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

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plain of it as it may affect shippers or trade centers. The courts will not listen to
a party who complains of a grievance which is not his.''

Connecting- Carrier. — The provision forbidding discrimination against any
locality or description of traffic, is for the protection of the locality or traffic itself,
and cannot be invoked by a carrier as against a connecting carrier which dis-
criminates by requiring prepayment of freight and car mileage, between goods
which come from dift'erent localities."

Competing Carriers. — It is no objection to the enforcement by the court of
an order made against a railway company by the interstate commerce commission
that the complainants before the commission have no real grievance, but are
instigated by a competing railroad, since § 13 of the Interstate Commerce Act
•expressly provides that no complaint shall be dismissed by the commission be-
cause of the absence of direct damage to the complainant, and since the commis-
sion has ])ower, of its own motion, to institute investigations, make orders, and
apply to the courts for their enforcement.'^

Carrier Participating in Joint Rate. — In a proceeding against a railroad to
enforce an order of the commission, the fact that the order involves rates partici-
pated in by another railroad, as owner of a portion of the line over which the
through freight is carried, does not make the latter company a necessary party
defendant, although it is a proper party.''

Successor to Original Party. — When an order against unjust discrimination
made by the interstate commerce commission is binding on a railroad company, it
is binding on the successor of such company. i" A valid order of the interstate
commerce commission, made in a proper proceeding against certain railroad com-
panies, directing each of them to cease to make certain unlawful freight charges
under a joint traffic arrangement, is binding on the successor of one of such
companies, although the name of such successor does not appear in the order.^^

Where a lessee railroad company operated a part of a through route over

3. Parties. — Interstate Commerce Co. v. Nortliern Pac. R. Co., 61 Fed. 158,
Comm. V. Baird, 194 U. vS. 2.5, 46 L. Ed. 9 C. C. A. 409, arfirming 51 Fed. 465.
«60, 24 S. Ct. 563. 8. Competing carriers. — Interstate Com-

4. Persons injured.— Parsons v. Chi- merce Comm. v. Detroit, etc., R. Co., 57
caRO, etc., R. Co., 167 U. S. 447, 42 L. Fed. 1005

Ed 2.31 17 S Ct 887

5. PaVsons'z;. Chicago, etc., R. Co., 17 ^^- C^^^^^'" Participating in joint rate.-
S. Ct. 887, 167 U. S. 447, 42 L. Ed. 2:il, ^e.xas, etc., K. Co ^^ IntcMstae Corn-
affirming judgment, 6.3 Fed. 903, 11 C. ZT'^r ^'"'ri' III ^^ ^^ ' ^" '
C A 489 '

6. Interstate Commerce Comm. v. Chi- 10- Successor to original party.— Inter-
cago, etc., R. Co., 218 U. S. 88, 54 L. ^^''^^^ Commerce Connn. v. Western New
Ed. 946, 30 S. Ct. 651; Clark v. Kansas York, etc., R. Co., 82 Fed. 192.

City, 176 U. S. 114, 44 L. Ed. 392, 20 11. Behlmer v. Louisville, etc., R. Co.,

vS. Ct. 284; Smiley v. Kansas, 196 U. vS. 28 C. C. A. 229, 83 Fed. 898, reversing on

447, 49 L. Ed. 546, 25 S. Ct. 289. another point in 175 U. S. 648, 44 E. Ed.

7. Connecting carrier. -Oregon, etc., R. 309, 20 S. Ct. 209.

§§ 4158-4160 CARRIERS. 3776

which oil was transported under an alleged discriminating rate, but was not a
party to a proceeding before the interstate commerce commission to recover repa-
ration, an order in favor of petitioners including discriminating freight charges
by such lessee company was neither conclusive nor effective as to it.^-

In Proceeding- to Establish Switch, — The remedy, given by § 1 of the
Act of June 29, 1906, on complaint by the shipper to the interstate commerce
commission when an interstate railway carrier refuses to establish a switch con-
nection with a lateral, branch line, is exclusive, and the general powers given by
other sections of the statute can not be deemed to authorize a complaint to the
commission by the lateral, branch railway company. If they were applical)le
to a branch road, they would have been equally applicable to shippers, and there
was no more reason to mention complaints by shippers than by others. The ar-
gument that shippers were mentioned to insure their rights in case of a refusal
to connect with a lateral line is excluded by the form of the statute, which ob-
viously is providing the only remedy that congress had in mind. It may or may
not be true that the distinction is not very eft'ective, but it stands in the law, and
must be accepted as the limit of the commission's power. ^-^

§ 4159. Limitation and Laches. — The act provides that all complaints for
the recovery of damages shall be filed with the commission within two years from
the time the cause of action accrues and not after, provided that claims accrued
prior to the passage of this act may be presented within one year.^-^ A claim
which accrued prior to the passage of the act may be presented at any time
within two years after the date of its accrual, although complaint is not filed until
more than a year after the passage of the act.^"^ The limitation imposed on the
time for filing a claim for damages, as applied to a claim for excessive charges
made by a carrier, begins to run when such charges become due and payable and
not when they are actually paid.^*"

§ 4160. Pleadings. — Necessity of. — There must be a complaint. Assum-
ing that a valid complaint may be made before the commission, by such trade or-
ganizations as boards of trade, or chambers of commerce, based on a mode or
manner of treating import traffic by a defendant company, without disclosing or
containing charges of specific acts of discrimination or undue preference, resulting
in loss or damage to individual persons, corporations, or associations, it would
not be competent for the commission, without a complaint made before it, and
without a hearing, to subject common carriers to penalties. ^'^

Proceeding Instituted by Commission without Complaint. — The com-
mission is not limited in its inquiry and action to cases in which a formal com-
plaint has been made, but, under § 13 — "may institute any inquiry on its own mo-
tion in the same manner and to the same efi:"ect as though complaint had been
made." Ekit there is nothing in the act requiring the commission to proceed
singly against each railroad company for each supposed or alleged violation of
the act.^^

12. Western New York, etc., R. Co. v. amended by Act June 29, 1906, § 5, held
Penn Refin. Co., 137 Fed. 343, 70 C. C. not to authorize the filing with the In-
A. 23, affirmed in 28 S. Ct. 268, 208 U. terstate Commerce Commission of a
S. 208, 52 L. Ed. 456. claim for damages which accrued more

13. In proceeding to establish switch. than two years before the passage of the
— -Interstate Commerce Comm. v. Dela- amendatory act. Lehigh Valley R. Co.
ware, etc., R. Co., 216 U. S. 531, 54 L. v. Meeker, 211 Fed. 785.

Ed. 605, 30 S. Ct. 415. 15. Dickerson v. Louisville, etc., R. Co.,

14. Limitation and laches. — Interstate 187 Fed. 874.

Commerce Act Feb. 4, 1887, c. 104, § 16. Arkansas Fertilizer Co. v. United

16, 24 Stat. 384 (U. S. Comp. St. 1901, States, 193 Fed. 667.

p. 3165), as amended by Act June 29, 17. Pleadings. — Texas, etc., R. Co. v.

1906, c. 3591, § 5, 34 Stat. 590 (U. S. Interstate Commerce Comm., 162 U. S.

Comp. St. Supp. 1909, p. 1159). 197, 40 L. Ed. 940, 16 S. Ct. 666.

The limitation provisions of § 16 18. Proceeding instituted by commis-

of the Interstate Commerce Act, as sion without complaint. — Interstate Com-

Z777 INTERSTATE comme^rce; act. §§ 4160-4162

Sufficiency. — No formal pleadings are required by the act.^^ Under the pro-
vision that all complaints for damages shall be filed with the interstate commerce
commission within two years from the time the cause of action accrues, a letter
to the commission setting out the facts and containing a substantial prayer for re-
lief by way of damages is a sufficient complaint.-^ The Interstate Commerce Act,
provides that every common carrier shall provide equal facilities for the inter-
change of traffic with connecting lines; and that there shall be no discrimination
in rates and charges between such lines. A petition, presented by a line affected,
averred that petitioner was deprived by respondent of equal facilities with a com-
peting connecting line for interchange of traffic, a discrimination in rates, the
withdrawal of a joint through traffic, and a threat to close a through route via
petitioner's line. The petition was held to be a sufficient charge, not only of dis-
crimination in rates, but of failure to provide equal facilities for interchange of
traffic, and to bring before the commission the determination of both offenses. ^^

Bill in Equity. — In the absence of objection to the manner and form of in-
voking jurisdiction the commerce court may entertain and grant the relief sought
by a bill to enjoin the performance of a contract which offends against the pro-
visions of the Interstate Commerce Act intended to prevent undue advantages or
unlawful discrimination. ^-

§ 4161. Burden of Proof and Presumptions. — When it is shown that the
carrier has not supplied the facilities demanded, the burden is upon the carrier,,
in order to exonerate itself from such charge of undue preference, to show that
it is prorating its cars fairly and equally among all the operators who are simi-
larly situated and engaged in transporting freight over its lines. ^■'^ If a complaint
be filed before the commission and no proof adduced to support it, the complaint
will be dismissed. This is because of the principle that the party who asserts the
affirmative in any controversy ought to prove the assertion, and that he who de-
nies may rest on his denial until at least the probable truth of the matter asserted
has been established.-^

Violation of Schedule Rate. — Where, in an action by a carrier against a con-
signee for freight charges based on the schedule filed with the interstate com-
merce commission, the defendant counterclaims for prior charges exacted by de-
fendant in excess of the rates fixed by an agreement between the parties, valid
before the passage of the Interstate Commerce Act, the plaintiff has the burden
of showing that the agreement was contrary to the provisions of the act.^^

§§ 4162-4165. Evidence— § 4162. In General.— The interstate com-
merce commission is an administrative tribunal leading with practical prob-
lems, and, so long as parties affected by its orders are fully heard, it can grant
such relief as the facts shown call for, even though they may be presented by evi-
dence technically outside the issues raised by the pleadings, but which were ger-
mane to the subject matter of the investigation.-*' The in(|uiry of a board of the
character of the interstate commerce commission should not be too narrowly

merce Comm. v. Cincinnati, etc., R. Co., Union Stock Yards, etc., Co., 22G U. S.

167 U. S. 479, 42 L. Ed. 243, 17 vS. Ct. 286, 33 S. Ct. 83.

896, affirmed and followed in Savannah, 23. Burden of proof and presumptions.

etc., R. Co. V. Florida Fruit Exch., 167 —Pitcairn Coal Co. v. Baltimore, etc., R.

U. S. 512, 42 L. Ed. 257, 17 S. Ct. 998. Co 165 Fed 113

19 Sufficiency-Lomsville, etc., R. Co ^ ^y^x^^rv of proof.-lllinois Cent. R.

^ ".^^'m' 1, ""t ^O'V^^""'"^ .^^ Co. V. Interstate Commerce Comm., 206

Fed. 874; Norfolk, etc., R. Co. v. United y. S. 4-11, 51 U ICd. 1128, 27 S. Ct. 700.

States, 195 Fed. 953. tt- , • r i j i ^ -^ ^^•

20. Louisville, etc., R. Co. v. Dicker- 25- Violation of schedule rate.— Balti-
son, 191 Fed. 705, affirming judgment, 187 more, etc., R. Co. v. La Due, 108 N. Y.
Fefl g74 S. 659, 57 Misc. Rep. 614.

21. New York, etc., R. Co. v. New 26. Evidence. — New York, etc., R. Co.
York, etc., R. Co., 50 Fed. 867. V. Interstate Commerce Comm., 168 Fed.

22. Bill in equity. — United States v. 131.

§§ 4162-4163 cARRiivRS. 3778

constrained by technical rules as to the admissibiHty of proof. Its function is
largely one of investigation and it should not be hampered in making inquiry
pertaining to interstate commerce by those narrow rules which prevail in trials at
common law where a strict correspondence is required between allegation and
proof. 27

Contracts with Third Persons. — The fact that contracts were made with
third persons not parties to the proceecHng does not render such contracts inad-
missible in evidence in a proceeding before the interstate commerce commission
charging certain railroads with violations of the act to regulate commerce.-^ xA.nd
where contracts are made between railroad companies and coal companies for the
purchase of the coal mines by the railroads in order to prevent the construction
of a competing line of railroad by the mine owners, such contracts become rele-
vant evidence in an inquiry by the interstate commerce commission touching the
question of the reasonableness of transportation rates of coal, and the manner
in which the rates are fixed. -^

Pooling Agreements. — Contracts tending to show the pooling of freight and
the charging of unreasonable rates are relevant evidence in a proceeding before
the interstate commerce commission, charging railroads with violations of the
Act of February 4, 1887, and the production of such contracts may be required.^*^

Order without Evidence to Support It, — An order of the interstate com-
merce commission reducing rates can not be said to have been made without sub-
stantial evidence to sup])ort it, where, although there is no direct testimony that
the old rate was unreasonably high, there were facts in evidence from which ex-
perts could have named a rate.^^

§ 4163. Incriminating Testimony. — A shield against successful prosecu-
tion, available to the accused as a defense, and not immunity from the prosecu-
tion itself, is what was secured by the Act of February 25, 1903, as amended by
the Act of June 30, 1906, providing that no person shall be prosecuted or sub-
jected to any penalty or forfeiture for or on account of any transaction, matter,
or thing concerning which he may testify or produce evidence in any proceeding,
suit, or prosecution under the Sherman Anti-Trust and Interstate Commerce
Acts.32 The Act of February 11, 1893, ch. 83, 27 Stat. 443, which enacts that
"no person shall be excused from attending and testifying or from producing
books, papers, tariffs, contracts, agreements and documents before the interstate
commerce commission, or in obedience to the subpoena of the commission, * * *

27. Interstate Commerce Comm. v. St. 1901, p. 3154], to regulate commerce,
Baird, 194 U. S. 25, 46 L. Ed. 860, 24 S. by unfair discrimination and by charging
Ct. 563. unreasonal:)le and unjust rates in carry-

28. Contracts with third persons. — In- ing anthracite coal. Judgment, Inter-
terstate Commerce Comm. v. Baird, 194 state Commerce Comm. v. Philadelphia,
U. S. 25, 46 L. Ed. 860, 24 S. Ct. 563, etc., R. Co., 123 Fed. 969, reversed in In-
cited in Hale v. Henkel, 201 U. S. 43, terstate Commerce Comm. v. Baird, 24
50 L. Ed. 652. 26 S. Ct. 370. S. Ct. 563, 194 U. S. 25, 46 L. Ed. 860.

The refusal to produce contracts un- 29. And so as to contracts for the pur-

der which railroad companies engaged in ^hase and transportation of coal for the

carrying coal from the anthracite regions game purpose as alleged. Interstate

in Pennsylvania to tidewater, or coal Commerce Comm. v. Baird, 194 U. S. 25,

companies owned by the railroads, pur- ^q i^ jrj_ ggQ 24 S. Ct. 563.

chase coal from independent operators nn -n ^• „ ^ -i ^ ^ ^

J • • ■ • ^,, ^ ,• . ■ ^ r 30. Poohng agreements. — Interstate

engaged in mining in that district, for ^ .-^ " Ti-j-,r..TTCoj:

1 • r 4. • J i.u u • ( Commerce Comm. z\ Baird, 194 U. b. 25,

which payment is made on the basis or ,,. t t- i cnr. .t , c r^.. -,-n

r 1 , f iU • 4fa 1^. h.a. 860, 24 b. Lt. o63.
a hxed percentage of the average price

at certain tide points of coal of the same 31. Order without evidence to support

quality and size, can not be justified on it.— Interstate Commerce Comm. v. Un-

the ground of irrelevancy, in a proceed- 'on Pac. R. Co., 222 U. S. 541, 56 L. Ed.

ing before the interstate commerce com- '^^^^ ^2 b. Ct. 108.

mission on a complaint charging the rail- 32. Incriminating testimony. — Heike v.

road companies with violating Act Feb. United States, 217 U. S. 423, 54 L. Ed.

4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. 821, 30 S. Ct. 539.




on the ground or for the reason that the testimony or evidence, documentary or
otherwise, required of him, may tend to criminate him or subject him to a penalty
or forfeiture ; but no person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing, concerning which
he may testify, or produce evidence, documentary or otherwise, before said com-
mission, or in obedience to its subpoena, or the subpoena of either of them, or in
any such case or proceeding," is not incompatible with the clause of the fifth
amendment of the constitution of the United States, which declares that no per-
son "shall be compelled in any criminal case to be a witness against himself,"
This statute affords absolute immunity against prosecution, penalties or forfeiture
as to any transaction, matter or thing concerning which the witness testified, and
the immunity is intended to be general, and to be applicable whenever and in
whatever court, state or federal, such prosecution may be had. A witness is
thereby deprived of his constitutional right to refuse to answer. ^^

Not Unconstitutional as Unreasonable Search. — The immunity from un-
reasonable searches and seizures as guaranteed by the fourth amendment to the
federal constitution is not infringed upon by requiring the production of certain
contracts as evidence in a proceeding before the interstate commerce commission,
since the act of February 4, 1887, as amended February 11, 1893, expressly ex-
tends immunity from prosecution or forfeiture of estate because of testimony
given in pursuance of the requirements of the law.-^^

Not Unconstitutional as Forfeiture. — The contention that to require the
production of certain contracts would be to compel the witnesses to furnish evi-
dence against themselves which might result in forfeiture of estate in violation
of the fifth amendment to the constitution is not well founded, since the Act
of Febniary 4, 1887, as amended February 11, 1893, expressly extends immu-
nity from prosecution or forfeiture of estate because of testimony given in pur-

33. Brown v. Walker, 161 U. S. 391, 40
L. Ed. 819, 16 S. Ct. 644.

Provided, that no person so testifying
shall be exempt from prosecution and
punishment for perjury committed in so
testifying. 7 Stat. 443, ch. 83. Interstate
Commerce Comni. v. Brimson, 154 U. S.
447, 38 L. Ed. 1047, 14 S. Ct. 1125.

"The act (of congress of February 11th,
1893, c. 83, 27 Stat. 443), is supposed to
have been passed in view of the opinion
of this court in Counselman v. Hitchcock,
142 U. S. 547, 35 L. Ed. 1110, 12 S. Ct.
195, to the effect that § 860 of the Re-
vised Statutes, providing that no evidence
given by a witness shall be used against
him, his property or estate, in any man-
ner, in any court of the United States,
in any criminal proceeding, did not afford
that complete protection to the witness
which the amendment (fifth) was in-
tended to guarantee. The gist of that
decision is contained in the following ex-
tracts from the opinion of Mr. Justice
Blatchford (pp. 564, 585), referring to §
S60: 'It could not, and would not, pre-
vent the use of his testimony to search
out other testimony to be used in evi-
dence against him or his property, in a
criminal proceeding in such court. It
could not prevent the ol)taining and the
use of witnesses and evidence which
should be attributable directly to the tes-
timony he might give under compulsion,
and on which he might be convicted,

4 Car— 43

wdien otherwise, and if he had refused to
answer, he could not possibly have been
convicted.' And again: 'We are clearly
of opinion that no statute which leaves
the party or witness subject to prosecu-
tion, after he answers the criminating
question put to him, can have the effect
of supplanting the privilege conferred by
the constitution of the United States.
Section 860 of the Revised Statutes does
not supply a complete protection from
all the perils against which the constitu-
tional prohibition was designed to guard,
and is not a full substitute for that pro-
hibition. In view of the constitutional
provision, a statutory enactment, to be
valid, must afford absolute immunity
against future prosecutions for the of-
fense to which the question relates.' The
inference from this language is that, if
the statute does afford such immunity
against future prosecution, the witness
will be compellable to testify." Brown
V. Walker, 161 U. S. 591, 40 L. Ed. 819,
16 S. Ct. 644. See, also, Hale v. Henkel,
201 U. S. 43, 50 L. Ed. 652, 26 S. Ct.
370; Interstate Commerce Comm. v.
Brimson, 154 U. S. 447, 38 L. Ed. 1047,
14 S. Ct. 1125.

34. Not unconstitutional as unreasona-
ble search. — Interstate Commerce Comm.
7'. Baird, 194 U. S. 25, 46 L. Ed. 860, 24
S. Ct. 563. See Hale v. Henkel, 201 U.
S. 43, 50 L. Ed. 652, 26 S. Ct. 370.

§§ 4163-4164 CARRIERS. 3780

suance of the requirements of the law. '"'•'*

Immunity Extends to State Courts. — But the immunity extends to any
transaction, matter or thing concerning which he may testify, which clearly indi-
cates that the immunity is intended to be general, and to be applicable whenever
and in whatever court such prosecution may be had.^'"'

§ 4164, Power to Compel Witnesses to Attend. — For the purposes of the
act the commission shall have power to require, by subpoena, the attendance and
testimony of witnesses and the production of all books, papers, tariffs, contracts,
agreements, and documents relating to any matter under investigation. Such
attendance of witnesses and the production of such documentary evidence, may
be required from any place in the United States, at any designated place of hear-
ing.^''^ The commission is given power to require the testimony of witnesses "for
the purposes of this act," and the purposes of the act for which the commission
may exact evidence embrace only complaints for violation of the act, and investi-
gations by the commission upon matters that might have been made the object of
complaint.^'' The main purpose of the act was to regulate the interstate business
of carriers, and the secondary purpose, that for which the commission was estab-
lished, was to enforce the regulations enacted. These are the purposes here re-
ferred to ; in other words, the power to require testimony is limited, as it usually
is in English speaking countries at least, to the only cases where the sacrifice of
privacy is necessary, namely, those where the investigation concerns a specific
breach of the law.'^^ Witnesses can not be required to testify before the interstate
commerce commission except in connection with complaints for violation of the
Interstate Commerce Act or with the investigation by the commission of subjects
that might have been made the object of complaint, these being the only matters
contemplated by the provision of § 12 of that act, giving the commission power to
require testimony "for the purposes of this act," which power can not be exercised
by the commission in performing its duty under that section to keep itself informed
as to the manner and method in which the business of common carriers is con-
ducted, nor in connection with the enforcement of the requirement of § 20 re-
specting reports by carriers, nor to aid the commission in recommending, pursu-
ant to § 21, additional legislation to congress. •*•* The contention of the interstate
commerce commission that it may make any investigation that it deems proper,
not merely to discover any facts tending to defeat the purposes of the Act of
February 4, 1887, but to aid in recommending any additional legislation relating
to the regulation of commerce that it may conceive to be within the power of con-
gress to enact ; and that in such an investigation it has power, with the aid of
the courts, to require any witness to answer any question that may have a bear-
ing upon any part of what it has in mind is not warranted by the act itself.^^

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 127 of 214)