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sion ordering a carrier to desist from discriminating in the matter of allowances
for floatage," lighterage, and terminal services.*^'

Distribution of Cars. — The commerce court, in the exercise of its power, un-
der the Act of Tune 18, 1910 (36 Stat, at L. 542, chap. 309), § 3, to enjoin, set
aside, annul, or suspend any order of the interstate commerce commission, has
jurisdiction to entertain a petition to enjoin an order of the commission requiring
railway companies to cease charging lower rates for coal intended for railway
consumption than is accorded to other shippers, and may enjoin such order if it
considers that it will work irreparable injury, where the question presented by
the petition is that the order of the commission was not merely administrative,
but proceeded from a construction of certain sections of the act to regulate com-
merce as applicable to the conditions which affected the traffic in the dift'erent
kinds of coal, and that the difl:'erent charges for transportation constituted viola-
tions of those sections.^^s

Order Granting Reparation.— The commerce court has jurisdiction of a
suit to annul an order of the interstate commerce commission which either awards
or denies reparation to a complainant under the Interstate Commerce Act.^^^ fhe
jurisdiction of the commerce court, of cases to enjoin or set aside any order of
the interstate commerce commission, does not confer jurisdiction to redress a
complaint based on refusal of commission to award relief to a shipper against de-
murrage regulations.""

§ 4216. Power to Review Order of Commission.— Where the facts
upon which an order of the interstate commerce commission is based are either
admitted or undisputed, whether or not such facts show a violation of law by a
carrier is a question of law, and a finding by the commission thereon is reviewable
by the commerce court.'^^ An order of the interstate commerce commission dis-
missing a complaint which is supported by substantial evidence and without er-
rors of law can not be annulled by the commerce court.' ^

Order for Relief from Long and Short Haul Clause. — The limitation of
the jurisdiction of the commerce court to that "now possessed" by the Circuit

companies to cease charging lower rates order would cause irreparable injury,

for coal intended for railway consumption Section 3 of the act creating the com-

than is accorded to other shippers. In- merce court gives that court the power

terstate Commerce Comm. v. Baltimore, to 'enjoin, set aside, annul, or suspend any

etc R Co., 225 U. S. 326, 56 L. Ed. 1107, order of the interstate commerce commis-

32 S Ct 742, Ann. Cas. 1914A, 504. sion, in a suit brought in the court against

67. Terminal charges.— That authority is the United States.' " Interstate Com-
conferred in express terms by § 3 (§ 208), merce Comm. v. Baltimore, etc R Co
36 Stat, at L. 1149, chap. 231, U. S. Comp. 225 U. S. 326, 56 L. Ed. 1107, 32 S. Ct.
Stat. Supp. 1911, p. 217, 36 Stat, at L. 542, 742. Ann. Cas. 1914A. 504. _

chap. 209), of the act. United States v. 69. Order granting reparation —Arkan-

Baltimore, etc., R. Co., 225 U. S. 306, 56 sas Fertilizer Co. v. United States, 193

L. Ed. 1100. 32 S. Ct. 817. Fed. 667. . . .i

68. Distribution of cars.— Interstate Under Act June 18, 1910, § 1, the com-
Cemmerce Comm. v. Baltimore, etc., R. merce court has jurisdiction of a suit to
Co., 225 U. S. 326, 56 L. Ed. 1107, 32 S. annul an order of the interstate comnierce
Ct ' 742 Ann Cas. 1914A, 504. commission awarding reparation in dam-

''The question presented by the petition ages to a complainant made under Inter-
is that the order of the commission was state Commerce Act, § 16 as aniended by
not merely administrative, but proceeded Act June 29, 1906. Southern R. Co. v.
from a construction of §§ 2 and 3 as ap- United States, 193 Fed. 664
plicable to the conditions which affected 70. Procter, etc. Co z/. United States,
the traffic in the different kinds of coal, 32 S. Ct. 761, 225 U. S. 282, 56 L Ed. 1091,
and that the different charges for trans- reversing judgment 188 I'ed. 221.
portation constituted violations of those 71. Power to review order of commis-
sections. The commerce court, therefore, sion.— Louisville, etc., R. Co. v. United
had jurisdiction of the petition and juris- States, 197 Fed. 58.

diction to enjoin the order of the com- 72. Chamber of Commerce v. United

mission if the court considered that the States, 197 Fed. 66.



3837 INTERSTATE COMMERCE ACT. §§ 4216-4217

Courts, did not prevent that court from reviewing an order of the interstate com-
merce commission on an apphcation for relief from the short and long haul
•clause of that section J'^

§ 4217. Procedure. — Mandamus. — An appeal will not lie to the com-
merce court to review the action of the interstate commerce commission in re-
fusing to entertain a petition, on the ground that the subject matter was not within
the scope of the commission's powers. The proper procedure is by mandamus
to compel the commission to take jurisdiction and proceed according to law.'^'^

Injunction. — Section 3 (208), provides that the mere pendency of a suit to
-enjoin, set aside, annul or suspend an order of the commission "shall not stay or
suspend the operation of such order" but confers upon the court the power, un-
der circumstances stated, to restrain or suspend in whole or in part the operation
of an order; that is, of course, an affirmative order, of the commission. The
same section makes a finding that irreparable injury will result from the opera-
tion of an order sought to be enforced, essential to the granting of an order re-
straining or suspending its enforcement.'^ In this case it was urged on behalf
of the United States and the interstate commerce commission that, wholly irre-
spective of the merits of the petition, the order granting the interlocutory injunc-
tion should be reversed because of what was insisted to be the express require-
ments of the act imposing the duty on the commerce court or a judge of that
court, if a restraining order was granted under the conditions in the statute, to
state the facts from which it was found that irreparable injury would arise if a
restraining order were not allowed. Answering this contention, the court said :
"Without ambiguity we think the statute contemplates three classes of orders:
First, a temporary restraining order staying in whole or in part the operation of
the order of the interstate commerce commission for not more than sixty days
from the date of the suspensive order, to be allowed by the court or a judge
thereof ; second, a preliminary injunction, that is. an injunction pendente lite,
which, to quote the words of the statute, may be granted by the court to 'restrain
or suspend, in whole or in part, the operation of the commission's order pending
the final hearing and determination of the suit;' third, in the nature of things a
perpetual injunction upon the entry of the final decree. "'^^

Statement of Facts. — Only temporary restraining orders of the commerce
court, issued conformably to the Act of June 18, 1910, staying in whole or in
part the operation of an order of the interstate commerce commission for not
more than sixty days, are afifected by the requirements of that section respecting
a statement of fact as to irreparable damage; they have no application to a pre-
liminary injunction or injunction pendente lite.""^ The order in this case, made
-after notice and hearing, suspending the force and efifect of the order of the com-
mission until further order of the court, was obviously an exercise of the power
conferred to grant a preliminary injunction or injunction pendente lite, and not
of the power to allow a temporary restraining order embraced in the first of the
classes stated. As we think it clear that the requirements of the statute relied upon

73. Order for relief from long and short 75. Injunction. — Procter, etc., Co. v.
haul clause.— An order of the interstate United States, 225 U. S. 282, 56 L. Ed.
commerce commission refusing an appli- 1091, 32 S. Ct. 761; United States v.
cation made by carriers under Act June Baltimore, etc., R. Co., 225 U. S. 306, 56
IS, 1910, § 8, amending Act Feb. 4, 1887, L. Ed. 1100, 32 S. Ct. 817; Interstate Com-
§ 4, for relief against the long and short merce Comm. v. Baltimore, etc., R. Co.,
haul clause of that section, is not ex- 225 U. S. 326, 56 L. Ed. 1107, 32 S. Ct.
eluded from the revisory power of the 742. Ann. Cas. 1914A, 504.

commerce court. United States v. Atchi- 76. United States v. Baltnuore, etc., R.

son, etc.. R. Co., 234 U. S. 476, 34 S. Ct. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S.

986; United States v. Union Pac. R. Co., Ct. 817.

234 U. S. 495, 34 S. Ct. 995. 77. Statement of facts.— United States v.

74. Procedure. — Interstate Commerce Baltimore, etc., R. Co., 225 U. S. 306, 56
Comm. V. Humboldt Steamship Co., 224 L. Ed. 1100, 32 S. Ct. 817.

U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556.



§ 4217 CARRIERS. 3838

respecting the statement of facts as to irreparable damages relate only to the first
class of cases, that is, the power to issue a temporary restraining order, we hold
the objection to be without merit.''' ^

General Equity Rules. — Inasmuch as it appears from the act creating the
commerce court and defining its powers and jurisdiction that the power of said
court to issue a preliminary injunction was recognized and preserved so as to af-
ford the court proper time for deliberation and consideration of the ciuestions
to be decided by the commission, instead of compelling said court, upon presenta-
tion of a petition, to reach a final conclusion eo instante, the general equity prin-
ciple requiring courts of equity called upon to allow preliminary pendente lite in-
junctions, to determine whether on the face of the papers presented there is such
an equitable cause of action presented as justifies the issue of the preliminary in-
junction praved for, will not be applied."'-* "Under the general principles of eq-
uity, where a court is called upon to decide whether it will allow a preliminary or
pendente lite injunction, the duty arising requires it to be determined whether, on
the face of the papers presented, there is such an equitable cause of action pre-
sented as justifies the issue of a preliminary injunction to preserve the status
pending the suit ; that is, to afiford an opportunity for a trial of the issues pre-
sented. Necessarily it is true that where an appeal is allowed from an order
granting a preliminary injunction the reviewing court is put to the duty of de-
termining whether, on the face of the papers, the court below erred as a matter
of law in granting the preliminary injunctions. Do these principles apply to the
case before us is then the first consideration. The result of holding that they
do, will inevitably cause the expunging from the act of the express authority con-
ferred to issue a preliminary injunction, since, viewed under the general princi-
ples of equity, the criteria by which to determine the rightfulness of such an or-
der in view of the nature and character of the jurisdiction of the commerce court
is exactly and exclusively the same criteria by which the rightfulness of a final
degree of that court, issuing a perpetual injunction in conformity to such decree,
would require to be tested. Our duty, however, is not to destroy the law, but
to enforce it ; and in doing so to seek to discover the intention of the lawmaker,
the wrong intended to be prevented, and the remedy designed to be afforded by
the enactment of the statute. Coming to consider the statute for this purpose,
we have pointed out in the Procter & Gamble Case that the great remedy intended
to be accomplished was the concentration in a single court of the power to con-
sider the rightfulness of enforcing or setting aside orders of the commission ; that,
to prevent unnecessary delays, the limitations as to restraining orders and their
duration, and the hearing which is commanded as to irreparable injury, were en-
acted. It must therefore in reason be that the power to issue a preliminary in-
junction was recognized and preserved so as to afford the court the proper time
for deliberation and consideration of the questions to be decided by the commis-
sion, instead of compelling that body virtually eo instante upon the presentation of
a petition to reach a final conclusion. x-\nd it would seem also to be the case that
the right to appeal from such an order was given as a safeguard against a possi-
ble abuse of discretion by an unwarranted, arbitrary, and unreasonable exercise
of the power conferred. In other w^ords, we think that the enlightened purpose
of congress was that the court which it created, in the exercise of the important
trusts confined to its authority, and where occasion required it as a consequence
of the gravity and complexity of the legal questions which might arise, should be
afforded ample opportunity for due consideration and ripe judgment, and that it
was not intended to compel precipitate, and perhaps ill-considered, action. "^^

78. United States v. Baltimore, etc., R. 56 L. Ed. 1100. 32 S. Ct. 817.

Co 225 U. S. 306, 56 L. Ed. 1100. 32 S. 80. United States v. Baltimore, etc., R..

Ct. 817. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S-

79. General equity rules. — United States Ct. 817.
V. Baltimore, etc., R. Co., 225 U. S. 306,



3839 INTERSTATE COMMERCE; ACT. §§ 4217-4218

Appeal. — The commerce court was created for the purpose, among other
things, of interposing between the interstate commerce commission and the fed-
eral supreme court an intermediate tribunal having powers which the statute
delegates to it, and it is the duty of the federal supreme court to uphold the la\y-
ful authority of the commerce court. Therefore, the federal supreme court ^yill
not reverse an order of the commerce court granting a preliminary injunction
against an affirmative order of the interstate commerce commission, except in
the case of a clear abuse of power, but will remand the case so that there may
Ije an opportunity to dispose of it on the merits in the form selected by congress
for that purpose. "^^

Order Granting Injunction. — The federal supreme court will not disturb on
appeal the granting by the commerce court of an injunction pendente lite sus-
pending, until final determination of the suit, an order of the interstate com-
merce commission, requiring certain carriers to desist from making further
alleged discriminatory allowances, unless it was so unwarranted, arbitrary, and un-
reasonable as to amount to an abuse of discretion. ■'^- It is not disputable that al-
though the right to appeal to this court from an order like the one here in question
is conferred, yet obviously the purpose which must have caused the creation of
the commerce court must have been the desire to interpose between the action of
the commission and this court an intermediate tribunal, having the powers which
the statute delegates to it. Our duty is to give that purpose effect and to uphold
the lawful authority of the court without deviation, and yet without hesitancy,
where there has been an abuse of discretion, to correct it in the completest way.
But as this case manifests no such abuse, our duty is not to reverse the action of
the court, but to remand the case, so that there may be an apportunity to dispose
of it on the merits in the forum selected by congress for that purpose. Of course,
in saying this, we must not be understood as deciding or in any way implying that
the duty would not exist to examine the merits of a preliminary order of the
general character of the one before us in a case where it plainly, in our judgment,
appeared that the granting of the preliminary order was in effect a decision by
the court of the whole controversy on the merits, or where it was demonstrable
that grave detriment to the public interest would result from not considering and
finally disposing of the controversy without remanding to enable the court to do
so.^^

§ 4218. Proceeding's in State Courts. — The interstate commerce law pro-
vides in § y that any person claiming to be damaged by any common carrier,
subject to the provisions of this act, may either make complaint to the commis-
sion, or may bring suit, in his own behalf, for the recovery of damages for which
such carrier may be liable under the provisions of the act. in any district or
circuit court of the United States of competent jurisdiction; but such person
shall not have the right to pursue both remedies, and must in each case elect which
one of the two methods of procedure he will adopt. The state courts have no
jurisdiction of such a claim for damages. '^^ But it has been expressly held in
many of the states that the provisions of § 20 of the Interstate Commerce Act are

81. Appeal. — United States v. Baltimore. (Act Cong. Feb. 4, 1887, c. 104, 24 Stat,
etc.. R. Co.. 225 U. S. 306, 56 L. Ed. 1100. 3S2. U. S. Comp. St. 1901, p. 3159), con-
32 S. Ct. 817. ferring jurisdiction of an action for vio-

82. Order granting injunction. — United lation of the provision of the act on the
States c'. Baltimore, etc.. R. Co., 225 U. federal circuit and district courts alone,
S. 306. 56 L. Ed. nOO, 32 S. Ct. 817. and putting the party complaining to his

83. United States v. Baltimore, etc.. R. election lietween that remedy and pro-
Co.. 225 U. S. 306, 56 L. Ed. 1100, 32 S. ceedings before the interstate commerce
Ct. 817. commission, also provided for by the act.

84. Proceedings in state courts. — Copp a state court has no jurisdiction of such
V. Louisville, etc., R. Co., 43 La. Ann. 511, an action. Gulf. etc.. R. Co. v. Moore,
9 So. 441, 12 L. R. A. 725, 26 Am. St. 98 Tex. 302. H3 S. W. 362. reversing 80
Rep. 198. . S. W. 426.

Under Interstate Commerce .^ct, § 9,



§§ 4218-4219 CARRIERS. 3840

the subject of cognizance and enforcement by the state courts. ^-^ Except as to
those things which the interstate commerce commission has defined and de-
nounced as undue discrimination, a discrimination complained of may be dealt
with by the state courts according to their own statute or the common law.^*^
A shipper sued a carrier in the courts of a state to recover the excess of what it
alleged tc be an unjust and unreasonable charge on shipments of carloads of
cotton seed. The defense was that the rates were charged according to the sched-
ule of rates filed under the interstate commerce act, and that the court had no^
jurisdiction to grant relief upon the basis that the established rate was unreason-
able, when it had not been found to be so by the interstate commerce commission.
It w'as held that the state courts had no jurisdiction to entertain a suit based on
the unreasonableness of a rate as published in advance of the action of the in-
terstate commerce commission adjudging the rate unreasonable. And it was in
effect held that reparation after such action for the excess above a reasonable
rate must be by a proceeding before the commission, "because of a wrong en-
dured during the period when the unreasonable schedule was enforced by the
carrier and before its change and the establishment of a new one." '^'

Enjoining Filing of Rates. — A state court has no jurisdiction to enjoin a
railroad engaged in interstate transportation from filing with the interstate com-
merce commission a schedule of its rates for transportation of coal from a point
in the state to a point in another state on the ground that the rates are unfair
and discriminatory.^^

Review. — Where the defendant specially sets up a defense under the Inter-
state Commerce Act, which, if denied to him, is an adverse ruling of federal
right which will warrant the bringing of the case to the supreme court of the
United States from the highest court of a state. '^'^

§ 4219. Election of Remedies. — Section 9 of the act provides that persons
claiming to be damaged may make their complaint either to the commission in the
manner provided in the act, or by bringing suit on their own behalf for the re-
covery of damages for which such carrier may be liable under the provisions
of the act in any district or circuit court of competent jurisdiction; and such
persons shall not have the right to pursue both of these remedies, and must
elect which of the two methods of procedure herein provided for they will
adopt. ^'^ Persons damaged may complain to commission or sue personally. But

85. Pittsburgh, etc., R. Co. v. Mitch- 67 W. Va. 448, 68 S. E. 107, 28 L. R. A.,
ell, 175 Ind. 196, 91 N. E. 735, 93 N. S., 108.

N. E. 996, citing Murray v. Chicago, 89. Review. — Atchison, etc., R. Co. v,

etc., Co., 62 Fed. 24; Midland Valley Co. Robinson, 233 U. S. 173, 34 S. Ct. 556.

V. Hofifman Co., 91 Ark. 180, 120 S. W. 90. Election of remedies.— Atlantic, etc.,

380; St. Louis, etc., R. Co. v. Grayson, 89 R. Co. v. Macon Grocery Co., 166 Fed.

Ark. 154, 115 S. W. 933; Southern Pac. 206, 92 C. C. A. 114.

Co. V. Crenshaw, 5 Ga. App. 675, 63 S. Under Interstate Commerce Act Feb.
E. 865; Georgia Railroad v. Creety, 5 Ga. 4, 1887, c. 104, § 9, 24 Stat. 382 [U.
App. 424, 63 S. E. 528; Brantley Co. v. S. Comp. St. 1901, p. 3159], providing that
Ocean Steamship Co., 5 Ga. App. 844, 63 any person claiming to be damaged by
S. E. 1129; Pittsburgh, etc., Co. v. Wood violation of the act may make complaint
(Ind. App.), 84 N. E. 1009; Galveston, to the commission thereby created, or
etc., Co. V. Crow (Tex. Civ. App.), 117 bring suit to recover damages sustained,.
S. W. 170; Chicago, etc., Co. v. Clements, where plaintiff elected to proceed by a
53 Tex. Civ. App. 143. 115 S. W. 664; complaint to the commission, he was
Galveston, etc., Co. v. Piper, 52 Tex. thereafter confined to the remedy pro-
Civ. App. 568, 115 S. W. 107. vided by the act. Western New York,

86. Puritan Coal Min. Co. v. Pennsyl- etc., R. Co. v. Penn Refin. Co., 137 Fed.
vania R. Co., 237 Pa. 420, 85 Atl. 426. 343, 70 C. C. A. 23, afifirmed in 28 S. Ct.

87. Texas, etc., R. Co. v. Abilene Cotton 268, 208 U. S. 208, 52 L. Ed. 456.

Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Where plaintiff sued an interstate car-

S. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075. rier in a federal court to recover dam-

88. Enjoining filing of rates. — Thacker, ages for alleged unreasonable charges,
etc., Coko Co. V. Norfolk, etc., R. Co., without having first presented its griev-



3841 INTERSTATE COMMERCE ACT. §§ 4219-4220

they can not have both remedies, and must elect between them.^'i Where a
shipper claimed a right to recover aggregate excess freights aheged to have been
paid on various interstate shipments, alleging that the rate charged consisted of
the sum of local rates through a point of concentration, and that the rule that
a shipper should only be entitled to the benefit of a lower through rate when the
original bill did not state the ultimate destination, was unreasonable, a complaint
charging that such condition had been previously submitted to the interstate
commerce commission in another proceeding by different shippers against the
defendant carrier, and had been found unreasonable and invalid, was insuffi-
cient to relieve plaintiff' from the duty of submitting its claim to the commission
before beginning suit in a federal court thereon. ''-

Cumulative Remedies. — The special remedies afforded by the Interstate
Commerce xA.ct to prevent the imposition of unjust or unreasonable rates were
intended to supplement, and not to supplant, the existing remedies furnished by
the common law.''^

Proceeding- by Mandamus. — An action in a federal court for a mandamus,
under § 10 of the Act of March 2, 1889, amendatory of the interstate commerce
act, which authorizes such action by a shipper against an interstate carrier to
compel a compliance with the act, and further provides that "the remedy hereby
given by writ of mandamus shall be cumulative, and shall not be held to ex-
clude or interfere with other remedies provided by this act or the act to which
it is a supplement,'' does not preclude the relator or others from proceeding in
respect to the same matter by petition to the interstate commerce commission,
under § 13 of the original Act of Feb. 4, 1887, and the court in the mandamus
suit is without power on an ancillary bill to enjoin such proceeding.^^ If con-
gress had intended that the remedy aft'orded by § 2Z was to be exclusive, it
would have added a proviso similar to the one incorporated as a part of § 9,
and not having done so it is manifest that it was the intention of Congress that



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 138 of 214)