or damage to passengers' baggage 26 or goods shipped over their lines; 27 to recover damages for the failure of a common carrier to furnish cars for freight within a reasonable time; 28 although there has been no order by the Interstate Commerce Commission in the premises. But not where the sole complaint or the failure of the carrier to supply cars fitted with inside doors or bulkheads or timber for the construction of such fittings.29

The District Courts have jurisdiction of actions by carriers to recover freight charges upon interstate shipments,30 including charges for disinfecting cattle cars although the defendant admits that the shipment was made in interstate commerce and the propriety of the charges depends on the sole ground that the carrier is estopped from the collection; 31 but not it has been held of an action to collect the balance due for freight from the consignor which it has failed through error to collect the full amount from the consignee.32

Where he has made no complaint to the Interstate Commerce Commission, a shipper may sue in a district court to recover unjust and unreasonable charges for freight which he has been

26 N. Y. C. & H. R. R. R. Co. v. Beham, 242 U. S. 148, sustaining an action brought in a State Court; Pennsylvania R. R. Co. v. Puritan Coal Min. Co., 237 U. S. 121; Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120.

27 Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. N. S. 257; St. Louis In. & So. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. ed. 917; N. Y. Cent. R. Co. v. Mutual Orange Distributors, C. C. A., 251 Fed. 230; McGoon v. Northern Pac. Ry. Co., 204 Fed. 998; Smith v. Atchison, T. & S. F. Ry. Co., 210 Fed. 988. As to the liability of initial carriers see 34 St. at L. 595, Comp. St. § 8604a.

28 Pennsylvania R. R. Co. v. Puritan Coal Min. Co., 237 U. S. 121;

Pennsylvania R. Co. V. Sonman

Shaft Coal Co., 242 U. S. 120.

Where the distribution of the ears was in accordance with the carriers' rules it was held that there could be no recovery until the commission had determined whether the rules in this respect were reasonable. Morrisdale Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 304.

29 Loomis v. Lehigh Valley R. R. Co., 240 U. S. 43.

30 Atchison, T. & S. F. R. Co. v. Kinkade, 203 Fed. 165; Wells Fargo & Co. v. Caneo, 241 Fed. 727; Mobile & O. R. Co. v. Wash. & C. Ry. Co., 242 Fed. 531 (a suit by one carrier against another).

31 Louisville & N. R. R. Co. v. Rice, 247 U. S. 201.

32 Yazoo & M. V. R. Co. v. Zemurray, C. C. A., 238 Fed. 789.

33

obliged to pay; at least when the controversy involves only a construction of the tariff schedule and its application to the shipments in question; 34 or the construction of a federal statute such as that forbidding secret discriminations; 35 or when the Commission has decided the rates to be unreasonable in a proceeding instituted by another shipper similarly situated; 36 but not to recover damages in addition to those awarded by the Interstate Commerce Commission for the same grievance.37

The Interstate Commerce Commission has the function of passing upon the validity of a contract between a railroad company and a wharf company for the transfer of goods from cars to vessels.38 Consequently the Federal Courts, before a decision by the Commission upon the subject, will not take jurisdiction of a friendly suit by the latter against the former company to recover compensation under such a contract, when it appears that the suit is brought to obtain a judgment which might be pleaded against a disapproval by the Commission of the contract.39

Suits to enjoin combinations,40 and to cancel agreements,41 which are in restraint of commerce between States, arise under the laws of the United States and are within the jurisdiction of the Federal Courts if the value of the matter in dispute exceeds the jurisdictional amount. But it was held: that a suit by the receiver of a railroad company for an injunetion against the execution of a conspiracy to injure his company by a diversion of traffic was not removable.4 A suit by the owner of a telegraph line to enjoin its destruction is not

33 National Coal Co. v. Chicago & N. W. Ry. Co., C. C. A., 211 Fed 65. 34 Gimbel Bros. v. Barrett, 215 Fed. 1004; National Elevator Co. v. Chicago, M. & St. P. Ry. Co., C. C. A., 246 Fed. 588.

35 Langdon v. Pennsylvania R. Co., 194 Fed. 486; A. J. Phillips Co. v. Grand Trunk Western Ry. Co., C. C. A., 195 Fed. 12; California Adjustment Co. v. Southern Pac. Co., 226 Fed. 349.

36 National Pole Co. v. Chicago,

42

& N. W. Ry. Co., C. C. A., 211 Fed. 65.

37 Louisville & Nashville R. R. Co. v. Ohio Valley Tie Co., 242 U. S.

288.

38 Southern Cotton Oil Co. v. Central of Georgia Ry. Co., 204 Fed. 476.

39 Ibid.

40 Mannington v. Hocking Valley Ry. Co., 183 Fed. 133.

41 Chalmers Chemical Co. v. Chadcloid Chemical Co., 175 Fed. 995, 42 Smith v. Barnett, 242 Fed. 83.

within the jurisdiction of the Federal Court, because the defendant's acts would interfere with interstate commerce.43 A suit by a city to restrain the violation by a railway company of a contract fixing rates for transportation does not arise under the laws of the United States although the bill alleges in its charging part that the defendant relies upon an invalid order of the Interstate Commerce Commission authorizing an increase of the rates.44

§ 33. Suits on judicial and official bonds. Actions upon bonds required by the orders of the Federal courts, such as supersedeas bonds, injunction bonds, or bonds in support of attachments by the Federal courts,3 receivers' bonds, and suits upon the bonds of deputy collectors,5 United States marshals, cashiers of national banks,7 clerks of Federal courts, and other Federal officers, arise under the laws of the United States.

48 Postal Tel. Cable Co. v. Nolan, 240 Fed. 754; supra, § 25.

44 City of Monroe v. Detroit, M. & T. S. L. Ry., 257 Fed. 782; supra, §§ 24 and 25; Interborough R. R. v. Boston & M. R. R., C. C. A., 239 Fed. 97. Headnote:

"A suit by a railroad company, which leased its line, to compel the lessee company to issue passes pursuant to the lease agreement, is not one over which the federal courts have jurisdiction under Act Aug. 13, 1888, c. 866, 25 Stat. 433, as a suit arising under the Constitution and laws of the United States, because the lessee's probable defense, based on the inhibition against the issuance of passes found in the acts to regulate commerce (Act June 29, 1906, c. 3591, 34 Stat. 584, and Act June 18, 1910, c. 309, 36 Stat. 539), was anticipated and attacked on the ground that such defense was unavailing under the Constitution."'

§ 33. 1 American Surety Co. V. Shulz, 237 U. S. 159, affirming 222 Fed. 280; Crane v. Buckley, 105 Fed. 401.

2 Lamb v. Ewing, C. C. A., 54 Fed. 269; Leslie v. Brown, 90 Fed. 171, 32 C. C. A. 556.

3 Files v. Davis, 118 Fed. 465. 4 United States v. Douglas, 113 N. C. 190, 18 S. E. 202.

5 Crawford v. Johnson, Fed. Cas. No. 3,369 (Deady, 457); Orner v. Saunders, Fed. Cas. No. 10,584 (3) Dill. 284).

6 Feibelman v. Packard, 109 U. S. 421, 27 L. ed. 984; Bachrack v. Norton, 132 U. S. 337, 33 L. ed. 377; Lawrence v. Norton, 13 Fed. 1, 4 Woods, 383; McKee v. Brooks, 64 Tex. 255. Contra, Phillips v. Edelstein, (Texas), 2 Willson, Civ. Cas Ct. App. § 449; where the suit was brought for the wrongful seizure of property under a writ of attachment.

7 Walker v. Windsor Nat. Bank, C. C. A., 56 Fed. 76.

8 Howard v. U. S., 184 U. S. 676, 46 L. ed. 754; affirming 102 Fed. 77, 42 C. C. A. 169.

9 U. S. v. Belknap, 73 Fed. 19; an Indian agent.

Suits by material men upon the bonds of contractors with the Federal government arise under the Constitution and laws of the United States.10 A suit on the bond of a clerk of a court of the United States which depends upon the scope and effect. of the bond and the meaning of the statutes in conformity with which it was given, is a suit arising under the laws of the United States, of which a District Court has original jurisdiction without diversity of citizenship.11 A District Court of the United States has jurisdiction of a suit brought by a trustee in bankruptcy, to enforce the bond of his predecessor. 12

1

§ 34. Suits by and against officers of the United States. Suits brought by officers of the United States in the exercise of their official functions arise under the laws of the United States and may be brought in the District courts or if previously brought in the State courts may be removed thereto. It was held that an action by a United States marshal against his deputy, to recover according to contract a part of fees collected, is not removable. Suits against officers of the United States for acts done by virtue, or under color, of their office, arise under the laws of the United States and may be removed. Thus, a suit against a marshal of the United States for an abuse of

10 U. S. Fidelity & Guaranty Co. v. U. S., 204 U. S. 349, 51 L. ed. 516; U. S. v. Churchyard, 132 Fed. 82; U. S. ex rel. Giant Powder Co. v. Axman, 152 Fed. 816. Contra, U. S. v. Henderlong, 102 Fed. 2, U. S. v. Sheridan, 119 Fed. 236; U. S. v. O'Brien, 120 Fed. 446, 448; U. S. v. Barrett, 135 Fed. 189; Bur rell v. U. S., C. C. A., 147 Fed. 44, 46.

11 Howard v. U. S., 184 U. S. 676, 46 L. ed. 754; affirming 102 Fed. 77, 42 C. C. A. 169.

12 U. S. ex rel. Schauffler v. Union Surety & Guaranty Co., 118 Fed. 482.

§ 34. 1 U. S. R. R. Adm. v. Burch, 254 Fed. 140.

2 Johnson v. Rankin (Texas), 95 S. W. 665.

3 Setzer v. Douglass, 91 N. C.

426; Hildebrand v. Douglass, 91 N. C. 430.

4 Cleveland, C. C. & I. R. Co. v. McClung, 119 U. S. 454, 30 L. ed. 465; affirming 15 Fed. 905; Bock v. Perkins, 139 U. S. 628, 35 L. ed. 314; Sonnentheil v. Christian Moerlein Brewing Co., 172 U. S. 401, 43 L. ed. 492; Auten v. U. S. Nat. Bank, 174 U. S. 125, 141, 43 L. ed. 920, 926; Van Zandt v. Maxwell, Fed. Cas. No. 16, 884 (2 Blatchf. 421); Warner v. Fowler, Fed. Cas. No. 17,182 (4 Blatchf. 311); Ellis v. Norton, 16 Fed. 4, 4 Woods, 399; Front St. Cable Ry. Co. v. Drake, 65 Fed. 539; Drake v. Paulhamus, C. C. A., 66 Fed. 895; Wood v. Drake, 70 Fed. 881; Galatin V. Sherman, 77 Fed. 337; Eighmy v. Poucher, 83 Fed. 855, Woods v. Root, C. C. A., 123 Fed. 402.

But

Federal process against the defendant to the writ,5 or for levying under a writ upon property claimed by a stranger to the suit, but which the marshal claims belongs to the defendant to the writ, arises under the laws of the United States, and is removable; at least when the plaintiff's initial pleading shows that the defendant's acts, of which complaint is made, were done in his official capacity." Where this did not appear in the plaintiff's pleading, it was held, that the action was not removable. a suit against a marshal for a levy upon goods which he does not claim to be the property of the person named in the writ, is not removable. It was held: that an action by a deputy marshal against his principal, for fees due him, is not removable.10 The fact that a private individual is made a co-defendant with the marshal in the suit does not divest the court of jurisdiction. It was held, that an action against private individuals, for wrongfully causing a United States marshal to levy execution on plaintiff's chattels, is a case arising under the laws of the United States and may be removed. 12 Suits against receivers of national banks and receivers appointed by the Federal courts are considered in the following sections. An action by or against the agent of the shareholders appointed to take charge of the assets of a national bank, arises under the laws of the United States.1 13

§ 35. Suits by and against receivers of national banks. A suit by the receiver of a national bank, appointed by the Comptroller of the Currency, at least when brought in the course of 8 Rothschild v. Matthews, 22 Fed.

5 Front St. Cable Ry. Co. V. Drake, 65 Fed. 539; Wood v. Drake, 70 Fed. 881.

6 Bock v. Perkins, 139 U. S. 628, 35 L. ed. 314; affirming 28 Fed. 123; Sonnentheil v. Christian Moerlein Brewing Co., 172 U. S. 401, 43 L. ed. 492; Ellis v. Norton, 16 Fed. 4, 4 Woods 399; Drake v. Paulhamus, C. C. A., 66 Fed. 895.

7 Walker v. Coleman, 55 Kan. 381, 40 Pac. 640, 49 Am. St. Rep. 254. Contra, Ellis v. Norton, 16 Fed. 4, 4 Woods 399; Wood v. Drake, 70 Fed. 881; Howard v. Stewart, 34 Neb. 765, 52 N. W. 714.

6.

9 Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257; Kelsey v. Dallon, Fed. Cas. No. 7,678; McKee v. Coffin, 66 Tex. 304, 1 S. W. 276.

10 Upham v. Scoville, 40 Ark. 170. 11 Sonnentheil v. Christian Moerlein Brewing Co., 172 U. S. 401, 43 L. ed. 492; But see Wardens, etc., of St. Luke's Church v. Sowles, 51 Fed. 609; Frank v. Leopold & Feron Co., 169 Fed. 922.

12 Hurst v. Cobb, 61 Fed. 1.

13 Barron v. McKinnon, 179 Fed. 759.