(concurring). The primary purpose of the act to regulate commerce is the prevention of unjust discrimination by common carriers. The Interstate Commerce Commission exists as an instrumentality for the accomplishment of such purpose. But the power of the Commission under the act to afford relief is narrower than the rights guaranteed by the act. The act prohibits discriminatory rates and practices, but the Commission can only stop them after they have become effective and have, perhaps, done irreparable injury. A shipper, entitled under the act to freedom from discriminations, may yet be ruined by discriminations before the Commission can take action if the courts are powerless to intervene and grant some measure of injunctive relief.
In the present case the complainant shippers alleged that the defendant carrriers had entered into a combination for the purpose of making discriminatory rates which threatened irreparable injur}*-. The Circuit Court granted an injunction preserving the existing situation until the Interstate Commerce Commission should have opportunity to act, and required security for the protection of the defendants.
Upon principle it would seem to me that the Circuit Court in affording this measure of relief was not encroaching upon the field of the Interstate Commerce Commission, but rather was acting as an aid of the Commission for the furtherance of the objects of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]). If the question were an open one I should regard the existence of power in the courts to grant relief of this nature as consistent with, and as supplementing only, the authority conferred upon the Commission. In view, however, of the decision of the Supreme Court in Baltimore & Ohio R. R. Co. v. Pitcairn, 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed.-, I agree that this court is not. at liberty to adopt the conclusion which would follow from these views. I am unable to follow the judge of the Circuit Court in the opinion that that decision is not controlling. I cannot interpret it in any other way than as broadly holding that shippers can never resort to the courts' for relief in advance of action by the Interstate Commerce Commission. Perhaps the Supreme Court would make an exception to this rule—would say that it does not apply to mere provisional injunctions against threatened' irreparable injury. But in view of the language of the opinion, I think that this court would not *322be warranted in drawing such a distinction. Consequently I feel constrained to concur in the opinion that the Circuit Court had no jurisdiction to make the order appealed from and that it should be reversed.