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

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shipper who has been charged a rate, not alleged to be unreasonable, to recover
from a carrier what he claims is an excess over what was charged other shippers
of similar goods to some point from the same or greater distance on its line or
lines under a common control, is based entirely on a statute, and to enforce what
IS in its nature a penalty. He is only seeking to recover money which he alleges
is due, not because of any unreasonable charge, but on account of the wrongful
conduct of the defendant. Therefore, he is bound by the rule of strict proof.
Before, therefore, the plaintiff can recover of this defendant for alleged viola-
tions of the Interstate Commerce Act, he must make a case showing not by way of
inference but clearly and directly such violations. No violation of statute is to
be presumed.^^ To support an action by a shipper against a carrier under § 8
of the Interstate Commerce Act, he must show either that there has been some
unreason?ble or excessive charge imposed or some unlawful discrimination
practiced against him by which he has been pecuniarily damaged, and he can not
recover, on a merely technical construction of the law, because, in addition to the
ordinary scheduled rate, an extra charge for icing service, also shown by the
schedules, but separately, has been collected from him, where such charge is not
shown to be unreasonable and has not been so held by the interstate commerce
commission.-*^ In an action against a railroad company for damages from fail-
ure to make connections with a certain train so as to get plaintiff's baggage at
destination at a certain time, the burden was on defendant to show that the
contract of carriage was illegal, as violating the federal statutes.^ -

§ 4207. Evidence. — Report of Commission. — And it is competent for
the circuit court, in dealing with the issues raised by a petition of the commis-

37. Taenzer & Co. z'. Chicago, etc., R. 39. Issues, proof and variance. — United
Co., 191 Fed. 543. States v. Norfolk, etc., R. Co., 109 Fed.

38. Taenzer & Co. v. Chicago, etc., R. 831.

Co., 191 Fed. .543, citing Railway Co. v. 40. Presumptions and burden of proof.

McCarthy. 96 U. S. 258, 24 L. Ed. 693; —Parsons 7'. Chicago, etc., R. Co., 167 U.

Davis V. Wakelee, 156 U. S. 680, 39 L. S. 447, 42 L. Ed. 231. 17 S. Ct. 887.

Ed. 578, 15 S. Ct. 555; Oakland vSugar 41. Knudsen-Ferguson Fruit Co. v.

Mill Co. V. Wolf Co., 55 C. C. A. 93, 118 Michigan Cent. R. Co., 148 Fed. 968, 79

Fed. 239; Snyder v. Supreme Ruler, 122 C. C. A. 46.

Tenn. 248, 122 S. W. 981; Cheek v. Mer- 42. Altschuler v. Atchison, etc., R. Co.,

chants' Nat. Bank, 56 Tenn. (9 Heisk.) 154 Wis. 146, 144 N. W. 294.


3831 INTERSTATE COMMERCE ACT. §§ 4207-4209

sion and the answers thereto, and for the circuit court of appeals on the appeal,
to determine the case upon a consideration of the allegations of the parties and
of the evidence adduced in their support, giving effect, however, to the findings
of fact in the report of the commission as prima facie evidence of the matters
therein stated.*^

Evidence Introduced before Commission. — It has been uniformly held by
the several circuit courts and the circuit courts of appeal, in cases involving
issues of fact that they are not restricted to the evidence adduced before the
commission, nor to a consideration merely of the power of the commission to
make the particular order under question, but that additional evidence may be
put in by either party, and that the duty of the court is to decide, as a court of
equity, upon the entire body of evidence.'*"' In one case the supreme court said :
"We think this a proper occasion to express disapproval of such a method of
procedure on the part of the railroad companies as should lead them to withhold
the larger part of their evidence from the commission, and first adduce it in the
circuit court. The commission is an administrative board, and the courts are
only to be resorted to when the commission prefers to enforce the provisions of
the statute by a direct proceeding in the court, or when the orders of the com-
mission have been disregarded. The theory of the act evidently is, as shown
by the provision that the findings of the commission shall be regarded as prima
facie evidence, that the facts of the case are to be disclosed before the commis-
sion. We do not mean, of course, that either party, in a trial in the court, is to
be restricted to the evidence that was before the commission, but that the pur-
poses of the act call for a full inquiry by the commission into all the circum-
stances and conditions pertinent to the questions involved."-*"^

§ 4208. Reference. — The final decree of a federal circuit court in the pro-
ceedings prosecuted under Act Feb. 4, 1887, § 16, after action by the interstate
commerce commission declaring an increased freight rate to be unreasonable,
may direct an order of reference to the standing master of the pleadings and
evidence in the cause, with instructions to ascertain the sum of the increase in
rates paid since the rate went into efifect, where defendants stipulated in open
court that, in case complainants prevailed, a decree of restitution might be made.-*<^

§ 4209. Judgment and Orders.— On Finding of Commission.— The cir-
cuit court granted no relief prejudicial to the carrier on the original bill, but
sent the parties to the interstate commerce commission, where, upon sufficient
pleadings, identical with those before the court, and upon testimony adduced
upon the issues made, the decision was adverse to the carrier, and this action of
the commission, with its findings and conclusions, was presented to the circuit
vourt, and it was upon these, in effect, the decree of the court was rendered.
There was no demurrer to that petition, and the testimony taken before the com-
mission was stipulated into the case, and the opinion of the court recites that,
"with equal meritorious purpose, counsel for the respective parties,^ agreed that
this would stand for anrl be the hearing for final decree in equity." ^'^

Operation and Effect.— A decree which ordered the carrier to desist from
charging a greater compensation for the lesser than for the longer haul, would

43. Evidence. — Interstate Commerce Ed. 9r;5, in S. Ct. 700.

Comm. V. .\labama Mid. R. Co., 168 U. S. 46. Reference.— Southern R. Co. v TiiU

144 43 L I'd 414. IS S. Ct. 45. 206 U. S. 438, 51 L. Ed. 1124, 27 S^ Ct.

44. Evidence introduced before commis- 709, 11 Am. & Eng. Ann. Cas. 846, affirm-
sion.— Interstate Commerce Comm. v. ing K'.s Eed. 7.-):).

Alabama Mid. R. Co., 168 U. S. 144, 42 47. Judgment and orders.— Southern R.

L Ed 414 18 S Ct 45 Co. V. Tift. 206 U. S. 438, 51 L. Ed. 1124,

45. Cincinnati, etc., R. Co. v. Interstate 27 S. Ct. 709, 11 Am. & Eng. Ann. Cas.
Commerce Comm., 163 U. S. 184, 40 L. 846.

§§ 4209-4212 CARRIERS. 3832

be in no way responsive to the conclusion that the rate for the lesser distance
was unreasonable in and of itself. Such a decree would in effect authorize the
carrier to continue to charge at its election a rate which was in itself unreason-
able to the shorter point.^^

Restraining Order.' — A restraining order that neither forl)ids nor com-
mands the doing of any specific act, but simply repeats the general admonitions
of the Interstate Commerce Act, should not be granted, since such an injunction
does not give any additional sanction to the statute, but leaves ah vital questions
concerning violations of the law to be tried by proceedings for contempt, instead
of being tried in the usual manner before a court and jury."*^

§ 4210. Costs. — Where a proceeding to restrain certain carriers and ship-
pers from giving and receiving rebates on interstate shipments was instituted at
the direction of the attorney general, who retained special counsel nominated by
the informing witness, and defendants made no application for a stay of pro-
ceedings in order to object to the appearance of such special counsel, they were
not entitled to a dismissal on the ground that prosecutor 'had agreed with the
attorney general to bear a deficiency in the expense of the prosecution after ap-
plying the balance of the attorney general's appropriation applicable to that pur-
pose.s^^ -piie provision in § 8 allowing against an offending initial carrier, to a
shipper reasonable attorney's fees in an action for loss of goods, shipped in
interstate trade, constitutes a valid regulation of interstate commerce. ^^

§ 4211. Stipulation of Parties. — There is nothing in the act which pre-
cludes the parties, after action by the commission declaring rates unreasonable,
from stipulating in the proceedings prosecuted under § 16 that the court adjudge
the amount of reparation. By the action of the commission the foundation for
reparation, as provided in the Interstate Commerce Act, was established, and the
inquiry submitted to the court was but of its amount, and had the natural and
justifiable inducement to end all the controversies between the parties without
carrying part of them to another tribunal. The objection that the reference is
too broad is not of substance. AA'hat the court may award upon the coming in
of the report of the master can not be kaown. Presumably it will make the repa-
ration adequate for the injury, and award only the advance on the old rate and
to those who are parties to the cause.-^^

§§ 4212-4217. Proceedings in Commerce Court— § 4212. Statutory
Provision.- — The act creating the commerce court was intended to be but a part
of the existing system for the regulation of interstate commerce, which was es-
tablished by virtue of the original adoption in 1887 of the act to regulate com-
merce, and which was expanded by the repeated amendments of that act which
followed, developed in practical executions by the rulings of the interstate com-
merce commission, upon whom was cast the administrative enforcement of the
act, the whole elucidated and sanctioned by a long line of decisions of the fed-
eral supreme court, and by adopting the provisions concerning the commerce
court and making it part of the system, it was not intended to destroy the ex-
isting machinery or method of regulation, but to cause it to be more efficient by
affording a more harmonious means for securing the judicial enforcement of the

48. Operation and effect. — Interstate 50. Costs. — United States v. Milwaukee,
Commerce Comm. v. Louisville, etc., R. etc.. Trans. Co., 145 Fed. 1007.

Co.. 190 U. S. 273, 47 L. Ed. 1047, 23 S. gj^ Riverside Mills v. Atlantic, etc., R.

Ct. 687; East Tennessee, etc., R- Co. v. (.^^ jgg pg^_ gg^

Interstate Commerce Comm., 181 U. S. 1, ^^ Stipulation of parties.-Southern R.

4^' lestrainin/o?der Southern Pac Co. v. Tift. 206 U. S. 428, 51 L. Ed. 1124,

49. Restraining order.-bouthern Fac. ^^ ^ ^^ ^^^^ ^^ ^^^ ^ ^^^_ j^^^ ^^^^

Co. V. Colorado, etc.. Iron Co., 42 C *-. oaq
A. 13, 101 Fed. 779.

3833 interstate; commerce act. • §§ 4212-4214

act to regulate commerce.^^ The first section of the act creating the commerce
court, wherein is recited the jurisdiction of the commerce court, makes clear that
the purpose was not to create a court with new and strange powers destructive
of the previous well-established administrative authority of the interstate com-
merce commission and in conflict with the general jurisdiction vested in the courts
of the United States, but only to give to the new court the special jurisdiction
then possessed by the courts of the United States for the enforcement of orders
made by the commission, and thus to unify the exertion of judicial powder with
reference to the enforcement of the orders of the commission. The opening
words of the section wdiich make this result clear are as follows: It (the com-
merce court) shall "have the jurisdiction now^ possessed by the circuit courts of
the United States and the judges thereof, over all cases of the following kinds,"
etc.""* The declaration in the act that nothing in the fact that the existing power
of the circuit courts as to the subjects of jurisdiction transferred to the new
court should be deemed as an enlarging of those powers, and that nothing in
the transfer of the enumerated powers to the commerce court should be con-
sidered as limiting or abridging the existing jurisdiction possessed by the circuit
courts as to things and subject matters not embraced in the powers transferred,
serve to make clear the legislative intent that the creation of a new body to ex-
ercise a portion of the existing judicial powder should not in any way enlarge
the power as existing or be implied as destroying or minimizing the general scope
of the judicial power possessed by the circuit courts w^here such power was not
embraced within the authority transferred to the new body.^-^

§ 4213. Jurisdiction in General. — If the claim of constitutional right con-
cerned a subject which, from its very nature and effect, dominated the act to
regulate commerce and therefore was wholly independent of all questions of
right or remedy created by or depending upon that statute, then the issue pre-
sented a controversy not cognizable in the commerce court, as it could not so be
without violating the express reservation and restriction as to the general power
of the circuit courts contained in the act. If, on the other hand, the constitu-
tional question was involved in or depended upon the provisions of the act to
regulate commerce, that question in the nature of things was subject to the pre-
cedent action of the commission on the subjects committed to it by the act to
regulate commerce and as to which the court had jurisdiction alone to act in vir-
tue of a prior affirmative order of the commission.-'''^ The commerce court has
no jurisdiction to consider a question of car distribution in advance of action
by the interstate commerce commission, on complaint of a shipper who claims
that connecting carriers discriminate against him in refusing freight.-^"

§ 4214. Power to Enforce or Enjoin Orders of Commission. — The Act

of June 18, 1910, confers on the commerce court jurisdiction previously pos-

53. Proceedings before commerce court. Ed. 280, 30 S. Ct. 155; Interstate Com-

— Procter, etc.. Co. v. United States, 225 merce Comm. v. Union Pac. R. Co., 223

U. S. 282, 56 L. Ed. 1091, 32 S. Ct. 761. U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108;

"The authority conferred by congress Procter, etc., Co. v. United States, 225 U.

-upon the commerce court (act of June 18, S. 282, 56 U Ed. 1091, 32 S. Ct. 761; In-

1910; 36 Stat. 539, c. 309; Judicial Code, terstate Commerce Comm. v. Bahimore,

§ 207) with respect to enjoining or setting etc., R. Co., 225 U. S. 326, 56 L. Ed. 1107,

aside the orders of the commission, like 32 S. Ct. 742, Ann. Cas. 1914A_, 504.

the authority previously exercised l)y the 54. Procter, etc., Co. v. United States,

federal circuit courts, was confined to de- 225 U. S. 282, 56 L. Ed. 1091, 33 S. Ct.

termining whether there had been viola- 761.

tions of the constitution, or of the power con- 55, Procter, etc., Co. v. United States,

ferred by statute, or an exercise of power 225 U. S. 283, 56 L. Ed. 1091, 32 S. Ct. 761.

so arbitrary as virtually to transcend the 56. Jurisdiction in general. — Procter, etc.,

authority conferred." Kansas, etc., R. Co. Co. v. United States, 225 U. S. 282, 56 U

V. United States, 231 U. S. 423, 34 S. Ct. Ed. 1091, 32 S. Ct. 761.

125, citing Interstate Commerce Comm. z^. 57. Stony Eork Coal Co. v. Louisville,

Illinois, etc., R. Co., 215 U. S. 452, 54 U etc., R. Co., 195 Fed. 88.

§ 4214 • CARRIERS. 3834

sessed by the circuit courts of the United States of cases brought to enjoin, set
aside, annul, or suspend any order of the interstate commerce commission, also
authorizing the commerce court to exercise any and all powers of the circuit
court of the United States so far as may be appropriate to the effective exercise
of the jurisdiction conferred, and that nothing contained in the act shall be con-
strued as enlarging the jurisdiction previously possessed by the courts thereby
transferred to and vested in the commerce court; the jurisdiction so far as con-
ferred, however, being exclusive, and so far as not conferred being reserved. •''^
The words in this second subdivision are:' "Second. Cases brought to enjoin,
set aside, annul, or suspend in whole or in part any order of the interstate com-
merce commission." Giving to these words their natural significance, it follows
that they confer jurisdiction only to entertain complaints as to affirmative or-
ders of the commission; that is, they give the court the right to take cognizance
when pro]:)erly made of complaints concerning the legality of orders, rendered
by the commission and confer power to relieve parties in whole or in part from
the duty of obedience to orders which are found to be illegal. They do not in-
vest that court with jurisdiction to redress complaints based exclusively upon
the conception that the interstate commerce commission, in a matter submitted
to is judgment, and within its competency to consider, has mistakenly refused,
upon the ground that no right to the relief claimed was given by the act to regu-
late commerce, to award the relief which was claimed at its hands. In other
words, the authority of the commerce court under the provision of the statute is
confined to enforcing or restraining, as the case may require, affirmative orders
of the commission, and it has no power to exert its own judgment by originally
interpreting the administrative features of the act to regulate commerce and
upon that assumption treat a refusal of the commission to grant relief as an af-
firmative order and accordingly pass on its correctness. That this is the proper
construction of the act is further made to appear by reading this second subdi-
vision of § 207 in connection with the first. The first subdivision provides for
the enforcement of orders, that is, the compelling of the doing or abstaining from
doing of acts embraced by a previous affirmative command of the commission,
and the second dealing with the same subject from a reverse point of view, pro-
vides for the contingency of a complaint made to the court by one seeking to
prevent the enforcement of orders of the commission such as are contemplated
by the first paragraph. In other words, by the co-operation of the two para-
graphs, authority is given on the one hand to enforce compliance with the or-
ders of the commission if lawful, and, on the other hand, power is conferred to
stay the enforcement of an illegal order, which must, in the nature of things,
mean an affirmative order as in the other case.'"^^^

Temporary Injunction. — The granting by the commerce court of an injunc-
tion pendente lite suspending, until final determination of the suit, an order of
the interstate commerce commission, requiring certain carriers to desist from
making further alleged discriminatory allowances, is not in excess of its power,
under the Act of June 18, 1910, § 3, unless it was plainly unnecessary because
of the obvious nature and character of the legal questions as to which the judg-
ment of the court was invoked.*''^

Construction of Order. — The findings of the interstate commerce commis-
sion on which it bases an order requiring carriers to cease and desist from mak-
ing certain charges as unreasonable and unjust, which are made prima facie evi-
dence of the facts therein stated on the hearing of a petition by the commission
asking a court to enjoin obedience to such order, will not, in view of the terms

58. Power to enforce or enjoin orders of 225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct.
commission. — Procter, etc., Co. v. United 761.

States, 188 Fed. 221. 60. Temporary injunction. — United

59. Procter, etc., Co. v. United States, States v. Baltimore, etc.. R. Co., 225 U.

S. 306, 56 L. Ed. 1100, 32 S. Ct. 817.

3835 INTERSTATE COMMERCE ACT. §§ 4214-4215

of the statute and its remedial character, be given a narrow construction on the
hearing of a demurrer to the petition on the ground that such findings do not
sustain the order made/'^

§ 4215. Power to Enforce or Enjoin Particular Orders of Commission.
—Grant of Relief against Demurrage Charge.— The jurisdiction of the com-
merce court under the Judicial Code of March 3, 1911, of cases brought to en-
join, set aside, annul, or suspend, in whole or in part, any order of the interstate
commerce commission, embraces only complaints of affirmative action by the com-
mission, and does not confer the power to redress a complaint based solely upon
the refusal of the commission to award the relief asked by a shipper against de-
murrage regulations, upon the ground that the federal statutes gave no right to
the relief claimed. The commerce court has no right in such case to treat the
order denying relief as an affirmative order and take jurisdiction of a petition
filed in that court, making the United States, the interstate commerce commission,
and_ the railroad parties defendant and praying the same relief which had been
denied by the commission.'^- To give to this section of the statute a meaning con-
trary to that above stated and to recognize in the commerce court the existence
of the power to interpret originally the administrative features of the act to regu-
late commerce, and to treat the refusal of the commission to grant relief prayed
for as an affirmative order and renew it accordingly would result in frustrating
the legislative public policy which led to the adoption of the act to regulate com-
merce, would render impossible a resort to the remedies which the statute was
enacted to afi'ord, would multiply the evils which the act to regulate commerce
was adopted to prevent, and thus bring about disaster by creating confusion and
conflict where clearness and unity of action was contemplated.''^

Reduction of Rates. — The commerce court has no jurisdiction of a com-
plaint by shippers of the refusal of the interstate commerce commission to re-
duce maximum rates to the full extent asked.^^

Discrimination. — The commerce court may enjoin the performance of a
contract offending the provisions of the Interstate Commerce Act, intended to
prevent undue advantage or unlawful discrimination.*^''

Allowances to Shipper. — The commerce court has the right to entertain
jurisdiction of a petition filed by an interstate carrier seeking to enjoin the en-
forcement of an affirmative order of the interstate commerce commission ordering
said carrier to desist from making certain allowances to one shipper without
making the same allowances to others for floatage, lighterage and terminal serv-
ices rendered by such shippers to the carriers.'''*'

61. Construction of order. — Interstate had its principal operating office. Procter,
Commerce Comm. v. Chicago, etc., R. Co., etc., Co. v. United States, 188 Fed. 221.
94 Fed. 272. 63. Procter, etc., Co. v. United States,.

62. Power to enforce or enjoin particu- 225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct.
lar orders of commission. — Procter, etc., 701.

Co. V. United States, 225 U. S. 282, 56 L. 64. Reduction of rates.— Hooker v.

Ed. 1091, 32 S. Ct. 761. Knapp, 225 U. S. 302, 56 L. Ed. 1099,

In determining whether the commerce 32 S. Ct. 769.

court has jurisdiction of a petition to an- 65. Discrimination. — United States v. .

nul a ruling of tlie interstate commerce Union Stockyards, etc., Co., 226 U. S.

commission sustaining a carrier's demur- 286, 33 S. Ct. 83, modifying judgment At-

rage rule, it is not material that suits in tnrney General v. Union Stockyard, etc.,

that court to enjoin, set aside, annul, or Co., 192 Fed. 330.

suspend any order of the commission are 66. Allowances to shipper. — The corn-
required to be brought against the United merce court, in the exercise of its power
States, nor that under the law as it pre- under the Act of June 18, 1910 (30 Stat.
\iously stood the venue of suits in the at L. 542, ch. 309), § 3, to enjoin, set aside,
circuit courts of the United States against annul or suspend any order of the inter-
the commission to vacate its orders was state commerce commission, has jurisdic-
fixed in each case in the district wliere the tion to entertain a petition to enjoin an
carrier against which the order was made order of the commission requiring railway

§§ 4215-4216 CARRIERS. 3836

Terminal Charges. — The commerce court also has power to allow a preHmi-
nary injunction against an affirmative order of the interstate commerce commis-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 137 of 214)