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volved only after an order by the Interstate Commerce Commission."

Where suit was brought in a state court for damages for alleged discrimination prior to a determination by the Interstate Commerce Commission that unlawful discrimination existed, the Supreme Court sustained a judgment for the carrier in an opinion which would have applied with the same force had suit bieen brought in a Federal court."

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§ 295. Same Subject-Suits for Damages against an Initial Carrier.--At common law a carrier must transport to the end of its line, but when the commodity was delivered to the connecting carrier in good order, its liability ceased, unless it contracted to deliver at the point of final destination, and even when such a contract was made, by the same contract the carrier could limit its liability to its own line. Where commodities were transported over several lines and damage resulted, the shipper was frequently unable to prove which particular carrier was liable for the loss or injury. The last connecting carrier receiving goods “as in good order” was presumptively liable for the damage. This is a statute in Georgia." To make it possible for shippers to collect for loss and damage and at the same time to allow carriers to adjust between themselves the loss so that the innocent would not suffer, the Amendment of 1906, known as the Hepburn Act, gave the shipper the right to recover for loss or damage against the carrier receiving the commodity for shipment. Speaking of this provision, the Supreme Court said: “The cause of action was the loss of plaintiff's property

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14. Mitchell Coal & Coke Co. v. Penn. R. Co., 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916.

15. Robinson v. Baltimore & O. E. Co., 222 U. S. 506, 56 L. Ed. 288, 32 Sup. Ct. 114; affirming same styled case, 64 W. Va. 406, 63 S. E. 323. See also Loomis v. Lehigh V. R. Co., 240 U. S. 43, 60 L. Ed. 517, 36 Sup. Ct. 228.

16. Hutcheson on Carriers, 3d Ed., Sec. 225 et seq.

17. Georgia Code 1910, Sec. 2752.

18. An excellent statement of the reasons for this amendment was made by Judge Speer in River. side Mills v. Atlantic C. L. R. Co., 168 Fed. 987, 990, 991. Except as to attorney's fees this case was affirmed, Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 Sup. Ct. 164, 31 L. R. A. (N. S.) 7. See also post, Sec. 439, and Woodruff v. Atlantic C. L. R. Co., 138 Ga. 763, 76 S. E. 45, citing Sec. 201 of the first Ed. of this book.

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and that loss is in no way traceable to the violation of any provision of the Act to Regulate Commerce.'' 16

There is no doubt that in suits under this provision against an initial carrier for loss or damage to freight action is maintainable in state courts."

That suits under this provision may be brought in state courts does not deprive the Federal courts of jurisdiction. State and Federal courts have concurrent jurisdiction. Questions arising under the Carmack Amendment and the Cummins Amendments thereto, these amendments are now part of Transportation Act 1920, are Federal questions and appeals may be taken from the highest state courts to the Supreme Court of the United States." Mr. Justice Fish of the Supreme Court of Georgia citing this section and old note 15, new note 20, holds that shippers were not limited to suit against the initial carrier. If the suit is based on

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19. Atlantic C. L. R. Co. v. Riverside Mills, silpra.

20. 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; Robb v. Connally, 111 U. S. 624, 637, 28 L. Ed. 542, 4 Sup. Ct. 544; Cases brought in state courts: St. L. S. W. Ry. Co. V. Alexander, 227 U. S. 218, 57 L. Ed. 486, 33 Sup. Ct. 245; Wells, Fargo & Co. V. Neiman Marcus Co., 227 U. S. 469, 57 L. Ed. 600, 33 Sup. Ct. 267; Wells, Fargo & Co. v. Neiman-Marcus Co., 125 S. W. 614; Norfolk & W. Ry. Co. v. Dixie Tobacco Co., 228 U. S. 593, 57 L. Ed. 980, 33 Sup. Ct. 609, 111 Va. 813, 69 S. E. 1106; Southern Pao. Co. v. Crenshaw, 5 Ga. App. 675, 63 S. E. 865. See also cases cited, and Central of Ga. Ry. Co. v. City Mills Co., 128 Ga. 841, 58

S. E. 197; Atlantic C. L. R. Co. v. Henderson, 131 Ga. 75, 61 S. E. 1111; Southern Ry. Co. V. Frank, 5 Ga. App. 574, 63 S. E. 656.

21. See Sections 439 and 440 post. Georgia F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190, 60 L. Ed. 948, 36 Sup. Ct. 541, affirming Georgia Court of Appeals, same styled case, 15 Ga. App. 142, 82 S. E. 784. In suits for undercharges of freights on interstate shipments the Federal courts have concurrent jurisdiction with state courts and a Federal question is involved which may be appealed from a state court of final resort to the Supreme Court. Pittsburg C. C. & St. L. R. Co. v. Finck, 250 U. S. 577, 63 L. Ed. 1151, 39 Sup. Ct. -; Wells Fargo & Co. v. Cuneo, 241 Fed. 726, 727. Duties of carriers under the statute with reference to notifying consignees stated. Stoddard Lumber Co. V. Or. Wash. & N. R. Co., 84 Or. 399,

the proviso leaving effective “any remedy or right of action

under existing law" there is no Federal question, as jurisdiction depends upon the general law."

§ 296. Compelling a Common Carrier to Transport.-A shipper has a right to have his commodities transported by a common carrier. This right as to interstate shipments may not be taken away by a state statute, and a shipper seeking relief because of a refusal of a carrier to accept interstate shipments may invoke the jurisdiction of a state court, the question involved being one of general law. This principle was held in a case brought by a manufacturer of intoxicating liquors to compel the transportation of his product in interstate commerce. The suit was brought in a state court and removed to a Federal court; the jurisdiction of the latter court therefore rested upon the original jurisdiction of the state court. While the question of the jurisdiction of the state court was not discussed, the jurisdictional question raised being the claim that no court had jurisdiction prior to action by the Interstate Commerce Commission, the fact that jurisdiction was retained and relief granted was a holding that the state court had jurisdiction."

When a carrier engaged in interstate commerce violated its common-law duty to treat all shippers alike by refusing to transfer cars between a flour mill and the line of a connecting

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165 Pac. 363, 4 A. L. R. 1275. The question arising under a law reg. ulating commerce, Federal District Courts have jurisdiction regardless of the amount involved. Judical Code, Sec. 24, Louisville & N. R. Co. v. Rice, 247 U. S. 201, 62 L. Ed. 1071, 38 Sup. Ct. 429. There is no Federal question on causes of action arising before the date of the enactment of the Carmack Amendment. Missouri K. & T. R. Co. v. Sealy, 248 U. S. 363, 63 L. Ed. ~,

39 Sup. Ct. The Carmack Amendment does not apply to passenger traffic, hence in. jury to passengers is not a Fed.

eral question. Chicago R. I. & P. R. Co. v. Maucher, 248 U. S. 359, 63 L. Ed. 39 Sup. Ct.

22. Central of Ga. Ry. Co. v. Yesbrik, 146 Ga. 769,

S. E. This opinion while having support in the language in the Blish Case supra is unsupported by the Act or by authority. Probably the learned state Judge relied on the reservation of common law rights and not on the Carmack Amend. ment. See Sections 439 and 440 with annotations post.

23. Louisville & N. R. Co. v. F. W. Cook Brewing Co., 172 Fed. 117, 96 C. C. A. 322, 40 L. R. A. (N. S.) 798;

carrier, a state court had jurisdiction to compel a performance of this duty, as least until Congress or the Interstate Commerce Commission had taken specific action.” This rule would hardly apply now as to interstate commerce because Congress has enlarged the jurisdiction of the Commission in this respect.

$ 297. Jurisdiction General Statement.-Judicial power may be exercised to enforce rights under the Commerce Acts sometimes without prior action by the Interstate Commerce Commission and sometimes only after the Commission has acted and to enforce such action or to determine the legality thereof.

That section 9, giving a person damaged by violation of the Act the option to bring complaint before the Commission or suit in a district or circuit court, and section 22 providing that common-law remedies were neither abridged nor altered, should be construed in connection with the whole Act, and that as so construed the courts had no jurisdiction to determine whether a rate published as prescribed by law anlawful, was held by the Supreme Court in the Abilene case.

was

affirming same styled case, 223 U. S. 70, 56 L. Ed. 355, 32 Sup. Ct. 189. Where nothing but the common law duty to furnish cars is involved, the state courts have jurisdiction to maintain suits for damages for a failure to perform that duty. Penn. R. Co. v. Puritan Coal Co., 237 U. S. 121, 59 L. Ed. 867, 35 Sup. Ct. 484, affirming Penn. R. Co. v. Puritan Coal Co., 237 Pa. 420, 85 Atl. 426, Ann. Cas. 1914B 37; Illinois C. R. Co. v. Mul. berry Hill Coal Co., 238 U. S. 275, 59 L. Ed. 1306, 35 Sup. Ct. 760; affirming Illinois C. R. Co. v. Mulberry Hill Coal Co., 257 Ill. 80, 100 N. E. 151.

24. Lovelace Flour Mills Co. v. Mo. Pac. Ry. Co., 74 Kans. 808, 88 Pac. 72; affirmed, Mo. Pac.

Ry. Co. v. Lovelace Flour Mills Co., 211 U. S. 612, 53 L. Ed. 352, 29 Sup. Ct. 214.

25. Baltimore & O. R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164; reversing United States ex rel. Pitcairn Coal Co. v. Baltimore & O. R. Co., 165 Fed. 113, 91 C. C. A. 147, and see post, this chapter, Secs. 297, 299. But when the suit related "solely to intrastate transportation,” the state court may enforce a duty to make connec tions, Chicago, M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334, 58 L. Ed. 988, 34 Sup. Ct. 592; affirm. ing same styled case, 152 Iowa 317, 130 N. W. 802. Secs. 12, 13, supra,

26. Texas & Pac. Ry. Co. v. Abi. lene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350.

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There are sections of the Act giving jurisdiction to the courts without prior action by the Commission. Cases arising thereunder will be discussed in the course of this chapter. The principle determining the circumstances under which the Commission alone can act cannot be better or briefly stated than by copying from an opinion of the Supreme Court written by Mr. Justice Lamar. He said:

“Under the statute there are many acts of the carrier which are lawful or unlawful according as they are reasonable or unreasonable, just or unjust. The determination of such issues involves a comparison of rate with service, and calls for an exercise of the discretion of the administrative and rate-regulating body. For the reasonableness of rates, and the permissible discrimination based upon difference in conditions are not matters of law. So far as the determination depends upon facts, no jurisdiction to pass upon the administrative questions involved has been conferred upon the courts. That power has been vested in a single body so as to secure uniformity and to prevent the varying and sometimes conflicting results that would flow from the different views of the same facts that might be taken by different tribunals." 27

In cases where prior action of the Interstate Commerce Commission is not necessary, and when the statute does not exclude the state courts, and in cases where the suit is based on a common-law right, the state courts may exercise jurisdiction.28

This principle is illustrated by decisions holding that the application or the interpretation of a tariff provision or of

27. Penn. R. Co. v. Int. Coal Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893.

28. Starks Co. v. Grand Rapids & I. Ry. Co., 165 Mich. 642, 131 N. W. 143; Hardaway v. So. Ry. Co., 90 S. C. 485, 75 S. E. 1020; Lilly Co. v. Northern Pac. Ry. Co., 64 Wash. 689, 117 Pac. 401; Kansas City So. Ry. Co. v. Tonn, 102 Ark. 20, 143 S. W, 577; Chi

cago, R. I. & P. Ry. Co. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562; Central of N. J. R. Co. V. Hite, 166 Fed. 976. Cases where jurisdiction was held to be exclusively in the Federal courts: Pittsburg C. C. & St. L. Ry. Co. v. Wood, 84 N. E. 1009; Notes 4, 6, 23 & Sec. 292, supra.

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

30. Barret v. Gimbrell Bros. 226 Fed. 623, 625, 631, 141 C. C. A.

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