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posed upon the carrier by its charter, which is the law of its creation. The carrier cannot relieve itself from the performance of this duty by executing a contract with the shipper. The carrier owes a duty to the shipper, irrespective of any contract it may see fit to make with regard to the performance of that duty. The contract would be merely an agreement on the part of the carrier to perform a duty imposed upon it by law. It would be contrary to public policy and natural justice to assume that a common carrier could be freed from the obligation it owed to the public, by making a contract to perform such obligation. If this could be accomplished, the carrier, by its own act, would cease to be amenable to the statute, and could defeat the purpose and intent of the Commerce Act by making a contract and then refusing to perform it, leaving the shipper practically remediless. An action at law by the shipper to recover damages for a breach of the contract, furnishes the latter no adequate remedy, and Congress recognizing this fact gave the shipper a summary remedy of mandamus.

It will be observed further that this remedy was declared by the statute not to be an exclusive remedy merely, but cumulative. It was given to the shipper in addition to any other remedy which he might have, including his remedy for damages against the carrier for the breach of the contract. Section 22 of the Commerce Act in express words declares that nothing in the act contained "shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." And the new section, known as section 23, conferring upon the court power to issue a writ of mandamus against the carrier, compelling him to move and transport traffic and to furnish cars or other facilities for transportation, contained the provision in express words that the remedy given "by a writ of mandamus shall be cumulative and shall not be held to exclude or interfere with other remedies provided by this act, or the act to which it is a supplement."

It is obvious that while the court will not enforce a contract between private parties by mandamus, this rule can

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have no application to a contract which is merely declaratory of a public duty imposed upon a common carrier. The duty so imposed remains operative, whether the contract for its performance has been made or not, and such duty, being public, can be enforced by mandamus under the express provisions of the Commerce Act. If this were not the rule, then a carrier could defeat the statute by its own act, by making a contract to do that which the law declares it must do, and then refusing to perform the contract.

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29. Jurisdiction of Federal Courts. In all cases arising under the Commerce Act, the Elkins Act, and the Sherman Act, the jurisdiction of the Federal courts is exclusive. The subject-matter of these statutes is interstate commerce, over which, under the Constitution, Congress has supreme control. Congress may, if it sees fit, make the jurisdiction of the Federal courts exclusive of the State courts, or, if no provision is contained in the statute excluding jurisdiction of the State courts, either expressly or by implication, they can exercise concurrent jurisdiction with the Federal courts in enforcing the statute. The Judiciary Act of March 3, 1875, as amended August 13, 1888, section 1,* declares that "Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the Constitution or laws of the United States."

These acts, however, were passed after the Commerce Act and the latter is not affected by them. (In re Hohorst, 150 U. S. 653; Railway Co. v. Gonzalez, 151 U. S. 496.)

If, however, Congress chooses to make the jurisdiction of the Federal courts exclusive by the terms of the act, or such exclusive jurisdiction arises by necessary implication, the

*For text of the statute see Snyder's Interstate Commerce Act, page

State court is barred from the concurrent jurisdiction which it might otherwise have, and the act of Congress can be enforced only in the Federal court. Section 9 of the Commerce Act vests in the District and Circuit Courts of the United States jurisdiction to enforce the remedy of the shipper claiming damages for its violation. Actions and proceedings under the Commerce Act, therefore, derive their authority solely from the statute, and the jurisdiction of the Federal courts under it is exclusive. (Tift v. Southern Railroad Co., 123 Fed. Rep. 789, and authorities there cited.)*

Section 16 of the Commerce Act, as amended June 29, 1906, also provides for a penalty and forfeiture to the United States of $5,000 for failure to obey an order of the Commission, made pursuant to section 15 of the act; every distinct violation being a separate offense, and continuing violations to be deemed separate offenses.

Section 4 of the Sherman Act authorizes its enforcement

by Federal officers in the Federal courts. Section 7 gives the right to any person injured by any violation of its provisions to sue in the Circuit Court of the United States, and authorizes treble damages to be recovered in civil actions by the injured party.

Section 1 of the Elkins Act provides for forfeitures and penalties to the United States for three times the amount of the rebate.

The jurisdiction under these statutes is vested directly in the courts of the United States. They provide also for penalties and forfeitures, as well as civil remedies. Under section 9 of the Judiciary Act of 1789 (U. S. Rev. Stat., § 711), the jurisdiction vested in the Federal courts, "of all suits for penalties and forfeitures, incurred under the laws of the United States," is declared to be exclusive of the courts of the several States. This section of the Judiciary Act, defining the exclusive jurisdiction of the Federal courts, is as follows:

Exclusive Jurisdiction of Federal Courts.- The jurisdiction vested in the courts of the United States in the cases and pro

*See Snyder's Interstate Commerce Act, page 155.

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ceedings hereinafter mentioned, shall be exclusive of the courts of the several States.

First: Of all crimes and offenses cognizable under the authority of the United States.

Second: Of all suits for penalties and forfeitures incurred under the laws of the United States.

Third: Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.

Fourth Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction.

Fifth Of all cases arising under the patent-right or copyright laws of the United States.

Sixth Of all matters and proceedings in bankruptcy.

Seventh Of all controversies of a civil nature, where a State is a party, except between a State and its citizens, or between a State and citizens of other States or aliens. (U. S. Rev. Stat., § 711. Judiciary Act of 1789, Laws, chap. 20, § 9.)

The pendency of an action in a State court, seeking relief under the Sherman Act, therefore, is no bar to such an action pending in the Federal court. (Loewe v. Lawlor, 130 Fed. Rep. 633. See also under Sherman Act, § 41, page,post.)

$30. Jurisdiction Acquired only by Proper Service.In proceedings brought to enforce the provisions of the Interstate Commerce Act or of the Sherman Act of July 2, 1890, the court must acquire jurisdiction in the same manner as in any action or proceeding in the Federal courts, by proper service of the papers upon the defendant. The court cannot acquire jurisdiction over the person of a defendant. except by actual service of a notice upon him within the jurisdiction, or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance, or otherwise, of the want of due service. The plaintiff instituted proceedings in the District Court of the second judicial district of the Territory of New Mexico against the Santa Fé Pacific Railway Company, the Atchison, Topeka and Santa Fé Railway Company, the Colorado Fuel and Iron Company, and the American Fuel Company for alleged violations of the Interstate Commerce Act, and of the

Sherman Anti-Trust Act of 1890. A summons was issued against the Santa Fé Pacific Railway Company, which was served by the United States marshal, within the district, upon E. P. Ripley, president of the defendant corporation. Defendant was organized under an act of Congress, approved March 3, 1897. When Mr. Ripley, the president, was served, he was a passenger on board a railway train passing through the Territory. The company, however, had its principal office in the city of New York. Its land commissioner had an office at Topeka, Kan., and its president had an office in Chicago, Ill. The company had no property in the Territory of New Mexico except lands acquired by it under the foreclosure of a mortgage. It had no office or place of business in the Territory since the sale of its road. Upon a motion in which the defendant appeared especially for the purpose of moving to quash the service of the process, the court held that such service was wholly insufficient to confer jurisdiction upon the defendant corporation, because it had no office in New Mexico, and mere ownership of lands in New Mexico was not sufficient to locate the corporation there for the purpose of a personal action against it, and as there was no law in the Territory of New Mexico authorizing service upon an officer of a corporation other than a domestic corporation temporarily within the jurisdiction, the court held that the service was insufficient and the judgment of the Supreme Court of the Territory of New Mexico affirming the order to quash the return of the summons, and refusing to assume jurisdiction of the action as against the Santa Fé Railway Company, and dismissing an application for a writ of mandamus to compel the court to assume jurisdiction, was affirmed. (Caledonian Coal Co. v. Baker, 196 U. S. 432.)

31. Federal Question.- Where the record of a case in the State court shows that a Federal question was raised, and, in the absence of an opinion, it appears from a certificate, made part of the record, that it was not raised too late under the local procedure and that it was necessarily

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