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ination, the shipper was injured thereby, and, if So, the amount of his damages; (6) whether the rate collected from the shipper was excessive and unreasonable, and, if so, what would have been a reasonable rate for the service; and, (7) whether, if the rate was excessive and unreasonable, the shipper was injured thereby, and, if so, the amount of his damages."

Suits for damages for unlawful rates, fares, charges and practices during federal control must be brought against an agent of the United States.433

§ 381. Procedure to Enforce or Annul Orders of the Commission. The jurisdiction conferred on the Commerce Court, stated in Section 357 above, was transferred to the District Courts by the Act of October 22, 1913,434 and that Act further provides that the procedure in the District Courts in respect to cases of which jurisdiction is conferred upon them by this Act shall be the same as that heretofore prevailing in the Commerce Court. The orders, writs, and processes of the District Courts may in these cases run, be served, and be returnable anywhere in the United States.

Cases pending in the Commerce Court at the date that court was abolished were by the statute transferred to the proper District Courts, and authority was given to the Judges of the Commerce Court to make orders necessary to effectuate such transfer. And after that date, cases remanded by the Supreme Court which had been appealed from the Commerce Court were to be remanded to a District Court, designated by the Supreme Court, wherein it might have been instituted at the time it was instituted in the Commerce Court.

433 Commerce Act 1887, as amended by Transportation Act, 1920, Sec. 666, post; appendix 1, post.

434 Sec. 642, 643, 645, post. In reviewing orders of the Commission in the past, some of the lower federal courts have permitted the introduction of testimony before the court that was not made a part of the record before the Commission. The

United States Supreme Court, in reviewing an order of the Secretary of the Treasury made under the Federal Packers and Stockyards Act, strongly intimated that such practice will constitute reversible error if question is raised upon appeal from the decision of the lower court. Tagg Bros. & Co. and Moorhead v. U. S., 280 U. S. 420, 74 L. Ed. 524, 50 Sup. Ct. 220.

§ 382. Interlocutory Injunctions-Three Judges to Hear Application for.-The District Court Jurisdiction Act provides:

"No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his assistance to hear and determine the application two other judges."

This provision is similar to Section 17 of the Act June 18, 1910, which section had reference to injunctions against state laws and, as amended, against orders made by administrative state officers,435 and the decisions on that statute are of value in considering this provision.

The Act further provides (38 Stat. 220, 28 U. S. C. A., Sec. 47) that "upon the final hearing of any suit brought to suspend or set aside in whole or in part any order of said Commission, the same requirement as to judges and the same procedure as to expedition and appeal shall apply.'

Where only one judge acts on an application for an interlocutory injunction his order is a nullity. As said by the Supreme Court, "the hearing and determination of the request for a temporary injunction should have been had before a court consisting of three judges constituted in the mode specified by the statute, A tribunal not so consti

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tuted did not possess jurisdiction. ''436

266,

435 Judicial Code, Sec. amended by Act of March 4, 1913, 37 Stat. 1013, 28 U. S. C. A., Sec. 380. Louisville & N. R. Co. v. U. S., 238 U. S. 1, 59 L. Ed. 1177, 35 Sup. Ct. 696. See Sec. 635, post.

436 Ex parte Metropolitan Water

Co., 220 U. S. 539, 55 L. Ed. 576, 31
Sup. Ct. 600; and see Louisville & N.
R. Co. v. Garret, 231 U. S. 298, 58 L.
Ed. 229, 34 Sup. Ct. 48; Louisville &
N. R. Co. v. Railroad Com. of Ala.,
208 Fed. 35; where an order of a
State Railroad Commission
was in-

Three judges are convened to determine the propriety of issuing or denying an injunction and not to pass on the merits of the case.437 But, as above stated, three judges are now required to hear such a case on submission for final decree.

§ 383. Interlocutory Injunctions-Notice and Hearing.— No application for an interlocutory injunction enjoining, in whole or in part, any order of the Interstate Commerce Commission shall be heard or determined before at least five days' notice of the hearing has been given to the Interstate Commerce Commission, and to such other persons as may be defendants in the suit; provided that in cases where irreparable damages would otherwise ensue to the petitioner, a majority of said three judges concurring, may, on hearing, after not less than three days' notice to the Interstate Commerce Commission and the Attorney General, allow a temporary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of said judges pending the application for the order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judges making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The said judge may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part until decision upon the application. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. "'438

The language relating to a statement of facts as to irreparable damages to be made by the court granting an injunction is the same as that in the Commerce Court Act. Construing the language in that Act, the Supreme Court held

volved but no interlocutory injunction asked, three judges were not necessary, Seaboard Air Line Ry. Co. v. Railroad Com, of Ga., 213 Fed. 27.

Drug Co. V. United

437 Brown
States, 235 Fed. 603.

438 Judicial Code, Sec. 208.

that there were three things provided for, (1) a temporary restraining order, (2) an injunction pendente lite, and (3) a perpetual injunction, and that "the statement of facts as to irreparable damages relate only to the first class of cases,' and it was ruled that the granting of an injunction pendente lite rested in the sound discretion of the trial court.439

The re-enactment of the statute in the District Court Jurisdiction Act adopts this prior construction whether it be fully supported by the language of the statute or not.

§ 384. Interlocutory Injunctions-Appeal from.-An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction, in such case if such appeal be taken within thirty days after the order, in respect to which complaint is made.

In one case the Supreme Court has held that on an appeal from an application for an interlocutory injunction the general equity rule that trial courts have a sound discretion in granting or refusing such injunctions will be applied. This rule of the Supreme Court has not generally been referred to, but probably will be followed in the future.440

This provision for appeal applies to interlocutory injunctions and not to a temporary stay or suspension.141

When an appeal is taken, the trial court may maintain the status quo pending the appeal.442 Temporary injunctions against state officers are not such orders as may be appealed directly to the Supreme Court.443

§ 385. Appeal from Final Judgment.-Upon the final hearing of any suit brought to suspend or set aside, in whole or

439 United States v. Baltimore & O. R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 Sup. Ct. 817. See same case, United States v. Baltimore & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, 76.

440 Alabama v. U. S., 279 U. S. 229, 73 L. Ed. 675, 49 Sup. Ct. 266.

441 See construction by Supreme Court, Sec. next preceding.

442 Louisville & N. R. Co. v. United States, 227 Fed. 273; reversed, but not on this point, same-styled case, 242 U. S. 60, 61 L. Ed. 152, 37 Sup. Ct. 61.

443 Looney v. Eastern T. R. Co., 247 U. S. 214, 62 L. Ed. 1084, 38 Sup. Ct. 460.

in part, any order of said Commission the same requirement as to the judges and the same procedure as to expedition and appeal shall apply. A final judgment or decree of the District Court may be reviewed by the Supreme Court of the United States if appeal to the Supreme Court be taken by an aggrieved party within sixty days after the entry of such final judgment or decree, and such appeals may be taken in like manner as appeals are taken under existing law in equity cases. And in such case the notice required shall be served upon the defendants in the case and upon the Attorney-General of the state.

Section 2 of the Act of June 19, 1910, relating to appeals from the Commerce Court gave the Commerce Court power to "direct the original record to be transmitted on appeal instead of a transcript thereof," and provided that an appeal should not stay or supersede the judgment appealed from unless so ordered by the Supreme Court or a justice thereof, and that appeals should have priority in hearing and determination. Neither of these provisions is contained in the repealing Act.

§ 386. Venue of Suits.-The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the Commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the Commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In case such transportation relates to a through shipment the term "destination" shall be construed as meaning final destination of such shipment.444

The venue here prescribed is not so broad as that stated in Section 16 of the Act under which suit may be brought

444 Secs. 644 to 651, post.