(dissenting). This is an appeal from an interlocutory order enjoining the defendant railroad companies from collecting from the complainants in the court below the rates prescribed by the tariff on file with the Interstate Commerce Commission covering the transportation of forest products from points within to points without the state of Oregon, or any rates on such traffic higher than the rates fixed by the tariffs which were superseded by the tariffs in question. The bill on which the injunction ivas granted was filed by various corporations alleged to be engaged in the manufacture and sale of lumber, against the railroad companies that are appellants here. The bill alleges that the complainants are corporations organized and existing under the laws of the state of Oregon, and that the incorporation of the various defendant railroad companies is as follows: The Union Pacific Company and the Oregon Short Line Company under the laws of the state of Utah; the Southern Pacific Company under the laws of Kentucky; the Northern Pacific Company under the laws of Wisconsin; the Great Northern Railw'aj'- Company under the laws of Minnesota; the Burlington Company under the laws of Iowa; .and the Oregon Railroad & Navigation Company, the Astoria & Columbia River Company, the Oregon & California and the Corvallis & Eastern Companies under the laws of Oregon. The bill alleges that all of the complainants with the exception of the Oregon & Washington Lumber Manufacturers’ Association are corporations, engaged in the *14 manufacture and interstate shipment of lumber, and that the manufacturers’ association is formed for the purpose of promoting the manufacture and sale of lumber, enlarging the market for its members, and securing suitable transportation routes and reasonable rates for the transportation of lumber from the Pacific Northwest to other points in the United States. It alleges that the defendants are common carriers, and that they, with other participating carriers, filed with the Interstate Commerce Commission, to become effective November 1, 1907, a revised tariff of rates on lumber .and forest products from Pacific Coast points to Eastern and Southeastern destinations in other states, ‘whereb}'- existing interstate rates on said forest products are to be advanced on the first day of November, 1907, in various degrees, amounting substantially to ten cents a hundred pounds to what is known as the Denver, St. Paul and Chicago territories, seven and one-half cents per hundred pounds to St. Louis territory, and five cents per hundred pounds to Missouri River territorjr, and certain southeastern destinations in other states. That other changes and advances have been made in the rates on forest products from points and places in the state of Oregon to points and places in other states, all of which will appear in said tariff, which is numbered S. R. 963, I. C. C. No. 850, wdiich said complete and revised tariff of said defendants, and other carriers, showing the advanced rates on lumber and other products, announced to become effective November 1, 1907, is filed herewith.”

It is alleged that such increased rates will be exacted by the defendants on and after November 1, 1907, unless restrained by an order of the court, and that such rates were prepared, adopted, and filed by the defendants and the other participating carriers “in pursuance of a combination-and conspiracy to stifle and destroy all competition among all of said defendants respecting the transportation of forest products from the state of Oregon and other Northwest Pacific states, and to exact and extort an unreasonable and unjust compensation for the services performed in transporting said forest products, and to divert to the treasuries of said railway companies, through such unjust, and unreasonable transportation tax, all, or nearly all, of the profits of the business of the complainants and others engaged in the manufacture of lumber in the state of Oregon and of the other Pacific Northwest states, without regard to the reasonableness of said rates or to the value of the service to be performed and the cost of transporting said products. That each and all of said defendants well knew, at the time said tariff rates were agreed upon and adopted, that said rates were unjust, excessive, unreasonable, extortionate, prohibitive, and discriminatory rates for the transportation of the said lumber products from points and places in the state of Oregon and other states in the Pacific Northwest to the points and places in-other states as set out in said tariff, and that the imposition of such advance was not and is not made necessary b)- reason of any exigencies of the business of any of the said defendants, or by reason of any condition connected therewith or with the transportation of said' forest products and the services required with respect thereto; that the imposition and collection of said rates will render the business and plants of your orators *15 and tho.se similarly situated in the. state of Oregon and other points and places in the Pacific Northwest of but little value, and subject your orators to great and irreparable loss.”

It is alleged that the said advance in rates so announced to become effective oti November 1, 1907, was “brought about by and is the result of agreements and understandings between said ‘Hill Lines’ and ‘Harriman Lines’ to suppress competition and for their mutual advantage, without regard to the rights and interests of the public, wherefore your orators submit that said agreements and understandings eliminate the element of competition and constitute a combination in restraint of interstate trade and in violation of said ‘Act to protect trade and commerce against unlawful restraint and monopolies,’ approved July 2, 1890 (Act July 2, 1890, c. 647, § 1, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), and amendments thereto, and further result in imposing upon your orators and others engaged in the lum-. her industry an advance in rates which is arbitrary, unjust, unreasonable, and discriminatory both as to places and commodities, and subjects them also to undue and unreasonable prejudices and disadvantages in violation of said act of Congress entitled ‘An act to regulate commerce,’ approved February 4-, 1887 (Act Feb. 4, 1887. c. 104, § 1, 21 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), and acts amendatory and supplementary thereto.”

It is alleged that the manufacture of lumber and other forest products constitutes one of the largest and most important industries in the state of Oregon and in the Pacific Northwest; that the complainants and others engaged in the lumber business in the state of Oregon have invested in plants, machinery, equipment, and appurtenances about $60,000,000, not including the value of material on hand, logs, standing timber, or timber lands; that more than 50,000 persons in Oregon are directly engaged in that industry; that the annual pay roll exceeds $30,000,000, and that approximately 100,000 people are directly dependent for their livelihood upon the said industry; that the annual output of lumber of Oregon exceeds 2,000,000,000 feel, of the value of about $30,000,000 at the mills; that the amount of freight annually paid on rail shipments from points in the state to points in other states approximates $12,000,000, such estimates being based on the movement by rail of 600,000,000 feet of lumber, representing about 30,000 car loads. It is alleged that a large part of the investment in the lumber industry in the state of Oregon was made upon the faith that the existing rates of freight to the consuming markets voluntarily placed in effect by all said defendants would not be increased, but rather, in view of the fact that the general trend of rates has been downward for a, number of years, and of the marked increase in the tonnage of lumber, said rates would be decreased.

The bill prayed for a final decree of injunction,- and also for an injunction pendente lite restraining the defendants from putting into effect the tariff in question. By an amendment to the bill, the complainants added these words:

*16 Certain parties were also permitted'to join the complainants by petitions in intervention.

Upon a rule to show cause why an injunction pendente lite should not be granted, a hearing was had in the court below on the 31st of October, 1907, at which hearing the Northern Pacific Railway Company appeared specially and moved to dismiss the bill as to it upon the ground that it was entitled, as a corporation of the state of Wisconsin, to be sued only in the district in which it was an inhabitant. The Southern Pacific Company, a Kentucky corporation, likewise appeared specially and for the same purpose, as also did the Oregon Short Line Company. The Burlington Compan), the Great Northern Company, and the Union Pacific Company each filed a plea to the jurisdiction, setting- up the fact that neither of them was engaged in business in the state of Oregon, and that the pretended service of the subpoena was void. The Oregon Railroad & Navigation Company appeared generally and filed a separate demurrer to the bill. Tire Astoria & Columbia River Railroad Company, the Oregon •& California Railroad Company, and the Corvallis & Eastern Railroad Company appeared generally and filed a joint and several demurrer. After argument, the court, on the 21st of November, 1907, entered an order denying the motions of the Oregon Short Line Railroad Company, the Southern Pacific Company, and the Northern Pacific Railway Company for the dismissal of the bill of complaint, and on the 31st day of October, 1907, entered this order :

From this order the appeal is taken, the errors assigned by the appellants being:

(1) The Circuit Court erred in failing to dismiss the bill upon the ground that there was no jurisdiction of the controversy.

(2) The court erred in failing to dismiss the bill as to the defendants which were corporations under the laws of states other than the state of Oregon, upon the ground that none of said defendants was an inhabitant of the District of Oregon, and each of said defendants was objecting to being sued in that district.

(3) The court erred in granting' the decree of injunction against the defendants which were corporations under the laws of the state of Oregon, for the reason that all of the complainants were corporations of the state of Oregon, and the court had no jurisdiction of the case as to said defendants because the complainants were citizens of the same state.

(4) The court erred in failing to dismiss the hill for the reason that no controversy was presented involving $2,000, exclusive of interest and costs, and therefore the court was without jurisdiction.

(а) The court erred in failing to dismiss the hill for the reason that the suit is not one arising under the Constitution or laws of the United States, or treaties made under their authority, and therefore the court had no jurisdiction.

(б) The court erred in failing to dismiss the bill for the reason that the controversy with respect to the reasonableness of the rates in question is a matter committed exclusively to the Interstate Commerce Commission by the act to regulate commerce, approved February 4, 1887. and the acts amendatory thereof,

(7) The court erred in entering the decree appealed from for the *18 reason that it commands the defendants to discriminate between persons in violation of the act to regulate commerce.

(8) The court erred in entering the decree appealed from for the reason that it commands the-defendants to collect from the complainants amounts less than the amounts shown in the tariffs which are by law fixed as the only legal rates.

(9) The court erred in entering the decree appealed from for the reason that it appears on the face of the bill that there are omitted, as parties defendant, participating carriers, parties to the tariff complained of, whose names are set forth at pages 01 and 02 of the tariff filed as a part of the bill.

In this court the appellees moved to dismiss the appeal on the ground that only questions of jurisdiction are involved, and therefore that the appeal should have been taken to the Supreme Court. The answer to the motion is that the appeal to this court was taken not only on the ground of the lack of jurisdiction of the court below over the cause of action alleged, but also upon the ground that the order appealed from commands the defendants to violate'the act of Congress to regulate commerce, and on the further ground that it was made in the absence of indispensable parties. Only the question of jurisdiction can be taken from the trial court directly to the Supreme Court, and then only questions “involving the jurisdiction of the Circuit Court as a federal court.” Louisville Trust Co. v. Knott, 191 U. S. 225, 233 , 24 Sup. Ct. 119, 122, 48 L. Ed. 159 ; U. S. v. Jahn, 155 U. S. 105 -115, 15 Sup. Ct. 39, 39 L. Ed. 87 .

I agree that the motion to dismiss should be denied. Also untenable, in my opinion, is the position of the appellants to the effect that the case does not present a federal question, and that therefore the citizenship of the parties was the test of jurisdiction in the court below.

1 think it obvious that the real question in the case was whether or not the interstate commerce act deprived the court below of the power to grant the injunction complained of, which it otherwise unquestionably had; for I do not understand it to be disputed — certainly it' cannot be successfully disputed — that but for that act a court of equity is not only empowered, but that it would be its duty, to enjoin a common carrier from exacting exorbitant or unreasonable rates for the transportation of freight. I repeat, therefore, that the real question here is, what is the effect of the interstate commerce act upon that otherwise conceded power in the court below, the solution of which question is essentially and necessarily a federal question, since it depends entirely upon the proper construction of an act of Congress? Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 -433, 27 Sup. Ct. 350, 51 L. Ed. 553 . In that case the question was whether the conceded common-law right of the oil company to recover in an action at law in the Circuit Court the excess over a just and reasonable rate, of a charge exacted by the carriers for the transportation of certain cotton seed, was taken away by the provisions of the interstate commerce act.

This clear analysis of the provisions of the act in question, and comprehensive and lucid exposition of its purposes and intent, would seem to leave nothing more to he said in order to show that, until prior action by the commission, no court is empowered, upon the complaint of a shipper, to determine or consider the reasonableness or unreasonableness of established rates. The court, in its opinion, expressly concedes that that pre-existing power in the courts was not expressly taken away by the interstate commerce act, but holds that such was the necessary effect of its provisions, and that, therefore, that result ‘‘was accomplished by implication.” Nor, in my opinion, would there be any occasion for saying anything further upon the subject, but for the subsequent decision of the same court in the case of Southern Ry. Co. v. Tift, 206 U. S. 428 , 27 Sup. Ct. 709, 51 L. Ed. 1124 . I And it impossible to believe that the Supreme Court intended by its decision in the last-mentioned case to overrule or change or modify, without saying so, its interpretation of the act in question, and the consequent results of it, so clearly enunciated but a short time before in the elaborate opinion, delivered after a careful analysis of the various provisions of the act, .and from which [ have above quoted at length. Nor do 1 think the Tift Case, rightly and carefully consider- *22 eel, justifies any such contention. It is entirely true that that case, like the present one, was brought in a Circuit Court, prior to any action by or before the Interstate Commerce Commission, to obtain an injunction and a temporary restraining order enjoining- the defendant carrier companies from advancing the rates theretofore established and in force to what the complainants there, as here, alleged would be unjust, unreasonable, and extortionate rates, and that the Circuit Court there first granted the temporary restraining- order asked for, which it subsequently dissolved; but it retained the cause and annexed to its order dissolving the temporary restraining order this condition:

The Supreme Court, in its statement of the case, proceeded as follows :

That was the record before the Supreme Court in the Tift Case. Now let us see what the court said:

I have given to this language of the court attentive and careful consideration, and nay conclusion is that the learned justice who wrote the opinion, and the justices who concurred with him, based their affirmance of the judgment of the Circuit Court entirely upon the findings and conclusions of the Interstate Commerce Commission, and upon the subsequent proceedings in the Circuit Court based thereon.

As already said, the court in the Tift Case evidently based its affirmance of the judgment appealed from entirely upon the findings and conclusions of the Interstate Commerce Commission and the subsequent proceedings in the Circuit Court for the enforcement of those findings and conclusions, ignoring the prior proceedings in the Circuit Court. I have not overlooked that clause in the opinion in that case where it was said:

This is certainly not saying that such a suit in equity may be brought prior to any action by the Interstate Commerce Commission. That the court did not intend by its decision in Southern Railway Co. v. Tift to overrule or in any way change or modify its opinion in the preceding case of Texas & Pacific Railway Co. v. Abilene Cotton Oil Company is, I think, also shown by the clause of its opinion immediately preceding that last quoted, which reads:

And by the following- clause near the end of the opinion in the Tift Case:

For the reasons stated I think the judgment should be reversed and the case remanded, with directions to the court below to dismiss the bill at the complainants’ cost.