246.

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286

.236

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Limitation of actions..

247. Assignability of claims..

248. The jurisdiction of Federal courts.

249. Jurisdiction of the Federal courts in equity under the act 250, Jurisdiction in equity for protection of interstate commerce. .290

$243. Liability of commerce carriers for damages.- SEC. S. That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with the reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.

8244. Action based on the statute.-Section eight, and the succeeding section nine, provide for private actions at law for damages by persons injured from the violations of the provisions of the act, and are the only provisions of the act directly relating to such private actions. These sections are construed in Parsons v. C. & N. W. R. Co., 167 U. S. 447, 42 L. Ed. 231, affirming 11 C. C. A. 489, 63 Fed. Rep. 903, an action for alleged discrimination in shipping grain from Iowa to Chicago on account of differential rates granted to shippers from Nebraska. The court said that the cause of action was based entirely on the statute, and to enforce what was in its nature a penalty imposed on account of the wrongful conduct of the defendant. One who is seeking to recover a penalty is bound by the rules of strict law, as no violation of the statute was to be presumed and he must make out a case showing not by way of inference, but clearly and directly, such violations. Such a suit was dis. tinguished from the case of a party who had been charged and compelled to pay an unreasonable rate. The right of a shipper, who pays reasonable rates, to recover from such company the excess of such payment over the rates charged to shippers

of similar goods to the same destination from another place of shipment for the same or greater distance from it, is a right growing out of the Interstate Commerce Act, and being in the nature of a penalty, can be enforced only by strict proof showing clearly and directly the violations complained of.

$245. Plaintiff must show injury.- Under this section the common carrier is liable only to the person or persons injured thereby for the full amount of damages sustained in consequence of the violation of the Act. The Supreme Court said in the case cited that as the only right of recovery given by the Act was to the individual for the amount of damages sustained, the party, before he can recover under the Act, must show not merely the wrong of the carrier, but that the wrong has operated to his injury. Thus it is not sufficient to show the failure to publish the tariff rates, as provided by section six, but it must be further shown that this non-publication operated to his injury. Penalties are not recoverable on mere possibilities.

The discriminating rate must be actually charged to make an offense or cause of action under the act. Merely making or offering an illegal rate when it is not shown that an actual shipment was made, constitutes no legal injury to a shipper who was charged a higher rate. Lehigh Valley R. Co. v. Rainey, 112 Fep. Rep. 487, E. Dist. of Penn.

It was held in Junod v. C. & W. R. Co., 47 Fed. Rep. 290, that where plaintiff is entitled to the same rate for the shorter as is afforded other shippers for the longer haul, the measure of damages is the difference between the amounts paid by each. for like services, and that it is for the jury to determine whether they will allow interest on the damage; but if it is awarded, it should be estimated from the date of the last shipment.

$246. Limitation of actions.- The Interstate Commerce Act prescribes no limitation of time within which actions. based thereon shall be instituted, and therefore, under R. S., U. S. 721, the statute of limitations of the State in which the action is brought must apply and control. Michigan Insurance Bank v. Eldred, 130 U. S. 693, 32 L. Ed. 1080. This was directly ruled in Rattican v. Terminal Railroad Association, 114 Fed. Rep. 666 (E. Dist. of Mo.), and in Copp v. Louisville & Nashville R. Co., 50 Fed. Rep. 164, Dist. of Ky.; Murray v. Rail

road Co., 35 C. C. A. 62, 92 Fed. Rep. S68. In both cases the state statutes of limitations were held to apply. Where under the statute of a State the defense of the statute of limitations can be invoked by the defendant by demurrer, the same procedure will apply in the Federal court. It was ruled in the Missouri case, that an action to recover damages for a discrimination in violation of section 2 was one to recover money in the nature of a penalty, and therefore must be brought within the time allowed by the state statutes for such action. In this case the Court held, that the allegations of the petition were not sufficient to prevent the running of the stat ute, as there was no allegation that plaintiff believed and relied on defendant's announcement, that it made no discrimination in the rates, or that he exercised diligence to ascertain the facts. In action at common law, not founded on the statute, to recover unreasonable charges, the unreasonableness being established by the payment of rebates, it has been held that the statute of limitation did not begin to run against the shipper as long as he had no knowledge of his rights owing to the fault of the carrier in concealing the facts. See Cook v. C., R. I. & P. R. Co., 81 Iowa 551, 9 L. R. A. 764.

As to the limitations governing proceedings for reparation before the Commission, see infra, section 16.

$247. Assignability of claims.- Claims for damages under sections 8 and 9 constitute property rights, which may be assigned, so as to convey the beneficial interests to the assignee; and suits brought in the United States Circuit Court under these sections are maintainable in the name of the assignee under provisions of the law of the state, requiring all suits to be brought in the name of the real party in interest. Edmunds v. Illinois Central R. Co., 80 Fed. Rep. 78.

§ 248. The jurisdiction of Federal Courts. It is specifically provided in section 9 that a person claiming to be damaged by any common carrier subject to the provisions of the act may at his election make complaint to the Commission, or may bring suit in any District or Circuit Court of the United States of competent jurisdiction. It follows that the jurisdiction of the Federal Court when invoked is not based upon diverse citizenship, but on a cause of action arising under the laws of the United States. Diverse citizenship therefore is not necessary to jurisdiction of the Federal Court.

In Van Patten v. C., M. & St. P. R. R. Co., 74 Fed. Rep. 981, it was decided by Shiras, J., of the northern district of Iowa, that the limitation as to the district in which suit may be brought in the United States Circuit Court contained in the Judiciary Act of 1887 and 1888, did not apply to suits brought under sections 8 and 9 of the Interstate Commerce Act, but that such suits may be brought in any district in which the defendant may be found, as the limitations contained in those acts are applicable only to the cases whereof the State and Federal Courts have concurrent jurisdiction, citing In re Horhorst, 150 U. S. 653, 37 L. Ed. 1211. It was said in the same case that the jurisdiction under these sections was exclusive in the courts of the United States, as the use of the words in section 9 concerning certain courts in the United States indicated that in the view of Congress there were courts in the United States who were competent to take jurisdiction over such cases as arise under the provisions of the Act, and courts not competent to take jurisdiction. But see Connor v. V. & M. R. Co., 36 Fed. Rep. 273, decided in 1888; Lowry v. C., B. & Q. R. R. Co., 46 Fed. Rep. 83.

In Swift v. Railroad Co., 58 Fed. Rep. 858, it was held that a court had no jurisdiction over a suit under the Act, removed from a state court, where the state court had none. This did not apply where a state court had jurisdiction of the cause of action stated in the petition, but a federal question was raised in the answer, which set up an alleged discrimination violative of the act. See also Sheldon v. Wabash Railroad Co., 105 Fed. Rep. 785.

The exclusiveness of the jurisdiction over suits brought under these remedial sections of the act to enforce its provisions must be distinguished from the concurrent jurisdiction of the state court over questions in interstate commerce, not arising from or based upon the act. Murray v. Railroad Co., 62 Fed. Rep. 24. See supra, § 44.

§ 249. Jurisdiction of the Federal Courts in equity under the Act. The general chancery jurisdiction of the Circuit Courts of the United States in cases arising under the Interstate Commerce Act was sustained by the Supreme Court in the Lennon case, 166 U. S. 548, 41 L. Ed. 1110. The court held that a bill brought solely to enforce compliance with the Interstate Commerce Act, and to compel railroad

companies to comply with such Act, and to offer proper and reasonable facilities for the interchange with the complainant and enjoining them from refusing to receive from complainant for transportation over their lines any cars which might be tendered, made a case arising under the Constitution and laws of the United States, of which the Circuit Courts had jurisdiction. A case arises under the Constitution and laws of the United States whenever the plaintiff sets up a right which the parties had denied to him and the correct decision of the case depends upon the construction of such laws.

In Central Stockyards Co. v. L. & N. R. Co., 112 Fed. Rep. 823, which was a proceeding to enforce by injunction rights claimed under section 3 of the act, the court, though deciding against the plaintiff on the merits, was of the opinion that the remedies provided in section 9 were exclusive for remedies at law where the parties did not apply in the first instance to the Interstate Commerce Commission. The Supreme Court however in affirming the judgment, assumed, without deciding, that such rights as plaintiff had, could be enforced by bill in equity. See 192 U. S. 568, 48 L. Ed. 565.

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In Interstate Stockyards Co. v. Indianapolis U. R. Co., Fed. Rep. 472, the Circuit Court of Indiana sustained the jurisdiction in equity, saying that where a wrong was continuing in character and not susceptible of accurate pecuniary estimation and resorts to actions at law would involve a multiplicity of suits, none of which would end the litigation, a resort to equity was proper.

The general chancery jurisdiction has been sustained in several cases in the Federal Circuit Courts, where it has been invoked by both railroads and shippers for the enforcement of rights under the Act. Thus see Toledo, Ann Arbor R. Co. v. Railroad Co., 54 Fed. Rep. 730, 19 L. R. A. 387, 3± Fed. Rep. 746. In Little Rock & Memphis R. Co. v. E. Tenn. etc. R. Co., 47 Fed. Rep. 771, the Circuit Court for the western district of Tennessee in a suit by a carrier claiming an unjust preference violative of section 3, said that the court had jurisdiction to entertain all controversies whether at law or in equity, arising under the Act and that the remedies provided in the Act were merely supplemented to the ordinary remedies which were vested in the court as to all cases and controver