50

7, 1888, entitled "An act to aid in the construction of a railroad and telegraph lines," etc., it is made the duty of the Attorney General of the United States by proper proceedings to protect and enforce the rights of the United States thereunder. This section makes no provision concerning jurisdiction to enforce these rights and, under the rule herein before stated, section 292, it would seem that the Attorney General might file suit in a state court if he chose so to do.

The next section giving a right to sue for penalties and damages prescribes that the "action for damages" may be brought in the "district court of the United States in any state or territory in which any portion of the road or telegraph line of said company may be situated." In construing this statute it was held that the special remedy provided did not exclude the equitable remedies, for, said the court: "It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." "

51

§ 303. Injunctions in Aid of Enforcement of Act.-An or der of the Commission "regularly made and duly served" may be enforced by the district courts of the United States at the suit of the United States or any party injured by a violation of such order.52

The district courts of the United States sitting in equity may restrain carriers subject to the provisions of the Commerce Acts from charging less than the legally published rates and from committing any discrimination forbidden by law, and when the act complained of is alleged to have been committed or as being committed in part in more than one judicial district or state, it may be dealt with, inquired of, tried, and determined in either such judicial district or

firming same styled case, 37 App. D. C. 266.

50. Sec. 473, post.

51. United States v. Union Pac. R. Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319.

52. Sec. 16 of Act amended by the District Court Act, by substituting District for Commerce Court, post, Sec. 407.

state, whereupon it shall be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to ordinary suits in equity, and to make such other persons or corporation parties thereto as the court may deem necessary.

District attorneys, when directed by the Attorney General, are required to institute and prosecute such proceedings, which shall not preclude a suit for damages by the party injured."

54

Under this provision, express companies were enjoined at the suit of the United States from giving or using franks." Rebating may be enjoined," and the practice of paying for transportation in advertising, being an illegal discrimination, could be and was enjoined." Injunction was sought against alleged violation of the commodities clause of the act." Injunctions against discriminations were granted prior to the date of the Act to Regulate Commerce."

§ 304. Injunctions against Unlawful Rates and Practices. -Prior to the amendment of 1910, which gave the Commission power to suspend tariffs affecting rates or increasing rates, it was a mooted question as to whether, before. action by the Commission, a court could enjoin a rate or practice contained in a legally filed tariff. Rates and practices inaugurated before the effective date of that amendment

53. Sec. 3 Elkins Act, Sec. 456, post.

54. United States v. Wells-Fargo Express Co., 161 Fed. 606; approved, American Ex. Co. V. United States, 212 U. S. 522, 53 L. Ed. 635, 29 Sup. Ct. 315.

55. United States v, Milwaukee Refrigerator & Transit Co., 145 Fed. 1007.

56. Chicago, Ind. & L. Ry. Co. v. United States, 219 U. S. 486, 55 L. Ed. 305, 31 Sup. Ct. 272, citing and following Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 Sup. Ct.

265; United States v. Baltimore & O. R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 Sup. Ct. 817.

57. United States ex rel. Atty. Gen. v. Delaware & H. R. Co., 213 U. S. 366, 53 L. Ed. 836, 29 Sup. Ct. 527; United States v. Lehigh Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, 31 Sup. Ct. 387.

58. Coe v. Louisville & N. R. R. Co., 3 Fed. 775; So. Ex. Co. v. Memphis & L. R. R. Co., 8 Fed. 799, 2 McCray 570, approved, So. Ex. Co. v. St. L. I. M. & S., 10 Fed. 210, 3 McCray 147; reversed.

could not be held unlawful by the Commission until after a full hearing. When after such hearing the rate or practice was declared illegal, damage could be awarded, but this remedy was inadequate. Each individual had to show the amount of his damages and had to pay the unlawful rate until it was decided unlawful after a hearing which sometimes took years to conclude. In a well considered case it was said: "A denial of the entire right of service by a refusal to carry differs, if at all, in a degree only, and in the amount of damages done, and not in the essential character of the act, from a denial of the right in part by an unreasonable discrimination in terms, facilities or accommodations.' '50

Injunctions were granted prior to the enactment of the Act to Regulate Commerce as has been shown in the next preceding section. The Supreme Court cited a case in which an injunction had been granted against unlawful discrimination, and assumed for the purpose of that decision that rights to a legal rate could be "enforced by a bill in equity."

60

Since the Act to Regulate Commerce was passed injunctions have been granted by different district judges, in some of which cases the district courts were affirmed by

but not on this point, Memphis

& L. R. Co. v. So. Ex. Co., 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628; Menacho v. Ward, 27 Fed. 529, 23 Blatchf, 502; Watson v. Sutherland, 5 Wall. 74, 72 U. S. 74, 18 L. Ed. 580.

59. McDuffie v. Portland & R. R. Co., 52 N. H. 430, 13 Am. Rep. 72.

60. Central Stock Yards Co. v. Louisville & N. R. Co., 192 U. S. 568, 570, 48 L. Ed. 565, 569, 24 Sup. Ct. 339, citing Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. 472.

61. Injuction granted Tift v. So. Ry. Co., 123 Fed. 789, 138 Fed. 753, affirmed So. Ry. Co. v. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709; the

affirmance, however, was based upon a stipulation in judicio; Toledo A. A. & N. M. Ry. Co. v. Penn. Co., 54 Fed. 730, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561, citing Coe v. Railroad Co., 3 Fed. 775; Chicago & A. Ry. Co. v. New York, L. E. & W. Ry. Co., 24 Fed. 516; Wolverhampton & W. Ry. Co. V. London & N. W. Ry. Co., L. R. 16, Eq. 433; Denver & N. O. R. Co. v. Atchison, T. & S. F. Ry. Co., 15 Fed. 650; Scofield v. Railway Co., 43 Ohio St. 571, 3 N. E. 907; Kalispel Lumber Co. v. Great N. Ry. Co., 157 Fed. 845; Kiser v. Central of Ga. Ry. Co., 158 Fed. 193; Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfg.

62

the circuit court of appeals." In the Macon Grocery Co. case, the question was presented to the Supreme Court and not decided, the circuit court of appeals having been affirmed because the venue had been improperly laid. Mr. Justice Harlan, dissenting, thought that the decision should have been placed on the Abilene case. The question was, therefore, not defintely determined by the Supreme Court.

§ 305. Same Subject-Conclusion. In the first edition of this book published in 1908 it was said: In view of the language used in the Tift case, it cannot be said that the Supreme Court has definitely determined the question as to whether or no the United States courts may, without previous action by the Commission, enjoin an illegal rate already in existence, or enjoin the putting in effect a proposed rate claimed to be illegal. The Supreme Court does hold that the Abilene case is not authority against such jurisdiction, and it would seem that a stipulation of counsel could not confer jurisdiction on a court unless the court at least had jurisdiction over the subject-matter. The question must be deter

Asso., 165 Fed. 1; Macon Grocery Co. v. Atlantic C. L. R. Co., 163 Fed. 738. Injunction denied: Potlatch Lumber Co. v. Spokane Falls & N. Ry. Co., 157 Fed. 588; but that decision was placed on the ground that the alleged rate was

already in force; Jewett Bros. & Jewett v. Chicago, M. & St. P. Ry. Co., 156 Fed. 160, but sustaining the jurisdictional right. Great N. R. Co. v. Kalispel Lumber Co., 165 Fed. 25; on the ground that the rate was effective before an application for injuction was made. Atlantic C. L. R. Co. v. Macon Grocery Co., 166 Fed. 206, 92 C. C. A. 114; reversing the District Judge. See also citing cases Long v. So. Ex. Co., 201 Fed. 441. Citing cases some affirming and some denying jurisdiction to grant an injunction prior to the amendment of June 18, 1910,

and holding that since that amendment: "which confers upon the Interstate Commerce Commission the power to suspend such rates or the enforcement of such rates until a full investigation on the part of the Commission. The point here involved is whether this remedy is exclusive or not whether it ousts the United States Courts of their general equity jurisdiction on that particular subject. The court is inclined to think the intention of Congress was to make the remedy provided by the amendment exclusive." M. C. Kiser Co. v. Cent. of Ga. R. Co., 236 Fed. 573, 576; Affirmed, 239 Fed. 718, - C. C. A.

see 249 U. S. 565.

62. Macon Grocery Co. v. A. C. L. R. Co., 215 U. S. 501, 54 L. Ed. 300, 30 Sup. Ct. 184.

mined by the Supreme Court and no more important question is now pending before that great tribunal.

If a shipper may not enjoin an unjust advance pending a determination by the Commission of its reasonableness, his remedy is clearly inadequate for the injury he may suffer from the exaction of the unjust rate.

Congress has been urged to give the Commission power to suspend an advance. The Senate Committee on Interstate Commerce. Senate bill 423, report No. 933. February 8, 1909, reported against giving such power to the Commission. One of the arguments used in that report is as follows:

"It is claimed that the indefinite suspension of the rate until final hearing is to deprive the carrier, if the rate advanced is reasonable, of his right of property during the period of suspension, without having given it any opportunity to be heard prior to the act of suspension. Due process of law must precede, and should not follow, the suspension. To set aside the carriers' act in fixing the rate pending the investigation required by due process of law is to deprive the carrier, pro tanto, of its property right to charge a reasonable rate. The fact that the statute requires an investigation after the suspension of the rate does not avoid the constitutional inhibition, as that provision can only be satisfied when the investigation precedes any disturbance of property rights. The carrier is entitled to the investigation before it is restrained. in the exercise of its property rights; the theory of the amendment suggested is that the shipper is entitled to an investigation before the carrier can exercise its property rights."

This argument would not apply to injunctions granted by courts because when such injunction is granted "the carrier receives an investigation before it is restrained in the exer cise of its property rights." The shipper also has "an investigation before the carrier can exercise" the power to deprive him of the right to trade in such a way that the remedy is inadequate and the damage irreparable.

§ 306. Same Subject-Effect of Amendment of 1910.-As to all rates, rules and regulations which may be suspended by the Commission under section 15 of the act of 1910, it would seem that the remedy at law is adequate and that, therefore,