(after stating the facts as above). The complaint sets forth a conspiracy on the part of the defendant and other railroad companies to force independent dealers in anthracite coal out of the field and to obtain control'of the market for that product. This conspiracy was carried into effect, it is alleged, (1) by increasing the price paid at the mines, and (3) by increasing the charge for transportation so that the two together ’exceeded the tidewater price. Obviously independent dealers could not do business when the' cost of buying coal and getting it to market was 105 per cent, of the market price.
These averments clearly state a violation of the federal anti-trust statute. A conspiracy to monopolize interstate commerce, as well hs a conspiracy in constraint of such commerce, is charged. But it does not necessarily follow that every violation of the statute gives rise to a cause of action under its seventh section. The plaintiff must show that he has sustained damage by the violation. And here the defendant contends that the only damages which the plaintiff claims are those arising from unreasonable transportation charges, and that the Interstate Commerce Commission is the tribunal to which resort must be had in the first instance to determine the reasonableness of such charges.
*551It is well settled that a shipper seeking reparation based upon the unreasonableness of a freight rate must, primarily, seek redress throxxgli the Interstate Commerce Commission. Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553. See, also, Baltimore, etc., R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292, and the opinion of this court in Wickwire Steel Co. v. New York Central, etc., R. Co. (decided in June, 1910) 181 Fed. 316.
The difficulty lies in the application of this rule here. The plaintiff is not seeking redress as a shipper. It is not alleged that the defendant carried any coal for him or that he offered any for shipment. The defendant is not sued as a carrier, but as a party to an unlawful conspiracy. The unreasonableness of the railroad rate was only one of the means employed to make the conspiracy effective. The increase of the price at the mines was as essential to that result as the increase in the transportation charge. That the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) creates a tribunal to which shippers must resort, primarily, for relief .against excessive, freight charges, is no reason why a person injured by an xxnlawful conspiracy cannot invoke the relief expressly granted by another and later federal statute. It might as well be claimed that the Rnited States cannot proceed against a combination of railroad companies to fix rates until the reasonableness of such rates has been passed upon by the Interstate Commerce Commission. Yet combinations of that nature were enjoined in the Trans-Missouri Freight Association Case. 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007, and in the Joint Traffic Association Case, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259.
It is true that the courts in determining, as one of the elements'of a conspiracy case the reasonableness of freight rates might pass upon the same question which would be presented to the Interstate Commerce Commission by a shipper proceeding under the act to regulate commerce. But the possibility of want of uniformity in decisions constitutes no ground for denying to an injured person a right of action granted by a statute of the United States separate and distinct from that act, however weighty such consideration might be in determining whether the common-law rights of a shipper and the right to demand damages given by the interstate commerce act itself are subjected to its other provisions. Obvioxxsly the same possibility would exist in case of proceedings by the government to enjoin unlawful railroad combinations.
It is also contended by the defendant that, if the object of the conspiracy were to drive the plaintiff and other independent shippers out of the market, the complaint does not allege any damages.
We think, however, that the allegations of damage, although somewhat general, are sufficient to stand the test of demurrer. It is stated that prior to the conspiracy the business of the plaintiff was extensive and profitable, but that since the conspiracy became effective such business has been greatly curtailed and has been conducted either at a loss or at only a small profit. The nature of the injuries is fairly *552set forth, and the only inference possible from the allegations is that the damages arose as the direct consequence of the conspiracy charged.
The complaint is held to state a cause of action under the federal anti-trust statute. It follows that the demurrer was erroneously sustained by the Circuit Court.
But it is contended that this court has no power to reverse the judgment because a jurisdictional question was determined by the Circuit Court, reviewable only by the Supreme Court of the United States. The demurrer, however, was sustained upon the ground that the complaint failed to state a cause of action, not because the court had no jurisdiction. Even if it were necessary to allege in the complaint antecedent action by the Interstate Commerce Commission, the court had jurisdiction of the action. The failure to allege such an essential fact does not deprive a court of jurisdiction. And, even if the question of jurisdiction were before the Circuit Court, it was not the sole question there, and it came with all the other questions in the case for the determination of this court upon the writ of error. Boston & Maine R. R. Co. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. Ed. 1002.
Judgment reversed.