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conferred although it may be not technically doing so. In reviewing the findings
of the commission, therefore, the courts will not examine the facts further than
to determine whether there was substantial evidence to sustain the order; or
whether the commission acted arbitrarily and unjustly and contrary to the evi-
dence ; or whether its authority was exercised in such an unreasonable and ar-
bitrary manner as to cause it to be within the elementary rule that the substance,
and not the shadow, determines the validity .of the exercise of power.^s In a
proceeding to enforce the orders of the commission, the circuit court has jurisdic-
tion to review the judgment of the commission upon questions of fact as to
whether rates charged are unjust or unreasonable or constitute unjust discrim-
inations or preferences, or whether circumstances and conditions are substantially
similar, and the court is not limited to the inquiry whether or not the commis-
sion has misconstrued the statute and thereby exceeded its power, and there is
general jurisdiction to take evidence upon the merits of the original controversy.
This is apparent from those portions of the act which provide that, when the court
is invoked by the commission to enforce its lawful orders or requirements, the
court shall proceed, as a court of equity, to hear and determine the matter, and in

52. Distinction between proceeding to 308, 32 S. Ct. 108; Cincinnati, etc., R. Co.
enforce and proceeding to annul. — Mis- v. Interstate Commerce Comm., 206 U.
souri, etc., R. Co. v. Interstate Commerce S. 142, 51 L. Ed. 995, 27 S. Ct. 648; South-
Comm., 1G4 Fed. 645. ern Pac. Co. v. Interstate Commerce

53. Findings of law.— Stickney v. Inter- Comm., 219 U. S. 433, 55 L. Ed. 283, 31
state Commerce Comm., 164 Fed. 638. S. Ct. 288; Interstate Commerce Comm.

54. Findings of fact by commission. — v. Illinois, etc., R. Co., 215 U. S. 452, 54
Tift V. Southern R. Co.. 138 Fed. 753. L. Ed. 280, 30 S. Ct. 155; Interstate Com-
decree affirmed in 148 Fed. 1021, 79 C. merce Comm. v. Cliicago, etc., R. Co., 218
C. A. 536, and 27 S. Ct. 709, 206 U. S. U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651;
428, 51 L. Ed. 1124. &. C, 218 U. S. 113, 54 L. Ed. 959, 30

55. Western New York, etc., R. Co. v. S. Ct. 660, reversing 171 Fed. 680; In-
Penn Refin. Co., 137 Fed. 343, 70 C. C. terstate Commerce Comm. v. Delaware,
A. 23, affirmed in 28 S. Ct. 268, 208 U. etc., R. Co., 220 U. S. 235, 55 L. Ed.
S. 208, 52 L. Ed. 456. 448, 31 S. Ct. 392, reversing 166 Fed. 499;

56. Interstate Commerce Comm. v. Un- Procter, etc., Co. v. United States, 225
ion Pac. R. Co., 222 U. S. 541, 56 L. Ed. U. S. 282, 56 L. Ed. 1091, 32 S. Ct. 761.



§§ 4179-4180 CARRIERS. 3798

such manner as to do justice in the premises. ^''^ Having arrived at the conclusion
that the order of the commission was not sustained by the facts upon which it
was predicated, the court can not enter into an independent investigation of the
facts, even if it be conceded the record is in a condition to enable it to do so, in
order that new and substantive findings, of fact may be evolved, upon which the
order of the commission may be sustained.-^^ But the findings of fact made by
the interstate commerce commission are only prima facie evidence. The court
may direct further evidence to be taken, and, if it shall appear that the facts are
otherwise than as reported by the commission, the court would be governed by the
facts as found by itself.^^' If the particular matter in issue before the interstate
commerce commission and inquired into was one of fact, and a full hearing was
afforded, and the conclusion reached is supported by substantial evidence, it will
not be nullified by the courts.*^^ On application to the courts to enforce an order
of the interstate commerce commission which is based on an erroneous construc-
tion of the statute, by reason of which error it has declined adequately to find the
facts, the courts will not proceed to an original investigation of the facts which
should have been passed upon by the commission, but will correct the error of
law committed by that body, and, after doing so, dismiss the application without
prejudice to the right of the commission to make a further investigation of the
facts.^'i

§ 4180. Particular Orders of Commission. — Denying Constitutional
Rights. — The wisdom of the lawful discharge of the administrative duties of the
interstate commerce commission is not reviewable by the courts ; but they may
relieve from orders of the commission which deprive complainants of their prop-
erty without due process of law or without just compensation, or from those
which show an unreasonable exercise of power. '^-

Fixing of Rates. — Since the fixing of a schedule of interstate rates by the
interstate commerce commission is a legislative act, such schedule can not be dis-
turbed by the commerce court on complaint of a shipper as unconstitutionally
high unless it clearly appears that the rates so fixed are so high as to be violative
of the shipper's constitutional rights, guaranteed by the fifth amendment to the
federal constitution."^' It is not ground for interference by the courts with an
order of the interstate commerce commission reducing certain rates charged by a
railroad company that competing companies in consequence of their failure to
meet the reduction are losing traffic."'*

Where Rate Confiscatory. — The action of the interstate commerce commis-
sion in fixing a rate to be charged by an interstate carrier under the legislative
power conferred by the Interstate Commerce Act, can be reviewed by the courts
only on the constitutional ground that it is confiscatory, and such claim should
be clearly established to warrant their interference."^ But it has been held that
an order of the interstate commerce commission fixing rates to be charged by a

57. Interstate Commerce Comm. v. Ala- nessee, etc., R. Co. v. Interstate Com-
bama Mid. R. Co., 168 U. S. 144, 43 L. merce Comm., 21 S. Ct. 516, 181 U. S.
Ed. 414, 18 S. Ct. 45. 1, 45 L. Ed. 719. reversing decree, 99 Fed.

58. Interstate Commerce Comm. v. Chi- '""^S, 39 C. C. A. 413.

cago, etc., R. Co., 186 U. S. 320, 46 L. 62. Particular orders of commission.—

Ed. 1182, 22 S. Ct. 824; Louisville, etc., R. Peavey & Co. v. Union Pac. R. Co., 176

Co. V. Behhner, 175 U. S. 648, 44 L. Ed. Fed. 409.

309, 20 S. Ct. 209. 63. Fixing of rates. — Hooker v. Inter-

59. Interstate Commerce Comm. v. state Commerce Comm., 188 Fed. 242;
East Tennessee, etc., R. Co., 85 Fed. 107. Ragle White Lead Co 7'. Interstate Com-

-^ ,. , ,, Ti r-. TT -i. J merce Coinm., 188 l<ed. 256.

60. Norfolk, etc., R. Co. v. United „. ^.r r ,, T^ r- m -^ a
States, 195 Fed. 953. ^ 64. Norfolk etc.. R. Co. v. United

61. Interstate Commerce Comm. v. otates, 195 i'ed. 953.

Clyde Steamship Co., 21 S. Ct. 512. 181 65. Where rate confiscatory.— Southern

U. S. 29, 45 L. Ed. 729. modifying decree, Pac. Co. v. Interstate Commerce Comm.,
93 Fed. 83, 35 C. C. A. 217; East Ten- 177 Fed. 963.



3799 INTERSTATE COMMERCE ACT. § 4180

carrier is not conclusive and exempt from review by the courts merely because
the rates fixed thereby are not confiscatory/'''

Finding Just and Reasonable Rates.— With regard to the finding of the
commission upon the ciiaracter of a rate, whether it is unreasonable as decided,
such decision, the court has said with tiresome rei)etition, is peculiarly the prov-
ince of the commission to make, and that its findings are fortified by presumptions
of truth, due to the judgments of a tribunal appointed by law and informed by
experienced''^ The statute makes the finding of the interstate commerce commis-
sion prima facie correct, and the courts will not examine the facts on which the
interstate commerce commission based its order reducing rates further than to
determine whether there was substantial evidence to sustain the order.*'^ 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 hundred-
weight was prima facie evidence of its own truth .•'» A petition by the interstate
commerce commission for an order of a federal court enjoining a carrier from
making certain charges, which the commission has declared to be unreasonable
and unjust, is authorized by the Interstate Commerce Act, and is not subject to
objection as an attem])t to fix maximum rates; the question of the reasonableness
of the charges complained of being one which the court is required to determine
in such proceeding/"

Finding Discrimination in Rates.— The circuit court should enforce an or-
der of the interstate commission forbidding any discrimination in rates, even
though some discrimination might be justifiable, when the rates actually charged
are unlawful, and the carrier makes no showing as to what would be a lawful
discrimination under the circumstances."^

Finding Discrimination in Long and Short Haul.— The determination of
the commission upon questions of discrimination, under the third section, and on
questions as to the similarity of circumstances and conditions, as affecting the
right to charge a greater amount for a longer than for a shorter haul, under the
fourth section, is not conclusive upon the courts ; but, when the power of the
courts is invoked to enforce the commission's orders, such courts are entitled to

66. Louisville, etc., Railroad r. Inter- Union Pac. R. Co., 222 U. S. 541, 56 L.
state Commerce Comm., 195 Fed. 541. Ed. 308, 32 S. Ct. 108. See, also, Cin-

67. Finding just and reasonable rates. cinnati, etc., R. Co. v. Interstate Com-
— Interstate Commerce Comm. v. Chi- merce Comm., 206 U. S. 142, 51 L. Ed.
cago, etc., R. Co., 218 U. S. 88, 54 L. 995. 27 S. Ct. 648.

Ed. 946, 30 S. Ct. 651; Illinois Cent. R. 69. Judgment, St. Louis, etc.. Grain Co.

Co. V. Interstate Commerce Comm., 206 v. Southern R. Co., 149 Fed. 609, affirmed

U. S. 441, 51 L. Ed. 1128, 27 S. Ct. 700. in 153 Fed. 728, 82 C. C. A. 614.

Findings of the interstate commerce Findings and conclusions of the inter-
commission that certain through rates are state commerce commission that the
unreasonable in themselves carry with transportation of freight by the defend-
them a presumption of correctness. In- ant railroads from New Orleans to La-
terstate Commerce Comm. v. Chicago, grange, and the transportation of like
etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, freight from New Orleans to other and
30 S. Ct. 651; S. C, 218 U. S. 113, 54 more distant points, were under substan-
L. Ed. 959, 30 S. Ct. 660, reversing de- tially similar circumstances and condi-
crees in 171 Fed. 680. tions, and that a higher rate charged to

Where the commission exercises its au- Lagrange than to the more distant points
thority to find existing rates unreason- was discriminative, and also unreasona-
able and undertakes to correct the same ble and unjust in itself, and in violation
by prescribing reasonable rates, its find- of the interstate commerce law, affirmed,,
ing is not subject to be reviewed by the and an order based on such findings en-
court. In other words, an order of the forced by injunction. Interstate Corn-
commission is not open to attack in the merce Comm. v. Louisville, etc., R. Co.,
courts so long as that body has kept 102 Fed. 709.

within the powers conferred by the stat- 70. Interstate Commerce Comm. v. Chi-

ute. Southern Pac. Co. v. Interstate cago, etc., R. Co.. 94 Fed. 272.

Commerce Comm., 219 U. S. 433, 55 L. 71. Finding discrimination in rates. —

Ed. 283, 31 S. Ct. 288. Interstate Commerce Comm. v. Texas,

68. Interstate Commerce Comm. v. etc., R. Co., 6 C. C. A. 653, 57 Fed. 948.



§§ 4180-4181 CARRIERS. 3800

determine these questions upon the pleadings and the evidence adduced before
the commission, and to hear additional evidence, giving effect, however, to the
commission's finding of facts as prima facie evidence of the matters therein
stated.'^ -

Finding Discrimination and Prejudice. — A finding by the interstate com-
merce commission that a rule promulgated by railroad companies, and the prac-
tice thereunder, with respect to a particular kind of traffic, subject shippers to
an undue, unjust, and unreasonable prejudice and disadvantage, and give to the
carriers an undue and unreasonable preference and advantage, is one of fact ; and
an order, based thereon, requiring the companies to desist from maintaining and
enforcing such rule, as in violation of the interstate commerce law, is prima facie
a lawful order, such as a court is required to enforce in a suit instituted for that
purpose. ■^^

Refusing to Annul Demurrage Rule. — Since capacity to sue in the com-
merce court depends on the general equity practice in force in the circuit courts,
and prior to the creation of the commerce court a shipper claiming to be injured
by a ruling of the interstate commerce commission refusing to annul a private car
demurrage rule could have sued in the circuit court to set aside the commission's
ruling, such ruling, though granting no aiifirmative relief, should be construed as
an order of the commission which the commerce court had jurisdiction to review
on petition of the person conceiving himself injured thereby."-* Though it is
proper, if not necessary, for a shipper objecting to a carrier's demurrage rule to
apply first to the interstate commerce commission for relief, the fact that the com-
mission merely dismissed the petition without granting any affirmative relief does
not render its action conclusive, so as to deprive the shipper of the right there-
after to proceed to have the commission's ruling reviewed by the commerce court
on the ground that the demurrage rule was confiscatory as to the shipper, and, if
sustained, would deprive it of its property without due process of law."-"*

Findings in Report of Commission.^ — Findings of fact in a report of the in-
terstate commerce commission are made by law prima facie evidence of the mat-
ters therein stated, and the conclusion of the commission, based upon such find-
ings, that a rate charged by a railroad company between two points is unreason-
able and unjust, is presumed to be well founded and correct, and will not be set
aside unless error clearly appears.'^''

§ 4181. Injunction. — The granting by the commerce court of an injunction
pendente lite, suspending, until determination of the suit, an order of the inter-
state commerce commission, requiring carriers to desist from alleged discrimina-
tory allowances, is not in excess of its power under Act June 18, 1910, § 3 unless
plainly unnecessary.'^' The commerce court, in the exercise of the legal discre-
tion vested in it, will grant a preliminary injunction suspending the operation of
an order of the interstate commerce commission, where it is shown that its en-
forcement will result in the destruction of the business of a large class of ship-
pers in a city and a large loss to them, while the damage which will result to others
from its suspension will be small in comparison. '^^ Only temporary restraining

72. Finding discrimination in long and 76. Findings in report of commission,
short haul. — Interstate Commerce Comm. — Interstate Commerce Comm. v. Louis-
V. Alabama Mid. R. Co., 18 S. Ct. 45, 168 ville, etc., R. Co., 102 Fed. 709.

U. S. 144, 42 L. Ed. 414, affirming de- 77. Injunction. — ^United States v. Bal-

cree, 74 Fed. 715, 21 C. C. A. 51. timore, etc., R. Co., 225 U. S. 306, 56 L.

73. Finding discrimination and preju- Ed. 1100, 32 S. Ct. 817.

dice.— Interstate Commerce Comm. v. '^*- The word "discretion," as used in

Southern Pac. Co., 123 Fed. 597. § 3 of Act June 18, 1910 (36 Stat. 542, c.

74. Refusing to annul demurrage rule. -0?)' ci-eat,ng- the commerce court, means
-Procter, etc., Co. v. United States, 188 ^ [f f.^' discretion, a discretion controlled
Fed 221 '^ hmited by sound principles of law ap-

_ ' _ ' ^ ^^ . , _ plied to the facts in each particular case.

75. Procter, etc., Co. v. United States, Nashville Grain Exch. v. United States,
188 Fed. 221. 191 Fed. 37.



.3801 INTERSTATE COMMERCE ACT. §§ 4181-4183

orders of the commerce court, staying operation of order of the interstate com-
mission, for not more than sixty days, are affected by requirement as to statement
of fact as to irreparable damage, and do not apply to a preHminary injunctions^
Orders made by the interstate commerce commission, which are beyond the power
conferred on it by the statute, are subject to review by the courts, which may en-
join their enforcement.^*' A circuit court in a suit to enjoin the enforcement of a
rate prescribed by the interstate commerce commission does not act as an appel-
late rate making commission, but its office is to see that the commission does not
exceed its powers, and not to determine whether it erred in the exercise of them.
While the court has power to determine whether a rate prescribed is reasonable
or not, the power may be limited by circumstances which do not admit of its ex-
ercise until the proper conditions exist; and the rule by which it is exercise is
that the court will not interfere with the action of the commission, unless it
clearly appears that it is beyond its authority and injuriously affects some sub-
stantial right of the complainant — is confiscatory, to use that term in its broad
sense. Whether it is so or not is the test of reasonableness in such a contro-
versy. ^^

Necessity for Showing- Cause. — On motion for a preliminary injunction to
restrain certain carriers from violating an order of the interstate commerce com-
mission, the complaint made the alternative suggestion that, if the defendants be
allowed to charge and receive present rates, they be required to keep an account
with every shipper, and to pay into the registry of the court the excess to be
disposed of after the hearing as the court may order. This is an application for
a rule nisi, which ought not to be granted unless there is a showing of right in
favor of the complainant, which would authorize the granting of a preliminary
injunction. ^-

Where Right to Preliminary Injunction Denied by Answer. — A prelimi-
nary injunction to compel a carrier to obey an order of the interstate commerce
commission in reference to freight rates should be denied, where the answer de-
nies that the rates defendant charges were unreasonable. "^^

§ 4182. Rehearing. — In proceedings to enforce an order of the interstate
commerce commission, the circuit court can not, on motion for rehearing, sub-
stitute the order made by the commission for an order which the commission
certified it intended to make.^'*

§§ 4183-4189. Review— § 4183. Right of Review.— By § 2 of act, the
right to appeal to the United States supreme court from an order of the com-
merce court issuing a preliminary injunction against the enforcement of the affirm-
ative order of the interstate commerce commission, is given in express terms. ^^

Branch Line to Review Order against Main Line. — A tap line railroad
company which is directly affected by an order respecting allowances made for
services by the trunk line company may have such order reviewed, although it is

79. United States v. Baltimore, etc., R. A preliminary injunction to restrain a
Co., 32 S. Ct. 817, 225 U. S. 306, 56 L. carrier from disobeying an order of the
Ed. 1100. interstate commerce commission will not

80. Chicago, etc., R. Co. v. Interstate be granted in proceedings under 24 Stat.
Commerce Comm., 171 Fed. 680. p. 384, § 16, as amended, when the an-

81. Louisville, etc., R. Co. v. Literstate swer denies the facts on which the or-
Commerce Comm., 184 Fed. 118. der was based. Interstate Commerce

82. Necessity for showing cause. — In- Comm. v. Lehigh Valley R. Co., 49 Fed.
terstate Commerce Comm. v. Cincinnati, 177.

etc., R. Co., 64 Fed. 981. 84. Rehearing. — Interstate Commerce

83. Where right to preliminary injunc- Comm. v. Delaware, etc., R. Co., 64 Fed.
tion denied by answer. — Shinkle, etc., Co. 733.

v. Louisville, etc., R. Co., 62 Fed. 690; 85. Appeal. — United States v. Baltimore,

Interstate Commerce Comm. v. Cincin- etc., R. Co., 225 U. S. 306, 56 L. Ed. 1100,
nati, etc., R. Co., 64 Fed. 981. 32 S. Ct. 817.



§§ 4183-4186 CARRIERS. 3802

not directed against the tap line company but against the trunk line com-
pany.^^

§ 4184. Presumptions on Appeal. — Lack of formal proof to sustain an
order of the interstate commerce commission reducing rates can not be supplied
by a presumption that its findings were supported by the information which the
commission is required by the Act of Feb. 10, 1891, § 12, to obtain in order
to carry out the objects for which it was created. ^'^ The interstate commerce
commission can not be said to have based its order reducing rates upon a mistake
of law in regarding the long maintenance by the carriers of a lower rate while
earning dividends as raising a presumption of reasonableness, where the reduced
rate fixed by the commission was higher than such earlier rate.^^

Reasonableness of Other Rates. — On review of an order of the interstate
commerce commission requiring the reduction of a particular rate by a railroad
company, there is no presumption in favor of the reasonableness of the many
other rates in force, which were not under direct investigation, that will over-
throw substantial evidence that the rate in question was unreasonable.^''

§ 418 5. Harmless Error. — To constitute prejudicial error when an action
at law is tried by the court without a jury, the evidence improperly admitted
must have entered into the result at which the trial court arrived.^"* Where on
writ of error in a suit to enforce a finding of the interstate commerce commission,
the record affirmatively showed that neither the commission nor the circuit
court based any part of the judgment sought to be reviewed on certain evidence
admitted over objection, the admission of such evidence was harmless.^i

^ § 4186. Scope of Review. — The primary jurisdiction is with the commis-
sion, the power of the courts being that of review, and is confined in that review
to questions of constitutional power and all pertinent questions as whether the
action of the commission is within the scope of the delegated authority under
which it purports to have been made.'^^ To quote the language of ]\lr. Justice
Lamar in a late case : "There has been no attempt to make an exhaustive state-
ment of the principle involved, but in cases thus far decided, it has been settled
that the orders of the commission are final unless (1) beyond the power which
it could constitutionally exercise; or (2) beyond its statutory power; or (3)
based upon a mistake of law. But questions of fact may be involved in the
determination of questions of law, so that an order, regular on its face, may be
set aside if it appears that (4) the rate is so low as to be confiscatory and in
violation of the constitutional prohibition against taking property without due
process of law; or (5) if the commission acted so arbitrarily and unjustly as to
fix rates contrary to evidence, or without evidence to support it; or (6) if the
authority therein involved has been exercised in such an unreasonable manner
as to cause it to be within the elementary rule that the substance and not the
shadow, determines the validity of the exercise of the power." ^^ "Beyond con-

86. Branch line to review order against would not necessarily afford a ground for
main line. — Louisiana, etc., R. Co. v. reversal. Here the record affirmatively
United States, 209 Fed. 244. shows that neither the commission nor

87. Presumptions on appeal. — Louisville, the circuit court based any part of the
etc.. Railroad v. Interstate Commerce judgment on the objectionable evidence.
Comm., 195 Fed. 541. Southern R. Co. v. St. Louis, etc., Grain

88. Interstate Commerce Comm. v. Co., 153 Fed. 728, 82 C. C. A. 614.
Union Pac. R. Co., 222 U. S. 541, 56 L. 92. Scope of review.— Interstate Com-
Ed. 308, 32 S. Ct. 108. merce Comm. v. Chicago, etc., R. Co., 218

89. Reasonableness of other rates.— Le- U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651;
high Valley R. Co. v. United States, 204 Interstate Commerce Comm. v. Illinois,
Fed. 986. etc., R. Co., 215 U. S. 452, 54 L. Ed. 280,

90. Harmless error. — Streeter v. Sani- 30 S. Ct. 155.

tary Dist., 66 C. C. A. 190, 133 Fed. 124. 93. Interstate Commerce Comm. v.

91. If it be conceded that this evidence Union Pac. R. Co., 222 U. S. 541, 56 L.
was not within the issues, the ruling Ed. 308, 32 S. Ct. 108, citing Interstate



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 131 of 214)