The opinion
SHEERY, Circuit Judge
(dissenting). As I understand the opinion just read, it is held that the Circuit Court has no jurisdiction of the case made by the bill, for the reason that it is deprived of jurisdiction by a “sound construction of the different provisions of the act to regulate commerce.” Section 22 (Act Feb. 4, 1887, c. 101, 24 Stat. 387 [U. S-. Com¡). St. 1901, p. 3171]) of the act provides that “nothing in this 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.” The words “common law” are here used in contradistinction to “statute law.” When so used, they include those doctrines of equity jurisprudence which have not been expressed in legislative enactments. The phrase “remedies now existing at common law or by statute” includes all existing remedies. Remedies existing by statute may be either legal or equitable, and remedies existing at common law — that is, remedies that have not been expressed by legislative enactment — may be either legal or equitable. 2 Words & Phrases Judicially Defined, 1329, and authorities there cited. A bill in equity to enjoin a wrong causing irreparable injury is a remedy a-t; common law, in the sense that it existed in England, independent eff statute, before the organization of this government, and exists in iliis country independent of statute. It is true that, although this remedy by bill is expressly reserved by the act, it would not continue to exist if its exercise “would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. *220 220, 246 , 27 Sup. Ct. 350, 51 L. Ed. 553 . The equitable remedy asserted in this case is not necessarily in conflict with the act. The just purposes of the act are promoted, not crippled, by leaving intact the equitable remedies preventive of irreparable injury and a multiplicity oí suits. This case does not, in my opinion, come within the rule or principle of the Abilene Case. The Supreme Court has said that it is not, by the authority of that case, required to say “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, a suit in equity is also forbidden to prevent a filing or enforcement of a schedule of unreasonable rates or a change to unjust or unreasonable rates.” Southern Ry. Co. v. Tift, 206 U. S. 428, 437 , 27 Sup. Ct. 709, 51 L. Ed. 1124 . The act does not, I think, deprive the Circuit Court of jurisdiction when facts are alleged showing that the equitable remedy is necessary to prevent irreparable injury and a multiplicity of suits.
The clause of the act reserving remedies should not be disregarded except as to remedies that would defeat the operation and enforcement of the act — remedies that are absolutely inconsistent with the act. The remedy sought in this case, and the procedure thus far, as the record shows, are in harmony with the purposes of the act. The cases that have been decided since the decision of the Abilene-Case show that the rule there announced does not abrogate the clause quoted from-section 22 of the act, nor destroy the preventive jurisdiction of courts of equity; and that such jurisdiction may be exercised without in any way 'invading the domain of the Interstate Commerce Commission. Southern Railway Co. v. Tift, 206 U. S. 428 , 27 Sup. Ct. 709, 51 L. Ed. 11 .24; Northern Pacific Railway Co. et al. v. Pacific Coast Lumber Manufacturers’ Ass’n et al. (C. C. A.) 165 Fed. 1 ; M. C. Kiser Co. v. Central of Georgia Ry. Co. (C. C.) 158 Fed. 193 ; Jewett Bros. & Jewett v. Chicago, M. & St. P. Ry. Co. (C. C.) 156 Fed. 160 .
I cannot concur in the decree dismissing the bill for want of jurisdiction of the subjectmatter of the suit.