sies arising under an act of Congress. See also Kentucky & Indiana Bridge Co. v. L. & N. R. Co., 37 Fed. Rep. 567.

The jurisdiction in equity was also successfully invoked in a suit brought by a shipper seeking to enjoin unreasonable rates in Tift v. Southern Railway (So. Dist. of Ga.) 123 Fed. Rep. 790. The suit in this case was brought by a large number of parties engaged in the manufacture of Georgia pine lumber against the Southeastern Freight Association and a number of railroads, and sought to enjoin the defendants from enforcing an increase of two cents per hundred pounds in the freight rate on lumber from Georgia to Ohio river points. The Court said that Congress, in simply re-enacting the common law requirements that the rates should be reasonable, created no new right in the shipper; but by embodying this common law right in a law of the United States, Congress enabled him in the case of controversy to apply for relief to a court having jurisdiction of controversies arising under the Constitution and laws of the United States, and that it had long been the practice of courts of equity to grant injunctions. against extortionate charges and unjust discriminations. The court held that it had jurisdiction in order to avoid a multiplicity of suits. While thus sustaining the jurisdiction, the Court dissolved the injunction, pending application to the Interstate Commerce Commission for redress.

In United States v. Michigan Central Railroad Co., N. Dist. Ill., 122 Fed. Rep. 544, it was said by Judge Grosscup that a court of equity under its general chancery jurisdiction could remedy wrongs caused by the discriminations of carriers, that actions at law for such injuries were plainly inadequate, and nothing short of the prohibitive arm of the court of chancery could give the grain growers and other producers the free competitive field for the sale of their products to which they were entitled under the Interstate Commerce Act. The decision in this case was given after the passage of the Elkins Act, but in a suit filed before its passage, this act specifically directing that the writ of injunction could be issued in suits filed by the United States at the instance of the Commission. See infra, §310. The Court seemed clearly of the opinion in the case cited that the only necessity for the statute was to give the right to the government, irrespective of the investigation of the Commis

sion, and that under its chancery jurisdiction the power could be invoked to remedy the wrong at the instance of private shippers, whenever the remedy at law was not available.

In the case of Missouri Pacific Railway Co. v. United States, 189 U. S. 274, 47 L. Ed. S11, the Supreme Court overruled the Circuit Court for the So. Dist. of Kansas, 65 Fed. Rep. 903, and held that prior to the passage of the act of February 19, 1903, infra, § 310, known as the Elkins law, the district attorney of the United States, under direction of the attorney general in pursuance of a request made by the Commission, was without power to commence a proceeding in equity against a railroad corporation to restrain it from discriminating in its rates between different localities, (Justices Brewer and Harlan dissenting.) This amendatory act provides for equity jurisdiction in such cases where proceedings are instituted at the instance of the Interstate Commerce Commission, but makes no change in the law so far as the remedies open to individuals are concerned. The Court in its opinion in this case laid stress upon the fact that prior to the request of the Commission, upon which the suit was brought, no hearing was had before the Commission concerning the matters of fact complained of and there was therefore no finding of fact or order to the carrier to desist. In view of the passage of the Elkins Act, authorizing the remedy in pending cases, the cause was remanded for further proceedings under the law as modified by that act.

In the opinion of Grosscup, J., rendered after this decision, in the Missouri Pacific case, the Court said that this decision did not apply to a case where there had been a preliminary hearing and finding by the Commission. The Court therefore was inclined to the opinion that it had jurisdiction irrespective of the Elkins Act, where there was such hearing and finding, though since that enactment the question had become an academic one.

§ 250. Jurisdiction in equity for protection of interstate commerce.— In another class of cases, jurisdiction in equity has been successfully invoked not only by the United States, as in the Debs case, 158 U. S. 564, but by railroad companies for the protection of interstate commerce against unlawful combinations preventing the performance by such railroad companies of the duties imposed upon them by the statute

Thus in Toledo, A. A. & N. W. R. Co. v. Pennsylvania Company, 54 Fed. Rep. 730, Judge Taft in the northern district of Ohio, sustained the equitable jurisdiction in a suit filed against several railroad companies connecting with complainant company at Toledo, and asking an order enjoining the companies from refusing to receive and deliver complainant's freight, such refusal being threatened on the ground that the locomotive engineers of the defendants refused to handle trains containing such freight because the complainant employed on its line engineers who were not members of their brotherhood. The Court sustained the jurisdiction irrespective of citizenship, saying it was immaterial what rights the complainant would have had before the passage of the Interstate Commerce Act. "It was sufficient that Congress in the exercise of constitutional power had given a positive sanction of the Federal law to the rights secured in the statute, and any action involving the enforcement of those rights was a case arising under the laws of the United States." See also Ex parte Lennon, 166 U. S. 548, 41 L. Ed. 1110 (1897).

The Court also held that a mandatory injunction was a proper remedy to restore the passage of freight backwards and forward, as each carrier had the right to enjoy this without interruption.

SECTION 9.

§ 251. Persons claiming to be damaged may elect whether to complain to the Commission or bring suit in a United States court.

252. Judicial application of section.

§ 251. Persons claiming to be damaged may elect whether to complain to the Commission or bring suit in a United States court.-SEC. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness froin testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

§ 252. Judicial application of section.- See notes on section 8, supra. The provisions in this section for the compell- · ing of testimony and the production of books and papers was in effect held unconstitutional by the decision of the Supreme Court in the case of Hitchcock v. Counselman, infra, section 12, in that the protection given to the witness forced to give selfincriminating testimony was not sufficient under the Fifth Amendment of the Constitution. The act of 1893, infra, section 12, only related to testimony given before the Commission and did not apply to this section. This, however, was remedied by the act of 1903. See infra, § 310.

A final judgment in the suit or proceeding before the Interstate Commerce Commission and remaining of record in full force and effect is a bar in the United States Circuit Court to

a suit brought for the recovery of damages alleged to be sustained by plaintiff from the same acts complained of in the statement before the Commission. See Riddle v. New York, Lake Erie & Western Railroad Co., U. S. Circuit Court W., Dist. of Penn., 3 Int. Com. Rep: 230.

A party is not barred from prosecuting an action in court for an individual claim because of proceedings instituted before the Commission by an association of which he is a member, where it does not appear that the association presented a claim for the plaintiff to the Commission. Junod v. C. & N. W. R. Co., 47 Fed. Rep. 290.

It appears from the discussion in Congress that the purpose of this provision of the section, that a party must elect whether to proceed before the Commission or in the Court, was intended to prevent a party from using the Commission merely as a means of procuring evidence for a suit in court.

Under this section suit may be brought in any Circuit Court or District Court of the United States. Under the Anti-Trust Act of 1890 the jurisdiction is limited to the Circuit Court. In New Mexico v. Baker, 25 Sup. Ct. Rep. 375 (1905), the question was suggested, though not decided, whether either under the Interstate Commerce Act or the Anti-Trust Act of 1890 a suit could be brought in a Territorial District Court, or whether Congress intended that only courts of the United States invested by the Third Article of the Constitution with the judicial power of the United States should have original jurisdiction in such suits.