which enlarges the power of the commission in the very matter in which the temporary injunctions were sought to prevent irreparable injury pending the investigation by the commission, as now the commission is empowered to suspend an increase of rates for a stated period for the purpose of investigating their reasonableness. The principle discussed in these cases would seem not to apply where the aid of the court is sought to enforce the performance of a duty by a carrier imposed by general law and therefore not within the duty of the commission as specified in the act. Thus, in L. & N. R. Co. v. F. W. Cook Brewing Co., 172 Fed. 117 (1909), circuit court of appeals seventh circuit, where the court had jurisdiction of the parties and the suit was brought to compel the carrier to carry intoxicating liquors into a district where the sale was prohibited by law, the court held that an application of the statute to shipments from other states was void as an attempted regulation of interstate commerce and that such a case was not one for submission to the commission, and that the court had jurisdiction to entertain the same. It would therefore follow from the rulings of the supreme court and the reasoning whereon the decisions are based, that there can be no resort to the courts whether in law or equity, if the subject matter of the complaint is within the jurisdiction of the commission and can be there determined under the procedure provided in the act; but if the aid of the court is required in furtherance of the jurisdiction of the commission or the protection of property rights pending such determination, or if any of the common law duties of the carrier are sought to be enforced on any of the recognized grounds of equitable cognizance, such as the prevention of irreparable wrong, the jurisdiction of equity would be sustained. § 331. Actions for damages on account of discrimination.In Morrisdale Coal Co. v. Pa. R. Co. circuit court of appeals third circuit, 183 Fed. 929, Nov. 1910, affirming 176 Fed. 748. it was held that a party claiming to be injured by a discriminating rule for the distribution of coal cars in time of shortage by an interstate railroad could not maintain an action at law for the recovery of damages, although the action was commenced more than two years after the discrimination had ceased, until the Interstate Commerce Commission had investigated the case and determined by its report that the rule is and was discrimina tory; that the effect of the Interstate Commerce Act under the construction of the supreme court in the Abilene Case was not merely to suspend the right of a shipper to maintain an action. at law to recover damages resulting from an unreasonable rate or discriminating regulation, while such rate or regulation remained in force, but to supersede the right entirely, and the shippers' independent right of action was not revived by the abolition of the unlawful rate or regulation. The commission had ruled, infra, § 387, that it had no jurisdiction to make awards of general damages in cases of discrimination other than damages measured by the difference in rates and that such damages should be left to be determined by action of the court. In this case the court alluded to this report of the commission and intimated that the letter of the statute seemed to confer upon the commission the power to assess damages in every case of discriminatory practice. The court said further that it did not pass upon the question, whether after the commission had found such a rule to be discriminatory, it was its the commission's duty to assess the damages or whether they were to be recovered by an action in some court without any preliminary assessment by the commission. For a case wherein the same court affirmed a judgment for damages on account of discrimination in rates by the giving of rebates to competitors, wherein the question of jurisdiction pending the action of the Interstate Commerce Commission does not seem to have been raised, see Pa. R. Co. v. International Coal Mining Co., 173 Fed. 1 (October, 1909). The Morrisdale Coal Company Case above cited was followed by the circuit court E. D. Penn., 183 Fed. 908 (January 4, 1911), in the case of Mitchell Coal & Coke Co. v. Pa. R. Co., where the court held that it had no jurisdiction where the complaint was founded upon the defendant's practice of granting rebates to the defendant's competitors affecting not only the plaintiff but other shippers in the same region. It was a regulation or practice affecting rates, and the fact that it may have ceased did not affect the primary jurisdiction of the Interstate Commerce Commission. In another case in the same circuit, American Union Coal Co. v. Pa. R. Co., 159 Fed. 278 (February, 1908), the distinction above mentioned between a discrimination against an individual and a class of shippers was illustrated in a ruling of the court upon demurrer. The first count claimed damages for an alleged violation of the second section of the Interstate Commerce Act for discriminating against plaintiff in charging the full tariff rates and permitting its competitors by a device to transport their coal at a lower rate. This count was held good, while other counts in the same petition, claiming damages for alleged conspiracy in charging the tariff rates which were posted and filed with the Interstate Commerce Commission, were held bad on demurrer; and treble damages were also asked under the Sherman Anti-Trust Act for alleged conspiracy; but the court held that these second and third counts were bad as there was no right of action either under the anti-trust act or the Interstate Commerce act for a readjustment of tariff rates filed and posted other than through the Interstate Commerce Commission; and there was no allegation that the rates had been found unreasonable by the Interstate Commerce Commission. It follows, therefore, that where the action requires the determination of the unreasonableness of a rate or of a regulation in interstate commerce whereof the commission has jurisdiction under the act, the action cannot be maintained until the prior determination by the commission of the unreasonableness of such rate or regulation. On the other hand, if the action does not require such a determination, but seeks to recover for a discrimination in rates where the measure of damages is the difference between the amount paid by plaintiff and that paid by others under substantially the same circumstances and conditions during the same time, and in such case there is no occasion to resort to the commission, as there is no question to submit to them, the action at law is maintainable. See Pa. R. R. v. International Coal Mining Co., supra. Redress for such a wrong, therefore, in the words of the supreme court, would be consistent with the context of the act to be redressed without previous action by the commission. The distinction is illustrated in the Pennsylvania cases above cited. § 332 (252). Judicial application of section.-See notes in section 8, supra. The provisions in this section for the compelling of testimony and the production of books and papers were 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 self incriminating 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, § 347. The case of Webster Coal & C. Co. v. Cassatt, 207 U. S. 181, 52 L. Ed. 160 (1907), an action for damages (see 150 Fed. 32, 50), came before the supreme court on a writ of error involving the production of books and papers, and the court held that the order was insufficient to support the writ, and the merits of the original action were not considered. A final order of 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, 196 U. S. 432, 49 L. Ed. 540 (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. SECTION 10. § 333. Penalties for violations of act by carriers. 334. Amendments to the section. 335. The amendment of 1903. 336. Illegal combinations under section 10. 337. The incidental interference with commerce by a peaceable strike not a violation of the section. 338. Construction of the statute. 339. Removal of indicted persons to other districts for trial. 340. Limitation of criminal prosecution under the act. [Penalties for violations of Act by carriers or when the car- § 333. Penalties for violations of act by carriers.-SEC. 10. (As Amended March 2, 1889, and June 18, 1910.) That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense. Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges for the transportation of passengers or property, such person shall, in addition to the fine herein before provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. [Penalties for false billing, etc., by carriers, their officers or Any common carrier subject to the provision of this act, or, whenever such common carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such |