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

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Power to Punish Disobedience. — Since 1893 the commission has had power
to enforce obedience to its lawful demands for the eliciting of information from
witnesses, or the production of testimony, by a criminal prosecution, disobedi-
ence thereto being made an offense punishable by fine or imprisonment, or both.'*-

35. Not unconstitutional as forfeiture. 39. Harriman v. Interstate Commerce
—Interstate Commerce Comm. v. Baird, Comm., 211 U. S. 407, 53 L. Ed. 253, 29
194 U. S. 25, 46 L. Ed. 860, 24 S. Ct. S. Ct. 115.

563. _ 40. Orders, 157 Fed. 432, affirmed in

36. Immunity extends to state courts. part and reversed in part. Harriman v.
— Brown v. Walker, 161 U. S. 591, 40 L. Interstate Commerce Comm., 211 U. S.
Ed. 819, 16 S. Ct. 644. 407, 53 L. Ed. 253, 29 S. Ct. 115.

37. Power to compel witnesses to at- 41. Harriman v. Interstate Commerce
tend. — Interstate Commerce Act. § 12. Comm., 211 U. S. 407, 53 L. Ed. 253, 29
Interstate Commerce Comm. v. Brimson, S. Ct. 115.

154 U. S. 447, 38 L. Ed. 1047, 14 S. Ct. 42. Power to punish disobedience.— In-

1125. terstate Commerce Comm. v. Brimson,

38. Harriman v. Interstate Commerce 154 U. S. 447, 38 L. Ed. 1047, 14 S. Ct.
Comm., 211 U. S. 407, 53 L. Ed. 253, 29 1125. See act of Feb. 11, 1893, which
S. Ct. 115. provides a punishment of fine or impris-


This power conferred upon the commission imposes upon any one, summoned
by that body to appear and to testify, the duty of appearing and testifying, and
upon any one required to produce such books, papers, tariffs, contracts, agree-
ments, and documents, the duty of producing them, if the testimony sought, and
the books, papers, etc., called for, relate to the matter under investigation, if such
matter is one which the commission is legally entitled to investigate, and if the
witness is not excused, on some personal ground, from doing what the commis-
sion requires at his hands. These propositions seem to be so clear and indis-
putable that any attempt to sustain them by argument would be of no value in the
discussion. Whether the commission is entitled to the evidence it seeks, and
whether the refusal of the witness to testify or to produce books, papers, etc.,
in his possession, is or is not in violation of his duty or in derogation of the
riglits of the United States, seeking to execute a power expressly granted to
congress, are the distinct issues between that body and the witness. They are
issues between the United States and those who dispute the validity of an act of
congress and seek to obstruct its enforcement. And these issues, made in the
form prescribed by the act of congress, are so presented that the judicial power
is capable of acting on them.^^

Aid of Courts. — The constitutionality of the Interstate Commerce Act, so
far as it authorized the circuit courts to use their processes in aid of inquiries
before the commission, has been sustained. It was clearly competent for congress,
to that end, to invest the commission with authority to require the attendance
and testimony of witnesses, and the production of books, papers, tariffs,
contracts, agreements and documents relating to any matter legally com-
mitted to that body for investigation.-*-* The twelfth section of the act is not un-
constitutional and void, so far as it authorizes or requires the circuit courts of
the United States to use their process in aid of inquiries before the commission.
The constitution extends the judicial power of the United States to all cases in
law and equity arising under the instrument or under the laws of the United
States, as well as to all controversies to which the United States shall be a party
(art. 3, § 2), and the circuit courts of the United States are capable, under the
statutes defining and regulating their jurisdiction, of exerting such power in
cases or controversies of that character, within the limits prescribed by con-
gress*^ Under the circumstances, the supreme court declined to go further than
to adjudge, that that section in the particular named is constitutional, and to re-
mand the cause that the court below may proceed with it upon the merits of the
questions presented by the petition and the answers of the defendants and make
such determination thereof as may be consistent with law. Any other course
would, it might be apprehended, involve the exercise of original jurisdiction, and
might possibly work injustice to one or the other of the parties.*"

Punishment for Failure to Obey Order. — Any of the circuit courts of the
United States within the jurisdiction of which such inquiry is carried on may,
in case of contumacy or refusal to obey a subpoena issued to any common carrier
subject to the provisions of this act, or other person, issue an order requiring
such common carrier or other person to appear before said commission (and pro-
duce books and papers if so ordered) and give evidence touching the matter in
question ; and any failure to obey such order of the court may be punished by

onment or both for disobedience of the Henkel, 201 U. S. 43, 50 L. Ed. 652, 26

lawful orders of the commission in this S. Ct. 370.

regard. See 27 Stat. 443, ch. 83. 45. 25 Stat. 434, ch. 8GG. Interstate

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

14 S. Ct. 1125. 46. Interstate Commerce Comm. v.

44. Aid of courts. — Interstate Com- Brimson, 154 U. S. 447, 38 L. Ed. 1047,
merce Comm. v. Brimson, 154 U. S. 447, 14 S. Ct. 1125.

38 L. Ed. 1047, 14 S. Ct. 1125; Hale v.

§§ 4164-4165 CARRIERS. 3782

such court as a contempt thereof.'*'''

Jury Trial. — The issue whether the defendants are under a duty to answer
the questions propounded to them, and to produce the books, papers, etc., called
for, is manifestly not one for the determination of a jury, being not one of fact
but of law exclusively.'*'* Of course, the question of punishing the defendants
for contempt could not arise before the commission; for, in a judicial sense,
there is no such thing as contempt of a subordinate administrative body. No
question of contempt could arise until the issue of law, in the circuit court, is
determined adversely to the defendants and they refuse to obey, not the order of
the commission, but the final order of the court. And, in matters of contempt,
a jury is not required by "due process of law." '^^

Constitutionality of Statute. — This provision is not invalid because in dero-
gation of the fundamental guarantees of personal rights inhering in the freedom
of citizens. The supreme court of the United States has spoken fully upon that
general subject. Nothing need be added to what has been there said. Suffice it
in the present case to say that as the interstate commerce commission, by petition
in a circuit court of the United States, seeks, upon grounds distinctly set forth,
an order to compel appellees to answer particular questions and to produce cer-
tain books, papers, etc., in their possession, it was open to each of them to con-
tend before that court that he was protected by the constitution from making
answer to the questions propounded to him ; or that he was not legally bound
to produce the books, papers, etc., ordered to be produced; or that neither the
cjuestions propounded nor the books, papers, etc., called for relate to the particular
matter under investigation, nor to any matter which the commission is entitled
under the constitution or laws to investigate. These issues being determined in
their favor by the court below, the petition of the commission could have been
dismissed upon its merits.-"'"

Nature of Proceeding. — It is not merely an ancillary and advisory proceed-
ing, but one for determining rights that concern both the general public and the
individual defendants, in which an enforcible judgment may be obtained, that
will be conclusive on the parties until reversed by the federal supreme court.
The performance of the duty which, it is claimed, rests upon the defendants,
can not be directly enforced except by judicial process. ^^ It is none the less
the judgment of a judicial tribunal dealing with questions judicial in their nature,
and presented in the customary forms of judicial proceedings, because its effect
may be to aid an administrative or executive body in the performance of duties
legally imposed upon it by congress in execution of a power granted by the con-
stitution. ^-

§ 4165. Production of Books and Papers. — The production of contracts
under which railroad companies engaged in interstate carriage of anthracite coal,
who had acquired certain collieries whose proprietors were about to build a
competing line, guarantied the stock and bonds issued in payment therefor by a
corporation whose charter they had purchased for that purpose, may be com-
pelled in a proceeding before the interstate commerce commission on a complaint
charging such railroad companies with violations of the act, by the pooling of
freights and the charging of unreasonable rates in carrying anthracite coal.^^

47. Punishment for failure to obey or- L. Ed. 1110, 12 S. Ct. 195; Interstate Com-
der. — Interstate Commerce Comni. v. merce Conim. v. Brinison, 154 U. S. 447,
Brimson, 154 U. S. 447, 38 L. Ed. 1047, 38 L. Ed. 1047, 14 S. Ct. 1125.

14 S. Ct. 1125. 51. Nature of proceeding. — Interstate

48. Jury trial. — Interstate Commerce Commerce Comm. v. Brimson, 154 U. S.
Comm. V. Brimson, 154 U. S. 447, 38 L. 447, 38 L. Ed. 1047, 14 S. Ct. 1125.

Ed. 1047, 14 S. Ct. 1125. 52. Interstate Commerce Comm. v.

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

14 S. Ct. 1125. 53. Production of books and papers.

50. Constitutionality of statute. — Coun- — Judgment, Interstate Commerce Comm.
selman v. Hitchcock, 142 U. S. 547, 35 v. Philadelphia, etc., R. Co., 123 Fed. 969,

3783 INTERSTATE COMMERCE ACT. §§ 4166-4167

§§ 4166-4181. Hearing- and Determination — § 4166. Necessity. —

In proceedings before the interstate commerce commission, there must be a hear-
ing and determination."'*'*

§ 4167. Extent of Hearing. — The commission in making an investigation
on the complaint filed by a shipper against a change of classification of freight,
increasing inequitably the rates on certain articles by changing them to a higher
class, has the power, in the public interest, disembarrassed by any supposed ad-
missions contained in the statement of complaint, to consider the whole subject
and the operation of the new classification in the entire territory, as also how far
its going into effect would be just and reasonable, would create preference or
engender discriminations; in other words, its conformity to the requirements of
the act to regulate commerce. And finding, as the commission did, that the classi-
fication by percentage of common soap in less than carload lots operating through-
out official classification territory, brought about a general disturbance of the
relations previously existing in that territory, and created discriminations and
preferences among manufacturers and shippers of the commodity and between lo-
calities in such territory, the commission was clearly within the authority con-
ferred by the act to regulate commerce in directing the carriers to cease and
desist from further enforcing the classification operating such results. ^•'* Assent
to this view of the power of the commission of course also conclusively disposes
of the contention that the court was without authority to determine the validity of
the order of the commission by the scope of the act to regulate commerce, be-
cause of an admission asserted to exist in the complaint originally filed before
the commission. ■'*** "The discriminations and preferences which the commission
and the court below found to exist were results arising from the application to the
conditions prevailing in official classification territory of the modified percentage
classification. In other words, the order forbidding the enforcement of the
modified percentage classification was based on the finding that that classification
disturbed the rate relations theretofore existing in official classification territory
and created preferences and discriminations which w^ould disappear if the fur-
ther enforcement of the changed classification was prevented." -^"^

All Circumstances and Interests. — In passing upon questions arising under
the act, the tribunal appointed to enforce its provisions, whether the commission
or the courts, is empowered to fully consider all the circumstances and conditions
that reasonably apply to the situation, and that, in the exercise of its jurisdiction,
the tribunal may and should consider the legitimate interests as well of the carry-
ing companies as of the traders and shippers. ^■'^ When the section says that no
locality shall be subjected to any undue or unreasonable prejudice or disadvantage
in any respect whatsoever, it does not mean that the commission is to regard only
the welfare of the locality or community where the traffic originates, or where
the goods are shipped on the cars. The welfare of the locality to which the
goods are sent is also, under the terms and spirit of the act, to enter into the

reversed in Interstate Commerce Comm. 57. Cincinnati, etc., R. Co. v. Interstate

V. Baird, 24 S. Ct. 503, 194 U. S. 25, 46 Commerce Comm., 206 U. v'^. 142, 51 L-

L. Ed. 800. Ed. 995, 27 S. Ct. 64S.

54. Hearing and determination.— Texas, 58. All circumstances and interests.—

etc., R. Co. V. Interstate Commerce Interstate Commerce Comm. v. Alabama

Comm.. 162 U. S. 197, 40 L. Ed. 940, 16 Mid. R- Co^, 168 U. S. 144, 43 L. Ed.

S. Ct. 066. -114, 18 S. Ct. 45; Texas, etc., R. Co. v.

ec -c 4.^ 4. r u • r<- • ^- ^ Interstate Commerce Comm., 163 U. S-

55 Extent of hearmg.-C.ncnmati, etc., ^,, ^^ L. Ed. 940, 16 S. Ct. 666.

?nV?°-c;''-iA "^7 PI oo'"'o''^ ^"";."^' 59. Texas, etc., R. Co. v. Interstate
206 L. S. 142, ol L. Ed. 99:,, 2. S. Ct. 648. Commerce Comm., 162 U. S. 197. 40 L.
56. Cincmnati, etc., R. Co. v. Interstate i£j1_ 940, 16 S. Ct. 666; Interstate Corn-
Commerce Comm., 306 U. S. 143, 51 L. merce Comm. v. Alabama Mid. R. Co.,
Ed. 995, 37 vS. Ct. 648. 168 U. S. 144, 43 L. Ed. 414, 18 S. Ct. 45.

§§ 4167-4168 CARRIERS. 3784

As to Combinations and Monopolies. — A resolution of the interstate com-
merce commission ordering an investigation and inquiry into consolidations and
combinations of carriers subject to the interstate commerce act and the relations
existing between them, including community of interests therein and the prac-
tices and methods of such carriers afifecting the movement of interstate commerce,
to ascertain whether the same result in violation of said act or tend to defeat its
purposes, is broad enough to include an inquiry into a purchase by such carrier
of stock in other connecting or competing carriers from its own officers or di-
rectors, the price paid for the same, and what, if any, profit such officers or
directors made thereon ; but it does not authorize an inquiry as to whether the
action of the directors of a railroad company in withholding public announcement
of the declaration by them of an increased dividend was for the purpose of pri-
vate speculation in the stock.""

Matter Arising Pending Hearing. — An advanced rate of freight on certain
articles, filed with the interstate commerce commission, and put into efl^ect pend-
ing a hearing before the commission on the legality of the rate previously in
force, is properly before the commission for consideration on such hearing.*^^

As to Property Acquired by Carrier. — One purpose of the interstate com-
merce legislation is to compel interstate carriers to perform their commercial
functions adequately, and, under the power specifically given the interstate com-
merce commission, to ascertain the cost and value of the carrier's property,
and, as aft'ecting the ability of a carrier to perform such adequate service, the
commission has authority to inquire into purchases of property made by it, the
prices paid, and the lawfulness and propriety of its acquisition.^''^

§§ 4168-4181. Judgment or Order— § 4168. Contents.— Finding of
Facts on Which Judgment Based. — By § 14 it is made the duty of the com-
mission, whenever an investigation is made by it, not only to make a report in
writing, but to make a finding of facts upon which its conclusions are based,
which findings shall be included in its report.''^'

Facts Showing Jurisdiction. — An order of the interstate commerce commis-
sion requiring a carrier to render certain services to a shipper must necessarily
be based on a finding that such services are not only transportation services, but
that in performing them the carrier acts in the capacity of an interstate car-

Order for Reparation. — Where pending proceedings before the interstate
commerce commission for reparation for excessive charges on a specified ship-
ment due to the carrier's misrouting it, because no through rate had been pro-
vided over shorter routes, the carriers established a through rate by such shorter
routes, it was not necessary that the commission in granting reparation should
enter any order with reference to the through rate so adopted or prohibit the
use thereafter of any rate in excess of the one adopted.*'-'* Where a reparation
order was entered May 1, 1911, and defendant seasonably filed a motion for
rehearing, which was not denied until October 9 following, suit not having
been brought on the order until after the rehearing was denied, defendant was
not prejudiced by the fact that the order required payment on or before January
15, 1911.««

60. As to combinations and monopo- R. Co. z'. Florida Fruit Exch., 167 U. S.
lies. — Interstate Commerce Comm. v. .512, 42 L. Ed. 2.57, 17 S. Ct. 998; Texas,
Harriman, 157 Fed. 432. etc., R. Co. v. Interstate Commerce

61. Matter arising pending hearing. — Comm., 162 U. S. 197, 40 L. Ed. 940, 16
Interstate Commerce Comm. z'. Louis- S. Ct. 666.

ville, etc., R. Co., 118 Fed. (U:!. 64, Facts showing jurisdiction. — Louis-

62. As to property acquired by carrier. iana, etc., R. Co. z'. United States, 209
— Interstate Commerce Comm. z'. Harri- Fed. 244.

man, 157 Fed. 432. 65. Order for reparation. — St. Louis,

63. Contents. — Interstate Commerce etc., R. Co. v. Samuels & Co., 211 Fed.
Comm. V. Cincinnati, etc., R. Co., 167 U. 588.

S. 479, 42 L. Ed. 243, 17 S. Ct. 896, af- 66. St. Louis, etc., R. Co. v. Samuels

firmed and followed in Savannah, etc., & Co., 211 Fed. 588.



§§ 4168-4170

Recommendation as to Reparation. — By § 14 the report required of the
commission upon an investigation made by it, shall include, in addition to the
finding of facts upon which its conclusions are based, a recommendation as to
what reparation, if any, ought to be made to any party or parties who may be
found to have been injured.*''''

Reparation and Rates in Same Order. — That the two subjects of repara-
tion and rates may be dealt with in one order is undoubtedly true.^^ But award-
ing reparation for the past and fixing rates for the future involve the determina-
tion of matters essentially different. One is in is nature private and the other
public. One is made by the commission in its quasi-judicial capacity to measure
past injuries sustained by a private shipper; the other, in its quasi-legislative
capacity, to prevent future injury to the public."*'*

§ 4169. Service on Carrier.— By §§ 15 and 16 of the act, if it appears to
the satisfaction of the commission that anything has been done or omitted to be
done, in violation of the provisions of the act, or of any law cognizable by the
commission, it is made its duty to cause a copy of its report to be delivered
to the carrier, with notice to desist, and failing that to apply to the courts for
an order compelling obedience."^'*

§ 4170. Operation and Effect. — The Interstate Commerce Act provides
that, whenever an investigation shall be made by the commission, it shall make
a report in writing which shall include the findings of fact on which the com-
mission's conclusions are based, and such findings shall thereafter be deemed
prima facie evidence as to each and every fact found in all judicial proceed-

6r. Recommendacicn as to reparation.

— Interstate Commerce Comm. v. Cincin-
nati, etc., R. Co., 167 U. S. 479, 43 L. Ed.
243. 17 S. Ct. 896, affirmed and followed
in Savannah, etc., R. Co. v. Florida Fruit
Exch., 167 U. S. 512, 42 L. Ed. 257, 17
S. Ct. 998; Texas, etc., R. Co. v. Inter-
state Commerce Comm., 162 U. S. 197,
40 L. Ed. 940, 16 S. Ct. 666.

68. Reparation and rates in same or-
der. — Te.xas, 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; Robinson v. Baltimore, etc.,
R. Co.. 222 U. S. 506, 56 L. Ed. 288, 32
S. Ct. 114.

69. Baer Bros. Mercantile Co. v. Den-
ver, etc., R. Co., 233 U. S. 479, 34 S. Ct.

"The order while condemning the rate
for the past, should contain a provision
validating it for the future. But while
this consideration might show that it
was erroneous not to name the new rate,
it would not follow that the order award-
ing reparation was void. The Hepburn
Act treats the two subjects as related, but
independent. The grounds of complaint
may be joint or separate, and the very
fact that they may sometmes ])e separate
shows that the presence of both is not
jurisdictional and that the absence of a
provision for one need not operate to in-
validate an order as to the other." Baer
Bros. Mercantile Co. v. Denver, etc., R.
Co., 233 U. S. 479. 34 S. Ct. 641.

70. Service. — Interstate Commerce
'Comm. 7'. Cincinnati, etc., R. Co., 167 U.

v^. 479, 42 L. Ed. 243, 17 S. Ct. 896, af-
firmed and followed in Savannah, etc., R.
Co. V. Florida Fruit Exch., 167 U. S. 512,
42 L. Ed. 257, 17 S. Ct. 998; 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.

71. Operation arid effect. — Act Feb. 4,
1887, c. 104, § 14, 24 Stat. 384, as amended
by Act March 2, 1889, c. 382, § 4, 25 Stat.
859 (U. S. Comp. St. 1901, p. 3165); Illi-
nois Cent. R. Co. v. Interstate Commerce
Comm., 206 U. S. 441, 51 L. Ed. 1128, 27
S. Ct. 700; Cincinnati, etc., R. Co. v. In-
terstate Commerce Comm., 162 U. S. 184,
40 L. Ed. 935, 16 S. Ct. 700; Texas, etc.,
R. Co. V. Interstate Commerce Comm.,
162 U. S. 197, 40 L. Ed. 940, 16 S. Ct.
666; Interstate Commerce Comm. v. Ala-
bama Mid. R. Co., 168 U. S. 144, 42 L.
Ed. 414, 18 S. Ct. 45; Louisville, etc., R.
Co. V. Behlmer, 175 U. S. 648, 44 L. Ed.
309, 20 S. Ct. 209; Cincinnati, etc., R. Co.
V. Interstate Commerce Comm., 206 U. S.
142, 51 L. Ed. 995, 27 S. Ct. 648; 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.

A finding by the interstate commerce
commission that a just and reasonable
charge for the privilege of reconsigning
hay at East St. Louis was one cent per
hundredweight was prima facie evidence
of its own truth. Southern R. Co. v. St.
Louis, etc., Grain Co., 153 Fed. 728. 82
C. C. A. 614.

"In the case of Interstate Commerce
Comm. V. Louisville, etc., R. Co., 102 Fed,

§ 4170 CARRIERS.


Finding of Questions of Law. — The decisions of the commission on ques-
tions of law are not conclusive upon the appellate court and may be reviewedJ^

Finding of Fact. — The interstate commerce commission from the nature of
its organization and the duties imposed upon it by the statute, is peculiarly com-
petent to pass upon ciuestions of fact.'-^ Especially when the evidence is con-

Finding Concurred in by Court. — And when these findings are concurred
in by the circuit court, they will not be interfered with, unless the record estab-
lishes that clear and unmistakable error has been committed.^ -^ And where the
circuit court of appeals adopted the views of the circuit court, in respect to the
reasonableness of the rate charged on first class freight carried on defendant's
line from Cincinnati to Atlanta; and as both courts found the existing rates to
have been reasonable, the supreme court will not review their finding on that
matter of fact.'''*^

Finding of Discrimination. — Because of the nature and extent of the au-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 128 of 214)