and published in compliance with the pro-
visions of § 6 of the act ; and that by the agreement in question the defendant
contracted to receive from the plaintiff' a less compensation for the transporta-
tion of property than specified in the published schedules of rates, fares, and
charges in force at the time and times in question. The third plea expressly
asserts net only that defendant 'duly establishes, publishes and files its schedule
of rates, fares, and charges for the transportation of passengers and property
between the states aforesaid in the manner as therein provided,' but also that :
'It has at all times so established, published, and filed its schedules of rates and
charges for the transportation of property between points in the state of Arkansas
and the state of Tennessee, and other points in the several states through
which its line runs, and particularly from Round I'ond. Ark., to the city of
Memphis.' It also asserts that : 'The terms of the agreement set forth in the
plaintiff's declaration taken in connection with the statements and allegations in
said declaration contained, and as construed by said statements and said declara-
tion, particularly taken in connection with the allegation that said plaintiff is
not a co'Timon carrier, rcnnirc this defendant In di\i(]e its lawful, establishc<k

35. Allegations as to rebates. — United 36. Construing allegations in pleadings.

States V. Milwaukee, etc., Trans. Co., 142 — Parsins z'. Chicago, etc., R. Co., Hi? U.
Fed. 247. S. 447, 42 L. Ed. 2:51, 17 S. Ct. 887.



§§ 4204-4207 carriers. 3830

published, and filed schedule of rates and charges for the transportation of the
property in plaintiff's declaration described with the plaintiff not as a common
carrier, but as a shipper.' •*" The declaration alleges, however, that the only
reason assigned by defendant and its predecessor in interest for failing to fur-
nish sufficient cars was that the defendant did not have sufficient and adequate
cars, and the rule is invoked that, where a party gives a reason for his con-
duct touching anything involved in the controversy, he is estopped, after litiga-
tion is begun, from changing his ground and putting his conduct on another
and different ground. The general rule referred to is well supported." ^'^

§ 4205. Issues, Proof and Variance. — 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-
ruary 4, 1887, as prevents the relator from having interstate traffic moved by
the common carrier at the same rates as are charged, or on terms as favorable
as those given, by the 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 shipper over another similarly situated, and that character of discrimina-
tion must not only be pleaded, but it must be proved, by the relator ; otherwise,
the writ will be denied. ^^

§ 42 06. Presumptions and Burden of Proof. — The cause of action of a



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 136 of 214)