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Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the Attorney-General of the state, and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or damages would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court of the United States, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall only remain in force until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken directly to the Supreme Court of the United States from the order granting or denying, after notice and hearing an interloc. utory injunction in such case.
Section 266 of the Judicial Code, a new provision, being Se. 17 of the Act of June 18, 1910. Ch. 309, 36 Stat. L. 557. Amended by Act March 4, 1913, Ch. 160, 37 Stat. 1013, which amendment added after the word “statute” in the first sentence of the section the words “Or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state.'' The purpose of the statute stated. Chicago, B. & Q. R. Co. v. Oglesby, 198 Fed. 153. See Ex Parte Yung, 209 U. S. 123, 52 L. Ed. 714, 28 Sup. Ct. 441, 13 L. R. A. (N. S.) 932.
Held that the statute had no application to a city ordinance. Cumberland Tel. & Tel. Co, v. Memphis, 198 Fed. 955; SperryHutchinson Co. v. Tacoma, 190 Fed. 682; Birmingham Water Works v. Birmingham, 211 Fed. 497; Calhoun v. City of Seattle, 215 Fed. 226. Nor to a tax levied under a special law. Lykins v. Chesapeake & 0. Ry. Co, 209 Fed. 573, 126 C. C. A. 395.
When the statute does apply. Ex parte Metropolitan Water Co., 220 U. S. 539, 55 L. Ed. 575, 31 Sup. Ct. 600; Seaboard A. L. Ry. v. Railroad Commission of Ga., 213 Fed. 27; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. Ed. 229, 39 Sup. Ct. 48.
Cited as to right of appeal to Supreme Court. Rail & River Coal Co. v. Yaple, 214 Fed. 273, 276. Death of the state officer defendant abates an appeal. Pullman Co. v., Croom, 231 U. S. 571, 58 L. Ed. 375, 34 Sup. Ct. 182.
By Sec. 5 Act Jan. 28, 1915 Congress provided :
“No court of the United States shall have jurisdiction of any section or suit by or against any railroad company upon the ground that said railroad company was in operation under an act of Congress."
§ 454. When Act Effective.—That this act shall take effect and be in force from and after the expiration of sixty days after its passage, except as to sections twelve and sixteen, which sections shall take effect and be in force immediately.
Public, No. 41, approved February 4, 1887, as amended by Public, No. 25, approved March 2, 1889; Public, No. 72, approved February 10, 1891; Public, No. 38, approved February 8, 1895; Public, No. 337, approved June 29, 1906; Public Res., No. 47, approved June 30, 1906; Public No. 95 approved April 13, 1908; Public, No. 262, approved February 25, 1909; Public, No. 218, approved June 18, 1910; Public, No. 337, approved August 24, 1912; Public, No. 400 approved March 1, 1913; Public, No. 48, approved January 20, 1914; and Public, No. 161, approved August 1, 1914.
Section 18 of Act June 18, 1910.
§ 455. Parties Defendant Other than Carriers in Suit to Enforce Provisions of Act.—That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be blegun originally in any circuit court of the United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and inquiries, investigations,
orders and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers.
Section two of the original Act February 19, 1903 (Elkins Act).
In 1888 the Commission held that it was proper to make parties all carriers interested in a through rate, though the complaint was not defective if only the initial carrier was a party. Hurlburt v. Lake S. & M. S. R. Co., 2 I. C. C. 122, 2 I. C. R. 81.
§ 456. Equitable Proceedings May Be Instituted by the Commission to Restrain Discrimination or Departure from Published Rates.—That whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is committing any discriminations forbidden by law, a petiton may be presented alleging such facts to the circuit court of the United States sitting in equity having jurisdiction; 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 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 corporations parties thereto as the court may deem necessary, and upon being satisfied of the truth of the allegations of said petition said court shall enforce an observance of the published tariffs or direct and require a discontinuance of such discrimination by proper orders, writs, and process, which said orders, writs, and process may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of appeal as now provided by law. 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 and the proceedings provided for by this act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said act approved February fourth, eighteen hundred and eighty-seven, entitled "An act to regulate commerce and the acts amendatory thereof."
First part of section three of the Act February 19, 1903 (Elkins Act), as originally enacted.
Prior to this amendment suit could be maintained in the name of the United States to enjoin discrimination. United States v. Mo. Pac. R. Co., 65 Fed. 903, 5 I. C. R. 106. Affirmed by circuit court of appeals without written opinion. Reversed, holding that prior to Elkins Act such suit could not be maintained. Mo. Pac. R. Co. v. United States, 189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507; United States v. Atchison, T. & S. F. Ry. Co., 142 Fed. 176, 185, 186. Prior to this Act a shipper could en join a discrimination prior to action by the Commission. Interstate Stock Yards v. Indianapolis U. Ry: Co., 99 Fed. 472, 483. Cited by Supreme Court. 192 U. S. 568, 570, 48 L. Ed. 565, 569, 24 Sup. Ct. 339. Under this Act violations occurring prior to its passage could be enjoined. United States v. Mich. Cent. R. Co., 122 Fed. 544. May enjoin giving rebates. United States v. Milwaukee Refrigerator T. Co., 145 Fed. 1007, 1010, citing Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276. Suit prosecuted under section. Armour Packing Co. v. United States, 209 U, S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428. May enjoin giving transportation for advertising. United States v. Chicago, I. & L. R. Co., 163 Fed. 114.
457. Immunity and Compulsory Attendance of Witnesses, Production of Books and Papers.-And in proceedings under this act and the acts to regulate commerce the said courts shall have the power to compel the attendance of witnesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the production of all books and papers, both of the carrier and
the shipper, which relate directly or indirectly to such transaction; the claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, in such proceeding. · Second part of section three of the Act February 19, 1903 (Elkins Act), as originally enacted.
§ 458. Expediting Act Applicable to Suits Brought under Direction of Attorney-General.-Provided, That the provisions of an act entitled “An act to expedite the hearing and determination of suits in equity pending or hereafter brought under the act of July second, eighteen hundred and ninety, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may hereafter be enacted, approved February eleventh nineteen hundred and three,” shall apply to any case prosecuted under the direction of the Attorney-General in the name of the Interstate Commerce Commission.
Last part of section three of the Act February 19, 1903 (Elkins Act), as originally enacted.
Cited, holding that proviso did not prevent an action by Commission to compel the production of papers. Int. Com. Com. v. Baird, 194 U, S. 25, 36, 48 L. Ed. 860, 865, 866, 24 Sup. Ct. 563.
See Expediting Act Sec. 468. Post.
§ 459. Repealing Clause Not to Affect Pending Suits or Accrued Rights. When Act Takes Effect.-That all acts and parts of acts in conflict with the provisions of this act are hereby repealed, but such repeal shall not affect causes now pending, nor rights which have already accrued, but such causes shall be prosecuted to a conclusion, and such rights