SECTION 9. CHOICE OF COMPLAINT TO THE COMMISSION OR SUIT IN UNITED STATES COURT.

Persons claiming to be damaged complain to the

may elect whether to

Commission or

bring suit in a United States 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 director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit compelled to testo 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.

Officers of defendant may be

tify.

Rights of Private Action before Judicial Tribunals.-Section 9 was a portion of the original Act to Regulate Commerce, approved February 4, 1887 and has not been amended since its enactment. Like section 8 it relates to the rights of private individuals to invoke a remedy against common carriers regulated by the Interstate Commerce Act. Moreover like section 8 its influence has been greatly diminished because of the radical changes in the Act by reason of the amendments of 1906 and 1910 and the increased powers of the Interstate Commerce Com

mission thereunder. As a result thereof the jurisdiction of the courts to entertain private actions has been considerably changed under the influence of these amendments to the Act.

This section of the Act cannot be construed as an independent piece of legislation but it must be read in connection with the context of the entire Act and it must be construed with a view to its interdependence upon other sections and in harmony with them. The power of the courts to award damages to those claiming to have been injured, within the provisions of the ninth section, contemplates a decree in favor of the individual complainant merely to redress the particular wrong asserted to have been committed and does not include the power to direct the carrier to abstain in the future from similar violations of the Act. It therefore follows from the context of the Act that the independent right of an individual originally to maintain actions to obtain pecuniary redress for violations of the Act, conferred by the ninth section, must be confined to the redress of such wrongs as can, consistently with the context of the Act, be redressed by courts without previous action by the Commission and therefore does not imply the power in a court to primarily hear complaints concerning wrongs springing from the enforcement of a schedule of rates claimed to be excessive, preferential or discriminatory. As a condition precedent to such an action in

I Texas and Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. Here an action was brought in the state courts of Texas to recover from the carrier payments for the carriage of freight alleged to be in excess of a just and reasonable charge. The rate complained of, it is to be noted, was the one fixed in the rate sheets which the railroad company had established, filed, published and posted in accordance with the terms of the Act to Regulate Commerce. The Supreme Court said: "When the Act to Regulate Commerce was enacted there was contrariety of opinion whether, when a rate charged by a carrier was in and of itself reasonable, the person from whom such a charge was exacted had at common law an action against the carrier because of damage asserted to have been suffered by a discrimination against such person or a preference given by the carrier to another. (Parsons v. Chicago and Northwestern Railway, 167 U. S. 447, 455, 42 L. Ed. 231, 17 Sup. Ct. 887; Interstate Commerce Commission v. Baltimore and Ohio Railroad, 145 U. S. 263, 275, 36 L. Ed. 699, 12 Sup. Ct. 844). That the Act to Regulate Commerce was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue preference is undoubted. Indeed, is it not open to controversy that to provide for these subjects was among the principal purposes of the Act.

the courts there must have been some previous ruling of the Interstate Commerce Commission in the premises. Otherwise if the standard of rates fixed in the manner prescribed by the statute

(Interstate Commerce Commission v. Cincinnati, New Orleans and Texas Pacific Railway Co., 167 U. S. 479, 494, 42 L. Ed. 243, 17 Sup. Ct. 896.) And it is apparent that the means by which these great purposes were to be accomplished was the placing upon all carriers the positive duty to establish schedules of reasonable rates which should have a uniform application to all and which should not be departed from so long as the established schedule remained unaltered in the manner provided by law. (Cincinnati, New Orleans and Texas Pacific Railway Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Interstate Commerce Commission v. Cincinnati, New Orleans and Texas Pacific Railway Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896.)

"When the general scope of the Act is enlightened by the considerations just stated it becomes manifest that there is not only a relation, but an indissoluble unity between the provision for the establishment and maintenance of rates until corrected in accordance with the statute and the prohibitions against preferences and discrimination. This follows, because unless the requirement of a uniform standard of rates be complied with it would result that violations of the statute as to preferences and discrimination would inevitably follow. This is clearly so, for if it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of a shipper by a court and jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be unreasonable and ordering the carrier to desist in the future from violating the Act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would receive a preference or discrimination not enjoyed by those against whom the schedule of rates was continued to be enforced. This can only be met by the suggestion that the judgment of a court, when based upon a complaint made by a shipper without previous action by the Commission, would give rise to a change of the schedule rate and thus cause the new rate resulting from the action of the court to be applicable in the future as to all. This suggestion, however, is manifestly without merit, and only serves to illustrate the absolute destruction of the Act and the remedial provisions which it created which would arise from a recognition of the right asserted. 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

could be adjudged unreasonable by a court and jury upon the complaint of a shipper, without reference to a prior decision by the Commission as to its reasonableness, it would necessarily follow

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 new 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 be treated as unreasonable, without reference to previous action by the Commission in the premises. This must be, 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. In other words, the established schedule might be found reasonable by the Commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the Act impossible.

"Nor is there merit in the contention that section 9 of the Act compels to the conclusion that it was the purpose of Congress to confer power upon courts primarily to relieve from the duty of enforcing the established rate by finding that the same as to a particular person or corporation was so unreasonable as to justify an award of damages. True it is that the general terms of the section when taken alone might sanction such a conclusion, but when the provision of that section is read in connection with the context of the Act and in the light of the considerations which we have enumerated we think the broad construction contended for is not admissible. And this becomes particularly cogent when it is observed that the power of the courts to award damages to those claiming to have been injured, as provided in the section, contemplates only a decree in favor of the individual complainant, redressing the particular wrong asserted to have been done, and does not embrace the power to direct the carrier to abstain in the future from similar violations of the Act; in other words, to command a correction of the established schedules which power, as we have shown, is conferred by the Act upon the Commission in express terms. In other words, we think that it inevitably follows from the context of the Act that the independent right of an individual originally to maintain actions in courts to obtain pecuniary redress for violations of

that unless all courts reached an identical conclusion concerning the reasonableness of an established charge a uniform standard of rates for the future would be impossible, and it would not be

the Act conferred by the ninth section must be confined to redress of such wrongs as can, consistently with the context of the Act, be redressed by courts without previous action by the Commission, and, therefore, does not imply the power in a court to primarily hear complaints concerning wrongs of the character of the one here complained of. Although an established schedule of rates may have been altered by a carrier voluntarily or as the result of the enforcement of an order of the Commission to desist from violating the law, rendered in accordance with the provisions of the statute, it may not be doubted that the power of the Commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs unlawfully suffered from the application of the unreasonable schedule during the period when such schedule was in force.

"And the conclusion to which we are thus constrained by an original consideration of the text of the statute finds direct support, first, in adjudged cases in lower federal courts and in the construction which the Act has apparently received from the beginning in practical execution; and, second, is persuasively supported by decisions of this court, which, whilst not dealing directly with the question here presented, yet necessarily concern the same. * * When it is considered that the Act to Regulate Commerce was enacted in 1887, and that neither the diligence of counsel nor our own researches have brought into view any case except the one now under consideration, holding that a court could, compatibly with the terms of that Act, grant relief upon the basis that the established rate could be disregarded as unreasonable, it would seem to follow that the terms of the Act had generally been treated in practical execution as incompatible with the existence of such power or right. And this is greatly fortified when it is borne in mind that the reports of the decisions of the Interstate Commerce Commission show that many cases have been passed upon by that body concerning the unreasonableness of a rate fixed in an established schedule, which have resulted in awarding reparation to shippers and to the making of orders directing carriers to desist from future violation of the Act; that is to say, the necessary legal effect correcting established schedules.

"The cases of Cincinnati, New Orleans and Texas Pacific Railway Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Louisville and Nashville Railroad Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209, and Interstate Commerce Commission v. Louisville and Nashville Railroad Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. 687, involved the enforcement against carriers of orders of the Commission. After deciding that the orders of the Commission were not entitled to be enforced, because of errors of law committed by that body, this court declined to consider the question of the reasonableness per se of the rates as an original question; in other words the correction of the established