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a carrier's rule presents a judicial question, which a court, state or Federal, may determine; but that the reasonableness of rules and practices must as to commerce within its jurisdiction first be determined by the Interstate Commerce Commission.*1

$298. Commerce Court.-By the amendment of 1910 a Commerce Court was created and given exclusive jurisdiction as follows:

First. All cases for the enforcement, otherwise than by adjudication and collection of a forfeiture or penalty or by infliction of criminal punishment, of any order of the Interstate Commerce Commission other than that for the payment of money.

Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission.

Third. Such cases as by section three of the Act entitled An Act to further regulate commerce with foreign nations and among the states,”' approved February 19, 1903, are authorized to be maintained in a circuit court of the United States.

Fourth. All such mandamus proceedings as under the provisions of section 20 or section 23 of the Act entitled “An act to regulate commerce,” approved February 4, 1887, as amended, are authorized to be maintained in a circuit court of the United States.*

This court was by a provision of the Appropriations Act approved October 22, 1913, "abolished from and after December 31, 1913, and the jurisdiction vested in said Commerce Court

is (was) transferred to and vested in the several district courts of the United States;' and it was further provided that “the procedure in the district courts

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379. National Elevator Co. v. Chicago, M. & St. P. Ry. Co., 246 Fed. 588, C. C. A.

31. Montgomery v. Chicago, B. & Q. R. Co., 228 Fed. 616, 143 C. C. A. 138. Chesapeake & 0. C. C. Co. v. Toledo & O. C. Ry. Co., 245 Fed. 917, 158 C. C. A. 205.

Appeal to Supreme Court dismissed, 249 U. S. 585, 63 L. Ed. -, 39 Sup. Ct.

32. Act June 18, 1910, chap. 309, 36 Stat. at L., p. 539, Secs. 1 to 6 incl. Judicial Code, Secs. 200 to 214, inclusive.

in respect to cases of which jurisdiction is conferred upon them by this act shall be the same as that heretofore prevailing in the Commerce Court."33

The procedure in the district courts in cases in which jurisdiction formerly existed in the Commerce Court as well as the procedure in other cases arising under the Act to Regulate Commerce will be discussed in subsequent sections of this chapter.

$ 298 A. General Jurisdiction of Federal District Courts.Judicial Code section 24, paragraph 8, gives the District Courts of the United States, regardless of “the sum or value of the matter in controversy," jurisdiction "of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court." The exception stated, as appears from section 298,

supra no longer obtains, and the District Courts now have all jurisdiction formerly granted to the Commerce Court.

The act to regulate commerce requires carriers to file, in the form prescribed by the Interstate Commerce Commission, tariffs of "rates, fares and charges' and the carriers cannot "charge or demand or collect or receive a greater or less compensation" than is fixed in such tariff.** When a carrier collects more than the tariff rate, the shipper may sue for the overcharge, when less is collected the carrier may sue the shipper. In both cases the District Courts of the United States have jurisdiction, concurrent with the state courts, however small the amount involved." The Transportation Act 1920 leaves jurisdiction as theretofore in the United States District Courts, concurrently with the state courts, to determine rights growing out of Federal control.* Para.

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33. For a discussion of the procedure in the Commerce Court, see article thereon by the author hereof in Standard Encyclopedia, of Procedure, Vol. 5, p. 153.

33 A. Sections 358, 364 post. 34. Note 21, supra.

35. Appendix one, post, Transportation Act 1920, Sec. 206. For

a discussion of whom to sue under Section 10 of Federal Control Act see article by author hereof Central Law Journal Vol. 88 pp. 100 and 157 and Vol. 90 page 245; McGregor v. G. N. Ry. Co., - N. D.

172 N. W. 841, 4 A. L, R. 1635 and notes.

graph 1 (a) of Sec. 24 of the Judical Code gives District Courts general jurisdiction when the amount in controversy exceeds the value of $3000.00, exclusive of interest and costs, when the suit, (a) “arises under the constitution or laws of the United States, or treaties made, or which shall be made under their authority."

$ 299. Jurisdiction of the Courts of the United States to Compel the Attendance of Witnesses before the Commission and Enforce Obedience to Act.—Upon request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act. In case of disobedience of the subpæna of the Commission, it may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of the Act to Regulate Commerce. And any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpæna issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission'and produce books and papers if so ordered and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

Section 9 of the original Act provides that certain named officers and agents shall testify and that “the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.” The Supreme Court having held that the law must give the witness absolute immunity from prosecution before he could be compelled to testify,"" the Compulsory Testimony Act," the

36. Counselman v. Hitchcock, 142 U. $. 547, 35 L. Ed. 1110, 12

Sup. Ct. 195.

37. Sec. 479, post.

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Immunity of Witnesses Act, ** and section 3 of the Elkins Act" met this condition and a witness may be required to testify as provided in those statutes,“ subject of course to the rule that the testimony is relevant to a question over which the Commission has jurisdiction."

$ 300. Enforcement of Forfeitures.-Section 16 of the Act provides for forfeitures for any neglect to obey an order of the Commission made under authority of section 15. A forfeiture is provided for failure to comply with the duties of carriers under the valuation Act,“ as also under the government-aided railroad and telegraph Act.“ A carrier who after written request to quote a rate refuses so to do or misquotes the rate is subject to a penalty of $250.00."

These forfeitures are recoverable in a suit in court in the name of the United States brought in the district where the carrier has its principle office, or through which the road runs.

It is the duty of the various district attorneys, under the direction of the Attorney General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.''

§ 301. Mandamus.-Section 19A of the Act gives jurisdiction to the district courts of the United States upon application of the Attorney General at the request of the Commission to issue a writ or writs of mandamus to compel a compliance with the provisions of that section, and general authority to be exercised in like manner is give to enforce by mandamus compliance with any of the provisions of the Act. This general authority was conferred by the amendment of 1906, to meet a decision of the Supreme Court holding that no jurisdiction existed to compel a carrier to file reports with the Commission, although the court stated that Congress could confer such authority.“

38. Sec. 480, post. 39. Sec. 457, post.

40. Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819, 16 Sup. Ct. 644.

41. Int. Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125; 4 I. C. R. 545; Int. Com. Com. v. Baird, 194 U. S. 25, 48 L. Ed. 860, 867, 24 Sup. Ct.

563; Harriman v. Int. Com. Com.,
211 U. S. 407, 419, 420, 53 L. Ed.
253, 29 Sup. Ct. 115. See also
Sec. 219, ante, and United States
V. Skinner, 218 Fed. 870.

42. post, Sec. 384.
43. Sec. 474, post.
44. Sec. 6 of Act; Sec. 368, post.

45. Sec. 16 of Act; post. Sec 413.

District courts of the United States have jurisdiction upon the relation of any person, firm, or corporation alleging a violation of the provisions of the Act which prevents the relator from having interstate traffic moved by a common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and trans port the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ. The writ of mandamus is cumulative and may issue upon such terms as the court may prescribe, notwithstanding there may be undetermined questions of fact as to the proper compensation to the carrier.“ The remedy is limited to compelling the performance of duties which are either so plain as not to require previous action by the Commission or which plainly arise from some provision of the statute or existing order of the Commission within the lawful scope of its authority." This writ,

, however, cannot issue to prevent undue discrimination prior to action by the Commission determining that the particular acts complained of are unlawful. When it is the duty of the Interstate Commerce Commission to act, action may be compelled by the writ."

$ 302. To Enforce Rights Under the Act to Aid Railroads and Telegraph Companies.-By section 4 of the act of August

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46. United States ex rel, Knapp V. Lake Shore & M. S. Ry. Co., 197 U. S. 536, 49 L. Ed. 870, 25 Sup. Ct. 538, citing Kendall v. United States, 12 Pet., 37 U. S. 584, 9 L. Ed. 1181; United States V. Schurz, 102 U. S. 378, 26 L. Ed. 167. See under present law, Int. Com. Com. v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729,

32 Sup. Ct. 436; Kansas City So.
Ry. Co. v. United States, 231 U.
S. 423, 58 L. Ed. 296, 34 Sup.
Ct. 125.

47. Sec. 23 of Act; Sec. 445, post.
48. See note 25, supra.

49. Int. Com. Com. v. Humbolt Steamship Co., 224 U. S. 474, 56 L. Ed. 849, 32 Sup. Ct. 556; af

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