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Shippers and Carriers of Interstate and

Intrastate Freight

CHAPTER VII.

ENFORCEMENT BY THE COURTS OF THE ACT TO REGULATE
COMMERCE, ETC., INCLUDING A DISCUSSION OF THE
EFFECT GIVEN BY THE COURTS TO THE ORDERS
AND FINDINGS OF THE INTERSTATE

COMMERCE COMMISSION.

316. Lack of Full Hearing. 317. Awards of Damages. 318. Awards of Damages-Parties and Procedure. 319. Procedure to Enforce or Annul Orders of the Commission. 320. Interlocutory Injunctions—Three Judges to Hear Application

for. 321. Interlocutory Injunctions—Notice and Hearing. 322. Interlocutory Injunctions—Appeal from. 323. Appeal from Final Judgment. 324. Venue of Suits.

$ 292. Jurisdiction of the Courts of the States to Enforce the Provisions of the Act to Regulate Commerce.—The Act to Regulate Commerce in the rights therein specified does little more than express the law as it existed at common law. The right to reasonable rates was admittedly a common-law right, and the Supreme Court of the United States we have seen supra, Sec. 133 decided that equality of treatment under substantially similar circumstances was also a common-law right. The regulation of pooling, the requirement of continuous transportation, that through routes and joint rates shall be established, that tariff's shall be filed, maintained and made public, and the other limitations on the conduct of common carriers, while requiring more than was their duty at common law, are but provisions to make effective the great common-law right to reasonable charges without unjust discrimination or undue preference. These remedies and others provided in the act are in addition to, (and) not in derogation of, the common-law remedies.

Congress may provide that the judicial power of the United States shall be exercised by the Federal courts to the exclusion of any jurisdiction in the courts of the states,' but, as said by the Supreme Court: “If an act of Congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. In the same case the court said that the jurisdiction of the federal courts is "sometimes exclusive by implication," while in a more recent case the Supreme Court said that “jurisdiction (of the state courts) is not defeated by implication." What

1. Martin v. Hunter, 1 Wheat. 14 U. S. 304, 377, 4 L. Ed. 97; Osborn v. Bank of the United

States, 9 Wheat. 738, 6 L. Ed. 204.

2. Claflin v. Houseman, 93 U. S., 3 Otto 130, 23 L. Ed. 833.

may

be stated as the rule in harmony with these decisions is, where by express enactment of the statute the jurisdiction of the state courts is excluded, or where the character of the remedy provided is such that the evident legislative intent was to exclude such courts, the Federal courts have exclusive jurisdiction; but where no such definite statement or clear legislative intent exists, the law will not be construed to exclude by implication the exercise of jurisdiction by the state courts.

The failure of a carrier to furnish a shipper coal cars for interstate shipments to which the shipper is entitled under the carriers own rule for distributing cars presents no administrative questions for determination by the Commission, and a state court has jurisdiction without previous action by such Commission of a suit to recover damages for such failure. Citing the Puritan Coal case, in discussing car distribution rules, and distinguishing the Abilene case, the Supreme Court said: “Where the assault is not against the rule, but against its unequal and discriminatory application, no administrative question is presented and the claim may be prosecuted in either a Federal or a state court without any precedent action by the Commission; and that, if no administrative question be involved, as well may be the case, a claim for damages for failing upon reasonable request to furnish to a shipper in interstate commerce a sufficient number of cars to satisfy his needs may be enforced in either a Federal or a state court without any preliminary finding by the Commission, and this whether the carrier's default was a violation of its common law duty existing prior to the Hepburn Act of 1906, or of the duty prescribed by that act."

3. Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 Sup. Ct. 205; affirming 117 S. W. 169. See note 7 below.

4. Pennsylvania R. Co. v. Stine. man Coal Mining Co., 242 U. S. 298, 61 L. Ed. 316, 37 Sup. Ct. 118.

5. Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 59 L. Ed. 867, 35 Sup. Ct. 484.

6. Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S.

426, 51 L. Ed. 553, 27 Sup. Ct. 350, 9 Ann. Cas. 1075. The principle announced in this case applies where there is for determi. nation any administrative question. Loomis v. Lehigh Valley R. Co., 240 U. S. 43, 60 L. Ed. 517, 36 Sup. Ct. 228.

7. Pennsylvania R. Co. v. Sonman S. C. Co., 242 U. S. 120, 124, 125 (and cases cited p. 124, 125), 61 L. Ed. 188, 37 Sup. Ct. 46. 8. American Express Co. V. South Dakota, 244 U. S. 617, 61 L. Ed. 1352, 37 Sup. Ct. 656.

A state court has jurisdiction to enjoin an increase in intrastate rates not approved as provided by the state statute, but such injunction cannot apply to intrastate rates proposed to be increased under specific authority of the Interstate Commerce Commission.

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§ 293. Same Subject-Statutory Provisions.—Whenever a court is named in the Acts to Regulate Commerre it is a Federal court, except in the Amendment of June 18th, 1910, to section 16, by which amendment suits on awards of damages may be filed either in a Federal court or "in any state court of general jurisdiction having jurisdiction of the parties." Section 9 of the Act provides : “That any person or persons claiming to be damaged by any common carrier subject to the provisions of this Act

may bring suit in any district or circuit court of the United States. Nowhere in the statute is there express prohibition against a state court exercising jurisdiction, but some of the procedure is such that it is clear that the legislative intent was to exclude the jurisdiction of the state courts.

The amendment to section 16 above shows a legislative construction indicating a necessity for a specific provision giving jurisdiction to the courts of the states. That a state court may enforce laws of Congress was held in the Second Employers' Liability cases, and in the course of this chapter the cases in which the state courts have concurrent jurisdiction will be stated as will also those questions over which it would seem that the state courts have no jurisdiction.

9. The abolition of Circuit Courts would leave this to read “District Court of the United States," Judical Code, Sec. 289.

10. Mondou v. New York, New

H. & H. R. Co., 223 U. S. 1, 57, 56 L. Ed. 327, Sup. Ct. 169; reversing Hoxie v. N. Y., N. H. & H. R. Co., 82 Conn. 373, 73 Atl. 754 and affirming, Walsh v. New York, N. H. & H. R. Co., 173 Fed. 694.

$ 294. Same Subject Awards of Damages.-By the express provisions of section 16 of the Act to Regulate Commerce the state courts have jurisdiction over suits brought on an order issued by the Commission for the payment of money, although prior to the Amendment of June 18, 1910, it would seem that no such jurisdiction existed." That such suits may be brought in a state court has been stated by the Supreme Court which gave the amendment to section 16 as authority for such statement.12

In the case in which the statement just referred to was made, suit had been brought in a state court from which it was removed to a Federal district court. The complainant alleged a finding of the Interstate Commerce Commission that a particular rate was unreasonable to a designated extent, although there had been no award of damages to the plaintiff. The cause of action, therefore, if any existed, was based upon section 8 of the Act and must have been brought under section 9 and not under section 16. Under these facts the district court held that the state court had no jurisdiction, althongh the Federal court would had the action been brought therein." The Supreme Court, as shown supra, dismissed a direct writ of error thereto, holding that the jurisdiction of the Federal court was not involved and that the question was merely one where was to be determined whether or not a cause of action was stated. It has, however, been held that a suit for damages under sections 8 and 9 "could only be brought in a district or circuit (sic) court of the United States," and then when the reasonableness of rates was in

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11. Connor v. Vicksburg & M. R. Co., 36 Fed. 273, 1 L. R. A. 331; Kentucky & Indiana Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567, 614, 2 L. R. A. 289, 2 I. C. R. 351; Van Patten v. Chicago, M. & St. P. R. Co., 74 Fed. 981. See also Sheldon v. Wabash R. Co., 105 Fed. 785.

12. Darnell v. Illinois C. R. Co., 225 U. S. 243, 56 L. Ed. 1072, 32 Sup. Ct. 760; Dismissing writ of error from the decision in Dar. nell v. Illinois C. R. Co., 190 Fed. 656.

13. Darnell v. Illinois C. R. Co., 190 Fed. 656.

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