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courts of equity. would have no jurisdiction to enforce its extraordinary equitable remedies.

The power to suspend now existing in the Commission applies only to a new individual or joint rate, fare, or charge, or any new individual or joint regulation or practice affecting any rate, fare, or charge.

There may be rules, regulations and practices which do not affect any rate, fare, or charge, and as to such the question is the same as that presented prior to the amendment of 1910. Judge Mayer in New York, in an unreported case, enjoined a tariff which, changing the former practice, eliminated the right of a consignee to inspect shipments of eggs prior to giving a receipt therefor. This new tariff did not affect a "rate, fare or charge," and was not suspended by the Commission although the reasonableness of the tariff was subsequently passed upon by that tribunal."

§ 307. Same Subject-Venue.-Suits seeking to enjoin a rate averred to be an "arbitrary and manifold exaction" brought in a Federal court are not dependent for jurisdiction solely upon the ground of diversity of citizenship and cannot be brought in a Federal district in which none of the defendants reside.**

$308. Jurisdiction of Suits to Set Aside Orders of the Commission. The second paragraph of section 207 of the Judicial Code gave the Commerce Court jurisdiction over "Cases brought to enjoin, set aside, annul, or suspend in whole or in

63. New York Mercantile Ex. v. Baltimore & O. R. Co., 36 I. C. C. 156.

64. Macon Grocery Co. v. Atlantic C. L. R. Co., 215 U. S. 501, 54 L. Ed. 300, 30 Sup. Ct. 184; Act Aug. 13, 1888, 25 Stat. L. 433, chap. 866, U. S. Comp. Stat. 1901, 508, 4 Fed. Stat. Ann. 265. Prior to the decision of the Supreme Court in the Macon Grocery case other courts had held differently: United States V. Standard Oil Co., 152 Fed. 290; Van Patten v. Chicago, etc., Ry. Co., 74 Fed.

981; Toledo, etc., Ry. Co. V. Penn. Co., 54 Fed. 730, 19 L. R. A. 387, 5 I. C. R. 545, 22 U. S. App. 561; United States V. Mooney, 116 U. S. 104, 29 L. Ed. 550, 6 Sup. Ct. 304; Atkins v. Fiber Disintegrating Co., 18 Wall., 85 U. S. 272, 21 L. Ed. 841; Re Louisville Underwriters, 134 U. S. 488, 33 L. Ed. 991, 10 Sup. Ct. 587; Re Hohorst, 150 U. S. 653, 37 L. Ed. 1211, 14 Sup. Ct. 221; Westinghouse Air Brake Co. v. Great N. Ry. Co., 88 Fed. 258, 31 C. C. A. 525; Kalispell Lumber

part any order of the Interstate Commerce Commission." By the Act of Congress of October 22, 1913, this power was "transferred to and vested in the several District Courts of the United States."5

§ 308 A. Same Subject-Negative Order of the Commission. -In discussing the jurisdiction of the Commerce Court, stated in the next preceding section, the issue was stated by the Chief Justice to be: "Is the authority of the Commerce Court confined to enforcing or restraining, as the case may require, affirmative orders of the Commission, or has it the power to exert its own judgment by originally interpreting the administrative features of the act to regulate commerce, and upon that assumption treat a refusal of the Commission to grant relief as an affirmative order and accordingly pass on its correctness?"

The question, after quoting the language of the juris dictional paragraph, was answered by the Supreme Court as follows: "Giving to these words their natural significance, we think it follows that they confer jurisdiction only to entertain complaints as to affirmative orders of the Commission; that is, they give the court the right to take cognizance, when properly made, of complaints concerning the legality of orders rendered by the Commission, and confer power to relieve parties in whole or in part from the duty of obedience to orders which are found to be illegal. No resort to exposition can add to the cogency with which the conclusion stated is compelled by the plain meaning of the words themselves."


This rule was recognized in the Intermountain case," but was held inapplicable as the order there involved, refusing

Co. v. Great N. Ry. Co., 157 Fed. 845; Northern Pac. Ry. Co. v. Pacific Coast Lumber Manufacturers' Assn., 16 Fed. 1, 91 C. C. A. 39.

65. Section 461, post. See Jurisdiction of Commerce Court, section 460, post.

66. Procter & Gamble v. United

States, 225 U. S. 282, 56 L. Ed. 1091, 32 Sup. Ct. 761.

67. United States v. Atchison T. & S. F. R. Co., 234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986. An order seemingly similar to the order in the Intermountain case was in Lehigh Valley R. Co. v. United States, 243 U. S. 412, 61 L. Ed. 819, 37 Sup. Ct. 397 held

special permission to charge more for the shorter than the longer haul under section 4 of the Act to Regulate Commerce then in force, was decided not to be a negative order. The Supreme Court is here stating a rule applicable under clause 8 of section 24 conferring jurisdiction on the Commerce Court which jurisdiction was subsequently transferred to the District Courts. Paragraph one of the same section confers general jurisdiction, on District Courts as follows:

"Of all suits of a civil nature at common law or in equity when the matter in controversy exceeds, exclusive of interest and cost, the sum or value of Three Thousand Dollars, and (a) arises under the constitution or laws of the United States." A shipper, whose legal rights have been denied him by a refusal by the Commission to issue an order required under "the laws of the United States" should have an opportunity to appeal to the courts of the country. That he may have such right in a proper case has not definitely been denied by the Supreme Court, although in a case holding the order of the Commission to be a negative one that court said: “We assume that the question whether the facts found by the Commission present a case of real or possible competition within the meaning of the statute is a question if law that could not be conclusively answered by the Commission; but still there is nothing for a court of equity to enjoin if all the Commission has done is to decline to extend the time during which the railroad can keep its boat line without risk. The order of the Commission was negative in substance as well as in form."

The law referred to in the quotation above became operative unless the Commission ordered otherwise. The failure. of the Commission to enter an order, whether because of a refusal to act or because of action contrary to the law, should be subject to judicial review. A shipper should not have his rights finally denied without an appeal to the law

to be a negative order and, therefore, beyond the competency of a United States Court of equity.

68. Lehigh Valley case, next preceding note. For a general dis

cussion of the subject see article by author hereof Columbia Law Review, January, 1917 and also in American Legal News, Vol. 28, No. 1 pages 5 et sea.

of the land as enforced by regular judicial process. The shipper's rights have been accurately stated as follows:"" "And so we are of the opinion that the right of a shipper to have his property carried at reasonable rate in the transaction of his business is a right of property, that to enforce such right our system of jurisprudence does not leave. him remediless, and that where an action at law is inadequate a remedy in equity must and does exist."

In a case where the Interstate Commerce Commission refused to act because erroneously of the opinion that it was without jurisdiction; and in a case where relief was denied because of its failure properly to understand and apply the statute of limitations, the Supreme Court held that a District Court of the United States sitting in the District of Columbia had jurisdiction to issue the writ of mandamus compelling the Commission to obey the applicable law."1

The rules established may be summarized as follows: Under the special jurisdiction granted the District Courts of the United States over proceedings arising under laws regulating commerce, the denial of relief by the Interstate Commerce Commission can not be reviewed by the courts which only act to set aside, amend, or suspend" positive orders. Where the Commission refuses to act, courts may under their general powers compel action by the appropriate writ of mandamus.

In the Procter & Gamble case" hearing was had and relief denied by the Commission. In a suit to set aside that order, brought in the Commerce Court, a court of limited jurisdiction, it was alleged that the Commission had erred in law. The Supreme Court denied jurisdiction. This de cision has support, if placed on the statute limiting the jurisdiction of the Commerce Court, but that basis was in effect denied by the Supreme Court in the Lehigh Valley Railroad case.' In the Cement Company case" a hearing was


69. Mclean Lumber Co. v. United States, 237 Fed. 460, 466.

70. Interstate Commerce Commission v. United States (Humbolt S. S. Co. case) 224 U. S. 474, 56 L. Ed. 849, 32 Sup. Ct. 556.

71. United States v. Interstate Com. Com., (Cement Case) 246 U. S. 638, 62 L. Ed. 914, 38 Sup. Ct. 408.


Note 66, supra.

73. Notes 67, 68, supra.
74. Note 71, supra.

had and because the Commission erred in applying the statute of limitations, jurisdiction in the courts was sustained. The distinction between the Procter & Gamble and the Lehigh Valley cases and the Cement case is rather shadowy. It is believed that the United States District Courts, the statutory amount being involved, has jurisdiction to review and set aside for specific error of law any decision of the Interstate Commerce Commission, whether there is an order dismissing the complaint or an order directing the action of the defendant. A finding either granting or denying relief "without evidence is arbitary and baseless" and the Constitution of the United States was framed to prevent "all arbitrary exercise of power.'


Suits within the general jurisdiction of Federal courts shall not when they arise "under the Constitution or laws of the United States" be brought "in any other district than that whereof he (the defendant) is an inhabitant." As defendants are usually numerous and reside in several districts this venue provision is a serious obstacle to obtaining relief. There should be a venue prescribed for suits arising under the general jurisdictional clause similar to that prescribed for suits under the special grant of jurisdiction."

308B. Parties.-Interested shippers not parties to the proceedings before the Commission may not sue to set aside an order of the Commission granting or refusing relief under the long-and-short haul clause of section 4 of the Act to Reg ulate Commerce as amended by the Act of June 1910 or that of 1920. Their remedy is by complaint to the Commission, as authorized by section 13 of those acts.78 The United States has consented to be sued and is a necessary and proper party to suits to set aside orders of the Interstate Commerce Commission." In the Steamship and the Cement

75. Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 96, 57 L. Ed. 431, 33 Sup. Ct. 185, Sec. 315, post.

76. Judicial Code, Secs. 24, 51. Macon Grocery Co. v. Atlantic C. L. R. Co., 215 U. S. 501, 54 L. Ed. 300, 30 Sup. Ct. 184.

77. Section 324, post.

78. United States v. Merchants & Miners Traffic Asso., 242 U. S. 178, 188, 61 L. Ed. 233, 37 Sup. Ct. 24.

79. Judicial Code, Secs. 208, 211. Illinois C. R. Co. v. Public Utilities Co., 245 U. S. 493, 62 L. Ed.

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