sion is mistaken as to its jurisdiction, the courts will correct the error of law, and mandamus will lie to compel the Commission to exercise the jurisdiction with which it has been vested. 13

§ 1138. Jurisdiction of the Federal courts.

The right of the Federal courts to review the orders and decisions of the Interstate Commerce Commission is derived from two sources. First, they have such jurisdiction as is expressly conferred by the Act to Regulate Interstate Commerce and its amendments. Second, they have such jurisdiction as is conferred upon them by the general judiciary acts of Congress. It was not intended by the Interstate Commerce Act to abbreviate the plenary jurisdiction of the Federal courts to entertain all controversies arising under an Act of Congress, either at law or equity, but the special remedies afforded by that Act were intended as merely supplementary to the ordinary remedies already existing under the Judicial Code. Although equitable jurisdiction over a particular controversy arising under the Interstate Commerce Act may not have been conferred upon the courts of the United States by the provisions of that Act, such courts may nevertheless entertain jurisdiction by virtue of the Judicial Code, which confers the powers of an equity court as to all cases and controversies arising under any act of Congress. 134 The Supreme Court had this distinction in mind when it said, "We are not required to say, however, that because an action at law for damages to recover unreasonable rates which have been exacted in accordance with the schedule of rates as filed, is forbidden by the Interstate Commerce Act, [see the Abilene Case, 204 U. S. 406] a suit in equity is also forbidden to prevent a filing or enforcement of a

13 Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474, 56 L. ed. 849, 32 Sup. Ct. 556.

13a Little Rock & M. Rd. Co. v. E. T., V. & G. Ry., 47 Fed. 771; Tift v. Southern Ry., 123 Fed. 789.

schedule of unreasonable rates or a change to unjust or unreasonable rates." 14 Hence if the remedies provided in the Act are inadequate, or are inapplicable, complainant may resort to the Federal courts under the provisions of the Judicial Code. And if the right which he seeks to enforce arises under the commerce clause, it is immaterial that it also exists at common law. 15 Since suits under the commerce clause of the Constitution necessarily involve a Federal question, diversity of citizenship is not material to the maintenance of Federal jurisdiction. 16 A suit to recover damages for acts which constitute a violation of the Interstate Commerce Act, the construction of which is in dispute between the parties, presents a Federal question for which it may, even if begun in a State court, be removed to a Federal court.17 The Judicial Code (sec. 24, par. 8) and the District Court Jurisdiction Act of Oct. 22, 1913, vest in the district courts of the United States original jurisdiction of all suits and proceedings arising under any law regulating commerce. If therefore a right conferred by a Federal statute is violated, recourse may be had to the district courts. Or if the Commission in the exercise of the power with which it is vested violates any right existing under the Federal Constitution, recourse may be had to the Federal courts for the amendment of its action. In this review of the orders of the Commission, the courts are concerned not with the expediency of the order but only with the power of the Commission to make it.

§ 1139. Constitutional and statutory limitations distinguished.

The problem which arises in all cases where the ques

14 Southern Ry. v. Tift, 206 U. S. 428, 51 L. ed. 1124, 27 Sup. Ct. 709. See the same case in the lower court, 123 Fed. 789.

15 Toledo, A. A. & N. M. Ry. v. Pennsylvania Co., 54 Fed. 730, 5 Int. Com. Rep. 522.

16 Kentucky & Indiana Bridge Co. v. L. & N. Ry., 37 Fed. 567, 2 L. R. A. 289, 2 Int. Com. Rep. 351.

17 Lowry v. C., B. & Q. Ry., 46 Fed. 83, 4 Int. Com. Rep. 435.

tion of the limits upon the jurisdiction of a commission is raised, is whether there is warrant of law for what is being done. To determine this is seldom as simple a matter as the reading of the statute under which the commission is purporting to act to see whether by proper interpretation sufficient authorization appears. If there is any doubt as to whether the power in question may constitutionally be conferred upon the commission, that question must be carefully considered. The action of a commission is fundamentally limited by these two possibilities either that the legislature has not gone as far as it might in empowering the commission, or that the legislature has gone further than it constitutionally may in attempting to give the commission authority. This distinction between the constitutional limitations upon all administrative powers and the statutory limitations upon the particular commission is often obscured, but must necessarily be made in analyzing authorities. In dealing with the decisions of the Supreme Court of the United States on commission control of public utilities, it is particularly necessary to insist upon this distinction, so often is it ignored with such danger of confusing the principles of law involved. Fortunately the cases with which the United States Supreme Court has had to deal relating to the general matter under discussion may be divided with unusual facility into these two classes. The cases which come to the Supreme Court wherever complaint is made of illegal action by State commissions arise under the Fourteenth Amendment, and are therefore devoted to the constitutional limitations upon commission action; for the proper interpretation of a State statute is not a Federal question.18 On the other hand, the questions which come

18 See Minneapolis & St. L. Ry. v. Minnesota, 186 U. S. 257, 46 L. ed. 1161, 22 Sup. Ct. 901, and other similar cases elsewhere discussed, as for instance in § 238; but see the decisions handed down by the Supreme

Court on March 8, 1915 in the North Dakota and West Virginia rate cases to the effect that disproportionate rates arbitrarily fixed under a statute are in effect a denial of constitutional right.

to the Supreme Court where the power of the Interstate Commerce Commission to act has been attacked have usually been questions involving the statutory limitations of the Interstate Commerce Act, although occasionally the constitutional limits upon congressional authorization have been brought in question. Recourse to the courts to settle these questions is itself governed by these principles. The vindication of the constitutional securities of those whose rights have been invaded cannot be withdrawn from the courts, nor can the power to say whether the coercion in question is without warrant of law. In the case of the Interstate Commerce Commission, Congress has left to the judgment of that body upon the facts before it about as much finality as is constitutionally possible. 19 But examination of the facts which are material to the controversy is so indispensable in any justiciable question that the Federal courts often seem to be reviewing the discretion of the Commission as to facts, when they are in reality only keeping it within the laws.

B. Grounds of Invalidity of Commission Action

§ 1140. Action under an unconstitutional statute.

It is assumed in the Act that the Commission may make orders which should not be enforced, for it is expressly provided that “all orders of the Commission, except for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed by the Commission, unless the same shall be suspended or set aside by a court of competent jurisdiction." The grounds upon which the courts will exercise this right of review are determined in each case as it arises by the courts themselves. 20 The validity of the Act setting aside rates reasonable in themselves is not authorized by the Act properly interpreted.

19 See Atchison, T. & S. F. Ry. v. U. S., 232 U. S. 199, 58 L. ed. 568, 34 Sup. Ct. 291, and other similar cases elsewhere discussed, for example in § 1036-1038 passim to the effect that

20 Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 38 L. ed.

as a whole is now too well settled to be questioned, but many of its provisions and several of the amendments have been attacked as an invasion of constitutional right. The Commission's interpretation of the Act and of its own powers under it have not infrequently been set aside by the courts, but in no case have they declared any part of the Act invalid because of conflict with the Constitution. The Acts under which the State commissions have been organized have not had an equally untroubled career. The legislatures of the several States are restrained not only by the provisions of their own constitutions, but their acts must also conform to the Federal Constitution and to the authority of Congress over commerce. The authority of Congress over interstate rates is exclusive, and any attempt by the States to regulate rates for interstate transportation is void. Hence a rate prescribed on carriage from a point within a State to a port in the same State from which the goods are to be sent to a point without the State is an interference with interstate commerce and is invalid.21 In many of the States a sentiment more hostile to carriers than has ever controlled Congress seemed to dominate the legislature, and this was manifested in some cases by fixing confiscatory rates and in others by attempting to exempt the orders of the commission from review by the courts. These provisions have always been set aside as being in violation of the Fourteenth Amendment. The jurisdiction of the State commissions is further limited by the existence of the Federal Act. The fact that Congress has exerted its power over interstate commerce deprives the States and their commissions of power to make many regulations which would otherwise be valid. A recent decision indicates that the control of the whole system of rates, both interstate and intrastate, may be

1014, 14 Sup. Ct. 1047. It is of course possible to provide by statute that a rate fixed by a commission shall be binding between the parties

until declared void by the courts.

21 Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 56 L. ed. 1104, 32 Sup. Ct. 653.