Copyright
Thomas Johnson Michie.

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

. (page 130 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 130 of 214)
Font size
QR-code for this ebook


,„ ,, t ■,. o • T- 1 TT -.^ J & Co. V. Union Pac. R. Co., 17G Fed. 409.

St f ^01 F? S'""'" '■ ''' Carriers necessarily affected by an or-

Dtates, IJI red. .37. ^^^ ^^ ^.j^^ interstate commerce commis-

14. Enforcement against receiver. — gion, although not parties thereto, may
Farmers', etc., Trust Co. v. Northern maintain a suit to enjoin its enforcement.
Pac. R. Co., 83 Fed. 249. Atlantic, etc., R. Co. v. Interstate Com-

15. Western New York, etc., R. Co. v. merce Comm., 194 Fed. 449.

Penn Refin. Co., 137 Fed. 343, 70 C. C. 18. Competing carriers.— Atlantic, etc.,

A. 23, affirmed in 28 S. Ct. 268, 208 U. R. Co. v. Interstate Commerce Comm.,
S. 208, 52 Iv. Ed. 456. 194 Fed. 449.



§§ 4176-4178 CAKRiKKS. 3792

not produce enough revenue to pay the actual cost of the service and a reasonable
profit, the bill should allege facts in support of such conclusions, such as the
amount of revenue derived from the traffic affected, and so far as possible the
cost of the service, or other facts from which the court can determine for itself
whether the rates fixed are reasonably, compensatory, and would produce a rea-
sonable profit. ^'^

Allegations of Law and Fact. — The allegation that there was no evidence
offered, heard, or introduced is an allegation of fact so far as the question of
pleading is concerned, but whether or not there is at the close of a final trial any
evidence to sustain a finding of fact made by a judicial or quasi judicial tribunal
is always a question of law, which in a case like the one at bar this court has ju-
risdiction to determine.-'* In a suit by cafriers to annul an order of the inter-
state commerce commission declaring an existing rate unjust and unreasonable
and establishing a lower rate, an allegation in the bill that there was no evidence
before the commission to show the unreasonableness of the existing rate or the
reasonableness of the one prescribed is an allegation of fact and sufficient as a
matter of pleading, but whether or not there is at the close of a final trial any
evidence to sustain the findings of the commission is a question of law, which the
court has jurisdiction to determine.-^

Presumptions and Burden of Proof. — The act to regulate commerce creates
a rule of presumption in favor of the report of the interstate commerce commis-
sion which on its introduction in evidence changes the burden of proof and casts
it upon the party against whom the report is made. - The conclusions of the in-
terstate commerce commission, based upon its findings of fact that charges made
by a railroad company are unjust and unreasonable or unlawfully discriminating,
are presumed to be well founded and correct, and in a suit to enforce its orders
the burden rests upon the company to show them to be erroneous.-"^

§§ 4177-4178. Evidence — § 4177. Admissibility. — Evidence taken be-
fore the interstate commerce commission is not a part of the record, but either
party, upon petition to enforce the order of the commission, may introduce any
testimony taken before the commission, which is competent and relevant.^-^ Un-
der the charge of a denial of equal facilities for the interchange of traffic, the con-
duct of respondent in so arranging the running of its trains that greater facilities
for interchanging, forwarding, and delivering freight were afforded to a com-
peting connecting line than to petitioner, was proper to be shown to the court in
a proceeding to enforce an order of the commission, though no question of the
hours of running trains was presented to the commission in express terms. -^

§ 4178. Weight and Sufficiency. — Explicit law, the settled policy of the
government, and the practical principles of reason and justice, require that the
national courts should not discredit the conclusions of the interstate commerce

19. Pleadings.— Atlantic, etc., R. Co. v. Ct. 569; Howe v. Parker, 190 Fed. 738;
Interstate Commerce Comm., 194 Fed. Fisher v. Scharadin, 186 Pa. 565, 40 Atl.
449. 1091.

20. Allegations of law and fact. — Atlan- 21. Atlantic, etc., R. Co. v. Interstate
tic, etc., R. Co. V. Interstate Commerce Commerce Comm., 194 Fed. 449.
Comm., 194 Fed. 449, citing Ward v. Jos- 22. Presumptions and burden of proof.
lin, 186 U. S. 142, 147, 46 L. Ed. 1093, 22 —Tift v. Southern R. Co., 138 Fed. 753,
S. Ct. 807; United States Fidelity, etc., decree affirmed in 148 Fed. 1021, 79 C.
Co. V. Board, 76 C. C. A. 114, 145 Fed. C. A. 536 and 27 S. Ct. 709, 206 U. S.
144; Laing v. Rigney, 160 U. S. 531, 40 428, 51 L. Ed. 1124.

L. Ed. 525, 16 S. Ct. 366; Southern Pac. 23. Interstate Commerce Comm. v.

Co. V. Pool, 160 U. S. 438, 40 L. Ed. 485, Louisville, etc., R. Co., 118 Fed. 613.

16 S. Ct. 338; The Francis Wright, 105 24. Evidence. — Interstate Commerce

U. S. 381, 26 L. Ed. 1100; Clement v. Comm. v. Cincinnati, etc., R. Co., 64 Fed.

Phoenix Ins. Co., 7 Blatchf. 51. Fed. Cas. 981.

No. 2,882; Delaware, etc., R. Co. v. Con- 25. New York, etc., R. Co. v. New

verse, 139 U. S. 469, 35 L. Ed. 213, 11 S. York, etc., R. Co., 50 Fed. 867.



3793 INTERSTATE COMMERCE ACT. § 4178

commission.-''' Evidence can not be weighed by the supreme court, as a matter
of first impression, in a suit to enforce an order of the interstate commerce com-
mission, for the purpose of ascertaining whether it estabHshes such substantial
and material competition as justified a carrier in concluding that dissimilarity of
circumstance and condition was brought about. 2" It is in evidence that, regard-
less of competition, a cheap grade of lumber could not get to market from a
certain place without a favoring rate and whether traffic will move at a given rate
is always some evidence as to whether the rate responds to the value of the serv-
ice performed. The commission had this and the other matters to which ref-
erence is made to guide in the conclusion reached. The rate was thus not fixed
arbitrarily or without considerations which justified it, and, above all, not for
the purpose of enforcing a policy inaugurated by the carrier, which it was held
could not equitably be abandoned, but in the exercise of due judgment, after full
consideration of the entire subject, as shown by the reasons given for it; and,
this being so, the order was lawfully made.^*

The mere opinions of the interstate commerce commission are inadmissible
in an action brought for the enforcement of an order of pecuniary reparation.^^
But where a proceeding to enforce the commission's findings is tried by a federal
court wnthout a jury, it is not error for the court to receive the commission's re-
port in evidence without excluding matters of opinion stated therein, as distin-
guished from the commission's findings of fact.^*^ An action by one in whose fa-
vor the interstate commerce commission has made an award by way of reparation
for excessive rates is governed by the same rules of evidence as other civil ac-
tions, except that the findings and order of the commission are admissible as
prima facie evidence "of the facts therein stated ;" but the award of the com-
mission is not such a finding, and is not evidence of any liability of defendant to
plaintifi:'.^^ If this case had been tried before a jury, it might have been the
court's duty to separate the findings of fact from matters of opinion and to in-
struct the jury to disregard the latter,^^ ^ut such a rule is inapplicable to a trial
before the court alone. ^^ The commerce court, in examining the report of the
interstate commerce commission, to ascertain the particular provisions of the
interstate commerce act relied on to sustain a particular order, is hmited to the
report of the majority of the commission, the views of the minority not being
open to consideration.'^'*

Facts Stated in Order. — The provision of the act that a report of the com-
mission in writing in respect to investigations into the reasonableness of rates,
and that in case damages are awarded such report shall include the findings of
fact on which the award is made, does not authorize the commission on a de-
termination that a party complaining is entitled to an award of damages against
a carrier because of the charge and collection of excessive rates in the violation of
the provision to make an order directing the payment of such damages on or be-
fore a day named, and that on a failure to comply with such order, the com-
plainant may file a petition in a circuit court, set forth causes for which he

26. Weight and sufficiency. — Decree, opinion prepared by one of the members.
Tift V. vSouthern R. Co., 138 Fed. 753, af- Southern R. Co. v. St. Louis, etc., Grain
firmed in 148 Fed. 1021, 79 C. C. A. 536. Co., 153 Fed. 728, 82 C. C. A. 614.

27. Decree, Behlmer v. Louisville, etc., 31. Lehic^h Valley R. Co. v. Clark, 207
R. Co., 83 Fed. 898, 28 C. C. A. 229, re- pgd 717.

versed in 20 S. Ct. 209. 175 U. S. 648, 44 ^^ Western New York, etc., R. Co.

„n c^"^,' T3 r- TT •. 1 c. . 7'. Pcnn. Refin. Co., 70 C. C. A. 23, 137

28. Southern Pac. Co. v. United btates, t^ , ^.o

197 Fed. 167. "• * ^, ^ ^ c. T • .

29. Western New York, etc., R. Co. v. ^ 33- Southern R Co. v. St Louis, etc
Penn Refin. Co., 137 Fed. 343, 70 C. C. Gram Co., 153 Fed. 728, 82 C. C. A. 614.
A. 23, affirmed in 28 S. Ct. 268, 208 U. 34. Atchison, etc., R. Co. v. Interstate
S. 208, 52 L. VA. 4r,(). Commerce Comm., 188 Fed. 229; South-

30. The findings and the conclusions of ern Pac. Co. v. Interstate Commerce
the commission were embraced in an Comm., 188 Fed. 241.



§ 4178 CARRmns. 3794

claims d-amages and the order of the commission, and that such suit shall
proceed in all respects like other suits for damages, except that on the trial of
such suit the findings and order of the commission shall be prima facie evidence
of the facts therein named, do not make the order prima facie evidence in
such suit of the liability of the carrier, but only of the facts stated in the order
and findings, and it is the province of the court to determine whether such
facts sustain the order.^^ An order of the interstate commerce commission
awarding damages to a complainant against railroad companies is not sustained
by findings that the carriers charged a rate on lumber shipped by the complainant
which was excessive and unreasonable to the extent of the damages awarded,
where it is also found that the complainant added the increased freight to the
price of the lumber and the same was paid by the consumer, and it is not found
that the freight was in fact paid by the complainant, or that it in any way suf-
fered actual damage from the excessive rate.^*^

Orders as to Long and Short Haul. — On a proceeding in the circuit court,
under Interstate Commerce Act, § 16, to enforce an order of the commissioners
directing certain carriers to desist from charging a greater rate for a shorter
than for a longer haul, the facts found by the commission are not conclusive,
but are merely prima facie evidence, subject to be overcome by other evidence
produced before the court. ^"

Order Awarding- Reparation. — In an action against a railroad company
brought under the Interstate Commerce Act to enforce an order of the inter-
state commerce commission, awarding reparation to a shipper, which is tried
to the court, the admission in evidence of the report of the commission is not
error although it may contain irrelevant matter.^^

Analogous to Report of Referee. — The commission is charged with the duty
of investigating and reporting upon complaints, and the facts found or reported
by it are only given the force and weight of prima facie evidence in such judicial
proceedings as may thereafter be had for the enforcement of its recommendation
or order. The functions of the commission are those of referees or special
commissioners, appointed to ,make preliminary investigation of, >and report
upon, matters for subsequent judicial examination and determination. _ In re-
spect to interstate commerce matters covered by the law, the commission may
be regarded as the general referee of each and every circuit court of the United

35. Facts stated in. order. — The Inter- he claims damages and the order of the

state Commerce Act (Act Feb. 4, 1887, commission in the premises;" that "such

c. 104, §§ 14, 16, 24 Stat. 384 [U. S. Comp. suit shall proceed in all respects like

St. 1901, pp. 3164, 3165]), as amended by other suits for damages, except that on

Act June 29, 1906, c. 3591, §§ 3, 5, 34 the trial of such suit the findings and or-

Stat. 589, 590 (U. S. Comp. St. Supp. der of the commission shall he prima

1909, pp. 1157, 1159), provides that the facie evidence of the facts therein stated."

interstate commerce commission shall Held, that such provisions do not make

make a report in writing in respect to its the order prima facie evidence in such

investigation into the reasonableness of suit of the liability of the carrier, but

rates, and that "in case damages are only of the facts stated in the order and

awarded such report shall include the findings, and that it was the province of

findings of fact on which the award is the court to determine whether such facts

made." They authorize the commission sustained the order. Darnell-Taenzer

on a determination that a party complain- T, umber Co. v. Southern Pac. Co., 190

ant is entitled to an award of damages Fed. 659.

against a carrier because of the charge 36. Darnell-Taenzer Lumber Co. v.

and collection of excessive rates in vie- Southern Pac. Co., 190 Fed. 659.



lation of the act to make an order di-



37. Order as to long and short havil.



recting the payment of such damages on _interstate Commerce Comm. v. Atchi-
or before a day named, and provide that, ^^^^ g^^__ j, q^^ g^ ^^^ 295



on a failure to comply with such order.



38. Order awarding reparation. — Chi-



the complainant for whose benefit it is ^b. ^raer awaruing rcp<iiaiiuu.— v.ui-

made may file a petition in a circuit court cago, etc., R. Co. v. Femtuch, 191 Fed.
"setting forth briefly the causes for which ^^^-



3795 INTERSTATE COMMERCE ACT. §§ 417'8-4179

States upon which the jurisdiction is conferred or enforcing the rights, duties,
and obhgations recognized and enforced by said law.^^

§§ 4179-4180. Hearing and Determination — § 4179. In General. —

Originally the duty of the courts to determine whether an order of the commis-
sion should or should not be enforced carried with it the obligation to consider
both the facts and the law. But it had come to pass prior to the passage of the
act creating the commerce court that in considering the subject of orders of the
commission, for the purpose of enforcing or restraining their enforcement, the
courts were confined by statutory operation to determining whether there had
been violations of the constitution, a want of conformity to statutory authority
or of ascertaining whether power had been so arbitrarily exercised as virtually
to transcend the authority conferred although it may be not technically so.**^
It has also been determined in considering whether an affirmative order of the
commerce court, that the commission should be enforced, on the one hand, or set
aside and declared nonenforceable on the other was endowed only wath the ju-
risdiction and power existing, at the time that act was passed in the circuit
courts of the United States ; and as, at that time, it was conclusively settled
that the courts had authority to re-examine the findings of the commission in
such cases only for the purpose of ascertaining whether the action of the com-
mission was repugnant to the constitution, in excess of the statutory powers
conferred upon it, or manifested such an abuse as to be equivalent to an excess
of authority, it clearly results that the commerce court was likewise limited
in passing upon the petition brought before it.'*^ Explicit law, the settled policy
of the government, and the practical principles of reason and justice, require
that the national courts should not discredit the conclusions of the interstate
commerce commission.^- In an action by the commissioners, under § 16 of the
Interstate Commerce .Vet, in the circuit court sitting as a court of equity, to
restrain the defendant railroad companies from further continuing the violation
and disobedience of an order of the commission, and to enjoin obedience to the
same, where the order, besides requiring the several defendant companies to
cease and desist from certain acts found by the commission to constitute unlawful
discrimination between shippers, also required them to make reparation to the
complaining shippers, the commissioners afterwards determining the amount to
which each claimant was entitled, so far as the petition seeks the enforcement
of these claims, the court has no jurisdiction of the subject-matter, but as to the
other matters charged it has jurisdiction.'*^ In a proceeding in a circuit court to
enforce an order made by the commission, the court can not adjust differences
between the litigants, or correct abuses in the conduct by a railroad company of
its business.'*'*

Confined to Order. — Though an action to recover pecuniary reparation or-
dered by the interstate commerce commission is triable de novo, the cause of
action must have been included in the order of reparation, and have constituted
the whole or part of the basis of such order, whether the proceeding to enforce
the same is in equity or at law.'*''

39. Analogous to report of referee.^ 7.53. decree affirmed in 148 Fed. 1021, 79
Kentucky, etc.. Bridge Co. v. Louisville, C. C. A. 530, and 27 S. Ct. 709, 20G U. S.
€tc., R. Co., 37 Fed. 5G7, 2 L. R. A. 289. 428, 51 L. Ed. 1124.

40. Hearing and determination. — Proc- 43. Interstate Commerce Comm. v.
ter, etc., Co. v. United States, 225 U. S. Western New York, etc., R. Co., 82 Fed.
282, 56 L. Ed. 1091, 32 S. Ct. 701. 192.

41. Procter, etc., Co. v. United States, 44. Farmers', etc., Trust Co. v. North-
225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct. ern Pac. Co., 83 Fed. 249.

761; United States v. Baltimore, etc., R. 45. Confined to order. — Western New

Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S. York, etc., R. Co. v. Penn Refin. Co., 137

Ct. 817. Fed. 343, 70 C. C. A. 23, affirmed in 28

42. Tift V. Soutlicrn R. Co., 138 Fed. S. Ct. 268, 208 U. S. 208, 52 L. Ed. 456.

4 Car— 44



§ 417'9 CARRIERS. 3796

Reason for Finding. — Where the bill in a suit by the interstate commerce
commission to enforce obedience to an order requiring a railroad company to
desist from the enforcement of a rule promulgated by such company alleges gen-
erally that the rule is violative of the interstate commerce act, which allegation
the defendant denies, the issue thus raised extends to every possible violation of
the act, and the court is not confined to the grounds or reasons assigned by the
commission for its conclusion, but may, without going beyond the issue, reach
a like or different conclusion on the same or other grounds or reasons.'*"^ The
enforcement of an order of the interstate commerce commission directing
common carriers to desist from maintaining or enforcing a rule adopted by them
may be decreed by a federal circuit court if it finds such rule is, for any reason,
in violation of the act although such reason may not have been the one relied
upon by the commission itself to invalidate the rule.^'''

Trial de Novo. — A suit brought by the interstate commerce commission in
the United States circuit court to enforce an order of the commission is an
original and independent proceeding, and the court may hear and determine the
cause de novo upon proper pleadings and proof. '^^ Both in suits to enforce and
to annul or enjoin orders of the interstate commerce commission, the court is
not confined to a consideration of the sufficiency of the facts as determined by
the commission to sustain the order, but the hearing may be de novo, and may
include the taking and consideration of evidence other than that before the
commission.'*^

Trial by Jury. — In an action to enforce an interstate commerce reparation
order based on a discriminating freight rate, whether such rate was just and
reasonable or unreasonalile and excessive is a question for the jury.^"

Amendment and Modification of Order. — In a proceeding in a circuit
court to enforce an order of the interstate commerce commission, the court has
no power to amend or modify such order, or to sever from the remainder a part
which is illegal, but must enforce the same, if at all, in its entirety as made by
the commission. '"^^

Distinction between Proceeding to Enforce and Proceeding to Annul. —
The scope of inquiry in a proceeding in ec[uity to compel obedience to orders of the

46. Reason for finding. — Interstate fer on the circuit courts, sitting in eq-
Commerce Comm. v. Southern Pac. Co., uity, jurisdiction to entertain, hear, and
132 Fed. 829, reversed Southern Pac. Co. determine suits to compel obedience to
V. Interstate Commerce Comm., 26 S. Ct. orders of the commission prescribing
330, 200 U. S. 536, 50 L. Ed. 585. rates, and also of suits to annul or en-

47. Decree, Interstate Commerce Joi" the enforcement of such orders. The
Comm. V. Southern Pac. Co., 132 Fed. scope of the mquiry in both classes of
829, reversed in 26 S. Ct. 330, 200 U. S. suits is the same, and the court is not
536 50 L Ed 585 confined to a consideration of the surh-

/-_,.',,' ' T . . . r^ ciency of the facts as determined by the

48. Trial de novo.-Inters ate Com- ^^,,,,^,;,,;^,, to sustain the order, but the

T/f^H ??r' "■ ^'"'''""^^'' ^^^^ ^- ^°-' hearing may be de novo, and may include

5b I'ed. 925. the taking and consideration of evidence

The court will not be limited on the other tha'n that before the commission;

hearing to a review of the evidence be- i-,t,t; the presumption is that the order is

fore the interstate commerce commission, valid, and the burden is upon the party

and a hearing de novo on the merits attacking it to make a clear case showing

should be granted where the findings and its invalidity. Missouri, etc., R. Co. v. In-

petition of the commission are within the terstate Commerce Comm., 164 Fed. 645.

letter of the act. Interstate Commerce 50. Trial by jury. — Western New York,

Comm. V. Chicago, etc., R. Co., 94 Fed. etc., R. Co. v. Penn Refin. Co., 137 Fed.

272. 343, 70 C. C. A. 23, affirmed in 28 S.

49. Sections 15 and 16 of the Interstate Ct. 268. 208 U. S. 208, 52 L. Ed. 456.
Commerce Act (Act Feb. 4, 1887, c. 104, 51. Amendment and modification of or-
24 Stat. 384 [U. S. Comp. St. 1901, p. der. — Decree. Interstate Commerce
3165], as amended by Act June 29, 1906, Comm. v. Lake Shore, etc., R. Co., 134
c. 3591, §§ 4, 5, 34 Stat. 589, 590 [U. S. Fed. 942, affirmed in 26 S. Ct. 766, 203-
Comp. St. Supp. 1907, pp. 900, 902]) con- U. S. 613, 50 L. Ed. 1171.



3797 INTERSTATIv COMMERCIi; ACT. § 4179

commission and in a suit to annul or enjoin the enforcement of such orders, is
the same.-"'-

Findings of Law. — Under the provisions of the Interstate Commerce Act
the courts have jurisdiction to set aside or suspend any order of the interstate
commerce commission resultini^ from a misconception and misai)phcation of the
law to conceded or undisputed facts. -"'^

Findings of Fact. — The findings of fact set forth in the report of the inter-
state commerce commission are, in all judicial proceedings, deemed prima facie
evidence as to each and every fact found. •''^'* The provision that the findings of
fact of the interstate commerce commission shall be prima facie evidence of the
facts found in a subsequent proceeding to enforce the commission's order, con-
templated that the findings of fact should be so prepared and arranged in the
commission's report that they could be offered in evidence unaccompanied by
extraneous or incompetent legal arguments, oi)inions, or other conclusions.-'^''
Originally the duty of the courts to determine whether an order of the commis-
sion should or should not be enforced carried with it the obligation to consider
both the facts and the law ; but prior to the passage of the act creating the com-
merce court the statute had made the findings of the commission prima facie cor-
rect, so that in considering the su1)ject of orders of the commission, for the pur-
pose of enforcing or restraining their enforcement, the courts were confined by
statutory operation to determining whether there had been violations of the con-
stitution, a want of conformity to statutory authority, or of ascertaining whether
power had been so arbitrarily exercised as virtually to transcend the authority



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 130 of 214)