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3803 interstate; commerce act. § 4186

troversy, in determining whether an order of the commission shall be suspended
or set aside, we must consider (a) all relevant questions of constitutional power
or right; (b) all pertinent questions as to whether the administrative order is
within the scope of the delegated authority under which it purports to have been
made; and (c) a proposition which we state independently, although in its es-
sence it may be contained in the previous one, viz, whether, even though the order
be in form within the delegated power, nevertheless it must be treated as not
embraced therein, because the exertion of authority which is questioned has been
manifested in such an unreasonable manner as to cause it, in truth, to be within
the elementary rule that the substances, and not the shadow, determines the
validity of the exercise of the power." '■'*

Questions of Jurisdiction and Authority. — The interstate commerce com-
mission is purely an administrative body. It is true it may exercise and must
exercise quasi judicial duties, but its functions are defined, and, in the main,,
explicitly directed, by the acts creating it and it is not the final judge of its own
jurisdiction. On the other hand, if it refused to take jurisdiction under a mis-
taken view of the law in a proper case, a mandamus will lie to compel it to take
jurisdiction.^^

Questions of Law and Fact. — In determining mixed questions of law and
fact, the court confines itself to the ultimate question as to whether the commis-
sion acted within its power. It will not consider the expediency or wisdom of
the order, or whether, on like testimony, it would have made a similar ruling.
The findings of the commission are made by law prima facie true, and the federal
supreme court has ascribed to them the strength due to the judgments of a
tribunal appointed by law and informed by experience. Its conclusion, of course,,
is subject to review, but, when supported by evidence, is accepted as final, not
that its decision, involving, as it does, so many and such vast public interest, can
be supported by a mere scintilla of proof, but the courts will not examine the
facts further than to determine whether there was substantial evidence to sustain
the order.^*^ An independent investigation of the facts can not be entered upon
by the supreme court of the United States on appeal from a decree refusing to
demand compliance with an order of the interstate commerce commission, in
order to evolve new and substantive findings of fact upon which the order of the
commission may be sustained, even if the record is in such condition as to permit
such a course. ^"^

Commerce Comm. z; Illinois, etc., R. Co., therefore not within the scope of the com-

215 U. S. 452, 54 L. Ed. 280, 30 b. Ct. 155; mission's powers. Interstate Commerce

Southern Pac. Co. v. Interstate Commerce Comm. v. Humboldt Steamship Co., 224

Comm., 219 U. S. 433 55 L. Ed. 283, 31 S. u. S. 474, 56 L. Ed. 849, 32 S. Ct. 556.
Ct. 288; Interstate Commerce Comm. v. ,.„ ,,. , .. r , j r ^

M^.-+i,^J„ T3^^ T? n^ oir TT c KQQ Ki 96. Mixed questions of law and fact. —

JNortnern l^ac. K. Co., 216 U. o. £)38, 54 ^ , , ^ ^^ ^ tt •

T T7^ ti[\Q on c n*- i\rf. T^f^^ot^o*^^ n^r^ Interstate Commerce Comm. v. Union

L,. h,a. 608, 30 b. Ct. 417 Interstate Com- -^ -r, r^ c.c.c. tt o ^,-, „r- t t-j or.n

merce Comm. v. Alabama Mid. R. Co., 168 l^\ ^r. ?n« l"^' ^u ' r^V^p r '

U. S. 144, 42 L. Ed. 414, 18 S. Ct. 45. 32 S Ct 108 citmg Ilhnois Cent R Co.

Q/i T «-• \\i\ -i- ^„i' „ • •„;^ , ;« '^- Interstate Commerce Comm., 206 U. S.

94. Justice White, delivering opinion in ^ -prl ii9s 97 «; Pt 7nn
Interstate Commerce Comm. v. Illinois, ^^i; ^^ ^- ^^- ^^^^' ^^ ^- *-*• ^°°-

etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, The commerce court is not authorized

30 S. Ct. 155. See, also, Postal Telegraph- to review the determination of disputed

Cable Co. v. Adams, 155 U. S. 688, 39 L. questions of fact by the interstate com-

Ed. 311, 15 S. Ct. 268, 360. merce commission, made after a full and

95. Questions of jurisdiction and au- fair hearing, on proper notice, unless the
thority.— Mandamus lies to compel the in- commission, exercised its power in an ar-
terstate commerce commission to take ju- bitrary and unreasonable manner, or in
risdiction of a petition alleging violations violation of petitioner's constitutional
of the Interstate Commerce Act by a rail- rights. Florida, etc., R. Co. v. United
way company operating in Alaska, where States, 200 Fed. 797.

the commission refused to entertain the 97. Decree 43 C. C. A. 209, 103 Fed.

petition, upon the ground that Alaska was 249, affirmed in Interstate Commerce

not a territory of the United States, and Comm. v. Chicago, etc., R. Co., 22 S. Ct.

that the subject matter of the petition was 824, 186 U. S. 320, 46 L. Ed. 1182.



§ 4186 CARRmRS. 3804

Matters of Record. — On review of an order made after a full hearing on the
ground that it is not sustained by any substantial evidence and that the commis-
sion acted arbitrarily, such issues must be determined exclusively by the record
made before the commission, and new evidence is not admissible."''^

Matters Not Raised before Commission. — The contention that an arrange-
ment between a terminal company and interstate carriers violates the commodity
clause of the Act of June 29, 1906, will not be considered on appeal from the
commerce court to review an order enjoining an order of the interstate com-
merce commission, where such contention is not shown to have been raised be-
fore the commission.^'^ The contention that an arrangement between a terminal
company and certain interstate railway carriers violates the commodity clause of
the Act of June 29, 1906, will not be considered on appeal to the federal supreme
court from the commerce court, to review an order enjoining the enforcement of
an order of the interstate commerce commission, where there is nothing in the
record showing that such a contention was pressed upon the commission or con-
sidered by that body, or that the order rendered was in any event based upon the
commodity clause, especially where the assumption that the order was based
upon that clause would necessitate the conclusion that the commission by its
order gave sanction to and permitted the continuance of the wrong which its
powers were exercised to suppress.^

Matters of Discretion. — The courts can not, under the guise of exerting
judicial power, usurp merely administrative functions by setting aside an order
of the interstate commerce commission within the scope of the power delegated
to such commission, upon the ground that such power was unwisely or inexpedi-
ently exercised.- Arguments which point out and assail the imperfection which
may appear in the result, assail, it is said, the wisdom of congress in conferring
upon the commission the power which has been lodged in that body to consider,
complaints as to violations of the statute, and to correct them if found to exist,
or attack as crude or inexpedient the action of the commission in the performance
of the administrative functions vested in it, and upon such assumption invoke
the exercise of unwarranted judicial power to correct the assumed evils. ^ Al-
though the order made by the commission may have been couched in a form
which would cause it, superficially considered, to appear to be but the exercise
of an authority to correct an unreasonable rate, yet if it plainly results from
the record that the order of the commission was not the exercise of such an au-
thority, but was based upon the assumption by that body of the possession of a
power not conferred by law, the mere form given by the commission to its action
does not relieve the courts from the duty of reviewing and correcting an abuse
of power. ^ Where the order entered by the commission shows on its face that
that body assumed that it had power not merely to prevent the charging of un-
just and unreasonable rates, but also to regulate and control the general policy
of the owners of railroads as to fixing rates, and consequently that there was
authority to substitute for a just and reasonable rate one which, in and of itself,
in a legal sense, might be unjust and unreasonable, if the commission was satis-
fied that it was a wise policy to do so, because a railroad had so conducted itself

98. Matters of record. — Louisiana, etc., 30 S. Ct. 163; Baltimore, etc., R. Co. v.
R. Co. V. United States, 209 Fed. 244. Pitcairn Coal Co., 215 U. S. 481, 54 L.

99. Matters not raised before commis- Ed. 292, 30 S. Ct. 164.

sion — United States v. Baltimore, etc., R. 3. Interstate Commerce Comm. v. Chi-

Co., 231 U. S. 274, 34 S. Ct. 75. cago, etc., R. Co., 218 U. S. 88, 54 L. Ed.

1. United States v. Baltimore, etc., R. 946, 30 S. Ct. 651; Interstate Commerce

Co , 231 U. S. 274, 34 S. Ct. 75. Comm. v. Illinois, etc., R. Co., 215 U. S.

2.' Matters of discretion.— Interstate 452, 54 L. Ed. 280, 30 S. Ct. 155; Balti-

Commerce Comm. v. Illinois, etc., R. Co., more, etc., R. Co. v. Pitcairn Coal Co.,

215 U. S. 452. 54 L. Ed. 280, 30 S. Ct. 215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164.

155; decree, Chicago, etc., R. Co. v. In- 4. Southern Pac. Co. v. Interstate Com-

terstate Commerce Comm., 173 Fed. 930, merce Comm.. 219 U. S. 433, 55 L. Ed.

reversed in 215 U. S. 479, 54 L. Ed. 291, 283, 31 S. Ct. 288.



3805



INTERSTATE COMMERCE ACT.



§§ 4186-4187



as to be estoi)ped in the future from being entitled to receive a just and reason-
able coni]iensation for the service rendered, it shows that the commission has
been guilty of an abuse of power which the courts have jurisdiction to review
and correct. ■''

'f^" Finding- of Discrimination. — Findings of fact made by the interstate com-
merce commission in a proceeding for redress for unlawful discrimination in rail-

,/way rates are not open to review in the courts.*^

^ Finding- of Establishment of Through Route. — The courts may review the
determination of the interstate commerce commission upon the Cjuestion whether
a reasonable or satisfactory through route exists within the meaning of the Act
of June 29, 1906, conditioning the authority of the commission to establish
through routes and joint rates upon the nonexistence of such route.'^

Finding That Railroad Is Industrial Track. — A finding of fact that a tap
railroad, as to a proprietary company, is a mere plant facility, is reviewable only
on an allegation that it is not supported by any substantial evidence or that it is
arbitrary.^

§ 4187. Modification of Decree of Court. — Where an error was made in
rates at a certain point by basing same on an error of fact, which was corrected
by the companies on its being brought to their notice by the commission and at
the hearing before the court, and a modified tarifi^ was put into operation by the
railroad companies at once, immecHately after the argument of the case in the
circuit court of appeals, and continued in force from that time, the decree below
having been entered more than one year after the submission of the cause, and
the relief sought by the complaint and that accorded by the commission was in-
consistent with the theory that the rates should be based on either of these states
of fact, as the altered tariff had been in force more than one year prior to the
entry of the decree below, the court doubtless considered it unnecessary to
provide for its continuance. The record does not disclose, nor was it suggested,
that any application was made to the circuit court of appeals to modify its decree
so as to direct the continuance of such new tarifif, both parties evidently acting
on the reasonable assumption that it was an accomplished fact. Under these cir-
cumstances, a formal modification of the decree of the circuit court of appeals is
not required.^



5. Southern Pac. Co. v. Interstate Com-
merce Comm., 219 U. S. 433, 55 L. Ed.
283, 31 S. Ct. 288.

Thus where a railroad company fixed
a rate of $3.10 per ton upon lumber
shipped from a certain locality and con-
tinued it in force for several years and
until the industry had grown and reached
considerable proportions in that locality,
the commission had no power to abolish
a new rate of $5.00 per ton where such
rate was not shown to be unreasonable of
itself, but merely upon the ground that
the prosperity of the luml)er business in
that locality would be seriously impaired
by the enforcement of the new rate, and
that the railroad company, having estab-
lished a rate under which the industry
had grown up, was now estopped from
fixing a rate which, while not unreason-
able for the service rendered, would im-
pair the prosperity of the business which
had grown up under the old rate. South-
ern Pac. Co. V. Interstate Commerce
Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S.
Ct. 288.

6. Finding of discrimination. — Interstate
Commerce Comm. v. Delaware, etc., R.



Co., 220 U. S. 235, 55 L. Ed. 448, 31 S.
Ct. 392, reversing decree 166 Fed. 499, cit-
ing Baltimore, etc., R. Co. v. Pitcairn Coal
Co., 215 U. S. 481, 54 L. Ed. 292, 30 S.
Ct. 164; Interstate Commerce Comin. v.
Chicago, etc., R. Co., 218 U. S. 88, 54 L.
Ed. 946, 30 S. Ct. 651; Interstate Com-
merce Comm. V. Illinois, etc., R. Co., 215
U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155;
Interstate Commerce Comm. v. Union
Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308,
32 S. Ct. 108.

7. Establishment of through route. — In-
terstate Commerce Comm. v. Northern
Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608,
30 S. Ct. 417.

8. Finding that railroad is industrial
track. — Arbitrary action in such case can
lie predicated only on a disregard by the
commission of the very criteria which it
adopts to determine the ultimate question
of fact or on the adoption in dififerent
cases of distinctions without real differ-
ences. Louisiana, etc., R. Co. v. United
vStates, 209 Fed. 244.

9. Modification. — Interstate Commerce
Comm. V. Louisville, etc., R. Co., 190 U.
S. 273, 47 L. Ed. 1047, 23 S. Ct. 687.



§ 4188 CARRIERS. - 3806

§ 4188. Remand to Commission. — Where, so far as the reasonableness
per se of the rates was concerned, in the consideration of this question the com-
mission had been in effect controlled by its finding, held to have been erroneous^
that there had been violations of the third and fourth sections of the act, the
controversy, in so far as the intrinsic reasonableness of the rates was concerned,
should not be foreclosed, but should be left for further consideration and decision
upon the evidence already introduced and such additional evidence as might be
taken on a further hearing before the commission if such new hearing was de-
sired. After deciding that the orders of the commission were not entitled to
be enforced, because of errors of law committed by that body, this court de-
clined to consider the question of the reasonableness per se of the rates as an brig-
inal question ; in other words, the correction of the established schedule without
previous consideration of the subject by the commission. It was pointed out that
by the eft'ect of the act to regulate commerce it was peculiarly within the province
of the commission to primarily consider and pass upon a controversy con-
cerning the unreasonableness per se of the rates fixed in an established schedule.
It was, therefore, declared to be the duty of the courts, where the commission
had not considered such a disputed question, to remand the case to the commission
to enable it to perform that duty, a conclusion wholly incompatible with the con-
ception that courts, in independent proceedings, were empowered by the act to
regulate commerce, equally with the commission, primarily to determine the rea-
sonableness of rates in force through an established schedule.^" "We do not, of
course, mean to imply that the commission may not directly institute proceedings
in a circuit court of the United States charging a common carrier with disregard
of provisions of the act, and that thus it may become the duty of the court to
try the case in the first instance. Xor can it be denied that, even when a petition
is filed by the commission for the purpose of enforcing an order of its own, the
court is authorized to 'hear and determine the matter as a court of equity,'

10. Texas, etc., R. Co. v. Abilene Cotton holding clearly implies that there was
Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 power in the courts below to consider and
S. Ct. 350, 9 Am. & Eng. Ann. Cas. 1075. apply the evidence and in this court to
The cases of Cincinnati, etc., R. Co. v. In- review their decisions. Interstate Com-
terstate Commerce Comm.. 162 U. S. 184, merce Comm. v. Alabama Mid. R. Co., 168
40 L. Ed. 935, 16 S. Ct. 700; Louisville, U. S. 144, 42 L. Ed. 414, 18 S. Ct. 45.
etc., R. Co. V. Behlmer, 175 U. S. 648, 44 So in the case of Texas, etc., R. Co. v.
L. Ed. 309, 20 S. Ct. 209, and Interstate Interstate Commerce Comm., 162 U. S.
Commerce Comm. v. Louisville, etc., R. 197, 40 L. Ed. 940, 16 S. Ct. 666, the de-
Co., 190 U. S. 273, 47 L. Ed. 1047, 23 S. cision of the circuit court of appeals.
Ct. 687, involved the enforcement against which affirmed the validity of the order
carriers of orders of the commission. of the commission, upon the ground that,

In the case of Cincinnati, etc., R. Co. v. even if ocean competition should be re-
Interstate Commerce Comm., 162 U. S. garded as creating a dissimilar condition,
184, 40 L. Ed. 935. 16 S. Ct. 700, the find- yet that, in the case under consideration,
ings of the commission were overruled by the disparity in rates was too great to be
the circuit court, after additional evidence justified by that condition, was reversed
taken in the court, and the decision of the by this court, not because the circuit court
circuit court was reviewed in the light of had no jurisdiction to consider the evi-
the evidence and reversed by the circuit dence and thereupon to affirm the validity
court of appeals, and this court, in refer- of the order of the commission, but be-
ence to the argument that the commission cause that issue was not actually before
had not given due weight to the facts that the court, and that no testimony had been
tended to show that the circumstances adduced by either party on such an issue;
and conditions were so dissimilar as to and it was said that the language of the
justify the rates charged, held that as the act authorizing the court to hear and de-
question was one of fact, peculiarly within termine the matter as a case of equity,
the province of the commission, and as its "necessarily implies that the court is not
conclusions had been accepted and ap- concluded by the findings of conclusions
proved by the circuit court of appeals, and of the commission." Interstate Commerce
as this court found nothing in the record Comm. v. Alabama Mid. R. Co., 168 U-
that made it our duty to draw a different S. 144, 42 L. Ed. 414, 18 S. Ct. 45. See,
conclusion, the decree of the circuit court also, Louisville, etc., R. Co. v. Behlmer,
of appeals should be affirmed. Such a 175 U. S. 648, 44 L. Ed. 309, 20 S. Ct. 209.



3807 interstate: commerce act. §§ 4188-4189

which necessarily implies that the court is not concluded by the findings or con-
clusions of the commission ; yet as the act provides that, on such hearing, the
findings of fact in the report of said commission shall be prima facie evi-
dence of the matters therein stated, we think it plain that if, in such a case, the
commission has failed in its proceedings to give notice to the alleged offender,
or has unduly restricted its inquiries upon a mistaken view of the law, the court
ought not to accept the findings of the commission as a legal basis for its own
action, but should either inquire into the facts on its own account, or send the
case back to the commission to be lawfully proceeded in."' ^^ Where the inter-
state commerce commission refuses to weigh the evidence in regard to competi-
tion, merely because the competition is wholly between carriers who are sub-
ject to the act, the proper practice in this court is to dismiss the petition filed to
enforce the order of the commission, and remand the case to the commission,
without prejudice to the right of any party in interest to apply to the commission
to proceed, on the evidence already introduced before it, or on such evidence as
it may allow to be introduced, to hear and determine the matter in controversy
in conformity to law.^-

Where Commission Misconceived Its Powers. — If the circuit court of
appeals was of opinion that the commission in making its order had misconceived
the extent of its powers, and if the circuit court had erred in affirming the validity
of an order made under such misconception, the duty of the circuit court of
appeals was to reverse the decree, set aside the order, and remand the cause
to the commission, in order that it might, if it saw fit, proceed therein according
to law. The defendant was entitled to have its defense considered, in the first
instance, at least, by the commission upon a full consideration of all the circum-
stances and conditions upon which a legitimate order could be founded. The
questions whether certain charges were reasonable or otherwise, whether certain
discriminations were due or undue, were questions of fact, to be passed upon by
the commission in the light of all facts duly alleged and supported by competent
evidence, and it did not comport with the true scheme of the statute that the cir-
cuit court of appeals should undertake, of its own motion, to find and pass
upon such questions of fact, in a case in the position in which the present one
was.^''

Where Commission Erroneously Declined to Find Facts. — Where the
commission by reason of its erroneous construction of the statute has in a
case to it presented declined to adequately find the facts, it is the duty of the
courts, on application being made to them to enforce the erroneous order of the
commission, not to proceed to an original investigation of the facts which should
have been passed upon by the commission, but to correct the error of law com-
mitted by that body, and after doing so to remand the case to the commission so
as to aff'ord it the opportunity of examining the evidence and finding the facts as
required by law.^^

§ 4189. Supersedeas Pending Appeal.— The provision of the act, under
which resort to the circuit court can be had for the enforcement of lawful orders
or requirements of the interstate commerce commission, provides that, when the
subject in dispute shall be of the value of two thousand dollars or more, either

11. Texas, etc., R. Co. z\ Interstate .109. 20 S. Ct. 209.

Commerce Comm., 162 U. S. 197, 40 L. 14. Where commission erroneously de-
Ed. 940, 16 S. Ct. 666. clined to find facts. — Interstate Commerce

12. Interstate Commerce Comm. v. Comm. v. Clyde Steamship Co., 181 U. S.
Southern R. Co., 105 Fed. 703. 29, 45 L. Ed. 729. 21 S. Ct. 512; East

13. Where commission misconceived its Tennessee, etc., R. Co. v. Interstate Corn-
powers.— Texas, etc.. R. Co. T'. Interstate merce Comm., 181 U. S. 1, 45 L. Ed. 719,
Commerce Comm., 102 U. S. 197, 40 L. 21 S. Ct. 516; Louisville, etc., R. Co. v.
Ed. 940, 16 S. Ct. 066; Louisville, etc.. R. Behlmer. 175 U. S. 648, 44 L. Ed. 309, 20
Co. V. Behlmer, 175 U. S. 648, 44 L. Ed. S. Ct. 209.



§§ 4189-4192 CARRIERS.

party to such proceeding before said court may appeal to the supreme court of
the United States, under the same regulations now provided by law in respect
of security for such appeals ; but such appeals shall not operate to stay or su-
persede the order of the court, or the execution of any writ or process thereon.
Such provision of the act to regulate commerce relates only to the effect of an
appeal, and it does not deprive the circuit courts of their right of control over
their own decrees during the term at which they are rendered, and before an
appeal is prayed. ^^ The provision of § 16 of the Interstate Commerce Act
providing that, in proceedings thereunder to enforce an order of the commission,,
an appeal shall not operate to stay or supersede the order of the court appealed
from, is merely declaratory of the general rule in equity, and does not affect
the power of the court, under equity rule 93, to grant a stay pending appeal, in
its discretion. i<^ The enforcement of an order of the interstate commerce com-
mission will be suspended pending an appeal from the commerce court sustain-
ing the order when it is proper from the facts of the case to maintain the status



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 132 of 214)