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thority conferred on the commission from the beginning concerning the prohibi-
tions of the act as to rebates, favoritism, and discrimination of all kinds, an
exertion of power by the commission concerning such matters is entitled to
great weight, and not lightly to be interfered with."^'

Wrong Reason Assigned. — \Miere the interstate commerce commission made
an order and proceeded to have it enforced, it was held that the court was not
confined to the grounds stated by the commission, and if the rule was found,,
in itself, for any reason illegal as a violation of the act, the order could be
valid and be a lawful order, although the commission had given a wrong reason
for making it.'^^ However, the conclusions of the commission are subject to
review if it excluded "facts and circumstances that ought to have been con-
sidered." ' ^ Thus, the commission's construction of the Interstate Commerce
Act by which its duties are prescribed and from which its powers are derived,
may be reviewed. ^^

709, the circuit court of the United States U. S. 184, 40 L. Ed. 935, 16 S. Ct. 700j

for the Southern district of Alabama de- Louisville, etc., R. Co. v. Behlmer, 175'

Clares: 'The findings of fact in the re- U. S. 648, 44 L. Ed. 309, 20 S. Ct. 209.

port of the commission are made by law 76. Cincinnati, etc., R. Co. v. Interstate

prima facie evidence of the matters Commerce Comm., 162 U. S. 184, 40 L.

therein stated, and the conclusions of the Ed. 935, 16 S. Ct. 700.

commission, based upon such findings, are 77. Finding of discrimination.— New

presumed to be well founded and cor- York, etc., R. Co. v. Interstate Commerce

rect.'" Interstate Commerce Comm. v. Comm., 200 U. S. 361, 50 L. Ed. 515, 26

Louisville, etc., R. Co., 118 Fed. 613. S. Ct. 272.

72. Finding of questions of law. — lUi- 78. Wrong reason assigned. — Southern
nois Cent. R. Co. v. Interstate Commerce Pac. Co. v. Interstate Commerce Comm.,.
Comm., 206 U. S. 441, 51 L. Ed. 1128. 27 200 U. S. 536, 50 L. Ed. 585, 26 S. Ct.
S. Ct. 700; Texas, etc., R. Co. v. Interstate 330.

Commerce Comm., 162 U. S. 197, 40 L. 79. Illinois Cent. R. Co. v. Interstate

Ed. 940, 16 S. Ct. 666; Interstate Com- Commerce Comm., 206 U. S. 441, 51 L.

merce Comm. v. Alabama Mid. R. Co., 168 Ed. 1128, 27 S. Ct. 700; Texas, etc., R.

U. S. 144, 42 L. Ed. 414, 18 S. Ct. 45; Co. v. Interstate Commerce Comm., 162'

Louisville, etc., R. Co. v. Behlmer, 175 U. S. 197, 40 L. Ed. 940, 16 S. Ct. 666;

U. S. 648, 44 L. Ed. 309, 20 S. Ct. 209. Cincinnati, etc., R. Co. v. Interstate Com-

73. Findings of fact. — Interstate Com- merce Comm.. 162 U. S. 184, 40 L. Ed.
merce Comm. v. Alabama Mid. R. Co., 168 935. 16 S. Ct. 700.

U. S. 144. 42 L. Ed. 414. 18 S. Ct. 45. 80. Illinois Cent. R. Co. v. Interstate

74. Illinois Cent. R. Co. v. Interstate Commerce Comm., 206 U. S. 441, 51 L-
Commerce Comm., 206 U. S. 441, 51 L. Ed. 1128, 27 S. Ct. 700; Texas, etc., R.
Ed. 1128, 27 S. Ct. 700. Co. V. Interstate Commerce Comm., 162-

75. Finding concurred in by court.— Illi- U. S. 197, 40 L. Ed. 940, 16 S. Ct. 666;
nois Cent. R. Co. v. Interstate Commerce Interstate Commerce Comm. v. Alabama
Comm., 206 U. S. 441, 51 L. Ed. 1128, 27 Mid. R. Co.. 168 U. S. 144, 42 L. Ed. 414,
S. Ct. 700; Cincinnati, etc.. R. Co. v. In- 18 S. Ct. 45; Louisville, etc.. R. Co. v.
terstate Commerce Comm., 206 U. S. 142, Behlmer, 175 U. S. 648, 44 L. Ed. 309',.
51 L. Ed. 995, 27 S. Ct. 648; S. C, 162 20 S. Ct. 209.



3787 • inte^rstate: commerce act. §§ 4170-4172

Whether Proceeding Instituted by Commission or Individual.' — The

finding of facts in a report by the interstate commerce commission has no greater
weight where the commission itself proceeds by petition to enforce obedience
to its orders, than where an individual aggrieved so proceeds, and is not con-
clusive evidence of such facts. ^^

Pending Action by Court. — A decision of the interstate commerce commis-
sion that certain allowances in the tariff on sugar constituted rebates and should
be eliminated operates to eliminate such allowances until the decision was re-
versed or suspended. '^-

Finding Reasonableness of Rates. — The interstate commerce commission
may determine the reasonableness of rates and award reparation, and when it
does so its conclusions are final unless it has exceeded its prescribed functions in
some particular material to the controxersy.-^

Finding of Amount of Demurrage Charges. — A decision of the interstate
commerce commission that demurrage charges assessed by a carrier were collecti-
ble, but that the commission had no means of determining their reasonableness,
and that the consignee could file a formal complaint, was not res judicata as to the
amount of demurrage and storage charges which the carrier might collect on a
difterent shipment.'^'*

§§ 4171-4181. Enforcing, Enjoining and Annulling— § 4171. In
General. — Interstate Commerce Act, § 16, provides that whenever any common
carrier, as defined in such act, shall violate, refuse, or neglect to obey any lawful
order or requirement of the commission, not founded on a controversy requiring
a trial by jury, it shall be lawful for the commission or any person interested to
apply in a summary way by a petition to the circuit court of the United States
sitting in eciuity for the enforcement of such order; and, if the matters involved
require a trial by jury, it shall be lawful for any person interested to apply to a
court of the United States sitting as a court of law to fix a time for a trial of the
case, etc The interstate commerce commission, though clothed with quasi- judi-
cial functions, being an administrative body, no lawful order referred to is self-
executing.^'*^ The interstate commerce commission is invested with only adminis-
trative powers of supervision and investigation, which fall far short of making
it a court, or its action judicial, in the proper sense of the term. Its action or con-
clusion upon matters brought before it for investigation is neither final nor con-
clusive; nor is it invested with any authority to enforce its decision or award.
It hears, investigates, and reports upon complaints made before it ; but subsequent
judicial proceedings are contemplated and provided for as the remedy for the en-
forcement of the order or report of the commission in all cases where the party
against whom its decision is rendered does not yield voluntary obedience
thereto. 8'^

§ 4172. Necessity for Lawful Order.- — If the order be not a lawful one,
the court is without power to enforce it.^^ Under the decisions of the supreme

81. Whether proceeding instituted by — Western New York, etc., R. Co. v.
commission or individual. — Kentucky, etc., Penn Refin. Co., 137 Fed. 34."3, 70 C. C.
Bridge Co. v. Louisville, etc., R. Co., 37 A. 23, affirmed in 28 S. Ct. 2r)8, 208 U.
Fed. 567. 2 L. R. A. 289; Interstate Com- S. 208, 53 L. Ed. 456.

merce Comm. v. Lehigh Valley R. Co., 86. Kentucky, etc.. Bridge Co. v. Louis-

49 Fed. 177. ville, etc., R. Co., 37 Fed. 567, 2 L. R.

82. Pending action court. — American A. 289.

Sugar Refin. Co. v. Delaware, etc., R. Co., 87. Necessity for lawful order.— South-

200 Fcfl. 652. crn Pac. Co. v. Interstate Commerce

83. Finding reasonableness of rates. Comm., 200 U. S. 536, 50 L. Ed. 585, 26
—Fidelity Lumber Co. v. Great Northern S. Ct. 330.

R. Co., 113 C. C. A. 552, 193 Fed. 924. Unless a valid order has been made

84. Finding of amount of demurrage by the commission and violated by the
charges. — Xcustadt 7*. Lehigh Xalley R. company, no relief can be granted to the
Co. (Apj). Div.), 144 \. Y. v*-!. Oil. petitioners. Farmers', etc., Trust Co. v.

85. Enforcing, enjoining and annulling. Northern Pac. R. Co., 83 Fed. 249.



§4172 CARRIERS. ' 3788

court prior to the amendment of the statute, which conclusively determined that
the interstate commerce commission has no power to fix rates for the carriage of
interstate freight, a decree of a court for the enforcement of a rate so fixed by the
commission is without authority. ■'^-

Order Presumed Valid. — In a proceeding to enforce, enjoin or annul an or-
der of the interstate commerce commission, the presumption is that the order is
valid, and the burden is upon the party taking it to make a clear case showing its
invalidity. '"*'■' On demurrer to a bill filed by the interstate commerce commission
for the enforcement of an order made by it, any substantial doubt as to the law-
fulness of the order should be resolved in its favor. '■^"

Order Supported by Finding. — A finding by the interstate commerce com-
mission that the purpose and efl:"ect of a rule and practice adopted by railroad
companies, by which, as initial carriers, they reserved the right to route through
shipments beyond their own lines, were to assist in carrying into effect a pooling
agreement between their connecting carriers, made in violation of the interstate
commerce law, is pertinent to, and supports the lawfulness of, an order requiring
the companies to desist from maintaining and enforcing such rule.''^

Necessity for Identification of Cause of Action in Order. ^ — An action
may be maintained in a circuit court under the Interstate Commerce Act to en-
force an order of the interstate commerce commission awarding reparation to a
shipper for an unlawful charge by a railroad company, wdiere the complaint and
the record show that the cause of action is the same as that acted on by the com-
mission, which need not necessarily be set out in its order. '^'-

Order Fixing Rates. — A court having no constitutional power to regulate
commerce or to fix rates to be charged by a carrier can not suspend or vacate an
order of the interstate commerce commission prescribing rates under the power
conferred by the Interstate Commerce Act except on the ground that in making
such order the commission transcended its power or exercised such power with-
out due regard to law and in violation of some legal, constitutional or natural
right of the carriers affected. -'-^

Order Ignoring Facts. — An order of the interstate commerce commission
prohibited railway carriers from charging greater compensation for the transpor-
tation of window shades of any description than the rate charged for the trans-
portation of the materials used in making such shades. On petition to enforce
compliance with the order, that the court would refuse to enforce such order, ig-
noring, as it did, the element of the value of the service in fixing the reasonable
compensation of the carrier, and denying him any remuneration for additional
risk.»^

Indefinite and Uncertain. — An order by the interstate commerce commis-
sion, authorizing a railway company to make commodity rates on competitive
traffic to terminal points less than rates on like trafiic to intermediate points, but
directing that such commodity rates must not be lower than necessary to meet
competition, nor be applied to articles not actually subject thereto, is a mere gen-
eral statement of legal duty too indefinite to be enforced."-^

Order to Operate Indefinitely. — It is not an objection to an order of the in-
terstate commerce commission, or to the rendition of a decree of the circuit court
for its enforcement, that it is made in terms to operate indefinitely, without any

88. Southern Pac. Co. v. Colorado, etc., of action in order. — Chicago, etc., R. Co.
Iron Co., 101 Fed. 779, 42 C. C. A. 12. v. Feintuch, 191 Fed. 482.

89. Order presumed valid. — Missouri, 93, Order fixing rates. — Philadelphia,
■etc., R. Co. V. Interstate Commerce etc., R. Co. v. Interstate Commerce
Comm., 164 Fed. 645. Comm., 174 Fed. 687.

90. Interstate Commerce Comm. v. 94. Order ignoring facts.— Interstate
Southern Pac. Co., 12.3 Fed. 597. Commerce Comm. v. Delaware, etc., R.

91. Order supported by finding. — Inter- Co., 64 Fed. 723.

state Commerce Comm. v. Southern Pac. 95. Indefinite and uncertain. — Farmers',

Co., 123 Fed. 597. etc.. Trust Co. v. Northern Pac. R. Co.,

92. Necessity for identification of cause 83 Fed. 249.



3789 IXTERSTATE COMMERCE ACT. §§ 41/2-4174

reservation of power to modify it in accordance with changes of conditions.^'^

Facts Not Conclusions to Be Stated.— It is not sufficient for the report of
the interstate commerce commission, upon a complaint made to and investigated
by it, to state merely conclusions, with respect either to law or facts ; but it should
show w^hat the issues in the case are, and what facts it finds in regard to such is-
sues, with suitable reference to the evidence, so as to give the parties and the court,
in any judicial proceedings afterwards instituted, such definite and distinct in-
formation as to what was found, and the commission's opinion thereon, as would
be necessary to make a judicial opinion sufficient and satisfactory for the pur-
poses of ordinary litigation. '^^

Arbitrary Ruling. — An order of the commission, directing a railroad company
to wholly discontinue a long-established custom of furnishing cartage to con-
signees and consignors in a particular city, is not a lawful order, such as the
courts are required, by the act, to enforce, if it will operate to deprive the carrier
of its business at that place. The method of redress by readjusting rates must al-
ways be left, in the first instance, at least, to the carrier itself; and an arbitrary
and peremptory order to abandon a long-established accessorial cartage sen-ice
at a particular place, without regard to any rates, or without any option to read-
just them, is unlawful.'''^

Sufficiency of Evidence to Support Order.— The lawfulness of an order of
reparation issued by the interstate commerce commission does not necessarily de-
pend on a sufficiency of evidence adduced before the commission, but on the
existence of facts, whether disclosed or not before that body, warranting the rep-
aration ordered; and in an action to enforce such reparation it is sufficient that
such facts be established by proper evidence.^'*

§ 4173. Nature of Proceeding.— The act does not make the circuit court
the mere executioner of the commissioners' order or recommendation, so as to
impose upon the court a nonjudicial power. The court is not restricted to the
mere ministerial duty of enforcing an order of the commission. The suit in the
federal court is, under the provisions of the act, an original and independent
proceeding, in which the commissioners' report is made prima facie evidence of
the matters or facts therein stated. The court is not confined to a mere re-exam-
niation of the case as heard and reported by the commission, but hears and de-
termines the cause de novo, upon proper pleadings and proofs; the latter includ-
ing not only the prima facie facts reported by the commission, but such further
testimony as either party may introduce, bearing upon the matters in contro-
versy.i A state statute requiring affidavits of defense, which is applicable only
to actions founded on contract alone, does not apply to a statutory proceeding to
enforce an order of reparation by the interstate commerce commission.-

§ 4174. Jurisdiction and "Venue. — The circuit court is given authority to
enforce any lawful order or requirement of the commission. -"^ Congress has exer-

96. Order to operate indefinitely.— In- A suit brought by one in whose favor
terstate Commerce Comm. v. Louisville. the interstate commerce commission has
etc., R. Co., ~?, Fed. 409. made an award of damages by way of

97. Facts not conclusions to be stated. reparation, under the authority of Inter-
— Interstate Commerce Comm. v. Louis- state Commerce Act Feb. 4, 1887, § 16,
ville, etc., R. Co., 7,3 Fed. 409. as amended by Act March 2, 1889, § 5,

98. Arbitrary ruling.— Detroit, etc., R. and Act June 29, 190(), § 5, is not a suit
Co. V. Interstate Commerce Comm., 21 C. on the award qua award to recover the
C. A. 10.'5, 74 Fed. 803. amount of the same, but a plenary suit

99. Sufficiency of evidence to support for damages actually sustained by the
order.— Western New York, etc., R. Co. plaintiff by reason of some violation of
r. Penn Rehn.. Co., 137 Fed. 343, 70 C. the act by defendant. Lehigh \'allcy R.
C. A. 23, affirmed in 28 S. Ct. 268, 208 U. Co. v. Clark, 207 Fed 717

S. 208, .'-,2 L. Ed. 456. 2. Naylor & Co. v. Lehigh Valley R.

1. Nature of proceeding.— Kentucky, Co., 188 Fed. 860.

etc., Bridge Co. v. Louisville, etc., R. Co., 3. Jurisdiction and venue.— .A.ct Feb.

37 Fed. 567, 2 L. R. A. 289. 4, 1887, § 16.



§§ 4174-4175 CARRIERS. 3790

cised this power, and the righteous orders of the great commission it has primarily
entrusted with the tremendous duty should in all proper cases be respected and
enforced by the courts of the country.-*

Equity Jurisdiction. — Under the Interstate Commerce Act the circuit courts,
sitting in equity, have jurisdiction to entertain, hear and determine suits to com-
pel obedience to the orders of the commission, and also of suits to annul or en-
join the enforcement of such orders.^

One of Several Parties Not within District. — An order of the interstate
commerce commission, made against two raih-oad companies in respect to a joint
rate, in a proceeding to which both were parties, may be enforced by a circuit
court against one of the companies which is within its jurisdiction, although the
other is without its jurisdiction, and can not be made a party.*^

Jurisdiction of State Court. — Jurisdiction of a claim for damages against
an interstate carrier because of excessive rates charged and collected by it from
the claimant is expressly limited by the Interstate Commerce Act of Feb. 4, 1887,
to the interstate commerce commission or a district or circuit court of the United
States, and the provision of the act, as amended by Act June 18, 1910, extending
such jurisdiction to the state courts, applies, by its terms, only to claims which
have been previously determined by the commission, and on which it has made
awards which have not been complied with."^

Power to Modify or Change. — The power given to the courts to compel
obedience to the "lawful order" of the commission, being special and statutory,
is strictly limited to the power conferred ; and consequently the courts can only
grant or refuse compulsory obedience to the order, and have no authority to
modify or change it.*^

§ 4175. Parties. — Proper and Necessary Parties. — In proceeding against
a carrier of interstate commerce to enforce an order of the comiaission, another
carrier concerned with the defendant in jointly making the forbidden rate is a
proper, but not a necessar}% party defendant.'' In a suit by the interstate com-
merce commission against a railroad company to enforce obedience to an order
requiring it to desist from the enforcement of a rule reserving to itself, as initial
carrier, the unqualified right of routing beyond its own terminal all shipments
made under an established through joint rate, the connecting carriers joining in
the making of such through rate, while proper, are not necessary, parties. i"

Interveners. — In suits against the interstate commerce commission to enjoin

4. Interstate Commerce Comm. v. Lou- state Commerce Comm. v. Southern Pac.
isville, etc., R. Co., 118 Fed. 613. Co., 74 Fed. 42.

5. Equity jurisdiction.— Missouri, etc., 7. Jurisdiction of state court.— Darnell
R. Co. V. Interstate Commerce Comm., ^, Illinois Cent. R. Co., 190 Fed. 656.
164 Fed. 645. g po^er to modify or change.— De-

6. One of several parties not within ^.j-oit, etc., R. Co. v. Interstate Commerce
district.— Interstate Commerce Comm. v. Comm., 21 C. C. A. 103, 74 Fed. 803, re-
Texas, etc., R. Co., 6 C. C. A. 653, 57 versing 57 Fed. 1005.

Fed 948, affirming 52 Fed. 187. ^ Parties.-Texas, etc., R. Co. v. In-
Where a number of railroads, operated ^^^^^^^^ Commerce Comm., 163 U. S. 197,
under a comnion control and manage- ^^ ^ ^^_ ^^ ^^ g_ ^^_ affirming 6
ment, establish a rate interdicted by an ^ ^ ^_ ^^3 ^^ p^^^ g^g
order of the interstate commerce commis- , p r 1 t
sion, the act of one of the companies in I" proceedings under § 16 of the In-
charging freight at such rate in a par- terstate Commerce Act (24 Stat 384)
ticular judicial district, to be carried over against a carrier to enforce an order of
the various lines, is a violation or diso- \he commissioners, it is not necessary
bedience of the order in such district, that another carrier, making the forbid-
within the meaning of § 16 of the den rate jointly with defendant be made
interstate commerce act, as amended in a party to the suit. Interstate Commerce
1889 (24 Stat. 860), so as to give the cir- Comm. v. Texas, etc., R. Co., 52 ^ed.
cuit court of that district jurisdiction of •^^^•

a suit by the commission to enforce its 10. Interstate Commerce Comm. v.

order against all the companies. Inter- Southern Pac. Co., 123 Fed. 597.



3791 INTERSTATl]; COMMERCE ACT. §§ 4175-4176

orders issued by them, parties similarly situated may intervene.^ ^ In a suit by a
railroad company against the interstate commerce commission to enjoin or annul
an order of the commission, third parties interested in such order are not entitled
to intervene as of right, but may be permitted to do so at the request of the com-
mission, on condition that the hearing shall not thereby be delayed.^- Under the
broad provisions of the last proviso of § 5 of the Act of June 18, 1910, creating
the commerce court, "that communities, associations, corporations, firms and in-
dividuals who are interested in the controversy or question before the interstate
commerce commission, or in any suit which may be brought by any one under
the terms of this act, relating to action of the interstate commerce commission,
may intervene in said suit or proceeding at any time after the institution thereof,"
an incorporated grain exchange or a board of trade of a city, most or all of whose
numbers are engaged in business which will be directly affected by an order of
the commission, is interested in the question involved, and is entitled to intervene
in a suit in the commerce court brought to enjoin the enforcement of such order. ^^^

Enforcement ag-ainst Receiver.^ — In an application to enforce an order of
the interstate commerce commission against railroad receivers, the same rules
and principles must be applied as if the railroad were being operated by the rail-
road company itself. i"* Since execution can not issue against the property of a
railroad company in the hands of a receiver appointed by a federal court to en-
force a judgment for damages sustained by the charge of discriminating freight
rates in violation of the Interstate Commerce Act, the receiver as such should
not be joined with other railroad companies constituting a through route, against
which the judgment would constitute a personal liability, to be enforced by exe-
cution at law.^"'

Joinder of Parties. — Any party against whom an order fixing rates is made
by the interstate commerce commission may petition the court for redress with-
out joining other parties to the order, such suit being plenary, and the injury, if
any, being several and not joint. ^'^

Persons Affected by Order. — Parties injuriously affected by orders of the
interstate commerce commission may sue in the circuit courts to enjoin, suspend,
or annul such orders, though they were not parties to the proceedings before the
commission on which the orders were based. ^'^

Competing Carriers. — Interstate carriers who, although not parties to pro-
ceedings before the interstate commerce commission, nor named in an order made
by the commission fixing rates on a commodity between certain points, are com-
petitors of the carriers named therein in such traffic and therefore necessarily af-
fected by the order, have such an interest therein as entitles them to maintain a
suit to enjoin its enforcement, and, while they may properly apply to the com-
mission for a rehearing, such action is not a necessary condition precedent to
such a suit.^^

§ 4176. Pleading's. — In a suit by carriers to annul an order of the interstate
commerce commission fixing rates on the ground that such rates are confiscatory
and unconstitutional, in that they are not reasonably compensatory, and would

11. Intervenors.— Peavey & Co. v. Un- 16. Joinder of parties.— Atlantic, etc.,
ion Pac. R. Co., 176 Fed. 409. R. Co. v. Interstate Commerce Comm.,

12. Delaware, etc., R. Co. v. Interstate l^f„^^^'- "*"^''- ^ ^ ^ a
Commerce Comm., 169 Fed. 894. „ 17. Persons affected by order.-Peayey



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 129 of 214)