and circuit courts are, by federal statute, vested with concurrent jurisdiction of judicial proceedings for the condemnation of private property needed by the government for any public use authorized by the constitution and valid laws of the United States.59 60 § 641. Same-A proceeding to condemn private property for public use is a suit at common law. A judicial proceeding to condemn private property for public use is, within the meaning of the constitution and judiciary and removal acts of the United States, a suit at common law; and the general rule is that the trial of issues of fact in actions at law, both in the district and circuit courts shall be by jury, by which is meant a trial by an ordinary jury at the bar of the court, and congress has not provided any peculiar mode of trial in proceedings for the condemnation of lands for public use, and the direction of the federal statute that such proceedings shall conform, "as near as may be," to those "in the courts of record in the state," is not to be construed as creating an exception to the general rule of trial by an ordinary jury in a court of record, and as requiring, by way either of preliminary, or of substitute, a trial by a different jury, not in a court of record, nor in the presence of any judge, as such a construction would unnecessarily and unwisely encumber the administration of justice in the courts of the United States.1 Bridge Co., 147 U. S. 337 (37: 59 U. S. Kev. Stat. secs. 48704882; 25 U. S. Stat. at L. ch. 129, p. 94, and ch. 728, p. 357; 26 U. S. Stat. at L. ch. 797, sec. 1, pp. 315, 316, and ch. 837, sec. 2, p. 412; 4 Fed. Stat. Anno. 700 et. seq.; U. S. Comp. Stat. 1901, pp. 2516, 2518, 3375, 3376, 3525. "When, in the 11th section of the Judiciary Act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights are to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute." Strong, Justice, in Kohl v. United States, supra. § 642. Jurisdiction of suits under the act to prevent unlawful occupancy of the public lands.-The district and circuit courts have concurrent jurisdiction of civil suits in the name of the United States for the recovery of the possession of their public lands held by persons or corporations in violation of the act of congress, entitled "an act to prevent unlawful occupancy of the public lands."' 62 This statute was intended to operate upon mere trespassers who take possession of the public lands without shadow of title, and not upon persons who take possession under a bona fide claim or color of title; and the civil suit authorized by it to be brought is not a commonlaw action, but a summary proceeding in the nature of a suit in equity, and the decree authorized by the act to be entered in such suit for the abatement of enclosure around public lands is unknown as an action at common law as administered in this country, and may be reviewed on appeal rather than upon writ of error.63 § 643. Jurisdiction of actions for damages under the interstate commerce act.-The district and circuit courts are vested with concurrent jurisdiction of actions for damages under the interstate commerce act. The ninth section of that act provides "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." 64 In order to a recovery under this act, the plaintiff must allege distinctly and prove that the defendant carrier has violated the provisions of the act, and that he has, in consequence thereof, suffered special injury."5 62 23 U. S. Stat. at L. ch. 149, sec. 2, pp. 321, 322; Camfield v. United States, 167 U. S. 518, 528 (42:260). 63 Cameron V. United States, 148 U. S. 301, 311 (37: 459). 64 24 U. S. Stat. at L. ch. 104, sec. 9, p. 382; 3 Fed. Stat. Anno. 833; 3 U. S. Comp. Stat. 1901, p. 3154. 65 Parsons v. Chicago & Northwestern Ry. Co., 167 U. S. 447, 460 (42:231). § 644. Jurisdiction to issue writs of mandamus to compel equal facilities to shippers.-The district courts have jurisdiction concurrent with the circuit courts, upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act and amendatory acts to regulate interstate commerce, as prevents the relator from having interstate traffic moved by such common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by such common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against such common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ; and if any question of fact as to the proper compensation to the common carrier for the services to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into court, or otherwise, as the court may think proper, pending the determination of the question of fact; and the remedy given by the writ of mandamus is cumulative, and does not exclude or interfere with other remedies provided by the interstate commerce act and amendatory acts. § 645. Same-Foundation of the right to the writ of mandamus.-The foundation of the right of the relator to the writ of mandamus under this statute is an unjust discrimination, by the defendant common carrier, against the relator in favor of another shipper engaged in like traffic under similar conditions; and the relator must allege such unjust discrimination in the manner required by good pleading, and sustain his allegations by competent evidence, or the writ of mandamus will be denied. The statute requires that the relator shall allege such violation of the act "as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper." The remedy is 66 25 U. S. Stat. at L. ch. 382, sec. 10, p. 855; 3 Fed. Stat. Anno. pp. 852, 853; 3 U. S. Comp. Stat. 1901, p. 3172. purely statutory, and the pleadings and proofs of the relator must bring him within the terms and policy of the statute, and failing in this he will not be entitled to the extraordinary remedy furnished by the statute."" § 646. Same-Same-Purposes of the interstate commerce act. The principal objects and purposes of the interstate commerce act are to secure just and reasonable charges for transportation, and to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions, and to prevent undue or unreasonable preferences to persons and corporations, or localities, and to inhibit greater compensation for a shorter than for a longer distance over the same line, and to abolish combinations for the pooling of freights. But it was not designed by that legislation to prevent competition between different railroad lines, nor to interfere with the customary arrangements by railway companies for reduced fares in consideration of increased mileage, when such reduction does not operate as an unjust discrimination against other persons over the same road, nor to eliminate the principle that transportation may be sold at wholesale cheaper than at retail. All discriminations and preferences do not fall within the inhibitions of the statute, but only such as are unjust and unreasonable; and it is also true that a charge for transportation may be perfectly reasonable, and yet may operate as an unjust or unreasonable discrimination against others. When it is sought to show that the charge is extortionate as being contrary to the statutable obligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company carried for some other person or class of persons at a lower charge during the period through- · out which the party complaining was charged more under the like circumstances." 68 67 United States v. Norfolk & W. Ry. Co., 109 Fed. R. 831; United States v. Delaware, L. & W. R. Co., 40 Fed. R. 101. 68 Interstate Commerce Commis sion v. Baltimore & O. R. Co., 145 U. S. 263, 284 (36:699); Great Western R. Co. v. Sutton, L. R. 4 H. L. 226, 239; Interstate Commerce Commission v. Louisville & Nashville R. Co., 73 Fed. R. 409; Interstate Commerce Commission v. Baltimore & O. R. Co., 43 Fed. R. 37. § 647. Same-Plea in abatement-Former suit pending.-It has been decided on the circuit, that a former proceeding for a writ of mandamus under this statute, in the same jurisdiction, resulting in a final judgment denying the writ to the relator, to revise which judgment a writ of error is pending and undetermined in an appellate court, may be pleaded in abatement of a subsequent proceeding for a writ of mandamus between the same parties, and involving the same subject-matter.69 § 648. Same-Increased jurisdiction of the district courts by the last amendment to the act.-The last amendment to the act to regulate commerce provides: "that the circuit and district courts of the United States shall have jurisdiction, upon the application of the attorney-general of the United States, at the request of the commission, alleging failure to comply with or a violation of any of the provisions of said act to regulate commerce, or of any act supplementary thereto, or amendatory thereof, by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said acts, or any of them." 70 The late amendment also provides for many pecuniary penalties and forfeitures, to be recovered in any court of the United States of competent jurisdiction; and the revised statutes giving the district courts jurisdiction "of all suits for penalties and forfeitures incurred under any law of the United States, is effectual to vest those courts with jurisdiction of all suits to recover penalties and forfeitures under the act to regulate commerce, and all amendments thereto." 71 § 649. Seizure and destruction of obscene books, pictures and other articles imported from foreign countries in violation of law. Any judge of any district or circuit court, within the proper district, before whom complaint is made in writing on oath, founded upon knowledge or belief, and if upon belief setting forth the grounds of such belief, that there has been imported into this country from a foreign country, in 69 United States v. Norfolk & W. R. Co., 114 Fed. R. 683. 70 34 U. S. Stat. at L. ch. 3591, sec, 6 (adding sec. 16a to the act to regulate commerce) pp. 592, 593. 71 U. S. Rev. Stat. sec. 563, cl. 3; 4 Fed. Stat. Anno. 219; 34 U. S. Stat. at L. ch. 3591, pp. 584-595. |