Houston Coal & Coke Co. v. Norfolk & W. Ry. Co.

• Decision Date: 08 July 1909
• Citation: 171 F. 723
• Parties: HOUSTON COAL & COKE CO. v. NORFOLK & W. RY. CO. POWHATAN COAL & COKE CO. v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

171 F. 723

HOUSTON COAL & COKE CO. v. NORFOLK & W. RY. CO.

POWHATAN COAL & COKE CO. v. SAME.

United States Circuit Court, W.D. Virginia.

July 8, 1909

Vinson & Thompson, Chapman & Gillespie, Arthur B. Hayes, and Wm. A Glasgow, Jr., for complainants.

Theodore W. Reath, Lucien H. Cocke, and John H. Holt (Joseph I. Doran on the brief), for defendant.

McDOWELL District Judge.

In the first of these cases the bill prays that the defendant be enjoined from filing, posting, or enforcing a proposed increased freight rate on coal from West Virginia to the 'lake ports' in Ohio, alleged to be unreasonable, and for general relief. In the second case the bill prays that defendant be enjoined from establishing such increased rate and, in the alternative, that, if not enjoined from establishing the increased rate, the defendant be enjoined from enforcing such rate until the Interstate Commerce Commission can act on the question of the reasonableness of the proposed rate. In both cases restraining orders were granted. In the Houston Case the defendant moves for the vacation of the restraining order, and in the Powhatan Case the complainant moves for a temporary injunction. Both bills have been demurred to.

It seems to me unnecessary to consider any other question than that of the jurisdiction of this court to grant the relief prayed for. The opinions of the Supreme Court in Texas & Pac. R. Co. v. Abilene Co., 204 U.S. 426, 27 Sup.Ct. 350, 51 L.Ed. 553, and in Southern Ry. Co. v. Tift, 206 U.S. 428, 27 Sup.Ct. 709, 51 L.Ed. 1124, do not seem conclusive of the questions here presented. In the former case the court had before it only the question as to the right of a shipper to recover at law for unreasonable freight charges, prior to action by the Interstate Commerce Commission. In the latter case the trial court had unquestionable jurisdiction (the Commission having acted and a petition under section 16 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 (U.S. Comp. St. 1901, p. 3165)) having been filed) before any decree prejudicial to the appellant was made, and the Supreme Court in effect merely announced that it was not in that case called upon to decide the question we are now considering. The first paragraph of the syllabus of the case is not justified by the opinion. Of the decisions of the subordinate federal courts it must be said that the current of opinion seems to have set in the direction of a denial of the jurisdiction. See Jewett v. Railroad Co. (C.C.) 156 F. 165; Kalispell Lumber Co. v. Railroad Co. (C.C.) 157 F. 845; Kiser Co. v. Railroad Co. (C.C.) 158 F. 193; Macon Grocery Co. v. Railroad Co. (C.C.) 163 F. 736; Northern Pac. R. Co. v. Pac. Lumber Co. (C.C.A.) 165 F. 1; Union Pac. R. Co. v. Oregon Lumber Co. (C.C.A.) 165 F. 13; U.S. v. Railroad Co. (C.C.) 122 F. 544; U.S. v. Railroad Co. (C.C.) 142 F. 176, 187; Potlatch Lumber Co. v. Railroad Co. (C.C.) 157 F. 588; Railroad Co. v. Kalispell Lumber Co. (C.C.A.) 165 F. 25; Railroad Co. v. Macon Grocery Co. (C.C.A.) 166 F. 206; Columbus Co. v. K. & M. Ry. Co. (C.C.) 171 F. 713.

The first question is as to the power of this court to enjoin the establishment of the proposed rate. It seems to me that the interstate commerce act shows that Congress intended to give to the Commission the sole jurisdiction to pass upon the reasonableness of a rate in the first instance. If this court assumes jurisdiction to enjoin the filing and posting of a rate, it is clear that no case for the action of the Commission could arise. A bill which prayed solely for a temporary, and finally a permanent, injunction forbidding a carrier to file and post an interstate rate, would be a pure injunction bill, in no sense ancillary; and before the permanent injunction could issue, at least, the court must investigate and determine the unreasonableness of the proposed rate. By necessary implication as it seems to me the language used in the act forbids that the court can have such power. Its exercise effectually and finally dispenses with action by the Commission. In U.S. v. Railroad Co. (C.C.) 122 F. 545, 546, it is said:

'In a recent case coming up from Kansas, the Supreme Court denied the right of the government to maintain a suit somewhat similar to this. But in that case the Interstate Commerce Commission had never granted a hearing, or made an order, in the matters involved. The Commission is the tribunal instituted by the government to inquire primarily into the fact as to whether discrimination exists. To it the shipper can bring his grievance.

Before it the railroads have a right to be heard. Until an inquiry is there made, and a finding and order had, the jurisdiction of a court of equity may not be invoked, because for the court to take hold at that primary point in the case would be to transfer the jurisdiction of the Interstate Commerce Commission-- the jurisdiction to first inquire into the facts-- to a court of equity. In practical application, it would abolish the Interstate Commerce Commission and devolve upon a master in chancery the preliminary inquiry into the facts. Because of this-- though the reason is not stated by the court as I have stated it-- the Supreme Court held that the suit thus before it could not proceed, except under the Elkins act subsequently enacted; but no opinion was expressed upon the right of the government to bring suit in cases where there had been a preliminary inquiry and finding by the Interstate Commerce Commission.'

The case therein referred to is supposed to be Missouri Pacific Ry. v. U.S., 189 U.S. 274, 282, 23 Sup.Ct. 507, 47 L.Ed. 811.

Let us now consider the power of the court to enjoin a carrier from enforcing a rate that has been filed and posted, but which has never been enforced. The theory on which such relief is asked is that the carrier will proceed to file and post the new rate, and that the court will merely enjoin the enforcement of the new rate until the Commission can act on the question of the reasonableness of the rate.

For argument's sake, and without considering the question, it is assumed that the federal Circuit Courts had equity jurisdiction, prior to the enactment of the interstate commerce act, to enjoin a carrier from enforcing an unreasonable interstate rate. Does not the act by necessary implication repeal the power?...