sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the Court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the Court, the property to be returned to the defendant.

"8. Within ten days after service of such notice, the attorney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the Court or a Judge thereof at the time therein stated.

9. The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the Court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright.

"10. Thereupon the Court in its discretion, after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the Court, and conditioned for the delivery of said specified articles to abide the order of the Court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond.

"11. Upon the granting of such application and the justification of the sureties on the bond, the Marshal shall immediately deliver the articles seized to the defendant.

"12. Any service required to be performed by any Marshal may be performed by any deputy of such Marshal.

"13. For services in cases arising under this section, the Marshal shall be entitled to the same fees as are allowed for similar services in other cases. 28

The court cannot grant an order to show cause why articles

28 214 U. S. 533, 53 L. ed. 1073.

See $91, supra; § 278, infra.

thus impounded should not be returned except upon presentation of the affidavit required by copyright rule 9.29 A defendant who moves for a larger bond by plaintiff and obtains the same waives any right he might otherwise have to vacate the writ of seizure and have the article returned.30

§ 151. Bills in equity under the Interstate Commerce Law. The appropriate courts of the United States have jurisdiction to entertain bills in equity to enforce, otherwise than by adjudication and collection of forfeiture or penalty or by infliction of criminal punishment, any order of the Interstate Commerce Commission other than for the payment of money. Such suits may be brought by the United States, and also by private individuals, for whose benefit the orders were made, such as an order awarding reparation to shipper for an unlawful charge.* No court of the United States has jurisdiction of a suit to enjoin an unreasonable charge for transportation until the Interstate Commerce Commission has passed upon the question; but where, pending a suit to enjoin an unreasonable increase in freight rates, the complainants applied to the Interstate Commerce Commission, which decided in their favor, the court finally rendered a decree upon its findings and conclusions.

The court formerly had jurisdiction to restrain a railroad company from refusing to accept and carry liquor because of an unconstitutional statute of the State into which the liquor was to be transported." Jurisdiction has been taken of a suit by citizens of a State engaged in the lawful sale of liquor there to enjoin an express company from accepting for transportation

29 Crown Feature Film Co. V. Bettis Amusement Co., 206 Fed. 362. 30 Universal Film Mfg. Co. v. Copperman, 206 Fed. 69.

§ 151. 125 St. at L. 859; 32 St. at L. 847; U. S. v. Michigan Cent. R. Co., 122 Fed. 544; Jud. Code, § 207, 36 St. at L. 1087. See supra. 2 U. S. v. Michigan Cent. R. Co., 122 Fed. 544.

3 Chicago, B. & Q. R. Co. v. Feintuch, C. C. C., 191 Fed. 482.

4 Ibid.

5 Southern Ry Co. v. Tift, 206 U. S. 428, 51 L. ed. 1124. Cf. Macon

Grocery Co. v. Atlantic C. L. R. Co., 163 Fed. 736, 738; aff'd in 215 U. S. 501, 54 L. ed. 300. But see Jewett Bros. & Jewett v. Chicago, M. & St. P. Ry. Co., 156 Fed. 160; Columbus Iron & Steel Co. v. Kanawha & M. Ry. Co., 171 Fed. 713; Houston Coal & Coke Co. v. Norfolk & W. Ry. Co., 171 Fed. 723.

6 Southern Ry. Co. v. Tift, 206 U. S. 428, 51 L. ed. 1124.

7 Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311. See Royal Brewing Co. v. Missouri K. & T. Ry. Co., 217 Fed. 146.

thither from another State liquor illegally sold to purchasers who were competitors of the complainant. It has been held:

that an action against an interstate common carrier by rail, for damages caused by unjust discrimination in rates and charges against plaintiff as a shipper over its road, and in affording other shippers better facilities, and for unlawfully demanding and receiving extortionate rates from plaintiff, is an action arising under the Interstate Commerce law, although not in express terms based on that act, and, although an action would lie for the same cause at common law; and is removable, when the petition for removal sets up a defense under the act of Congress.9

The District Courts of the United States have jurisdiction of a suit to enjoin, set aside, annul, or sustain, in whole or in part, any order of the Interstate Commerce Commission. 10 Such orders will be set aside when they deprive the complainants of their property without due process of law, or take their property without just compensation, or are beyond the powers of the commission, or the commission's power was exercised with gross unreasonableness.11 For example, when it was made. without any evidence to support it; 12 or without any substantial evidence 13 or upon evidence of which the carrier was not apprised and was given no opportunity to meet 14 except perhaps in the case of expert evidence 15 or solely upon evidence, such as hearsay, which is clearly inadmissible 16 or where the indisputable facts show that it was based upon an error or

8 Long v. Southern Express Co., 201 Fed. 441.

9 Lowry v. Chicago, B. & Q. Ry. Co., 46 Fed. 83.

10 Jud. Code, § 207, 36 St. at L. 1148, supra, § 100b.

11 F. H. Peavey & Co. v. Union Pac. R. Co., 176 Fed. 409. Cf. Vandalia R. R. Co. v. Public Service Commission, 242 U. S. 255. But see Philadelphia & R. Ry. Co. v. Interstate Commerce Commission, 174 Fed. 687.

12 Interstate Commerce Com. v. Louisville & Nashville Railroad Co.,

227 U. S. 88; St. Louis, I. M. & S. Ry. Co. et al v. United States (Interstate Commerce Commission), 217 Fed. 80; Chestnut Ridge Ry. Co. v. United States, 248 Fed. 792.

13 Louisville & N. R. Co. v. U. S. 216 Fed. 672; M'Lean Lumber Co. v. United States, 237 Fed. 460.

14 Atlantic Coast Line R. Co. v. Interstate Commerce Commission, Comm. Ct. 194 Fed. 449.

15 Ibid.

16 Atchison, T. & S. F. Ry. Co. v. Spiller, C. C. A., 246 Fed. 1.

law. 17 Thus may be reviewed an order which awards reparation to a complainant.18 The Commerce Court had no jurisdiction to entertain a complaint because of the refusal of the Interstate Commerce Commission to act, 19 such as a claim by a shipper to recover excessive freight charges which had been presented to the commission and rejected; 20 nor of a claim presented to the commission upon which it had not passed,21 nor to review the denial by the commission of a petition by a carrier for leave to refund an excessive freight charge.2 22 Where the commission has refused to act, the remedy, if any, is by mandamus.23 An order which fixed a new schedule of rates which was lower than those proposed by the petitioner is not a negative order and in a proper case may be reviewed.24 An interlocutory order such as the assignment of a cause for hear ing 25 will rarely if ever, be reviewed. Even if the evidence is not contradicted the question of the reasonableness of a rate or whether there has been an undue discrimination 27 is ordinarily one of fact with which the courts will not interfere. Any party to an order of the Interstate Commerce Commission may sue to have the same set aside without joining other persons named in the order and similarly affected by the same.2 A bill to set aside an order of the Interstate Commerce Com

17 Louisville & N. R. Co. v. United States, 216 Fed. 672, s. c., 227 Fed. 258.

18 Arkansas Fertilizer Co. v. U. S., Comm. St. 193 Fed. 667; Southern Ry. Co. v. U. S., Comm. Ct. 193 Fed. 664.

19 Procter & Gamble Co. v. U. S., 225 U. S. 282, 56 L. ed. 1091; reversing Comm. Ct. 188 Fed. 221; Lehigh Valley R. R. Co. v. United States, 243 U. S. 412, affirming 234 Fed. 682; Manufacturers Ry. Co. v. United States, 246 U. S. 247.

20 Ibid.

21 U. S. ex rel. Stony Fork Coal Co. v. Louisville & N. R. Co., Comm. Ct. 195 Fed. 88.

22 Arkansas Fertilizer Co. v. U. S. Comm. Ct., 193 Fed. 667.

26

28

23 Interstate Commerce Commission v. U. S. ex rel. Humboldt S. S. Co., 224 U. S. 474, 56 L. ed. 849.

24 McLean Lumber Co. v. United States, 237 Fed. 460.

25 United States v. Illinois Central R. R. Co., 244 U. S. 82.

26 Louisville & N. R. Co. v. United States, 216 Fed. 672, s. c., 227 Fed. 258; M'Lean v. United States, 237 Fed. 460; Florida East Coast Ry. Co. v. United States, 200 Fed. 797. 27 United States v. Louisville & Nashville R. R. Co., 235 U. S. 314. 28 Atlantic Coast Line R. Co. v. Interstate Commerce Commission, Comm. Ct. 194 Fed. 449.

mission or other board fixing the amount of charges for the transportation of freight or passengers, upon the ground that they do not afford reasonable compensation, must allege facts in support of such conclusions; such as the amount of revenue derived from the traffic affected and so far as possible the cost of the service, or other facts from which the court can determine for itself whether the rates fixed would produce a reasonable profit.29 It seems, that it is insufficient to allege that the known loss resulting from the rate will be a specified amount without stating the facts from which such result is reached.30 Where the ground of objection to such action by a State board is that it will affect interstate commerce, it is insufficient to allege that the railroad's principal business between the points affected consists of interstate commerce and that the road will be compelled to lower its interstate rates without showing what part of the predicted loss will be on the traffic affected as distinguished from the general body of traffic; and the bill should disclose facts showing with reasonable definiteness not only the present total value and gross revenue of the road affected, but also the gross revenue from each class of business, interstate and local, freight, passenger or other, and the proportionate property values devoted thereto, together with the gross operating expenses, and a proportionate application thereof to such different classes of traffic, so that the net revenue from each source may be thereby ascertained.31 It has been held to be insufficient to set forth the proceedings of the commission finding that the rates charged were unreasonable or discriminatory or otherwise in violation of the statute; 32 and an allegation that "said commission agreeable to the provisions of law in that regard duly" caused a copy of its order to be delivered to the defendant, is not a sufficient allegation of the service of the same.33

29 Atlantic Coast Line R. Co. v. Interstate Commerce Commission, Comm. Ct. 194 Fed. 449; Louisville N. R. Co. v. United States, 225 Fed. 571.

30 Southern Pac. Co. v. Railroad Commission of California, 193 Fed. 699; Northern Pac. Ry. Co. v. Lee, 199 Fed. 621.

31 Southern Pac. Co. v. Railroad Commission of California, 193 Fed.

699.

32 Bear Bros. Mercantile Co. v. Denver & R. G. R. Co., 200 Fed. 614. 33 Ibid.