injunction and ordered a dismissal of the bill, Shelby, J., dissenting. The court said that a decree in equity would work incalculably greater mischief in interfering with the statutory rates than would an action at law. The same ruling was made in the fourth circuit (Columbus I. & Steel Co. v. Kanawha & N. Ry. Co., 178 Fed. 261, affirming 171 Fed. 173), in February 1910; and these cases were followed by the court of appeals of the second circuit in Wickwire Steel Co. v. New York Central Co., 181 Fed. 316, June 1910. In this case the order which was reversed, restrained defendants from promulgating a proposed schedule through the commission and from putting it into effect pending the determination of the reasonableness of the rate by the commission, the complainant being required to file bond to indemnify defendants from loss in case the commission found the rate to be reasonable.

In Jewett Bros. v. C. M. & P. Ry. Co., 156 Fed. 161, in 1907, southern district of Dakota, it was held by Garland, J., that the court could not grant a temporary injunction to restrain a carrier from putting into effect an alleged unlawful rate, where the suit was merely in aid of a proceeding before the commission, since the commission was without power to pass upon a rate which was merely proposed by a carrier.

In Sandusky-Portland Cement Co. v. B. & O. R. Co., in the circuit court of appeals of the seventh circuit, 187 Fed. 583 (1911), the complainant sought to enforce a contract whereunder the railroad company agreed under the consideration of his establishing a cement factory on its line of a certain capacity, that the railroad's regular established tariff rates on cement during a specified period should not exceed those made out in the schedule. The court refused to grant relief saying that the Interstate Commerce Commission was charged with the unitary administration of interstate regulations and that the court could not grant relief, in advance of a finding by the commission on an issue whether the rates were reasonable or unreasonable to be obtained in the light of the railroad's operations as an entirety. The court said that the Interstate Commerce Commission superseded a primary jurisdiction over all other tribunals upon the question of facts arising upon interstate rates.

It should be observed, however, that these decisions excepting the last cited were rendered prior to the amendment of 1910,

which enlarges the power of the commission in the very matter in which the temporary injunctions were sought to prevent irreparable injury pending the investigation by the commission, as now the commission is empowered to suspend an increase of rates for a stated period for the purpose of investigating their reasonableness. The principle discussed in these cases would seem not to apply where the aid of the court is sought to enforce the performance of a duty by a carrier imposed by general law and therefore not within the duty of the commission as specified in the act. Thus, in L. & N. R. Co. v. F. W. Cook Brewing Co., 172 Fed. 117 (1909), circuit court of appeals seventh circuit, where the court had jurisdiction of the parties and the suit was brought to compel the carrier to carry intoxicating liquors into a district where the sale was prohibited by law, the court held that an application of the statute to shipments from other states was void as an attempted regulation of interstate commerce and that such a case was not one for submission to the commission, and that the court had jurisdiction to entertain the same.

It would therefore follow from the rulings of the supreme court and the reasoning whereon the decisions are based, that there can be no resort to the courts whether in law or equity, if the subject matter of the complaint is within the jurisdiction of the commission and can be there determined under the procedure provided in the act; but if the aid of the court is required in furtherance of the jurisdiction of the commission or the protection of property rights pending such determination, or if any of the common law duties of the carrier are sought to be enforced on any of the recognized grounds of equitable cognizance, such as the prevention of irreparable wrong, the jurisdiction of equity would be sustained.

§ 331. Actions for damages on account of discrimination.— In Morrisdale Coal Co. v. Pa. R. Co. circuit court of appeals third circuit, 183 Fed. 929, Nov. 1910, affirming 176 Fed. 748, it was held that a party claiming to be injured by a discriminating rule for the distribution of coal cars in time of shortage by an interstate railroad could not maintain an action at law for the recovery of damages, although the action was commenced more than two years after the discrimination had ceased, until the Interstate Commerce Commission had investigated the case and determined by its report that the rule is and was discrimina

tory; that the effect of the Interstate Commerce Act under the construction of the supreme court in the Abilene Case was not merely to suspend the right of a shipper to maintain an action at law to recover damages resulting from an unreasonable rate or discriminating regulation, while such rate or regulation remained in force, but to supersede the right entirely, and the shippers' independent right of action was not revived by the abolition of the unlawful rate or regulation.

The commission had ruled, infra, § 387, that it had no jurisdiction to make awards of general damages in cases of discrimination other than damages measured by the difference in rates and that such damages should be left to be determined by action of the court. In this case the court alluded to this report of the commission and intimated that the letter of the statute seemed to confer upon the commission the power to assess damages in every case of discriminatory practice. The court said further that it did not pass upon the question, whether after the commission had found such a rule to be discriminatory, it was its the commission's duty to assess the damages or whether they were to be recovered by an action in some court without any preliminary assessment by the commission.

For a case wherein the same court affirmed a judgment for damages on account of discrimination in rates by the giving of rebates to competitors, wherein the question of jurisdiction pending the action of the Interstate Commerce Commission does not seem to have been raised, see Pa. R. Co. v. International Coal Mining Co., 173 Fed. 1 (October, 1909). The Morrisdale Coal Company Case above cited was followed by the circuit court E. D. Penn., 183 Fed. 908 (January 4, 1911), in the case of Mitchell Coal & Coke Co. v. Pa. R. Co., where the court held that it had no jurisdiction where the complaint was founded upon the defendant's practice of granting rebates to the defendant's competitors affecting not only the plaintiff but other shippers in the same region. It was a regulation or practice affecting rates, and the fact that it may have ceased did not affect the primary jurisdiction of the Interstate Commerce Commission.

In another case in the same circuit, American Union Coal Co. v. Pa. R. Co., 159 Fed. 278 (February, 1908), the distinction above mentioned between a discrimination against an individual and a class of shippers was illustrated in a ruling of the court

upon demurrer. The first count claimed damages for an alleged violation of the second section of the Interstate Commerce Act for discriminating against plaintiff in charging the full tariff rates and permitting its competitors by a device to transport their coal at a lower rate. This count was held good, while other counts in the same petition, claiming damages for alleged conspiracy in charging the tariff rates which were posted and filed with the Interstate Commerce Commission, were held bad on demurrer; and treble damages were also asked under the Sherman Anti-Trust Act for alleged conspiracy; but the court held that these second and third counts were bad as there was no right of action either under the anti-trust act or the Interstate Commerce act for a readjustment of tariff rates filed and posted other than through the Interstate Commerce Commission; and there was no allegation that the rates had been found unreasonable by the Interstate Commerce Commission.

It follows, therefore, that where the action requires the determination of the unreasonableness of a rate or of a regulation in interstate commerce whereof the commission has jurisdiction under the act, the action cannot be maintained until the prior determination by the commission of the unreasonableness of such rate or regulation. On the other hand, if the action does not require such a determination, but seeks to recover for a discrimination in rates where the measure of damages is the difference between the amount paid by plaintiff and that paid by others under substantially the same circumstances and conditions during the same time, and in such case there is no occasion to resort to the commission, as there is no question to submit to them, the action at law is maintainable. See Pa. R. R. v. International Coal Mining Co., supra. Redress for such a wrong, therefore, in the words of the supreme court, would be consistent with the context of the act to be redressed without previous action by the commission. The distinction is illustrated in the Pennsylvania cases above cited.

§ 332 (252). Judicial application of section.-See notes in section 8, supra. The provisions in this section for the compelling of testimony and the production of books and papers were in effect held unconstitutional by the decision of the supreme court in the case of Hitchcock v. Counselman, infra, section 12, in that the protection given to the witness forced to give self

incriminating testimony was not sufficient under the fifth amendment of the constitution. The act of 1893, infra, section 12, only related to testimony given before the commission and did not apply to this section. This, however, was remedied by the act of 1903. See infra, § 347.

The case of Webster Coal & C. Co. v. Cassatt, 207 U. S. 181, 52 L. Ed. 160 (1907), an action for damages (see 150 Fed. 32, 50), came before the supreme court on a writ of error involving the production of books and papers, and the court held that the order was insufficient to support the writ, and the merits of the original action were not considered.

A final order of the Interstate Commerce Commission and remaining of record in full force and effect is a bar in the United States circuit court to a suit brought for the recovery of damages alleged to be sustained by plaintiff from the same acts complained of in the statement before the commission. See Riddle v. New York, Lake Erie & Western Railroad Co., U. S. Circuit Court W. Dist. of Penn., 3 Int. Com. Rep. 230.

A party is not barred from prosecuting an action in court for an individual claim because of proceedings instituted before the commission by an association of which he is a member, where it does not appear that the association presented a claim for the plaintiff to the commission. Junod v. C. & N. W. R. Co., 47 Fed. Rep. 290.

It appears from the discussion in congress that the purpose of this provision of the section, that a party must elect whether to proceed before the commission or in the court, was intended to prevent a party from using the commission merely as a means of procuring evidence for a suit in court.

Under this section suit may be brought in any circuit court or district court of the United States. Under the Anti-Trust Act of 1890 the jurisdiction is limited to the circuit court. In New Mexico v. Baker, 196 U. S. 432, 49 L. Ed. 540 (1905), the question was suggested, though not decided, whether either under the Interstate Commerce Act or the Anti-Trust Act of 1890 a suit could be brought in a territorial district court, or whether congress intended that only courts of the United States invested by the third article of the constitution with the judicial power of the United States should have original jurisdiction in such suits.