rights in interstate commerce under the decisions of United States supreme court holding that resort must be had to the Interstate Commerce Commission, where the matters are within the jurisdiction of that body. See infra, § 330. The radical change effected by those decisions in the right to resort to the courts without going before the commission makes it unnecessary to recite the different decisions of the circuit courts prior thereto. § 327 (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. 730 (1893), 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, supra. 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. § 328. Right of election in appealing to commission or the court. 329. The limitation of the right of private action in the courts. 330. Jurisdiction in equity under the act as amended. 331. Action for damages on account of discrimination. 332. Judicial application of section. [Persons claiming to be damaged may elect whether to com- § 328. Right of election in appealing to commission or the 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 [Officers of defendant may be compelled to testify.] 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 from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. § 329. The limitation of the right of private action in the courts. While sections 8 and 9 of the act, which specifically provide for a remedy at the choice of the shipper either by appeal to the commission or to the courts by private action against the carrier, have remained unchanged through the successive amendments, the general scope of the act has been so radically changed by these amendments and the powers of the commission thereunder have been so materially enlarged that the judicial construction of these sections as to the jurisdiction of the courts to entertain private actions under the act has been profoundly affected thereby. In Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 246, 51 L. Ed. 553 (1907), plaintiff brought suit in a state court in the state of Texas to recover because of the exaction by the carrier on an interstate shipment of an alleged unreasonable rate, although the rate charged was that stated in the schedules duly filed and published in accordance with the act. The court held that the relief prayed was inconsistent with the act to regulate commerce, since by that act the rates so filed were controlling until they had been held to be unreasonable by the Interstate Commerce Commission on a complaint made to that body. In this case the court held that the independent right of the individual to maintain actions to obtain pecuniary redress for violations of the act under sections 9 must be confined to such wrongs, as are consistent with the context of the act to be redressed without previous action of the commission; and that the provision of section 22, infra, expressly preserving the common law and statutory remedies, could not be construed as continuing for shippers the common-law right, the continued existence of which will be absolutely inconsistent with the provisions of the statute. The suit in this case was brought in the state court, but the conclusion of the court did not depend upon that, as the reasoning would apply equally to a suit brought in the circuit court of the United States. See also Cisco Coal Case, 204 U. S. 449, 51 L. Ed. 552 (1907). This ruling in the Abilene Cotton Oil Case was reaffirmed in B. & O. R. Co. v. United States, 215 U. S. 481, 54 L. Ed. 292 (1910), in a case involving the remedy of mandamus specifically provided under section 23; and the court said that it was settled in the Abilene case that the right to question in the courts the rates established in accordance with the act to regulate commerce, without previous resort by complaint to the commission in order to determine their unreasonableness, would be destructive of the act, and therefore was not permissible. The court said in its opinion that the Abilene Case was decided before the amendment of 1906 and that the construction given in that case was made the more imperative by these later amendments of 1906, as the commission is now empowered, and it is made its duty, in disposing of the complaints, not only to determine the illegal ity of the practices alleged to give rise to an unjust preference or undue discrimination, and to forbid the same, but moreover to direct the practice to be followed as to such subject for a future period not exceeding two years, the order to become operative without judicial action. The court therefore said that the primary interference of the courts with the administrative functions of the commission was wholly incompatible with the act. The court said there was nothing in the case of Southern Railroad Company v. Tift, 206 U. S. 428, infra, which qualified the ruling of the Abilene Case. See also section 23, infra. This ruling has been followed in several of the circuit courts. See Howard Supply Co. v. Chesapeake & Ohio R. Co., 162 Fed. 188, where the court held that the plaintiff had no right to sue in the circuit court for damages for an alleged overcharge until the commission had passed upon the matter, although the rate charged was higher than the former rate passed on by the commission and held unreasonable. In Clement v. L. & N. R. Co., 153 Fed. 979 (1908), the circuit court (E. D. of La.), held that the action by a shipper to recover damages because of an alleged discrimination in exacting a charge from one class not required from another class for the same service, was not within the jurisdiction of the court as a case arising under the Interstate Commerce Act, where it is not alleged that the charge was not in accordance with the schedule of rights in interstate commerce, whether private or public, has been made to the commission to correct the alleged discrimination. § 330. Jurisdiction in equity under the act as amended.The general jurisdiction of courts in equity for the protection of rights in interstate commerce, whether private or public has been considered in the cases cited under the previous section. There has been a difference of judicial opinion since the decision of the supreme court in the Abilene Cotton Oil case, supra, as to the jurisdiction of the courts under the law there declared to grant any equitable relief in relation to matters which were within the jurisdiction of the commission. In Southern Railway Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, decided in 1907, though the original suit was filed in 1903, the court affirmed the decree of the circuit court of appeals, fifth circuit, 138 Fed. 753, affirming an injunction granted by the cir cuit court, southern district of Georgia, enjoining an interstate carrier from enforcing an increased freight rate on lumber. The railroad had filed a demurrer to the bill for want of jurisdiction which was overruled; but the court made an order that the complainant should make a proper application to the Interstate Commerce Commission, and the court would then entertain a renewed application on the record as made. Application was made to the commission, which found that the advance was unreasonable; and thereupon, upon that record, the court enjoined the enforcement of the advance. The parties had made a stipulation that in the subsequent proceedings in the court the circuit court could adjudge the amount of reparation to be made. The final decree in the circuit court directed an order of reference with instructions to ascertain the amount of increase in rates paid since the rate went into effect. Referring to the Abilene case, the court said: "We are not required to say, however, that because an action at law for damages to recover unreasonable rates which have been exacted in accordance with the schedule of rates as filed is forbidden by the Interstate Commerce Act a suit in equity is also forbidden to prevent the filing or enforcement of a schedule of unreasonable rates or change to unjust or unreasonable rates." These decisions of the supreme court have been considered by the circuit court of appeals in the second, fourth, fifth, seventh and ninth circuits, and varying conclusions reached as to the jurisdiction of the circuit court to grant an injunction against an increase of rates before or pending an investigation by the commission. Thus, while the power to grant such an injunction was sustained in the ninth circuit in Northern Pacific Ry. Co. v. Pacific Coast Lumber Mfg. Ass'n, 165 Fed. 1, in October, 1908 (Judge Ross dissenting), affirming the circuit court of Washington, on same day, in the Kalispel Lumber Co. Case, 165 Fed. 25, an injunction order was reversed, where the rates had been filed and gone into effect, the court saying that the thirty days' notice required to be given of a change in schedules gave ample time for invoking the aid of equity if irreparable injury would result from their being put into effect. On the other hand, the circuit court of appeals of the fifth circuit, in Atlantic Coast Line v. Macon Grocer Co., 166 Fed. 206 (1909), reversed the circuit court (163 Fed. 738), in granting a temporary |