Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs.' Ass'n

165 F. 1, 91 C.C.A. 39, 1908 U.S. App. LEXIS 4716
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 5, 1908
DocketNo. 1,520
StatusPublished
Cited by32 cases

This text of 165 F. 1 (Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs.' Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northern Pac. Ry. Co. v. Pacific Coast Lumber Mfrs.' Ass'n, 165 F. 1, 91 C.C.A. 39, 1908 U.S. App. LEXIS 4716 (9th Cir. 1908).

Opinion

GILBERT, Circuit Judge

(after stating the facts as above). The appellees moved to dismiss the appeal on the grounds, first, that jurisdictional questions only are presented, and that therefore, if the order is appealable, the appeal lies to the Supreme Court alone; and second, that the order appealed from was made ex parte and not upon “a hearing in equity,” and is therefore not appealable. To the first ground of the motion, the answer is that by the act of April 14, 1908, c. 1627, 34 Stat. 116 (U. S. Comp. St. Supp. 1907, p. 209), amending the seventh section of the act of March 3, 1891, c. 517, 26 Stat. 828 (U. S. Comp. St. 1901, p. 550), to establish the Circuit Courts of Appeals, appellate jurisdiction is given to this court from an interlocutory or[5]*5cler or decree granting' or continuing an injunction or appointing a receiver “in any cause,” whereas before such amendment the law had permitted such an appeal only in “a cause in which an appeal from a final decree may be taken under the provisions of said act to the Circuit Court of Appeals.” The amendment enlarges the right of appeal from such interlocutory orders and extends it to “any cause,” causes in which the jurisdiction of the court is the sole question involved, as well as other causes. Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C. C. A. 199.

Nor is the appeal subject to dismissal on the ground that the order appealed from was not had upon a “hearing in equity.” After the bill had been filed, the court, on October 1, 1907, issued an order upon the defendants therein to show cause on October 29th why the injunction should not issue as prayed for, and directed that a copy of the bill and of the order be served upon each of the defendants in the suit at least five days before the day so “set for the hearing.” The injunction order made on October 31st recites that tlie cause came on to be heard, pursuant to said rule to show cause, that the complainants appeared by their counsel, that the defendants appeared specially by counsel to move for the dismissal of the bill on the ground that they were corporations foreign to the state of Washington, and were entitled to be sued only in the Circuit Court of the United States for the district of which they were respectively inhabitants, and that they also appeared specially to file pleas to the same effect. It recites further that the court heard arguments upon the complainant’s application for an injunction, and arguments of the counsel for the defendants as amici curia:. This sufficiently shows that there was “a hearing in equity,” such as the act of April 14, 190(5, contemplates. The defendants to the bill each had notice and opportunity to appear and present all objections to the issuance of the injunction order, and we may assume that their counsel as amici curiae did present every available objection. This view of the statute is in harmony with our decision in Pacific Northwest Packing Co. v. Allen, 109 Fed. 515, 48 C. C. A. 521. The motion to dismiss will be denied.

Had the Circuit Court jurisdiction of the subject-matter of the suit? The Constitution declares that the judicial power of the United States shall extend to all cases in law and equity arising under the Constitution and the laws of the United States. By the terms of section 22 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 387 [U. S. Comp. St. 1901, p. 3170]), existing legal remedies were expressly preserved. Prior to its enactment, the equitable jurisdiction to enjoin excessive charges and discriminations by common carriers on the ground that the wrong was a constantly recurring one, for which there was no adequate remedy at law, was generally recognized. High on Injunctions, § 616; Menacho v. Ward (C. C.) 27 Fed. 529; Southern Express Co. v. Memphis, etc., Ry. Co. (C. C.) 8 Fed. 799; Coe v. Louisville & Nashville R. Co. (C. C.) 3 Fed. 775; Vincent v. Chicago & A. R. Co., 49 Ill. 33; American Coal Co. v. Consolidation Coal Co., 46 Md. 15; Rogers L. & M. Works v. Erie Ry. Co., 20 N. J. Eq. 379. Tlie question here is whether by implication the equitable remedy is, by the interstate commerce act, held in abeyance and post[6]*6poned until after the proposed future rate shall have gone into effect, and the Interstate Commerce Commission shall have passed upon the question of its reasonableness. The appellants claim that such is the purport of the decision in Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 R. Ed. 553. In that case it was- held that a shipper cannot maintain an action at common law in a state court to recover damages by reason of excessive and unreasonable freight rates exacted on interstate shipments, where the rates charged were those which had been duly fixed by the carrier under the provisions of the act, and had not been found to be unreasonable by the Interstate Commerce Commission, and that the commission was intended to afford an effective and comprehensive means for -redress of all wrongs resulting from unjust discriminations and undue preferences. In the course of the opinion, the court, after pointing out the fact.that the judgment of a court based on a complaint by a shipj}er without previous action by the commission would give rise to a change of the schedule rate and result in the destruction of the act and the remedial provisions which it afforded, said:

“For if, without previous action by the commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions -reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed the recognition of such a right is wholly inconsistent with the administrative power conferred upon the commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. Equally obvious is it that the existence of such a power in the courts, independent of prior action by the commission, would lead to favoritism, to the enforcement of one rate in one jurisdiction and a different one in another, would destroy the prohibitions against preferences and discrimination, and afford, moreover, a ready means by which, through collusive proceedings, the wrongs which the statute was intended to remedy could be successfully inflicted. Indeed no reason can be perceived for the enactment of the provision endowing the administrative tribunal, which the act created, with power, on due proof, not only to award reparation to a particular shipper, but to command the carrier to desist from violation of the act in the future, thus compelling the alteration of the old or the filing of a now schedule, conformably to the action of the commission, if the power was left in courts to grant relief on complaint of any shipper, upon the theory that the established rate could be .disregarded and bo treated as unreasonable, without reference to previous action by the commission in the premises. This must he, because, if the power existed in both courts and the commission to originally hear complaints on this subject, there might be a divergence between the action of the commission and the decision of a court.

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Bluebook (online)
165 F. 1, 91 C.C.A. 39, 1908 U.S. App. LEXIS 4716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-pac-ry-co-v-pacific-coast-lumber-mfrs-assn-ca9-1908.