Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 126 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 126 of 214)
Font size
QR-code for this ebook


12, Interstate Commerce Act. Interstate 811, 23 S. Ct. 507.

Commerce Comm. v. Brimson, 154 U. S. 75. Missouri Pac. R. Co. v. United

447, 38 L. Ed. 1047, 14 S. Ct. 1125; Texas, States, 189 U. S. 274, 47 L. Ed. 811, 23

etc., R. Co. V. Interstate Commerce S. Ct. 507.

Comm., 162 U. S. 197, 40 L. Ed. 940. 16 76. To prescribe rates. — American

S. Ct. 666; Texas, etc., R. Co. v. Abilene Sugar Refin. Co. v. Delaware, etc., R.

Cotton Oil Co., 204 U. S. 426, 51 L. Ed. Co., 200 Fed. 652, citing Texas, etc., R.

553, 27 S. Ct. 350, 9 Am. & Eng. Ann. Co. v. Abilene Cotton Oil Co., 204 U. S.

Cas. 1075. 426, 51 L. Ed. 553, 27 S. Ct. 350, 9 Am.

74. Bearing in mind that, prior to the & Eng. Ann. Cas. 1075; Baltimore, etc.,
request of the commission upon which R. Co. v. Pitcairn Coal Co., 215 U. S.
the suit was brought, no hearing was had 481, 54 L. Ed. 292, 30 S. Ct. 164; Proc-



4154



CARRIERS.



3770



To Change Rates. — A shipper seeking reparation predicated upon the un-
reasonableness of the estabhshed rate must, under the act to regulate commerce,
primarily invoke redress through the interstate commerce commission, which
body alone is vested with power originally to entertain proceedings for the altera-
tion of an established schedule, because the rates fixed therein are unreason-
able."^^

To Determine Reasonableness of Rates. — The commission has power to
pass on the reasonableness of an existing rate."^^ Although an established sched-
ule of rates may have been altered by a carrier voluntarily or as the enforcement
of an order of the commission to desist from violating the law, rendered in ac-
cordance with the provisions of the statute, it may not be doubted that the power
of the commission would nevertheless extend to hearing legal complaints of and
awarding reparation to individuals for wrongs unlawfully suffered from the ap-
plication of the unreasonable schedule during the period when such sched-
ule was in force." ^

To Determine Discrimination in Rates. — Section 2 contemplates that there
shall be a tribunal capable of determining whether, in given cases, the services
rendered are "like and contemporaneous," whether the respective traffic is of a
"like kind," and whether the transportation is under "substantially similar cir-
cumstances and conditions." ^^^

To Institute Suits. — The interstate commerce commission is a corporate
body or person in whose name a suit can be instituted, and it is not necessary
that the commission sue in the names of the persons composing it.'-^

To Obtain Information.— Section 12, as amended March 2, 1889, gives the
commission authority to inquire into the management of the business of all com-
mon carriers subject to the provisions of the act, to demand full and complete in-
formation from them, and adds, "and the commission is hereby authorized to
execute and enforce the provisions of this act." ^- This is clearly constitu-
tional.*"

To Construe Act. — See elsewhere. ^^



ter, etc., Co. v. United States, 225 U.
S. 282, 56 L. Ed. 1091, 32 S. Ct. 761;
Morrisdale Coal Co. v. Pennsylvania R.
Co., 176 Fed. 748, affirmed in 106 C. C. A.
269, 183 Fed. 929. See, also, Erie R. Co.
V. Wanaque Lumber Co., 75 N. J. L. 878,
69 Atl. 168. See ante, "Established by
Commission," §§ 4061-4065.

77. To change rates. — Texas, etc., R.
Co. V. Abilene Cotton Oil Co., 204 U.
S. 426, 51 L. Ed. 553, 27 S. Ct. 350, 9
Am. & Eng. Ann. Cas. 1075.

78. To determine reasonableness of
rates. — Illinois Cent. R. Co. v. Interstate
Commerce Comm., 206 U. S. 441, 51 L.
Ed. 1128, 27 S. Ct. 700; Cincinnati, etc.,
R. Co. V. Interstate Commerce Comm.,
162 U. S. 184, 40 L. Ed. 935, 16 S. Ct.
700. See ante, "Determination of Rea-
sonableness of Rate," §§ 4067-4074.

79. Texas, etc., R. Co. v. Abilene Cot-
ton Oil Co., 204 U. S. 426, 51 L. Ed. 553,
27 S. Ct. 350, 9 Am. & Eng. Ann. Cas.
1075.

80. To determine discrimination in
rates. — Texas, etc., R. Co. v. Interstate
Commerce Comm., 162 U. S. 197, 40 L.
Ed. 940, 16 S. Ct. 666. See ante, "Deter-
mination of Discrimination and Prefer-
ence," §§ 4078-4083.



81. To institute suits. — Texas, etc., R.
Co. V. Interstate Commerce Comm., 162
U. S. 197, 40 L. Ed. 940, 16 S. Ct. 666,
citing Interstate Commerce Comm. v.
Baltimore, etc., R. Co., 145 U. S. 263,
36 L. Ed. 699, 12 S. Ct. 844; Interstate
Commerce Comm. v. Atchison, etc., R.
Co., 149 U. S. 264, 37 L. Ed. 727, 13 S.
Ct. 837, which were suits instituted by the
commission in the circuit courts of the
United States, and in neither of which
was any objection made to the right of
the commission to sue by its statutory
designation.

82. To obtain information. — ^Interstate
Commerce Comm. v. Cincinnati, etc., R.
Co., 167 U. S. 479, 42 L. Ed. 243, 17 S.
Ct. 896, affirmed and followed in Savan-
nah, etc., R. Co. V. Florida Fruit Exch.,
167 U. S. 512, 42 L. Ed. 257, 17 S. Ct.
998; Texas, etc., R. Co. v. Interstate Com-
merce Comm., 162 U. S. 197, 40 L. Ed.
940. 16 S. Ct. 666; Texas, ecc, R. Co. v.
Abilene Cotton Oil Co., 204 U. S. 426,
51 L. Ed. 553, 27 S. Ct. 350, 9 Am. &
Eng. Ann. Cas. 1075.

83. Interstate Commerce Comm. v.
Brimson, 154 U. S. 447, 38 L. Ed. 1047,
14 S. Ct. 1125.

84. To construe act. — See ante, "Con-
struction of Act," § 3984.



3771



INTERSTATE COMMERCE ACT.



§ 4154



To Require Uniform System of Accounting.^ — Congress did not exceed its
power under the commerce clause by enacting the Act of February 4, 1887, § 20,
as amended by the Act of June 29, 1906, under which common carriers by water
upon the Great Lakes, engaged in the transportation of passengers and property
partly b}^ water, under a joint arrangement for the continuous carriage or ship-
ment, may be required by the interstate commerce commission to adopt a
uniform system of accounting and bookkeeping, and to make annual reports, which
shall embrace not only the joint rail and water business, but the other business of
the carriers as well, such as their port to port business, both intrastate and inter-
state, and the business of operating amusement parks. '*■'"' Leaving to the interstate
commerce commission the carrying out of details in the exercise of its discretion
to prescribe a uniform system of accounting and bookkeeping for the carriers sub-
ject to that act, does not render such section invalid as a delegation of legislative
authority.s^ As to accounts, the statute permits the commission, in its discretion,,
for the purpose of enabling it the better to carry out the purposes of the act, tO'
prescribe a period of time within which such common carriers shall have a uni-
form system of accounts and the manner in which such accounts shall be kept.
The commission may, the statute provides, in its discretion, prescribe the forms
of all accounts, records, and memoranda to be kept by the common carriers, to
which accounts the commission shall have access. And the act makes it unlawful
for the carriers to keep any accounts, records, or memoranda other than those



85. To require uniform system of ac-
counting. — Interstate Commerce Comm.
V. Goodrich Trans. Co., 224 U. S. 194, 56
L. Ed. 729, 32 S. Ct. 436.

The authority of the Interstate Com-
merce Commission under the Act of
June 29, 1906, prescribing a system of ac-
counting for carriers, is not exceeded be-
cause it tends to control the conduct of
the carrier as a public servant in inter-
state commerce. Kansas, etc., R. Co. v.
United States, 231 U. S. 423. 34 S. Ct.
125.

The regulations of the interstate com-
merce commission adopted vmder Act
Feb. 4, 1887, § 20, as amended by Act
June 29, 1906, § 7, are not an abuse of
power because they reject the theory that
the cost of property abandoned on a per-
manent improvement should remain in
the property account, rather than be
charged to operating expenses. Kansas,
etc., R. Co. V. United States, 231 U. S.
423, 34 S. Ct. ]25.

A carrier is not relieved from compli-
ance with the regulations of interstate
commerce adopted under Act Feb. 4,
1887, § 20, as amended by Act June 29,
1906, § 7, because they reject the theory
that the cost of property abandoned on
permanent improvement should remain in
property account because they were pro-
mulgated after the carrier had issued
bonds to finance such improvement.
Kansas, etc., R. Co. v. United States, 231
U. S. 423, 34 S. Ct. 125.

The powers of the interstate commerce
commission under Act Feb. 4, 1887, § 20,
as amended by Act June 29, 1906, § 7,
were not abused by regulations under
which a railroad can not carry into its
property account the full cost of reduc-
ing grades but is required to deduct from



such costs the replacement cost of por-
tions of track less salvage, carrying the
difference only into the property account
and charging the replacement cost to op-
erating expenses. Kansas, etc., R. Co. v.
United States, 231 U. S. 423, 34 S. Ct.
125.

Judicial belief that the cost of property
abandoned as an incident to permanent
improvements should be charged to ac-
cumulated surplus or to profit and loss,,
does not authorize a holding that the in-
terstate commerce commission abused
their powers given by Act Feb. 4, 1887,
§ 20, as amended by Act June 29, 1906,
§ 7, because under these regulations the
cost must be charged to operating ex-
penses. Kansas, etc., R. Co. v. United
States, 231 U. S. 423, 34 S. Ct. 125.

The interstate commerce commission,
acting under Act Feb. 4, 1887, § 20, as
amended by Act June 29, 1906, § 7, did
not abuse its powers because a railway
company under its regulations erecting
a new shop and permanent plant on
a new location can not charge the
value of the property thereupon aban-
doned against the accumulated surplus in
the profit and loss account, but must
charge the estimated replacement lost
less salvage to operating expenses. Kan-
sas, etc., R. Co. V. United States, 231 U.
S. 423, 34 S. Ct. 125.

There is here no unconstitutional dele-
gation of legislative powers. Interstate
Commerce Comm. zk Goodrich Trans.
Co., 224 U. S. 194, 56 L. Ed. 729, 32 S.
Ct. 436; Kansas, etc., R. Co. v. United
States, 231 U. S. 423, 34 S. Ct. 125.

86. Interstate Commerce Comm. v.
Goodrich Trans. Co., 224 U. S. 194, 56
L. Ed. 729, 32 S. Ct. 436.



§ 4154 CARRIERS. 3772

prescribed by the commission. This section contains ample authority for the
commission to require a system of accounting and reports such as has been pro-
vided for in its orders. And it is immaterial that the accounts required to be
kept are general in their nature, and embrace business other than such as is
necessary to the discharge of the duties required in carrying passengers and
freight in interstate commerce by joint arrangement between railroads and car-
riers by water, since the commission is charged under the law with the super-
vision of such rates as to their reasonableness, and with the general duty of
making reports to congress which might require a knowledge of the business of
the carrier beyond that which is strictly of the character mentioned. If, there-
fore, the commission is to successfully perform its duties in respect to reasonable
rates, undue discriminations, and favoritism, it must be informed as to the busi-
ness of the carriers by a system of accounting which will not permit the possible
concealment of forbidden practices in accounts which it is not permitted to see,
and concerning which it can require no information.^"^ The requiring of informa-
tion concerning the business methods of such corporations, as shown in its ac-
counts, is not a regulation of business not within the jurisdiction of the commis-
sion. The object of requiring such account to be kept in a uniform way, and to be
open to the inspection of the commission, is not to enable it to regulate the af-
fairs of the corporations not within its jurisdiction, but to be informed concern-
ing the business methods of the corporations subject to the act, that it may
properly regulate such matters as are really within its jurisdiction. Further, the
requiring of information concerning a business is not regulation of that business.
The necessity of keeping such accounts has been developed in the reports of the
commission, and had been the subject of great consideration. It has caused the
employment of those skilled in such matters, and has resulted in the adoption
of a general form of accounting which will enable the commission to examine
in the affairs of the corporations, with a view to discharging its duties of regula-
tion concerning them.^^ Corporations organized under state laws, engaged in in-
terstate carriage, could validly be subjected to regulation and control by the in-
terstate commerce commission, in the exercise of its power, to prescribe a uni-
form system of accounting and bookkeeping and to require annual reports. ^^

Distingmshing- Capital from Expense Accounts. — It is difficult to define
and perhaps more difficult to consistently apply a precise distinction between cap-
ital and expense accounts ; and while the propriety of distributing improvement
costs over a series of years was recognized, the impossibility of scientific accuracy
in that regard was acknowledged.^*^

87. Interstate Commerce Comm. v. the other business of the carriers, such as

Goodrich Trans. Co., 224 U. S. 194, 56 their port to port business, both intra-

L. Ed. 729, 32 S. Ct. 436. state and interstate, and the business of

The interstate commerce commission operating amusement parks. Interstate

did not exceed its authority ifnder the Commerce Comm. v. Goodrich Trans.

Act of February 4, 1887 (24 Stat, at L. Co., 224 U. S. 194, 56 L. Ed. 729, 32 S.

379, chap. 104, U. S. Comp. Stat. 1901, p. Ct. 436.

3154), § 20, as amended by the Act of 88. Not a regulation of business of car-
June 29, 1906 (34 Stat, at L. 584, chap. tiers. — Interstate Commerce Comm. v.
3591, U. S. Comp. Stat. Supp. 1909, p. Goodrich Trans. Co., 224 U. S. 194, 56 L.
1150), to prescribe a uniform system of Ed. 729, 32 S. Ct. 436.

bookkeeping and accounting for, and to 89. As to corporations organized un-

call for annual reports from, common der state laws. — Interstate Commerce

carriers by water upon the Great Lakes, Comm. v. Goodrich Trans. Co., 224 U.

Avhich, being engaged in the transporta- S. 194, 56 L. Ed. 729, 32 S. Ct. 436.

tion of passengers and property, partly 90. Distinguishing capital from expense

by railroad and partly by water, under a accounts. — Kansas, etc., R. Co. v. United

joint arrangement for a continuous car- States, 231 U. S. 423, 34 S. Ct. 125.

riage or shipment, are, by § 1 of that act, "In Illinois Cent. R. Co. v. Interstate

brought within its terms, because such Commerce Comm., 206 U. S. 441, 51 L.

fxcounting system and reports are not Ed. 1128, 27 S. Ct. 700, the commission

limited to the joint rail and water busi- had held that while repairs were prop-

ness, but are required to embrace as well erly chargeable to current operating ex-



yjJZ inti;rstate commerce act. §§ 4155-4156

§§ 4155-4219. Civil Proceedings against Carrier— §§ 4155-4190.
Proceedings before Commission — § 4155. In General. — Statutory Pro-
vision. — The provisions of § 16 of the act, which authorize the court to "pro-
ceed to hear and determine the matter speedily as a court of equity, and without
the formal pleadings and proceedings applicable to ordinary suits in equity, but
in such manner as to do justice in the premises, and to this end, such court shall
have power, if it think fit, to direct and prosecute in such mode and by such per-
sons as it may appoint, all such inquiries as the court may think needful to en-
able it to form a just judgment in the matter of such petition," extend as well to
an inquiry or proceeding under the fourth section (as to long and short haul
charges) as to those arising under the other sections of the act.^'^

Prerequisites to Jurisdiction. — In a proceeding before the interstate com-
merce commission by a shipper to recover damages because of collection by a
carrier at the lawfully established rate of an excessive amount because of the
unreasonableness of the rate, the finding and prescription by the commission of a
reasonable maximum rate to be observed in the future and an order forbidding
the use of a rate in excess thereof are conditions precedent to its exercise of its
power to order reparation. ^-

Judicial Power of Commission. — The acts of the interstate commerce com-
mission are administrative and not judicial. It has no power to enter judgments
and decrees, such as belong to courts of general jurisdiction. ^^ j^ jg j^q^ ^ court
and cannot try actions for damages to interstate shipments, but can hear com-
plaints in regard to rates and rebates.^'*

§ 4156. Exclusive Jurisdiction. — An action against a carrier for discrim-
ination in rates and granting unlawful rebates to plaintiff's competitors, affecting
not only the plaintift, but other shippers in the same region, cannot be first in-
stituted in a federal circuit court ; the interstate commerce commission having
exclusive jurisdiction to determine whether a regulation or a practice afl'ecting
rates or matters sought to be regulated by the Interstate Commerce Act is unjust
or unreasonable, unjustly discriminatory, preferential, or prejudicial, and this
though the regulation or practice complained of had ceased. ^^ The effect of the
act is not merely to suspend the right of a shipper to maintain an action at law to
recover damages resulting from an unreasonable rate or discriminating regulation
or practice established by an interstate carrier while such rate or regulation re-
mains in force, but to supersede such right entirely, and substitute therefor the
remedy provided by the act itself ; and the shipper's independent right of action

penses, yet expenditures for improve- Mid. R. Co., IGS U. S. 144, 42 L. Ed.
meats and equipment 'should not be 414, 18 S. Ct. 45. See provisions of §
taxed as part of the current or operating 16, recited in Texas, etc., R. Co. v. Inter-
expenses of a single year, but should be, state Commerce Comm., 1G2 U. S. 197,
so far as practicable, and so far as rates 40 L. Ed. 940, 16 S. Ct. 666.
exacted from the public are concerned, 92. Prerequisites to jurisdiction. — Den-
projected proportionately over the fu- ver, etc., R. Co. v. Baer Bros. Mercantile
lure.' And in this court it was said (p. Co., 109 C. C. A. 337, 187 Fed. 485.
462) : 'It would seem as if expenditures 93. Judicial power of commission. —
for additions to construction and equip- United States v. Interstate Commerce
ment, as expenditures for original construe- Comm., 37 App. D. C. 266, judgment af-
tion and equipment, should be reimbursed firmed in Interstate Commerce Comm.
by all of the traffic they accommo- v. Humboldt Steamship Co., 32 S. Ct.
date during the period of their dura- 556, 324 U. S. 474, 56 L. Ed. 849.
tion, and that improvements that will last 94. Louisville, etc., R. Co. v. Scott, 133
many years should not be charged wholly Ky. 724, 118 S. W. 990, 19 Am. & Eng.
against the revenue of a single year.' " Ann. Cas. 392.

Kansas, etc., R. Co. v. United States, 231 95. Exclusive jurisdiction. — Mitchell

U. S. 423, 34 S. Ct. 125. Coal, etc., Co. v. l\'niisylvania R. Co., 183

91. Proceedings before commission. — Fed. 908, dismissing for want of jurisdic-

Interstate Commerce Comm. v. Alaliama tion 181 Fed. 403.



§§ 4156-4158 CARRIERS. 3774

in a court is not revived by the abolition of the unlawful rate or regula-
ti5n.»'"

Action for Damag-es for Discrimination in Distribution of Cars. —

Where an alleged unlawful discrimination in the distribution of coal cars in viola-
tion of the Interstate Commerce Act had been practiced by the defendant rail-
road company, resulting in injury to plaintiff, for which it was entitled to dam-
ages, such discrimination having been applicable to a class of shippers and not to
complainant alone, the interstate commerce commission had exclusive original
jurisdiction to afiford complainant relief, it not being entitled to sue in the first
instance in an action for alleged damages sustained thereby, authorized by sec-
tion nine and this, though the acts constituting the alleged discrimination had
ceased prior to the commencement of the suit.^'''

That demurrag-e charges fixed by the rate schedules of interstate rail-
road companies in a certain district were discriminatory as between a shipper
located in such district and competitors placed in other districts and governed by
different rates is no defense to a prosecution of a railroad company or the shipper
for granting or receiving a concession by a cancellation of such charges, the only
legal mode of correcting the discrimination being by a change in the schedules on
proper notice or under authority from the interstate commerce commission/^^

Relief against Unreasonable Charges. — Relief from excessive freight
charges on interstate shipments, made according to established rates promulgated
by the interstate commerce act, must be sought through the interstate commerce
commission. ^^

§ 4157. Summons and Process. — The procedure prescribed by the Inter-
state Commerce Act, requiring a statement of charges against a carrier filed with
the interstate commerce commission to be forwarded to such common carrier
who shall be required to answer the same, which procedure is required to be fol-
lowed in case of hearings for the prescribing of rates, is analogous to that in all
legal controversies and sufficient, and it is no objection to the validity of an or-
der of the commission prescribing rates to be charged by a carrier between cer-
tain localities that it will affect the rates of other carriers not before the commis-
sion who may be in the succession of all or any interstate transportation which
includes that in question. ^ Proceedings were commenced before the interstate
commerce commission against a railroad company, which was at the time in the
hands of a receiver, to enforce compliance with the long and short haul clause of
the Interstate Commerce Act. Before the decision therein, the railroad was sold
under foreclosure, and conveyed and delivered to the purchasers. An order was
made by the commission requiring a reduction of rates. A few days after this
order was made, the railroad was conveyed by the purchasers at the sale to a new
company. The order was served on the former receiver of the road, but not on
the new company. Such new company was not bound by the order, notwithstand-
ing a provision in the order of sale of the road requiring the purchaser to pay
and discharge all claims made against the receiver, and all obligations contracted
or incurred by him and not paid by him before the delivery of possession. ^

§ 4158. Parties. — Interest in Controversy. — A complaint against the car-
rier will not be dismissed because the complainant before the commission did not

96. Morrisdale Coal Co. v. Pennsylva- 99. Relief against unreasonable charges,
nia R. Co., 106 C. C. A. 269, 183 Fed. —Atchison, etc.. R. Co. v. Superior Refin.
929, affirming judgment, 176 Fed. 748. Co., 112 Pac. 604, 83 Kan. 732.

97. Action for damages for discrimina- 1. Summons and process. — Louisville,
tion in distribution of cars. — Morrisdale e;<„. R. Co. v. Interstate Commerce
Coal Co. V. Pennsylvania R. Co., 176 Comm., 184 Fed. 118.

Fed. 748. 2. Behlmer v. Louisville, etc., R. Co.,

98. Lehigh Valley R. Co. v. United 71 Fed. 835.
States, 110 C. C. A. 513, 188 Fed. 879.



^77S INTERSTATI^ COMMERCE ACT. § 4158

show any real interest in the case brought.^

Persons Injured. — The right of recovery given by the interstate commerce
act against a carrier for violation of its provisions, to any person or persons in-
jnred thereby, for the full amount of damages sustained in consequence of
such violation, is in the nature of a penalty, and only exists on proof, not only
of tlie wrong, but that it has in fact operated to plaintiff's injury.* An allegation
that a joint tariff rate established by a defendant railroad company and another
was not filed with the commission as recjuired by the law, nor published, but was
•concealed from the plaintiff" and other shippers, does not authorize a recovery un-
der such provision, where it is not alleged that plaintiff made any shipments to
the points covered by such rate, or that he would or could have availed himself
of the rate had he known of it.-"^ Railway companies may complain of a reduction
made by the commission so far as it aft'ects their revenues, but they may not com-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 126 of 214)