THE UNIVERSITY OF ILLINOIS LIBRARY 3S5 OIMMHKE READING THE TRAFFIC LIBRARY The Traffic Library Interstate Commerce Law PART III Act to Regulate Commerce ' Administrative Interpretation Prepared under the direction of the Advisory Traffic Council of The American Commerce Association By EDWARD J. MARTIN, LL. B. ELVIN S. KETCHUM, A. B., Pd. M. Editor-in-Shief Originator of Systematic and Scientific Training in Practical Traffic Work EDWARD G. WARD Editorial Director Former President and Editor-in-Chief of the Railway World ; also for- merly with the Interstate Commerce Commission ; also with the U. S. Department of Agriculture as Transportation Expert and with the U. S. Department of Commerce and Labor as Internal Commerce Expert. €1^^ amtrican Commerce ^l^efje^ociation CHICAGO Copyright 1917 BV THE AMERICAN COMMERCE ASSOCIATION 3^S ^ PREFACE PART III of "Interstate Commerce Law" brings to ready consummation a completely detailed interpre- ^~^- tative analysis of the Act to Regulate Commerce ^i'and its amendatory and supplemental acts. This volume also completes the amplification of the remaining sections of the parent regulative statute. It is evident from the comprehensive analysis of these regulatory laws, as presented in the three parts of "Inter- state Commerce Law," that the Interstate Commerce Commission has endeavored to adopt a workable construc- tion of the law and has given full scope to its discretionary powers in reaching its conclusions in matters of impor- tance, not only through exhaustive hearings, but by open conferences and discussions with representative shippers and trafific officials. Such a course is fundamental in any orderly scheme of public regulation. j The administrative constructions of the various pro- vvisions of the law have been soundly arrived at and their ''j value for the guidance of both shippers and carriers is lunestimable. The judicial views of the laws by the courts ""have been promptly adopted by the Commission and ap- Kplied in a harmonious application of the requirements of ^the regulatory laws, with a view to avoiding unnecessary /^controversy and to bringing into the clear light of prac- r-.ticability the obscure or ambiguous portions of the com- pmerce statutes, that the obligations of the carriers and the f rights of the public may be promptly understood and speedily effected. m IV PREFACE It is the purpose of this treatment of the regulatory laws to develop for full public observance the extraor- dinary economic value of the regulating system in business life. It has, unfortunately, been true that the substantial and permanent benefits of the Act to Regulate Commerce and its supplementary legislation have been many times indirect and frequently unperceived, even by those who in fact benefited most by their observance. By accurate observance of the shipping detail of these laws, the shipper is enabled to bring under close control a heretofore varia- ble cost in the distribution of his goods and to procure prompt and effective enforcement of his rights in the transportation of his property, as those rights are guaran- teed to him by the supreme law of the land. The administration of the regulatory laws by the Inter- state Commerce Commission has been wisely prosecuted by that body with a "knowledge of conditions, of environ- ment, and of transportation relations," and the findings of the Commission are made by law prima facie true, the courts having ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience. Where the courts have interfered at all, unmistakable error has been committed, but it is gratify- ing to note that these instances have been rare and infrequent. This volume, therefore, brings to completeness a work- able construction of interstate transportation law for the use of those who furnish and those who employ the services of transportation of American railroads. TABLE OF CONTENTS CHAPTER I. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Discriminations Between Localities. Page § 1, Judicial Construction of the New Fourth Sec- tion 3 § 2. Discrimination by Carrier Fostering Industries on Its Line 6 §3. Base-Point Rates Not Undue Discrimination.. 8 § 4. Group Rates 14 § 5. Discriminations Between Localities 20 §6. Geographical Advantages or Disadvantages. .. . 40 § 7. Fostering Carrier's Own Territory 45 § 8. Long and Short Hauls 48 § 9. Circuitous Routes 51 CHAPTER II. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Discriminations Between Localities (Concluded). § 1. Competition (General) 55 § 2. Market Competition 63 (1) Controlling Competition 67 § 3. Creating Artificial Market Conditions 73 § 4. Railroad Competition ' 75 § 5. Special Commodity Rates as Form of Railroad Competition 80 § 6. Short Line Competition 82 § 7. Water Competition 86 V vi AMERICAN COMMERCE ASSOCIATION Page § 8. Transcontinental Rates 101 § 9. Historical Review of Water Competition Influ- ences on Transcontinental Rate Structures. .108 § 10. Local Rates in Excess of Divisions of Joint Rates Between Same Points 120 § 11. Express Services 121 § 12. Size or Importance of Town or City No Justi- fication for Discrimination or Preference. .. 123 § 13. Effect of Merger of Two Communities Into One Municipality 124 CHAPTER III. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Discrimination Between Commodities. § 1. Discriminations Between Like Kinds of Traffic 127 § 2. Classification 131 § 3. Through and Local Traffic 132 § 4. Discriminations Between Foreign and Domestic Traffic 133 § 5. Quantity of Traffic 138 § 6. Consolidated Carloads of Less-Than-Carload Shipments 147 § 7. Discriminations Between Commodities Account Mode of Shipment 151 § 8. Miscellaneous Discriminations 154 (1) Weight of Oil Barrels 154 (2) Commissary Car 155 (3) Refusal of Express Company to Extend C. O. D. Service to Shipments of Liquor. 155 (4) Use of Commodity 156 § 9. Classification of Telegraph, Telephone and Cable Messages Permissible 157 INTERSTATE COMMERCE LAW vii CHAPTER IV. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 5. Pa pre § 1. Statutory Provisions 161 § 2. Freight Pools Prohibited 163 § 3. Effect of Carriers' Control of Routing Prior to Amendment of 1910 169 § 4. Relation of Section 5 of the Act to Regulate Commerce to the Sherman Anti-Trust Act.. 169 § 5. Amendment Affecting Railroad Ownership of Competing Water Carriers 173 « CHAPTER V. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 6. § 1. Statutory Provisions 185 § 2. Subjective Analysis of Section 6 191 § 3. Amendments to Section 192 § 4. Published Rates Must Be Observed 195 § 5. Distinction Between Legal Rate by Publication and Lawful Rate 197 § 6. Purpose of Publication 198 § 7. Contents of Published Tariffs and Schedules. .201 § 8. Posting of Tariffs and Schedules 202 § 9. Absence of Published Rate 204 § 10. Publication of Through Rates 205 § 11. Authority of Interstate Commerce Commission to Modify Tariff Requirements of Section 6.205 § 12. Publication of Through Rates 207 § 13. Enlarged Jurisdiction of the Commission Over Water Carriers 207 viii AMERICAN COMMERCE ASSOCIATION CHAPTER VI. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 7. Page § 1. Statutory Provisions '. 211 § 2. Interpretation of the Section 211 § 3. Relation of Sections 7 and 3 212 CHAPTER VII. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 8. § 1. Statutory Provisions 217 § 2. Section Gives Right to Action 217 § 3. Equity Jurisdiction Under the Act to Regulate Commerce 225 § 4. Effect of State Statutes of Limitation 226 § 5. Assignment of Claims for Damages or Over- charges 227 § 6. Reference Paragraph 227 CHAPTER VIII. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 9. § 1. Statutory Provisions 231 § 2. Right of "Election of Tribunal" by Injured Per- son 232 § 3. Jurisdiction and Equity Under the Act to Regu- late Commerce 249 CHAPTER IX. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Damages Arising out of Violations of the Act to Regu- late Commerce. § 1. Power of Interstate Commerce Commission to Av^ard Damages 255 INTERSTATE COMMERCE LAW ix Page § 2. Awards of ^Transportation" or "Rate" Dam- ages 264 § 3. Persons Entitled to Damages 276 § 4. Effect of Statute of Limitation on Application for Reparation 278 CHAPTER X. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Damages (Continued). § L Liability of Carriers for Damages Arising Out of Violations of Act to Regulate Commerce. .287 § 2. When Cause of Action for Damages Accrues. .288 § 3. Award of Damages by Interstate Commerce Commission Not a Judgment 294 § 4. Right of Reparation Not Confined to Parties of Record 295 § 5. No Award of Reparation in Formal Cases Unless Prayed Therefor in Petition 295 CHAPTER XI. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Damages (Concluded). § 1. The "Measure of Damages" 311 (1) Account Unreasonable Rate 312 (2) Account Discriminations in Rates 315 (3) Account of Overcharge 321 (4) Account Violation of Long and Short Haul Clause (Fourth Section) 323 X AMERICAN COMMERCE ASSOCIATION Page (5) Account Excess Weight Resulting in Overcharge 325 (6) Account Discrimination in Facihties 326 (7) Account Carrier's Failure to Post Rates. .328 (8) Account Misrouting of Shipment 332 (9) Account of Overcharge on Shipment to Foreign Country Adjacent 335 § 2. Claims for Reparation May Be Amended 336 § 3. Interest Allowed on Awards of Reparation. .. .336 § 4. Attorney's Fees in Connection with Reparation Awards 337 § 5. Consignor of F. O. B. Shipment Cannot Recover Damages 338 § 6. Failure to Make Delivery Not Ground for Award of Damages by Commission 338 § 7. Damages for Failure to "Plainly" State Rate. .339 § 8. No Award of Damages for Breach of Contract. 339 § 9. Award of Damages for Misquoting Rate 340 § 10. Award of Damages by Commission Prima Facie Proof of Right to Recover 342 § 11. Award of Damages May Be for Profits Lost. .342 § 12. Protest Not Condition Precedent to Recovery of Damages for Unreasonable Rate 342 § 13. Reparation Awarded Account Accident of Bill- ing 343 CHAPTER XII. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 10. § 1. Statutory Provisions 347 § 2. Amendments of the Section 350 § 3. Penalties Provided by Section 10 350 INTERSTATE COMMERCE LAW xi Page § 4. Joint Liability for Damages for Inducing Dis- crimination 352 §5. "False Billing" or "Misrepresentation;" When Offense Is Complete 352 § 6. Limitation of Criminal Prosecutions Under Sec- tion 10 353 § 7. Constitutionality of Section 10 354 § 8. Purpose of the Section 354 CHAPTER XIII. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Sections 11 and 24. § 1. Statutory Provisions of Section 11 361 § 2. Statutory Provisions of Section 24 362 § 3. Functions and Organization of Interstate Com- merce Commission 362 CHAPTER XIV. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 12. § 1. Statutory Provisions 365 § 2. Reference Section 368 CHAPTER XV. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 13. § 1. Statutory Provisions 371 § 2. Amendment of the Section 372 § 3. Purpose of the Section 373 xii AMERICAN COMMERCE ASSOCIATION WVy ' Page CHAPTER XVI. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued), Amplification of Section 14. § 1. Statutory Provisions 377 § 2. Evidentiary Value of Findings of Commission. .378 § 3. Decisions and Reports of Interstate Commerce Commission 378 CHAPTER XVII. Act to Regulate Commerce as Amended (Continued). Amplifications of Sections (Continued). Amplification of Section 15. § 1. Statutory Provisions 381 § 2. Amendments to the Section 386 § 3. Subjective Analysis of Section 15 388 § 4. Constitutionality of Section 389 § 5. Through Routes 395 § 6. Right of Shipper to Select Through Route 398 § 7. Power of Suspension Vested in Interstate Commerce Commission 398 § 8. Allowances to Shippers for Services or Instru- mentalities Furnished in the Transportation of Their Shipments 400 § 9. Nature of Interstate Commerce Commission Under Its Enlarged Powers, and the Relation of Section 15 to the Entire Act to Regulate Commerce 403 § 10. Taking Effect and Duration of Commission's Orders 405 (1) Statute of Limitations 406 INTERSTATE COMMERCE LAW - xiii Page CHAPTER XVIII. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued), Amplification of Section 16. § 1. Statutory Provisions 409 § 2. Amendments to the Section 412 (1) Amendment of June 29, 1906 412 (2) Amendment of June 18, 1910 .413 § 3. Subjective Analysis of Section 16. 413 § 4. Power of Commission to Award Reparation. . .414 § 5. Award of Reparation May Be Made by Commis- sion Before Future Rate Is Prescribed 418 § 6. Power of Commission to Award General Dam- ages 422 § 7. Reference Section 422 § 8. Statutory Provisions — 16a 422 § 9. Rehearings 423 CHAPTER XIX. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Sections 17, 18, 19 and 19a. § 1. Statutory Provisions — Section 17 427 § 2. Amplification of Section 427 § 3. Statutory Provisions — Section 18 428 § 4. Amplification of Section 428 § 5. Statutory Provisions — Section 19 428 § 6. Amplification of Section 429 § 7. Statutory Provisions — Section 19a 429 § 8. Amplification of Section 435 xiv AMERICAN COMMERCE ASSOCIATION CHAPTER XX. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Section 20. Page § 1. Statutory Provisions 439 § 2. Amendments to the Section 446 § 3. Subjective Analysis of Section 447 § 4. Reports by Carriers Subject to the Act 448 § 5. Accounting- Systems Prescribed by Commission 455 § 6. Limitation of Carriers' Liability 462 CHAPTER XXI. Act to Regulate Commerce as Amended (Continued). Amplification of Sections (Continued). Amplification of Sections 21, 22, 23 and 24. § 1. Statutory Provisions — Section 21 479 § 2. Amplification of Section 479 § 3. Statutory Provisions — Section 22 479 § 4. Amplification of Section 481 § 5. Statutory Provisions — Section 23 482 § 6. Amplification of Section 483 § 7. Statutory Provisions — Section 24 483 § 8. Amplification of Section 483 CHAPTER XXII. Act to Regulate Commerce as Amended (Concluded). Amplification of Sections (Concluded). § 1. Additional Provisions to the Act to Regulate Commerce 487 CHAPTER I. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). DISCRIMINATIONS BETWEEN LOCALITIES. § 1. Judicial Construction of the\ New Fourth Section. §2. Discrimination by Carrier Fostering Industries on Its Line. §3. Base-Point Rates Not Undue Discrimination. §4. Group Rates. § 5. Discrimination^ Between Localities. § 6. Geographical Advantages or Disadvantages. § 7. Fostering Carrier's Own Territory. § 8. Long ailG Short Hauls. § 9. Circuitous Routes. 18—2 CHAPTER I. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). DISCRIMINATIONS BETWEEN LOCALITIES. § 1. Judicial Construction of the New Fourth Section. In the Intermountain Cases the Supreme Court of the United States declared the meaning of the amended fourth section to be as follows : "It is certain that the fundamental change which it (the amendment of 1910) makes is the omission of the substantially similar circumstances and con- ditions clause, thereby leaving the long-and-short-haul clause in a sense unqualified except in so far as the section gives the right to the carrier to apply to the Commission for authority 'to charge less for longer than for shorter distances for the transportation of persons or property,' and gives the Commission authority from time to time 'to prescribe the extent to which such designated common carrier may be re- lieved from the operation of this section.' From the failure to insert any word in the amendment tending to exclude the operation of competition as adequate under proper circumstances to justify the awarding of relief from the long-and-short-haul clause, and there being nothing which minimizes or changes the application of the preference and discrimination clauses of the second and third sections, it follows that, in substance, the amendment intrinsically states no new rule or principle, but simply shifts the power conferred by the section as it originally stood; that is, 3 4 AMERICAN COMMERCE ASSOCIATION it takes from the carriers the deposit of public power previously lodged in them and vests it in the Com- mission as a primary instead of reviewing function. In other words, the elements of judgment or, so to speak, the system of law by which judgment is to be controlled remains unchanged, but a different tribu- nal is created for the enforcement of the existing law. This being true, as we think it plainly is, the situation under the amendment is this: Power in the carrier primarily to meet competitive conditions in any point of view by charging a lesser rate for a longer than for a shorter haul has ceased to exist, because to do so in the absence of some authority would not only be inimical to the provisions of the fourth section, but would be in conflict with the pref- erence and discrimination clauses of the second and third sections. But while the public power, so to speak, previously lodged in the carrier is thus with- drawn and reposed in the Commission, the right of carriers to seek and obtain under authorized circum- stances the sanction of the Commission to charge a lower rate for a longer than for a shorter haul be- cause of competition or for other adequate reasons is expressly preserved; and if not, is, in any event, by necessary implication granted. And as a correla- tive the authority of the Commission to grant on re- quest the right sought is made by the statute to de- pend upon the facts established and the judgment of that body in the exercise of a sound legal discretion as to whether the request should be granted compat- ibly with a due consideration of the private and pub- lic interests concerned and in view of the preference and discrimination clauses of the second and third sections." U. S. vs. A. T. & S. F. Ry. Co., 234 U. S. 476. U. S. vs. U. P. R. R. Co., 234 U. S. 495. Since the Commission has been invested with practi- cally unlimited dicretionary power in permitting depar- tures from the technical prohibition of the amended INTERSTATE COMMERCE LAW 5 fourth section, the elements justifying permissive disre- gard of the section assume important proportions. In the terms of the amended fourth section, no limitation is opposed to the Commission's use of its discretionary pow- er to relieve common carriers from the operation of the section, but it must not be assumed that the Commission will act independently as to this section and without due cognizance of the purposes of the act as a whole, and of the obvious intent of Congress in dividing its own powers with an administrative body created by it. The purpose of Congress was to prevent a certain form of pernicious discrimination — the charging of a greater compensation for transportation for a short than for a long distance over the same line — and at the same time, instead of making the prohibition absolute, to afiford a degree of elasticity in the enforcement of the section whereby car- riers under certain economic justification might be allowed to charge more for the shorter haul to the intermediate point. That it would have been a difficult matter to de- fine these exceptional cases in the law itself, is clearly ap- parent, and it is equally obvious that if Congress had left it entirely to the descretion of the Commission, with- out any definition of the prohibited form of discrimination, the section would be constitutionally defective as a com- plete delegation of the legislative power of Congress to the Commission, a purely administrative tribunal. The intentions of Congress was clearly stated by the Chair- man of the House Committee on Interstate Commerce at the time of the amendment — "Practically what we do here is to give the Commission power to say what, in a particular case, shall be a just and reasonable rate; al- though we declare as a general proposition that it shall be unjust and unreasonable to charge more for a short haul than for a long haul." 6 AMERICAN COMMERCE ASSOCIATION In other words, Congress established a general rule pro- hibiting a certain form of discrimination which the Com- mission must adopt in enforcing the section but allowed the Commission to pass upon the economic justness of necessary differentiation in rates in cases of justifiable ex- ceptions to the general rule. § 2. Discrimination by Carrier Fostering Industries On Its Line. It is the duty of a common carrier to receive and carry, upon reasonable terms, all goods tendered in suitable con- dition, and it can not lawfully discriminate in favor of any person, product, or locality. A common carrier, in order to build up and foster industries on its own lines, can not lawfully refuse to carry the products of like industries lo- cated on connecting lines. Standard Lime & Stone Co. vs. Cumberland Valley R. R. Co.. 15 I. C. C. Rep. 620. Chamber of Com., etc., vs. C. R. I. & P. R. Co., 15 I. C. C. Rep. 460. Waxelbaum & Co. vs. A. C. L. R. Co., 12 I. C. C. Rep. 183. Cardiff Coal Co. vs. C. M. & St. P. R. Co., 13 I. C. C. Rep. 460. The principle is a plain one. A carrier's duty is to serve the whole public and to do this upon reasonable rates and without discrimination. Fundamentally it may not, as a public servant, serve one community at the expense of an- other or build a rate wall around one point to advance the interests of a competing point. Nor has the Commis- sion ever sanctioned any schedule of rates constructed in pursuance of any such policy or having any such conse- quences. In the carrier's interest, the Commission has sanctioned some violations of the long-and-short-haul provision of the act. In particular cases it has recog- nized it as the natural right of a carrier to adjust its rates INTERSTATE COMMERCE LAW 7 on a lower basis than it would otherwise establish, in or- der to meet competition over other routes and from other quarters and thus secure a traffic that would be lost to it under higher rates. It has sanctioned such adjustments rather in the interest of the carrier than of the shipper. But in no case has the Commission recognized the right of a carrier to fix its rates to or from a given point on a higher lever than they otherwise should be, in order to prevent one community from competing with another, or to keep the products of one community out of a territory, the wants of which may be fully supplied by another com- munity. In the judgment of the Commission the right to adjust rates on any such theory should not rest either in the carriers or in the Commission. The rails of a com- mon carrier form a public highway over which the com- merce of any community should be able freely to move on rates that are reasonable, all things considered, regard- less of the consequences of its competition upon any other community, Indianapolis Freight Bu. vs. C. C. C. & St. L. Ry. Co., 26 C. C. Rep. 53, 58, 59. A carrier is not justified in attempting to restrict traf- fic to movement on its own line. Lumber Rates from Texas, Louisiana, and Arkansas, 28 L C. C. Rep. 47L 474. Indianapolis Freight Bu. vs. C. C. C. & St. L. Ry. Co., 26 I. C. C. Rep. 53, 58. See also: Duncan & Co. vs. R C. & St. L. Ry. Co., 35 I. C. C. Rep. 477, 483. Rates on Lumber from Southern Points, 34 I. C. C. Rep. 652, 57L Chamber of Commerce, Houston, Tex., vs. I. & G. N. Ry. Co., 32 I. C. C. Rep. 247, 280. Bowling Green Business Men's Assn. vs. L. & N. R. R. Co., 31 I. C. C Rep. 1, 4. 8 AMERICAN COMMERCE ASSOCIATION Memphis Freight Bureau vs. I. C. R. R. Co., 27 I. C. C Rep. 1. Port Arthur Board of Trade vs. A. & S. Ry. Co., 27 I. C. C. Rep. 388, 402. Aransas Pass Channel & Dock Co. vs. G. H. & S. A. Ry. Co., 27 I. C. C. Rep. 403, 415. Commercial Club of Duluth vs. B. & O. R. R. Co., 27 I. C C. Rep. 639, 652. Meridian Fertilizer Factory vs. H. & P. Ry. Co., 26 I. C. C. Rep. 351. Wichita Board of Trade vs. S. T. & S. F. Ry. Co., 25 I. C. C. Rep. 625, 631, 632. Stonega Coke & Coal Co. vs. L. & N. R. R. Co., 23 I. C. C. Rep. 17, 24. Railroad Commission of Nevada vs. S. P. Co., 21 I. C C. Rep. 329, 367. Receivers' and Shippers' Assn. of Cincinnati vs. C. N. O. & T. P. Ry. Co., 18 I. C. C. Rep. 440, 458. Wilson Pro. Co. vs. Pa. R. R. Co., 16 I. C. C. Rep. 116, 122. Duncan & Co. vs. N. C. & St. L. Ry. Co., 16 I. C. C. Rep. 590, 595. Delray Salt Co. vs. C. St. P. M. & O. Ry. Co., 16 I. C. C. Rep. 507, 511. Cedar Hill Coal & Coke Co. vs. A. T. & S. F. Ry. Co., 15 I. C. C. Rep. 73, n. Standard Lime & Stone Co. vs. Cumberland Valley R. R. Co., 15 I. C. C. Rep. 620, 625. Greater Des Moines Committee vs. C. Gt. W. Ry. Co., 14 I. C. C. Rep. 294, 297. Corn Belt Meat Prods. Assn. vs. C. B. & Q. Ry. Co., 14 I. C. C. Rep. 376, 386. Memphis Freight Bu. vs. Ft. S. & W. R. R. Co., 13 I. C. C. Rep. 1, 4. Reliance Textile & Dye Works vs. S. Ry. Co., 13 I. C. C. Rep. 48, 54. Wagner, Zagelmeyer & Co. vs. Detroit & Mackinac Co., 13 I. C. C. Rep. 160, 165. § 3. Base-Point Rates Not Undue Discrimination. A "base-point" system of rates, consisting of a fixed rate to a certain point to which is added for other local points, the amount of the local rate, or a properly ad- justed percentage factor, between the base point and the local point, is not inconsonant with the provisions of the Act to Regulate Commerce. This system of rate construc- tion has been applied in large areas, notably between the Atlantic seaboard and the Mississippi River and in the southeast. The base point system gave effect to the rela- INTERSTATE COMMERCE LAW 9 tive distances of the local points from the competitive or base points, the rate being determined in each case by add- ing to the through rate to the base point the local rate from that point to the local point, or back to the local point with- out the actual back haul being performed, in case such combination made less. This system of rates afforded to the local point its proper ratio of proximity to the compet- itive or base point. The Commission possesses power to alter or ignore these base points, which are to a certain extent artificial. In some of its earlier cases the Commission condemned this system of rate application as discriminatory and in violation of the Act to Regulate Commerce. In the Louisville & Nashville case, the Supreme Court of the United States, upon appeal from the circuit court's de- cree sustaining the finding of the Interstate Commerce Commission which had condemned the base point system as applied to certain local rates basing on Atlanta, Ga., held that the base point system of rate making in the southeast was not in violation of the act and the resulting dissimilarity of circumstances under the application of the system prevented any unjust preference. I. C. C. vs. L. & N. R. R. Co., 190 U. S. 173, and 47 L. Ed. 1047. Compare: L. & N. R. R. Co. vs. I. C. C, 102 Fed. Rep. 709. The Commission has many times had cause to investi- gate alleged discriminatory rate relationships in the south- east, under the powers vested in it under the fourth sec- tion, not only as that section now stands amended but under its former construction. In its report in Fourth Section Violations in the Southeast, 30 I. C. C. Rep. 153, 174, the Commission prescribed a scale of rates on a mile- 10 AMERICAN COMMERCE ASSOCIATION age basis, and which it had arrived at by an averaging of a large number of rates, to be observed as maxima to intermediate points on routes to more distant depressed- rate points. The object in prescribing this scale of rates was to prevent undue discrimination in rates, one as against another, and as compared with the rates to more distant points as to which some relief from the require- ments of the long and short haul rule seemed necessary and just. The scale did not represent the Commission's opinion as to what would be reasonable and proper rates to all points in the southeastern territory, but it did rep- resent the average practice of the carriers in that territory in naming rates to intermediate noncompetitive points. The carriers in the southeast subsequently made fur- ther application to the Commission, representing that in their endeavor to check rates in response to this order of the Commission, as well as to various former orders affecting rates to points in the same territory, the restric- tions in fourth section's order No. 3866 (30 I. C. C. Rep. 153, 174) had the effect of preventing them from estab- lishing a harmonious and consistent rate adjustment. The Commission corrected such discrepancies as were shown to exist in its mileage scale and authorized the continu- ance of certain higher rates to intermediate points where competition justified their maintenance, at the same time authorizing certain short roads in the southeast to meet the rates at their junction points established by their trunk line connections, and to continue higher rates to inter- mediate local points for two years. Fourth Section's Violations in the Southeast, 32 I. C. C. Rep. 63. See also: Board of Trade of Carrollton, Ga., vs. C. of Ga. Ry. Co., 28 I. C. C. Rep. 154. INTERSTATE COMMERCE LAW 11 La Grange Chamber of Commerce vs. A. & W. P. R. R. Co., 28 I. C. C. Rep. 178. Board of Trade of Morristown vs. A. C. L. R. R. Co., 24 I. C. C. Rep. 372. Since these several orders by the Commission read- adjusting the rates of the southeast under the require- ments of the new fourth section of the act, the basing point system of rates in that territory has undergone such radical changes as to no longer exist as a rate-making method of any extent. In fact, it now represents a "base line" adjustment of rates rather than a basing point sys- tem of rates. The basing point system of rates in the southeast as it existed prior to its present revision, was unique in its structural effects. General basing points have existed for years at strategic transportation points throughout the country, and upon which great regional rate structures have been constructed, but the system of rates employed in the southeast was one which preserved a differential relationship in the rates maintained between competitive and noncompetitive southeastern points. The Supreme Court seemed so well impressed with the Commission's view of base point rate applications in the Burnham, Hanna & Munger case that in its opinion, re- viewing the order of the circuit court, it quoted from the report of the Commission as follows: "Nor did the Commission ignore or underestimate the manner in which the lines of railroads had been extended or the system of rates or rate making which had resulted. That is the system of making rates upon certain basing lines or points. Rates 'break' at such points, it was proved as a result of building in- dependent lines westward. In other words, lines of railroads were built to certain cities from the East, seeking such cities, it may be, because of their natu- ral situation and facilities, and other independent lines building westward, each line fixing its own rates 12 AMERICAN COMMERCE ASSOCIATION or uniting- according to circumstances in joint rates. It is the observance of such points that give and maintain, as we understand the contention of the rail- roads, to certain cities 'the equal opportunity in the distribution of merchandise with the merchants in the East, and with the merchants to the West of said cities, so far as their business is affected by trade rates.' That this was carefully considered is mani- fest, for the Commission resisted the argument which was made against basing rates on such points, say- ing: " *We are not impressed with the view that the system of making rates on certain basing lines should be abolished. No system of rate making has been suggested as a substitute for it, except one based upon the postage stamp theory, or one based strictly upon mileage. Either of these would create revolution in transportation affairs and chaos in commercial' affairs that have been builded upon the system of rate-making now in effect. It must not, however, be assumed that a basins: line for rates mav be established and be made an impassable barrier for through rates, or that cities or markets located at or upon such basing line have any inviolable possession of. or hold upon the right to distribute traffic in or from the territory lying beyond. Development of natural resources, increase in population, growth and manufacturing or producing facilities, and in- creased traffic on railroads create changed con- ditions which may warrant changes in rates and in rate adjustments in order to afford just and reasonable opportunity for interchange of traffic between points of production and point of large consumption.' "It was the sense of the Commission, however, that such points could not be immovable forever and fixed forever against power of changing, or that through rates based on such points must be exempt from INTERSTATE COMMERCE LAW 13 regulation, no matter what their character, or be constituted at the will of the railroad of the sum of local rates or the sum of rates from one basing point to another, however unjust the rates might be. * * * "That the companies may complain of the reduc- tion made by the Commission so far as it affects their revenues is one thing. To complain of it as it may affect shippers or trade centers is another. We have said several times that we will not listen to a party who complains of a grievance which is not his." I. C. C. vs. C. R. I. & P. Ry. Co., 218 U. S. 88, 54 L. Ed. 946. Burnham, etc., vs. C. R. I. & P. Ry. Co., 14 I. C. C. Rep. 312. See also: E. T. V. & G. R. Co. vs. I. C. C, 181 U. S. 1. Columbia Gro. Co. vs. L. & N. R. R. Co., 18 I. C. C. Rep. 502. Avery Mfg. Co. vs. A. T. & S. F. Ry. Co., 16 I. C. C. Rep. 120. Indianapolis Freight Bureau vs. C. C. C. & St. L. Ry. Co., 16 I. C. C. Rep. 56. Ozark Fruit Growers' Assn. vs. St. L. & S. F. R. R. Co., 16 I. C. C. Rep. 134. Maricopa County Commercial Club vs. Wells Fargo & Co., 16 I. C. C. Rep. 182. Indianapolis Freight Bureau vs. C. C. C. & St. L. Ry. Co., 16 I. C. C. Rep. 254. The distinction should be drawn between the applica- tion of the base point system of rates which may create unlawful discriminations under the provisions of section 3, where no long-and-short-haul relationship of rates is involved, and the application which results in unlawful discriminations under the provisions of section 4 because of greater charges to the short distant point than to the farther distant point. The Missouri River case (14 I. C. C. Rep. 312) was brought under the provisions of section 3, whereas the discriminations alleged as a result of the basing point sys- tem in the southeast were under the fourth section of the Act- 14 AMERICAN COMMERCE ASSOCIATION § 4. Group Rates. The system of group-rate making was early recognized by the Commission as a proper one except where certain shippers or consignees were really damaged by the rates thus applied while others were correspondingly benefited. The Commission has consistently refrained from break- ing up a rate group where it had not been made to ap- pear that the aggrieved party was actually damaged by the discrimination resulting from the group rate. Imperial Coal Co. vs. P. & L. E. R. R. Co., 2 I. C. C. Rep. 618. Howell vs. N. Y. L. E. & W. R. Co., 2 I. C. C. Rep. 272. Milk Producers' Assn vs. D. L. & W. R. R. Co., 7 I. C. C. Rep. 92. See also: Newport Mining Co. vs. C. & N. W. Ry. Co., 33 I. C C. Rep. 646, 657. While the group or zone point of rat.e making is often of mutual advantage to shippers and carriers and will not ordinarily be disturbed by the Commission where the rates are reasonable and nondiscriminatory, nevertheless the relative situation of contiguous points may not be wholly disregarded in rate making without incurring the risk of unjust discrimination or undue advantage to fa- vored points. Carriers may lawfully make rates applicable to group points within a defined zone and treat all points in one group as a single point for rate basing purposes but the position of points just within or without the zone line cannot be disregarded when the question of through rates to the latter points is to be determined for discrimi- nation. Hammerschmidt & Frazen vs. C. & N. W. Ry. Co., 30 I. C. C. Rep. 71, 81. A group system of rates is never free from inequality INTERSTATE COMMERCE LAW 15 of rates when distance alone is considered as between points on extreme sides of the group. The determina- tion of undue discrimination in group rates must be from the facts in each case. In most instances the discrimina- tion between the near and far edges of a group is not un- due. In all rate groups there must of necessity be a more or less abrupt "rate hump" between the nearest and most distant points in the group, and when rates are made under the group or blanket system, the distance prin- ciple must be modified. A carrier should not force upon shippers in one locality a system of group rates while preferring some in the same locality with rates on raw material. The Commission will not approve a blanket rate which imposes unreasonable or unjustly discriminatory burdens upon any points in the group, but where transportation conditions are similar, competitive shippers in the same general territory should be similarly grouped with regard to rates. In fact, carriers have followed the principle that whenever distance between certain points constitutes a relatively small percentage of distance between any of those points and ultimate market, such originating points should be grouped for rate-making purposes. Rates on News Print Paper, 26 I. C. C. Rep. 13, 19. Nor, however logical may be the geographical boun- dary of a group, discriminatory rates must not be given to any point. Consolidated Fuel Co. vs. A. T & S. F. Ry. Co., 27 I. C. C. Rep. 554, 557, 558. In re Advances on Sugar, 27 I. C. C. Rep. 122, 124. Texas Cement Plaster Co. vs. St. L. & S. F. R. R. Co., 26 I. C. C. Rep. 508, 509. Waukesha Lime & Stone Co. vs. C. M. & St. P. Ry. Co., 26 I. C. C. Rep. 515, 519. 16 AMERICAN COMMERCE ASSOCIATION Switzer Lumber Co. vs. K. C. S. Ry. Co., 25 I. C. C. Rep. 611, 612. ^ Southwestern Missouri Millers' Club vs. M. K. & T. Ry. Co., 22 I. C. C. Rep. 422, 424. Saginaw Board of Trade vs. Grand Trunk Ry. Co., 17 I. C. C. Rep. 169. 173. See also: Lebanon Commercial Club vs. L. & A. R. R. Co., 28 L C. C. Rep. 301. Betcher Isumber Co. vs. C. M. & St. P. Ry. Co., 26 L C. C. Rep. 335. Santa Rosa Traffic Assn. vs. S. P. Co., 24 I. C. C. Rep. 46. Thropp vs. P. R. R. Co., 23 L C. C. Rep. 497, 498, 499. Traggott Schmidt & Sons vs. M. C. R. R. Co., 23 L C. C. Rep. 684. Stiritz vs. N. O. M. & C. R. R. Co., 22 1. C. C. Rep. 578, 581. Ferguson Saw Mill Co. vs. St. L. L M. & S. Ry. Co., 18 L C. C. Rep. 391. Indianapolis Freight Bureau vs. C. C. C. & St. L. Ry. Co., 15 I. C. C. Rep. 504, 513. Nebraska State Ry. Comra. vs. U. P. R. R. Co., 13 L C. C. Rep. 349, 355. Rhinelander Paper Co. vs. K P. R. R. Co., 13 L C. C. Rep. 633, 634, 637. A carrier can not lawfully group its mines with respect to rates so as to unduly discriminate against any locality. The duty imposed by law is to give equal treatment to all shippers who are in a position to demand it, and this includes the right to reach competitive markets on rela- tively equal terms. Carriers are not required by law, and could not in jus- tice be required, to equalize natural disadvantages, such as location, cost of production, and the like. Where, how- ever, the same carrier serves two districts which, by their location, the character of their output, and distance from markets where their product must be disposed of are in substantially similar circumstances and conditions, the serving carrier can not lawfully prefer one to the other in any manner whatsoever. Black Mountain Coal Land Co. vs. So. Ry. Co., 15 I. C. C. Rep. 286, 292 (1909). INTERSTATE COMMERCE LAW 17 A system of blanket rates from a producing section is fair and just, as such, to all parties concerned, although it necessarily involves rates that are somewhat high for the distance from points on the edge of the blanket nearest the points of destination, but in making such an adjust- ment the burden rests upon the carrier to provide rates that shall not be unreasonable from any point of origin. It is the well established rule that undue prejudice or preference may not be said to exist as between shippers or communities unless the same carrier serves them or participates in their traffic and the transportation condi- tions are shown to be substantially similar. The con- struction by a carrier of a system of rates on a zone or blanket plan is not sufficient to justify the collection of unreasonable charges to any point in such zone or blan- ket and a particular point or locality may not lawfully be subjected to high freight charges merely because the car- riers, for convenience or otherwise, include it with a num- ber of other points in a defined territory, which latter points are not similarly situated. Corporation Commission, etc., vs. N. & W. Ry. Co., 19 I. C. C. Rep. 303. Compare-: Suffern Grain Co. vs. I. C. R. R. Co., 22 I. C. C. Rep. 128, 182. Davenport Commer. Club vs. Y. & M. V. R. R. Co., 20 I. C. C. Rep. 19, 20. A group rate for a particular district upon a commo- dity for which a large demand exists, and intended to place the producers in the district upon an equality among themselves and with the producers of the same commo- dity from other districts, all competing in a common mar- ket, is not unlawful merely because of differences in the geographical location of different producers and their re- 18—3 18 AMERICAN COMMERCE ASSOCIATION spective distances from the market. Actual undue pref- erence or advantage, of which the rate is the cause, must result to the more favorably situated producers to ren- der a group rate unlawful. In all group rate systems there is an inequality of rates when distance alone is considered as between points on one side of a group and those on the other side. Hence, group rates must result in a certain amount of discrimi- nation, but such rates are not for this reason alone neces- sarily unlawful, since the discrimination may not be un- due. Certainly, however, the carrier, in the construction of such groups, is under a strong obligation to cause as little discrimination as possible. Okla. Cottonseed Crushers' Assn. vs. M. K. & T. Ry. Co., 35 I. C. C. Rep. 94, 108. Newport Mining Co. vs. C. & N. W. Ry. Co., 33 I. C. C. Rep. 645, 657. Wis. & Ark. Lumber Co. vs. St. L. I. M. & S. Ry. Co., 33 I. C. C. Rep. 33, 43. Public Utilities Commission of the State of Idaho vs. O. S. L. R. R. Co., 33 I. C. C. Rep. 103, 108. Anson, Gilkey & Hurd Co. vs. S. P. Co., 33 I. C. C. Rep. 332, 333, 342. Chamb. of Commerce of Houston, Texas vs. I. & G. N. Ry. Co., 32 I. C. C. Rep. 247, 252. Chamb. of Commerce of Houston, Texas, vs. I. & G. N. Ry. Co., 32 I. C. C. Rep. 247, 252. Rates on Sugar, 31 I. C. C. Rep. 495, 510. Stock & Sons vs. L. S. & M. S. Ry. Co., 31 I. C. C. Rep. 150, 153. Colonial Salt Co. vs. C. B. & Q. R. R. Co., 31 I. C. C. Rep. 559, 573. Kaufman Commercial Club vs. T. & N. O. R. R. Co., 31 I. C. C. Rep. 167, 172. Pardee Works vs. C. R. R. of N. J., 29 I. C. C. Rep. 500, 503. Springfield Commercial Assn. of Springfield, 111., vs. P. R. R. Co., 28 I. C. C. Rep. 511, 514. Lebanon Commercial Club vs. L. & N. R. R. Co., 28 I. C. C. Rep. 301, 304. Texarkana Freight Bureau vs. St. L. I. M. & S. Ry. Co., 28 I. C. C. Rep. 569, 583. In, re Advances on Sugar, 27 I. C. C. Rep. 122, 124. Consolidated Fuel Co. vs. A. T. & S. F. Ry. Co., 27 I. C. C. Rep. 554, 559. Betcher Lumber Co. vs. C. M. & St. P. Ry. Co., 26 I. C. C. Rep. 335, 340. INTERSTATE COMMERCE LAW 19 Texas Cement Plaster Co. vs. St. L. & S. F. R. R. Co., 26 I. C. C. Rep. 508, 510. Waukesha Lime & Stone Co. vs. C. M. & St. P. Ry. Co., 26 I. C. C. Rep. 515, 519. Texas Common Point Case, 26 I. C. C. Rep. 528, 538. Santa Rosa Traffic Assn. vs. S. P. Co., 24 I. C. C. Rep. 46, 49. Monroe Progressive League vs. St. L. L M. & S. Ry. Co., 15 I. C. C. Rep. 534, 542. Dallas Freight Bureau vs. M. K. & T. Ry. Co., 12 L C. C. Rep. 427, 434. In the following cases, the Commission's attitude to- ward the Texas Common Point territory, prior to its re- cent decision in the Dallas-Ft. Worth Case (Dallas Cham- ber of Commerce, vs. A. T. & S. F. Ry. Co., 40 I. C. C. Rep. 619) will be found fully explained: Iron Ore Rate Cases, 41 L C. C. Rep. 181. Dallas-Ft. Worth Case, 40 L C. C. Rep. 619. Pardee Iron Works vs. C. R. R. of N. J., 39 L C. C. Rep. 162, 165. Memphis Freight Bureau vs. St. L. L M. & S. Ry. Co., 39 L C. C. Rep. 224, 244. Eastern Oregon Lumber Producers' Assn. vs. C. B. & Q. R. R. Co., 39 I. C. C. Rep. 316, 320. Goldcamp Mill Co. vs. N. & W. Ry. Co., 39 L- C. C. Rep. 433 444. Brush Creek Mining & Mfg. Co. vs. L. & N. R. R. Co., 39 I. C. C. Rep. 449, 458. Stonega Coke & Coaf Co. vs. L. & N. R. R. Co., 39 I. C. C. Rep. 523, 552. Major Stave Co. vs. M. D. & G. R. R. Co., 39 L C. C. Rep. 573, 579. City of Astoria vs. S. P. & S. Ry. Co., 38 I. C. C. Rep. 16. Decker & Sons vs. M. &St. L. R. R. Co., 38 I. C. C. Rep. 228. Bonners Ferry Lumber Co. vs. G. N. Ry. Co., 38 L C. C. Rep. 268, 275. National Dock & Storage Warehouse Co. vs. B. & M. R. R. Co., 38 I. C. C. Rep. 643, 657. Pitt Gas Coal Co. vs. P. R. R. Co., 37 L C. C. Rep. 240, 243. Bituminous Coal Rates to Southeast, 37 L C. C. Rep. 652. Paducah Board of Trade vs. A. & S. Ry. Co., 37 L C. C. Rep. 760, 767. Chamber of Commerce of Houston, Texas, vs. H. E. & W. T. Ry. Co., 32 L C. C. Rep. 203. Texas Common Point Case, 26 L C. C. Rep. 528, 538. R. R. Commission of Texas vs. A. T. & S. F. Ry. Co., 20 L C. C. Rep. 463, 485. Williams Co. vs. V. S. & P. Ry. Co., 16 L C. C. Rep. 482. Dallas Freight Bureau vs. M. K. & T. Ry. Co., 12 L C. C. Rep. 427, 434. 20 AMERICAN COMMERCE ASSOCIATION § 5. Discriminations Between Localities. All wrongful discriminations between localities are not confined to violations of the inhibition of section 4 of the Act to Regulate Commerce. In fact that section prohi- bits but one specific form of discrimination between lo- calities, i. e., where the charge to the less distant point exceeds the charge to the more distant point in the same route. Circumstances and conditions at different points of necessity vary and it is not always an unjust discrimi- nation to allow to shippers at one point certain advantages over those at another point. Such advantages may exist in the form of particular services rendered at the one point and not at the other. The Act to Regulate Commerce "does not attempt to equalize fortune, opportunities or abilities." Thus, it has been held that a free cartage serv- ice may, for competitive reasons, be furnished at one point and not at another, or a proper charge made for the car- riage of oil barrels, where the producer of oil shipped in barrels rather than in tank cars, and not constitute unjust discrimination as against a producer at another point who shipped in tank cars. Unjust discrimination may or may not be present in the granting of certain privileges or services at one point and not at another, such as different rates on manufactured and unmanufactured articles, differences in car service, rates on carrier's company material compared with open rates, differences in demurrage charges applicable to pri- vate and line cars, differences in transit charges and privi- leges, lighterage allowances, track and terminal facilities, classification of property, wharfage rights and facilities, etc. I. C. R. R. Co. vs. DeFuentes CLa. R. R.), 236 U. S. 157. G. T. Ry. Co. vs. Michigan R. R. Com., 231 U. S. 457, 58 L. Ed. 310. United States vs. B. & O. R. R. Co., 231 U. S. 274, 58 L. Ed. 218. INTERSTATE COMMERCE LAW 21 Morrisdale Coal Co. vs. P. R. R. Co., 230 U. S. 304, 57 L. Ed. 1594. Mitchell Coal Co. vs. Pa. R. R. Co., 230 U. S. 247, 57 L. Ed. 1472. Pa. R. R. Co. vs. Internat'I Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446. I. C. C. vs.B. &'o. R. R. Co., 225 U. S. 326, 56 L. Ed. 1107. Proctor & Gamble vs. U. S., 225 U. S. 282, 56 L. Ed. 1091. I. C. C. vs. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83. Robinson vs. B. & O. R. R. Co., 222 U. S. 506, 56 L. Ed. 288. Union Pac. Ry. Co. vs. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171. So. Pac. Terminal Co. vs. I. C. C, 219 U. S. 498, 55 L. Ed. 310. B. & O. R. R. Co. vs. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed 292 I. C.'C. vs. I. C. R. R. Co., 215 U. S. 452, 54 L. Ed. 280. I. C. C. vs. Stickney, 215 U. S. 98, 54 L. Ed. 112. So. Ry. Co. vs. St. Louis Hay & Grain Co., 214 U. S. 297, 57 L. Ed. 1004. L. & N. R. Co. vs. Central Stock Yards Co., 212 U. S. 132, 53 L. Ed. 441. I. C. C. vs. C. G. W. Ry. Co., 209 U. S. 108, 52 L. Ed. 705. Penn. Refining Co. vs. W. N. Y. & P. R. R. Co., 208 U. S., 52 L. Ed. 456. C. H. & D. Ry. Co. vs. I. C. C, 206 U. S. 142, 51 L. Ed. 995. N. Y., N. H. & H. R. R. Co. vs. I. C. C, 200 U. S. 361, 50 L. Ed. 515. So. Pac. Co. vs. I. C. C, 200 U. S. 536, 50 L. Ed. 585. Central Stock Yards Co. vs. L. & N. R. R. Co., 192 U. S. 568, 48 L. Ed. 565. I. C. C. vs. Wise, Detroit, Gd. H. & Milw. Ry. Co., 167 U. S. 633, 42 L. Ed. 310. This class of discriminations, when unjust in their ef- fect, fall within the inhibition of section 3 of the Act and are matters within the discretion of the Interstate Com- merce Commission which may determine whether such services or privileges are proper or whether, under the circumstances of each case, constitute an unjust discrimi- nation or undue preference. Unjust discriminations are sometimes created by the conflict between national and state regulating systems. A state may prohibit any unjust discrimination by an in- trastate or domestic railroad in any locality upon its lines or may empower its railroad commission to determine whether rates fixed by such roads are discriminatory. 22 AMERICAN COMMERCE ASSOCIATION On the other hand the action of the state may result in rendering an interstate rate or practice unduly discrim- inatory. Congress did not undertake to authorize the Interstate Commerce Commission to prescribe interstate rates and thus effect a unified control by the exercise of the rate-making power over both discriptions of traffic. But the powers conferred by the Act are not limited where interstate commerce itself is involved, for when the Commission finds that an unjust discrimination against interstate trade exists by reason of the relations of intra- state and interstate rates, such a matter is one with which the national Commission alone is competent to deal. In view of the aim of the Act and the comprehensive terms of the provisions against unjust discrimination, there is no ground for holding that the authority of Congress was unexercised and that such subject was thus left without governmental regulation. Several notable decisions have been made by the na- tional Commission, involving unjustly discriminatory rates between certain localities occasioned by the peculi- arities of state-made rates in the same general territory. In the Shreveport, Memphis, St. Louis Business Men's Association, South Dakota Express Rate cases and others, the Commission has required the removal of the unjust discrimination affected by state action through readjust- ment of the interstate rate. The Shreveport cases offer the best illustration of the Commission's authority to deal with discriminations and preferences occasioned by the action of a state in its regu- lation of railroad rates. These cases involved an order of the Commission requiring the carriers to remove a dis- crimination against Shreveport, La., which resulted from the act of the carriers in charging higher rates, according to distance, on interstate traffic from Shreveport than on INTERSTATE COMMERCE LAW 23 intrastate traffic from Dallas to Houston, Tex., to desti- nation points in Texas. The state legislature of Louisiana directed its railroad commission to bring proceedings before the national Com- mission to accomplish two purposes : First, to secure an adjustment of rates that would be just and reasonable from Shreveport into Texas; and second, to end, if pos- sible, the alleged unjust discrimination practiced by these interstate carriers in favor of Texas state traffic and against similar traffic between Louisiana and Texas. The alleged discrimination in a general sense is best described by the Commission in its original report: "The railroads deny that the rates out of Shreve- port are unreasonable, but place their defense main- ly upon the proposition that they are compelled by the railroad commission of Texas to effect the dis- crimination here involved. * * * There appears to be little question as to the policy of the Texas commission. It is frankly one of protection to its own industries and communities. * * * Passing, then, to the question of discrimination, has this Commis- sion the power to say that whatever rates an inter- state carrier makes between points in Texas shall not be exceeded for the same distance under like condi- tions between Shreveport and Texas points? In other words, may a carrier engaged in interstate com- merce discriminate against a city beyond the border of a state by imposing upon that city's traffic rates which deny its shippers access upon equal terms to the communities of an adjoining state? "This is an appeal to the powers lodged in this Com- mission under the third section of the act — that pro- vision which is aimed at the destruction of undue preference and advantage. We thus meet directly the most delicate problem arising under our dual sys- tem of government. Congress asserts its exclusive do- minion over interstate commerce; the state asserts its 24 AMERICAN COMMERCE ASSOCIATION absolute control over state commerce. The state for its own purposes establishes rates designed to pro- tect its own communities and promote the develop- ment of its own industries. These rates are adopt- ed by the interstate carriers upon state traffic, but are not adopted upon interstate traffic. Thus arises a discrimination in favor of communities within the state, and interstate commerce suffers a correspond- ing disadvantage. May this Commission end such discrimination by saying to the interstate carrier, 'You may not distinguish between state and inter- state traffic transported under similar conditions. If the rates prescribed for you by state authority are not compensatory upon this specific traffic as to which discrimination is found, the burden rests upon you, irrespective of your obligation to the state, to so adjust your rates that justice will be done between communities, regardless of the invisible state line which divides them'? To which we are compelled to answer that the effective exercise of its power regarding interstate commerce makes necessary the assertion of the supreme authority of the National Government, and that the Congress has appropriately exercised this power in the provisions of the act to regulate commerce touching discrimination." La. R. R. Co. vs. H. E. & W. T. R. R. Co., 23 I. C. C. Rep. 31. The finding of the Commission was that the interstate class rates from Shreveport to the Texas points were unreasonably high, and it prescribed maximum class rates to be substituted therefor, such prescribed rates being substantially the same as the class rates fixed by the Rail- road Commission of Texas and applied by the carriers on traffic in Texas for similar distances. The Commission also directed the carriers to desist from charging higher rates for the transportation of any commodity from Shreveport toward Dallas and Houston, respectively, and INTERSTATE COMMERCE LAW 25 intermediate points than were contemporaneously charged for the carriage of such commodity from Dallas to Hous- ton toward Shreveport for equal distances. A petition was filed by the carriers in the Commerce Court (which court has since been abolished) to annul the Commission's order, but subsequently the order as to class rates was put in force by the carriers and the attack in the Commerce Court was continued upon that portion of the order which prohibited higher commodity rates from Shreveport into Texas than those charged for eastbound traffic of the same commodities from Dallas and Houston, respectively, for equal distances. The constitutional question was raised in the Com- merce Court. It was charged that Congress was impo- tent to control the intrastate charges of an interstate car- rier even to prevent unjust discrimination against inter- state traffic, and that if it be assumed that Congress has this power, still it has not been exercised or delegated to the national Commission, and hence the action of the Commission exceeded the limits of authority which had been conferred upon it. T. & P. Ry. Co. vs. U. S., 205 Fed. Rep. 380, 382, 385. The carriers took an appeal from the Commerce Court to the Supreme Court of the United States. This latter court described the situation substantially as follows : "Shreveport, La., is about 40 miles from the Texas state line and 231 miles from Houston, Tex., on the line of the Houston, East & West Texas and Hous- ton and Shreveport companies (which are affiliated in interest) ; it is 189 miles from Dallas, Tex., on the line of the Texas & Pacific. Shreveport competes with both cities for the trade of the intervening ter- ritory. The rates on these lines from Dallas and Houston, respectively, eastward to intermediate points in Texas were much less, according to dis- 26 AMERICAN COMMERCE ASSOCIATION ■ tance, than from Shreveport westward to the same points. It is undisputed that the difference was sub- stantial, and injuriously affected the commerce of Shreveport. It appeared, for example, that a rate of 60 cents carried first-class traffic a distance of 160 miles to the eastward from Dallas, while the same rate would carry the same class of traffic only 55 miles into Texas from Shreveport. The first- class rate from Houston to Lufkin, Tex., 118.2 miles, was 50 cents per 100 pounds, while the rate from Shreveport to the same point, 112.5 miles, 69 cents. The rate on wagons from Dallas to Marshall, Tex., 147.7 miles was 36.8 cents, and from Shreveport to Marshall, 42 miles, 56 cents. The rate on furniture from Dallas to Longview, Tex., 124 miles, was 24.8 cents, and that from Shreveport to Longview, 65.7 miles, was 35 cents. These instances of differences in rates are merely illustrative; they serve to indicate the character of the rate adjustment." The holding of the Supreme Court was that the power to deal with the relation between intrastate and inter- state rates lies exclusively with Congress and in the ex- ercise of that power Congress can remove, directly or through the aid of a subordinate body, a discrimination arising from the relation of intrastate and interstate rates. The court called attention to the provisions of section 3 of the Act to Regulate Commerce making unlawful un- due or unreasonable prejudice or disadvantage and the provision of section 1 to the effect that the Act to Regulate Commerce shall not apply to commerce wholly within one state, and held that the Commission was authorized and empowered to deal with the situation before it in these cases. In the course of an exhaustive opinion, the Supreme Court said : "This language (of section 3) is certainly sweep- ing enough to embrace all the discriminations of the INTERSTATE COMMERCE LAW 27 sort described which it was within the power of Con- gress to condemn. There is no exception or qualifi- cation with respect to an unreasonable discrimination against interstate traffic produced by the relation of intrastate to interstate rates as maintained by the car- rier. It is apparent from the legislative history of the Act that the evil of discrimination was the prin- ciple thing aimed at, and there is no basis for the contention that Congress intended to exempt any in- terstate commerce which it had authority to reach. The purpose of the measure was thus emphatically stated in the elaborate report of the Senate Commit- tee on Interstate Commerce which accompanied it : 'The provisions of the bill are based upon the theory that the paramount evil chargeable against the oper- ation of the transportation system of the United States as now conducted is unjust discrimination be- tween persons, places, commodities, or particular de- scriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discrimina- tions' * * * "Congress thus (by the proviso of section 1) de- fined the scope of its regulation and provided that it was not to extend to purely intrastate traffic. It did not undertake to authorize the Commission to pre- scribe intrastate rates and thus to establish a unified control by the exercise of the rate-making power over both descriptions of traffic. Undoubtedly — in the ab- sence of a finding by the Commission of unjust dis- crimination — intrastate rates were left to be fixed by the carrier and subject to the authority of the states or of the agencies created by the states. This was the question recently decided by this court in the Minnesota Rate Cases, supra. * * * f^e pres- ent question, however, was reserved, the court say- ing (230 U. S. p. 419) : Tt is urged that the words of the proviso' (referring to the proviso above men- tioned) 'are susceptible of a construction which would permit the provisions of section three of the Act, pro- hibiting carriers from giving an undue or unreason- 28 AMERICAN COMMERCE ASSOCIATION able preference or advantage to any locality, to apply to unreasonable discriminations between localities in different states, as well when arising from an intra- state rate as compared with an interstate rate as when due to interstate rates exclusively. If it be assumed that the statute should be so construed, and it is not necessary now to decide the point, it would inevit- ably follow that the controlling principle governing the enforcement of the Act should be applied to such cases as might thereby be brought within its purview; and the question whether the carrier, in such a case, was giving an undue or unreasoHable preference or advantage to one locality as against another, or sub- jecting any locality to an undue or unreasonable prej- udice or disadvantage, would be primarily for the investigation and determination of the Interstate Commerce Commission and not for the courts.' "Here, the Commission expressly found that un- just discrimination existed under substantially similar conditions of transportation and the inquiry is wheth- er the Commission had power to correct it. We are of the opinion that the limitation of the proviso in section one does not apply to a case of this sort. The Commission was dealing with the relation of rates injuriously affecting, through an unreasonable dis- crimination, traffic that was interstate. The ques- tion was thus not simply one of transportation that was 'wholly within one state.' These words of the proviso have appropriate reference to exclusively in- trastate traffic, separately considered; to the regula- tion of domestic commerce, as such. The powers con- ferred by the Act are not thereby limited where in- terstate commerce itself is involved. This is plainly the case when the Commission finds that unjust dis- crimination against interstate trade arises from the relation of intrastate to interstate rates as maintained by a carrier subject to the Act. Such a matter is one with which Congress alone is competent to deal, and in view of the aim of the Act and the comprehen- sive terms of the provisions against unjust discrimin- i INTERSTATE COMMERCE LAW 29 ation, there is no ground for holding that the authori- ty of Congress was unexercised and that the subject was thus left without governmental regulation. It is urged that the practical construction of the statute has been the other way. But, in assailing the order, the appellants ask us to override the construction which has been given to the statute by the authority charged with its execution, and it cannot be said that the earlier action of the Commission was of such a controlling character as to preclude it from giving effect to the law. The Commission, having before it a plain case of unreasonable discrimination on the part of interstate carriers against interstate trade, carefully examined the question of its authority and decided that it had the power to make this remedial order. The Commerce Court sustained the author- ity of the Commission and it is clear that we should not reverse the decree unless the law has been mis- applied. This we cannot say; on the contrary, we are convinced that the authority of the Commission was adequate. "The further objection is made that the prohibi- tion of section three is directed against unjust discrim- ination or undue preference only when it arises from the voluntary act of the carrier and does not relate to acts which are the result of conditions wholly be- yond its control. East Tennessee, etc., Ry. Co. vs. Interstate Commerce Commission, 181 U. S. 1, 18, 45 L. Ed. 719, 21 Sup. Ct. 516. The reference is not to any inherent lack of control arising out of traffic conditions, but to the requirements of the local au- thorities which are assumed to be binding upon the carriers. The contention is thus merely a repetition in another form of the argument that the Commis- sion exceeded its power; for it would not be con- tended that local rules could nullify the lawful ex- ercise of Federal authority. In the view that the Commission was entitled to make the order, there is no longer compulsion upon the carriers by virtue of any inconsistent local requirement. We are not un- 30 AMERICAN COMMERCE ASSOCIATION mindful of the gravity of the question that is pre- sented when state and federal views conflict. But it was recognized at the beginning that the nation could not prosper if interstate and foreign trade were gov- erned by many masters, and where the interests of the freedom of interstate commerce are involved, the judgment of Congress and of the agencies it lawfully establishes, must control." H. E. & W. T. R. R. Co. vs. U. S., 234 U. S. 342, 58 L. Ed. 1341. On June 17, 1915, the Commission made a supplemen- tal report and order, Railroad Commissioners of Louisi- ana vs. St. L. S. W. Ry. Co., 34 I. C. C. 472. This order, which applied to many carriers not parties to the orig- inal proceeding, required among other things, that all the carriers named therein should establish and maintain from Shreveport to points in what was defined as "eastern Texas," and from those points toward Shreveport, class rates no higher than a certain mileage scale there found reasonable. This scale was based on the Texas class scale up to its maximum of 245 miles, and beyond on the Texas- Oklahoma scale to 400 miles. The order also required the carriers there defendant to cease and desist from charging, demanding, collecting, or receiving rates for the transportation of any commodity from Shreveport to des- tinations in eastern Texas higher than those contem- poraneously applied to the transportation of such com- modity for an equal distance from points in eastern Tex- as toward Shreveport, or higher, distance considered, than the corresponding class rates named in the order. In order to remove what was found to be unjust discrimina- tion the carriers were further required to establish, main- tain, and apply to the transportation of traffic from points in eastern Texas toward Shreveport, the provisions of the INTERSTATE COMMERCE LAW 31 current Western Classification in effect at the time the traffic moved. This supplemental order of the Commission was there- after followed by five applications to the Commission by- interested parties representing various cities, commercial organizations and industries in the State of Texas seek- ing relief from the order. The Commission several times suspended the taking effect of the tariffs issued in com- pliance with its supplemental order, and on July 7, 1916, after consolidation of the five proceedings by agreement of counsel for all interested parties, the Commission en- tered its order in "Railroad Commission of Louisiana vs. A. H. T. Ry. Co., 41 L C. C. Rep. 83," disposing of the entire proceedings. The issues in the consolidated cases, as set forth in the Commission's report, were: "(1) The Reasonableness of defendants' class and commodity rates between Shreveport and points in Texas; (2) whether or not such class and commod- ity rates are unduly prejudicial to Shreveport as compared with rates maintained by defendants for the transportation of like property for similar dis- tances within the state of Texas; and (3) whether or not the application of the provisions of the west- ern classification to the transportation of property between Shreveport and points in Texas while con- temporaneously applying the provisions of the Texas classification to the transportation of like property within the State of Texas results in undue prejudice "o Shreveport." The evidence in the consolidated cases showed striking discrepancies between rates for transportation between Shreveport and Texas points on the one hand and those for similar transportation within the State of Texas on the other. 32 AMERICAN COMMERCE ASSOCIATION Briefly, the Commission found that the class rates and rates on certain specified commodities between Shreveport and points in Texas were unreasonable, and unduly pre- judicial to Shreveport as compared with similar rates for like distances in Texas; and that the application to the transportation of property within Texas of classification rules different from and minimum carload weights lower than those applicable to transportation of like property between Shreveport and Texas point was unduly preju- dicial to Shreveport. Reasonable maximum rates be- tween Shreveport and Texas points were prescribed and the undue prejudices found to exist was ordered removed, the order becoming effective November 1, 1916. Upon the evidence adduced at this second rehearing the Com- mission modified in some respects the scale previously prescribed as maximum. The modifications so made were principally with regard to rates for short distances and were largely due to the showing made respecting termi- nal expenses, as set forth in the report. For many years Texas has been divided, with respect to traffic moving on class rates, into "common-point ter- ritory" and "differential territory." To the former it has been the practice to state class rates on a mileage basis, blanketed beyond 245 miles. To points in the latter, rates | are constructed by adding to the common-point rates what are known as differentials. This situation was created by the carriers. In prescribing just and reasonable rates to points in western Texas it became necessary for the Commission to prescribe rates between Shreveport and points in dif- ferential territory. The Commission does not lightly dis- rupt an adjustment of long standing, presumably suited to the needs of the territory affected, in the absence of evidence that the system is no longer necessary or works INTERSTATE COMMERCE LAW 33 unjust discrimination. No objection to the differential ter- ritory system was made at the hearing. Accordingly in prescribing just and reasonable class rates as maxima be- tween Shreveport and points in Texas, the Commission recognized existing conditions and prescribed maximum rates between Shreveport and points in common-point territory, with maximum differentials, graduated with the length of the haul, and based largely upon the Texas dif- ferential scale, for the transportaton between Shreveport and points in differential territory. The Commission's position with regard to its duties and powers in such cases as these is clearly set forth in the following excerpt from its report of July 7, 1916, in the Shreveport case, supra: "It may be regarded as established beyond any possibility of doubt that the present relationship of rates and the difference in classifications has been and is now unduly prejudicial to Shreveport and operates to unduly restrict the trade and commerce of that city. The only excuse for this apparent and admit- ted discrimination against Shreveport is the claim of the carriers that the intrastate rates in Texas are under the control of the Texas Railroad Commission and that the carriers are powerless to increase them except by permission of that body. "The power and authority of this Commission to make such order in a case of this kind as may be necessary to remove any unlawful discrimination now existing against interstate traffic has been fully sus- tained by the Supreme Court of the United States in Houston & Texas Ry. v. United States, supra. In that case the court said : 'Wherever the interstate and intrastate trans- actions of carriers are so related that the gov- ernment of the one involves the control of the other, it is Congress and not the state that is en- titled to prescribe the final and dominant rule, 18 — 4 » • 34 AMERICAN COMMERCE ASSOCIATION for otherwise Congress would be denied the exer- cise of its constitutional authority and the state and not the nation would be supreme within the national field.' "If the sole issue were whether or not the present adjustment of class and commodity rates between Shreveport and points in Texas is unduly prejudicial to Shreveport, it would be competent for us, if we found that complainants had sustained their allega- tion, to make an order requiring defendants to re- move such undue prejudice. In the absence of other requirements by federal or state authorities, such an order could be complied with by increasing the Texas rates to the level of the interstate rates, or by re- ducing the interstate rates to the intrastate basis, "Sliould the latter alternative be adopted, either voluntarily or under compulsion of the state authori- ties, the intrastate rates and regulations would be given extraterritorial force and would become the standard for interstate commerce. The effect of adopting such a plan would not stop with Shreveport. Alexandria and Monroe, La., Vicksburg, Miss., and other points are in competition with Shreveport for trade and commerce to and from Texas and, so far as we are advised, there is no more reason for ex- tending the Texas rates and classification to Shreve- port than to other points in Louisiana or other states east of the Mississippi River. "It can easily be conceived that if carriers, in re- moving undue prejudice against interstate commerce, were bound to follow the standard set by the state authorities, interstate rates, based in part on the re- quirements of one state and in part on those of others, would soon be in inextricable and intolerable confu- sion, productive of discord, and ruinous alike to ship- pers and carriers. This the commerce clause of the Constitution, under which the Congress has created this Commission and vested it with power, was de- signed to prevent. INTERSTATE COMMERCE LAW 35 *Tn this proceeding the allegation of undue prej- udice is not the sole issue. Defendants' class rates and many of their commodity rates are attacked as unjust and unreasonable. "It is perhaps unnecessary to say that the findings and conclusions of state commissions respecting the reasonableness of intrastate rates should be given great weight, that rates established in accordance with such findings should not lightly be disturbed and that we consider it our duty to cooperate in every proper way with the state authorities. "But the obligation placed upon us by the law re- quires us to exercise our best judgment upon the facts placed before us and in a case such as this, to prescribe just and reasonable maximum rates and enter such order as shall prevent or remove undue prejudice to interstate commerce, even though in some instances such action may incidentally affect the leval of intrastate rates." In its annual report for 1916 the Commission makes these timely observations relating to the practical admin- istrative problems which arise in cases like the Shreve- port case, supra. "Turning now to the practical administrative prob- . lems which the principles of the Shreveport Case present, we venture to submit certain considerations which in our judgment deserve to be kept in view when amendments to the act are contemplated. "We call to mind once more the fact that previous- ly noted, that this Commission has not reached out in a spirit of aggression to lay its hands on situations involving the principles of the Shreveport Case. While we have decided over 50 of such cases and more are being presented to us from time to time, we have dealt with them in the regular line of offi- cial duty. In all instances the complaints were filed by sovereign states, municipalities, public adminis- trative authorities, private associations of business 3i AMERICA:^ OOMMERCX ASSOCIATION se of - in — Case, mie idled States, to ^ rack -2x^ pmccci : _ er rrc satna.TKans lafte qoestiacif - — ~- prabileins latlicr tbaa — 5«ial issorsL Wbile are fmir f .■■ : <■»■ i i Jf f. of 3^ ve oetacwc tlial: evciy ' niatfa; be < l« tw iftrnl •• •■# ^ ( CHAPTER VI. ACT TO REGULATE COMMERCE AS AMENDED. (Continued) Amplification of Sections (Continued). ; AMPLIFICATION OF SECTION 7. § 1. Statutory Provisions. "That it shall be unlawful for any common carrier subject to the provisions of this Act to enter into any combination, contract, or agreement, expressed or im- plied, to prevent, by change of time schedule, car- riage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one contin- *'fMiIht?'m*u?t uous carriage from the place of shipment to the place eMtinSSlTi" u" of destination, unless such break, stoppage, or inter- iTa^oi'unt!* ruption was made in good faith for some necessary purpose, and without any intent to avoid or unneces- sarily interrupt such continuous carriage or to evade any of the provisions of this Act." §2. Interpretation of the Section. In an early case (10 I. C. C. Rep. 188) the Commission viewed the provisions of section 7 as not being directed toward any apparent practice of the carriers in interfer- ence with the continuity of through and continuous ship- ments, but it was observed by the Commission that the section might relate to any attempt on the part of the carriers to break the continuity of continuous through shipments at state lines in order to divest such shipments of their interstate character. 211 212 AMERICAN COMMERCE ASSOCIATION In a more recent case the Commission, again referring to this section of the Act, said: "Section 7 of the act to regulate commerce pro- hibits any arrangement whereby carriers may prevent the carriage of freight from being continuous from place of shipment to destination, or the carriage of freight from being and being treated as one continu- ous carriage from the place of shipment to the place of destination. It is not apparent that the require- ments of the carriers respecting minimum weights operate in any way to contravene the law as expressed in this section of the act." Douglas & Co. vs. I. C. R. R. Co., 31 I. C. C. Rep. 587, 606. § 3. Relation of Sections 7 and 3. The purpose of the provisions of the third and seventh sections of the Act relating to interchange of traffic is to secure through carriage and the freest possible inter- change of traffic along and over all lines and routes of carriers where the physical connections and conditions for such interchange exist, both in the interest of commerce and the impartial treatment of carriers connecting with each other. The Supreme Court holds the provisions of section 7 which make it unlawful for interstate carriers by any means or devices to prevent the continuous carriage of freight from the place of shipment to the point of destina- tion, as restrictive, only, of the powers of the carriers. So, in a case where a state court, by proper process and under state attachment laws, seized, and held the cars of an inter- state carrier, irrespective of the possible interruption to in- terstate transportation resulting therefrom, it was held that there had been no violation of this statute. The Su- preme Court, answering the defense of the carriers in the attachment case setting up the commerce clause of the »-• •"# * INTERSTATE COMMERCE LAW ^213 constitution and the seventh section of the Act to Regulate Commerce, said : "In our discussion we may address ourselves to the contention of defendants. They do not contend that the laws of the state have the purpose to interfere with the interstate commerce, or are directly contrary to the Acts of Congress. They do contend, however, that *to permit the instrumentalities used in the inter- change of traffic by railway common carriers to be seized on process from various state courts does di- rectly burden and impede interstate traffic within the inhibition of the Acts of Congress.' In other words, that the Acts of Congress constitute a declar- ation of exemption of railroad property from attach- ment, and, of course, from execution as well, by reason of their provisions for continuity of transportation. This can only result if there is incompatibility be- tween the obligations a railroad may have to its creditors and the obligations which it may have to the public, either from the nature of its service or under the Acts of Congress. * * * "It is very certain that when Congress enacted the Interstate Commerce Law it did not intend to abro- gate the attachment law of the states. It is very certain that there is no conscious purpose in the laws of the states to regulate, directly or indirectly, inter- state commerce. We may put out of the case, there- fore, as an element an attempt of the state to exercise control over interstate commerce in excess of its power. * * * The questions in the case, therefore, depend for their solution upon the interpretation of Federal laws. May the laws of the states for the enforcement of debts (laws which we need not stop to vindicate as necessary foundations of credit and because they give support to commerce, state and interstate), and the Federal laws which permit or enjoin continuity of transportation, so far incom- patible that the provisions of the latter must be con- strued as displacing the former. We do not think so. Section 5258 of the Revised Statutes is permis- 214 AMERICAN COMMERCE ASSOCIATION sive, not imperative. It removed the 'trammels inter- posed by state enactments or by existing laws of Congress' to the powers of railroad companies to make continuous lines of transportation. Railroad Co. v. Richmond, 19 Wall. 584, 589. The Interstate Com- merce Act, however, has a different character. It restricts the powers of the railroads. It regulates interstate railroads, and makes it unlawful for them by any 'means or devices' to prevent 'the carriage of freight from being continuous from the place of shipment to the place of destination.* (Section 7) The interstate commerce law therefore is directed against the acts of railroad companies which may prevent continuity of transportation. Section 5258 of the Revised Statutes was directed against the tram- mels of state enactments then existing or which might be attempted. In neither can there be discerned a purpose to relieve the railroads from any obligations to their creditors or take from their creditors any remedial process provided by the laws of the states, and, as we have seen, provided by Federal law as well. * * * The interference with interstate commerce by the enforcement of the attachment laws of a state must not be exaggerated. It can only be occasional and temporary. The obligations of a railroad com- pany are tolerably certain, and provisions for them can be easily made. Their sudden assertion can be almost instantly met; at any rate, after short delay and without much, if any, embarrassment to the con- tinuity of transportation. However, the pending case does not call for a very comprehensive decision on the subject." Davis vs. C. C. C. & St. L. Ry. Co., 217 U. S. 157. 54 L. Ed. 708. I. C. C. Annual Report 1895. A carrier and its employees may be enjoined by the courts from refusing to receive passengers and freight from competing lines. T. A. A. & N. M. Ry. Co. vs. Penn. Co., 54 Fed. Rep. 730. T. A. A. & N. M. Ry. Co. vs. Penn. Co.. 5 I. C. C. Rep. 545. CHAPTER VII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 8. § 1. Statutory Provisions. § 2. Section Gives Right of Action. § 3. Equity Jurisdiction Under the Act to Regulate Commerce. § 4. Effect of State Statutes of Limitation. § 5. Assignment of Claims for Damages or Overcharges. § 6. Reference Paragraph. 215 '_V /(ir»%%T "^ • ^ f.'A^^^^^rAf Ll *99 9 y,».«.4% t f » # i- j-fc Vi - a - ^ i-.-^-r^vis^r-* CHAPTER VII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 8. § 1. Statutory Provisions. "That in case any common carrier subject to the provisions of this Act shall do, cause to be done, or permit to be done any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby -for the full Tw daTalS amount of damages sustained in consequence of any i'atjon'' Jt* thii such violation of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attor- ney's fee shall be taxed and collected as part of the costs in the case." § 2. Section Gives Right of Action. Section 8 gives a right of action at law for damages suffered by any person or persons injured by violation of the provisions of the Act to Regulate Commerce. The section should be read in conjunction with section 9 which provides the means for the recovery of such damages. The remedial provisions of the Act as now amended have detracted much from the importance of section 8 as the Act stood before the amendments of 1906 and 1910. Under 217 Liability of eom- act. 218 AMERICAN COMMERCE ASSOCIATION judicial construction of the statutory right of action af- forded by section 8, strict proof is necessary not only of the violation of some provision of the Act to Regulate Commerce, but that the violation has, in fact, operated to the complaining person's injury. It is not enough to merely show that the carrier has violated some provision of the Act. The complaining party must affirmatively prove that he was injured by such violation. Thus, in the case of an unreasonable rate, or discrimi- natory practice, it must be shown that not only was the unreasonable rate actually charged and collected or that the unjust discrimination was actually inflicted upon the complainant, but that he was actually injured hereby. A failure to file tariffs, unless such failure operates to do injury to the plaintiff and thereby causes him actual dam- age, is not sufficient to sustain a right of action under this section. There is nothing in the Act to Regulate Commerce in which a presumption of damage can be inferred and the courts have never so held. In Penn. R. R. Co. vs. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446, the Supreme Court, in a case where the coal company had sued the carrier for the dif- ference between the rates paid by the coal company and lower rates effected through rebates allowed to other coal dealers making like shipments between the same points over the same railroad, said: t(C 'Section 2 of the original Senate bill said nothing about damages but in case of rebating gave a shipper a right, in the nature of an action, for a penalty to be measured by the difference between the lawful and the unlawful rate, whether damage resulted or not. That provision was stricken out and section 8 of the Act, as passed by both Houses of Congress INTERSTATE COMMERCE LAW 219 and approved by the President, gave a right of action for damages and attorney's fees to 'the person in- jured' — anc', of course, to the extent of the injury. There were many provisions in the statute for impris- onment and fines. On the civil side the Act provided for compensation — not punishment. Though the Act has been held to be in many respects highly penal, yet there was no fixed measure of damages in favor of the plaintiff. But, as said in Parsons v. Railway, 167 U. S. 447, 42 L. Ed. 231, 17 Sup. Ct. 887, con- struing this section (8) 'before any party can recover under the Act he must show not merely the wrong of the carrier, but that that wrong has in fact operated to his injury.' Congress had not then and has not since given any indication of an intent that persons not injured might, nevertheless, recover what though called damages would really be a penalty, in addition to the penalty payable to the Government. On the contrary, and in answer to the argument that dam- ages might be a cover for rebates, the Act of June 18, 1910 provided that where a carrier misquotes a rate it should pay a penalty of $250, not to the ship- per, but to the Government, recoverable by a civil action brought by the United States. 35 Stat. 166. Congressional Record (1910), 7569. The danger that payment of damages for violations of the law might be used as a means of paying rebates under the name of damages is also pointed out by the Commission in 12 I. C C 418-421 ; 14 I. C. C. 82. * * * "Indeed it is exceedingly doubtful whether there was at common law any right of action for any sort of damages in a case like this, while this statute does give a clear, definite and positive right to recover for unjust discrimination. It thereby either first created the right or removed the doubt as to whether such suit could be brought. The English courts had held that a shipper, who paid a reasonable rate, had no cause of action because the carrier had charged a lower rate to another. * * * But the English courts make a clear distinction between overcharge and dam- 320 AMERICAN COMMERCE ASSOCIATION ages, and the same is true under the Commerce Act. For if the plaintiff here had been required to pay- more than the tariff rate it could have covered the excess, not as damages but as overcharge, and while one count of the complaint asserted a claim of this nature, the proof did not justify a verdict thereon, for the plaintiff admitted that it had only paid the lawful rates named in the tariff. Of course, no part of such payment of lawful rates can be treated as an overcharge or as an extortion. "Having paid only the lawful rate plaintiff was not overcharged, though the favored shipper was illegally undercharged. For that violation of law, the carrier was subject to the payment of a fine to the Govern- ment and, in addition, was liable for all damages it thereby occasioned the plaintiff or any other shipper. But under section 8 it was only liable for damages. Making an illegal undercharge to one shipper did not license the carrier to make a similar undercharge to other shippers, and if having paid a rebate of 25 cents a ton to one customer, the carrier in order to escape this suit had made a similar undercharge to rebate to the plaintiff, it would have been criminally liable, even though it may have been done in order to equalize the two companies. For, under the statute, it was not liable to the plaintiff for the amount of the rebate paid on the contract coal, but only for the damages such illegal payment caused the plaintiff. The measure of damages was the pecuniary Ipss in- flicted on the plaintiff as the result of the rebate paid. Those damages might be the same as the re- bate, or less than the rebate or many times greater than the rebate. But unless they were proved they could not be recovered. Whatever they were they could be recovered, because section 8 expressly de- clares that wherever the carrier did an act prohibited or failed to do any act required, it should be 'liable to the person injured thereby for the full amount of dam- ages sustained in consequence of such violation, * * * together with reasonable attorney's fees.' In view INTERSTATE COMMERCE LAW 221 of this language it becomes necessary to inquire what the evidence shows was the injury inflicted or the damage sustained by the plaintiff in 1901 in conse- quence of paying rebates in 1901 on contract coal sold in 1899. * * * There was no proof of injury — no proof of decrease in business, loss of profits, expense incurred or damage of any sort suffered — the plaintiff claiming that, as a matter of law the damages should be assessed to it on the basis of giving to it the same rate, on all its tonnage, that had been allowed on any contract coal shipped, on the same dates, whether such tonnage was great or small. "Considering the multitude of instances in which discrimination has been practised by carriers, in ancient and modern times, it is remarkable how little is to be found in decisions or text books which treat of the elements and measure of damages in such cases. In the absence of any settled rule on the sub- ject, the new question must be determined on general principles. The statute gives a right of action for damages to the injured party, and by the use of these legal terms clearly indicated that the damages recov- erable were those known to the law and intended as compensation for the injury sustained. It is ele- mentary that in a suit at law both the fact and the amount of the damage must be proved. And al- though the plaintiff insists that in all cases like this the fact and amount of the pecuniary loss is matter of law, yet this contention is not sustained by the language of the Act, nor is it well founded in actual experience, as will appear by considering several usual and every-day instances suggested by testimony in this record. For example : — If plaintiff and one of the favored companies had both shipped coal to the same market on the same day, the rebate on contract coal may have given an advantage which may have pre- vented the plaintiff from selling, may have directly caused it expense, or may have diminished or totally destroyed its profits. The plaintiff, under the present statute in such case being then entitled to recover the 222 AMERICAN COMMERCE ASSOCIATION full damages sustained: — But the plaintiff may have sold at the usual profit all or a part of its 40,000 tons at the regular market price, the purchaser, on his own account, paying freight to the point of delivery. In that event not the shipper but the purchaser, who paid the freight, would have been the person injured, if any damage resulted from giving rebates. To say that seller and buyer, shipper and consignee, could both recover would mean that damages had been awarded to two where only one had suffered: — "Or, to make another example — a favored dealer may have shipped 10,000 tons of coal to the open New York market, receiving thereon a rebate of 35 cents a ton, or $3,500. The plaintiff at the same time may have shipped 20,000 tons and sold the same at the regular market price. Under the rule contended for it would then be entitled to 35 cents a ton on 20,000 tons, or $7,000 as damages. Such a verdict, instead of compensating it for lossess sustained, would have given to the plaintiff a profit on the carrier's crime in paying a rebate of $3,500 and would have made it an advantage to it instead of an injury for the carrier to violate the law. In order to avoid this anomalous, yet logical, result it is now suggested, as in the overcharge cases (Denaby v. Manchester Ry., L. R. II App. Cases 97) the plaintiff should only recover a rebate on 10,000 tons, or on the same weight upon which the carrier had allowed a drawback to the competitor. But, while less drastic, this is still an arbitrary measure and ignores the fact that the same anomalous result would follow if there had been, say, ten dealers, each shipping 10,000 tons on the same day. For, each of the ten would have been as much entitled as plaintiff to recover $3,500 on their several shipments of 10,000 tons, and the ten verdicts would aggregate $35,000, because of the payment of $3,500 to the favored shipper. "It is said, however, that while there may be no presumption that a shipper was injured because the carrier paid a rebate on a single shipment, or on an INTERSTATE COMMERCE LAW 223 occasional shipment, yet it could recover if rebates had been so habitually given as to establish a practice of discrimination. Proof that rebates were custom- arily paid, would come nearer showing that injury was suffered but would still fall short of proving the ex- tent of the damage, and is not the theory on which the plaintiff proceeds. For it argues that whenever it showed that a lower rate had been charged on con- tract coal sold in 1899 it was entitled to recover the same rate on shipment made by it to the same place on the same day in 1901, even though there had been no competition in the two sales and without proof that there had been any fall in market prices, dim- inution in its profits, decrease in its business, or in- crease in its expenses. It claimed that it was a mere matter of mathematics and that for every rebate on contract coal, plaintiff was entitled to a like reduction on every ton of its coal without further proof of damage or injury. "To adopt such a rule and arbitrarily measure dam- ages by rebates would create a legalized, but endless, chain of departures from the tariff; would extend the effect of the original crime, would destroy the equality and certainty of rates, and, contrary to the statute, would make the carrier liable for damages beyond those inflicted and to persons not injured. The limitation of Hability to the persons damaged and to an amount equal to the injury suffered is not out of consideration for the carrier who has violated the statute. On the contrary, the Act imposes heavy penalties, independent of the amount of rebate paid, and as each shipment constitutes a separate offense, the law in its measure of fine and imprisonment is a terror to evil doers. But for the public wrong and for the interference with the equal current of com- merce these penalties or fines were made payable to the Government. If by the same act a private injury was inflicted a private right of action was given. But the public wrong did not necessarily cause private damage, and when it did, the pecuniary laws varied 224 AMERICAN COMMERCE ASSOCIATION with the character of the property, the circumstances of the shipment, and the state of the market, so that instead of giving the shipper the right to recover a penalty fixed in amount or measure, the statute made the guilty carrier liable for the full amount of dam- ages sustained, — v^hatever they might be and whether greater or less than the rate of rebate paid. "This conclusion, that the right to recover is limited to the pecuniary loss suffered and proved, is demanded by the language of the statute, the construction put upon it years ago in the Parsons case, and is the view taken in the only other case we find in which this question, under the Act to Regulate Commerce, has been construed. In Knudsen v. Michigan Central R. R., 148 Fed. 968, it was said by the Circuit Court of Appeals for the Eighth Circuit that to 'support a re- covery under this section there must be a showing of some specific pecuniary injury. A cause of action does not necessarily arise from those acts or omissions of a common carrier that may subject it to a criminal prosecution by the Government or to corrective or coercive proceedings at the instance of the Commis- sion.' A similar principle was applied in Meeker vs. Lehigh Valley R. R., 183 Fed. 548, and in Central Coal Co. vs. Hartman, III Fed. 96, where the suit was to recover damages caused by a violation of the Anti-trust Act. "Another case, on facts quite like those here in- volved, is that of Hoover vs. Pennsylvania R. R., 156 Pa. 220, where the statute, like the Commerce Act, gave the party injured a right of action for damages suffered. In violation of the state law the railroad al- lowed a manufacturing company a rebate of 20 cents per ton on coal shipped. In a suit for the recovery of damages the trial court charged the jury that the dif- ference between the high and low rate was the meas- ure of recovery. This was reversed, the court say- ing: — 'The amount of injury suffered is the measure of the single damages to be allowed. But it does not at all follow that the amount of injury suffered is the INTERSTATE COMMERCE LAW 225 difference in the rates charged. It might be or it might not be, but, in any event, it must be a subject of proof. * * * It does not appear that the plain- tiffs sold their coal for any less than the current market price, except when they and the other dealers were engaged in a war of prices and sold far below cost in a struggle to capture the market.' "In view of the express provisions of section 8 of the Act to Regulate Commerce, it was error to refuse to charge that 'to entitle the plaintiff to recover, the jury must be satisfied that it sustained some loss or injury due to the fact that the defendant was carry- ing at the same time at lower rates coal shipped by other shippers.' " See also: Parsons vs. C. & N. W. Ry. Co., 167 U. S. 447, 42 L. Ed. 231, holding that "before any party can recover under the Act he must show not merely the wrong of the carrier, but that that \yrong has in fact operated to his injury," and that , penalties are not recoverable on mere possibilities." Meeker vs. L. V. R. R. Co., 236 U. S. 412, 59 L. Ed.— Mitchell Coal & Coke Co. vs. Penn. R. R. Co., 230 U. S. 247, 57 L. Ed. 1472. Morrisdale Coal Co. vs. Penn. R. R. Co., 230 U. S. 304, 57 L. Ed. 1474. Compare : Galveston, Harrisburg & San Antonio R. Co. vs. Wallace, 223 U. S. 481, 56 L. Ed. 516, holding that damages resulting from the failure of the carrier to deliver goods is not traceable to a violation of the provisions of the Act to Reg- ulate Commerce. Atlantic Coast Ry. Co. vs. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167. § 3. Equity Jurisdiction Under the Act to Regulate Com- merce. The United States Courts have jurisdiction of a suit in equity to enforce compliance with the provisions of the Act to Regulate Commerce and to require carriers to com- ply with the terms of such Act by affording proper and 18—16 226 AMERICAN COMMERCE ASSOCIATION reasonable facilities for interchange of traffic and enjoin- ing such carriers from refusing to receive for transporta- tion over their lines carload shipments w^hich might be tendered them, as a case arising under the constitution and laws of the United States. Central Stock Yards Co. vs. L. & N. R. R. Co., 192 U. S. 568, 48 L. Ed. 565. In re Lennon, 166 U. S. 548, 41 L. Ed. 1110. The power of equity jurisdiction in cases brought on behalf of the Interstate Commerce Commission was ex- pressly conferred by the Elkins Act. Md. Pac. Ry. Co. vs. U. S., 189 U. S. 274, 47 L. Ed. 811. § 4. Effect of State Statutes of Limitation. The Act to Regulate Commerce contains no limitation of time for the bringing of suits for the recovery of dam- ages under the right of action conferred by section 8, except when action is brought, under the provisions of section 9, before the Commission, in which latter case a limitation of 2 years is imposed. Act to Regulate Commerce (Amd. 1910), section 16. Where actions are brought in the courts, under the sanction of section 8, the statute of limitations of the state in which the suit is instituted, governs. Revised Stats. U. S., section 721. See also: Bank vs. Eldred, 130 U. S. 693, 32 L. Ed. 1080. Ratican vs. Terml. R. R. Assn., 114 Fed. Rep. 666. Coop vs. L. & N. R. R. Co., 50 Fed. Rep. 164. Murray vs. C. & N. W. R. Co., 92 Fed. Rep. 868. See also: M. K. & T. Ry. Co. vs. Harris, 234 U. S. 412, 58 L. Ed. 1377. M. K. & T. Ry. Co. vs. Cade, 233 U. S. 642, 58 L. Ed. 1135. Atlantic Coast Line vs. Riverside Mills, 219 U. S. 186, 208, 55 L. Ed. 167. INTERSTATE COMMERCE LAW 227 § 5. Assignment of Claims for Damages or Overcharges. Inasmuch as claims for damages or overcharges under section 8 and section 9 constitute property rights, such claims may be assigned and the action for recovery main- tained in the name of the assignee. Edmunds vs. I. C. R. R. Co., 80 Fed. Rep. 78. See also: P. R, R. Co. vs. Internl. Coal Co., 173 Fed. Rep. 1, where this principle was sustained where sale of the original claim- ant's corporate property had intervened before recovery was sought. § 6. Reference Paragraph. See also citations of cases in connection with amplifica- tion of section 9, post Because of the interdependency of the provisions of sections 8 and 9 of the Act to Regulate Commerce, the subject of Damages will be dealt with in subsequent chap- ters commencing with Chap. IX, following the amplifica- tion of section 9, post. CHAPTER VIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 9. § 1. Statutory Provisions. § 2. Right of "Election of Tribunal" by Injured Person. § 3. Jurisdiction and Equity Under the Act to Regulate Commerce. 229 CHAPTER VIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 9. § 1. Statutory Provisions. "That any person or persons claiming to be dam- aged by any common carrier subject to the provisions of this Act may either make complaint to the Com- mission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of the Act, in any district or cir- cuit court of the United States of competent jurisdic- tion; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of pro- cedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding." 231 Penan* elalmlni to ba damafta may •■ cat whethar to complain to the CommlttloR vr bring (ult In a Unltad Stata* court Offlears o f il • • fendant may ba eompalled to tertify, but shall raealv* Immunity. J^XESSL-^JX. alflilWlirfflBCE: ASSOCy^XBOST ?, Ii:.Ll--_ - ■ ■ . ; "T " ! '.*" " ~ ■ —it til, 1 : . . 'ii;:r.?.". Lxi — rx^*'ir.-''v»-ir ■*• danni: : . * ilu}iinuu :mnr : a ' e: : mriTTi tt aiw^gff ^cgHHwltiiMfffi rftfheAct -iir-snnniiiL _: . i.-_ t ...- li.-i.: 3e CfimmaajtiK Cknnnis- .ill imiiiriHin TrfTHnifVHHTnr?; ;h> nihf- A.rrr 5i! IMfe T"' rsdRoaiy off fiamaj"- . -liii.T ij .: ' •— ^''^'MfflB «ff tfcc J^r* ' mnisiiii. v'^- "^ Ae Cbh " la. ■ ■ '^'Z '-—'-•'■' — ■_ - ■ - ■ . " Ililli;-.^uii. '^ — — - ■ ■ ' mTyiT .ix.iLJi. V :. 'iirinitr: .-- — - ■ ■ " ijrrZiSTATZ CDIOCE^CZ -TTC -fl^-- 234 AMERICAN COMMERCE ASSOCIATION remedy which is inconsistent with the provisions of the Act to Regulate Commerce. Hence, it is clear that the only suits which may be maintained in the courts for the redress of wrongs per- petrated against the provisions of the Act, are those suits in which the action of the court is consistent with the entire context of the Act, and which do not require previous action by the Commission before the redress can be de- creed by the court. The Act as now amended not only suspends the ship- per's right to institute action for recovery of damages in all cases where the condition precedent to his right to proceed in the courts is the previous action of the Commis- sion declaring the wrong and its extent, but supersedes it entirely. Thus, in an action for damages on account of alleged discrimination, such action cannot be maintained in the courts until the Commission has first determined if the act of the carrier complained of was unduly discrimi- natory within the provisions of the Act and fixed the ex- tent of the discrimination. This does not mean, however, that the converse of the rule is also untenable because an action may be maintained in the courts for the recovery of damages resulting from an unlawful discrimination in rates where the measure of such damages is the difference between the amount paid by the claimant and the amount paid by other shippers under substantially the same circumstances and conditions and during the same period of time. In such a case it may be properly said that there is no question to be sub- mitted to the Commission and that the action is solely and completely determinable by the courts. The decision of the Supreme Court in the Abilene Cot- ton Oil Co. case (204 U. S. 426, 51 L. Ed. 553) declared it INTERSTATE COMMERCE LAW 235 to' be an established principle that the courts could not pri- marily interfere with or invade the administrative functions vested in the Commission, and that complaints which were primarily within the administrative competency of the Commission, clothed by statute with original authority, are not subject to be judicially enforced, at least, until the Commission has had a proper opportunity to "exert its administrative functions." B. & O. R. R. Co. vs. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292. When the Commission has acted and has declared a rate unreasonable or a discrimination unjust, action may be judicially undertaken under the provisions of section 16 of the Act, the parties having stipulated in the proceedings prosecuted under that section, that the court adjudge the amount of reparation. So. Ry. vs. Tift, 206 U. S. 428, 51 L. Ed. 1124. Macon Gro. Co. vs. A. C. L. R. Co., 215 U. S. 501, 51 L. Ed. 300. Undoubtedly the best considered case in which the Su- preme Court has had before it the fundamental functions of the Commission under the commerce statute was the Abilene Cotton Oil Co. case, supra. Action was brought in the state courts of Texas to recover from a carrier freight charges alleged to have been paid to it in excess of a just and reasonable rate, which rate was the one fixed in the tariffs which the carrier had published, filed, and posted in accordance with the requirements of the Act to Regu- late Commerce. Addressing itself to the judicial question, the Supreme Court said : "When the Act to Regulate Commerce was enacted there was contrariety of opinion whether, when a rate charged by a carrier was in and of itself reasonable, 236 AMERICAN COMMERCE ASSOCIATION the person from whom such a charge was exacted had at common law an action against the carrier because of damage asserted to have been suffered by a dis- crimination against such person or a preference g^ven by the carrier to another. (Parsons vs. Chicago and Northwestern Railway, 167 U. S. 447, 455, 42 L. Ed. 231, 17 Sup. Ct. 887; Interstate Commerce Commis- sion vs. Baltimore and Ohio Railroad, 145 U. S. 263, 275, 36 L. Ed. 699, 12 Sup. Ct. 844). That the Act to Regulate Commerce was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue preference is undoubted. Indeed, is it not open to controversy that to provide for these subjects was among the principal purposes of the Act. (Interstate Commerce Commis- sion vs. Cincinnati, New Orleans and Texas Pacific Railway Co., 167 U. S. 479, 494, 42 L. Ed. 243, 17 Sup. Ct. 896.) And it is apparent that the means by which these great purposes were to be accomplished was the placing upon all carriers the positive duty to establish schedules of reasonable rates which should have a uniform application to all and which should not be departed from so long as the established sched- ule remained unaltered in the manner provided by law. (Cincinnati, New Orleans and Texas Pacific Railway Co. vs. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Inter- state Commerce Commission vs. Cincinnati, New Or- leans and Texas Pacific Railway Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896.) "When the general scope of the Act is enlight- ened by the considerations just stated it becomes manifest that there is not only a relation, but an indis- soluble unity between the provision for the estab- lishment and maintenance of rates until corrected in accordance with the statute and the prohibitions against preferences and discriminations. This fol- lows, because unless the requirement of a uniform standard of rates be complied with it would result that violations of the statute as to preferences and INTERSTATE COMMERCE LAW 237 discrimination would inevitably follow. This is clearly so, for if it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of a shipper by a court and jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be un- reasonable and ordering the carrier to desist in the future from violating the Act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would re- ceive a preference or discrimination not enjoyed by those against whom the schedule of rates was contin- ued to be enforced. This can only be met by the sug- gestion that the judgment of a court, when based upon a complaint made by a shipper without previous action by the Commission, would give rise to a change of the schedule rate and thus cause the new rate resulting from the action of the court to be applicable in the fu- ture as to all. This suggestion, however, is manifestly without merit, and only serves to illustrate the abso- lute destruction of the Act and the remedial provi- sions which it created which would arise from a recog- nition of the right asserted. For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. In- deed the recognition of such a right is wholly incon- sistent with the administrative power conferred upon the Commission and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. Equally obvious is it that the existence of such a power in the courts, independent of prior action 238 AMERICAN COMMERCE ASSOCIATION by the Commission, would lead to favoritism, to the enforcement of one rate in one jurisdiction and a different one in another, would destroy the prohibitions against preferences and discrim- ination, and afford, moreover, a ready means by which, through collusive proceedings, the wrongs which the statute was intended to remedy could be successfully inflicted. Indeed no reason can be per- ceived for the enactment of the provision endowing the administrative tribunal, which the Act created, with power, on due proof, not only to award repara- tion to a particular shipper, but to command the car- rier to desist from violation of the Act in the future, thus compelhng the alteration of the old or the filing of a new schedule, conformably to the action of the Commission, if the power was left in courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to previous action by the Commission in the premises. This must be, because, if the power existed in both courts and the Commission to originally hear com- plaints on this subject, there might be a divergence between the action of the Commission and the deci- sion of a court. In other words, the established schedule might be found reasonable by the Commis- sion in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the Act impossible. "Nor is there merit in the contention that section 9 of the Act compels to the conclusion that it was the purpose of Congress to confer power upon courts primarily to relieve from the duty of enforcing the established rate by finding that the same as to a par- ticular person or corporation was so unreasonable as to justify an award of damages. True it is that the general terms of the section when taken alone might sanction such a conclusion, but when the provision of that section is read in connection with the context of the Act and in the light of the considerations which tiCTERSTATE COMMERCE LAW 239 we have enumerated we think the broad construction contended for is not admissible. And this becomes particularly cogent when it is observed that the power of the courts to award damages to those claiming to have been injured, as provided in the section, con- templates only a decree in favor of the individual complainant, redressing the particular wrong asserted to have been done, and does not embrace the power to direct the carrier to abstain in the future from sim- ilar violations of the Act; in other words, to command a correction of the established schedules which power, as we have shown, is conferred by the Act upon the Commission in express terms. In other words, we think that it inevitably follows from the context of the Act that the independent right of an individual originally to maintain actions in courts to obtain pe- cuniary redress for violations of the Act conferred by the ninth section must be confined to redress of such wrongs as can, consistently with the context of the Act, be redressed by courts without previous action by the Commission, and, therefore, does not imply the power in a court to primarily hear complaints concerning wrongs of the char- acter of the one here complained of. Although an established schedule of rates may have been altered by a carrier voluntarily or as the result of the enforcement of an order of the Commission to desist from violating the law, rendered in accordance with the provisions of the statute, it may not be doubted that the power of the Commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs un- lawfully suffered from the application of the unrea- sonable schedule during the period when such sched- ule was in force. "And the conclusion to which we are thus con- strained by an original consideration of the text of the statute finds direct support, first, in adjudged cases in lower federal courts. and in the construction which the Act has apparently received from the be- 240 AMERICAN COMMERCE ASSOCIATION ginning in practical execution; and, second, is persua- sively supported by decisions of this court, which, whilst not dealing with the questions here presented, yet necessarily concern the same. * * * When it is considered that the Act to Regulate Commerce was enacted in 1887, and that neither the diligence of counsel nor our own researches have brought into view any case except the one now under considera- tion, holding that a court could, compatibly with the terms of that Act, grant relief upon the basis that the established rate could be disregarded as unrea- sonable, it would seem to follow that the terms of the Act had generally been treated in practical execution as incompatible with the existence of such power or right. And this is greatly fortified when it is borne in mind that the reports of the decisions of the Inter- state Commerce Commission show that many cases have been passed upon by that body concerning the unreasonableness of a rate fixed in an established schedule, which have resulted in awarding reparation to shippers and to the making of orders directing carriers to desist from future violation of the Act; that is to say, the necessary legal efifect correcting established schedules. "The cases of Cincinnati, New Orleans and Texas Pacific Railway Co. vs. Interstate Commerce Commis- sion, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Louisville and Nashville Railroad Co. vs. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209, and Interstate Commerce Commission vs. Louisville and Nashville Railroad Co., 190 U. S. 273, 47 L. Ed. 1047, 23 Sup. Ct. 687, involved the enforcement against car- riers of orders of the Commission, 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 declined to consider the question of the reasonableness per se of the rates as an original question; in other words the correction of the estab- lished schedule without previous consideration of the subject by the Commission. It was pointed out that INTERSTATE COMMERCE LAW 241 by the effect of the Act to Regulate Commerce it was pecuHarly 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, de- clared to be the duty of the courts, where the Commis- sion 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 conception that courts, in independent pro- ceedings, were empowered by the Act to Regulate Commerce, equally with the Commission, primarily to determine the reasonableness of rates in force through an established schedule. * * * "When the Commission is called upon on the com- plaint of an individual to consider the reasonableness of an established rate, its power is invoked not merely to authorize a departure from such rate in favor of the complainant alone, but to exert the authority con- ferred upon it by the Act, if the complaint is found to be just, to compel the establishment of a new sched- ule of rates applicable to all. And like reasoning would be applicable to the granting of reparation to an individual after the establishment of a new schedule because of a wrong endured during the period when the unreasonable schedule was enforced by the car- rier and before its change and the establishment of a new one. In other words, the difference between the two is that which on the one hand would arise from destroying the uniformity of rates which it was the object of the statute to secure and on the other from enforcing that equality which the statute com- mands. * * * Concluding, as we do, that a shipper seeking reparation predicated upon the unreasonable- ness of the established rate must, under the Act to Regulate Commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain pro- ceedings for the alteration of an established schedule, because the rates fixed therein are unreasonable, it 18—17 242 AMERICAN COMMERCE ASSOCIATION is unnecessary for us to consider whether the court below would have had jurisdiction to afford relief if the right asserted had not been repugnant to the provisions of the Act to Regulate Commerce." T. & P. Ry. Co. vs. Abilene Cotton Oil Co., 204 U. S. 426, 442, 41 L. Ed. 553. In Mitchell Coal & Coke Co. vs. P. R. R. Co., 230 U. S., 247, 57 L. Ed. 1472, the coal company sued in the federal courts for damage suffered because of the payment of rebates to other coal companies in the same field. The published tariff named the rate from station to destina- tion, but it was usually construed to include the haul from the mines within the district to the station and was so applied upon all the shipments made by the plaintiff and its competitors. The defendant had paid to complaint's competitors so-called trackage or lateral allowances as compensation for hauling cars from their mines to the station. Defendant sought to justify the allowance, con- tending that because of dissimilar conditions it could itself haul plaintiff's cars from the mines but could not do so economically for the other mine operators. The Supreme Court held that whether or not the allowance was proper was an administrative question for his Commission to pass upon, and that hence the action did not lie, and on page 255 of its opinion said: "But these claims of the parties emphasize the fact that there are two classes of acts which may form the basis of a suit for damages. In one legal quality of the practice complained of may be definitely fixed by the statute so that an allowance, otherwise permis- sible, is lawful or unlawful according as it is reason- able or unreasonable. But to determine that question involves a consideration and comparison of many and v5irious facts and calls for the exercise of the discre- tion of the rate-regulating tribunal. The courts have INTERSTATE COMMERCE LAW 243 not been given jurisdiction to fix rates or practices in direct proceedings, nor can they do so collaterally dur- ing the progress of a law suit when the action is based on the claim that unreasonable allowances have been paid. If the decision of such questions was committed to different courts with different juries the results would not only vary in degree, but might often be op- posite in character, to the destruction of the uniform- ity in rate and practice which was the cardinal object of the statute." On pages 256 and 257: "It is argued that this conclusion ignores sections 9 and 22, which give the shipper the option of suing in the courts or applying to the Commission. The same argument was made and answered in the Abi- lene case by showing that to permit suits based on the charge that a particular practice was unreasonable, without previous action by the Commission, would repeal the many provisions of the statute requiring uniformity and equality. For, manifestly, such uni- formity and equality can not be secured by separate suits before separate tribunals involving the reason- ableness of a rate or practice. The evidence might vary, and, of course, the verdicts would vary, with the result that one shipper would succeed before one jury and another fail before a different jury, where the resonableness of the same practice was in- volved. Manifestly, different verdicts would occasion inequality between the two shippers, and it is equally manifest that if the Commission had made one order of which both could avail themselves, there would have been one finding, of which one, two, or a score of shippers could equally avail themselves. The claim that this conclusion nullifies section 9 is concretely an- swered by the fact that the court has just decided to the contrary in Pennsylvania R. R. vs. International Coal Co. There the carrier insisted that a suit for damages, occasioned by rebating, could not be main- 244 AMERICAN COMMERCE ASSOCIATION tained without preliminary action by the Commission. This contention was overruled, and it was held that, for doing an act prohibited by the statute, the injured party might sue the carrier without previous action by the Commission, because the courts could apply the law prohibiting a departure from the tariff to the facts of the case. But where the suit is based upon reasonable charges or unreasonable practices there is no law fixing what is unreasonable and therefore pro- hibited. In such cases the whole scope of the statute shows that it was intended that the Commission and not the courts should pass upon that administrative question. When such order is made it is as though the law for that particular practice had been fixed, and the courts could then apply that order, not to one case, but to every case — thereby giving every shipper equal rights and preserving uniform- ity of practice. Section 9 gives the plaintiff the option of going before the Commission or the courts for damages occasioned by a violation of the statute. But since the Commission is charged with the duty of determining whether the practice was so unrea- sonable as to be a violation of the law, the plaintiff must, as a condition to his right to succeed, produce an order from the Commission that the practice or the rate was thus unreasonable and therefore illegal and prohibited." In C. R. I. & P. Ry. Co. vs. Hard wick Farmers' Elevator Co., 226 U. S. 426, 57 L. Ed. 284 the Supreme Court re- ferred to the coordination of sections 8, 9 and 10 of the Act to Regulate Commerce as follows : "Not only is there then a specific duty imposed to furnish cars for interstate traffic upon reasonable re- quest therefor, but other applicable sections of the Act to Regulate Commerce give remedies for the viola- tion of that duty. Thus, by section 8, is it provided 'That in case any common carrier subject to the provisions of this Act * * * shall omit to do any INTERSTATE COMMERCE LAW 245 act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damage sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.' Further by section 9, an election is given either to make complaint to the Interstate Commerce Commis- sion or to bring, in a designated court, an action for the recovery of damages, and by section 10 it is made a criminal offense for an employee of a corporation car- rier to 'willfully omit or fail to do any act, matter, or thing in this Act required to be done.' " In reviewing these expressions of judicial opinion the Commission in Vulcan Coal & Mining Co. vs. I. C. R. R. Co., 33 I. C. C. Rep. 52, 63, said: "Because of the importance of the subject, we have quoted at length the statements of the Supreme Court of the United States on the question of priority of jur- isdiction as between the Commission and the courts. We will now consider their bearing upon defendant's contentions. A careful examination of the language used by the Supreme Court shows that it has nowhere declared that there can be no concurrent jurisdiction of the Commission and the courts. True, it has stated that section 9 must be read in the light of the remain- der of the Act and can not be so interpreted as to defeat the purposes of the Act. For that reason it was held that certain questions may not be brought before the courts for adjudication without a prior de- termination by this Commission. The fallacy of de- fendant's reasoning becomes evident when we con- sider the reasons assigned by the court for not assuming original jurisdiction of administrative ques- tions. In the Abilene case the court said that an interpretation of the Act which would allow a shipper 246 AMERICAN COMMERCE ASSOCIATION to obtain relief upon the basis that the established rate was unreasonable in the opinion of a court and jury would 'destroy the prohibition against preference and discrimination;' and would 'make it impossible to maintain 'a uniform standard of rates.' In other words, an opposite holding would have accomplished the very thing which the Act to Regulate Commerce was intended to prevent. Can it be argued that it the Commission assumed jurisdiction in the present case the accomplishment of the objects and purposes of the Act would be endangered? It is obvious that such a contention can not be made. In the Mitchell case it is definitely stated that 'section 9 gives the plaintiff the option of going before the Commission or the courts for damages occasioned by a violation of the statute.' The only exception made in any instance is that necessitated by the prior adjudication by the Commission of an administrative question. "Furthermore, one can not escape the conclusion that the question as to the extent to which defendant failed to comply with the duty it owed complainants to furnish cars upon reasonable request therefor is an administrative one of which the Commission alone can take original jurisdiction. This must be true unless it be the carrier's absolute duty to furnish cars at all times to the full extent of the shipper's demands. Only then would this complaint present a question like that considered in P. R. R. Co. vs. International Coal Co., supra. It may be that after the determina- tion by the Commission of the number of cars which the defendant should have furnished and of the times when it should have furnished them the courts would have concurrent jurisdiction with the Commission of the ascertainment of the damages suffered by com- plainants by reason of defendant's failure to perform that duty. However, it is not a carrier's duty to furnish all cars demanded at all times. In substance section 1 provides that upon reasonable request it shall be the duty of every carrier to furnish cars. By virtue ' of these requirements it becomes the carrier's duty INTERSTATE COMMERCE LAW 247 to maintain a reasonably adequate car supply and the question of what is a reasonably adequate car supply is just as much an administrative one as the question of what is a reasonable rate. The legal sufficiency of defendant's car supply can not be definitely fixed by the statute. It is a question which, using the lan- guage of the court in the Mitchell case, 'involves a con- sideration and comparison of many and various facts and calls for the exercise of the discretion of this tribunal. "It does not necessarily follow, however, that every case involving car supply must come first before this Commission. It is obvious that if a carrier should absolutely refuse to furnish a shipper cars under any circumstances that would be a violation requiring no administrative determination, and the courts could take primary jurisdiction. It would be analogous to the situation presented in P. R. R. Co. vs. Internation- al Coal Co., supra, or Danciger vs. Wells Fargo & Co,, supra, and L. &. N. R. R. Co. vs. Cook Brg. Co., supra, to which defendant referred in its argument. In the latter case it was held to be unnecessary under the rule in the Abilene case for a shipper, who had been refused transportation of liquor into dry terri- tory because of the alleged prohibition of a state statute, to go to the Commission before suing for a mandatory injunction to compel such service. "A large number of the cases now before the courts involving the adequacy of carriers' car supply, and which defendant contends must be held to be im- properly before the courts should the Commission have jurisdiction in the present case, are undoubtedly cases of the sort referred to in the preceding para- graph. So, also, cases involving the adequacy of car supply for intrastate shipments are obviously with- in the jurisdiction of state tribunals. "The distinction between a case involving car sup- ply of which this Commission has primary jurisdiction and a case which may be brought before the courts without a prior determination by the Commission is 248 AMERICAN COMMERCE ASSOCIATION clearly stated in United States vs. L. &. N. R. R. Co., 195 Fed. 88. In that case the United States Com- merce Court was petitioned for a writ of mandamus commanding defendants to transport coal over the through routes and at the joint rates which had been established by them. It appears that there had been a controversy of long standing between defendants as to which carrier should furnish cars for loading at the mines of the petitioners. The court held: 'This court has no jurisdiction to consider the question of car distribution in advance of some action by the Interstate Commerce Commission or to determine how many cars the Southern Rail- way shall furnish or how many the Louisville & Nashville Railroad shall furnish for the transporta- tion of the petitioners' coal. It is believed, how- ever, that this court has the undoubted jurisdiction upon the facts presented by the record to issue a writ or writs of mandamus directed to these com- mon carriers, commanding them that, so long as they establish and maintain through routes and joint rates to southeastern territory, they shall move and transport in interstate commerce the coals of the petitioners when tendered in such reasonable quantities as may be determined either by agree- ment with the carriers or by the Interstate Com- merce Commission if they can not agree.' "Another decision of the Supreme Court of the United States which involves a question of car supply is C, R. I. & P. Ry. Co. vs. Hardwick Farmers' Eleva- tor Co. 226 U. S. 426. In that case the court had under consideration the validity of a Minnesota stat- ute which, among other things, undertook to penalize carriers in the sum of one dollar per car per day for failing to supply cars upon demand. The Supreme Court held that Congress had legislated upon the sub- ject of furnishing cars and that state regulations, in so far as they applied to interstate shipments, must yield to the supreme power conferred upon Congress by the commerce clause of the federal constitution." INTERSTATE COMMERCE LAW 249 §3. Jurisdiction and Equity Under the Act to Regulate Commerce. Where formerly the general jurisdiction of courts of equity for the protection of rights in interstate commerce, whether private or public, was complete, the 1910 amend- ment of the Act enlarged the powers of the Commission and vested in it the right to suspend and increase rates for a stated period for the purpose of investigating their reasonableness and propriety, thus giving to shippers the right to complain to the Commission and secure proper relief throught that tribunal. If the Commission con- demns an advance of rates as unreasonable the courts can, in a proper proceeding, enjoin the carriers from enforcing the advance, but the shippers are no longer dependent upon the courts for that form of relief. As stated in the ampli- fication of section 8, ante, only those cases which involve the Act to Regulate Commerce and are not such as the law requires shall be submitted to the Commission, are within the judicial competency of the courts. Thus, in a case where the state of Kentucky had by statute made it unlawful for carriers to transport liquor into dry districts of that state, the carrier refused to accept interstate ship- ments of liquor destined to points in the state of Kentucky subject to the local option law. A suit in equity was instituted to compel the carrier to accept such shipments. The case was appealed to the Supreme Court of the United States and that court, in the course of its opinion, said : "Valid as the Kentucky legislation undoubtedly was as a regulation in respect to intrastate shipments of such articles, it was most obviously never an efifective enactment in so far as it undertook to regulate inter- state shipments to dry points. * * * The fact that the circular notice of the company referred to was filed with the Interstate Commerce Commission is inciden- 250 AMERICAN COMMERCE ASSOCIATION tally stated in the answer of the company, and this fact is now made the basis for an argument that neither the state court nor the Circuit Court had any jurisdiction, and that an application should have been made to the Interstate Commerce Commission for an order requir- ing the railroad company to desist from refusing to transport such articles in interstate commerce. Why should the brewing company have made complaint to the Commission? What relief could it afford? There was no tariff question. There was no discrimination against shipments tendered by complainant and like shipments tendered by other brewers to the same points. There was no claim that the commodities ten- dered were inherently dangerous to transport or that the railroad company did not have transportation fa- cilities. Evansville was not discriminated against in favor of like shipments to the same points. To say that there was a discrimination between ship- ments of intoxicants and other commodities does not make a case of discrimination or preference where the denial of such shipments is based, as is the case here, wholly and solely upon an illegal restraint upon that kind of interstate commerce, is to reason in a circle, for the question comes back at last to the validity of the law forbidding such shipments. There was no discrimination if the law was valid, and the result must turn, not upon any administrative ques- tion or questions of fact within the scope of the power of the Commission, but upon the validity of the legis- lation which controlled the action of the carrier. That is a question of general law for a judicial tribunal, and one not competent for the Commission as a pure- ly administrative body. The decision in the case of Texas and Pacific Railway vs. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, is not applicable here. The question there was one of the reasonableness of a rate. Such a question is pri- marily one of administrative character, and the prop- riety of a prior resort to the Commission to obtain a ruling upon the question of reasonableness involved INTERSTATE COMMERCE LAW 251 the very heart of the whole statute. That there might be uniformity in rate-making necessarily required a resort to that body as a basis for a common law recov- ery of an excessive charge.' " L. & N. R. R. Co. vs. Cook Brg. Co., 223 U. S. 70, 56 L. Ed. 355. Stated in another sense, and as a general proposition, courts of equity have jurisdiction over all actions growing out of alleged violations of the provisions of the Act to Regulate Commerce wherein the Commission has no pow- er to furnish relief in the premises. N. Y. N. H. & H. R. R. Co. vs. I. C. C, 200 U. S. 361, 50 L Ed. 515. Meeker vs. L. V. R. R. Co., 236 U. S. 412, 59 L. Ed.— Philips vs, G. T. W. Ry. Co., 236 U. S. 662, 59 L. Ed.— T. & P. Ry. Co. vs. Amer. Tie & Lumber Co., 234 U. S. 138, 58 L. Ed. 1255. P. R. R. vs. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446. Baer Bros. Merc. Co. vs. D. & R. G. R. R. Co., 233 U. S. 479, 58 L. Ed. 1055. T. C. C. vs. I. C. R. Co., 215 U. S. 452, 54 L. Ed. 280. Webster Coal & Coke Co. vs. Cassett, 207 U. S. 181, 52 L. Ed. 160. Sou. Ry. Co. vs. Tift, 206 U. S. 428, 51 L. Ed. 1124. T. & P. Ry. Co. vs. Cisco Oil Mill, 204 U. S. 449, 51 L. Ed. 562. I. C. C. vs. L. & N. R. Co., 190 U. S. 273, 47 L. Ed. 1047. L. & N. R. Co. vs. Behlmer, 175 U. S. 648, 44 L. Ed. 309. C. N. O. & T. P. Ry. Co. vs. I. C. C, 162 U. S. 184. 40 L. Ed. 935 Counselman vs. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110. CHAPTER IX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). DAMAGES ARISING OUT OF VIOLATIONS OF THE ACT TO REGULATE COMMERCE. § 1. Power of Interstate Commerce Commission to Award Damages. §2. Awards of "Transportation" or "Rate" Damages. § 3. Persons Entitled to Damages. § 4. Effect of Statute of Limitation on Application for Reparation. 853 CHAPTER IX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). DAMAGES ARISING OUT OF VIOLATIONS OF THE ACT TO REGULATE COMMERCE. § 1. Power of Interstate Commerce Commission to Award Damages. The authority of the Interstate Commerce Commission to award damages is necessarily confined to damages aris- ing out of violations of the Act to Regulate Commerce. Until its report of March 11, 1912, in Hillsdale Coal & Coke Co., et al., vs. Penn. R. R. Co., 23 I. C. C. Rep. 186, 188, the Commission had declined, following the ruling in Joynes vs. P. R. R. Co., 17 I. C. C. Rep. 361, 362, to entertain jurisdiction of claims for damages for unlawful discriminations. But in the Hillsdale Coal & Coke Co. case, supra, the Commission awarded general damages resulting from unlawful discriminations in the distribu- tion of coal car equipment, in order, as it there said, "to prevent a failure of justice in these cases, as well as to create an opportunity to secure a final ruling by the courts as to what should be our course of action in the future in such cases." There was much conflict between the Commission's administrative interpretations of its authority to award such damages, it having held in two exhaustively consid- 255 356 AMERICAN COMi££?.:Z ASSOCIATION cred cpiiiiaiis — in tlie first aac that its anthoritsr in this respect empofwcred it to award general damages arising out €ii Tiolalioiis td the Act to R^rnlate Commerce, and in the second instance that its jnrisdicticm was confined to awards of transportation rate damages where the measure of damages is fixed and certain, — and the federal courts wliidi had more recentfy held that the Commission alone is the onfy con^etent tribunal to entertain complaints for general damages aristirr?- "•Jt of Ticdations of :r. t A:: to R^nlate Commerrf i? tmlawful discrirr : i: ? "n the practices and rcC-.i: ; r.i :: the earner? S'^; e:: :: ::ie Act. Juji Jilts TS- PfiBtr "_. -•-.. . ; , -" L CL O ~--tj - -'"- WaAcr Graia Col t^ Mo. Pac Ry. Co, IS L C C Rep. 147. 151. Mcnisdblc Coal Co. v^ P. R. R. Ox, 183 Fed. Rcfi. 929. Mvxisriaic Cool Co. ^s. P. R. R. Co, 17: Tti ?t: 7«. The ptopi i ety of the Commis^on's jurisdiction to award feners! damages for ricdaticnis § 1. Liability of Carriers for Damages Arising out of Violations of Act to Regulate Commerce. § 2. When Cause of Action for Damages Accrues. § 3. Award of Damages by Interstate Commerce Commission not a Judgment. § 4. Right of Reparation not Confined to Parties of Record. § 5. No Award of Reparation in Formal Cases Unless Prayed Therefor in Petition. 285 CHAPTER X. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). DAMAGES (CONTINUED). § 1. Liability o£ Carriers for Damages Arising Out of Violations of Act to Regulate Commerce. In Nicola, Stone & Myers Co. vs. L. & N. R. R. Co., 14 I. C. C. Rep. 199, 209, the Commission announced the following rule governing the joint and several liability of carriers for damages resulting from the violation of the Act to Regulate Commerce : — "The complainants contend that the defendant car- riers who concurred in establishing the unlawful ad- vance in the rates under consideration are jointly and severally liable for all the damages resulting there- from, whether or not participating in the particular rate from which the individual overcharge resulted. We cannot concur on so broad a view of the liability of the defendants. We do not think those carriers who received no part of the charges and who did not participate on the movement of the commodity should be liable to refund the whole or any part of the rate for the movement of a shipment in which they did not participate. "We think that the liability is restricted to those carriers who participated in the transportation of the lumber via their respective routes over which the several shipments moved, and who shared in the trans- 287 288 AMERICAN COMMERCE ASSOCIATION portation charges therefor, and that such carriers are jointly and severally liable to the persons found to be entitled to the refund. Contrasted with this holding by the Commission are the pronouncements of the courts to the effect that the charging of an illegal rate is tort, and that all carriers par- ticipating in such illegal act are joint tort-feasors, and that therefore the carriers are jointly and severally liable. So. Ry. Co. vs. Tift, 206 U. S. 428. See also: Independent Refiners' Assn. vs. W. N. Y. & P. R. R. Co., 6. I. C. C. Rep. 378, 384. (See 137 Fed. Rep. 343.) The receiving carrier is liable for loss, the remedy there- for being cumulative. Sec. 20, Act to Regulate Commerce. Cummins Amendment, 33 I. C. C. Rep. 682. La. St. Rice Milling Co. vs. M. L. & T. Ry. Co., 34 I. C. C. Rep. 511. Compare : — In re Released Rates, 13 I. C. C. Rep. 550. § 2. When Cause of Action for Damages Accrues. In complaint for recovery of damages caused by unrea- sonable or unduly discriminatory rates, the cause of action accrues v^hen the payment is made or the owner becomes legally liable for the charges. In any other complaint for recovery of damages for alleged violations of the Act to Regulate Commerce of which the Interstate Commerce Commission has jurisdiction, the cause of action accrues when the carrier does the unlawful act or fails to do what the law requires. INTERSTATE COMMERCE LAW 289 The language of the Act is : "All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action acrues, and not after. The word "damages" evidently refers to the money value of any loss caused by any violation of the Act. When does the cause of action accrue? In American and English Encyclopedia of Law, it is said : — "The statute of limitations begins to run from the time when the plaintiff's cause of action accrues, un- less som€ recognized exception postpones its opera- tion. This rule is never questioned; the difficulty lies in determining when the cause of action is deemed as having accrued. "A cause of action does not accrue until the party owning it is entitled to begin and prosecute an action thereon; it accrues at the moment when he has a legal right to sue on it and no earlier." In Bouvier's Law Dictionary it is said: "A cause of action is said to have accrued to any person when that person first comes to a right to bring an action. A cause of action does not accrue until the existence of such a state of things as will enable the person having the proper relations to the property or persons concerned to bring action." In the Encyclopedia of Law and Procedure it is said: "The statute of limitations begins to run from the time when a complete cause of action accrues; that is, when a suit may be maintained, and not until that time. "The accrual of a cause of action means the right to institute and maintain a suit; and whenever one person may sue another, a cause of action has accrued, 18 — 20 290 AMERICAN COMMERCE ASSOCIATION and the statute begins to run. So whether at law or in equity, the cause of action accrues when, and only when, the aggrieved party has the right to apply to the proper tribunal for relief. The statute does not attach to a claim for which there is no right of cor- responding remedy for which judgment can be ob- tained. "The true test therefore, to determine, when a cause of action has accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result. "Every claim against the United States, cognizable in the Court of Claims, shall be forever barred unless the petition is filed within six years after the claim first accrues." In the case of the United States vs. Clark, 96 U. S. 37, Clark was an army officer and on April 6, 1865, lost from his safe a valuable package containing $15,979.80. He duly reported his loss to the proper Treasury officials and claimed credit for the amount. His claim was rejected in 1871, and within six years thereafter he brought his action in the Court of Claims under the Act of Congress, asking the court to find the loss was without fault on his part, and to require the amount to be allowed by the Treas- ury in the settlement of his account. The United States pleaded the limitaion, under the law which says: "Every claim against the United States, cognizable in the Court of Claims, shall be forever barred unless the petition is filed within six years after the claim first accrues." The court said: "We think it a principle of general application that so long as a party has a cause of action delays to en- force it in a legal tribunal, so long will any legal IMtERSTATE COMMERCE LAW ^9l defense to that action be protected from the bar of the lapse of time, providing it is not a cross demand in the nature of an independent cause of action. But if we are mistaken in this, it is clear that until the ac- counting ofificer of the Treasury, has refused to rec- ognize the sum lost as valid credit in the settlement of his account, there was no occasion to apply to the Court of Claims and the statute, if applicable in this class of claims at all, did not begin to run until then. In the dissenting opinion of Mr. Justice Harlan, con- curred in by Justice Swain, Clifford, and Strong, it was held that the claim was barred, and it was said: "In a general way it may be said that it is a rule in courts of equity as well as in courts of law that a cause of action or suit arises when and as soon as the party has the right to apply to the proper tribunals for relief. In the case of the United States vs. Taylor, 104, 216, under the direct Act of August 5, 1861, requiring the sur- plus of real estate sales to be deposited in. the Treasury and there held for the use of the owner, the United States denied the jurisdiction of the Court of Claims over the suit of Taylor, because his application to the Treasury for the surplus and the filing of his suit were both more than six years after the sale. The court said: — "The general rule is that when a trustee unequiv- ocally repudiates the trust and claims to hold the estate as his own and such repudiation and claim are brought to the knowledge of the cestui que trust in such manner that he is called upon to assert his rights, the statute of limitation will begin to run against him from the time such knowledge is brought home to him and not before. "In analogy of this rule, the right of the owner of 292 AMERICAN COMMERCE ASSOCIATION the land to recover the money which the government holds for him as his trustee did not become a claim on w^hich suit could be brought, and such as was cog- nizable by the Court of Claims until demand therefor had been made by the Treasury. Upon such demand the claim first accrued, and as the suit was brought within six years from the date of demand it falls with- in the term of the section giving jurisdiction to the Court of Claims and is not cut off by lapse of time," In the case of Rice vs. United States, 122 U. S. 611, the question arose under the six years limitation; and the court said : "The claim first accrues within the meaning of the statute, when a suit may first be brought upon it, and from that date the six years limitation begins to run." The Clark and the Taylor cases, hereinbefore quoted, were referred with approval. In the case of the United States vs. Louisiana, 123 U. S. 32, the state of Louisiana sued the United States for $23,855 on account of sales of swamp lands to individuals made prior to March 3, 1850, all swamp and overflowed lands unfit thereby, for cultivation and then unsold were granted to the respective states, and the Secretary of the Interior was required to prepare and transmit a list to the governors of the states and issue patents therefor. This was not promptly done and many of such lands were sold to other parties of the United States. The Act of March 2, 1855, provided that upon proof of such sales by the states before the commissioner of the General Land Office, as to the character of the lands ac- cepted, the field notes of the surveyor-general of the state was sufficient proof, and on the 30th of June, 1885, found the amount claimed to be due the states from the United States. The state prevailed in the court below and the INTERSTATE COMMERCE LAW 293 United States, having pleaded limitation, appealed to the Supreme Court. That court held: "The statute of limitation does not seem to us to have any application to the demand arising upon the swamp-land acts. The method of proving the char- acter of such lands by having recourse to the field notes of the public surveyor or the Surveyor-General of the state was adopted by the Commissioner as early as 1850 and was followed by him in the case of 1855. On the 30th of June of that year we found in this mode and certified that there was due to the state from such sales the amount stated above. From that date only six years within which the action could be brought in the Court of Claims began to run and this action was commenced September of the following year." The Commission had already decided that — "A cause of action accrues as the phrase is used in the Act, on the date on which the freight charges are actually paid." And that — "Claims filed since August 28, 1907, must have ac- crued, within two years prior to the date when they are filed, otherwise they are barred by the statute. Claims filed on or before August 28, 1907, are not af- fected by the two years limitation in the Act. This Commission will not take jurisdiction of or recognize its jurisdiction over any claims for reparation or dam- ages which are barred by the statute of limitations, as herein interpreted, and the Commission will not recognize the right of a carrier to waive the limitation provisions of the statute. * * * xhe Act went into effect August 28, 1906." The Commission has also decided that charges above the lawful rate over the route the shipment moved can be re- funded by the carrier or carriers without any order of the Commission, and under Administrative Ruling No. 70 of 294 AMERICAN COMMERCE ASSOCIATION Tariff Circular 15-A it holds that the carrier may, in the cases therein indicated, refund all excess charges due to misrouting by its agent. The duty of the carrier is to charge and collect the lawful rate, no more and no less, and when more is collected the excess should be refunded, and when less, the deficiency should be collected. In every case the cause of action accrues only when full payment of the lawful charge has been made. In complaints for the recovery of damages caused by the charging of rates unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial, the cause of action accrues when the payment is made. In other complaints for the recovery of damages for alleged violations of the Interstate Commerce laws of which the Commission has jurisdiction, the cause of action accrues when the carrier does the unlawful act or fails to do what the law requires, on account of which damages are claimed. When a Cause of Action Accrues, 15 I. C. C. Rep. 201, 202, 203, 204. § 3. Award of Damages by Interstate Commerce Com- mission Not a Judgment. An award of damages made by the Commission is not a judgment. It is prima facie evidence of such facts as are stated therein. The statutory provision empowering the Commission to award damages is merely a rule of evidence, which as to the merits of the evidence may be contested in court. Meeker vs. Lehigh Valley R. R. Co.. 236 U. S. 412. C. H. & D. Ry. Co. vs. I. C. C, 206 U. S. 142. See also: Mills vs. Lehigh Valley R. R. Co., 238 U. S. 473. Penn. R. R. Co. vs. Clark Bros. Coal Mining Co., 238 U. S. 456. Pennsylvania R. R. Co. vs. International Coal Co., 230 U. S. 184. INTERSTATE COMMERCE LAW 295 § 4. Right of Reparation not Confined to Parties of Rec- ord. Tlie Commission has held, since the Nicola, Stone & Myers Co. case, 14 I. C. C. Rep. 199, 205, that the right to reparations is not confined to shipments made by parties to any particular proceeding, but extends to all shipments moving under the same circumstances and conditions and charged for on the same basis found to be unlawful by whomsoever made. Kindelon vs. So. Pac. Co., 17 I. C. C. Rep. 251, 253. § 5. No Award of Reparation in Formal Cases Unless Prayed Therefor in Petition. Reparation will not ordinarily be awarded in a formal case attacking a rate as unreasonable or otherwise in viola- tion of law unless intent to claim reparation is specifically disclosed therein, or in an amendment thereto, filed before the submission of the case. The Commission may, how- ever, in the exercise of its discretion, upon good cause shown, and under unusual circumstances, specially consider a particular claim for reparation of this class. Complaints for reparation must disclose as nearly as possible, all the claims of complainant or complainants covered by or involved in the complaint, except that when a general rate adjustment or a rate under which many shipments have been made to many destinations, or from many points of origin by many shippers, is involved, the complaint may contain specific prayer for reparation on all shipments, and the proving up as to shipments and amounts of reparation due thereon may be left until the question of the reasonableness of the rate or rates and whether or not reparation will be awarded, have been 296 AMERICAN COMMERCE ASSOCIATION decided. And each claimant for reparation under a deci- sion that has been rendered must include all his shipments and claims in a complaint or statement. I. C. C. Confr. Rulings Bull. No. 6, Ruling No. 206, par. (c). (d) and (e). The preliminary issue is always upon the reasonableness of some particular rate. The determination of this ques- tion may frequently involve a considerable length of time. The case must first be heard by the Commission. It may then go for months before any final conclusion can be reached. During this period while this fundamental ques- tion is being determined, shippers ought not to be put to the trouble and expense of filing detailed exhibits, nor ought the Commission to be burdened with the task of receiving and caring for such exhibits unless some substan- tial purpose is thereby subserved. The complainant should file such statement as informs both the Commission and defendants of his intention to claim reparation, which it will finally desire to use upon the trial of the case so that the details may not be dissipated. Bluff City Oil Co. vs. St. L. I. M. & S. Ry. Co., 16 I. C. C. Rep. 296, 297. The subject was dealt with by the Commission in its Conference Ruling No. 206, paragraph (e) above set forth. This conference ruling was adopted in 1909. In the Mountain Ice case, 21 I. C. C. Rep. 45, decided in 1910, it was held that a general statement upon the part of the complainant that shipments had been made between cer- tain points which were described in somewhat general terms under the rates in issue, on account of which repa- ration would be claimed, was sufficient. Michigan Hardwood Mfrs. A^^^n. vs. Transcontinental Freight Bureau, 27 I. C. C. Rep. 32, 36. INTERSTATE COMMERCE LAW 297 Damages will be denied where reparation is not one of the issues raised in a formal proceeding. R. R. Com. of Oregon vs. S. P. Co., 24 I. C. C. Rep. 273, 279. Thus, a formal complaint unsupported by expense bills or other evidence and nothing brought before the Com- mission to prove the shipments actually moved or that the charges were collected as claimed in the complaint, will not admit of an award of reparation, even in the fact of the carriers confession of the allegations in the com- plaint. International Harvester Co. vs. C. M. & St. P. Ry. Co., 18 I. C. C. Rep. 222, 223. These rules of procedure have their essential application to formal proceedings instituted against unreasonable rates and charges. No such condition precedent to the shipper's right of recovery is required in proceedings seek- ing indemnitory or general damage resulting from the vio- lation of the Act to Regulate Commerce. Proceedings for reparation before the Commission for indemnitory damages are purely statutory and correspond to actions in law sounding in tort. Bouvier defines "repa- ration" as "damages for an injury; amends for a tort." If an injury is sustained on account of a violation of the law, the proceeding is in its nature ex delicto, and there- fore carries with it none, of the features or the incidents of an action ex contractu. In the ver}' nature of the thing no protest is necessary where the injury is inflicted by the commission of a tort. The violation of the law produces the injury and completes the oflFense, and the person in- jured does not have to perform any conditions to entitle him to recovery for the damage sustained. Southern Pine Lumber Co. vs. So. Ry. Co., 14 I. C. C Rep. 195, 197. 298 AMERICAN COMMERCE ASSOCIATION And in a case where the shipper in a formal proceeding" before the Commission proves the granting by the carrier of undue preference in certain privileges, but fails to sub- mit sufficiently specific evidence of his loss, the Commis- sion will allow such shipper additional time for putting in such proof. Carl Eichenberg vs. S. P. Co.. 14 I. C. C. Rep. 250. Clinton Sugar Refining Co. vs. C. & N. W. Ry. Co., 28 I. C. C. Rep. 364, 367. Ullman vs. American Express Co. ,19 I. C. C. Rep. 354, 355. Pope Mfg. Co. vs. B. & O. R. R. Co., 17 I. C. C. Rep. 400, 403. Minneapolis Threshing Machine Co. vs. C. St. P. M. & O. Ry. Co., 16 I. C. C. Rep. 193, 194. Long & Co. vs. International Ry. Co., 14 I. C. C. Rep. 116, 117. The following conference ruling promulgated by the Commission July 2. 1909, is strictly adhered to with re- spect to procedure in formal cases involving reparation: "Reparation will not ordinarily be awarded in a formal case attacking a rate as unreasonable or otherwise in violation of law unless intent to claim reparation is specially disclosed therein, or in an amendment thereto, filed before the submission of such case. The Commission may. however, in the exercise of its discretion, upon good cause shown, and under unusual circumstances, deal specially with a par- ticular claim for reparation. "Claims for reparation based upon a decision of the Commission filed by complainants not parties to the case in which such decision was rendered will not ordinarily be allowed unless reparation was claimed in the complaint upon which such decision was based, or was awarded by the Commission. The Com- mission may, however, in the exercises of its discre- tion, upon good cause shown, and under unusual cir- cumstances, specially consider a particular claim for reparation in this case. "Complaints for reparation must disclose as nearly INTERSTATE COMMERCE LAW 299 as possible all the claims of the complainant or com- plainants covered by or involved in the complaint, except that when a general rate adjustment or a rate under which many shipments have been made to many destinations, or from many points of origin by many shippers, is involved, the complaint may contain specific prayer for reparation on all shipments, and the proving up as to shipments and amounts of repa- ration due thereon be left until the questions of the reasonableness of the rate or rates and whether or not reparation will be awarded, have been decided. And each claimant for reparation under a decision that has been rendered must include all his shipments and claims in one complaint or statement." I. C. C. Confr. Rulings Bull. No. 6, Ruling No. 206, pars. (c). (d) and (e). In many instances, and for divers reasons, shippers are required to pay rates which even the carrier admits are un- reasonably high, and which the carrier is willing to reduce to a reasonable figure. This the carrier is not at liberty to do, in that the law does not permit the carrier to refund to the shipper any part of the established rate be it just or unjust. But the power is lodged in the Commission to pass upon a particular rate, and if it finds that such rate is unreasonable, it may fix what quantity moved, and allow as reparation to the shipper the diflference between the rate actually collected and the rate found by it to have been reasonable In cases of reduced rate or changed tariff regulation the Commission will require the maintenance of such rate or regulation for at least one year. This in- volves a form of procedure which it is the duty of the Com- mission to adhere to in its investigation of rates under the terms of the Act. That is, the party charged with al- leged violation of the Act must be served with notice of the exact nature of the charges, and be aflForded oppor- 300 AMERICAN COMMERCE ASSOCIATION tunity to be heard in its behalf, before the Commission may make a lawful order against it. This procedure in rate reparation cases, while informal practically as to the amount of the reparation, carries out in form this require- ment of the law, and for that reason the Commission re- quires, under its co-called informal procedures, an applica- tion or petition by the applicant and admission by the carrier as equivalent to petition and answer that the rate charged was unreasonable, and that the rate stipulated as the basis of the reparation would have been a just and reasonable rate, and that the carrier will establish and collect such reasonable rate for a definite period of time, or for a lesser period on special instances, herein referred to. Thus, in theory since the Commission can do nothing in an informal proceeding that it may not do in a formal case, the same result is reached as if the Commission had conducted a formal investigation with hearing and arrived at the conclusion that the rate charged was unreasonable and fixed a reasonable rate and awarded reparation to the petitioner. In this way substantial compliance with the statute is had, and a speedy and effective system estab- lished for the disposition of claims that otherwise would cause a multiplicity of formal cases and greatly impede and hamper the work of the Commission. To assist in the settlement of certain claims of shippers against carriers, and as a practical means of disposing with promptness of informal complaints that might other- wise develop into formal complaints, and in connection with which the unreasonableness of the rate or regulation is admitted by the interested carrier or carriers, the Com- mission on full information will authorize adjustment by special order if all the facts and conditions warrant such action. The connections in which the Commission has INTERSTATE COMMERCE LAW 301 authority to modify the provisions of the law are specified in the Act. The Commission will not assume to modify it in any other connections or features. The instances in which the Commission will authorize refund or reparation on informal complaint and in an in- formal way will be confined to those in which the informal showing develops plainly a case in which the Commission would award reparation on formal hearing and in which an adjustment agreeable to complainant and carrier or carriers and in conformity with the provisions of the law is reached. Reparation under informal proceedings will be author- ized in instances where the tariff has been applied, upon the filing of an application by the carrier or carriers which participated in the transportation of the property in ques- tion, containing an admission that the rate charged was unreasonable, supported by a statement of the facts sub- stantially showing that the charge demanded for the trans- portation services performed was excessive, that within a reasonable time a tariff naming the rate upon basis of which adjustment is sought has been pubhshed and that such rate has been made lawfully applicable via the route over which shipment moved. The Commission's order for refund on account of a reduced rate or changed tariff regulation will require the maintenance of such rate or regulation for at least one year. No carrier may pay any refund from its published tariff charges save with the specific authority of the Commission in accordance with the provisions of the Act. When an informal or formal reparation order has been made by the Commission the principle upon which it is based shall be extended to all like shipments, but no refund shall be made upon like shipments except upon specific authority 302 AMERICAN COMMERCE ASSOCtATION from the Commission therefor. (See Confr. Ruling No. 49 and No. 200-c.) The shipper should pay the lawfully published charges applicable via the route over which the shipment moves, and make claim for refund if he believes he has been over- charged. The Commission will not ordinarily include in reparation awards demurrage charges which accrue pend- ing adjustment or subsequent to consignee's refusal to accept the shipment and pay the lawful charges thereon, but in special cases such demurrage charges may be in- cluded in the amount of the refund. (See Confr. Ruling No. 32.) It is the duty of the delivering carrier to collect, and of the consignee to pay demurrage charges as per lawful tariffs. Demurrage charges accruing because of error of a carrier, are considered in the same light as are other ad- ditional transportation charges accruing because of error of a carrier, and if adjusted, the full expense thereof, must be borne by the carrier whose agent is responsible for the error. (See Confr. Ruling No. 214, and not to Ruling No. 242.) The Commission has repeatedly announced the view that the law does not permit the use of any rate or fare ex- cept that contained in a lawful tariff that is applicable via the line, route, and gateway over and through which the shipment or passenger moves. The lawful rate or fare for through movement is the through rate or fare, wher- ever such through rate or fare exists, even though some combination makes a lower rate or fare and even though the practice in the past has been to give to some benefit of lower combination. The Commission long since ex- tended to carriers, in a general order, permission to reduce on one day's notice, a joint commodity or class rate or fare INTERSTATE COMMERCE LAW 303 that is higher than the sum of the intermediate rates be- tween the same points. If, therefore, carriers have main- tained through rates or fares that are higher than the sums of the intermediates between the same points, it is because of their desire to do so ,and not, as some agents of carriers have informed shippers, because the law or the Commission forces them to do so. (See Ruling No. 56, Tariff Circular No. 18-A.) If a carrier desires to give his patrons the benefit of the same rate or fare that applies via another line or gateway, and which is lower than its own fare, it can do so by law- fully incorporating that rate or fare in its tariffs, and so give the benefit to all of its patrons ahke. The law forbids giving such lower rate or fare to one and withholding it from another, but neither the law nor the Commission stands in the way of adoption in lawful manner of the lower rate or fare, as available for all. (See Confr. Ruling No. 205.) The Commission's power to authorize adjustments will not be exercised in such way as to create the very dis- criminations which the law aims to prevent. No doubt instances will occur in which seeming hardships will come to some. Much of such embarrassment will be avoided if agents of carriers and shippers take pains to be certain that correct rates are quoted and correct routing is given. I. C. C. Confr. Rulings Bull. No. 6, Ruling No. 220, pars, (a), (b), (d). (e), (f), (g), (h), (i) and (j). , I. C. C. Confr. Rulings Bull. No. 6, Ruling No. 396. It became apparent that the effect of the one year clause in special reparation orders was to tie up the carriers tariffs in such manner as to result in much embarrassment not only to the carriers, but to the shippers as well. After a conference with the representatives of the carriers, the 304 AMERICAN COMMERCE ASSOCL\TION Commission, on June 22, 1909, modified its practice in special reparation cases, in the following respects : In special docket cases no order as to the rate for the future shall be entered when the joint rate at the time of shipment exceeded the aggregate of the intermediate rates, or in cases where at the time the shipment moved the rate for a short haul was greater than the rate for a long haul over the same route, or line, in the same direc- tion, the shorter being included within the longer distance and the rates have been subsequently changed in such manner, that at the time the order of the Commission is entered the rate for the shorter distance does not exceed the rate of the longer distance. Where there is a natural geographical relation between the point involved and other points, which relation the carrier has theretofore expressed in its tariffs by grouping that point with other points, either with respect to rates on the commodity in question, or with respect to rate on other commodities, or with respect to class rates, the order may require the maintenance of the group relation for one year from the date of the application instead of requiring an absolute rate to or from the point in question. Where the rates on a product of a raw material have had definite relation to the rates on the raw material, and that relation has. been temporarily disturbed and subse- quently restored, the order may control the relation for one year instead of fixing an absolute rate on the product. Where a carrier is compelled to charge a higher rate than was intended because of error in printing tariff, the one vear clause mav be omitted onlv where the error is « ^ * specifically called to the attention of the Commission with- in ninety days after the tariff containing the error has been filed. INTERSTATE COMMERCE LAW 305 Supplementary to these modifications above set forth, the Commission gave further utterance with respect to special reparation claims on the informal docket, as fol- lows: '"Because of the uncertain condition of the tariffs aration for damages such as attorney's fees, loss of time, court costs, or shipment values. Thome Xeal & Co. vs. Wabash R. R. Co., 40 I. C C. Rep. 88l 90. Washer Grain Co. ts. Mo. Pac Ry. Co., 15 I. C. C Rep. 147. § 5. Consignor of f. o. b. Shqiment Cannot Recover Dam- ages. When goods are sold f. o. b. (free on board") the point of origin, the title of the consignor passes upon the deliv- ery of such goods to the carrier, and the carrier becomes the agent of the consignee in its acceptance of them. In the event of loss in connection with the transportation of the goods, the seller is not injured, for the loss or in- jury must be compensated for to the owner of the ship- ment. Commercial Qnb of Omaha vs. A. & S. R. R- R. Co., 27 L C C Rep. 302L 323. Deming; Lmnber Co. vs. So. P. Rv. Co., 24 I. C. C. Rep. 598. L^mb, McGregor & Co. vs. C. & N. W. Ry. Co., 22 I. C. C. Rep. M6. Carolina Portland Cement Co. vs. C & O. R. R- Co., 21 I. C. C Rep. 533. Baker Mfg. Co. vs. C. & X, W. Ry. Co.. 21 I. C C. Rep. «b. Stmnyside Coal Min. Co. vs. D. & R. G. R. Co.. 19 I. C C. Rep. 20L Xicola, Stone & Myers Co. vs. L. & N. R. R. Co., 14 I. C. C. Rep. 199, 20R §6. Failure to Make Delivery not Ground for Award of Damages by Commissioii- The Z sion .has approved written agreements stipulating the comprising and satisfj-ing of claims for damages where it appeared to the satisfaction of the Commission that none of the provisions or terms of the INTERSTATE COMMERCE LAW 339 agreement or stipulation in so far as the same related to matters within the jurisdiction of the Commission, was inconsistent with any provision of law. Joice & Co. vs. I. C. R. R. Co.. 15 I. C. C Rep. 239. Goff-Kirby Coal Co. vs. BcFsemer & Lake Erie R- R- Co.. 15 I. C. C. Rep. 553. § 7. Damages for Failure to "Plainly" State Rate. It has been held by the Commission that a shipper is entitled to damages actually accruing because of the car- rier's failure to state "plainly" the rate, in a case where the error in the tariff was such that the shipper's mistake in respect to the rates appHcable to the shipment was one into which an inteUigent person familiar with tariff con- struction might naturally be lead. Larson Lumber Co. vs. G. X. Ry. Co., 21 L C. C. Rep. 474. 475, 476. § 8. No Award of Damages for Breach of Contract. Reparation based upon breach of contract for a priv- ilege which was not published in the tariffs of the carrier must be denied the shipper because its allowance without publication would be in violation of the law. An action for damages for breach of contract is beyond the jurisdiction of the Interstate Commerce Commission. McArthur Bros. vs. E. P. & S. W. Co.. 34 L C. C. Rep. 30. 31. Shiel & Co. vs. I. C. R. R. Co., 13 I. C. C. Rep. 210, 211. The Commission's function is not to enforce contracts, either specifically or by awards of damage for their breach, but only to award damages to parties complain- ant entitled to damages on account of violations of the Act to Regulate Commerce. The courts are the proper tribunal, even though the interpretation of the contract involves the question of a possible violation of the provi- 340 AMERICAN COMMERCE ASSOCIATION sions of the Act against rebating. Since only the courts are empowered to enforce these provisions, any expres- sion by the Commission would be entirely gratuitous and binding on no one. Eddleman vs. Midland Valley R. R. Co., 13 I. C. C. Rep. 103. § 9. Award of Damages for Misquoting Rate. Under the provisions of section 8, of the Act to Regu- late Commerce the shipper is given the right to recover damages for any violation of the Act. Manifestly a mis- quotation of rate in response to the shipper's written request therefor is a violation of the Act that he may recover for in a proper action in court of competent juris- diction. Since the amendment to the Act of 1910, the carrier is not only penalized for misquoting a rate, — this penalty inuring to the Government and not to the shipper or in- jured person as damages — but it is declared by the statute that it is illegal to misstate a rate. Prior to the amendment of 1910 if a carrier misstated its rate and quoted a wrong rate, the shipper was (as he is now) required to pay the legally published rate, even though the shipper was injured thereby. And for such loss the shipper had no remedy. T. & P. Ry. Co. vs. Mugg, 202 U. S. 242, 50 L. Ed. 1011. G. C. & S. F. R. R. Co. vs. Hefley, 158 U. S. 98, 39 L. Ed. 910. See also: Annual Report of Interstate Commerce Commission for 1908 (22nd), pp 16, 17. 12 I. C. C. Rep. 418, 421, 422; 7 I. C. C. Rep. 255, 278. And this view of the law was conformed to by both the federal and state courts in many instances. The practical hardship of the law was called to the atten- INTERSTATE COMMERCE LAW 341 tion of Congress in the 22nd Annual Report of the Inter- state Commerce Commission. The amendment of 1910 prescribed a penalty for mis- quoting a rate under certain prescribed conditions, to- wit: — upon written request by a shipper for a written statement of the rate or charge applicable to a described shipment between stated points — and made it illegal to misstate a rate. In connection with the provisions of sec- tion 8 of the Act to Regulate Commerce, as amended, this provision now presents a situation in which the violation of the provisions of the Act affords the shipper a right to recover for his damages. Act to Regulate Commerce, sec. 6. St. L. S. W. Ry. Co. vs. Lewellen Bros., 192 Fed. Rep. 540. This interpretation of the law, as it now stands, is not in conflict with either the Henderson Elevator case nor the Albers Commission Company case, since each of these cases relates to the statute as it was worded prior to the 1910 amendment. See: I. C. R. R. Co. vs. Henderson Elevator Co., 226 U. S. 441, 57 L. Ed. 290. K. C. S. Ry. Co. vs. Albers Commission Co., 223 U. S. 573, 56 L. Ed. 556. And it must be borne in mind that so far as the jurisdic- tion of the Interstate Commerce Commission is concerned, it still remains without authority to award reparation for the misquotation of a rate. The right of action in the ship- per to recover for loss sustained through the misquotation of a rate must be exercised in a court of competent juris- diction. Obear-Nester Glass Co. vs. M. P. Ry. Co., 41 I. C. C. Rep. 446, 447. Utah Wholesale Grocery Co. vs. N. & W. Ry. Co., 39 I. C. C. Rep. 345, 346. 342 AMERICAN COMMERCE ASSOCIATION Compare : Franke Grain Co. vs. I. C. R. R. Co.. 27 I. C. C. Rep. 625, in harmony with the view that damages may be recovered since the 1910 amendment of the Act. §10. Award of Damages by Commission Prima Facie Proof of Right to Recover. In the event suit is brought in a court of competent jurisdiction for the recovery of damages resulting from the violation of the provisions of the Act to Regulate Commerce, such a suit should proceed in all respects like other civil suits for damages, except that upon the trial thereof, the findings and order of the Commission shall be prima facie evidence of the facts therein stated, includ- ing the right of the damaged party to recover. Section 16, Act to Regulate Commerce. §11. Award of Damages May Be for Profits Lost. While reparation is not measured by the probability of profit, profits may be recovered for discrimination. Eaton vs. C. H. & D. Ry. Co., 11 I. C. C. Rep. 619, 626. § 12. Protest not Condition Precedent to Recovery of Damages for Unreasonable Rate. No protest by the shipper against the payment of an unreasonable rate need be made as a condition precedent to recovery of damages on account thereof. Such a pro- test could have no force, since the rates are fixed by the tariff and the carrier could not yield to the protest by charging less than the tariff rate. Baer Bros. Merc. Co. vs. D. & R. G. Rv. Co., 233 U. S. 479. Kindson-Ferguson Fruit Co. vs. C. St. P. M. & O. Ry. Co., 204 U. S. 670. (Same 149 Fed. Rep. 973.) INTERSTATE COMMERCE LAW 343 See also: Penn. R. R. Co. vs. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446. § 13. Reparation Awarded Account Accident of Billing. Through inadvertence the words "for export" were omitted from the bill of lading. The Commission, in dis- posing of the matter, said : "It is well settled that the character of a shipment and not the accidents of billing determine its nature, and the evidence shows clearly that the shipment was an export shipment from the outset. The rate legally applicable therefor was the export rate of 18 cents" instead of the domestic rate of 40 cents. Kirk vs. M. K. & T. Ry. Co., 39 I. C. C. Rep. 755, 756. CHAPTER XII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 10. § 1. Statutory Provisions. §2. Amendments to the Section. § 3. Penalties Provided by Section 10. § 4. Joint Liability for Damages for Inducing Discrimination. §5. "False Billing" or "Misrepresentation;" When Offense Is Com- plete. § 6. Limitation of Criminal Prosecutions Under Section 10. § 7. Constitutionality of Section 10. §8. Purpose of the Section. 345 v i CHAPTER XII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 10. § 1. Statutory Provisions. ("As amended March 2, 1889, and June 18, 1910.) That any common carrier subject to the provisions of this Act, or, whenever such common carrier is a cor- poration, any director or officer thereof, or an}- re- ceiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this Act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this Act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon con- viction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense : Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in 347 Penalties for violations of Act by car- riers, or when the carrier is a corporation, i t s offlcara, agents, or em- ployes: Fine and Imprison- ment. 348 AMERICAN COMMERCE ASSOCIATION Penalties for false billing, etc., by car- riers, their officers or agents: Fine and Imprison- ment. Penalties for false billing, eto., by slilp< pers and other persons: Pint and Imprison- ment. rates, fares, or charges for the transportation of pas- sengers or property, such person shall, in addition to the fine hereinbefore provided for, be liable to impri- sonment in the penitentiary for a term of not exceed- ing two years, or both such fine and imprisonment, in the discretion of the court. "Any common carrier subject to the provisions of this Act, or, whenever such common carrier is a cor- poration, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for prop- erty at less than the regular rates then established and in force on the line of transportation of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court in the United States of competent jurisdic- tion within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the peniten- tiary for a term of not exceeding two years, or both, in the discretion of the court, for each ofifense. "Any person, corporation, or company, or any agent or officer thereof, who shall deliver property for transportation to any common carrier subject to the provisions of this Act, or for whom, as consignor or consignee, any such carrier shall transport prop- erty, who shall knowingly and willfully, directly or indirectly, himself or by employee, agent, officer, or otherwise, by false billing, false classification, false weighing, false representation of the contents of the package or the substance of the property, false report of weight, false statement, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent, or offi- cer, obtain or attempt to obtain transportation for such property at less than the regular rates then estab- INTERSTATE COMMERCE LAW 349 lished and in force on the line of transportation; or who shall knowingly and willfully, directly or in- directly, himself or by employee, agent, officer, or otherwise, by false statement or representa- tion as to cost, value, nature, or extent of injury, or by the use of any false bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to be false, fictitious, or fraudulent, or to contain any false, fictitious, or fraud- ulent statement or entry, obtain or attempt to obtain any allowance, refund, or payment for damage or otherwise in connection with or growing out of the transportation of or agreement to transport such property, whether with or without the consent or con- nivance of the carrier, whereby the compensation of such carrier for such transportation, either before or after payment, shall in fact be made less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor, and shall, upon conviction thereof in any court of •the United States of competent jurisdiction within the district in which such offense was wholly or in part committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprison- ment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court : Provided, That the penalty of imprisonment shall not apply to artificial persons. "If any such person, or any officer or agent of any penalties tor such corporation or company, shall, by payment of money or other thing of value, solicitation, or other- wise, induce or attempt to induce any common carrier subject to the provisions of this Act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or con- signee in the transportation of property, or shall aid or abet any common carrier in any such unjust dis- crimination, such person or such officer or agent of such corporation or company shall be deemed guilty Inducing com- mon carrier* to discriminate unjustly: Fine and Imprison- ment. Joint liability with carrier for damages. 350 ami«:rican commerce association of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent juris- diction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly or sev- • erally, in an action to be brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom, § 2. Amendments to the Section. As originally passed section 10 of the Act contained only the general penalty clause in the first paragraph. The remainder of the penalties now appearing in the section were added in the amendment of March 2, 1889. In the amendment to the section of June 18, 1910, cor- porations were included, and made subject to the restored penalties by imprisonment which had been added by the amendment of June 29, 1906. The effect of the Elkins Act of 1903, was to remove from the Act all penalties of imprisonment, providing for the imposition of fines in lieu thereof. By the amend- ment of June 29, 1906, penalties by imprisonment were restored. § 3. Penalties Provided by Section 10. Penalties of a severer nature are provided for in section 10 for each of the offenses defined therein. The penalty for conviction of the general offense of willfully doing or causing to be done, or willingly suffering or permitting to be done, or aiding or abetting in the com- INTERSTATE COMMERCE LAW 351 » mission of the offense of violating any of the provisions of the Act to Regulate Commerce or failing to do any of things required by it, is a fine of not exceeding five thous- and dollars for each offense, and where the offense for which any person is convicted is an unlawful discrimina- tion in rates, fares, or charges for the transportation of passengers or property, such person is liable, in addition to the fine above provided for, to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine or imprisonment, in the discretion of the court. The penalty for misrepresentation of shipments by ship- pers is a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not ex- ceeding two years, or both, in the discretion of the court, for each offense, and the same penalty for each offense is provided for the conviction of a common carrier, any of- ficer or agent thereof, or any person acting for or em- ployed by such common carrier, v/hen such common car- rier is a corporation. In the third paragraph of section 10 it is provided that the penalty of imprisonment shall not apply to artificial persons. The penalty provided for inducing or aiding or abetting a common carrier subject to the provisions of the Act in unjustly discriminating in favor of one shipper as against any other consignor or consignee in the transportation of property, is a fine of not exceeding five thousand dol- lars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense. In addition to this latter criminal penalty, it is provided that "such person, corpo- ration, or company shall also, together with said common carrier, be liable, jointly or severally, in an action to be 852 AMERICAN COMMERCE ASSOCIATION brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting there- from." § 4. Joint Liability for Damages for Inducing Discrimina- tion. The section specifically provides that any person, cor- poration, or company v>^ho shall be guilty of inducing a common carrier subject to the Act to unjustly discrimi- nate against any other shipper shall be held jointly and severally liable with such common carrier for all damages resulting from such discrimination, and action to recover such damages may be maintained in any court of the United States of competent jurisdiction by the person damaged. §5. "False Billing" or "Misrepresentation;" When Of- fense is Complete. The offense of "false billing," "misrepresenttion of ship- ment," "false classification," or "any device," for procuring less than lawfully established charges for transportation, is complete just as soon as the contract or arrangement for the illegal rate is consummated. It is not necessary that the shipment should actually be transported where its transportation has been arranged for at a lesser rate than the published tariff rate by means of misrepresentation, such as false billing, false classification, etc. Thus, where an indictment against a shipper under section 10 of the Act, obtaining by misrepresentation a rate on salt less than the published rate sets out the shipping order which describes the article as coarse salt, weight 63,000 lbs., and INTERSTATE COMMERCE LAW 353 specifies the rate as 10c, whereas the article was in fact coarse salt in sacks and the legal rate is 14c, and the in- dictment further sets out the legal tariff, it contains a sufficiently detailed statement of the misrepresentation relied upon; and it was held in this case that in an in- dictment against a shipper under section 10 of the Act for obtaining by misrepresentation of the commodity a rate less than the published rate, it is sufficient, having in view section 1025 of the Revised Statutes relating to defects of form, to charge defendants with the commis- sion of the ofifense, a misdemeanor, in the words of the statute; the essential elements of the offense being set forth with suffiicient definiteness to apprise the defendants of the particular nature of the charge against them. And the fact that a shipper intentionally suppressed a material statement necessary to the transportation was a misrep- resentation sufficient to sustain a conviction. U. S. vs. Sterling Salt Co., 200 Fed. Rep. 593, 595, 596, 597. § 6. Limitation of Criminal Prosecutions Under Section 10. No limitation is contained in the section within which criminal prosecutions must be instituted against offend- ing parties. As an offense against the Act is an offense against the United States, the statutes of the United States governing limitations of criminal proceedings pre- vail. Prosecutions for offenses, under the Act, must be brought within three years, and proceedings for penalties and forfeitures must be brought within five years, after the commission of the offense or wrong. Rev. Stats. U. S., sec. 1044. Rev. Stats. U. S., sec. 1047. 11—24 354 AMERICAN COMMERCE ASSOCIATION §7. Constitutionality of Section 10. The constitutionality of section 10 of the Act to Reg- ulate Commerce as against corporations was established by the Supreme Court in N. Y. C & H. R. R. Co. vs. U. S., 212 U. S. 481, 492. 53 L. Ed. 613. In U. S. vs. Adams Express Co., 229 U. S. 381, 57 L. Ed. 1237. the Supreme Court said: "It is true that a doubt was raised by the wording of section 10 in the original Act. whether corpora- tions were indictable under it. This doubt was met by the Act of February 19. 1903 (the Elkins Act). We do not perceive that any inference can be drawn from this source in favor of a construction of the later amendment other than that that we deem the natural one. The power of Congress hardly is de- nied. The constitutionality of the statute as against corporations is established. New York Central and Hudson River R. R. Co. vs. United States. 212 U. S. 481. 492. 53 L. Ed. 613. 29 Sup. Ct. 304, and no rea- son is suggested why Congress has not equal power to charge the partnership assets with a liability and to personify the company so far as to collect a fine by a proceeding against it by the company name. See also. Wells Fargo & Co. vs. Neiman-Marcus Co.. 227 U. S. 469. 57 L. Ed. 600. § 8. Purpose of the Section. Section 10 places the same obligation upon the ship- per as upon the carrier to observe lawful tariff provisions. Any willfully false representation of the contents of a package on the part of the shipper or carrier is prohibited, denominated as a -fraud, and declared to be a misdemeanor INTERSTATE COMMERCE LAW 355 by the Act, and the shipper or carrier convicted thereof is subjected to fine or imprisonment, or both, in the discre- tion of the court. The section is broadly drawn and its objective is the prohibition of transportation for less than the published rates obtained by means of willful false billing, false clas- sification, false weighing, false representation of the con- tents of the package or the substance of the property, false report of weight, false statement or by any other device or means, whether with or without the consent or connivance of the carrier. The prohibition is extended to anyone who shall knowingly and willfully directly or in- directly, himself or by employee, agent, officer or other- wise by false statement or representation as to cost, value, nature or extent of injury or by the use of any false bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to be false, fictitious or fraudulent statement or entry, ob- tains or attempts to obtain any allowance, refund or re- payment for damage or otherwise in connection with or growing out of the transportation of or agreement to transport such property, whether with or without the consent or connivance of the carrier, whereby the com- pensation of such carrier for such transportation, either before or after payment, shall be less than the lawfully published and established rates. These acts and omis- sions are declared to be misdemeanors and, upon convic- tion thereof in any court of the United States of com- petent jurisdiction within the district in which such ofifense was wholly or in part committed, are subject to either fine and imprisonment or both, in the discretion of the court. The filing of fradulent claims for loss or damage was 356 AMERICAN COMMERCE ASSOCIATION nrsi made an onense by the amendments of 1910 to sec- tion 10 of the Act to Regulate Commerce. In its annual rport for 1915, the Interstate Commerce Commission, referring to false billing and fraudulent claims, said: **False billing of shipments by shippers has con- tinued to require much attention. A large number of prosecutions for misdescription of the contents of shipments and for understatement of the weights by shippers for the purpose of defeating the lawful rates have been instituted in widel}- scattered sections of the country. As to certain commodities and in cer- tain lines of business a custom of misbilling is some- times so general that several shippers whose repu- tations otherwise may be excellent have seemed to deem it proper to defeat the plain requirements of the Act. For example, in the hardware business several firms in different sections of the countrj'', in spite of a classification rule requiring that less than carload packages containing different articles should take the rate applicable to the highest rated article, have persisted in including small quantities of high- rated articles in such packages, while describing the package as containing onl}^ articles of lower rating. Some indictments based on this practice have already been returned. The law requires the most rigid ob- servance of the published tariffs and classification not onl}- b}^ carriers but by shippers. * * * '*In misbilling cases it is common for shippers to plead guilt}^ and thus escape with a smaller fine than would result if the case were contested. The courts, however, have recently imposed substantial fines in cases of this kind where the defendant admits his guilt- * * * "A large number of shippers also have been prose- cuted for filing with the carriers false claims for loss and damage. This practice has been most prevalent in the case of shippers of perishable articles who upon INTERSTATE COMMERCE LAW 357 suflFering damage frequently file excessive claims against the responsible carrier. * * * "Several prosecutions have also been instituted against shippers who represented that their property had been damaged when no damage, in fact, oc- curred or who filed claims based upon alleged loss when, in fact, the property had been duly received. * * * **\Vhile prosecutions arising from this practice dur- ing the past year have been against shippers only, there have been evidences that the laxness of the car- riers in recognizing and paying such false claims amounts, in efltect, to the granting of rebates from the lawful rates. Evidence of this kind, tending to show that carriers as well as shippers are responsible for the filing and payment of excessive damage claims, is now under review. CHAPTER XIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 11 AND 24. § 1. Statutory Provisions of Section 11. §2. Statutory Provisions of Section 24. § 3. Functions and Organization of Interstate Commerce Commission. 359 CHAPTER XIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 11 AND 24. § 1. Statutory Provisions of Section 11. "That a Commission is hereby created and estab- mterstat* cm. hshed to be known as the Interstate Commerce Com- od"or^S'oVnV- mission, which shall be composed of five Commis- umV '"'' sioners, who shall be appointed by the President, by and with the advice and consent of the Senate. The Commissioners first appointed under this Act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, Anno "Domino, eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the un- expired time of the Commissioner whom he shall succeed. Any Commissioner may be removed by the President for inefficiency, neglect of duty, or mal- feasance in ofifice. Not more than three of the Com- missioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this Act, or owning stock or bonds thereof, or who is in any manner pecuniarily inter- ested therein, shall enter upon the duties of or hold such office. Said Commissioners shall not engage in any other business, vocation, or employment. No 361 362 AMERICAN COMMERCE ASSOCIATION Commission to consist of i«v- «n members; terms: salar- ies. Qualification of Commlulonert vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission." § 2. Statutory Provisions of Section 24. (Added June 29, 1906.) "That the Interstate Com- merce Commission is hereby enlarged so as to con- sist of seven members with terms of seven years, and each shall receive ten thousand dollars conpensa- tion annually. The qualifications of the Commission- ers shall be appointed from the same political party." shall be as already provided by law. Such enlarge- ment of the Commission shall be accomplished through appointment by the President, by and with the advice and consent of the Senate, of two addi- tional Interstate Commerce Commissioners, one for a term expiring December thirty-first, nineteen hun- dred and eleven, one for a term expiring December thirty-first, nineteen hundred and twelve. The terms of the present Commissioners, or of any successor appointed to fill a vacancy caused by the death or resignation of any of the present Commissioners, shall expire as heretofore provided by law. Their successors and the successors of the additional Com- missioners herein provided for shall be appointed for the full terms of seven years, except that any person appointed to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed. Not more than four Commission- ers shall be appointed from the same political party." § 3. Functions and Organization of Interstate Commerce Commission. For description of the administrative functions and departmental organization of the Interstate Commerce Commission, see "Interstate Commerce Law," Part IV, "The Interstate Commerce Commission," post. CHAPTER XIV. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 12. § 1. Statutory Provisions. § 2. Reference Section. 363 CHAPTER XIV. ACT TO REGULATE COMMERCE AS AMENDED, (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 12. § 1. Statutory Provisions. (As amended March 2, 1889, and February 10, 1891). "That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commis- sion, it shall be the duty of any district attorney of the United States to whom the Commission may ap- ply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the en- forcement of the provisions of this Act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this Act the Commission shall have the power to require, by subpoena, the attendance and testimony of wit- 365 Commission to Inquire Into business o f carriers and keep Itself In- formed in re- gard thereto. Commission to execute and enforce provi- sions of this Act. District attor- neys to prose- cute under di- rection of At- torney General. Commission may ; require testi- j mony and doc- ] unientary evi- ] denoa. 366 AMERICAN COMMERCE ASSOCIATION Courts to compel witnesses to attend and testify. Claim that testi- mony or evl- denoe will tend to criminate will not ex- cuse witness. Depositions. Commission may order testimony to be taken by deposition. nesses and the production of all books, papers, tar- iffs, contracts, agreements, and documents relating to any matter under investigation. "Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceed- ing before the Commission, may invoke the aid of any court of the United States in requiring the at- tendance and testimony of witnesses and the produc- tion of books, papers, and documents under the provisions of this section. "And any of the circuit courts of the United States within the jurisdiction of which such inquiry is car- ried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to crimi- nate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. "The testimony of any witness may be taken, at the instance of a party, in any proceeding or inves- tigation pending before the Commission, by deposi- tion, at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investigation. Such dep- ositions may be taken before any judge of any court of the United States, or any commissioner of a cir- INTERSTATE COMMERCE LAW 367 cuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor inter- ested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney proposing to take such dep- osition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as wit- nesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. "Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully ex- amined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writ- ing, be subscribed by the deponent. "If a witness whose testimony may be desired to when witnu* u •' -^ In a fortlin be taken by deposition be in a foreign country, the country, deposition may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission. "Witnesses whose depositions are taken pursuant Fee* of witn*MM .and magl$> to this Act, and the magistrate or other officer taking *">♦«• the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States." 368 AMERICAN COMMERCE ASSOCIATION § 2. Reference Section. As the provisions of section 12 of the Act to Regulate Commerce relate to the attendance and testimony of wit- nesses in investigations and hearings before the Interstate Commerce Commission, the amplification of the section vvrill be found in Part IV, "Interstate Commerce Law," under "Practice and Procedure Before the Interstate Commerce Commission," post. CHAPTER XV. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 13. § 1. Statutory Provisions. § 2. Amendment of the Section. § 3. Purpose of the Section. 369 18 — 25 fl Ifc CHAPTER XV. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 13. § 1. Statutory Provisions. (As amended June 18, 1910). "That any person, complaint, to - ^ . *' ' . . "^ ^ Com mitt ion. firm, corporation, company, or association, or any ^°*^ ""mad"/ mercantile agricultural, or manufacturing society or "*** *""'*''• other organization, or any body politic or munici- pal organization, or any common carrier, complaining of anything done or omitted to be done by any com- mon carrier subject to the provisions of this Act, in contravention of the provisions thereof, may apply to said Commission by petition, w^hich shall briefly state the facts; whereupon a statement of the com- plaint thus made shall be forw^arded by the Commis- sion to such common carrier, w^ho shall be called upon to satisfy the complaint, or to ansvv^er the same in writing, within a reasonable time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the in- jury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the com- commission to plaint within the time specified, or there shall appear m t' manTer'o" .1 ,,^ ,. . . . ^'^ . . lnvMtli»tlon. to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. 371 372 AMERICAN COMMERCE ASSOCIATION "Said Commission shall, in like manner and with the same authority and powers, investigate any com- plaint forwarded by the railroad commissioner or railroad commission of any state or territory at the request of such commissioner or commission, and *^°iT.ul"'or"d."M the Interstate Commerce Commission shall have full In vdtlgatlont , . , . . • bcauo on iu authority and power at any time to institute an in- gwn motlM. .•'.■' . f , quiry, on its own motion, in any case and as to any matter or thing concerning which a complaint is authorized to be made, to or before said Commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. And the said Commission shall have the same powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complaint or peti- tion under any of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which the inquiry is had excepting orders for the pay- "^hium''"*"!!* ment of money. No complaint shall at any time be dis- missed because of the absence of direct damage to the complainant." § 2. Amendment of the Section. Prior to the amendment of section 13 by the Act of June 18, 1910, it provided for complaints only by shippers or their agents or representatives. Since its amendment it authorizes common carriers to bring complaints before the Commission and specifically declares the powers which the Commission may exercise in instituting, upon its own motion, inquiries and investigations, such powers and authority having the same force and effect as if pro- ceedings were formally brought before the Commission by complaint or petition. The Commsision is also given power to make or enforce any order or orders in a case, ■MtwIaL INTERSTATE COMMERCE LAW 373 or relating to the matter or thing concerning which the inquiry is had, excepting orders for the payment of money. § 3. Purpose of the Section. The provisions of section 13 relate to matters of proce- dure before the Interstate Commerce Commission and amplification of the section will, therefore, be found in Part IV, "Interstate Commerce Law," under "Practice and Procedure Before the Interstate Commerce Com- mission," post. CHAPTER XVI. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 14. § 1. Statutory Provisions. § 2. Evidentiary Value of Findings of Commission. § 3. Decisions and Reports of Interstate Commerce Commission. 275 CHAPTER XVI. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplificatibn of Sections (Continued). AMPLIFICATION OF SECTION 14. § 1. Statutory Provisions. (Amended March 2, 1889, and June 29, 1906). "That wherever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its de- cision, order, or requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made. "All reports of investigations made by the Com- mission shall be entered of record, and a copy thereof shall be furnished to the party who may have com- plained, and to any common carrier that may have been complained of. "The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publications shall be com- petent evidence of the reports and decisions of the Commission therein contained in all courts of the United States and of the several states without any further proof of authentication thereof. The Com- mission may also cause to be printed for early dis- tribution its annual reports." Commission must report, stating its conclusions and order. Reparation. Reports must be entered of rc-- ord. Service of copies on parties. Reports and de- cisions to De gubjished, and e competent as evidenoe. Annual reports of Commissicn. 377 378 AMERICAN COMMERCE ASSOCIATION § 2. Evidentiary Value of Findings of Commission. See Part IV, "Interstate Commerce Law," — "Practice and Procedure Before the Interstate Commerce Commis- sion," post. § 3. Decisions and Reports of Interstate Commerce Com- mission. See Part IV, "Interstate Commerce Law" — "Publica- tions and Reports of the Commission," post. CHAPTER XVII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 15. § 1. Statutory Provisions. § 2. Amendments to the Section. § 3. Subjective Analysis of Section 15. § 4. Constitutionality of Section. § 5. Through Routes. § 6. Right of Shipper to Select Through Route. § 7. Power of Suspension Vested in Interstate Commerce Commis- sion. § 8. Allowances to Shippers for Services or Instrumentalities Fur- nished in the Transportation of Their Shipments. § 9. Nature of Interstate Commerce Commission imder Its Enlarged Powers, and the Relation of Section 15 to the Entire Act to Regulate Commerce. § 10. Taking Effect and Duration of Commission's Orders. (1) Statute of Limitations. 379 i CHAPTER XVII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 15. 1. Statutory Provisions. (As amended June 29, 1906, and June 18, 1910). "That whenever, after full hearing upon a complaint made as provided in section thirteen of this Act, or after full hearing under an order for investigation and hearing made by the Commission on its own initiative (either in extension of any pending com- plaint or without any complaint whatever), the Com- mission shall be of opinion that any individual or joint rates or charges whatsoever demanded, charged, or collected by any common carrier or carriers sub- ject to the provisions of this Act for the transporta- tion of persons or property or for the transmission of messages by telegraph or telephone as defined in the first section of this Act, or that any individual or joint classifications, regulations, or practices what- soever of such carrier or carriers subject to the pro- visions of this Act are unjust or unreasonable or unjustly discriminatory, or unduly preferential or prejudicial or otherwise in violation of any of the provisions of this Act, the Commission is hereby authorized and empowered to determine and prescribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged, and what individual or joint classification, 381 Commission may determine ai d preserlbe Jutt and reasonable rates and elas- sifioationt to b e observed ai maximum charge*. Commission may determine and pr*««rlb« Just •nd rMMnable renutatlons or practioes. Com. mission may order Mirier* to ceas* and desist from violation* found. Order* of the Commis- sion efFeotIv* a* prMorlbed, but In not la** than thir- ty day*. 382 AMERICAN COMMERCE ASSOCIATION Orderi In (ore* not exoeedltio two yean, un- less suspended or set aside by Commission or oourt. When earrlert fall to agre* on divisions of Joint rate, C o m m I ssloB may prsscrlbe proportion of such rate to bt received b y raeh carrier. Investigation of new sohedulM. regulation, or practice is just, fair, and reasonable, to be thereafter followed, and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafer pub- lish, demand, or collect any rate or charge for such transportation or transmission in excess of the maxi- mum rate or charge so prescribed, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed. All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such a period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction. When- ever the carrier or carriers, in obedience to such or- der of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division there- of the Commission may, after hearing, make a sup- plemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order. "Whenever there shall be filed with the Commis- sion any schedule stating a new individual or joint rate, fare, or charge, or any new individual or joint classification, or any new individual or joint regula- tion or practice affecting any rate, fare, or charge, the Commission shall have, and it is hereby given, authority, either upon complaint or upon its own ini- tiative without complaint, at once, and if it so orders, without answer or other formal pleading by the in- terested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the pro- priety of such rate, fare, charge, classification, regu- lation, or practice; and pending such hearing and INTERSTATE COMMERCE LAW 383 decision thereon the Commission upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension may suspend the operation of such schedule and defer the use of such rate, fare, charge, classification, regulation, or practice, but not for a longer period than one hundred and twen- ty days beyond the time when such rate, fare, charge, classification, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, charge, classification, regulation, or practice goes into effect, the Commission may make such order in refer- ence to such rate, fare, charge, classification, regula- tion, or practice as would be proper in a proceeding initiated after the rate, fare, charge, classification, regulation, or practice had become effective: Pro- vided, That if any such hearing can not be concluded within the period of suspension, as above stated, the Interstate Commerce Commission may, in its dis- cretion, extend the time of suspension for a further period not exceeding six months. At any hearing involving a rate increased after January first, nine- teen hundred and ten, or of a rate sought to be in- creased after the passage of this Act, the burden of proof to show that the increased rate or proposed increased rate is just and reasonable shall be upon the common carrier, and the Commission shall give to the hearing and decision of such questions prefer- ence over all other questions pending before it and decide the same as speedily as possible. "The Commission may also, after hearing, on a complaint or upon its own initiative without com- plaint, establish through routes and joint classifica- tions, and may establish joint rates as the maximum to be charged and may prescribe the division of such rates as hereinbefore provided and the terms and conditions under which such through routes shall be operated, whenever the carriers themselves shall have refused or neglected to establish voluntarily Commlulon may suspend new lohedulet. Commlision may extend suspen- sion. Burden of proof on carrier as to reasonable- nessofln- creased rates. Commission may establish through routes and Joint rates and classlflcn- tlons. 384 AMERICAN COMMERCE ASSOCIATION such through routes or joint classifications or joint rates; and this provision shall apply when one of the connecting carriers is a water line. The Commission shall not, however, establish any through route, clas- sification, or rate between street electric passenger railways not engaged in the general business of transporting freight in addition to their passenger and express business and railroads of a different char- acter, nor shall the Commission have the right to establish any route, classification, rate, fare, or charge when the transportation is wholly by water, and any transportation by water affected by this Act shall be subject to the laws and regulations applicable to transportation by water. DowV''"to pre" "And in establishing such through route, the Com- scrlbe through . . ° . ° . "»"♦"• mission shall not require any company, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any in- termediate railroad operated in conjunction and un- der a common management or control therewith which lies between the termini of such proposed through route, unless to do so would make such through route unreasonably long as compared with another practicable through route which could other- wise be established. ^"dMignate '^o'u 'Ttt all cases where at the time of delivery of property to any railroad corporation being a common carrier, for transportation subject to the provisions of this Act to any point of destination, between which and the point of such delivery for shipment two or or more through routes and through rates shall have been established as in this Act provided to which through routes and through rates such carrier is a party, the person, firm, or corporation making such shipment, subject to such reasonable exceptions and regulations as the Interstate Commerce Commission shall from time to time prescribe, shall have the right to designate in writing by which of such through routes such property shall be transported to destina- tion, and it shall thereupon be the duty of the initial Ina. INTERSTATE COMMERCE LAW 386 carrier to route said property and issue a through bill of lading therefor as so directed, and to transport said property over its own line or lines and deliver the same to a connecting line or lines according to such through route, and it shall be the duty of each of said connecting carriers to receive said property and transport it over the said line or lines and deliver the same to the next succeeding carrier or consignee according to the routing instructions in said bill of lading: Provided, however, That the shipper shall in all instances have the right to determine, where competing lines of railroad constitute portions of a through line or route, over which of said competing lines so constituting a portion of said through line or route his freight shall be transported. "It shall be unlawful for any common carrier sub- "oT'eceil'. T. ject to the provisions of this Act, or any ofBcer, »°'vi' to" .h7il: agent, or employee of such common carrier, or for any other person or corporation lawfully authorized by such common carrier to receive information therefrom, knowingly to disclose to or permit to be acquired by any person or corporation other than the shipper or consignee, without the consent of such shipper or consignee, any information concern- ing the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to such common carrier for interstate transportation, which information may be used to the detriment or prejudice of such shipper or consignee, or which may improperly disclose his business transactions to a competitor; and it shall also be unlawful for any per- son or corporation to solicit or knowingly receive any such information which may be so used: Pro- vided, That nothing in this Act shall be construed ExMptioni. to prevent the giving of such information in re- sponse to any legal process issued under the author- ity of any state or federal court, or to any officer or agent of the Government of the United States, or of any State or Territory in the exercise of his powers, or to any officer or other duly authorized person 18 — 28 386 AMERICAN COMMERCE ASSOCIATION Penalty. Commission may determine rea- sonable maxl- m u m to b* paid for ser- vice rendered or Instrumen- tality furnished by owner of property trans- ported. Enumeration of powers In this section not ex- clusive. seeking such information for the prosecution of per- sons charged with or suspected of crime; or infor- mation given by a common carrier to another carrier or its duly authorized agent, for the purpose of ad- justing mutual traffic accounts in the ordinary course of business of such carriers. "Any person, corporation, or association violating any of the provisions of the next preceding para- graph of this section shall be deemed guilty of a mis- demeanor, and for each offense, on conviction, shall pay to the United States a penalty of not more than one thousand dollars. *'If the owner of property transported under this Act directly or indirectly renders any service con- nected with such transportation, or furnishes any instrumentality used therein, the charge and allow- ance therefor shall be no more than is just and rea- sonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in Hke manner as the orders above provided for under this section. "The foregoing enumeration of powers shall not exclude any power which the Commission would oth- erwise have in the making of an order under the pro- visions of this Act." ''' § 2. Amendments to the Section. The fifteenth section of the Act to Regulate Commerce has been more radically amended than any other section of the Act. Prior to the amendment of June 29, 1906, •1) For amendment of August 6, 1917, providing that until Jan. 1, i920, no increased rate shall be filed except after approval by Com- mission, see Appendix, I. C. Law, Part IV.— "Amendatory Acts. INTERSTATE COMMERCE LAW 387 the section merely provided that the Commission, having found that there had been some violation of the provisions of the Act, should serve notice upon the carrier to desist from the wrongful act or practice. At that time the Com- mission was without power to prescribe either direct or indirect minimum, maximum, or absolute rates, but, un- der other sections of the Act, could order the carrier to desist from further enforcement of an unreasonable rate or an unjust or discriminatory rate or practice. Section 15 as it now stands is practically a new section added to the Act after the Commission had determined the violation had occurred. In the event of further con- tinuance of such violation by the carrier, the notice served as the condition precedent or basis for proceedings in court to enforce the order of the Commission. In the present section this notice is omitted, since in all cases, except where orders for the payment of money are made, no court proceedings are necessary to enforce the orders of the Commission. Amendment of June 29, 1906: Authorized the Commission to establish joint rates and classifications, fix reasonable rates for the future and establish through routes. Amendment of June 18, 1910: Commission was authorized to investigate any rate increase, and to suspend the taking effect of such increased rate, pending an investigation by the Commission in which the burden is upon the car- rier to show the reasonableness of the proposed rate; 388 AMERICAN COMMERCE ASSOCIATION To establish through routes and joint rates and clas- sification without limitation. The amendment of 1906 in empowering the Commission to establish through routes, restricted such authority with the proviso that "no reasonable or satisfactory through route exists." Commission was also authorized to determine a just and reasonable allowance to a shipper for any serv- ice rendered or instrumentality furnished by him in the transportation of his property. Making it unlawful for a carrier to give information concerning rival shipments. Permitting the shipper to select the route of his ship- ment. This has reference, of course, to through shipments. § 3. Subjective Analysis of Section 15. As now amended the provisions of section 15 of the Act relate to the following subjects : (1) Commission may determine and prescribe just and reasonable rates and classifications to be observed as basis for maximum charges. (2) Commission may determine and prescribe just and reasonable regulations or practices. (3) Commission may order carriers to desist and cease from full extent of violations found. (4) Orders of Commission effective as prescribed, but in not less than thirty days. (5) Orders shall continue in force not exceeding two years unless suspended or set aside by Com- mission or court. (6) When carriers fail to agree on divisions of joint rate, Commission may prescribe proportion of such rate to be received by each carrier. (7) Investigation by Commission of new schedules. INTERSTATE COMMERCE LAW 389 (8) Commission has authority to suspend new schedule when found to be apparently unrea- sonable or discriminatory. (9) Commission may extend such suspension period. (10) Burden of proof on carrier as to reasonableness of increased rates. (11) Commission may establish through routes and joint rates and classifications. (12) Limitation imposed on through route power. (13) Selection of route by shipper permitted. (14) Unlawful to give or receive information rela- tive to rival's shipments. (15) Commission may determine just and reasonable charges or allowance for service rendered by owner of property transported or for any in- strumentality furnished by such owner and used in such transportation. § 4. Constitutionality of Section. By far the most important power conferred upon the Commission by the reconstruction of the fifteenth section in the 1906 amendment was the vesting of authority in the Commission to fix maximum rates for the future. While, under the statute, the carrier still retains the primary right to make rates, the amended fifteenth section of the Act invests the Commission with the legislative function of prescribing rates to be observed by carriers in the fu- ture. The right of the Commission to thus prescribe rates, however, depends upon the unreasonableness of the existing or proposed rate, and unless there is evidence to indicate that such rate is unreasonable the Commission is without jurisdiction to make an order. The constitutionality of this provision of the amended fifteenth section has been upheld by the Supreme Court as a proper delegation by Congress of legislative as well 390 AMERICAN COMMERCE ASSOCIATION as administrative powers to the Commission. While the Commission niay exercise this legislative function fully and freely, subject only to such limitations as Congress may impose, it may not enter an order under the statute until the carrier is afforded a hearing, v^hether the inves- tigation is proceeding upon a complaint filed or is under- taken upon the initiative of the Commission itself. A finding by the Commission w^ithout hearing and an oppor- tunity to all parties concerned to introduce evidence would be arbitrary and baseless. The Commission is primarily an administrative body and while not limited by strict rules of procedure as to the admissibility of evidence, etc., it cannot conduct ex parte proceedings, but must fully inform all parties of the evidence to be submitted or to be considered, giving each an opportunity to cross-exam- ine witnesses, inspect documents, and offer in evidence explanatory or rebuttal facts. The Supreme Court, in I. C. C. vs. L. & N. R. R. Co., 227 U. S. 88, 57 L. Ed. 431, referring to the investiture of the Commission with this extraordinary power, said: "But the statute gave the right to a full hearing, and that conferred the privilege of introducing testi- mony and at the same time imposed the duty of de- ciding in accordance with the facts proved. A find- ing without evidence is arbitrary and baseless. And if the government's contention is correct it would mean that the Commission had a power possessed by no other officer, administrative body, or tribunal un- der our government. It would mean that where rights depended upon facts, the Commission could disregard all rules of evidence and capriciously make findings by administrative fiat. Such authority, how- ever beneficently exercised in one case, could be in- INTERSTATE COMMERCE LAW 391 juriously exerted in another; is inconsisent with ra- tional justice, and comes under the Constitution's condemnation of all arbitrary exercise of power. "Under the statute the carrier retains the primary right to make rates, but if, after hearing, they are shown to be unreasonable, the Commission may set them aside and require the substitution of just for unjust charges. The Commission's right to act de- pends upon the existence of this fact, and if there was no evidence to show that the rates were unrea- sonable, there was no jurisdiction to make the order. Interstate Commerce Commission vs. Northern Pa- cific Railway, 216 U. S. 538, 54 L. Ed. 608, 30 Sup. Ct. 417. In a case like the present the courts will not review the Commission's conclusions of fact (Inter- state Commerce Commission vs. Delaware, etc.. Ry., 220 U. S. 235. 55 L. Ed. 448, 31 Sup. Ct. 392). by passing upon the credibility of witnesses, or conflicts in the testimony. But the legal effect of evidence is a question of law. A finding without evidence is beyond the power of the Commission. An order based thereon is contrary to law and must, in the language of the statute, 'be set aside by a court of competent jurisdiction.' 36 Stat. 551. "The Government further insists that the Com- merce Act requires the Commission to obtain infor- mation necessary to enable it to perform the duties and carry out the objects for which it was created, and having been given legislative power to make rates it can act, as could Congress, on such informa- tion, and therefore its findings must be presumed to have been supported by such information, even though not formally proved at the hearing. But such a construction would nullify the right to a hear- ing — for manifestly there is no hearing when the party does not know what evidence is offered or con- sidered and is not given an opportunity to test, ex- plain, or refute. The information gathered under the provisions of section 12 may be used as basis for 392 AMERICAN COMMERCE ASSOCIATION instituting prosecutions for violations of the law, and for many other purposes, but is not available, as such, in cases where the party is entitled to a hearing. The Commission is an administrative body and, even where it acts in a quasi-judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private par- ties. Interstate Commerce Commission vs. 3aird, 194 U. S. 48 L. Ed. 860, 24 Sup. Ct. 563. But the more liberal the practise in admitting testimony, the more imperative the obligation to preserve the essen- tial rules of evidence by which rights are asserted or defended. In such cases the Commissioners cannot act upon their own information as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine wit- nesses, to inspect documents and to ofTer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown but presumptively sufficient information to support the finding. Interstate Commerce Commis- sion vs. Baltimore, etc., R. R., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5." The Federal Court, in L. & N. R. R. Co. vs. I. C. C, 184 Fed. Rep. 118, held that the power in the Commission to fix rates for the future was purely legislative, within the power of Congress to grant, and exercisable by the Commission to the same extent that Congress might ex- ercise it, unless limitation of such power by the Commis- sion was imposed by Congress in its delegation of the authority to the Commission. The amendment was, INTERSTATE COMMERCE LAW 393 therefore, held to be in things relating to the fixing of rates, constitutional. Among the important provisions included in the amended fifteenth section was that vesting power in the Commission to regulate "any regulation or practice what- soever" affecting rates or violative of any of the provi- sions of the Act. Operative efifect is given to the orders of the Commis- sion, without the sanction of previous judicial authority, empowering that body to correct unreasonable rates as well as practices found upon complaint to be unduly preju- dicial and unjustly discriminatory, such order having ef- fect within the period fixed in the statute and for the enforcement of which penalties are provided. In the Pitcairn Coal Company case the Supreme Court upheld this authority in the Commission as being a proper exercise of the power of Congress in curing the former remedial inefficiency of the Act to Regulate Commerce which had failed to supply efficient means for giving effect to the orders of the Commission, saying: "Now it cannot in reason be questioned that among the purposes contemplated by the amendments adopted in 1906 was the curing of the presumed remedial inefficiency of the Act by supplying efficient means for giving effect to the orders of the Com- mission, made in the exertion of the authority con- ferred upon that body. To that end one of the amend- ments, section 15, gives operative effect to the orders of the Commission without the sanction of previous judicial authority, and endows that body with the power, not only as to unreasonable rates, but as to practices found upon complaint to be unduly prejudic- ial and unjustly discriminatory, to correct the same by its order, which order should have effect within the 394 AMERICAN COMMERCE ASSOCIATION period fixed in the statute, and, to enforce these pro- visions, penalties and forfeitures are provided. B. & O. R. R. Co. vs. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292. See also: I. C. C. vs. I. C. R. R. Co., 215 U. S. 452, 54 U Ed. 280. Compare : Supreme Court's interpretation of section 15 prior to the 1906 amendment. I. C. C. vs. C. N. O. & T. P. Ry. Co., 167 U. S. 479, 42 L. Ed. 243 C. N.' O. & T. P. Ry. Co. vs. I. C. C, 162 U. S. 184, 40 L. Ed. 935 I. C. "C. vs. B. & O. R. R. Co., 145 U. S. 263, 36 L. Ed. 699. See also: The following decisions of the Supreme Court^ relative to the powers vested in and the control exercised by the Commission under section 15. Allowances: A. T. & S. F. vs. U. S. 232 U. S. 199, 58 L. Ed. 568. U. S. vs. B. & O. R. R. Co., 231 U. S. 274, 58 L. Ed. 218. I. C. C. vs. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83. U P. R. R. Co. vs. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171. Regulation of Rates: I. C. C. vs. C. R. I. & P. Ry. Co., 218 U. S. 88. 54 L. Ed. 946. I. C. C. vs. D. G. H. & M. Ry. Co., 167 U. S. 633, 42 L. Ed. 306. Discriminations in Facilities: I. C. C. vs. A. T. & S. F. Ry. Co. (Los Angeles Switching Case), 234 U. S. 294, 58 L. Ed. 1319. S. P. Term. Co. vs. I. C. C, 219 U. S. 498, 55 L. Ed. 310. Regulation of Cars: Morrisdale Coal Co. vs. P. R. R. Co., 230 U. S. 304, 57 L. Ed. 1494. B. & O. R. R. Co. vs. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292. INTERSTATE COMMERCE LAW 395 I. C. C. vs. I. C. R. R. Co., 215 U. S. 452, 54 L. Ed. 280. P. Co. vs. U. S., 236 U. S. 351, 59 L. Ed. (Decided Feb. 23, 1915.) I. C. C, vs. P. R. R. Co., — U. S. — , — L. Ed. — . (Decided Dec. 11, 1916, Nos. 340 and 341, Oct. Term.) § 5. Through Routes. The power of the Commission to require through routes is not unlimited. The Commission cannot compel a carrier, without its consent, to include in a through route so established substantially less than its entire line of railroad. Under the amendment of 1906, which contained the qualifying clause when "no reasonable or satisfactory through route exists," rendered the action of the Com- mission in establishing a through route subject to review by the courts. With the removal of this exception in the amendment of 1910, the Commission was empowered to establish through routes, either upon complaint or upon its own motion, where the carriers had failed or refused to voluntarily establish such through routes, even though one of such carriers might be a water line. I. C. C. vs. N. P. R. Co., 216 U. S. 538, 54 L. Ed. 608. (Re- viewing order of Cpmmission in 16 I. C. C. Rep. 300.) In the case of C. & C. Tract. Co. vs. B. & O. S. W. R. Co., 20 I. C. C. Rep. 486, 490; the Commission said: "When the complaint was filed the Commission, under section 15, had authority after hearing on a complaint, to establish through routes and maximum joint rates and to prescribe the divisions thereof, "provided no reasonable or satisfactory through route existed. In the amendment of June 18, 1910, this limitation was omitted. As the section now reads, the only limitations on our authority to es- tablish through routes and joint rates need be men- tioned here are; 396 AMERICAN COMMERCE ASSOCIATION "(a) We may not require any railroad involunta- rily to embrace in a through route substantially less than the entire length of its road between the termini of the proposed through route. "(b) We may not establish through routes and joint rates between a steam railroad and a street electric passenger railway that does not transport freight in addition to its passenger and express busi- ness. "The first of these limitations must, of course, be observed in all cases; the second has no application in connection with this complaint. "This is the first occasion upon a formal complaint that we have had to examine the amended provision. But one point that seems to be entirely clear is that, although the complaint was filed before the amend- ment became effective, we can act only under the authority that we now have. We gather also from a careful reading of the amended clause that it was the purpose of the Congress to widen the scope of our powers to establish through routes and joint rates rather than to narrow them, and to leave in the Commission full discretion to act in such cases in the light of all the facts and circumstances and ac- cording to what may seem wise, fair, reasonable and equitable in each case. Upon review of this case by the Supreme Court it held that the power of the Commission does not extend to ordering switch connections wherever it sees fit but is limited to a certain class of lines among which are those dependent upon and incident to the main line, feeders, such as may be built from mines or forests to bring coal, ore or lumber to the main line for shipment, and does not apply to independent roads parallel to or competing with steam roads and working on a different plan. U. S. vs. B. & O. S. W. R. R. Co.. 226 U. S. 14. INTERSTATE COMMERCE LAW 39t See also: The Ogden Gateways Case, 35 I. C. C. Rep. 131, 139. Rates on Lumber from Southern Points, 34 I. C. C. Rep. 652, 707. City of Nashville vs. L. & N. R. R. Co., 33 I. C. C. Rep. 76, 86. Jurisdiction over Urban Electric Lines, 33 I. C. C. Rep. 536, 539. Corp." Comm. of Oklahoma vs. K. C. M. & O. Ry. Co., 32 I. C. C. Rep. 384, 385. Decatur Nav. Co. vs. L. & N. R. R. Co., 31 I. C. C. Rep. 281 287 Switching" at Galesburg, 111., 31 L C. C. Rep. 294, 296, 297. Pacific Nav. Co. vs. S. P. Co., 31 I. C. C. Rep. 472, 476, 478, 479. Merchants & Mfrs. Assn. vs. C. R. R. of N. J., 30 L C. C. Rep. 396 401. Cement Rates from Mason City, 30 I. C. C. Rep. 426, 430. Lumber Rates from Oregon and Washington, 29 I. C. C. Rep. 609, 617, 618. Concentration of Cotton at Points in Arkansas, 29 L C. C. Rep. 106, 108. Wichita Board of Trade vs. A. & S. Ry. Co., 29 L C. C. Rep. 376, 379. Mfrs. Ry. Co. vs. St. L. I. M. & S. Ry. Co., 28 L C. C. Rep. 93, 108. Rates on Cottonseed and Its Products, 28 I. C. C. Rep. 219, 221. People's Fuel & Supply Co. vs. G. T. W. Ry. Co., 27 I. C. C. Rep. 24, 28. Truckers' Transfer Co. vs. C. & W. C. Ry. Co., 27 I. C. C. Rep. 275. Aransas Pass Channel & Dock Co vs. G. H. & S. A. Ry. Co., 27 I. C. C. Rep. 403, 414. Wichita Falls System, Joint Rate Cases, 26 I. C. C. Rep. 215, 222. Augusta & Savannah Steamboat Co. vs. O. S. S. Co., 26 I. C. C. Rep. 380, 384. Texas Cement Plaster Co. vs. St. L. & S. F. R. R. Co., 26 I. C. C. Rep. 508, 510. Kansas City, Mo., & Kansas City, Kansas, vs. K. C. T. Co., 24 I. C. C. Rep. 22, 26. Chamber of Commerce of New York vs. N. Y. C. & H. R. R. R. Co., 24 I. C. C. Rep. 55. Commercial Club of Superior, Wis., vs. G. N. Ry. Co., 24 I. C. C. Rep. 96, 112. Flour S. S. Co. vs. L. V. R. R. Co., 24 I. C. C. Rep. 179, 185. Corp. Comm. of Oklahoma vs. A. T. & S. F. Ry. Co., 23 I. C. C. Rep. 656. In re Investigation of Alleged Unreasonable Rates on Meats, 23 I. C. C. Rep. 652, 655. Missouri & Illinois Coal Co. vs. I. C. R. R. Co., 22 I. C. C. Rep. 39, 49. 398 AMERICAN COMMERCE ASSOCIATION Mfrs. Ry. Co. vs. St. L. I. M. & S. Ry. Co., 21 I. C. C. Rep. 304, 312, 313. C. & C. Traction Co. vs. B. & O. S. W. R. R. Co.. 20 I. C. C. Rep. 486, 490. Baer Bros. Mercantile Co. vs. D. & R. G. R. R. Co.. 200 Fed. Rep. 614, 620. B. & O. S. W. R. R. Co. vs. I. C. C, 195 Fed. Rep. 962. I. C. C. vs. L. & N. R. R. Co., 227 U. S. 88, 57 L. Ed. 431. U. S. vs. P. & A. R. & N. Co., 228 U. S. 87, 57 L. Ed. 742. So. Pac. Co. vs. I. C. C, 200 U. S. 536, 50 L. Ed. 585. I. C. C. vs. I. C. R. R. Co., 215 U. S. 452. 54 L. Ed. 280. § 6. Right of Shipper to Select Through Route. The shipper is given the right under section 15 to select the route via which he desires his shipment to move and designate the same in writing upon the bill of lading, when there are two or more through routes avail- able, and the initial carrier and all connecting carriers are under the express duty of transporting the shipment in accordance with the shipper's selection and direction of his route. § 7. Power of Suspension Vested in Interstate Commerce Commission. The power of the Commission to suspend proposed in- creased rates has been exercised with important effect since the amendment of the section in 1910. The most important instances were the attempted advances by the eastern and western lines in 1910, and in 1915, known as the Advance Rate Cases — Western Cases and Eastern Cases. In the 1910 Eastern Case the Commission, after suspending the tariffs, denied the increases proposed on the ground that the burden was upon the carriers to show the reasonableness of and necessity for the proposed in- creases and that there was no evidence produced before the Commission establishing the necessity for higher rates. The Commission said: "Before any general advance in rates can be per- INTERSTATE COMMERCE LAW 399 mitted it must appear with reasonable certainty that carriers have exercised proper economy in the pur- chase of their supplies, in the payment of wages, and in the general conduct of their business." Re Advances in Rates — Eastern Case, 20 I. C. C. Rep. 243. In the Western Case the Commission said that the car- riers seeking to increase their rates must satisfy the mind of the Commission of the fact that such proposed rates were reasonable and just. Re Advances in Rates — Western Case, 20 I. C. C. Rep. 307. The Commission is empowered to suspend a proposed rate 120 days in the first instance, pending its investiga- tion of the necessity for and the reasonableness of the proposed rate, and pending such suspension if the investi- gation of the Commission cannot be concluded within the period, a further extension of the suspension period may be made not to exceed six months. Since the amendments to the Act of 1906 the Commis- sion has repeatedly held that transit is a practice or reg- ulation included within the provisions of section 15, over which the Commission has jurisdiction. In Spiegle vs. S. Ry. Co., 25 I. C. C Rep. 71, 73, the Commission said: "The defendant suggests that we have no juris- diction to deal with this question, and in confirmation of this view refers to several of our decisions. It is true that the Commission held, previous to the Hep- burn amendment of 1906, that the privilege of milling in transit was one which the carrier might or might not accord, at its option, provided no discrimination was effected, and several expressions can be found in the opinions of the Commission subsequent to 1906 which indicate the same view after the passage of that amendment. But it was finally held in a re- cent case that transit in its various forms was a reg- 400 AMERICAN COMMERCE ASSOCIATION ulation or practice affecting the rate of which this Commission had jurisdiction, and under that holding it is competent for us to inquire whether this charge is excessive." When the Commission suspends the operation of a tariff it is contemplated that the rates sought to be in- creased or otherwise changed are to be continued in ef- fect pending the investigation. Under section 15 the Commission is authorized, when new rates are filed to determine on its own initiative the propriety of such new rates and pending such determina- tion, to suspend the operation of the schedule stating such new rates, but it is the custom of the Commission to suspend new rates when it appears that they will create unlawful discrimination. Western Rate Advance Case, 35 I. C. C. Rep. 497. Class Rates Between Stations in Louisiana, 33 I. C. C. Rep. 302, 303. Five Per Cent Case, 32 I. C. C. Rep. 325. Five Per Cent Case, 31 I. C. C. Rep. 351. Rates on Boots and Shoes from Boston, 31 I. C. C. Rep. 154, 155. Wickwire Steel Co. vs. N. Y. C. & H. R. R. R. Co., 30 I. C. C. Rep. 415, 420. Coal Rates from Oak Hills, Colo., 30 I. C. C. Rep. 505, 508. Fabrication-in-Transit Charges, 29 I. C. C. Rep. 70, 78. Commodity Rates Between Missouri River Points, 28 I. C. C. Rep. 265, 267. In re Rates on Plaster and Gypsum Rock, 27 I. C. C. Rep. 67, 70. New England Investigation, 27 I. C. C. Rep. 560, 614. Protection of Potato Shipments in Winter, 26 I. C. C. Rep. 681, 683. Commutation R^te Case, 21 I. C. C. Rep. 428, 429. § 8. Allowances to Shippers for Services or Instrumental- ities Furnished in the Transportation of Their Shipments. The amending of section 15 in 1906 to empower the Commission to determine reasonable allowances to be paid to shippers for services rendered or instrumentalities INTERSTATE COMMERCE LAW 401 furnished in the transportation of the owner's property- was at the direct behest of the Commission made in its annual report for 1905. The Commission said that there was no doubt that the payment of extravagant sums for such services was resorted to for the purpose and with the effect of preferring one shipper to another. It also said that this remedy would not be altogether adequate, and that any remedy was extremely difficult of application, but that nothing better appeared to be available. In the administration of this power the Commission has adhered to the rule that the shipper may not claim nor receive allowance for any service or instrumentality furnished by it that it could not, in its contractual rela- tionship with the carrier, call upon the railroad company to do for it. M. I. Gump vs. B. & O. R. R. Co., 14 I. C. C. Rep. 98. A carrier is not warranted under section 15 of the Act in making an allowance to one shipper who provides a facility and performs a service in the transportation of his own property, while refusing a similar allowance to another shipper competing in the same markets, and in the same line of business, who provides a similar facility and performs the same service in the transportation of his property. Fed. Sugar Refg. Co. vs. B. & O. R. R. Co., 20 I. C. C. Rep. 200. (See also same case in 17 I. C. C. Rep. 40.) So, the Commission will not permit such allowances where they operate to produce undue advantages or dis- criminations. This power of the Commission does not extend to con- tracts made with third parties for such services. Merchants Cot. Press, etc. vs. I. C. R. R. Co., 17 I. C. C. Rep. 98. 18 — 27 402 AMERICAN COMMERCE ASSOCIATION "Lateral allowances," so termed, which were in fact re- ductions below the published rates, have been condemned as unlawful discrimination against competing shippers who are charged with full tariff rates. Rates for Transportation of Anthracite Coal, 35 I. C. C. Rep. 220, 241, 243. Rules Governing Transportation of Potatoes, 34 I. C. C. Rep. 255, 256. Grain Elevation Allowances at Kansas City, 34 I. C. C. Rep. 442, 447. Western Trunk Line Rules, 34 I. C C. Rep. 554, 578. Second Industrial Railways Case, 34 I. C. C. Rep. 596, 603. Car Spotting Charges, 34 I. C. C. Rep. 609, 617. Best Co. vs. G. N. Ry. Co., 33 I. C. C. Rep. 1, 3. A T & S. F. Ry. Co. vs. K. C. Stock Yards Co., 33 I. C. C. Rep. 92, 98. Inman, Akers & Inman vs. A. C. L. R. R. Co., 32 I. C. C. Rep. 146, 148. New York Dock Ry. Co. vs. B. & O. R. R. Co., 32 I. C. C. Rep. 568, 569, 574. Colonial Salt Co. vs. C. B. & Q. R. R. Co., 31 I. C. C. Rep. 559, 562. In re Muncie & Western R. R. Co., 30 I. C. C. Rep. 434, 435, 436. Dunnage Allowances, 30 I. C. C. Rep. 538, 546. Mfrs. Ry. Co. vs. St. L. I. M. & S. Ry. Co., 28 I. C. C. Rep. 93 101 Sterling & Son vs. M. C. R. R. Co., 21 I. C. C. Rep. 451, 454. In re Allowances for Transfer of Sugar, 14 I. C. C. Rep. 619, 625, 627. General Electric Co. vs. N. Y. C. & H. R. R. R. Co., 14 I. C. C. Rep. 237, 242. Traffic Bureau, Merchants' Exchange vs. C. B. & Q. R. R. Co., 14 I. C. C. Rep. 317, 330. See also: U. S. vs. L. & P. Ry. Co. (Tap Line Cases), 234 U. S. 1, 58 L. Ed. 1185. U. S. vs. Butler County R. R. Co., 234 U. S. 29, 58 L. Ed. 1196. I. C. C. vs. A. T. & S. F. Ry. Co. (Los Angeles Switching Case), 234 U. S. 294, 58 L. Ed. 1319. U. S vs. B. & O. R. R. Co., 231 U. S. 274, 58 L. Ed. 218. Mitchell Coal Co. vs P. R. R. Co., 230 U. S. 247, 57 L. Ed. 1472. U S vs. B. & O. R. R. Co., 225 U. S. 306, 56 L. Ed. 1100. I. C. C. vs. Diflfenbaugh, 222 U. S. 42, 56 L. Ed. 83. U. P. R. R. Co. vs. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171. I. C C. vs. Stickney, 215 U. S. 98, 54 L. Ed. 112. INTERSTATE COMMERCE LAW 403 So. Ry. Co. vs. St. L. Hay & Grain Co., 214 U. S. 297, S3 L. Ed. 1004. C. & A. R. R. Co. vs. U. S., 212 U. S. 563. 53 L. Ed. 653. Mitchell Coal & Coke Co. vs. P. R. R. Co., 181 Fed Rep. 403, 410. Peavey & Co. vs. U. P. R. R. Co., 176 Fed. Rep. 409, 419. Allowances are frequently made voluntarily by a trunk line for services performed by a shipper for the trunk line; it is not settled law that the Commission can require these allowances to be made by the trunk line any more than it can require the latter to absorb the published rate of a terminal carrier. Mfrs. Ry. Co. vs. St. L. I. M. & S. Ry. Co., 28 I. C. C. Rep. 93, 101. § 9. Nature of Interstate Commerce Commission Under its Enlarged Powers, and the Relation of Section 15 to the Entire Act to Regulate Commerce. Section 15 is the dominating and controlling expression of the real object and meaning of the Act in its present form. It makes of the Commission what it was undoubt- edly intended to be, namely, a special expert body created for the purpose of dealing with the rates and practices of carriers affecting rates, and not a body to take the place of the courts for the redress of alleged wrongs of the character involved in the complaint. Joynes vs. Penna. R. Co., 17 I. C. C. Rep. 361. This section is an empowering act in itself so far as the regulation of rates and practices are concerned. It is the section which gives legal poise to the balance of the Act. In its interpretation it must be read in its relation to the other sections of the Act. Section 1 of the Act to Regulate Commerce provides that it shall be the duty of every common carrier subject 404 AMERICAN COMMERCE ASSOCtATIOlSr to the provisions of this Act "to establish through routes and just and reasonable rates applicable thereto; and to provide reasonable facilities for operating such through routes and to make reasonable rules and regulations for the exchange, interchange, and return of cars used there- in, and for the operation of such through routes, and pro- viding for reasonable compensation to those entitled thereto." The duty under this section is twofold; first, through routes must be established, and second, just and reasonable rates made applicable thereto. The theory of this provision is that carriers should freely interchange freight betw^een their respective lines to the end that in- terstate commerce may move without interruption or de- lay. However, the provision in question should not be subject to so narrow a construction, but should be read in connection with the latter portion of section 3, with section 15, and with a regard to the intendment of the Act as a whole and the correction of the evils it has sought to remedy. Section three requires every com- mon carrier subject to the provisions of the Act to afford all reasonable, proper, and equal facilities for the inter- change of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers or property to and from their several lines and those con- necting therewith, and forbids discrimination in the rates and charges between such connecting lines. This provi- sion broadens section one and makes plain the intent of Congress that every reasonable and proper facility shall be extended equally by a carrier to all of its connections and that no discrimination in its charges shall be made in favor of or against any connecting line. Section IS then provides that the Commission may establish through routes and joint rates and prescribe the division of such INTERSTATE COMMERCE LAW 405 rates and terms and the conditions under which such through routes shall be operated whenever the carriers themselves shall have refused or neglected to establish voluntarily such through routes or joint rates, and it fur- ther provides that this shall apply when one of the car- riers is a water line. Prior to 1910 the Commission's power to establish through routes was limited to instances in which no sat- isfactory through route existed. The elimination of this limitation placed within the discretion of the Commission the establishment of additional through routes. In the exercise of this discretion the existence of through routes capable of adequately and expeditiously handling all traf- fic offered is entitled to much consideration, but no longer constitutes a barrier to another through route. § 10. Taking Effect and Duration of Commission's Or- ders. Under this section as amended the order of the Com- mission in all cases, except those in which orders for the payment of money are made, takes effect as prescribed in the order but not in less time than thirty days', and shall remain in effect for two years, unless suspended or set aside by the Commission or a court. An order of the Commission which does not state the duration thereof is nevertheless a valid one and remains in effect for the two year period fixed by the statute. N. Y. etc., R. R. Co. vs. I. C. C. 168 Fed. Rep. 131. Even though two years have elapsed since the taking effect of an order of the Commission the courts will pass upon such order, because the orders of the Commission are in a sense continuing and subsequent proceedings by 406 AMERICAN COMMERCE ASSOCIATION way of reparation might be based upon such expired order. S. P. Terml. Co. vs. I. C. C, 219 U. S. 498, 55 L. Ed. 310. S. P. Co. vs. I. C. C, 219 U. S. 433. 55 L. Ed. 283. (See 14 I. C. C. Rep. 461, for original order of Commission.) Arlington Heights Fruit Exchange vs. S. P. Co., 39 I. C. C. Rep. 88, 93. See also: I. C. C. Ann. Reps, for 1909, p. 33, and 1910, p. 16, for eflfect of court's ruling upon expiration of order of Commission. (1) Statute of Limitations. The Interstate Commerce Commission has held that the statute of limitation does not run to defeat claims for reparation if a mere letter is filed with the Commission setting forth nature of claim or claims, and opportunity is afforded defendants to settle claim or claims before formal proceedings are begun. Gamble-Robinson Commission Company vs. St. L. & S. F. R. R. Company, 19 I. C. C. Rep. 114. See also: S. p. Term. Co. vs. I. C. C, 219 U. S. 498, 55 L. Ed. 310. S. P. Co. vs. I. C. C, 219 U. S. 433, 55 L. Ed. 283. Richardson vs. McChesney, 218 U. S. 487, 54 L. Ed. 1121. Jones vs. Montague, 194 U. S. 147, 48 L. Ed. 913. U. S. vs. Trans.-Mo. Freight Assn.. 166 U. S. 290, 308, 41 L. Ed. 1007. CHAPTER XVIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 16. § 1. Statutory Provisions. § 2. Amendments to the Section. (1) Amendment of June 29, 1906. (2) Amendment of June 18, 1910. § 3. Subjective Analysis of Section 16. § 4. Power of Commission to Award Reparation. § 5. Award of Reparation May be Made by Commission Before Future Rate is Prescribed. § 6. Power of Commission to Award General Damages. § 7. Reference Section. §8. Statutory Provisions — 16a. § 9. Rehearings. ; . i .401 CHAPTER XVIII. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 16. § 1. Statutory Provisions. (Amended March 2, 1889, June 29, 1906, and June a^jjJ •» g;j;: 18, 1910.) "That if, after hearing on a complaint """""•• made as provided in section thirteen of this Act, the Commission shall determine that any party complain- ant is entitled to an award of damages under the pro- visions of this Act for a violation thereof, the Com- mission shall make an order directing the carrier to pay to the complainant the sum to which he is en- titled on or before a day named. "If a carrier does not comply with an order for to b« enrontd the payment of money within the time limit in such order, the complainant, or any person for whose ben- efit such order was made, may file in the circuit court of the United States for the district in which he resides or in which is located the principal operat- ing office of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdiction having jurisdiction of the parties, a peti- tion setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the circuit court of the ''';,"''c'otnmiJro'!l United States shall proceed in all respects like otlier ■"■""■ *•'=''" civil 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 stated, and except that the petitioner shall not be 409 evidence in r • p a r a t Ion eaiet. 410 AMERICAN COMMERCE ASSOCIATION Petitioner'* at- torney'! feet. Limitation upon action. Joint plaintlffi may sue Joint defendants In courts on awards of dam- agei. Service of pro- eeti. Service of order of CommlMlon. Commlulon may suspend or modify order. Carriers, their agents and em- ployees, murt comply with such ordwm liable for costs in the circuit court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall final- ly prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of dam- ages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit court or state court within one year from the date of the order, and not after. "In such suits all parties in whose favor the Com- mission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages mav be joined as defendants, and such suit may be maintained by such joint plaintiflFs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants: and service of pro- cess against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal operating office. In case of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff. "Every order of the Commission shall be forth- with served upon the designated agent of the carrier in the city of Washington or in such other manner as mav be provided by law. "The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. "It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in ef- fect. ' i INTERSTATE COMMERCE LAW 411 "Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of section fifteen of this Act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense. "The forfeiture provided for in this Act shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States, brought in the district where the car- rier has its principal operating office, or in any dis- trict through which the road of the carrier runs. "It shall be the duty of the various district attor- neys, under the direction of the Attorney General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prose- cution shall be paid out of the appropriation for the expenses of the courts of the United States. "The Commission may employ such attorneys as it finds necessary for proper legal aid and service of the Commission or its members in the conduct of their work or for proper representation of the public interests in investigations made by it or cases or pro- ceedings pending before it, whether at the Commis- sion's own instance or upon complaint, or to appear for and represent the Commission in any case pend- ing in the Commerce Court; and the expenses of such employment shall be paid out of the appropria- tion for the Commission.' "If any carrier fails or neglects to obey any order of the Commission other than for the payment of money, while the same is in effect, the Interstate Commerce Commission or any party injured thereby, or the United States, by its Attorney General, may apply to the Commerce Court for the enforcement of such order. If, after hearing, that Court determines that the order was regularly made and duly served, Punishment by forfgltura for refusal to obey order of Com- mission under eeotlon IS. Forfeiture pay- a b I e into Treasury and recoverable In civil suit. Duty of dittrlet attorneys to prosecute. Costs and ex- penses to be (>a Id out of appropriation for court ex- penses. Commission may employ attor- neys. Commeree Court to enforce or- ders other than for payment it money. 412 AMERICAN COMMERCE ASSOCIATION 8eh*dul»s, eon- tracts, and an- nual rsportt filed with Com- miMlon a r a publlo rteordt, recelvablo as prima f a e i e •videnee. Cer- tiflad eoplM or •xtraet* thora- from alto prima facie •videne*. and that the carrier is in disobedience of the same, the Court shall enforce obedience to such order by a writ of injunction or other proper process, manda- tory or otherwise, to restrain such carrier, its officers, agents, or representatives, from further disobedience of such order, or to enjoin upon it or them obedience to the same. "The copies of schedules and classifications and tariffs of rates, fares, and charges, and of all con- tracts, agreements, and arrangements between com- mon carriers filed with the Commission as herein provided, and the statistics, tables, and figures con- tained in the annual or other reports of carriers made • to the Commission as required under the provisions of this Act shall be preserved as public records in the custody of the secretary of the Commission, and shall be received as prima facie evidence of what they pur- port to be for the purpose of investigations by the Commission and in all judicial proceedings ; and copies of and extracts from any of said schedules, classifications, tariffs, contracts, agreements, arrange- ments, or reports, made public records as aforesaid, certified by the secretary, under the Commission's seal, shall be received in evidence with like effect as the originals." § 2. Amendments to the Section. The original 16th section of the Act was confined to providing for the enforcement by the courts of the Com- mission's orders, and declaring the findings of fact by the Commission, which at that time were compulsory in all cases, prima facie evidence therein. The saving of the right of trial by jury under the federal constitution was incorporated into the section by the amendment of March 2, 1889. Const, of U. S., 7th Amndt. (1) Amendment of June 29, 1906: By the amendment of 1906 a practically new section was substituted pro- INTERSTATE COMMERCE LAW 413 viding for the filing of a limitation of action in reparation complaints, the enforcement of reparation awards, em- ployment of attorneys whose services were necessary, serving the Commission's orders by mail, penalizing car- riers for disobedience to the orders of the Commission, the venue of suits against the Commission and the expe- dition thereof, and the procedure therein, and the intro- duction in evidence of schedules, tariffs, and reports filed with the Commission. (2) Amendment of June 18, 1910: Radical changes in the procedure after order of the Commission were embraced in the amendments of 1910. The provisions in this section relating to suits against the Commission were removed, because of the creation and jurisdiction of the Commerce Court. Each carrier was required to constitute an agent at Washington upon whom service of the Commission's orders might be had, instead of serv- ice by mail, and the employment of special attorneys by the Commission directly, without the consent of the At- torney General of the United States. § 3. Subjective Analysis of Section 16. The scope of section 16 will be better comprehended by the following analysis of subjects with which it deals : — (a) Award of damages by Commission. (b) Petition to United States court in case carrier does not comply with order for payment of money. (c) Findings of fact of Commission shall be prima facie evidence in reparation cases. (d) Petitioner not liable for costs in circuit court. (e) Allowance of petitioner's attorney's fee. (f) Two-year limitation upon action before Com- mission. 414 AMERICAN COMMERCE ASSOCIATION (g) One-year limitation upon subsequent judicial proceedings. (h) Joint plaintiffs may sue joint defendants in courts on awards of damages. (i) Services of Process. (j) Service of Order of Commission. (k) Commission may suspend or modify order. (1) Carrier, their agents and employees must com- ply with such orders. (m) Punishment for forfeiture for refusal to obey or- der of Commission under section 15. (n) Forfeiture payable into Treasury of U. S. and recoverable in civil suit. (o) Duty of District attorneys to prosecute. (p) Costs and expenses to be paid out of appropria- tion for court expenses. (q) Commission may employ counsel. (r) Petition to Commerce Court in cases of disobe- dience to order of Commission other than for payment of money. (s) Commerce Court must enforce disobeyed order if regularly made and duly served. (t) Rate schedules, contracts, or agreements, and carriers' annual reports filed with Commission and in custody of secretary are public records, receivable in courts and by the Commission as prima facie evidence. The essential purpose of section 16 is the giving effect to and enforcement of the orders of the Interstate Com- mission, and the review of such orders by courts of com- petent jurisdiction. § 4. Power of Commission to Award Reparation. The Interstate Commerce Commission occupies a unique position in the co-ordinate relationship of the leg- islative, judicial and executive functions of the national government. While essentially an administrative body, INTERSTATE COMMERCE LAW 415 it exercises both quasi-judicial and legislative powers. A claim for reparation is a claim for damages. The re- quirements of the payment of damages to an injured person is a purely judicial function, and the reason that the term quasi-judicial is used in describing the function of the Commission in awarding reparation or damages where unreasonable rates have been exacted from the shipper is because the Commission can exercise but a part of the judicial power to award damages — that is, it may first determine whether the rate charged and col- lected was unreasonable, and if unreasonable, it may then mathematically determine the difference between the un- reasonable rate charged and what the reasonable rate would have been, and then award such difference as the damages of the injured party by way of reparation. There its judicial function ceases, for it can neither render a judgment for such damages nor give to its award any more than the perfunctory effect of a recommendation. Its award does not become a lien upon the carrier's prop- erty as a court judgment would. The award of the Com- mission can only be enforced by a judicial proceeding with full opportunity for a jury trial; else the Act empowering the Commission to ascertain the amount of the damages would be unconstitutional. The Commission has wisely proceeded in reparation cases upon the principle that awards should not be made in informal proceedings which would not be made upon the same state of facts in a formally contested case. Thus the Commission will not make awards upon stipulations of the parties that a particular rate was unreasonable. Dayton Chamber of Com. vs. C. M. & St. P. Ry. Co., 16 I. C. C. Rep. 82. The Supreme Court of the United States in the Abilene 416 AMERICAN COMMEkCE ASSOCIATION Cotton Oil case, supra, said, in speaking of the reparation authority of the Commission: "Although an established schedule of rates may have been altered by a carrier voluntarily or as a result of an enforcement of the order of the Commission to desist from violating the lav^ rendered in accordance with the provisions of the statute, it may not be doubted that the power of the Commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs unlaw- fully suffered from the application of the unreasonable schedule during the period when such schedule was in force." The right to reparation is not confined to shipments made by parties to any given proceeding, but extends to all shipments moving under the same circumstances and conditions and charged for on the basis found to be unlawful by whomsover made. Kindelon, etc. vs. S. P. Co., 17 I. C. C. Rep. 251, 253. Citing Nicola, etc., Co. vs. L. & N. R. R. Co., 14 I. C. C. Rep. 199, 205. In still another class of cases, the Commission said: "Where a transportation service has been rendered for which no tariff authority whatever exists and where the shipper has paid the sum claimed by the carrier for that service, the Commission has jurisdic- tion to inquire what was a reasonable charge for the service and to order the repayment of whatever the carrier has collected over and above such reasonable charge." Memphis Frt. Bu. vs. K. C. S. Ry. Co., 17 I. C. C. Rep. 90. There is nothing in the Act to Regulate Commerce from which a presumption of damages can be inferred and it has never been so held. INTERSTATE COMMERCE LAW 4it The wording of the Act is as follows: "Sec. 8. That in case any common carrier subject to the provisions of this Act shall do, cause to be done, or permit to be done any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing in this Act required to be done, such common carrier shall be liable to the per- son or persons injured thereby for the full amount of damages sustained in consequence of any such viola- tion of the provisions of this Act." As said in Parsons vs. C. & N. W: Ry. Co., 167 U. S., 447, 460, and quoted in Pa. R. R. Co. vs. International Coal Co., 230 U. S. 200, in construing this section : Before any party can recover under the Act he must show not merely the wrong of the carrier, but that that wrong has in fact operated to his injury." And in Pa. R. R. Co. vs. International Coal Co., supra, it ils said: "Congress had not then and has not since given any indication of an intent that persons not injured might, nevertheless, recover what, though called dam- ages, would really be a penalty, in addition to the penalty payable to the government." "Proof of the damages resulting from the wrongful act of the carrier must be by such evidentiary facts as would be required to sustain such a recovery before a court of law." Anadarko Cotton Oil Co. vs. A. T. & S. F. Ry. Co., 20 1. C. C. 43, 51. Mere proof of specific shipments made and the freight paid and the amount for which reparation is sought does not make out a prima facie case. Something more is nec- essary. The complainant must show how the discrimina- tion found to exist affected him to his damage. In other 18 — 28 418 AMERICAN COMMERCE ASSOCIATION words, he must establish the fact of his damage as well as the amount of damages he claims. In Pa. R. R. Co. vs. International Coal Co., supra, it is held that a mere finding of unjust discrimination, without proof of actual loss suffered, is not grounds for an award of damages. See also Mitchell Coal Co. vs. P. R. R. Co., 230 U. S. 247, 57 L. Ed. 1472. Morrisdale Coal Co. vs. P. R. R. Co., 230 U. S. 304, 57 L. Ed. 1494. P. R. R. Co. vs. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446. Darnell vs. I. C. C. R. R. Co., 225 U. S. 243, 56 L. Ed. 1072. T. & P. Ry. Co. vs. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553. Sou. Ry. Co. vs. Tift, 206 U. S. 428, 51 L. Ed. 1124. Compare : U. S. vs. Pac. & Arctic R. & N. Co., 228 U. S. 87, 57 L. Ed. 742. Texas, etc., Ry. Co. vs. Cisco, 204 U. S. 449, 51 L. Ed. 562. § 5. Award of Reparation May Be Made by Commission Before Future Rate is Prescribed. Awarding reparation for the past and fixing rates for the future involves determination by the Commission of matters essentially different. Reparation is in its nature private and the fixing of rates for the future public. In awarding reparation the Commission acts in its quasi- judicial capacity to measure injuries sustained by private shippers. In fixing rates for the future it moves in its quasi-legislative capacity to prevent future injury to the public. In proving the unreasonableness of a past rate the tes- timony may also furnish information on which the Com- mission may fix a reasonable rate for the future, and both INTERSTATE COMMERCE LAW 41d subjects can be and frequently are disposed of by the same order. In the original Act to Regulate Commerce, however, these two matters could not possibly be com- bined, for while the Commission could order the carrier to desist from charging an unreasonable rate or imposing an unreasonable practice and award damages arising therefrom, it was without power to fix rates for the future. The situation was analogous because if the ship- per obtained his order of reparation on account of an unrea- sonable charge which the Commission ordered the carrier to discontinue, a slightly different but still unreasonable rate might be enforced by the carrier for the future which the shipper would have to pay and again institute pro- ceedings for reparation. In Baer Bros. Merc. Co. vs. D. & R. G. R. R, Co., 233 U. S. 479, 58 L. Ed. 1055, the Supreme Court had these subject matters before it and in the course of its opinion, referring to the separate functions involved in awarding reparation and fixing rates for the future, said: "This situation was dealt with by the Hepburn Act, whicli, in addition to the existing power to make reparation, conferred upon the Commission the new power to make rates for the future. But the two matters were treated as different subjects and were dealt with in separate sections. Section 4 conferred the power of making rates. Section 5 gave the Commission power to make reparation orders. 34 Stat. 589, Sec. 4; 590, Sec. 5. Not only were the two functions separately treated, but an analysis of the Act shows that there is no such necessary connection between them as to make the quasi-judicial order for reparation depend for its validity upon being joined with a quasi-legislative order fixing rates. Persons entitled to one may have no interest in the bther. Persons interested in both may be entitled to repara- 420 AMERICAN COMMERCE ASSOCIATION tion and not to a new rate ; or to a new rate and not to reparation. For example, — section 13 permits 'any- mercantile, agricultural or manufacturing society or any body politic or municipal organization to make complaints against the carrier.' On the application of such bodies, old rates might be declared unjust and new rates established, but, of course, no reparation would be given, for the reason that such complainants were not shippers and, therefore, not entitled to an award of pecuniary damages, cf. Louisville, etc., R. R. vs. I. C. C, 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185. Then, too, there are cases in which a rate, reason- able when made, becomes unreasonable as the result of a gradual change in conditions so that no reparation is ordered even though a new rate be established for the future. Anadarko Cotton Oil Co. vs. Atchison etc., Ry., 20 I. C. C. 43. Conversely, there may be cases where what was an unreasonable rate in the past is found to be reasonable at the date of the hear- ing. In such a case reparation would be awarded for past unreasonable charges collected but no new rate would be established for the future. "It may, however, be said that even in such a case, the order while condemning the rate for the past, should contain a provision validating it for the fu- ture. But while this consideration might show that it was erroneous not to name the new rate, it would not follow that the order awarding reparation was void. The Hepburn Act treats the two subjects as related, but independent. The grounds of complaint may be joint or separate, and the very fact that they may sometimes be separate shows that the presence of both is not jurisdictional, and that the absence of a provision for one need not operate to invalidate an order as to the other. This conclusion is strength- ened by considering the hardships that would result from nullifying a reparation order for error in omit- ting a provision for the future rate. It would pun- ish the shipper for the failure of the Commission. It would deprive him of his award of damages for his INTERSTATE COMMERCE LAW 421 private injury, because of the Commission's omission to make a rate for the benefit of the public. The shipper might or might not intend to remain in busi- ness. He might or might not be interested in future rates. He might have been able to prove unreason- ableness as to the past without bein^ able to furnish evidence as to what would be reasonable for the fu- ture. Or, the Commission might be in position to say with certainty that the rates had been unreason- able and award reparation accordingly, but it might require a protracted and lengthy hearing to establish what would be just for the future. To make the shipper wait on such a finding and deprive him of his present right to reparation, until the determina- tion of an independent question, would work a hard- ship not contemplated by the Act and not required by any of its provisions. "The present case illustrates some of these fea- tures. The plaintiff's petition asks for reparation and that the Commission would establish just rates. On the hearing it appeared that there was no through route or joint rate and that the established local charge of one of the carriers was just while that of the other had not been established or included in a filed tariff and was also unjust. The evidence was sufficient to sustain a finding of damages against such carrier, but it did not show how the through rate should be divided between the two companies, one of which hauled 923 miles and the other 160 miles. The carriers did not ask for an extension of the time within which the reparation should be paid. The fact that they were given an opportunity to agree on a through rate and how it should be divided, ought to deprive plaintiff of its rights to damages for the past, under a reparation order which could not, by any possibility be changed by any subsequent find- ing as to the rates for the future. The report and order gave the plaintiff no preference over other ship- pers, since they showed that 15 cents of the rate charged by the Denver and Rio Grande was unrea- 422 AMERICAN COMMERCE ASSOCIATION sonable. If such a finding of unreasonableness was not sufficiently general to inure to the benefit of all other shippers, they could, on application, have se- cured such a modification as to enable them to main- tain a suit for the recovery of damages for unjust charges and collections in the past. So far as the future operation of the order was concerned, all shippers were left in the same position, where, from the necessity of the case, the old rate had to be paid until the time had elapsed within which a new and just through rate could be put into effect. But how- ever desirable it may have been to deal with the entire matter at one time, the joinder of the two subjects was not jurisdictional. There was no such necessary connection between the two as to make the order of reparation void because of the absence of a concurrent provision establishing a rate for the future." See also: Fobinson vs. B. & O. R. R. C. 222 U. S. 506, 56 L. Ed. 288. Y & P. Ry. Co. vs. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553. § 6. Power of Commission to Award General Damages. See this volume, Chaps. VII, VIII and IX, "Amplifica- tion of section 8," "Amplification of section 9" and "Dam- ages," ante. § 7. Reference Section. The provisions of section 16, largely apply to the prac- tice and procedure before the Interstate Commerce Com- mission and will be found treated under respective head- ings in Part IV, "Practice and Procedure Before the Inter- state Commerce Commission," post. §8. Statutory Provisions— 16a. c.m«i«ion ^mv (Added June 29, 1906.) "That after a decision, or- pnt r.h.w. ^^^^ ^^ requirement has been made by the Commis^ • V ■ &« ■ INTERSTATE COMMERCE LAW 423 sion in any proceeding any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to ap- pear. Applications for hearing shall be governed by such general rules as the Commission may establish. No such application shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. In case a rehearing is granted the proceedings there- upon shall conform as nearly as may be to the proceedings in an original hearing, except as the Commission may otherwise direct; and if, in its judg- ment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, or- der, or requirement is in any respect unjust or un- warranted, the Commission may reverse, change, or modify the same accordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order." Applleatlen ttr rehearlni thall not optrats M stay of pr»- ceedlnoi. un- less so ordsrti by CommlMlon. Comtnlssloa aay, on rthMrlPt, reverse, ehaNM, •r modify or- der. § 9. Rehearings. See "Interstate Commerce Law," Part IV, "Practice and Procedure Before the Interstate Commerce Commission," post. V*i --*».-*;:-'!« J i*a.-rr&\' "*■( CHAPTER XIX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 17, 18, 19 and 19a. § 1. Statutory Provisions — Section 17. § 2. Amplification of Section. § 3. Statutory Provisions — Section 18. § 4. Amplification of Section. § 5. Statutory Provisions — Section 19. § 6. Amplification of Section. § 7. Statutory Provisions — Section 19a. § 8. Amplification of Section. 425 _ ■ m A-A% ' "^'h CHAPTER XIX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 17, 18, 19 and 19a. § 1. Statutory Provisions — Section 17. (As amended March 2, 1889.) "That the com- mission may conduct its proceedings in such manner as will best conduce to the proper dispatch of busi- ness and to the ends of justice. A majority of the Commission shall constitute a quorum for the trans- action of business, but no Commissioner shall partic- ipate in any hearing or proceeding in which he has any pecuniary interest. Said Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regula- tion of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said Commission and be heard, in person or by at- torney. Every vote and official act of the Commis- sion shall be entered of record, and its proceedings shall be public upon the request of either party in- tersted. Said Commission shall have an official seal, which shall be judicially noticed. Either of the mem- bers of the Commission may administer oaths and affirmations and sign subpoenas." *^' § 2. Amplification of Section. See "Interstate Commerce Law," Part IV, "The Inter- '^> For amendment of^ August 6^^917, providing for the creating of divisions of the Commission, sec Appendix, I. C. Law, Part IV. — •'Amendatory Acts." ^ Cemmlulon mty 4etermln« Itt own proo«4Hr«, PartlM may «p. pear In p«rt»ii or by attofnay. OIRolal leal. 428 AMERICAN COMMERCE ASSOCIATION WItneuM' fM«. Principal oSce at Waihlni- ton. Sastlons of th« Commjulon. State Commerce Commission" and "Practice and Proced- ure Before the Interstate Commerce Commission," post. § 3. Statutory Provisions — Section 18. (As amended March 2, 1889.) "That each Com- missioner shall receive an annual salary of seven thousand five hundred dollars, payable in the same manner as the judges of the courts of the United States. The Commission shall appoint a secretary, who shall receive an annual salary of three thousand five hundred dollars, payable in like manner. The Commission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its du- ties. Until otherwise provided by law, the Commis- sion may hire suitable offices for its use, and shall have authority to procure all necessary office sup- plies. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. "All of the expenses of the Commission, including all necessary expenses for transportation incurred by the Commissioners, or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Wash- ington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chair- man of the Commission." '*' § 4. Amplification of Section. See "Interstate Commerce Law," Part IV, "The Inter- state Commerce Commission," post. § 5. Statutory Provisions — Section 19. "That the principal official of the Commission shall be in the city of Washington, where its general ses- sions shall be held; but whenever the convenience of the public or the parties may be promoted, or delay quired of ear- riert. Notice of com- pletion of ten- tative valua- tion. memoranda whenever and wherever requested by any such duly authorized agent, and every common car- rier is hereby directed and required to cooperate with and aid the Commission in the work of the valuation of its property in such further particulars and to such extent as the Commission may require and di- rect, and all rules and regulations made by the Com- mission for the purpose of administering the provi- sions of this section and section twenty of this Act shall have the full force and effect of law. Unless otherwise ordered by the Commission, with the rea- sons therefor, the records and data of the Commission shall be open to the inspection and examination of the public. "Upon the completion of the valuation herein pro- vided for the Commission shall thereafter in like man- ner keep itself informed of all extensions and im- provements or other changes in the condition and value of the property of all common carriers, and shall ascertain the value thereof, and shall from time to time, revise and correct its valuations, showing such revision and correction classified and as a whole and separately in each of the several States and Territories and the District of Columbia, which valuations, both original and corrected, shall be ten- tative valuations and shall be reported to Congress at the beginning of each regular session. "To enable the Commission to make such changes and corrections in its valuations of each class of prop- erty, every common carrier subject to the provisions of this Act shall make such reports and furnish such information as the Commission may require. "Whenever the Commission shall have completed the tentative valuation of the property of any com- mon carrier, as herein directed, and before such val- uation shall become final, the Commission shall give notice by registered letter to the said carrier, the Attorney General of the United States, the governor of any State in which the property so valued is lo- cated, and to such additional parties as the Commis- INTERSTATE COMMERCE LAW 433 sion may prescribe, stating the valuation placed upon the several classes of property of said carrier, and shall allow thirty days in which to file a protest of the same with the Commission. If no protest is filed within thirty days, said valuation shall become final as of the date thereof. "If notice of protest is filed the Coi.imission shall fix a time for hearing the same, and shall proceed Is promptly as may be to hear and consider any matter relative and material thereto which may be presented in support of any such protest so filed as aforesaid. If after hearing any protest of such tentative valua- tion under the provisions of this Act the Commission shall be of the opinion that its valuation should not become final, it shall make such changes as may be necessary, and shall issue an order making such cor- rected tentative valuation final as of the date thereof. All final valuations by the Commission and the clas- sification thereof shall be published and shall be prima facie evidence of the value of the property in all pro- ceedings under the Act to regulate commerce as of the date of the fixing thereof, and in all judicial proceedings for the enforcement of the Act approved February fourth, eighteen hundred and eighty-seven, commonly known as 'the Act to regulate com- merce,' and the various Acts amendatory thereof, and in all judicial proceedings brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission. "If upon the trial of any action involving a final value fixed by the Commission, evidence shall be introduced regarding such value which is found by the court to be different from that offered upon the hearing before the Commission, or additional there- to and substantially affecting said value, the court, before proceeding to render judgment shall transmit a copy of such evidence to the Commission, and shall stay further proceedings in said action for such time as the court shall determine from the date of such transmission. Upon the receipt of such evidence the Finality If no protect flUd. Hearing* of pr«- teiti. ChaniM. EfTeet of final valuation and elaulflcatlon. Effect of * V I dene*. Trantmitiion t* Commlulon. 18—29. 434 AMERICAN COMMERCE ASSOCIATION Action of Com- mission, Modifloatlon ordtr. of Judgment o n oriDlnal order. Applicable to ro- ccivers. Penalty. Jurisdiction of district oourtt to compel com- pliance. Supplemental Aet of August I, 1914. Commission shall consider the same and may fix a final value different from the one fixed in the first instance, and may alter, modify, amend or rescind any order which it has made involving said final value, and shall report its action thereon to said court within the time fixed by the court. If the Com- mission shall alter, modify, or amend its order, such altered, modified, or amended order shall take the place of the original order complained of and judg- ment shall be rendered thereon as though made by the Commission in the first instance. If the original order shall not be rescinded or changed by the Com- mission, judgment shall be rendered upon such orig- inal order. "The provisions of this section shall apply to re- ceivers of carriers and operating trustees. In case of failure or refusal on the part of any carrier, receiver, or trustee to comply with all the requirements of this section and in the manner prescribed by the Commission such carrier, receiver, or trustee shall forfeit to the United States the sum of five hundred dollars for each such offense and for each and every day of the continuance of such offense, such forfei- tures to be recoverable in the same manner as other forfeitures provided for in section sixteen of the Act to regulate commerce. "That the district courts of the United States shall have jurisdiction, upon the application of the Attorney General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions of this section by any common carrier, to issue a writ or writs of man- damus commanding such common carrier to comply with the provisions of this section. "It shall be the duty of every common carrier by railroad whose property is being valued under the' Act of March first, nineteen hundred and thirteen, to transport the engineers, field parties, and other em- ployees of the United States who are actually en- gaged in making surveys and other examination of INTERSTATE COMMERCE LAW 435 the physical property of said carrier necessary to ex- ecute said Act from point to point on said railroad as may be reasonably required by them in the actual discharge of their duties; and, also, to move from point to point and store at such points as may be reasonably required the cars of the United States which are being used to house and maintain said em- ployees; and, also, to carry the supplies necessary to maintain said employees and the other property of the United States actually used on said railroad in said work of valuation. The service above required shall be regarded as a special service and shall be rendered under such forms and regulations and for such reasonable compensation as may be prescrrbed by the Interstate Commerce Commission and as will insure an accurate record and account of the service rendered by the railroad, and such evidence of trans- portation, bills of lading, and so forth, shall be fur- nished to the Commission as may from time to time be required by the Commission." § 8. Amplification of Section. See "Interstate Commerce Law," Part IV, "The Inter-^ state Commerce Commission," post. See also "Interstate Commerce Law," Part I, Chap. II, Sect. 8, Sub. (11), "Amendment of March 1, 1913." CHAPTER XX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 20. § 1. Statutory Provisions. § 2. Amendments to the Section. § 3. Subjective Analysis of Section. §4, Reports by Carriers Subject to the Act. §5. Accounting Systems Prescribed by Commission. § 6. Limitation of Carriers* Liabality. 437 CHAPTER XX. ACT TO REGULATE COMMERCE AS AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTION 20. § 1. Statutory Provisions. (As amended June 29, 1906, February 25, 1909, June 18, 1910, March 4, 1915, and August 9, 1916.)! "That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act, and from the owners of all rail- roads engaged in interstate commerce as defined in this Act, to prescribe the manner in which such re- ports shall be made, and to require from such carrier specific answers to all questions upon which the Com- mission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same ; the dividends paid, the surplus fund, if any, and the number of stockholders ; the funded and floating debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipments; the nurnber of employees and the salaries paid each class; the amounts expended for improve- ments each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balances of profit and loss; and a complete exhibit of the financial oper- ations of the carrier each year, including an annual balance sheet. Such reports shall also contain such in- formation in relation to rates or regulations concern- ing fares or freights, or agreements, arrangements, or 439 Commission may require annual reports and prescribe meth- od of making same. What reports of oarrlsrs shall contain. Commission may prescribe uoi- form system cf accounts. 440 AMERICAN COMMERCE ASSOCIATION Annual reports to be filed with Commis- sion by Sep- tember 30 of eaeh year. Commlselon may grant addition- al time. Penalty. Monthly or peri- odical report*. contracts affecting the same as the Commission may require; and the Commission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this Act, prescribe a period of time within which all common carriers subject to the provisions of this Act shall have, as near as may be, a uniform system of accounts, and the manner in which ac- counts shall be kept. "Said detailed reports shall contain all the required statistics for the period of twelve months ending on the thirtieth day of June in each year, or on the thirty-first day of December in each year if the commission by order substitute that period for the year ending June thirtieth, and shall be made out under "oath and filed with the Commission at its office in Washington within three months after the close of the year for which the report is made, unless additional time be granted in any case by the Com- mission; and if any carrier, person, or corporation subject to the provisions of this Act shall fail to make and file said annual reports within the time above specified, or within the time extended by the Commission, for making and filing the same, or shall fail to make specific answer to any question author- ized by the provisions of this section within thirty days from the time it is lawfully required so to do, such party shall forfeit to the United States the sum of one hundred dollars for each and every day it shall continue to be in default with respect thereto. The Commission shall also have authority by general or special orders to require said carriers, or any of them, to file monthly reports of earnings and expenses, and to file periodical or special, or both periodical and special, reports concerning any matters about which the Commission is authorized or required by this or any other law to require or to keep itself informed or which it is required to enforce; and such period- ical or special reports shall be under oath whenever the Commission so requires; and if any such carrier shall fail to make and file any such periodical or INTERSTATE COMMERCE LAW 441 special report within the time fixed by the Commis- sion, it shall be subject to the forfeitures last above provided. "Said forfeitures shall be recovered in the man- ner provided for the recovery of forfeitures under the provisions of this Act. "The oath required by this section may be taken before any person authorized to administer an oath by the laws of the State in which the same is taken. "The Commission may, in its discretion, prescribe the forms of any and all accounts, records, and mem- oranda to be kept by carriers subject to the pro- visions of this Act, including the accounts, records, and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The Commission shall at all times have access to all ac- counts, records, and memoranda kept by carriers sub- ject to this Act, and it shall be unlawful for such carriers to keep any other accounts, records, or mem- oranda than those prescribed or approved by the Commission, and it may employ special agents or examiners, who shall have authority under the order of the Commission to inspect and examine any and all accounts, records, and memoranda kept by such carriers. This provision shall apply to receivers of carriers and operating trustees. "In case of failure or refusal on the part of any such carrier, receiver, or trustee to keep such ac- counts, records, and memoranda on the books and in the manner prescribed by the Commission, or to sub- mit such accounts, records, and memoranda as are kept to the inspection of the Commission or any of its authorized agents or examiners, such carrier, receiv- er, or trustee shall forfeit to the United States the sum of five hundred dollars for each such ofifense and for each and every day of the continuance of such offense, such forfeitures to be recoverable in the same manner as other forfeitures provided for in this Act. Reeovery of far- feltur*«. Oath to annual r«port<, how taken. Commission may prescribe forms of accountu, recordt, and m e m o r anda, and have acceu thereto. Carrier to keep no other ac- counts than those pre- scribed by Commission. Commission may employ special examiners to Inspect ac- counts and records. Punishment of carrier by for- feiture for fail- ure to keep ac- eounts or records as pre- scribed by Commission or to allow In- spection there- of. U2 AMERICAN COMMERCE ASSOCIATION Punishment of person for falsa entry In ac- counts or rec- ords, or muti- lation of ac- counts or rec- ords, or for keeping other accounts than those p r • - scribed. Fine or imprison- ment or both. Amendment February 1909. of 25, Commission may permit destruc- tion of records. Punishment of ■ special exam- iner who di- vulges Informa- tion without authority. Fine or imprison- ment or both. United States courts may is- sue mandamu* to compel com- pliance with provisions of Act. "Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by a carrier, or who shall willfully destroy, multilate, alter, or by any oth- er means or device falsify the record of any such account, record, or memoranda, or who shall will- fully neglect or fail to make full, true, and correct entries in such accounts, records, or memoranda of all facts and transactions appertaining to the carrier's business, or shall keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, shall be deemed guilty of a mis- demeanor, and shall be subject, upon conviction in any court of the United States of competent jurisdic- tion, to a fine of not less than one thousand dollars nor more than five thousand dollars or imprisonment for a term not less than .one year nor more than three years, or both such fine and imprisonment: Provided, That the Commission may in its discretion issue orders specifying such operating, accounting, or financial papers, records, books, blanks, tickets, stubs, or documents of carriers which may, after a reasona- ble time, be destroyed, and prescribing the length of time such books, papers, or documents shall be pre- served. "Any examiner who divulges any fact or informa- tion which may come to his knowledge during the course of such examination, except in so far as he may be directed by the Commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent juris- diction, to a fine of not more than five thousand dol- lars or imprisonment for a term not exceeding two years, or both. "That the circuit and district courts of the United States shall have jurisdiction, upon the application of the Attorney General of the United States at the re- quest of the Commission, alleging a failure to comply with or violation of any of the provisions of said Act to regulate commerce or of any Act supplementary .wv^ — -:-*-" 1 ■^ii Ti ^ 7~ *. " m ""-^ M.V.V.. r • •« INTERSTATE COMMERCE LAW 443 thereto or amendatory thereof by any common car- rier, to issue a writ or writs of mandamus command- ing such common carrier to comply with the provi- sions of said Acts, or any of them. "And to carry out and give effect to the provisions of said Acts, or any of them, the Commission is here- by authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence. "That any common carrier, railroad, or transpor- tation company subject to the provisions of this Act receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Colum- bia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common car- rier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when trans- ported on a through bill of lading, and no contract, re- ceipt, rule, regulation, or other limitation of any char- acter w^hatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier, rail- road, or transportation company so receiving property for transportation from a point in one State, Territory, or the District of Columbia to a point in another State or Territory, or from a point in a State or Ter- ritory to a point in the District of Columbia, or from any point in the United States to a point in an adja- cent foreign country, or for transportation wholly within a Territory shall be liable to the lawful holder of said receipt or bill of lading or to any party en- titled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property Cotnmlulon may employ special examiners to receive e v i - dence. Cummin* amend- m e n t as amended. Receiving carrier to Issue bill of lading. Liable to holder tor any lots. Not exempted by any contract. Liability for full actual lost. 444 AMERICAN COMMERCE ASSOCIATION LImltttlont voltf. Certain provl- tlont to apply only to ordi- nary live ttoek. RatM dependont upon valuo. caused by it or by any such common carrier, rail- road, or transportation company to which such prop- erty may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, notwithstanding any lim- itation of liability or limitation of the amount of re- recovery or representation or agreement as to value in any such receipt or bill of lading, or in any con- tract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such lim- itation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void: Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limita- tion of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not ap- ply, first, to baggage carrier on passenger trains or boats, or boats or trains carrying passengers; second, to property, except ordinary live stock, received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or re- quired by order of the Interstate Commerce Commis- sion to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section ten of this Act to regulate commerce, as amended; and any tariff schedule which may be filed with the Commission pursuant to such order shall contain specific refer- ence thereto and may establish rates varying with the value so declared or agreed upon; and the Com- mission is hereby empowered to make such order in cases where rates dependent upon and varying nl INTERSTATE COMMERCE LAW 445 with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation. The term 'ordinary live stock' shall include all cattle, swine, o^iimtuii. sheep, goats, horses, and mules, except such as are chiefly valuable for breeding, racing, show purposes, or other special uses: Provided further, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law : Provided further, That it shall be un- lawful for any such common carrier to provide by "'I'tlSg" uw. *"" rule, contract, regulation, or otherwise a shorter Time tor fiung ,f ..°. ... , . , claim*. period tor giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however. That if the loss, damage, """i^imI? *"*' or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. That the common carrier, railroad, or transporta- '"J^^'^'haJJ'^/J^ tion company issuing such receipt or bill of lading Mrrie?'respo'*n'! shall be entitled to recover from the common carrier, 5r'''damige.''** railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof. No suit brought in any State court of competent *j'Bnu«'ry''M! jurisdiction against a railroad company, or other cor- poration, or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, 1914. 446 AMERICAN COMMERCE ASSOCIATION as amended June twenty-ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, Feb- ruary twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000. § 2. Amendments to the Section. Section 20 was amended on June 29, 1906, Feb. 25, 1909, June 18, 1910, March 4, 1915, and August 9, 1916. By the amendment of 1906 the provision for carriers' annual reports was made more specific and forms of ac- counts, records, and memoranda of the carriers, and pro- hibition of any other forms of accounts, records or memo- randa than those prescribed by the Commission, were made subject to regulation by the Commission. This same amendment added to the section what was then known as the Carmack amendment providing for the liability of initial carriers. Employment of special agents and examiners, power of inspection and examina- tion of accounts, records and memoranda of carriers, with penalties to enforce the same, and for false entries, to-.j gether with the right of mandamus in the courts to com- pel compliance with the provisions of the Act, were also| added to the section by the amendment of 1906. The amendment of 1910 added the provisions for filing' of reports by carriers at the end of the calendar year, snaking more specific the requirement for filing monthly or special reports and providing for authorization of the destruction of books and papers of carriers after a rea- sonable time. The amendment of 1915 removed the effect of the Car- mack amendment as to liability, and in lieu thereof pro- m INTERSTATE COMMERCE LAW 447 hibited any limitation of liability by carriers, except as to goods concealed from view. The amendment of 1916 revised the proviso in the amendment of 1915 as to goods concealed from viev^^, made the exception more specific and placed the ability of the carrier to fix a reasonable limitation of liability according to gradations of value entirely in the control of the Interstate Commerce Commission. § 3. Subjective Analysis of Section. The scope of the subject-matters of section 20 w^ill be more readily comprehended from the following subjec- tive analysis: (a) Common carriers and owners of railroads sub- ject to the Act required to render full annual reports to the Commission. (b) Commission may prescribe manner in which re- ports are to be made, and require specific an- swers to all questions. (c) What the reports shall contain. (d) Commission may prescribe uniform system of accounts and manner of keeping accounts. (e) Annual Reports to be filed with Commission by September 30th, of each year. (f) Commission may grant additional time for filing annual reports. (g) Penalty for not filing annual reports. (h) Monthly or periodical reports may be required by Commission. (i) Oath, and how taken, to annual reports. (k) Commission may prescribe forms of accounts, records, and memoranda, and have access thereto. (1) Carrier prohibited from keeping any other than accounts prescribed by Commission. (m) Commission may employ special examiners to in- spect accounts and records. 448 AMERICAN COMMERCE ASSOCIATION (n) Penalty for carrier's failure to keep accounts prescribed by Commission or allow inspection of accounts and records. (o) Penalty for punishment of persons for false entry in accounts, or records, or mutilation of ac- counts or records, or for keeping other ac- counts or records than those prescribed by the Commission. (p) When destruction of papers permissible. (q) Punishment of special examiner who divulges facts or information without authority. (r) United States courts may issue mandamus to compel compliance with provisions of Act. (s) Commission may employ special agents or ex- aminers to administer oaths, examine witness- es and receive evidence. (t) Limitations of carriers' liability prohibited. § 4. Reports by Carriers Subject to the Act. Every carrier subject to the Act to Regulate Commerce is required by the provisions of section 20 to make annual report to the Commission, such annual report to contain the statistical information and data designated in the first paragraph of the section. And the right to issue man- damus to compel compliance with the provisions of the Act is conferred upon the circuit and district courts of the United States by the amendatory Act of 1906. I. C. C. vs. Seaboard Ry. Co., 82 Fed. Rep. 563. Compare: Knapp vs. L. S. & M. S. Ry. Co., 197 U. S. 536 49 L. Ed. 870, (decision rendered prior to 1906 amendment). If a carrier does not engage in anywise in interstate transportation, it is not required to make such annual report, but if it engages in interstate transportation by INTERSTATE COMMERCE LAW 449 agreements for through traffic it comes within the re- quirements of the section. U. S. ex rel vs. K. & S. R. R. Co., 81 Fed. Rep. 783. I. C. C. vs. Belaire C. & Z. R. Co., 17 Feci. Rep. 942. The Commission entered orders, pursuant to its author- ity under section 20, against the Goodrich Transit Com- pany, a water carrier operating on the Great Lakes, and other water carriers, requiring a report of their corporate organizations, financial conditions, etc., from which orders the carriers appealed to the courts. The Supreme Court upheld the authority of the Commission, saying in the course of its opinion: "The terms of the Act of Congress, as amended June 29, 1906, and in force at the time when these orders were made, are plain and simple, and, we think not difficult to comprehend. * * * The first section makes the Act apply alike to common carriers engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water under an arrangement for a con- tinuous carriage or shipment. It is conceded that the carriers filing the bills in these cases were com- mon carriers engaged in the transportation of pas- sengers and property partly by railroad and partly by water under a joint arrangement for a continuous carriage or shipment. Such common carriers are de- clared to be subject to the provisions of the Act in precisely the same terms as those which comprehend the other companies named in the Act. Carriers partly by railroad and partly by water under a com- mon arrangement for a continuous carriage or ship- ment are as specifically within the terms of the Act as any other carrier named therein. * * * "As to annual reports the power conferred in sec- tion 20 of the Act, extends to all common carriers subject to the provisions of the Act. The Commis- sion is vested with authority to prescribe the manner 18 — 30. 450 AMERICAN COMMERCE ASSOCIATION in which such reports shall be made and to require specific answers to all questions as to which the Com- mission may need information. The report required in these cases was declared to be needed to enable the Commission to procure full information of the scope and character of the business of carriers by water within the jurisdiction of the Commission and of the extent of their operations, such as would enable the Commission to determine the form for annual report which would best give the information re- quired by the Commission, and at the same time conform as nearly as may be to the accounting sys- tems of carriers by water. The form of report adopted by the Commission requires a showing as to tjie corporate organization of each carrier by water subject to the Act, the companies owned by it and the parties or companies controlling it; as to the financial condition of the carrier, the cost of its real property and equipment, its capital stock and other stock and securities owned by it, together with all special funds and current assets and liabilities, as well as its funded indebtedness, with collateral security covering same; and as to finances with respect to the operations of the carrier for the current year, giving the revenue of the company and its source, whether from transportation, and what kind, or from outside operations, and all expenses, detailed, with a statement as to the net income or deficit from the various sources, and the report contains a profit and loss account and a general balance sheet. The report further requires certain statistical information, as follows: — The routes of the carrier and their mileage; a general description of the equipment owned, leased or chartered by the carrier; the amount of traffic, both passenger and freight, and mileage and revenue statistics, together with a separation of freight into the quantity of the various products transported, showing also whether originating on the carrier's line or received from a connecting line; and a general de- scription of any separate business carried on by the INTERSTATE COMMERCE LAW 451 carrier. But such report is no broader than the an- nual report of such carriers as prescribed by the Act, for section 20 provides that : — 'Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of paj ment for the same ; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and float- ing debts and the interest paid thereon, the cost and value of the carriers property, franchises, and equipments ; the number of employees and the sal- aries paid each class; the accidents to passengers, employees, and other persons and the causes there- of; the amounts expended for improvements each year, how expended, and the character of such im- provements; the earnings and receipts from each branch of business and from all sources; the operat- ing and other expenses ; the balances of profit and loss; and a complete exhibit of the financial opera- tions of the carrier each year, including an annual balance sheet. Such reports shall also contain such information in relation to rates or regulations con- cerning fares or freights, or agreements, arrange- m.ents, or contracts affecting the same as the Com- mission may require.' * * * "We think this section contains ample authority for the Commission to require a system of account- ing as provided in its orders and a report in the form shown to have been required by the order of the Commission. It is true that the accounts required to be kept are general in their nature and embrace business other than such as is necessary to the dis- charge of the duties required in carrying passengers and freight in interstate commerce by joint arrange- ment between the railroad and the water carrier, but the Commission is charged under the law with the supervision of such rates as to their reasonableness and with the general duty of making reports to Con- gress which might require a knowledge of the busi- ness of the carrier beyond that which is strictly of 452 AMERICAN COMMERCE ASSOCIATION the character mentioned. If the Commission is to successfully perform its duties in respect to reason- able rates, undue discriminations and favoritism, it must be informed as to the business of the carriers by a system of accounting which will not permit the possible concealment of forbidden practices in accounts which it is not permitted to see and con- cerning which it can require no information. It is a mistake to suppose that the requiring of informa- tion concerning the business methods of such corpo- rations, as shown in its accounts, is a regulation of business not within the jurisdiction of the Commis- sion, as seems to be argued for the complainants. The object of requiring such accounts to be kept in a uniform way and to be open to the inspection of the Commission is not to enable it to regulate the affairs of the corporations not within its jurisdiction, but to be informed concerning the business methods of the corporations subject to the Act that it may properly regulate such matters as are really within its jurisdiction. Further, the requiring of informa- tion concerning a business is not regulation of that business. The necessity of keeping such accounts has been developed in the reports of the Commission and has been the subject of great consideration. It caused the employment of those skilled in such mat- ters, and has resulted in the adoption of a general form of accounting which will enable the Commission to examine into the affairs of the corporations, with a view to discharging its duties of regulation con- cerning them. * * * "The learned Commerce Court was of the opinion that the Commission might require accounts and re- ports, so far as the business of the water carriers with reference to joint rates by rail and water under a common arrangement was concerned and remanded the cases to the Commission for revision of their orders upon that basis. But it is argued for the Commission, and it seems to us with great force, that it would be impracticable to make such sepa- 1 I INTERSTATE COMMERCE LAW 453 ration in any system of accounting. It is a matter of general knowledge, of which we may take judicial notice, that traffic of all kinds is conducted upon the same ship and passage. A boat may leave a lake port carrying passengers and freight destined for ports within the state and for ports beyond the state, and as a part of the freight for carriage embrace some carried under the terms of joint arrangements made with connecting railroad carriers. How would it be practicable to separate the items of expense entailed in the carriage of these various classes? It is done upon one boat, with one set of officers and crew and must in the nature of things be under one general bill of expense — at least it would seem im- practicable to separate it into its items so as to show the expense of that which it is contended is alone within the terms of the Act, as construed by the carriers. "We think the Act should be given a practical construction, and one which enables the Commission to perform the duties required of it by Congress, and, conceding for this purpose that the regulating power of the Commission is limited so far as rates are concerned to joint rates of the character named in section 1, it is still essential that to enable the Commission to perform its required duties, even with respect to such rates, and to make reports to Con- gress of the business of carriers subject to the terms of the Act, it should be informed as to matters con- tained in the report. Congress, in section 20, has authorized the Commission to inquire as to the busi- iness which the carrier does and to require the keep- ing of uniform accounts, in order that the Commission may know just how the business is carried on with a view to regulating that which is confessedly within its power. * * * Furthermore, it is said that such construction of section 20 makes it an unlawful dele- gation of legislative power to the Commission. W^e cannot agree to this contention. The Congress may not delegate its purely legislative power to a Commis- 454 AMERICAN COMMERCE ASSOCIATION sion, bnt having laid down the general mles of action under which a Commission shall proceed, it may re- quire of that Commission the appUcation of snch roles to particnlar situations and llie investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress. This rule has been frequently stated and illustrated in recent cases in this court, and needs no amplifica- tion here. Buttfield ts. Stranahan, 192 U. S. 470, 48 L. Ed. 525, 24 Supt. Ct. 349; Union Bridge Co. vs. United States. 204 U. S. 364, 51 L. Ed. 523, 27 Supt Ct. 367; United States ts. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 Supt. Ct. 480. In sec- tion 20 Congress has authorized the Commission to require annual reports. The Act itself prescribes in detail what those reports shall contain. The Com- mission is permitted, in its discretion, to require a uniform system of accounting, and to prohibit other methods of accounting than those which the Com- mission may prescribe. In other words. Congress has laid down general rules for the guidance of the Commission, leaving to it merely the carrying out of details in the exercise of the power so conferred. This, we think, is not a delegation of legislative au- thority. * * * ''As to one of the corporations it is said that its business includes not only the carriage of passengers and freight, bnt that it owns and operates in con- nection therewith certain amusement parks. The re- port in controversy, as to business other than com- merce, requires a general description of such outside operations, and also a statement of the income from and the expenses of the same. As we have said, if the Commission is to be informed of the business of the corporation, so far as its bookkeeping and re- ports are concerned, it must have full knowledge and fun disclosures thereof, in order that it may ascer- tain whether forbidden practices and discriminations are concealed, even unintentionally, in certain ac- counts and ^rhcther charges of expense are made ¥A INTERSTATE COMMERCE LAW 455 against one part of a business which ought to be made against another. Bookkeeping, it is said, is not in- terstate commerce. True, it is not. But bookkeep- ing may and ought to show how a business which, in part at least, is interstate commer^?. is carried on, in order that the Commission. chE-r^ ' ----•■- --..^ .' -: making reasonable rates and p: ^ i unreasonable ones, may know the nature and extent of the business of the corporation, the cost of its interstate transactions and otherwise to inform it- self so as to enable it to ^--~=rly regulate the matters which are within its au::::r-n". We think the uni- form system of accounting prescribed and the report called for are such as it is within the power of the Commission to require under section 20 of the Act. Xor do the requirements exceed the constitutional authority of Congress to pass such a law. I. C C. T?. Goodrich Transit Co., 224 U. S. 194, 55 L. Ed 729. § 5. Accounting Systems Prescribed by Commission, The Commission is authorized to require uniform svs- tems of railway accounting and to prohibit other methods of accounting than those which are prescribed by the Commission. The purpose of the section is ver^- plain that the ac- counts of all carriers subject to the Act to Regulate Com- merce shall be standardized, their accounts arranged un- der like headings or titles, and charges or credits allocated under proper headings the same with one carrier as with another. The Commission is charged, under the law. with the supervision of rates as to their reasonableness and with the general duty of reporting thereon to Con- gress, which requires a knowledge of the business of the carrier in all its different essentials, and if the Commission is to successfully perform these duties in respect to rea- sonable rates, undue discriminations and favoritism and 456 AMERICAN COMMERCE ASSOCIATION the business transactions of the carriers, it must be in- formed as to the business of the carriers by such a sys- tem of accounting as will not permit the possible conceal- ment of forbidden practices in secret accounts which the Commission is not permitted to see and concerning which it can acquire no information. The object of requiring the carrier's accounts to be kept in a uniform way and to be open to the inspection of the Commission, is not to enable it to regulate the affairs of the corporation not within its jurisdiction but to inform the Commission con- cerning the carrier's business methods that it may prop- erly regulate such matters as come really within its juris- diction. This part of section 20 has been vigorously assailed by the carriers on several occasions under the charge that the section was unconstitutional because it amounted to unlawful delegation of legislative power to the Commis- sion. The Commission had ordered the Kansas City Southern Ry. Co. to carry part of the expenditure for cer- tain improvements in grades, tracks and terminals for which bonds had been issued, under the heading of "Addi- tions and Betterments" and a portion under the heading of "Operating Expenses." The Supreme Court held that Congress, while it may not delegate legislative power to a Commission, may lay down general rules of action under which a Commission may proceed and may require of that commission the application of such rules to particular sit- uations and investigations of facts with a view to making orders in particular matters within the rules laid down by the Congress. K. C. S. R. R. Co. vs. U. S., 231 U. S. 423, 58 L. Ed. 296. I. C. C. vs. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729. U. S. vs. Grimaud, 220 U. S. 506, 55 L. Ed. 563. Union Bridge Co. vs. U. S.. 204 U. S. 364, 51 L. Ed. 523. Butterfield vs. Stranahan, 192 U. S. 470, 48 L. Ed. 525. INTERSTATE COMMERCE LAW 467 In the Kansas City Southern case, supra, the Commis- sion had ordered the Kansas City Southern Ry. Co. to carry part of the expenditure of the proceeds of certain bonds issued for improvement and betterment purposes under the heading of "operating expenses" and the bal- ance under "additions and betterments." The Kansas City Southern attacked the Commission's order in the Commerce Court as being unreasonable, beyond the power or authority of either Congress or the Commission, and violative of the Fifth Article of the Amendments to the Constitution of the United States, as being a deprivation of property v^^ithout due process of law. The Supreme Court in again passing upon the same contention which it had denied in the Goodrich Transit case, supra, said : "The contention of appellant in the Commerce Court and in this court is, that the regulations of the Interstate Commerce Commisson relative to the method of keeping the accounts of common carriers, so far as they are here questioned, are unreasonable, beyond the power or authority of either Congress or the Commission, and violative of the Fifth Article of Amendments to the Constitution of the United States, as being a deprivation of property without due process of law. It is claimed that the effect of enforcing the regulations under the circumstances of the case is to reduce the amount of net earnings applicable to divi- dends, and thereby cause an irreparable loss to the pre- ferred stockholders, whose dividends are noncumula- tive and payable only out of the income of the current year. * * * "The authority of the Commission rests upon Sec. 20 of the 'Act to Regulate Commerce,' as amended by the Hepburn Act of June 29, 1906. The constitutional validity of this legislation was sustained in Interstate Commerce Commission vs. Goodrich Transit Co., 224 U. S. 194, 211, 214, 56 L. Ed. 729, 32 Sup. Ct. 436. * ♦ * * The very object of a system of accounts is 458 AMERICAN COMMERCE ASSOCIATION to display the pertinent financial operations of the company, and throw light upon its present condition. If they are to truly do this, the form must correspond with the substance. In order that accounts may be standardized, it is necessary that the accounts of the several carriers shall be arranged under like headings or titles; and it is obviously essential that charges and credits shall be allocated under the proper headings — the same with one carrier as with another. Unless 'Additions and Betterments,' on the one hand, and 'Operating Expenses,' on the other, are to indicate the same class of entries upon the books of one carrier that they indicate upon the books of other carriers, there is no possibility of standardization. So far as such uniformity requirements control or tend to con- trol the conduct of the carrier in its capacity as a pub- lic servant engaged in interstate commerce, they are within the authority constitutionally conferred by Congress upon the Commission. There is no direct interference with the internal affairs of the corpora- tion; and if any such interference indirectly results, it is only such as is incidental to the lawful control of the carrier by the Federal authority and to this the rights of stockholders and bondholders alike are necessarily subject. * * * "Congress in authorizing the Commission to pre- scribe a uniform system of accounts, recognized that accounting systems were not then uniform; and in reiterating this authorization in 1906, and adding a pro- hibition against the keeping of other accounts than those prescribed, manifested a purpose to standardize and render uniform the accounts of the different car- riers with respect to matters that entered into prop- erty and the improvements thereof, on the one hand, and the current operations of the company, on the other. By the very terms of section 20, Congress at least outlined the classification of the carriers' accounts, for it required the annual reports to show 'the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same * * * the sur- INTERSTATE COMMERCE LAW 459 plus fund, if any, * * * the funded and floating debts * * * the cost and vahie of the carrier's property, franchises and equipments; * * * the amounts ex- pended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the bal- ances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance sheet.' By the same section the Commission was authorized to require these annual reports from all carriers subject to the Act, and to pre- scribe the manner in which the reports should be made, and for this and other purposes to require car- riers to have 'as near as may be, a uniform system of accounts, and (to prescribe) the manner in which such accounts shall be kept.' "Plainly the law-making body recognized the es- sential distinctions between property accounts and operating accounts, between capital and earnings; it recognized that the practice of different carriers varied in respect to these matters; and that no system of su- pervision and regulation would be complete without re- quiring the accounts of all the carriers to speak a com- mon language. There is here no unconstitutional dele- gation of legislative powers. The reasoning adopted in Interstate Commerce Commission vs. Goodrich Transit Co., 224 U. S. 194, 210, etc., 56 L. Ed. 729, 32 Sup. Ct. 436 is controlling. And since, as just shown, uniformity in accounting is dependent upon the adop- tion and enforcement of precise classification, the au- thority to define the terms of the classification neces- sarily follows. It amounts, after all, to no more than laying down the general rules of action under which the Commission shall proceed, and leaving it to the Commission to apply those rules to particular situa- tions and circumstances by the establishment and en- forcement of administrative regulations. It is con- tended that the regulations of the Commission, in re- spect to the matters now under consideration, arc so 460 AMERICAN COMMERCE ASSOCIATION unreasonable and arbitrary as to constitute an abuse rather than an exercise of the powers conferred by section 20, and consequently that they ought to be set aside by judicial action. This is not on the ground that the Commission did not proceed with due deliber- ation and after proper inquiry. * * * "Since the regulation of the railroad carrier by the public authority, and especially the fixing of the rates to be charged, depend primarily upon two fundamental considerations, (a) the value of the property that is employed in the public service, and (b) the current cost of carrying on that service, it is clear that the maintenance of a proper line of distinction between property accounts and operating accounts is essential to the execution by the Interstate Commerce Commis- sion of the supervisory and regulatory powers con- ferred upon it by Congress. Appellant contends, inter alia, that since the original locations were necessary in the development of its railroad line and were aban- doned only as an incident to the improvement and de- velopment of the property, the cost thereof, being as it is termed a part of the 'cost of progress,' should remain in the property account, as representing a part of the stockholder's present investment. * * * "And since one of the manifest objects of Congress in authorizing the supervision and standardization of carriers' accounts as is done in section 20 of the Inter- state Commerce Act, was to enable the commissioners to intelligently perform their duties respecting the reg- ulation of carriers' rates for the services performed, and since it is settled that the property investment which is to be taken into consideration as one of the elements in fixing such rates is the property then in use (Smyth vs. Ames, 169 U. S. 466, 546, 42 L. Ed. 819, 18 Sup Ct. 418; San Diego Land and Town Co. vs. National City, 174 U. S. 739, 757, 43 L. Ed. 1154, 19 Sup. Ct. 804; San Diego Land and Town Co. vs. Jas- per, 189 U. S. 439. 442, 47 L. Ed. 892, 23 Sup. Ct. 571 ; Wilcox vs. Consolidated Gas Co., 212 U. S. 19, 41, 53 L. Ed. 382, 29 Sup. Ct. 192; Minn. Rate Cases, 230 U. INTERSTATE COMMERCE LAW 461 S. 352, 434, 458, 57 L. Ed. 1511, 33 Sup. Ct. 729), it is obvious that so far as the regulations of the Commis- sion now under consideration discard the 'cost of prog- ress' theory they need no further vindication. * * * "The accounting regulations do not seek to control railroad companies in the exercise of, their discretion respecting what shall be done and how it shall be done but only to systematize their accounts with respect to whatever is done. It is to be presumed that boards of directors will select that method of accomplishing a needed grade revision that shall be preferable from the engineering standpoint and suited to the financial condition and prospects of the company; not that they will adopt an inferior or more costly method of im- provement because of the accounting requirements. * * * It is said that the effect of the regulations, if complied with, is to deprive the preferred stockholders of a considerable part of the noncumulative dividends from the net earnings of the company, to which they would otherwise be entitled. The preferred stock- holders, as such, are not before the court, and this is not a proper occasion for determining their rights. Supposing, however, that the enforcement of the ac- counting system does require them to forego their current dividends, we do not concede that this amounts to an unlawful taking of their property. Assuming (as of course we must) that the management of the company has acted prudently in making these exten- sive improvements within a short time, instead of dis- tributing them throughout a series of years, and with- out providing in advance any fund applicable to them, still it must be presumed that the improvements are necessary to the general welfare of the company, and will result in its increased prosperity, and therefore make better the assurance of dividends for the pre- ferred stockholders in the future. But, aside from that, the Interstate Commerce Act deals with the carrier in its capacity as a servant of the public, and as a distinct entity, amenable to the legitimate regulation of Con- gress and the Commission. If in this aspect the car- 462 AMERICAN COMMERCE ASSOCIATION rier is not unwarrantably injured or deprived of its property by the exercise of the regulatory powers, the operation of such regulations cannot be restrained on the ground of agreements made by the stockholders amongst themselves for apportioning profits to one or the other class of stockholders. To admit this might materially hamper the Federal control over interstate carriers and evidently would tend to render impracti- cable the standardization of methods of accounting. * * * But did we agree with appellant that the abandonments ought to be charged to surplus or to profit or loss, rather than to operating expenses, we still should not deem this a sufftcient ground to declare that the Commission had abused its power. So long as it acts fairly and reasonably within the grant of power constitutionally conferred by Congress, its or- ders are not open to judicial review." See also the opinion of the Supreme Court in Goodrich Transit Company case, supra, this volume, Chap. XX, Sec. 4, ''Reports by Carriers Subject to the Act," ante. Section 20 gives the Commission the right, through its examiners and other proper agents, to inspect any and all accounts, records, and memoranda kept by carriers subject to the Act, but this authority does not include the right to examine the correspondence of the carriers. This power in the Commission is in aid of its authority to prescribe and establish a uniform system of accounting and bookkeeping for carriers subject to the Act and to inspect the same. This right of examination of accounts, records and memo- randa kept by carriers is not limited to such as have been made since the 1906 amendment (which took effect Aug- ust 29, 1906), but extends to pre-existing records. U. S. vs. L. & N. R. Co., 236 U. S. 318. § 6. Limitation of Carriers' Liability. From the very origin of railway transportation in this country common carriers by railroad have sought, by pro- INTERSTATE COMMERCE LAW 463 visions in shipping contracts, bills of lading, tariff publica- tions, etc., to limit their common-law liability, not only as insurers against loss or damage to property received by them for transportation, but also as tort-feasors for loss or damage caused by their negligence. One method was by a so-called release executed by shipper and carrier, and in- tended to be effective whether the loss or damage was due to negligence of the carrier or to other causes. The courts in different jurisdictions have differed as to the validity of such limitations and they have been the subject of legisla- tion in some of the states. By adoption of the "Carmack amendment," so called, to the Act to Regulate Commerce, approved June 29, 1906, the Congress provided that a common carrier receiving property for transportation from a point in one state to a point in another state should issue a receipt or bill of lading therefor and be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier to which such property might be de- livered, or over whose lines such property might pass, and declared that no contract, receipt, rule, or regulation should exempt such common carrier from the liability thereby im- posed. It was provided that nothing in that amendment should deprive any holder of such receipt or bill of lading of any remedy or right of action which he had at that time under existing law. Since that time, beginning in 1913, with Adams Express Co. vs. Croninger, 226 U. S. 491, the Supreme Court of the United States has decided in a number of cases, all of which followed Hart vs. P. R. R., 112 U. S. 331, that where the shipper has his choice of two rates, the higher carrying un- limited carrier's liability, and in "a fair, just and reasonable agreement" declares or agrees that the value of his ship- ment is a certain sum and thereby secures a reduced trans- 464 AMERICAN COMMERCE ASSOCIATION portation rate, he is bound by that declaration or agree- ment, estopped from claiming or recovering more than that value in case of loss of or damage to the property, and con- clusively presumed to have known the governing tariff. In re The Cummins Amendment, 33 I. C. C. Rep. 682, 683. On March 4, 1915, the first Cummins Amendment v^as approved by Congress and took effect June 2, 1915. Many widely varying and diametrically opposed ideas were ex- pressed as to the effect of the amendment and the possi- bility of all railroad transportation freight rates in the country becoming automatically advanced ten per cent on the date the Cummins amendment took effect. The Inter- state Commerce Commission was importuned to interpret the amendment and give expression to its requirements and the Commission subsequently held a hearing on the sub- ject. The first Cummins amendment made it unlawful for the carrier to fix a period for giving notice of claims shorter than 90 days, for the filing of claims shorter than four months, and for the institution of suits shorter than two years. It did not indicate the time or date from which these several periods of time should be computed; that is, whether from the date of delivery by the carrier of the damaged property, or in case of loss, after a reasonable time for delivery had elapsed from the date shown on the bill of lading, or from the occurence of the loss or of the damage, thus leaving it to the carriers to determine what periods of time they would fix for the giving of notice of claims, the filing of claims, and the institution of suits. In answering the inquiry, whether, if no changes were made in the then existing shipping contracts and rate schedules, the higher rates provided therein would auto- INTERSTATE COMMERCE LAW 465 matically become lawfully applicable upon the date which the amendment would take effect, the Commission said: "As we have seen, the Carmack amendment, adopted in 1906, provided that no contract, receipt, rule, or regulation should exempt the carrier from the liability thereby imposed. As has been said, no effort was made to change rates because of that amendment to the act. The classifications or rate schedules pro- vide that unless the terms of certain bills of lading are accepted higher rates will apply. The terms of the bill of lading could be modified or changed to any ex- tent without automatically changing any rate. Prior to 1913 many of the limitations contained in bills of lading or other shipping contracts were treated as if they did not exist, and it was never suggested that the validity or invalidity of any such provision affected the rate. "It is contrary to all canons of construction to hold that an act of Congress produces a result not intended by Congress unless the express language of the act compels such a construction. There is nothing in the express terms of this act or in the history of this legis- lation that shows any intent or purpose on the part of Congress to affect in any degree the existing rates charged by carriers for transporting property. The legislation is aimed at specified contracts and declares them to be unlawful. The lawful rates on file at this time, therefore, are the rates providing for the limited liability. The Cummins amendment, by making con- tracts limiting liability for loss caused by the carriers unlawful, does not destroy these rates, but they remain in effect and are lawfully applicable, for the 10 per cent increased rates are merely additional and can not stand in and of themselves. "Applying correct rules of interpretation, the Cum- mins amendment does not automatically bring into effect the increased rates named in the classifications and tariff publications as applicable to shipments 18 — 31. 466 AMERICAN COMMERCE ASSOCIATION which are not made subject to the terms of the uni- form or carrier's bill of lading." In re The Cummins Amendment, 33 I. C. C. Rep. 682, 692. The first Cummins amendment clearly placed upon the carriers liability for the full actual loss, damage, or injury to the property transported, caused by such carriers and made unlawful any limitation of that liability or of the amount of recovery thereunder in any receipt, bill of lad- ing, contract, rule, regulation, or tariiif, filed with the Com- mission. The amendment, however, did not stop with this, for in a proviso it was provided : "That if a commodity in the course of transportation is hidden from view by wrapping, boxing, or other means, so that the carrier can not know its character, that is to say, its grade, quality, and condition, it may, with the approval of the Commission, publish and maintain rates based on value and require the shipper to state in writing the value of any shipment made, and beyond the value so stated the carrier shall not be liable." This proviso was severely attacked as an abnoxious legal innuendo having a subtle tendency to vary the prohibition of the amendment as to live stock shipments. It is clear that when the first Cummins amendment went into effect a carrier could no longef' contract to limit its liability for loss or damage caused by it to the property received for trans- portation, but there was no inhibition as to the limitation of the carrier's liability for losses not caused by it or by a succeeding carrier to which the property might be deliv- ered. In this respect the Cummins amendment of 1915 ex- pressly reapplied the limitation of the prior act with respect to loss or damage caused by carriers. It therefore followed that the interpretation applied to the act before it was amended was equally applicable to the 1915 amendment in so far as the latter affects the right of a carrier to estab- INTERSTATE COMMERCE LAW 467 lish rates conditional upon the shipper's assumption of the entire risk of loss attributable to causes beyond the car- rier's control. So the Commission held that under the 1915 amendment a contract or a tariff might lawfully limit to a reasonable maximum the liability of a .carrier for losses which it did not cause, and that the rates provided by such tariff might be proportionate to the risk assumed. The Commission then proceeded to hold that the proviso of the statute as to goods concealed from view and of the charac- ter of which the carrier is not advised clearly prescribes the right of carriers under the direction or approval of the Commission to provide for a graduation of rates in accord- ance with the declared value of the property transported. The liability provided by the rates so established by the Commission would be applicable no less to instances of loss or damage chargeable to the negligence of the carrier than to those occasioned by causes beyond the carrier's control. In other words, the carriers could not contract to limit their Hability for loss, damage, or injury caused by them to property, the character of which was manifested by the shipment itself or otherwise disclosed. The Commission called attention to the fact that the carriers were not prohibited by the amendment from mak- ing different rates dependent upon the value of different grades of a given commodity; that, except as covered by the Cummins amendment, including approval of the rates by the Commission, the carrier is subject to all of the liabil- ities imposed by that amendment and that if in any in- stance the shipper declared the value to be less than the true value in order to get a lower rate than that to which he would otherwise be entitled, he violated, and was sub- ject to the penalty prescribed in, section 10 of the Act to Regulate Commerce and that the carrier would also be sub- ject to the same penalty in such a case if, having knowl- 468 AMERICAN COMMERCE ASSOCIATION edge that the value represented was not the true value, it nevertheless accepted the shipper's representation as to value for the purpose of applying the rate. In re Cummins Amendment, 33 I. C. C. Rep. 682, 694. See also: Iowa R. R. Commissioners vs. A. T. & S. F. Ry. Co., 36 I. C. C. Rep. 79, holding that the Cummins amendment of 1915 had in effect abolished in interstate commerce the entire system of released rates based on agreed valuations as_ dis- tinguished from actual value, and applying the principles enunciated in The Cummins Amendment, 33 I. C. C. Rep. 682. In 1906 section 20 had been amended by the so-called Carmack amendment w^hich made the initial carrier receiv- ing property for interstate transportation liable to the law- ful holder of a receipt or bill of lading issued therefor on ac- count of any loss, damage, or injury to such property caused by it or any other common carrier over whose lines the same might pass. Prior to that time the situation had been obnoxious to the shippers because the shipper or con- signee was put to the trouble and expense of attempting to locate among those carriers composing the through line of movement of the shipment the particular carrier respon- sible for any loss or damage occurring to the shipment, and of endeavoring to collect from it. The difficulties confront- ing such a course of action by the shipper are too manifest to need repetition here. The Carmack amendment did not undertake directly to prescribe or limit the conditions or provisions of the bill of lading, but operated to render void to the extent stated any attempt at limitation of the lia- bility of the initial carrier to the shipper. The initial car- rier becomes liable not only for the negligent acts and omissions of its employees but for those of connecting car- riers resulting from the failure of the final carrier to notify the consignee of the arrival of the goods at destination, and INTERSTATE COMMERCE LAW 469 for its failure on the consignee's refusal to accept them, to store the goods for the account of the shipper or to exercise proper care in holding them for him. Prior to 1913 the limited liability provisions contained in the shipping con- tracts, classifications, and rate schedule,s were very gen- erally disregarded in the settlement of loss or damage claims, especially by v^estern carriers. It became the prac- tice for carriers to incorporate into their schedules, par- ticularly their classifications, the forms of bills of lading and other shipping contracts in use on their various lines, and in 1913 the Supreme Court in the case of Adams Ex- press Co. vs. Croninger, 226 U. S. 491, following the early rule laid down in Hart vs. P. R. R., 112 U. S. 331, held that the provisions of the transportation contracts and rate schedules in so far as they limited carriers' liability should be recognized as lawfully binding upon carriers and ship- pers alike. The practive of the carriers which had been theretofore to state the limitations of liability in such con- tracts and schedules, but to settle claims generally upon the basis of full value, was thereupon changed and the pohcy was generally adopted of endeavoring to enforce the limited liability provisos. The so-called uniform bill of lading, which has long been in use in official and western classification territories, con- tains, and has contained, a provision that claims for loss or damage must be presented to the carrier within four months, but until the Croninger case, supra, was decided by the Supreme Court no effort was made by the carriers gen- erally to enforce or to observe that provision. After the Croninger case was decided the carriers adopted an en- tirely different course and took the position that this pro- vision was in the bill of lading, the terms of the bill of lad- ing were in the rate schedules, and therefore it was unlaw- ful to depart from that requirement. This created a gen- 470 AMERICAN COMMERCE ASSOCIATION eral controversy, and the sudden change from ignoring a rule to literally enforcing it necessarily created multitudes of unjust discriminations. The question was presented to and considered by the Commission, and as the fair and only means of composing the situation and avoiding endless controversy and litigation, the Commission issued its re- port. In the Matter of Bills of Lading, 29 I. C. C. 417, hold- ing that the Commission had no authority to order carriers to disregard their tariffs, nor did it feel justified in acquiesc- ing in the adjustment of matters brought into the condition presented at the hearing by reason of the disregard of tariff provisions, except from the necessity of the situation to re- quire carriers to deal w^ith all claims upon their merits, in good faith, and w^ithout discrimination as to the rule re- garding the period of time within which the claims had been presented. So much dissatisfaction resulted from the proviso of the Cummins amendment of 1915 as to goods concealed from view, and the Commission's interpretation thereof, that Congress on August 9, 1916, approved a reamendment of the section, striking out such proviso and substituting in lieu thereof the following proviso: "Provided, however, That the provisions hereof re- specting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on pas- senger trains or boats, or trains or boats carrying pas- sengers;, second, to property except ordinary live stock, received for transportation concerning which the carrier shall have been or shall hereafter be ex- pressly authorized or required by order of the Inter- state Commerce Commission to establish and maintain rates dependent upon the value declared in writing by INTERSTATE COMMERCE LAW 471 the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section ten of this Act to Regulate Commerce, as amended; and any tariff schedule which may be filed with the Commission pursuant to such order shall contain spe- cific reference thereto and may establish rates varying with the value so declared or agreed upon; and the Commission is hereby empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation. The term 'ordinary live stock' shall include all cattle, swine, sheep, goats, horses, and mules, except such as are chiefly valuable for breeding, racing, show purposes, or other special uses." It is clearly the purpose of the Cummins amendment, as amended, of August 9, 1916, to invalidate all limitations of liability for loss, damage, or injury to ordinary live stock caused by the initial carrier or by another carrier to which shipment may be delivered or which may participate in transporting it, notwithstanding any representation or agreement or release as to value. Ordinary live stock is excepted from the property as to which the Commission is empowered to authorize or require the establishment of rates dependent upon declared or released value. If rates on ordinary live stock dependent upon declared value could lawfully be maintained without authorization by the Com- mission, there might and probably would be instances in which conflict would arise as between the liability imposed by the act upon the carrier and the prohibitions of Section 10 of the act affecting shippers. The Commission, in view 472 AMERICAN COMMERCE ASSOCIATION of the provisions of the law, cannot authorize or sanction such rates upon ordinary Hve stock ; neither can they law- fully be maintained upon any other character of traffic except under authorization duly granted by the Commis- sion. Under such authority both shipper and carrier are fully protected and the full spirit of the law is observed. For many years, if not from the origin of the express business, the principal express companies maintained rates, dependent upon the value of the property as declared by the shipper, or as agreed upon for the purpose of determin- ing the rate to be applied, by which declaration or agree- ment the shipper was bound. He was stopped from recov- ering more than that value in case of loss of or damage to the property in Adams Express Co. vs. Croninger, 226 U. S. 491. Following the report of the Commission of May 7, 1915, In re Cummins Amendment, 33 I. C. C. 682, and responsive to supplemental order No. 13 in Docket No. 4198, the vari- ous express companies amended certain of their classifica- tion rules, also the uniform express receipt, effective June 2, 1915, to provide for the application of rates dependent upon the actual value of the property transported. Thereafter, the express companies petitioned the Com- mission for an order authorizing the maintenance of ex- press rates dependent upon the value of the property as declared in writing by the shipper or as agreed upon in writing, and submitted for approval proposed classification rules and form of express receipt, embracing changes that such an order would require. The Commission authorized the express companies to establish upon not less than 10 days' notice to the Inter- state Commerce Commission and the general public, by filing and posting in the manner prescribed in Section 6 of INTERSTATE COMMERCE LAW 473 the act to regulate commerce, the following classifications rules, to-wit : "Rates named in tariff governed by this classifica- tion, except as to ordinary live stock, are dependent upon and vary with a declared or released value of the property. * * *" Also, authorized express companies upon like notice, to amend the form and terms and conditions of the uniform express receipt so that they would read as follows : "The Company will not pay over $50, in case of loss, or 50 cents per pound, actual weight, for any ship- ment in excess of 100 pounds, unless a greater value is declared and charges for such greater value paid. The Commission further ordered that express classifica- tion rules filed under authority of this order shall show in connection therewith the following notations : "Issued under authority of the Interstate Commerce Commission's supplemental order No. 18 of April 2, 1917, incase No. 4198." In closing its supplemental report the Commission said: "It is clearly the purpose of the Cummins amend- ment, as amended, to invalidate all limitations of lia- bility for loss, damage, or injury to ordinary live stock caused by the initial carrier or by another carrier to which shipment may be delivered or which may par- ticipate in transporting it, notwithstanding any repre- sentation or agreement or release as to value. While it does not appear to be the purpose of petitioners to attempt a limitation of 'liability, a continuance of the present method of stating rates for ordinary live stock would require a representation of the value, which is declared to be unlawful. "The act, as amended, fixes upon the carrier liability for the full actual loss, damage, or injury caused by it 474 AMERICAN COMMERCE ASSOCIATION to ordinary live stock and invalidates any limitation or attempted limitation of that liability, wherever or in whatever form it is found. Ordinary live stock is excepted from the property as to which we are em- powered to authorize or require the establishment of rates dependent upon declared or released value. If rates on ordinary live stock dependent upon declared value could lawfully be maintained without authoriza- tion by the Commission, there might and probably would be instances in which conflict would arise as between the liability imposed by the act upon the carrier and the prohibitions of section 10 of the act affecting shippers. We can not, in view of the provi- sions of the law, authorize or sanction such rates upon ordinary live stock; neither can they lawfully be main- tained upon any other character of traffic except under authorization duly granted by the Commission. Un- der such authority both shipper and carrier are fully protected and the full spirit of the law is observed. "The shipper or lawful holder of the receipt or bill of lading for ordinary live stock should be free to press his claim for recovery in full for loss, damage, or in- jury caused by the carrier, and rates for the transpor- tation of such live stock may not be stated in a man- ner to require a representation of the value. This is not saying that value may not be considered and duly weighed as an element in determining what reasona- ble rates shall be established. "As to live stock the order herein will apply only to that which is chiefly valuable for breeding, racing, show purposes, or other special uses. "An order will be entered authorizing the mainten- ance of existing express rates dependent upon the de- clared or released value of the property transported, except ordinary live stock, also authorizing the form of express receipt to be used." It will be noted that the Cummins Amendment of 1916 places the right of the carrier to establish reasonable lim- INTERSTATE COMMERCE LAW 475 itation of its liability under the conditions as set forth in the amended proviso entirely in the control of the Interstate Commerce Commission while the several other provisions of the Cummins Amendment of 1915 stand as they did be- fore the enactment of the amendment of 1:'^16. The general subject of limitation of common carrier's liability is treated in a subsequent volume of the library de- voted to "The Lav^ of Common Carriers." CHAPTER XXI. ACT TO REGULATE COMMERCE AS • AMENDED. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 21, 22, 23 and 24. § 1. Statutory Provisions — Section 2L § 2. Amplifiication of Section. § 3. Statutory Provisions — Section 22. § 4. Amplification of Section. § 5. Statutory Provisions — Section 23. § 6. Amplification of Section. § 7. Statutory Provisions — Section 24. § 8. Amplifiication of Section. 477 CHAPTER XXI. (Continued.) Amplification of Sections (Continued). AMPLIFICATION OF SECTIONS 21, 22, 23 and 24. § 1. Statutory Provisions — Section 21. (As amended March 2, 1889.) "That the Commis- Annual reports sion shall, on or before the first day of December in .ion "to" con- each year, make a report, which shall be transmitted to Congress, and copies of which shall be distributed as are the other reports transmitted to Congress. This report shall contain such information and data col- lected by the Commission as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recom- mendations as to additional legislation relating thereto as the Commission may deem necessary; and the names and compensation of the persons employed by said Commission." § 2. Amplification of Section. See "Interstate Commerce Law," Part IV, "The Inter- state Commerce Commission," post. § 3. Statutory Provisions — Section 22. (As amended March 2, 1889, and February 8, 1895.) P'^o^^^^ \»* "That nothing in this Act shall prevent the car- ^jy ^j •«'^^. riage, storage, or handling of property free or at re- ""•*<' ™*"- duced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons trans- ported by charitable societies, and the necessary 479 1 480 AMERICAN COMMERCE ASSOCIATION Mileage, excur- sion, or com- mutation pat- lenger ticket*. Passes and fre« tra n sportat;on to otiicers and employees of railroad com- panies. Provisions of Act are In addition to remedies ex- isting at com- m o n law. Pending litiga- tion not af- fected by Aet Joint Inter- c h a ngeab le five - thousand- mile ticket*. Amount of free baggage. Rates to be pub- lished, flled, and observed. agents employed in such transportation, or the issu- ance of mileage, excursion, or commutation passenger tickets; nothing in this Act shall be construed to pro- hibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to in- mates of the National Homes or State Homes for Dis- abled Volunteer Soldiers, and of Soldiers' and Sailors' Orphan Homes, including those about to enter and] those returning home after discharge, under arrange- ments with the boards of managers of said homes; nothing in this Act shall be construed to prevent rail- roads from giving free carriage to their own officers and employees, or to prevent the principal officers ofj any railroad company or companies from exchanging passes or tickets with other railroad companies forj their officers and employees; and nothing in this Act contained shall in any way abridge or alter the rem- edies now existing at common law or by statute, but the provisions of this Act are in addition to such rem- edies : Provided, That no pending litigation shall in any way be affected by this Act : Provided further, That nothing in this Act shall prevent the issuance of joint interchangeable five-thousand-mile tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thou- sand or more miles. But before any common carrier, subject to the provisions of this Act, shall issue any such joint interchangeable mileage tickets with special privileges, as aforesaid, it shall file with the Interstate Commerce Commission copies of the joint tariffs of rates, fares, or charges on which such joint inter- changeable mileage tickets are to be based, together with specifications of the amount of free baggage per- mitted to be carried under such tickets, in the same manner as common carriers are required to do with regard to other joint rates by section six of this Act; and all the provisions of said section six relating to joint rates, fares, and charges shall be observed by said common carriers and enforced by the Interstate Com- INTERSTATE COMMERCE LAW 481 merce Commission as fully with regard to such joint interchangeable mileage tickets as with regard to other joint rates, fares, and charges referred to in said section six. It shall be unlawful for any common car- rier that has issued or authorized to be issued any such joint interchangeable mileage tickets lo demiand, col- lect, or receive from any person or persons a greater or less compensation for transportation of persons or baggage under such joint interchangeable mileage tickets than that required by the rate, fare, or charge specified in the copies of the joint tariff of rates, fares, or charges filed with the Commission in force at the time. The provisions of section ten of this Act shall apply to any violation of the requirements of this pro- viso." § 4. Amplification of Section. Section 22 of the Act as amended is illustrative, rather than exclusive, and must be read in its relation to the pro- hibition against free transportation contained in section 1 of the Act. The amendment to the section of March 2, 1889, specifically provided that the amended section should in no wise operate to abridge or alter any existing rem- edies, either at common law or by statute, "but the provi- sions of this Act are in addition to such remedies." The further amendment of February 8, 1895, permitted the is- suance of joint interchangeable five-thousand-mile tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand or more miles. The section is in reality illustrative in that it defines that excepted classes of persons in favor of whom certain dis- criminations should not be deemed unjust. Indeed, many, if not all, of the excepted classes named in the section, are those, if the section did not exist, not necessarily subjects of unjust discrimination if more favorable terms were ex- tended to them than to ordinary passengers. 18—82. PtnaltlM. 482 \MERICAN COMMERCE ASSOCIATION United States courts to com- mand m o V e - mont of inter- state traffic or the furnlshlno of oarg or other transpor- tation faelll- ties. In the Party Rate case, 145 U. S. 263, it was held that the naming of certain discriminations which should not be deemed unjust did not prevent discriminations in favor of others under circumstances and conditions so substantially alike as to justify the same treatment. In other words, the section was not exclusive, but merely illustrative of certain definite forms of permissive discriminations. The section has always been construed as permissive with respect to the issuance of mileage, excursion, or commuta- tion passenger tickets, and were as authorizing the Com- mission to compel the issuance of such tickets. The Com- mission has held that the use of mileage books is merely a privilege accorded by carriers voluntarily, and that pur- chasers take them subject to all lawful and nondiscrimina- I tory conditions attached to them. There is not discrimina- tion in issuing such tickets on one occasion and not issuing them on another. The objective of the section and of the entire Act is that when they are issued however, whatever the occasion, they must be offered impartially to all who! accept the conditions attached to them, and the rates at| which such tickets are sold must conform with the rates and; fares on file with the Commission. The intention of Con- gress is simply that the issuance of such tickets shall be unrestricted. Since the carriers may, in their discretion, issue such tickets, it is equally a matter within their discretion when they withdraw them, subject, of course, to nondiscrimina- tory conditions in the withdrawal. § 5. Statutory Provisions — Section 23. (Added March 2, 1889.) 'That the circuit and dis- trict courts of the United States shall have jurisdic-! tion upon the relation of any person or persons, firm,,j or corporation, alleging such violation by a common ft carrier, of any of the provisions of the Act to which ^' INTERSTATE COMMERCE LAW 483 this is a supplement and all Acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any othes shipper, to issue a writ or writs of mandamus against said common car- rier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facil- ities for transportation for the party applying for the writ : Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may is- sue, notwithstanding such question of fact is undeter- mined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the ques- p.medy ucumu- tion of fact : Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this Act or the Act to which it is a supple- ment." § 6. Amplification of Sejction. See "Interstate Commerce Law," Part IV, "Practice and Procedure Before the Interstate Commerce Commis- sion," post. § 7. Statutory Provisions — Section 24/^' See "Interstate Commerce Law," Part IV, "The Inter- state Commerce Commission," post. § 8. Amplification of Section. See Part IV, "The Interstate Commerce Commission," post. (1) For amendment of August 6, 1917, enlarging the membership of the Commission to nine commissioners, see Appendix, I. C. Law. Part IV— "Amendatory Acts." 11 I J CHAPTER XXII. ACT TO REGULATE COMMERCE AS AMENDED. (Concluded.) Amplification of Sections (Concluded). § 1. Additional Provisions to the Act to Regulate Commerce. 485 ^ Act. CHAPTER XXII. ACT TO REGULATE COMMERCE AS AMENDED. (Concluded) Amplification of Sections (Coocinded). § 1. Additional Provisions to the Act to Regulate Com- merce. (Additional provisions in Act of June 29, 1906.) (Sec. 9.) "That all existing laws relating to the attend- ance of vdtnesses and the production of evidence and the compelling of testimony under the Act to regulate commerce and all Acts amendaton.' thereof shall ap- plv to anv and all proceedings and hearings under this Act." (Sec. 10.) "That all laws and parts of laws in con- flict with the provisions of this Act are herebj- re- pealed: but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a con- clusion in the manner heretofore provided by law." (Sec 11.) 'That this Act shall take effect and be in force from and after its passage. ■Joint resolution of Tune 30, 1906. provides: 'T li-.e Act entitled "An Act to amend an Act -^---''ed . . . Act to regulate Commerce," approved ^ . iry 4. 1887, and all Acts amendator\- thereof, and to enlarge the powers of the Interstate Commerce Commission." shall take effect and be in force sixt^- days after its approval by the President of the United States." "* S^m ouh (Additional provisions in Act of June 18. 1910'^ (Sec. 6, par. 2.) "It shall be t'ne duty of every comi: carrier subject to the pro\"isions of this Act. withir sixty days after the taking effect of this Act, to desig- nate in writing an agent in the cit].- of Washington. 4S7 Act *rm- 488 AMERICAN COMMERCE ASSOCIATION Sorvlcs on suaii aGents. Pendlna ease*. Existing liabili- ties. When Act effec- tive (Augutt 17. 1910). District of Columbia, upon whom service of all noticesj and processes may be made for and on behalf of said common carrier in any proceeding or suit pending be- fore the Interstate Commerce Commission or before said Commerce Court, and to file such designation in the office of the secretary of the Interstate Commerce Commission, which designation may from time to time be changed by like writing similarly filed; and there- upon service of all notices and processes may be made upon such common carrier by leaving a copy thereof with such designated agent at his office or usual place of residence in the city of Washington, with like effect as if made personally upon such common carrier, and in default of such designation of such agent, service of any notice or other process in any proceeding be- fore said Interstate Commerce Commission or Com- merce Court may be made by posting such notice or process in the oflice of the secretary of the Interstate Commerce Commission." (Sec. 15.) "That nothing in this Act contained shall undo or impair any proceedings heretofore taken by or before the Interstate Commerce Commission or any of the acts of said Commission; and in any cases, pro- ceedings, or matters now pending before it, the Com- mission may exercise any of the powers hereby con- ferred upon it, as would be proper in cases, proceed- ings, or matters hereafter initiated and nothing in this Act contained shall operate to release or afifect any obligation, liability, penalty, or forfeiture heretofore existing against or incurred by any person, corpora- tion, or association." (Sec. 18.) "That this Act shall take effect and be in force from and after the expiration of sixty days after its passage, except as to sections twelve and sixteen, which sections shall take effect and be in force immediately." Public, No. 41, approved February 4, 1887, as amended by Public, No. 125. approved March 2, 1889; Public No. 72, approved February 10, 1891; Public, No. 38, approved February 8, 1895; Public, No. 337, approved INTERSTATE COMMERCE LAW 489 June 29, 1906; Public Res., No. 47, approved June 30, 1906; Public, No. 95, approved April 13, 1908; Public, No. 262, approved February 25, 1909; Public, No. 218, approved June 18, 1910; Public, No. 337, approved August 24, 1912; Public, No. 400, approved March 1, 1913; Public No. 48, approved January 20, 1914; and Public No. 161, approved August 1, 1914. INDEX Page ABILENE COTTON OIL COMPANY CASE 234, 235 ACCOUNTS. Accounting systems prescribed by Commission 440, 441, 454, 455 Carrier to lieep no other accounts than those prescribed by Com- mission 441 Commission may employ special examiners to inspect accounts and records 441 Commission may prescribe forms of accounts, records, memoranda, and have access thereto 441 Interstate Commerce Commission may prescribe uniform system of accounts for carriers 440 Punishment of carrier by forfeiture for failure to keep accounts or records as prescribed by Commission or to allow inspection thereof 441 Punishment of person for false entry in accounts or records, or mutilation of accounts or records, or for keeping other ac- counts than those prescribed; fine or imprisonment or both. .. 442 United States court may issue mandamus to compel compliance with provisions of Act 442 ACT TO REGULATE COMMERCE (see SECTION). Action brought under provisions of Section 9 before the Commis- sion subject to limitation of 2 years 226 Additional provisions of Act of June 18, 1910 487 Additional provisions of Act of June 29, 1906 487 Amendment of June 18, 1910, when effective 488 Contains no limitation of time for bringing suits to recover dam- ages under Section 8 226 "Does not attempt to equalize fortune, opportunities or abilities". . 20 Enlargement of remedial powers of 233 Equity jurisdiction under 225 Interstate Commerce Commission to execute and enforce provi- sions of 365 Laws in conflict with, repealed 487 Section 15 is the dominating and controlling expression of the real object and meaning of, in its present form 403 Whatever action this Court may take must be consistent with the entire context of the Act to Regulate Commerce 233 When effective 487 ADJUSTMENT (see RATES). ADMINISTRATIVE POWERS (see INTERSTATE COMMERCE COM- MISSION). ADVANCED RATES. Burden of proof on carrier as to reasonableness of increased rates 383 1910 Eastern Case 398 1910 Western Case 399 Power to suspend proposed increased rates vested in Interstate Commerce Commission 398 LGENTS. Carriers must designate agents in Washington for purposes of service 487 Name of carrier's, to be posted 189 LGREEMENTS (see TRAFFIC AGREEMENTS). LLLOWANCES (see DISCRIMINATION— "LATERAL ALLOW- ANCES"). To shippers, under Section 15, for service rendered or instrumen- tality furnished by owner of property S86 To shippers under Section 15, of Act to Regulate Commerce 894 To shippers for services or instrumentalites fumishod In the transportation of their shipments 400 491 492 AMERICAN COMMERCE ASSOCIATION Page Carmack, to Secetion 20 of Act to Regulate Commerce 463 Of June 29 1906 to Section 15 of Act to Regulate Commerce 387 Of June 29 1906, to Section 16 of Act to Regulate Commerce 412 Of February 25, 1909, to Section 20 of Act to Regulate Commerce relating to carriers records 442 Of June 18 1910, to Section 15 of Act to Regulate Commerce 387 Of Section 6 of Act to Regulate Commerce of June 18, 1910 188 Of March 1, 1913 to Section 19 of Act to Regulate Commerce 429 Of January 20, 1914, to Section 20 of Act to Regulate Commerce. . 445 Of Act to Regulate Commerce not to effect pending causes in Court 487 Of Section 6 of Act to Regulate Commerce 192 Of Section 10 of Act to Regulate Commerce 350 Of Section 13 of Act to Regulate Commerce 37^ Of Section 15 of Act to Regulate Commerce 386 Of Section 16 of Act to Regulate Commerce 412 Of Section 20 of the Act to Regulate Commerce 446, 447 AMERICAN-HAWAIIAN STEAMSHIP COMPANY 103 AMPLIFICATION OF SECTIONS. Of Section 5 ^o^ Of Section 6 of Act to Regulate Commerce 1^5 Of Section 7 of Act to Regulate Commerce ^11 Of Section 8 of Act to Regulate Commerce ^i' Of Section 9 of Act to Regulate Commerce ^^l Of Section 10 of Act to Regulate Commerce ^47 Of Sections 11 and 24 of Act to Regulate Commerce 361 Of Section 12 of Act to Regulate Commerce gba Of Section 13 of Act to Regulate Commerce ^^i Of Section 14 of Act to Regulate Commerce i't Of Section 15 of Act to Regulate Commerce dSi Of Section 16 of Act to Regulate Commerce 4U3 Of Section 16a of Act to Regulate Commerce 4^^ Of Section 17 of Act to Regulate Commerce 4J/ Of Section 18 of Act to Regulate Commerce 4^8 Of Section 19 of Act to Regulate Commerce 4^» Of Section 19a of Act to Regulate Commerce 4i& Of Section 20 of Act to Regulate Commerce 4^» Of Section 21 of Act to Regulate Commerce 4^» Of Section 22 of Act to Regulate Commerce ^jS^ Of Section 23 of Act to Regulate Commerce 48i Of Section 24 of Act to Regulate Commerce UA^,'^ ANNUAL REPORTS (see EVIDENCE; INTERSTATE COMMERCE COMMISSION). J, Of carriers .••:••• 1 •• v; Itq Of Interstate Commerce Commission to Congress 4/» ANTI-TRUST ACT (see SHERMAN ACT) ARRANGEMENTS (see TRAFFIC AGREEMENTS) ARTIFICIAL MARKET CONDITIONS (see DISCRIMINATION- COMPETITION). ATTORNEYS. . , ... Interstate Commerce Commission may employ 4ii ATTORNEY'S FEES (see DAMAGES). Allowed petitioner in court proceedings when 4 J-" Under provision of Section 8, common carrier is liable to person injured for full amount of damages sustained in consequence of the violation of the Act to Regulate Commerce, together with reasonable attorney's fees ; ■ •;^.- ATTORNEY GENERAL (see DISTRICT ATTORNEYS) BAGGAGE (see FREE TRANSPORTATION; JOINT INTERCHANGE- ABLE MILEAGE TICKETS). . „_„. "BASE LINE" ADJUSTMENT (see BASE-POINT RATES). BASE LINE RATES. ., . .^. * p ^„*^ Commission not impressed with view that this system of rate- making should be abolished ^•' BASE-POINT RATES. . . . „ ^ ^- • ■ * , Commission ha.'^ many times investigated alleged discriminatory rate relationships in the Southeast » General basing points have existed for years at strategic basing points throughout the country and upon which great regional rate structures have been constructed '■'^ INTERSTATE COMMERCE LAW 493 Page Interstate Commerce Commission on base-point rates 12 Interstate Commerce Commission possesses power to alter or ignore base-point rates 9 Readjustment of Southeastern rates by Commission now repre- sents a "base-line" adjustment rather than a "basing- point" system of rates 11 Supreme court of U. S. on Commission's view of base-point rates 11 System of, in Southeast, has undergone such radical changes as to no longer exist as a rate-making method of any extent 11 System of rate construction has been applied notably between Atlantic Seaboard and Mississippi River and in Southeast. . 8 This system of rates aords local point its proper ratio of prox- imity to the competitive or base point 9 "When consisting of proper factors, not undue discrimination.... 8 BILLING. Accident of, reparation awarded account 343 False billing by carrier 352 False billing by shipper 352 False billing, when offense complete 352 BILLS OF LADING. Initial carrier liable to holder of bill of lading for any loss 443 Nothing in Section 20 to deprive holder of, of any remedy or right of action which he has under existing law 445 Receiving carrier to issue 443 BITUMINOUS COAL TO MISSISSIPPI VALLEY TERRITORY 107 BLACK MOUNTAIN COAL COMPANY CASE 76 BLACK STRAP MOLASSES 136 BLANKET (see BLANKET RATES). BLANKET RATES (see RATES — GROUP RATES). BOATS (see WATER TRANSPORTATION). BRISTOL FERRY. Express service at 123 BUFFALO-PITTSBURGH TERRITORY. Through rates from 107 BURDEN OF PROOF. On carrier as to reasonableness of increased rates 383 BURNHAM, HANNA & MUNGER CASE 11 CABLE MESSAGES (see CLASSIFICATION). CANADA ATLANTIC TRANSIT CO. Ownership bv Grand Trunk Railway Company, of Canada 176 CAR DISTRIBUTION. Regulation by Interstate Commerce Commission 394 United States courts to command movement of interstate traffic or the furnishing of cars or other transportation facilities. . 482 Unjust rules as to, are within the pervue of Section 3 of the Act to Regulate Commerce 260 CARLOAD RATES (see DISCRIMINATION — QUANTITY OF TRAFFIC). CARLOAD SHIPMENTS (see DISCRIMINATION — QUANTITY OF TRAFFIC; MINIMUM WEIGHT). Because one shipper by expenditure of exceptional effort is able to load more heavily than his competitor. Commission will not prescribe lower rate for 100 pounds conditional upon the use of the higher minimum as the measure of the carload weight. . 147 Propriety of 146 CARMACK AMENDMENT 463 CARRIERS ((see "COMMON CARRIERS"; DISCRIMINATION). Discrimination by carrier fostering industries on its line 6 CARS (see CAR DISTRIBUTION). Not only specific duty imposed to furnish upon reasonable request, but Act to Regulate Commerce gives remedy for violation of that duty 244 Section 1 of Act to Regulate Commerce requires carriers to estab- lish through routes and to interchange cars with connecting carriers 82 CARTAGE (see DISCRIMINATION — CARTAGE). CATTLE (see LIVE STOCK). CAUSE OF ACTION (see RIGHT OF ACTION). CEREAL FOODS (See COMPETITIVE COMMODITIES)). CHATTANOOGA CASE 59 CHICAGO GREAT WESTERN CASE 148 494 AMERICAN COMMERCE ASSOCIATION Pa^e CIRCUITOUS LINE. . ,. ... v .* a Commission ordinarily treats a line as circuitous where it exceeds the direct line mileage by not less than 15 per cent. 81 Competition with direct line, where rate from intermediate point is reasonable, will justify circuitous line in seeking relief from fourth section 81 CIRCUITOUS ROUTES (see ROUTES). CLAIMS (see DAMAGES). . , , . ^ . ^ ^, . v. i Against United States, cognizable m Court of Claims, barred unless filed within six years after claim first accrues 290 Assignment of, for damages or overcharges 227 Commission has held that statute of limitation does not run to defeat claims for reparation if mere letter is filed with Com- mission setting forth nature of claim, and opportunity is afforded defendants to settle claim before formal proceedings are begun v ••%,•• •^: • • ^^^ Filing of fraudulent, for loss or damage, an offense under Section 10 of Act to Regulate Commerce 356 Notice not required as condition precedent to recovery, if loss, damage or injury is due to delay, or damaged while being loaded or unloaded, or damaged in transit by carelessness or negligence of carrier 445 Time for filing under provisions of Cummins Amendment 44o CLASS AND COMMODITY RATES 107 ! CLASSIFICATION (see DISCRIMINATION— C^LASSIFICATION). Interstate Commerce Commission may determine and prescribe just and reasonable, to be observed as maximum for the future • , • • • 381 1 Interstate Commerce Commission may establish through routes ', and joint rates and classifications 383 i It is sound rule for carriers to adapt their classifications to the laws of trade 146 Of property .••;•, , f2 Of telegraph, telephone and cable messages permissable 157; Purpose of, is to group various articles of commerce into general i classes : • • • \: \- • ■ • : ^^"' Quantity of traffic, classification of freights designating different classes for carload quantities and for less than carload quan- tities, at lower rate on the carloads, not in violation of Act to Regulate Commerce 139.1 So long as thousands of articles are divided into a comparatively small number of classes for rate making purposes, minute variations in value of different articles, or dissimilar values of the same article, can not be precisely reflected in the classification 1531 COAL, BITUMINOUS, RATES ON 107J COAL. BITUMINOUS, TO MISSISSIPPI VALLEY TERRITORY 1071 COAL AND COKE RATES IN SOUTHEAST 96| C. O. D. (see DISCRIMINATION— EXPRESS SERVICE). COMMERCE COURT. Enjoined the enforcement of Commission's orders in the inter- mountain rate cases 91'| To enforce orders other than for payment of money 411 COMMODITIES (see COMPETITIVE COMMODITIES; SCHEDULE). COMMODITIES CLAUSE. Commipsarv car, operated in violation of, 155] COMMISSIONERS (see INTERSTATE COMMERCE COMMISSION). COMMON CARRIER. "Carrier," means "common carrier," in Act to Regulate Com- merce 188] Foreign and domestic traffic, carrier, by transporting export traffic to a port makes itself a common carrier as to that point and assumes obligation to transport domestic traffic as well 134j May not be compell'^d at law to contract to carry beyond its own line, but if willing to transport beyond its own line is at liberty to do so loSj Shall not engage in transportation unless it files and publishes rates, fares and charges thereon 1871 COMMON LAW. Provision of Section 22 of Act to Regulate Commerce that com- mon law and statutory ri^rhts of shipper are expressly pre- served to him, not sufficient to continue a common law right INTERSTATE COMMERCE LAW 495 Page or statutory remedy inconsistent with provisions of Act to Regulate Commerce 233 COMPETITION (see BASE-POINT RATES; DISCRIMINATION BETWEEN LOCALITIES: DISCRIMINATION — BUSINESS CONDITIONS; DISCRIMINATION — COMPETITION; DIS- CRIMINATION—GEOGRAPHICAL ADVANTAGES OR DIS- ADVANTAGES; DISCRIMINATION — LONG AND SHORT HAUL; SECTION 4). Commission to determine as to, under Panama Canal Act 162 Controlling- effect of, 67 Dealer in smaller towns is entitled to reasonable rates which will enable him to compete on equitable basis with dealer at trade centers enjoying the benefit of competitive rates.... 42 Group rates, carrier may not lawfully so group mines with respect to rates as to unduly discriminate against any locality 76 Interstate rates, is essential factor in the adjustment of 55 Necessity of 63 Strong competition between carriers naturally results in lower rates 42, 45 Policy of Congress to encourage 75 COMPETITIVE COMMODITIES (see RELATIVE RATES). Competition between 130 Cooked and uncooked cereal breakfast foods compete commercially 129 Live hogs, live cattle and the dressed products of each are com- petitive commodities and entitled to relatively reasonable rates for transportation 128 No competition between such iron articles as stoves and hollow ware, dog irons, wash kettles, pipe, sad irons and lumber.... 129 COMPETITIVE CONDITIONS (see DISCRIMINATION — LONG ESTABLISHED RATES) COMPLAINTS. To Interstate Commerce Commission, how and by whom made; how served 371 CONCURRENCE (see TARIFFS). CONGRESS. Policy of, to encourage competition 75 CONSOLIDATED SHIPMENTS (see DISCRIMINATION— QUAN- TITY OP TRAFFIC. CONTRACT (see CUMMINS AMENDMENT; DAMAGES; EVIDENCE; TRAFFIC AGREEMENTS). CORPORATIONS. Constitutionality of Section 10 of Act to Regulate Commerce as against corporations was established by the Supreme Court of the United States 354 COSTS (see COURT COSTS). In proceedings for recovery of forfeiture, costs and expenses to be paid out of appropriation for court expenses 411 Petitioner in court proceedings to enforce order of Commission for payment of money, not liable for costs in Circuit Court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal 410 COST OF SERVICE (see DISCRIMINATION— QUANTITY OF TFIAFFIC; RELATIVE RATES). Difference between local and through traffic lies largely in cost of service 132 Quantity of traffic, only legal discrimination can be made between large and small shipments based upon difference in cost of service 138 COURT OF CLAIMS (see CLAIMS). COURTS (see COMMERCE COITRT; IMMUNITY OF WITNESSES; STATUTE OF LIMITATION; WITNESSES). Actions brought in Court under Section 8 of Act to Regulate Com- merce governed by statute of limitation of state in which suit is instituted 226 Amendments to Act to Regulate Commerce not to affect pending cases in 487 Award of damages by Interstate Commerce Commission to be enforced by 409 Cannot primarily interfere with or invade the administrative func- tions vested in the Interstate Commerce Commission 235 Depositions 366 Equity jurisdiction under the Act to Regulate Commerce 22 j Equity jurisdiction in cases brought on behalf of Interstate Com- merce Commission expressly conferred by Elklns Act 226 496 AMERICAN COMMERCE ASSOCIATION Page Joint plaintiffs may sue joint defendajits in courts on awards of damages 410 Persons claiming to be damaged may elect whether to complain to the Commission or bring suit in a United States Court. . . . 231 Remedy given by writ of mandamus in Section 23 of Act to Regu- late Commerce is cumulative 483 Removal of actions brought in state courts to courts of the United States 445 Section 16 provides for review of orders of Interstate Commerce Commission by courts of competent jurisdiction 414 Service of protest 410 To compel witnesses to attend and testify before Interstate Com- merce Commission 366 United States, have jurisdiction of suit in equity to enforce com- pliance with Act to Regulate Commerce 225 United States court may issue mandamus to compel compliance with provisions of Act 442 United States courts to command movement of the interstate traffic or the furnishing of cars or other transportation facili- ties 482 "WTiatever action courts may take must be consistent with the entire context of the Act to Regulate Commerce 233 CRIMINAL, (see PROSECUTIONS). CUMMINS AMENDMENT. As amended 443 Certain provisions to apply only to ordinary live stock 444 Initial carrier liable for full actual loss 443 Initial carrier liable to holder of bill of lading for any loss 443 Liability for full actual loss not exempted by any contract 443 Notice not required as condition precedent to recovery, if loss, dam- age or injury is due to delay, or damaged while being loaded or unloaded; or damaged in transit by carelessness or negli- gence of carrier 445, 462 Rates dependent upon value 444 Receiving carrier to issue bill of lading 443 Time for filing claims under Cummins Amendment 445 "With certain exceptions, limitations of liability under Cummins Amendment void 444 CUSTOMS DUTIES (see TARIFFS). DAMAGES (see PRACTICE AND PROCEDURE). Accident of billing, awarded for 343 Assignment of claims, for, or overcharges 227 Attorney's fees, in connection with awards of 337 Award of, by Interstate Commerce Commission 409 Award of, by Interstate (Commerce (Commission, formal complaint unsupported by expense bills or other evidence, and nothing brought before Commission to prove shipments, or charges collected, will not admit of an award of reparation 297 Award of, by Interstate Commerce Commission, none in formal cases unless prayer therefor in petition 295 Award of, by Interstate Commerce Commission, not a judgment.. 294 Award of, by Interstate Commerce Commission is prima facie evidence of such facts as stated therein 294 Award of, by Interstate Commerce Commission, statutory provi- sion empowering Commission to award damages is merely a rule of evidence 294 Award of, by Interstate Commerce CTommission, to be enforced by courts 409 Award of, may be made by Interstate Commerce Commission before the future rate is prescribed 418 Awards of, power of Interstate Commerce Commission to make... 414 Awards of "transportation" or "rate" damages 264 Car distribution, damages occasioned thereby, arise from violation of the Act and their ascertainment is within the scope of the Commission authority 260 Cause of action, when accrues under Act to Regulate Commerce.. 279 Claims for, may be amended 336 Condition precedent, protest not necessary to recovery of dam- ages for unreasonable rate 342 Contract, breach of, no award of damages for, by (Commission.... 339 Discrimination, Commission has authority to report amount of damages suffered from 260 Discriminatory rate, does not necessarily follow that because a INTERSTATE COMMERCE LAW 497 POtf* rate is found to be unjustly discriminatory, that complaining parties are ones who have been damaged 257 Discriminatory rate, reparation may be awarded when one has been exacted 267 Evidence, what must be done to establish the fact and extent of damag-e, is present difficulty in cases before Interstate Com- merce Commission 257 Findings of facts, Interstate Commerce Commission must report, on which award is made 377 F. O. B. shipments consignor cannot recover 338 Formerly much conflict between Commission's administrative in- terpretations of its authority to award damages 255 General, power of Interstate Commerce Commission to award, reference section 422 Inducing discrimination, joint liability for 362 Inducing discrimination, joint liability with carrier for 349 Interest on, allowed on awards of 336 Language of statutes is that "the transgressing carrier is liable". . 312 Liability of carriers, for, arising out of violations of Act to Regu- late Commerce 287 Liability of common carriers for damages caused by violation of Act to Regulate Commerce 217 Liability of carrier for loss, damage or injury due to delay, or damage while goods are being loaded or unloaded, or damaged in transit by carelessness or negligence 445 Measure of, account carrier's failure to post freights 328 Measure of, account discrimination in facilities 326 Measure of, account discriminations in rates 316 Measure of, account excess weight resulting in overcharge 325 Measure of, account misrouting of shipment 332 Measure of, account of overcharge 321 Measure of, account of overcharge on shipment to foreign coun- try adjacent 335 Measure of, account unreasonable rate 312 Measure of, account violation of long-and-short-haul clause 323 Measure of, may be for profits lost 342 Measure of, might be the same, or less than or greater than the rebate 257 Measure of, where indemnitory or general damages are sought for violations of the Act to Regulate Commerce 311 Measure of, where unreasonable rate has been charged 311 Misdelivery, failure to malte delivery not ground for award of, by Commission 338 Misquotation of rates, award of, for 340 Misquotation of rates, for failure to "plainly" state rate 339 Officers of defendant carrier may be compelled to testify but shall receive immunity 231 Parties of record, right of reparation not confined to 295 Persons claiming to be damaged may elect whether to complain to the Commission or bring suit in a United States Court.. 231 Persons entitled to 276 Power of Interstate Commerce Commission to award 255 Proof, Commission not justified in awarding damages except on basis as certain and definite in law and in fact as is essential to support a final judgment or decree requiring the payment of a definite sum of money by one party to another. .. .315, 316, 317 Propriety of Commission's jurisdiction to award general damages for violations of the Act to Regulate Commerce now settled by the courts 255 Reference paragraph 227 Right of action, award of, by Commission prima facie proof of right to recover 342 Right of election of tribunal by injured party 231, 232 Ruling in International Coal Mining Company Case 218 Section 8 of Act to Regulate Commerce gives right of action for. . 217 Sections 8, 9, 14, 15 and 16 of Act to Regulate Commerce invest Commission with authority to award damages for violations of the Act 264 Statute of limitation, Commission has held that, does not run to defeat claims for reparation if mere letter is filed with Com- mission setting forth nature of claim, and opportunity is afforded defendants to settle claim before formal proceedings are begun 406 18 — 33 498 AMERICAN COMMERCE ASSOCIATION Pace Statute of limitation, effect on application for reparation 278 There are two classes of acts which may form the basis of a suit for 242 Under provision of Section 8, common carrier is liable to person injured for full amount of damages sustained in consequence of the violation of the Act to Regulate Commerce, together with reasonable attorney's fees 220 ■WTien cause of action for, accrues 288 "DEAD" FREIGHT see DISCRIMINATION— LIVE STOCK. DELIVERY (see DAMAGES). DEPOSITIONS 366 Interstate Commerce Commission may order testimony to be taken by 366 DIFFERENTIAL (see DISCRIMINATION — QUANTITY OF TRAFFIC). Competition is neither sound in principle nor in practice for railroads to create artificial market conditions by arbitrary differential in rates 73 DISCRIMINATION (see BASE-POINT RATES; DAMAGES; RATES; WHOLESALE PRINCIPLE). Agreements or combinations, if by, it were found that rates at particular points were unduly influenced by suppression of competition, that fact would be proper to consider in determining the question of undue discrimination and reason- ableness of rates per se 58 Allowances, carrier may not make, to one shipper who provides a facility or performs a service in the transportation of his own property and refuse similar allowances to another shipper competing in same markets and providing a similar facility and performing the same service in the transportation of his property 401 Basing point rates. Commission has investigated Fourth Section violations in the Southeast under its powers under the old and new Fourth Sections of the Act to Regulate Commerce.... 9 Base-point rates, system of, in Southeast, distinction should be drawn between application of, which may create unlawful dis- crimination under Section 3 of the Act to Regulate Commerce and applications which result in unlawful discriminations under the provisions of Section 4 13 Base-point rates, system of, employed in the Southeast preserved a differential relationship in the rates between competitive and non-competitive Southeastern points 11 Base-point rates, system of, in Southeast, has undergone such radical changes as to no longer exist as a rate-making method of any extent 11 "Base-point" system of rates consisting of fixed rate to given point to which is added for other local points the amount of the local rate, or a properly adjusted percentage factor, is not discrimination in violation of the Act to Regulate Commerce 8 Business conditions, commercial and economic conditions cannot be made basis of unjust discrimination 45 Business conditions, competitive cities are entitled to retain such particular rates as they have by reason of their industry and thrift 45 Business conditions, fact that city is prosperous does not deprive it of right to have rates that are not unduly discriminatory. 45 (Carrier fostering industries on its own line 6 Car service, differences in 20 Cars, undue discrimination for carrier to refuse to furnish cars suitable for transportation of certain commodities while fur- nishing cars for the shipment of similar commodities 153 Cartage, free, when not unlawful discrimination for competitive reasons 20 Circuitous line, competition with direct line, where rate from intermediate point is reasonable, will Justify circuitous line in seeking relief from fourth section 81 Circuitous routes, it is possible that other elements than distance should be considered 51 Circuitous routes, ordinarily a line or route is, if it exceeds the direct line in mileage by not less than 15 per cent 51 Classification, arbitrary, of goods, which discriminate as to use of packages or cases of certain kind or size, is unlawful 153 w^r INTERSTATE COMMERCE LAW 499 Paffe Classification, duty of common carriers to so classify traffic and fix charges thereon that burden of transportation is reasonably and justly distributed ". 131 Coal and Coke Rates in Southeast 96 Commercial value, requirement of statute that all rates shall be reasonable and just implies such adjustment of rates that producers of traffic as well as carriers may carry on their pursuits successfully 152 Commissary car, discrimination in operation of 155 Commodities, between 127 Commodities, between, account mode of shipments 151 Commodities, between, third section of Act to Regulate Commerce not only applies to relative rates on one description of traffic, but also to relative rates on differently described articles which are competitive in the same market 128 Commodities, competition between 130 131 Commodity rates, arising from railroad competition are recognized as elements requiring permissive relief from amended fourth section 81 Common carrier may not lawfully discriminate in favor of any person, product or locality 6 Competition, actual, is necessary in order to produce undue dis- crimination, but must not violate requirement of Section 1 of ,the Act to Regulate Commerce that rates must be rea- sonable 67 Competition, adjustments of rates to competing markets which give one a practical monopoly over the other or prevent ship- pers on the carriers line from availing themselves of a par- ticular market which they have long been using, are unlawful 73 Competition, between distributing markets does not constitute justification for maintenance of lower rates to a more dis- tant point 57, 76 Competition, carrier has no right in any way to restrict fair com- petition 75 Competition, carrier has no right to force its services on a ship- per or to insist upon carrying his shipment to a certain market 74 Competition, carriers in fixing rates may take into account "only that competition which is genuine and not a pretense" 58 Competition, carriers maintain right to, and frequently do estab- lish and maintain, lower rates than they could be required to publish, to meet competition or other conditions at a par- ticular point 76 Competition, carrier may not so adjust rates that they will pre- vent one community from competing with another or keep the products of one community out of a certain territory.... 7 Competition, charge of undue discrimination can not be predicated merely upon conditions which result from controlling com- petition 57, 63 Competition may create dissimilarity of circumstances and con- ditions 58 Competition, may create dissimilarity of circumstances and con- ditions contemplated in Section 4 of the Act to Regulate Commerce 58 Competition, mere effect of, does not relieve carriers from limita- tions of Section 3 of the Act to Regulate Commerce 67 Competition, must be genuine and not a pretense 58 Competition, neither absence nor presence of, by carriers alone nor extent of its operation measured solely by their financial interests, can be relied upon to adjust rates reasonable and just to all 50 Competition, no general rule can be stated as controlling of the effect of, upon rates 68 Competition, of controlling force cannot be ignored by Commis- sion in determining whether an advantage in rate at a com- petitive point is undue 67 Competition, policy of Congress to encourage 75 Competition, public Interest may properly demand that a carrier shall not avail itself of competitive conditions to produce discrimination 67 Competition, rates are not proved unjustly discriminatory by a mere showing that shipper cannot successfully compete as jobber in a certain territory 56 600 AMERICAN COMMERCE ASSOCIATION Pa«o Competition, short line 82 Competition, summarily stated, only Justification for greater charge for lesser distance is dissimilarity of circumstances and conditions &9 Competition, the matter of meeting, is a question left to the car- riers so long as no undue discrimination results 68 Competition, unlawful to create artificial market conditions 73 Competition, will not legalize rebate or device by which shippers are charged different rates under the same circumstances of transportation, in violation of Section 2 of the Act to Regu- late Commerce • • .• • • , o8 Competitive commodities, foreign and domestic traffic 132 Connecting carriers, Section 3 requires carriers to afford to all connecting carriers through rates and interchange facilities, equally and without discrimination in rates and charges 82 Connecting carriers, since orders against discrimination by car- riers between their connections in the matter of through routes are enforcible without the establishment of through routes by the Commission, the provision that the Commission shall not "require any company, without its consent, to embrace in such routes substantially less than the entire length of its railroad" does not apply to the provisions of Section 3, either expressly or by necessary Implication 82 Delivery, discrimination in track deliveries of carload shipments of hay • • • 152 Demurrage charges, applicable to private and line cars 20 Distance, always a factor to be taken into consideration in de- termining either the reasonableness of a rate by Itself or in considering Its relation to other rates 67 Distance, may not be disregarded by carriers, nor natural advantages, for purpose of bringing about commercial equal- ity 41 Divisions, fact that disparity between divisions of through rates and local rates between same points is considerable, is not conclusive evidence of undue discrimination 120 Divisions, local rates can not be measure of division of through rate 121 Divisions, local rates in excess of divisions of joint rates between same points 120 Divisions, not necessarily undue discrimination if carrier accepts as proportion of through rates less than it charges for a like local service 121 Divisions, of through rates furnish no fair or just criterion to measure intermediate local rates on same lines 121 Equalization of rates, when rates are attacked as unduly pre- judicial and equalization of rates is requested, it should be shown that transportation conditions in localities compared are substantially similar 57 Express service, duty of Commission to go no further in destruc- tion or disturbance of business of carrier, or In depriving pub- lic of conveniences and facilities, than necessary to remove unjust discrimination 122 Express services, rates and practices of should neither rest upon the foundation of a railroad's preference nor of an express company's opportunity 122 Express service, refusal of express company to extend C. O. D. service to shipments of liquor 155 Express service, right of express company to maintain free pick- up and delivery service at one point, while not maintaining such service at another point, must necessarily be controlled by the conditions at each place 122 Facilities, in 394 Foreign and domestic trafHc, between 133, 134 Foreign and domestic trafllc, carrier by transporting export traffic to a port makes itself a common carrier as to that point and assumes obligation to transport domestic traffic as well 134 Foreign and domestic traffic, carriers may not compete for and handle foreign business and refuse to handle domestic traffic 134 Foreign and domestic traffic, lower rates on Imports than on domestic traffic not necessarily unjust discrimination 136 Forelgil and domestic traffic, not violation of Act to Regulate Commerce to make lower rate on foreign traffic 134 Geographical advantages or disadvantages. Commission does INTERSTATE COMMERCE LAW 501 Page not, by a fixing- of rates, attempt to overcome, and to pro- duce equality between competitors in all markets 128 Geographical advantag-es or disadvantages, competitive cities are entitled to retain such particular rates as they have by rea- son of their geographical location 45 Geographical advantages or disadvantages, distance may not be disregarded by carriers, nor natural advantages for purpose of bringing commercial equality 41 Geographical advantages or disadvantages, each point must be given the benefit of its location 40 Geographical advantages or disadvantages, fact that town has Deen recognized as trade center, and enabled by its more favorable rate adjustment to distribute in a certain territory, cannot justify the conditions of relative rates which result in undue preference 42, 45 Geographical advantages or disadvantages, failure by carrier to overcome natural disadvantages is not undue prejudice. . .40, 43 Geographical advantages or disadvantages, manufacturing In- dustries should not be deprived of advantages of location in respect to cost of raw material supplied from a common source, or of distances to common market 41 Geographical advantages or disadvantages, natural advantages of location cannot deprive shippers of right to reasonable rates, independent of all other considerations 40 Geographical advantages or disadvantages, relation of San Pedro to Los Angeles 124 Group rates, a carrier cannot lawfully group its mines with respect to rates so as to unduly discriminate against any locality • • •. • • 16 Group rates, carriers not required by law to equalize natural dis- advantages 16 Group rates, carrier is under strong obligation in constructing, to cause as little discrimination as possible 18 Group rates, carrier should not force upon shippers in one locality, while preferring some in the same locality with rates on raw material 15 Group rates. Commission will not approve blanket rates which impose unreasonable or unjustly discriminatory burdens upon any points in the group —■■.••; Group rates, construction by carrier of system of, is not sufficient to justify unreasonable charges 17 Group rates, duty imposed by law is to give equal treatment to all shippers who are in a position to demand it and this includes the right to reach competitive markets on equal terms • ••• ■ 1" Group rates, however logical may be the geographical boundary of a group, discriminatory rates must not be given to any point 15 Group rates, in all groups, there must of necessity be a more or less prominent "Rate Hump" between the nearest and the most distant points in the group .•■,•.■• 1^ Group rates, it is a well established rule that undue prejudice or preference does not exist as between shippers unless the same carrier serves them and participates in their traffic, and the transportation conditions are shown to be similar.. 17 Group rates, not unlawful merely because of differences in the geographical location of different producers and their respec- tive distances from the market • • 1 ' Group rates, position of points, just within or without the zone line cannot be disregarded when question of through rates to the latter points is to be determined for discrimination. . 14 Group rates, relative situation of contiguous points may not be wholly disregarded in rate making, without incurring risk of unjust discrimination .• ■ " V " I ' * * V Group rates, result in a certain amount of discrimination, but sucn rates are not for this reason alone necessarily unlawful...... 18 Group rates, system of blanket rates from producing section under certain conditions is fair and just, as such, but the burden is on the carrier to provide rates that shall be reasonable from any point of origin • L' " " ji' " Group rates system of. is never free from Inequality when dls- t3,iiC6 3/lonG is considcrGcl ■•....• .••■ -i^t -lo Group rates, where transportation conditions are similar, com- 502 AMERICAN COMMERCE ASSOCIATION Page] petitivft shippers In the same general territory should be similarly grouped with regard to rates 15 Inducing, joint liability for damages for 8B2^ Inducing, penalty for ,••••,-, ,-,• • V ',• xV ' '**! Joint rates, for through service should generally be less than f sum of the locals 120^ "Lateral allowances," which were in fact reductions below the , published rates, have been condemned as unlawful 402 Lighterage allowance 201 Live stoclc, not unlawful, within meaning of the Act, to impose upon shipments of live stock a terminal charge, while no similar charge is assessed upon "dead" freight 127j Localities, all wrongful discriminations between, are not con- fined to violations of the fourth section of the Act to Regu- late Commerce 20 Localities, between ,•:•' •^•- 1,- •'•:•:' \" •^- •^\^9' ^^' Localities, between. Sections 3 and 4 of the Act to Regulate Commerce bear essential relationship In giving certainty to the statute's Intent not to prohibit all differences between localities, but only such as are undue and unreasonable 39] Localities, carrier may not voluntarily disregard comparatively similar differences in distances, where to do so will result in unjust discrimination between cities 45 J Localities, commission has never recognized right of carrier to fix rates on higher level than they would otherwise be to pre- vent one community from competing vHth another 40 j Localities, common carrier may not lawfully discriminate In favor j of any person, product or locality o; Localities, dealer in smaller towns is entitled to reasonable rates which will enable him to compete on equitable basis with dealer at trade centers enjoying the benefit of competitive FEltCS ^* ' Localities, discriminations in privileges, services and facilities between, come within the inhibition of Section 3 of the Act to Regulate Commerce 213 Localities, effect of competition 55] Localities, effect of merger of two communities into one municipality 124 Localities, fact that town has been recognized as trade center and enabled by favorable rate adjustment to distribute in certain territory cannot justify continuance of relative rates which result in undue preference 1231 Localities, fostering carrier's own territory 45 j Localities, if two carriers serve same destination from two dif- ferent points of origin, neither can be held to discriminate against such destinations because it sees fit to reduce a rate lower than is inherently reasonable 55] Localities, it is often necessary, on account of competitive condi- tions, to recognize the justness of charging more for a serv- ice at one point than for the same or lilte service at another. 55.i Localities, it is undue and unreasonable preference or advantage between, that is forbidden by Section 3 of the Act to Regu- Ictt© CommGrc© ..•• .•• 3"b Localities, railway competition may, although not necessarily, I justify a preference to a particular locality 561 Localities, rates presumptively reasonable in themselves, may discriminate between various destinations because of com- petltlve conditions :•■••.•' ""I Localities, size or importance of town or city no justification for I discrimination or preference 1"»1 Localities, the law contemplates relatively fair rates as j between ^2, 1231 Localities, the unjust discrimination may or may not be present in the granting of certain privileges or services at one point and not at another ,• : • * ■ Localities, when question of freight rates enters into competition between, in any respect whatsoever, whether that competition is one for trade, factories or people complaints alleging unjust discrimination will be entertained by the commls- slon .•;--'*9> 57. «4| Localities, when rates are attacked as unduly prejudicial and an equalization of rates Is requested, it should be shown that i INTERSTATE COMMERCE LAW 503 T&ge transportation conditions in localities compared are substanti- ally similar 57 Long and short hauls, carrier may not on own motion deviate from provisions of Section 4 48 Long and short haul, Commission not justified in permitting the establishment or continuanc* of a rate unreasonable under the first section or unduly discriminatory under the third or fourth section of the Act to Regulate Commerce 48 Long and short haul. Interstate Commerce Commission, since amendment of Section 4 of the Act to Regulate Commerce in 1910, has had discretionary power to permit under justifying circumstances departures from the strict letter of the fourth section 50 Long and short hauls, under the new fourth section of the Act to Regulate Commerce carrier must first have a determination by the Commission upon its merits before deviating from the long and short haul provisions of the law 48 Long and short haul, where carriers short-haul their respective lines in favor of each other, they cannot refuse to inter- change with another carrier solely on the ground that they would thereby short-haul their own lines 83 Long established rates, Commission has ruled it cannot see justifi- cation for increasing rates which have long been established, and not claimed to be unremunerative, simply to remove dis- crimination caused by advancing rates at competitive points. 57 Market competition, charge of undue discrimination cannot be predicated merely upon conditions which result from control- ling competition 57 Market competition, competition between distributing markets does not constitute a justification for maintenance of lower rates to a more distant point than to an intermediate point. . 57 Market competition, effect of, in compelling low through rates to distant markets ■,• • • i "* Market competition, effect of, is a broad one and not susceptible of infiexible regulation »« Market competition, is comprehensive of every form of competi- tion except only bona fide railroad competition 63 Milling-in-transit rate, carrier should not charge higher, at a point discriminated against than contemporaneously charged at a favored point ^ • • • • °" Milling-in-transit, inability of shipper to enjoy, because of un- favorable location, held not to be an unjust discrimination... 43 Oil shipments, discrimination against shippers of oil in barrels.. 154 Ownership, carrier cannot make ownership of goods the measure of the rate 147, 148, 149 Ownership, carrier cannot make rates conditioned upon 154 Ownership, litigation of, question in the courts of England 150 Party rates. Supreme Court held that granting of party rates was not prohibited by provisions of Section 2 140 Passenger and freight traffic distinction between, by Supreme Court • ••• 140 Persons, between, mere competition will not legalize a rebate or device by which carriers may charge different rates to differ- ent shippers .•••••: ••!••• • °° Persons, common carrier may not lawfully discriminate in favor of any person, product or locality 6 Privileges, when it appears that favored point secures advantages over complaining cities by reason of a privilege not com- pelled by competition, there being no dissimilarity of con- ditions, a showing of the rate situation is as convincing a showing of a violation of Section 3 as it is generally prac- ticable to make ■ :• •!•••• 4^ Products, common carrier may not lawfully discriminate in favor of any person, product or locality • • * Public interests, it is the spirit of the law, and the public good requires, that transportation interests are not alone to be considered V • 'i Quantity of traflic, and discrimination in rates between carload and less than carload quantities must have reference to cir- cumstances relating to carriage and not to the person of the shipper, and degree of discrimination must be reasonably in proportion to difference in cost of service 144 504 AMERICAN COMMERCE ASSOCIATION Page Quantity of traffic, cargo or trainload differentials have been con- demned by the Commission as unlawfully discriminatory.. 142 Quantity of traffic, classification of freights designating- different classes for carload quantities and for less than carload quan- tities, at lower rate on the carloads, not in violation of Act to Regulate Commerce 139 Quantity of traffic, Commission has always recognized propriety of carload ratings 145 Quantity of traffic. Commission has often recognized principle that reasonable, fair and just difference may be made in propor- tion of quantity hauled of same article in carload and less than carload lots 142 Quantity of traffic. Commission has ordered mixed carload rates to prevent discrimination between similar commodities 144 Quantity of traffic. Commission hesitates to order mixed carload rates because of few shippers who can take advantage thereof. 144 Quantity of traffic, consolidated carloads of less than carload ship- ments 147 Quantity of traffic, difference in carload and less than carload rates is proper but should not be unreasonable 143 Quantity of traffic, discount based on size of annual shipments not to be tolerated upon wholesale principle 144 Quantity of traffic, early holdings of Commission that wholesale principle in freight rates was contrary to the rule of equality 143 Quantity of traffic, extent to which wholesale principle is recog- nized 139, 140 Quantity of traffic, lower rates for trainload quantities than for carloads condemned 142 Quantity of traffic, mere quantity of tonnage, unmeasured by any recognized unit of quantity adapted to carriage, and lessening the expense of transportation, not a proper basis for difference in rates 143 Quantity of traffic, only legal discrimination can be made between large and small shipments based upon difference in cost of service 138 Quantity of traffic, result of wholesale principle carried to any extreme beyond the single carload unit would be to build up overwhelming monopolies among large shippers to the exclu- sion of equal opportunity for smaller single carload shippers to compete with them 145 Quantity of traffic, there is always tendency on the part of the carrier to favor the large shippers at the expense of small ones 143 Quantity of traffic, undue preference where carrier refuses to es- tablish carload rates or mixed carload rates, on certain com- modities while allowing such rates to other articles of the same traffic class 152 Quantity of traffic, when difference in cost of service between diff- erent quantities of traffic is eliminated, the reason for the discrimination fails 138 Quantity of traffic, where no carload rate exists. Commission hesi- tates to order one, because of benefit to larger and disadvan- tage to smaller shipper 144 Quantity of traffic, wholesale principle has been tenaciously advo- cated by large shippers 141 Quantity of traffic, wholesale principle in fixing lower rates to carload shippers recognized by courts 143 Quantity of traffic, wholesale principle not to be used above carload quantities 147 Quantity of traffic, wholesale principle, to limited extent, is recog- nized in railroad rate-making in the establishment of ratings and rates 144 Railroad competition, all, may not Justify a deviation from the fourth section 81 Railroad competition, is but another form of the effect of meeting the rates of the short line 81 Railway competition, may, although not necessarily, Justify a preference to a particular locality 56 Railroad competition, may justify differences in rates 75 Railroad competition, special commodity rates, as form of 80 Rates conditioned upon, are 156 Rates, it is not mere disparity in. that law forbids 39 Regulation, several notable decisions have been handed down by INTERSTATE COMMERCE LAW 505 Page the Interstate Commerce Commission involving discrimina- tion between state and interstate rates 22 Regulation, unjust discriminations are sometimes created by con- flict between national and state regulating systems 21 Relative rates, for transportation of strictly competitive articles over same line should be determined by reference to respective costs of service 128, 129 Relative rates, relation of rates are to rest upon fixed and stable conditions 128 Restricted traffic, carriers claim it is good business policy to give to industries on a railroad line a practical monopoly of traffic on such line 75 Restricted traffic, unlawful for carrier to restrict traffic to move to points on its own line 74 Section 3, prohibition of, is directed against unjust discrimination arising from the voluntary and wrongful act of the carrier. . 39 Section 4, Congress has allowed the Commission to pass upon the economic justice of the necessary differentiation in rates in cases of justifiable exceptions to the general rule 6 Section 4, judicial construction of new 3 Section 4 of the Act to Regulate Commerce prohibits but one specific form of discrimination 20 Section 4, under the new fourth section of the Act to Regulate Commerce carrier must first have a determination by the Com- mission upon its merits before deviating from the long and short haul provisions of the law 48 Southeastern basing point rates. Fourth Section violations in the Southeast 9 Southeastern basing point system. Commission has many times investigated alleged discriminatory rate relationships in 9 Special service, higher rate for, should bear just relation to service of the traffic and is not wholly in the discretion of the carrier. 151 State rates, in conflict with interstate rates 22 Telegraph, telephone and cable messages, in classification of and service 157, 15S Through and local traffic 132 Through routes and joint rates, carrier has no right by refusing, to dictate what market or which shippers on its line must purchase or industries to sell or in any other way to restrict fair competition 75 Through and local traffic, difference lies largely in cost of service. 132 Through and local traffic, held not of like kind under substan- tially similar circumstances and conditions contemplated by Section 2 of the Act to Regulate Commerce 133 Tracks 20 Traffic, carrier is not justified in restricting movement to its own line 7 Trafiic, "like kinds of," discriminations between 127 Traflfic, "like kinds of" does not mean identical articles 130 Traflic, "like kinds of," foreign and domestic traffic held not to be 136, 137 Transit privileges, discrimination between manufactured products 131 Use of commodity, carrier may not dictate 127 Use of commodity, carriers may not make rates conditioned upon, or dictate the 154 Use of commodity, different rates on like commodities according to the "business motive" of the shipper are unlawful discrim- inations in violation of Section 2 of the Act to Regulate Com- merce 156 Water competition, Commission has many times held that discrim- ination may be justified by 95 "Water competition, Commission recognizes in legitimate, necessity for deviating in competitive rail rates from the prohibition of Section 4 as amended 86 Water competition, discrimination must not exceed the real effects of 95 Water competition, effect of upon railroad rates is both direct and potential 86 Water competition, historical review of influences of, on trans- continental rate structures 108 Water competition, it is for the carriers to determine whether or not it will meet 96 Water competition, the intermountain rate cases were crucial 506 AMERICAN COMMERCE ASSOCIATION Page cases within the purview of the prohibition of Section 4 of the Act to Regulate Commerce 87 Water competition, the most substantial and probably controlling ground for relief from the prohibition of the amended fourth section is 86 Water competition, the Spokane case 87 Water competition, to remove undue discrimination the Interstate Commerce Commission divided the country into five trans- continental rate zones 87 Water competition, where carrier has made lower rate to meet water competition, it is not estopped from thereafter increas- ing the rate, provided the new rate is just and nondiscrimina- tory and the requirements of Section 4 of the Act to Regulate Commerce are observed -j- " DISCOUNT (see DISCRIMINATION— QUANTITY OF TRAFFIC). DISTANCE (see DISCRIMINATION— DISTANCE; DISCRIMINA- TION—LOCALITIES : DISCRIMINATION— GEOGRAPHICAL ADVANTAGES OR DISADVANTAGES). DISTRICT ATTORNEYS. ' ^,- Duty of, to prosecute for recovery of forfeitures 411 To prosecute under direction of Attorney General all necessary proceedings for the enforcement of the provisions of the Act to Regulate Commerce 365 DIVISIONS (see DISCRIMINATION— DIVISION). When carriers fail to agree on division of joint rate, Interstate Commerce Commission may prescribe proportion of such rate to be received by each carrier 382 DOMESTIC TRAFFIC (see DISCRIMINATION— COMPETITIVE COMMODITIES). EARNINGS. . ^ ^ . ,ci Pooling of freights and division of, for business loi ELECTION (see "ELECTION OF TRIBUNAL"). "ELECTION OF TRIBUNAL." Right of, by injured persons 231, 232 EIKINS AC?T Equity jurisdiction in cases brought on behalf of Interstate Com- merce Commission expressly conferred by Elkins Act 226 Removed from Act to Regulate Commerce, all penalties of im- prisonment, providing for the imposition of fines in lieu thereof 350 Supplements Section 6 of Act to Regulate Commerce 193 EQUITY (see COURTS; JURISDICTION). Jurisdiction in, under the Act to Regulate Commerce 249 EUROPEAN WAR. . . ^ ^^ „ Beginning of, almost coincident with opening of the Panama Canal ^"2 EVIDENCE (see "courts;' DEPOSITIONS; DISCRIMINATION; PRIVILEGES — INTERSTATE COMMERCE COMMISSION; RIGHT OF ACTION; WITNESSES). Award of, by Interstate Commerce Commission, statutory provi- sion empowering Commission to award damages is merely a rule of evidence 294 Commission may employ special examiners to receive evidence... 443 Evidentiary value of findings of Interstate Commerce Commission, pg^ArgY^c© SGCtion •• ••...... •......•. *> * o Existing laws as to attendance of witnesses and production of evidence applicable in provisions under Act to Regulate Com- mcrcG Findings of fact of Interstate Commerce Commission prima facie evidence in reparation cases • 409 Interstate Commerce Commission may require testimony and documentary j ■ A" ■ j' • Published reports of Interstate Commerce Commission and Its de- cisions competent as >,"■•• Schedules, contracts and annual reports filed with Interstate Com- merce Commission are public records, receivable as prima facie evidence: certified copies or extracts therefrom also prima facie evidence *^^ EXAMINERS. , _,^ .., Commission may employ special examiners to receive evidence... 4*^ Punishment of special examiner who divulges information without authority **' INTERSTATE COMMERCE LAW 507 Page EXPORTS (see DISCRIMINATION— COMPETITIVE COMMODITIES; DISCRIMINATION— FOREIGN AND DOMESTIC TRAFFIC). EXPRESS CARRIERS. Commission regrards tiiese great forwarding companies as agencies created by the railroads and recognized by law for the conduct of a certain kind of freight business, to which these agencies have added a service that is distinctive and peculiarly their own 122 Subject to the Act to Regulate Commerce 121 EXPRESS SERVICE (see DISCRIMINATION — EXPRESS SERVICE; EXPRESS CARRIERS). FACILITIES (see WHARF FACILITIES). Track and terminal 20 \VHARFAGE RIGHTS 20 FALL RIVER. Express service at 123 FALSE BILLING (see BILLING). By carrier, prohibited by Section 10 of Act to Regulate Com- merce; penalty for 348 By shipper, prohibited by Section 10 of Act to Regulate Commerce; penalty for 348 FEES (see ATTORNEY'S FEES). Of witnesses and magistrates 367 PINES (see PENALTIES). F. O. B. SHIPMENTS (see DAMAGES). FOREIGN COUNTRIES (see TARIFFS— PRINTING AND POSTING). FOREIGN TRAFFIC (see DISCRIMINATION— COMPETITIVE COM- MODITIES). FORFEITURE. Duty of district attorneys to prosecute for recovery of 411 In proceedings for recovery of forfeitures, costs and expenses to be paid out of appropriation for court expenses 411 Payable into the Treasury of the United States and recoverable in civil suit 411 Punishment by, for refusal to obey order of Interstate Commerce Commission under Section 15 411 Recovery of, for failure to file carriers' periodical or special report within time fixed bv Commission 441 FOURTH SECTION (see SECTION 4). Interstate Commerce Commission, since amendment of Section 4 of Act to Regulate Commerce in 1910, has had discretionary power to permit under justifying circumstances departures from the strict letter of the Fourth Section 50 Violations in the Southeast • • » "FORWARDERS" (see DISCRIMINATION— QUANTITY OF TRAF- FIC). FORWARDING COMPANIES (see EXPRESS CARRIERS). FRANKS (see FREE TRANSPORTATION). FREE TRANSPORTATION. Amount of free baggage 480 Joint interchangeable 5,000-mile tickets /•;,;•; '*^" Joint interchangeable mileage tickets, rates to be published, filed and observed 480 Mileage excursion or commutation pas.senger tickets 480 Passes and free transportation to officers and employees of rail- road companies • 480 Persons and property that may be carried free or at reduced rates 479 Provisions of Act to Regulate Commerce are in addition to rem- edies existing at common law; pending litigation not affected by act 480 The Party Rate Case, purpose of Section 22 of Act to Regulate Commerce • 482 GEOGRAPHICAL ADVANTAGES OR DISADVANTAGES. Advantages of location such as proximity to navigable stream or strong competition between carriers, naturally result in lower r^tcs • ..••••• ..•»• .•••.«• 4^ GRAND TRUNK RAILWAY COMPANY OF CANADA. Ownership of Canada, Atlantic Transit Company 176 GROUP RATES (see RATES). HEARINGS. Commission mav employ special examiners to receive evidence... 443 HOGS (see LIVE STOCK). 508 AMERICAN COMMERCE ASSOCIATION Page IMMIGRANT CASE 164 IMMIGRANT TRAFFIC (see POOLING). IMMUNITY. Claim that testimony or evidence before Commission will tend to criminate will not excuse witness 366 IMMUNITY OF WITNESSES. Officers of defendant carrier may be compelled to testify, but shall receive immunity 231 IMPORT RATE CASE 132, 136 IMPORTS (see DISCRIMINATION — COMPETITIVE COMMODITIES; DISCRIMINATION — FOREIGN AND DOMESTIC TRAFFIC). IMPRISONMENT (see PENALTIES). INDUSTRIES. Discrimination by carrier fostering industries on its line 6 INFORMATION. Act to Regulate Commerce shall not be construed to prevent giving of information relative to shipments in response to legal process 385 Unlawful to give or receive, relative to shipments 385 INTERCHANGE. Commission may determine terms and conditions of construction and operation of physical connection between rail lines and dock of 190 Physical connection between rail lines and dock of water carriers 190 INTEREST (see DAMAGES). INTERMOUNTAIN RATE CASES 3,87, 91 Commerce Court enjoined Commission's orders in 91 Interpretation of Section 4 of Act to Regulate Commerce as amended 91 Jurisdiction of the Courts over the orders of the Commission in 91 93 Supreme Court of the United States in ' *. . .' 91 Validity of Interstate Commerce Commission's orders in 91 "WTiite, Chief Justice, opinion in 91 INTERNATIONAL COAL MINING CASE 218 INTERSTATE COMMERCE COMMISSION (see ACCOUNTS; REC- ORDS; REPORTS; WATER TRANSPORTATION). Accounting systems prescribed by Commission 455 Act to Regulate Commerce shall not be construed to prevent giving of information relative to shipments in response to legal process 385 Annual report of, to Congress 377, 479 Application for rehearing shall not operate as stay of proceedings unless .so ordered by 423 As vested in Interstate Commerce Commission extension of au- thority over the water routes plying via the canal 119 Authority to allow ownership of certain vessel lines by railroads. 162 Burden of proof on carrier as to reasonableness of increased rates 383 Carriers must designate agents in Washington for purpose of service 487 Carriers, their agents and employees must comply with orders of. 410 Commission may determine terms and conditions of construction and operation of physical connection between rail lines and dock of 190 Complainant's interests immaterial 372 Complaints to, how and by whom made; how served 3'71 Courts cannot primarily interfere with or invade the administra- tive functions vested in the Interstate Commerce Commission 235 Decisions and reports of — reference section 378 Depositions 366 Discretionary power, has been invested with, practically un- limited 4 District attorneys to prosecute under direction of Attorney Gen- eral 365 Empowered to establish physical connection between rail lines and dock of water carriers 190 Enforcement of orders under authority of Section 6 of Act to Regulate Commerce 191 Enlarged jurisdiction, over water carriers 207 Enumeration of powers in Section 15 of Act to Regulate Com- merce not exclusive 386 INTERSTATE COMMERCE LAW 509 Page Evidentiary value of findings of Commission, reference section.. 378 Functions and organization of, cross reference section 362 Has jurisdiction over rail and water traffic in certain particulars. . 189 If Commission is of opinion that existing specified service by water other than through the Panama Canal is being operated in interest of the public, of advantage to the convenience and commerce of the people, and that extension will neither ex- clude, prevent or reduce competition on the route by water the Commission is empowered to extend the time of such service by water beyond July 1, 1914 119 Interstate Commerce Commission is empowered to inquire Into operation of vessel by railroad or other carrier 119 Investigation of new schedules 382 Limitation on power to prescribe through routes 384 May determine and prescribe just and reasonable rates to be observed as maximum for the future 381 May determine and prescribe just and reasonable regulations or practices 381 May determine its own procedure 427 May determine reasonable maximum to be paid for service ren- dered or instrumentality furnished by owner of property transported 386 May determine whether privileges, services and facilities are proper, or whether under the circumstances of each case, they constitute unjust discrimination or undue preference 21 May employ attorneys 411 May establish through routes and joint rates and classifications. . 383 May extend suspension 383 May grant rehearings 422 May issue orders in investigations begun on its own motion 372 May make award of reparation before future rate is prescribed.. 418 May, on rehearing, reverse, change or modify order 423 May order carriers to cease and desist from violations found 381 May order testimony to be taken by depositions 366 May prescribe form of accounts, records, memoranda, and have access thereto 441 May prosecute inquiries by one or more of its members in any part of the United States 429 May require testimony and documentary evidence 365 May suspend new schedules 383 Method of appointment and terms of commissionment 361 Most important power conferred on Interstate Commerce Com- mission by amended 15th Section is authority to fix maximum rates for the future 389 Must report, stating its conclusions and order 377 Nature of, under its enlarged powers and relation of Section 15 to entire Act to Regulate Commerce 403 Number of members or commissioners 362 Official seal 427 Order, may suspend or modify its 410 Orders of, effective as prescribed, but in not less than 30 days... 381 Orders of, in force not exceeding 2 years, unless suspended or set aside by Commission or court 382 Order of, service 410 Orders under authority of Panama Canal Act to be final 162 Panama Canal Act, Commission to determine as to competition... 162 Parties to proceedings before, may appear in person or by attorneys 427 Power to suspend proposed increased rates, vested in 398 Power of, to award general damages, reference section 422 Power of, to award reparation 414 Principal office at Washington, D. C. 428 Punishment by forfeiture for refusal to obey order of, under Section 15 411 Qualification of commissioners 362 Recontinuance of railroad ownership, control or operation of water lines in annual report for 1916 177 Reports and decisions to be published and be competent as evi- dence 377 Reports by carriers subject to the Act 448 Reports must be entered of record; service of copies on parties. . . 377 Requirements of, may be modified by Interstate Commerce Com- mission 205 510 AMERICAN COMMERCE ASSOCIATION Page Salaries of Commissioners 362 Schedules, contracts and annual reports filed with Interstate Com- merce Commission are public records, receivable as prima facde evidence; certified copies or extracts therefrom also prima facie evidence 412 Section 15 makes of, a special expert body created for the purpose of dealing with the rates and of practices of carriers affecting rates 403 Sessions of 428 Shippers may designate routing 384 Subpoenas, service by 266, 367 Taking effect and duration of orders of 405 Terms of Commissioners 362 To determine authority as to competition under Panama Canal Act 178 To execute and enforce provisions of Act to Regulate Commerce.. 365 To have discretion as to manner of investigation 3 71 To inquire into business of carriers and keep itself informed in regard thereto 365 Unlawful to give or receive information relative to shipments. .. 385 Under Panama Canal Act rates of certain water carriers to be filed with 162 When carriers fail to agree on divisions of joint rate, may prescribe proportion of such rates to be received by each carrier 382 When witness is in a foreign country 367 Witness fees 428 INVESTIGATIONS (see COMPLAINTS; INTERSTATE COMMERCE COMMISSION). IRON ARTICLES (see COMPETITIVE COMMODITIES). JOINT INTERCHANGEABLE MILEAGE TICKETS. Act to Regulate Commerce does not prohibit issuance of Joint interchangeable 5,000 mile tickets, with special privilege as to amount of free baggage 480 JOINT RATES (see DISCRIMINATION— DIVISIONS; DISCRIMINA- TION — JOINT RATES; DIVISION). Act to Regulate Commerce recognizes right of carriers to agrree upon and provide for the publication of joint through tariff rates 166 Section 5 of Act to Regulate Commerce does not make it unlawful for initial carrier to enter into agreement for joint through rates 165 JUDICIAL CONSTRUCTION. Of new 4th Section 3 JURISDICTION. And equity under Act to Regulate Commerce 249 Cannot primarily interfere with or invade the administrative functions vested in the Interstate Commerce Commission... 235 Equity, under Act to Regulate Commerce 225 Of Courts over the orders of the Interstate Commerce Commission in the intermountain rate cases 91 Original authority of Interstate Commerce Commission 235 United States Courts have, of suit in equity to enforce compliance with Act to Regulate Commerce 225 LAKE LINES (see WATER TRANSPORTATION). LAKE LINES DIVORCE 176, 179, 180 "LATERAL ALLOWANCES" (see DISCRIMINATION). Which were in fact reductions below the published rates, have been condemned as unlawful discrimination 402 LAWFUL RATES. Distinction between legal rates, by publication and lawful rates. . . 197 LEGAL RATES. Distinction between, by publication and lawful rates 197 LIABILITY. Carmack Amendment 463 Certain provisions of Cummins Amendment to apply only to ordinary live stock 444 EJxistlng liabilities not Impaired by passage of Act of June 18, 1910 488 Initial carrier liable for full actual loss 443 Initial carrier liable to holder of bill of lading for any loss 443 INTERSTATE COMMERCE LAW 511 Page Initial carrier may have recourse upon carrier responsible for loss or damage 445 Joint, for damages for inducing discrimination 352 Joint with carrier for damages resulting from inducing common carriers to discriminate unjustly 349 Of carriers, for, damages arising out of violations of Act to Regulate Commerce 287 Of carrier for loss, damage, or injury due to delay, or damage while goods are being loaded or unloaded, or damaged in transit by carelessness or negligence 445 Of common carriers for damages caused by violation of Act to Regulate Commerce 217 Rates dependent upon value 444 Ruling in International Coal Mining Company Case 218 Under provision of Section 8, common carrier is liable to person injured for full amount of damages sustained in consequence of the violation of Act to Regulate Commerce, together with reasonable attorney's fees 220 LIABILITY OF CARRIER. For loss, damage, or injury due to delay, or damage while goods are being loaded or unloaded, or damaged in transit by care- lessness or negligence 445 "LIKE KINDS OF TRAFFIC." Does not mean identical articles 130 LIMITATION (see STATUTE OF LIMITATION). On power of Interstate Commerce Commission to prescribe through routes 384 Orders of Interstate Commerce Commission effective as prescribed but in not less than 30 days 381 LIMITATION OF LIABILITY. Always a factor in railway transportation 4t>.i Certain provisions of Cummins Amendment to Apply only to ordinary live stock 444 Common carriers have ever sought to limit their common law liability, not only as insurers against loss or damage, but also as tort-feasore for loss or damage caused by their negligence. 4 62 Courts in different jurisdictions have differed as to the validity of limitations of liability contained in shipping contracts, bills of lading, tariff publications, etc , 463 Liability for full actual loss not exempted by any contract 443 Notice of claims 464 Rates dependent upon value 444 Time for filing claims under Cummins Amendment 445 Where shipper has his choice of two rates, the higher carrying, unlimited carrier's liability, and in "a fair, just and reasonable agreement" agrees that value of his shipment is a certain sum and thereby secures a reduced transportation rate, he is bound by that declaration and estopped from recovering more than that value 463 With certain exceptions, limitations of liability under Cummins Amendment void •• • • 444 LIQUOR, SHIPMENTS OF (see DISCRIMINATION— EXPRESS SER- VICE). LIVE STOCK (see COMPETITIVE COMMODITIES; CUMMINS AMENDMENT, LIABILITY; LIMITATION OF LIABILITY; DISCRIMINATION — LIVE STOCK). Ordinary, definition of term 445 LOCAL RATES (see DISCRIMINATION— DIVISIONS; DISCRIMINA- TION — JOINT RATES). LOCAL TRAFFIC (see DISCRIMINATION — THROUGH AND LOCAL LONG-AND-SHOR'T-HAUL (see DAMAGES; DISCRIMINATION; DISCRIMINATION— LOCALITIES ; DISCRIM I N A T I O N— LONG AND SHORT HAUL; SECTION 4). Carrier may not so adjust rates that they will prevent one com- munity from competing with another or keep the products of one community out of a certain territory 7 Commission has sanctioned some provisions of the long-and-short- haul provision of Act to Regulate Commerce 6 Intermountain cases, discussed In 3 In particular cases Commission recognizes natural right of carrier to adjust rates on lower basis than otherwise in order to meet competition over other routes 6 512 AMERICAN COMMERCE ASSOCIATION Page Section 4 of the Act to Regrulate Commerce prohibits but one specific form of discrimination 20 LOS ANGELES. Relation to San Pedro 124 LOUISIANA, THROUGH RATES TO POINTS IN 107 LOUISVILLE & NASHVILLE CASE 9 LUCKENBACH STEAMSHIP COMPANY 103 LUMBER (see COMPETITIVE COMMODITIES). MANDAMUS. „„ ^ Remedy given by writ of, in Section 23 of Act to Regulate Com- merce is cumulative 483 United States court may issue mandamus to compel compliance with provisions of Act 442 MANUFACTURE. Manufactured and unmanufactured articles, rates on 20 MANUFACTURED PRODUCTS (see DISCRIMINATION — TRANSIT PRIVILEGES. MARKET COMPETITION (see COMPETITION; DISCRIMINATION — BETWEEN LOCALITIES ; DISCRIMINATION — M A R K E T COMPETITION). Is a term descriptive of all trade competition 63 MAXIMUM RATES. Most important power conferred on Interstate Commerce Com- mission by amended loth Section is authority to fix maximum rates for the future 389 MEMPHIS CASE 22 MILITARY TRAFFIC. Preference and expedition of, time of war 188 MINIMUM -WEIGHT. Carload minimum weight, reasonably adapted to needs of carrier and great majority of shippers, will not be increased because one shipper by expenditure of exceptional eflCort is able to load more heavily than his competitor 147 MISDELIVERY (see DAMAGES). MISQUOTATION OF RATES (see DAMAGES; QUOTATION OF RATES). MISREPRESENTATION (see FALSE BILLING). MISROUTING (see DAMAGES). MISSOURI AND ILLINOIS COAL COMPANY CASE 75 MISSOURI RIVER RATE CASE 13 MIXED CARLOAD RATES (see DISCRIMINATION — QUANTITY OF TRAFFIC). MOLASSES (see BLACK STRAP MOLASSES). NEVADA RAILROAD COMMISSION CASE 103 NEW YORK, NEW HAVEN AND HARTFORD RAILROAD SYSTEM. Ownership of water lines 176 NOTICE (see TARIFFS). Not required as condition precedent to recovery, if loss, damage, or injury is due to delay, or damaged while being loaded or unloaded, or damaged in transit by carelessness or negligence of carrier 445 Time for filing claims under Cummins Amendment 445 OCEAN TRANSPORTATION (see TV^ATER TRANSPORTATION). OFFIC7ERS (see "WITNESSES AND IMMUNITY OF WITNESSES). OGDEN GATEWAY CASE 83 Shipment in barrels and tank cars 20 OIL SHIPMENTS (SEE DISCRIMINATION — SHIPMENTS OF OIL). ORDER. Award of damages by Interstate Commerce Commission 499 Carriers must designate agents in Washington for purposes of service 487 Carriers, their agents and employees must comply with orders of Interstate Commerce Commission 410 Commerce Court to enforce orders of Interstate Commerce Com- mission other than for payment of money 411 Interstate Commerce Commission may issue, in investigations begun on its own motion 372 Interstate- Commerce Commission may, on rehearing, reverse, change or modify 423 Interstate Commerce Commission may suspend or modify its.... 410 Interstate Commerce Commission must report, stating its con- clusion and 377 INTERSTATE COMMERCE LAW 513 Of Interstate Commerce Commission effective as prescribed, but in not less than thirty days 381 Of Interstate Commerce Commission in force not exceeding two years, unless suspended or set aside by commission or coxirt 382 Of Interstate Commerce Commission under authority of Panama Canal Act to be final 162 Of Interstate Commerce Commission which does not state duration thereof, is valid and remains in effect for the two-year period fixed by the statute 405 Punishment by forfeiture for refusal to obey order of Interstate Commerce Commission under Section 15 411 Purpose of Section 16 of Act to Regulate Commerce is to give effect to and enforce orders of Interstate Commerce Com- mission 414 Service of, of Interstate Commerce Commission 410 Taking effect and duration of Interstate Commerce Commission's. . 405 OVERCHARGE (see DAMAGES). Assignment of claims for damages, or 227 Term defined 322 OWNERSHIP (see RAILROADS). Interstate Commerce Commission's authority to allow ownership of certain vessel lines by railroads 162 Railroads not to own competing water carriers 161 PACKAGES (see DISCRIMINATION — CLASSIFICATION). PACKING (see PACKAGES). PACKING HOUSE PRODUCTS (see LIVE STOCK). PANAMA CANAL (see WATER TRANSPORTATION). As vested in Interstate Commerce Commission extension of authority over the water routes plying via the canal 119 Closed to traflac during latter part of year 1915 by reason of slides 103 Opening of, almost coincident with the begini\ing of the European War 102 Through routes and joint rates between rail and water carriers from a port in the United States to a foreign country via Panama Canal 190 Violators of Sherman Act not to use 163 PANAMA CANAL ACT (see WATER TRANSPORTATION). Amendment of Section 5 of Act to Regrulate Commerce 161, 177 Amendment of Section 5 of Act to Regnlate Commerce affecting railroad ownership of competing water carriers 173 Amendment of Section 6 of Act to Regulate Commerce of August 24, 1912 189 As vested in Interstate Commerce Commission extension of, authority over the water routes plying via the canal 11? Commission held that continued operation of certain steamship lines owned by Pennsylvania Railroad Company and plying upon Chesapeake Bay and tributary rivers was in violation of the Act to Regulate Commerce 175 Commission to determine as to competition 178 "Competition" covers all interstate, coastwise, or foreign trafllc. . 179 Competition or possibility of competition referred to, is not a vague, indefinite or remotely possible competition, but some- thing real and substantial 174 Enlarged jurisdiction of Interstate Commerce Commission over water carriers 207 Grand Trunk Railways Company, of Canada, ownership and oper- ation of Canada, Atlantic Transit Company 176 If Commission is of opinion that existing specified service by water other than through the Panama Canal is being oper- ated in interest of the public, of advantage to the conveni- ence and commerce of the people, and that extension will neither exclude, prevent or reduce competition on the route by water, the C^ommission is empowered to extend the time of such service by water beyond July 1, 1914 119 Indicates clear, unmistakable policy, to separate water lines from railroad ownership 178 Interstate Commerce Commission's authority to allow ownership of certain vessel lines by railroads 162 Interstate Commerce Commission is empowered to Inquire Into operation of vessel by railroad or other carrier 119 Interstate Commerce Commission to determine as to competition. . 162 18 — 34 514 AMERICAN COMMERCE ASSOCIATION Page Lake Lines divorce 176, 179, 180 New York, New Haven and Hartford Railroad System, ownership of water lines 176 Orders of Interstate Commerce Commission to be final 162 Railroads not to own competing water carriers 161 Rates of certain water carriers to be filed with. Interstate Com- merce Commission 162 Section 11 of, amended Section 6 of Act to Regulate Commerce. . . . 194 Southern Pacific Company in re operation of steamship company. 177 Violators of Sherman Act not to use Panama Canal 163 PARTIES. Commission has several times said that it will not listen to a party who complains of a grievance which is not his 13 PARTY RATE CASE 140 PARTY RATES 140 PASSES (see FREE TRANSPORTATION). PENALTY. For failure to comply with tariff regulations of Interstate Com- merce Commission 188 For failure to file carrier's annual report with the Interstate Com- merce Commission ,- 440 For false billing by carrier 348 For false billing by shipper 348 For inducing common carriers to discriminate unjustly 349 For misstatement of rates 189 For violation of Act to Regulate Commerce, by carriers, or when carrier is corporation, its officers, agents or employees; fine and imprisonment 347 For violation of provisions of Section 15 relating to allowance for shippers 386 For violation of Section 5 of the Act to Regulate Commerce 161 Provided by Section 10 of Act to Regulate Commerce 350 Provisions of Section 10 of Act to Regulate Commerce apply to any violation of the requirements of the joint interchangeable mileage and free baggage ticket provisions in Section 22 of the Act 481 Punishment by forfeiture for refusal to obey orders of Interstate Commerce Commission under Section 15 411 Punishment of carrier by forfeiture for failure to keep accounts or records as prescribed by Commission or to allow inspec- tion thereof 441 Punishment of person for false entry in accounts or records, or mutiliation of accounts or records, or for keeping other accounts than those prescribed; fine or imprisonment or both 442 Punishment of special examiner who divulges information with- out authority; fine or imprisonment or both 442 PHYSICAL CONNECTION. Commission may determine terms and conditions of construction and operation of physical connection between rail lines and dock of water carrier 190 POOLING (see SECTION 5). "Contract, agreement, or arrangement" for the pooling of freights contemplates agreements for the pooling of traffic 165 Effect of carriers control of routing prior to amendment of 1910. . 169 Freight pools prohibited 163 Immigrant traffic through Atlantic ports was apportioned between carriers in proportion to amount of domestic passenger busi- ness done by each 164 Of freights and division of earnings for business 161 Of freight and earnings of carriers 165, 166, 167, 168 Pooling and rebates were both held to be within prohibitions of the Act to Regulate Commerce and one could not be set up as pre- vention of the other 165 Pooling and routing arrangements effective by carriers in connec- tion with the transportation of citrus fruits from California points 167 • Section 5 of Act to Regulate Commerce contemplates two methods of — physical pool of traffic and money pool 164 Section 5 of Act to Regulate Commerce does not make it unlawful for initial carrier to enter into agreement for joint through rates 165 Southern Pacific case 165 POSTING (see TARIFFS). INTERSTATE COMMERCE LAW 515 Page PRACTICE AND PROCEDURE. Amendments to Act to Regulate Commerce not to affect pending causes in court 487 Application for rehearing shall not operate as stay of proceedings, unless so ordered by Interstate Commerce Commission 423 Award of damages by Interstate Commerce Commission to be enforced by courts 409 Before Interstate Commerce Commission 365, 366, 367 Before the Interstate Commerce Commission, reference section. . 368 Carriers, their agents and employees must comply with orders of Interstate Commerce Commission 410 Claims for reparation based upon decision of Commission filed by complainants not party to the case in which decision was made not ordinarily allowed unless reparation was claimed in case in which decision was made 298 Commerce Court to enforce orders of Interstate Commerce Com- mission other than for payment of money 411 Commission may employ special examiners to receive evidence. . . . 443 complainant's interests immaterial 372 Complaints for the recovery of damages must be filed with the Interstate Commerce Commission within two years from time the cause of action accrues 410 Complaints to Interstate Commerce Commission, how and by whom made; how ser\ed 371 Duty of district attorneys to prosecute for recovery of forfeitures 411 Election of tribunal by injured party under Section 9 of the Act to Regulate Commerce 231, 232 Evidentiary value of findings of Interstate Commerce Commis- sion 378 Existing laws as to attendance of witnesses and production of evidence applicable in provisions under Act to Regulate Commerce 487 Findings of fact of Interstate Commerce Commission prima facie evidence in reparation cases 409 Forfeiture, payable into Treasury of United States and recover- able in civil suit 411 Formal complaint unsupported by expense bills or other evidence, and nothing brought before Commission to prove shipments, or charges collected, will not admit of an award of reparation. . 297 In proceedings for recovery of forfeitures, costs and expenses to be paid out of appropriation for court expenses 411 Interstate Commerce Commission may determine its own pro- cedure 427 Interstate Commerce Commission may employ attorneys 411 Interstate Commerce Commission may grant rehearing 422 Interstate Commerce Commission may issue orders in investiga- tions begun on its own motion 372 Interstate Commerce Commission may make award of repara- tion before future rate is prescribed 418 Interstate Commerce Commission may, on rehearing, reverse, change or modify order 423 Interstate Commerce Commission may prosecute inquiries by one or more of its members in any part of the United States. .. . 429 Interstate Commerce Commission may suspend or modify its order 410 Interstate Commerce Commission must report, stating its conclu- sions and order 377 Interstate Commerce Commission to have discretion as to man- ner of investigation 371 Joint plaintiffs may sue joint defendants in courts on awards of damages 410 Xo award of reparation in formal cases unless prayed therefor in petition 295 OflScers of dependent carrier may be compelled to testify but shall receive immunity -31 Parties to proceedings before Interstate Commerce Commission may appear in person or by attorney 427 Petition for enforcement of order of Commission for payment of money must be filed in Circuit or State Court within one year from date of the order 410 Petitioner's attorney's fees in court proceedings 410 Petitioner, in court proceedings to enforce order of Commission for payment of money, not liable for costs in Circuit Court I 516 AMERICAN COMMERCE ASSOCIATION Pase nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal 410 Provisions of Section 16 of Act to Regulate Commerce, reference section • 422 Punishment by forfeiture for refusal to obey orders of Interstate Commerce Commission under Section 15 411 Remedy given by writ of mandamus in Section 23 of Act to Regu- late Commerce is cumulative 483 Reparation will not ordinarily be awarded in formal case, unless intent to claim is specially disclosed therein, or in an amend- ment thereto, filed before submission of the case 298 Reports and decisions of Interstate Commerce Commission to be published, and be competent as evidence 377 Reports of Interstate Commerce Commission must be entered of record • o 77 Right of action under Section 8 of Act to Regulate Commerce 217 Service of order of Interstate Commerce Commission 410 Service of copies of Interstate Commerce Commission's reports on parties of record 377 Service of protest • • : 410 Sessions of the Interstate Commerce Commission 428 Taking efCect and duration of Interstate Commerce Commission s orders ,• • • % .1 • ^^^ Where Interstate Commerce Commission awards damages, its report shall include the findings of facts on which the award is made 377 "^^itness fees 4^8 PRESUMPTION (see DISCRIMINATION— BETWEEN LOCALITIES). PRIVILEGES (see DISCRIMINATION— LOCALITIES). PROPORTIONAL RATES (see RATES). Burnham, Hanna & Munger Case ruling 11 PROSECUTION (see STATUTE OF LIMITATION). District attorneys to prosecute under direction of Attorney Gen- eral 365 PROTESTS (see SERVICE). PUBLICATION (see TARIFFS). Absence of published rate 204 Carrier presumed to know its own rates 1S8 Distinction between legal rate by, and lawful rate 197 EfCect of, is to fix with certainty legal and only rates 198 Interstate Commerce may not be lawfully transacted by common carriers and shippers unless such carriers first file their schedules, rules and regulations with the Commission 198 Of thpough rates 205, 207 Published rates must be observed 195 Purpose of •,••■•:•,•• Rates should be published in such manner as to apprise ship- pers of their existence and the law presumes the shipper thereafter to know such rate 198 Reports and decisions of Interstate Commerce Commission to be published 377 PUBLIC INTEREST (see DISCRIMINATION— COMPETITION). PUBLIC RECORDS. Schedules, contracts and annual reports filed with Interstate Com- merce Commission are public records, receivable as prima facie evidence; certified copies or extracts therefrom also prima facie evidence .l • • • • ^^^ QUANTITY OF TRAFFIC (see DISCRIMINATION— QUANTITY OF TRAFFIC; TRAFFIC). QUOTATION OF RATES. ,.. Carrier to furnish written statement of rates loS Penalty for misstatement of rates 189 RAIL AND WATER TRANSPORTATION. Commission has jurisdiction over, in certain particulars 189 RiAILROAD COMPETITION (see COMPETITION; DISCRIMINA- TION — BETWEEN LOCALITIES; DISCRIMINATION — RAILROAD COMPETITION). RAILROADS (see THROUGH ROUTES AND JOINT RATES). Amendment of Section 5 of Act to Regulate Commerce by Panama Canal Act aflfecting railroad ownership of competing water carriers 1 ' ^ INTERSTATE COMMERCE LAW 517 Page Commission's authority under Panama Canal Act to allow owner- ship of certain vessel lines by railroads 162 Commission may determine terms and conditions of construc- tion and operation of physical connection between rail lines and dock of water carriers 190 Not to own competing water carriers 161 Physical connection between rail lines and dock of water carriers 190 "RATE" DAMAGES Csee DAMAGES). RATES (see BASE-POINT RATES: DISCRIMINATION; DISCRIM- INATION — DIVISIONS; JOINT RATES; LOCAL. RATES; MAXIMUM RATES). Ab.«;ence of published 204 Carrier to furnish written statement of rates 188 Development of natural resources, increase in population, growth in manufacturing and producing facilities, and increased traffic on railroads create conditions which may warrant changes in rates and readjustments 12 Distinction between legal rates by publication, and lawful rates. . 197 Group rates 14 Group rates, a carrier cannot lawfully group its mines with respect to rates so as to unduly discriminate against any locality 16 Group rates, carriers have followed principle that whenever dis- tances, between certain points constitute relatively small percentages of distances between any of those points and ultimate markets, such originating points should be grouped for rate making purposes 15 Group rates, carrier is under strong obligation in constructing, to cause as little discrimination as possible 18 Group rates, carriers mav lawfully make rates applicable to group points within a defined zone and treat all points in one group for rate basing purposes 14 Group rates, carrier should not force upon shippers in one locality, while preferring some in the same locality with rates on raw material 15 Group rates, commission has consistently refrained from break- ing up, where it did not appear that a grieved party was actually damaged by discrimination resulting from the group rate 14 Group rates, commission will not approve blanket rates which im- pose unreasonable or unjust discriminatory burdens upon any points in the group 15 Group rates, construction by carrier of system of, is not suffi- cient to justify unreasonable charges 17 Group rates, however logical may be the geographical boundary of a group di.scriminatory rates must not be given to any point 15 Group rates, in all groups, there must be of necessity a more or less prominent "Rate Hump" between the nearest and the most distant points in the group 15 Group rates, not unlawful merely because of differences in the geographical location of different producers and their respec- tive distances from the market 17 Group rates, position of points, just within or just without the zone line cajinot be disregarded when question of through rates to the latter points is to be determined for discrimina- tion 14 Group rates, relative situation of contiguous points may not be wholly disregarded in rate making, without incurring risk of unjust discrimination 14 Group rates, result in a certain amount of discrimination, but such rates are not for this reason alone neces.sarily unlawful. . 18 Group rates, system of bi mket rates from producing section under certain conditions is fair and just as such, but the burden is on the carrier to provide rates that shall be reasonable from any point of origin 17 Group rates, system of. is never Iree from inequality when dis- tance alone is considered 14- 18 Group rates, system was early recognized by Interstate Commerce Commission as a proper one 14 Group rates, where transportation conditions are similar; com- 518 AMERICAN COMMERCE ASSOCIATION Page petitive shippers in the same general territory should be simi- larly grouped with regard to rates 15 Of certain water carriers to be filed with Interstate Commerce Commission, under authority of Panama Canal Act 162 Penalty for misstatement of 189 Proportion, to and from ports 190 Publication of through rates 205, 207 Rates on manufactured and unmanufactured articles 20 RATES ON BITUMINOUS COAL, 107 RATE ZONES (see DISCRIMINATION— WATER COMPETITION). RAW MATERIAL, (see DISCRIMINATION— GEOGRAPHICAL AD- VANTAGES OR DISADVANTAGES). RAW MATERIAL RATES — (see RATES — GROUP RATES). REASONABLENESS OP RATES (see DAMAGES). Agreements or combinations, if by, it were found that rates at particular points were unduly influenced by suppression of competition, that fact would be proper to be considered in determining the question of undue discrimination and reason- ableness of rates per se 58 Because one shipper by expenditure of exceptional effort is able to load more heavily than his competitor, Commission will not prescribe lower rate for 100 pounds conditional upon the use of the higher minimum weight as the measure of the carload 147 Burden of proof on carrier as to reasonableness of increased rates 383 Distance, always a factor to be taken into consideration in determining either the reasonableness of a rate by itself or in considering its relation to other rates 67 Group rates, construction by carrier of system of, is not suffi- cient to justify unreasonable charges 17 Interstate Commerce Commission may determine and prescribe, to be observed as maximum for the future 381 Not necessarily unjustly unreasonable, or unjustly discrimina- tory by mere showing that shipper cannot successfully com- pete as a jobber in a certain territory 56 Public interests require that traffic should not be rendered value- less to the producer by reason of the freight charges imposed. 151 Quantity of traffic, difference in carload and less than carload rates is proper but should not be unreasonable 143 Quantity of traffic, mere quantity of tonnage, unmeasured by any recognized unit of quantity adapted to carriage, and lessen- ing the expense of transportation, not a proper basis for dif- ference in rates 143 Regulation of, by Interstate Commerce Commission under author- ity of Section 15 of Act to Regulate Commerce 394 Relative rates, for transportation of strictly competitive articles over same line should be determined by reference to respec- tive costs of service 128, 129 Requirement of statute that all rates shall be reasonable and Just involves consideration of the commercial value of the traffic. 152 Special transportation services warrant higher rate than for carriage of ordinary freight 151 REBATES (see DAMAGES). Mere competition, will not legalize a rebate or device by which carriers may charge different rates to different shippers.... 58 RECORDS (see ACCOUNTS). Amendment of February 25, 1909, to Section 20 of Act to Regu- late Commerce relating to 442 Interstate Commerce Commission may permit destruction of. . . . 442 Punishment of special examiner who divulges information with- out authority 442 United States court may issue mandamus to compel compliance with provisions of Act 442 REGULATION (see DISCRIMINATION— REGULATION). REHEARING (see PRACTICE AND PROCEDURE). Reference section 423 RELATIVE RATES (see DISCRIMINATION — RELATIVE RATES). For transportation of strictly competitive articles over same line should be . determined by reference to respective parts of sGrvicf* 1 2S 129 REMEDY (see PRACrriCE 'aND PRb(i;EbURE)*. INTERSTATE COMMERCE LAW 519 Pasre REMOVAL. Of causes, removal of actions brought in state courts to courts of the United States 445 REPARATION (see DAMAGES). REPORTS (see INTERSTATE COMMERCE COMMISSION). Annual reports of carriers to be filed with Interstate Commerce. Commission by Sept. 30, of each year 440 Annual report of Interstate Commerce Commission to Congress.. 479 By carriers subject to the Act to Regulate Commerce 447 By carriers subject to Act to Regulate Commerce, required by Section 20 » . 448 Interstate Commerce Commission may require annual reports from carriers, and prescribe method of making same 439 Monthly or periodical reports of carriers 440 Oath to annual reports of carriers, how taken 441 Penalty for failure to file carrier's annual report with Interstate Commerce Commission 440 Recovery of forfeiture for failure to file carrier's periodical or special report within time fixed by Commission 441 Time for filing annual reports of carriers may be extended by Interstate Commerce Commission 440 United States Court may issue mandamus to compel compliance with provisions of Act 442 "WTiat reports of carriers shall contain 439 RESTRICTED TRAFFIC (see DISCRIMINATION — RESTRICTED TRAFFIC). RIGHT OF ACTION (see STATUTE OF LIMITATION). Accrues to any person when that person first comes to a right to bring an action 289 Award of damages by Commission prljoia facie proof of right to recover 342 Complaints for recovery of damages must be filed with Inter- state Commerce Commission within two years from the time the cause of action accrues 410 Consignor of F. O. B. shipment cannot recover damages 338 Does not accrue until party owning it is entitled to begin and prosecute an action thereon 289 Failure to make delivery not ground for award of damages by Commission 338 In name of assignee under assignment of claims for damages or overcharges 227 Joint plantiCfs may sue joint defendants in courts on awards of damages 410 Nothing in Section 20 of the Act to Regulate Commerce which deprives any holder of a bill of lading of any remedy or right of action which he has under existing law 445 Officers of defendant carrier may be compelled to testify but shall receive immunity 231 Persons entitled to damages 276 Petition for enforcement of order of Commission for payment of money must be filed in circuit or state court within one year from the date of the order 410 Protest not condition precedent to recovery of damages for unrea- sonable rate 342 Right of election of tribunal by injured party 231, 232 Section 8 of Act to Regulate Commerce gives right of action for damages 217 Test to determine when accrues, is to ascertain time when plaintiff could first have maintained his action to a success- ful result 290 There are two classes of acts which may form the basis of a suit for damages 242 Whatever action the court may take must be consistent with the entire context of the Act to Regulate Commerce 233 When cause of action accrues under Act to Regulate Com- merce ■ 279, 288 ROUTES. Circuitous, 15 per cent rule would hold where the conditions under which all the lines were constructed were substantially the same 61 Circuitous, ordinarily a line or route is. If it exceeds the direct line in mileage by not less than 15 per cent 5X 520 AMERICAN COMMERCE ASSOCIATION ROUTING (see MISROUTING). ^*^® Effect of carriers control of, prior to amendment of 1910 169 Initial and all connecting carriers under express duty of transporting shipment in accordance with shipper's selection and direction of route 39g Right of shipper to select through route 398 Shipper may designate 384 To exercise right of selection, shipper must designate route selected in writing, upon bill of lading 398 SALARIES (see INTERSTATE COMMERCE COMMISSION). SAN PEDRO. Relation to Los Angeles 124 SANTA ROSA CASE 49 SCHEDULE (see TARIFFS). SECTION 1. Commission not justified in permitting the establishment or con- tinuance of a rate unreasonable under the first section or unduly discriminatory under the 3d and 4th section of the Act to Regulate Commerce 48 Requires carriers to establish through routes to interchange cars with connecting carriers 82 Requires that rates must be reasonable 67 SECTION 2. Carriers may not make rates conditioned to apply only to ship- ments of certain consignees or when commodity is put to a particular use 154 Commissary car, operated in violation of 155 Competition, will not legalize rebate or device by which shippers are charged different rates under the same circumstances of transportation, in violation of Section 2 of the Act to Regu- late Commerce 58 Party rates first held by Commission to be in contravention of Sec- tion 2 140 Pro\nsions of, read alike as to passengers and property 140 Relation to Section 22 140 Supreme Court held that granting of party rates was not pro- hibited by provisions of Section 2 140 Through and local traffic, held not of like kind under substantially similar circumstances and conditions contemplated by Section 2 of the Act to Regulate Commerce 133 Use of commodity, different rates on like commodities according to the 'TDusiness motive" of the shipper are unlawful dis- criminations in violation of Section 2 of the Act to Regulate Commerce 156 SECTION 3 (see DISCRI^^NATION— PRIVILEGES). Base point rates, distinction should be drawn between applica- tion of, which may create unlawful discriminations under Section 3 of the Act to Regulate Commerce and applications which result in unlawful discriminations under the pro- visions of Section 4 13 Carriers may not make rates conditioned to apply only to ship- ments of certain consignees or when commodity is put to a particular use 154 Commissary car, operated in violation of 155 Commission not justified in permitting the establishment or con- tinuance of a rate unreasonable under the first section or unduly discriminatorj' under the 3d or 4th section of the Act to Regulate Commerce 48 Commodities, third section of Act to Regulate Commerce not onlv applies to relative rates on one description of traffic, but also to relative rates on differently described articles which are competitive in the same market 128 Competition, mere effect of, does not relieve carriers from llmita- tions of Section 3 of the Act to Regulate Commerce 67 Connecting carriers, Section 3 requires carriers to afford to all connecting carriers through rates and interchange facilities, equally and without discrimination in rates and charges.... 82 Connecting carriers, since orders against discrimination by car- riers between their connections in the matter of through routes are enforcible without the establishment of through routes by the Commission, the provision that the Commission shall not "require any company, withoyt its consent, to em- INTERSTATE COMMERCE LAW 521 Page brace in such routes substantially less than the entire length of its railroad" does not apply to the provisions of Section 3, either expressly or by necessary implication 82 Discriminations between like kinds of traffic 127 Localities, between. Sections 3 and 4 of the Act to Regulate Com- merce bear essential relationship in giving certainty to the statute's intent not to prohibit all differences between locali- ties, but only such as are undue and unreasonable 39 Localities, discriminations in privileges, services and facilities between, come within the Inhibition of Section 3 of the Act to Regulate Commerce 21 Localities, it is undue and unreasonable preference or advantage between that is forbidden by Section 3 of the Act to Regulate Commerce 39 Market competition, while may be considered in determining a violation of Section 3, it is no defense to charge of undue prejudice that is compels low rates at favored points 68 Privileges, when it appears that favored point secures advantages over complaining cities by reason of a privilege not compelled by competition, there being no dissimilarity of conditions, a showing of the rate situation is as convincing a showing of a violation of Section 3 as It is generally practicable to make 43 Prohibition of does not relate to Acts the result of conditions fully beyond the control of the carrier 39 Prohibition of, is directed against unjust discrimination arising from the voluntary and wrongful act of the carrier 39 Relation of Sections 7 and 3 212 SECTION 4 fsee DAMAGES: DISCRIMINATION; LONG-AND- SHORT-HAUL; ROUTES). All railroad competition may not justify a deviation from the fourth section 81 Amendment of 1910 48 Applications relating to commodity rates from points in Illinois, Indiana, Iowa, Michigan, Missouri, and "Wisconsin to Ohio River crossings, pending before Commission 108 Base Point Rates, distinction should be drawn between applica- tion of, which may create unlawful discriminations under Section 3 of the Act to Regulate Commerce and aplications which result in unlawful discriminations under the provisions of Section 4 13 Carriers mav not on own motion deviate from provisions of Section 4 48 Carrier not permitted to increase previously reduced rates com- pelled by water competition, unless the Commission finds that the "proposed increased rates rest upon changed conditions other than the elimination of water competition 48 Circuitous line, competition with direct line, where rate from intermediate point is reasonable, will justify circuitous line in seeking relief from fourth Section 81 Commission not justified in permitting the establishment or con- tinuance of a rate unreasonable under the first Section or unduly discriminatory under the third or fourth Section of the Act to Regulate Commerce 48 Commission will not, by relief from, authorize the carriers to go any farther in meeting water competition than is necessary to meet the competition afforded by actual water routes 95 Commodity rates, arising from railroad competition are recog- nized as elements requiring permissive relief from amended fourth Section 81 Competition, between distributing markets does not constitute justification for maintenance of lower rates to a more dis- tant point 57. 76 Competition, cariers in fixing rates may take into account "only that competition which is genuine and not a pretense" 58 Competition, may create dissimilarity of circumstances and con- ditions • 58 Competition, may create dissimilarity of circumstances and con- ditions contemplated in Section 4 of the Act to Regulate Commerce ,•,•;••■■ i Competition must be real and substantial for dissimilarity of conditions to exist, necessary for relief from Section 4 68 522 AMERICAN COMMERCE ASSOCIATION Page Constitutionality of, as amended, decided in Intermountain Rate Cases 91. 93 Fourth Section violations in the Southeast 9 Localities, all wrongful discriminations between, are not confined to violations of the Fourth Section of the Act to Regulate Commerce 20 Localities, between. Sections 3 and 4 of the Act to Regulate Com- merce bear essential relationship in giving certainty to the statute's intent not to prohibit all differences between locali- ties, but only such as are undue and unreasonable 39 Localities, Section 4 of the Act to Regulate Commerce prohibits but one specific form of discrimination 20 Matter of greatest importance coming under the Fourth Section of the Act to Regulate Commerce has been the question of the proper adjustment of transcontinental rates 101 Meaning of, as amended, in Intermountain Rate Cases 91 New, intrinsically states no new rule or principle, but simply shifts the power to the Commission 3 Number of applications by carriers for relief 105, 106, 107 Recent important applications for relief from 107 Summarily stated, only justification for greater charge for lesser distance is dissimilarity of circumstances and conditions... 59 View of Commission that maximum of public benefit from Section 4 will result from enforcement of conditions that tend to pro- mote, and not to diminish or retard competition 57 Water competition. Commission recognizes in legitimate, a neces- sity for deviating in competitive rail rates from the prohibi- tion of Section 4 as amended 86 Water competition, the Intermountain Rate Cases were crucial cases within the purview of the prohibition of Section 4 of the Act to Regulate Commerce 87 Water competition, the Spokane Case 87 Water competition, the most substantial and probably controlling ground for relief from the prohibition of the amended Fourth Section is 86 Water competition, to remove undue discrimination the Interstate Commerce Commission divided the country into five trans- continental rate zones 87 Where carrier has made lower rate to meet water competition, it is not estopped from thereafter increasing the rate, provided the new rate is just and nondiscriminatory and the require- ments of Section 4 of the Act to Regulate Commerce are observed 95 SECTION 5 (see POOLING). ,^, ^„„ Amendment of August 24, 1912 161, 177 Amendment of Section 5 of Act to Regulate Commerce affectmg railroad ownership of competing water carriers 173 Commission held that when a practice of apportioning immigrant traffic through Atlantic Ports was in violation of, it was at least doubtful, and inasmuch as no discrimination resulted, no desisting order was issued 164 Contemplates two methods of physical pool of traffic and money pool IS^ Effect of carriers control of routing, prior to Amendment of 1910. . 169 Relation of, to Sherman Anti-trust Act 169, 170 Statutory provisions of Amendment of August 24, 1912 177 Statutory provisions and amplification of 161 SECTION 6 (see TARIFFS). Amendment of June 18, 1910 188 Amendment of August 24, 1912 189 Amendments to 192 Amplification of 185 Enforcement of orders of Interstate Commerce Commission, under provisions of • 191 Interstate Commerce Commission may modify requirements of Section 6 of Act to Regulate Commerce 187 Published rates must be observed 195 Requirements of, may be modified by Interstate Commerce Com- mission 205 Subjective analysis of 191 Supplemented by Elkins Act 193 INTERSTATE COMMERCE LAW 523 PSLff© SECTION 7. Amplification of 211 Carriage of freights must be treated as continuous unless stoppage is in good faith 211 Interpretation of tlie Section 211 Relation of Sections 7 and 3 212 Statutory provisions 211 SECTION 8. Actions brought in Court under Section 8 of Act to Regulate Com- merce governed by statute of limitations of state in which suit is instituted 226 Act to Regulate Commerce contains no limitation of time for bringing suits to recover damages under Section 8 226 Amplification of 217 Assignment of claims for damages or overcharges 227 Enlargement of remedial powers of Interstate Commerce Com- mission 233 Gives right of action 217 Liability of common carriers for damages caused by violation of Act to Regulate Commerce 217 Persons claiming to be damaged may elect whether to complain to the Commission or bring suit in a United States Court 231 Statutory provisions 217 SECTION 9. Action brought under provisions of Section 9 before the Commis- sion subject to limitation of 2 years 226 Assignment of claims for damages or overcharges 227 Enlargement of remedial powers of Interstate Commerce Com- mission 233 Officers of defendant carrier may be compelled to testify, but shall receive immunity 231 Statutory provisions 231 SECTION 10. Amendments to Section 350 Amplification of 347 Constitutionality of 354 Constitutionality of, as against corporations, was established by the Supreme Court of the United States 354 Effect of Elkins Act of 1903 350 Filing of fraudulent claims for loss or damage an offense under Section 10 of Act to Regulate Commerce 356 Inducing discrimination, joint liability with carrier for damages.. 349 Limitation of criminal prosecutions under .' 353 Penalties for false billing by carriers 348 Penalties for false billing by shippers 348 Penalties for inducing common carriers to discriminate unjustly. 349 Penalties for violations of Act by carrier or its oflScers, agents, or employees 347 Penalties provided by, for violations of Act to Regulate Commerce 350 Purpose of 354 Statutory provisions 347 "Wilfully false representation of contents of package on part of shipper or carrier prohibited as a fraud, and made a mis- demeanor 354 SECTION 11. Amplification of 361 Statutory provisions of 361 SECTION 12. Amplification of 365 Practice and procedure before Interstate Commerce Commission, reference section 368 Statutory provisions 365 SECTION 13. Amendment of 372 Amplification of 371 Commission to have discretion as to manner of investigation 371 Complainant's interests immaterial 372 Complaints to Interstate Commerce Commission, how and by whom made; how served •. . 371 Interstate Commerce Commission may issue ordts in investiga- tions begun on its own motion 372 Purpose of, reference section 373 Statutory provisions 371 524 AMERICAN COMMERCE ASSOCIATION Page SECTION 14. Amplification of 877 Annual reports of Interstate Commerce Commission 377 Findings of fact, upon which award of damages is made 377 Interstate Commerce Commission must report, stating Its con- clusions and order 377 Reports and decisions of Interstate Commerce Commission to be published and be competent as evidence 377 Reports of Interstate Commerce Commission must be entered of record; service of copies on parties 377 Statutory provisions 377 SECTION 15 (see DISCRIMINATION; "LATERAL, ALLOWANCES"). Alowances to shippers under 394, 400 Amendment of June 29, 1906 387 Amendment of June 18, 1910 387 Amendments to 386 Amplification of 381 An empowering act in itself so far as the regulation of rates and practices are concerned 403 Burden of proof on carrier as to reasonableness of increased rate 383 Constitutionality of 389 Empowers Commission to establish through routes over connect- ing lines 82 Enumeration of powers in this Section not exclusive 386 Exception to information rule 385 In establishing through routes Commission shall not require car- rier to embrace in a through route substantially less than the entire leneth of its railroad 82 Interstate Commerce Commission may determine and prescribe just and reasonable regulations or practices 381 Interstate Commerce Commission may determine just and reason- able rates and classifications to be observed as maximum in the future 381 Interstate Commerce Commission may determine reasonable max- imum to be paid for service rendered, or instrumentality furnished by owner of property transported 386 Interstate Commerce Commission may establish through routes and joint rates, and classifications 383 Interstate Commerce Commission may extend suspension 383 Interstate Commerce Commission may order carriers to cease and desist from violations found 381 Interstate Commerce Commission may suspend new schedules.... 383 Investigation by Interstate Commerce Commission of new sched- ules 382 Is the dominating and controlling expression of the real object and meaning of the Act to Regulate Commerce in its present form 403 Limitation on power to prescribe through routes 384 Most Important power conferred on Interstate Commerce Com- mission by amended 15th Section is authority to fix maximum rates for the future 389 Orders of Interstate Commerce Commission effpctive as prescribed, but in not less than 30 days 381 Orders of Interstate Commerce Commission in force not exceeding 2 years unless suspended or set aside by Commission or court 382 Penalty for violation of provisions governing allowances '. . . 386 Relation of, to entire Act to Regulate Commerce 403 Shippers may designate routing 384 Statutory provisions of 381 Subjective analysis of 388 Unlawful to give or receive information relative to shipments... 385 When carriers fail to agree on divisions of Joint rate. Interstate Commerce Commission may prescribe proportion of such rate to be received by each carrier 382 SECTION 16. Amendment of June 29,1906 412 Amendment of June 18, 1910 413 Amendments to 412 Amplification of 409 Award of damages by Interstate Commerce Commission 409 Award of damages by Interstate Commerce Commission to be enforced by courts 409 INTERSTATE COMMERCE LAW 525 Page Carriers, their agents and employees must comply with orders of Interstate Commerce Commission 410 Commerce Court to enforce orders other than for payment of money 411 Costs and expenses to be paid out of appropriation for court ex- penses 411 Duty of District Attorneys to prosecute proceedings for recovery of forfeitures 411 Essential purpose of, is to give effect to and enforce orders of Interstate Commerce Commission, and afford review of such orders bv courts of competent jurisdiction 414 Findings of "fact of Interstate Commerce Commission prima fade evidence in reparation cases 409 Forfeiture payable into Treasury and recoverable in civil suit.... 411 Interstate Commerce Commission may employ attorneys 411 Interstate Commerce Commission may suspend or modify its order 410 Joint plaintiffs may sue joint defendants in courts on awards of damages 410 Limitation upon court action 410 Petitioner's attorney's fees 410 Punishment by forfeiture for refusal to obey order of Interstate Commerce Commission under Section 15 411 Schedules, contracts, and annual reports filed with Interstate Com- merce Commission are public records, receivable as prima facie evidence; certified copies or extracts therefrom also prima facie evidence 412 Service of order of Interstate Commerce Commission 410 Service of protest 410 Statutory provisions of 409 Subjective analysis of 4li SECTION 16a. ... Amplification of • • • • • • 4^^ Application for rehearing shall not operate as stay of proceedmgs unless ordered by Commission 423 Interstate Commerce Commission may grant rehearing 422 Interstate Commerce Commission may on rehearing, reverse, change or modify order 423 Statutory provisions of 422 SECTION 17. ... Amplification of , .••••• 4^27 Interstate Commerce Commission may determme its own pro- cedure •• 4 J i Official seal of Interstate Commerce Commission 427 Parties may appear in person or by attorney 427 Statutory provisions of 4-7 SECTION 18. .„_ Amplification of *^° Statutory provisions of • :•:'• -^ *^^ Witness fees in proceedings before the Interstate Commerce Commission 428 SECTION 19. .,„ Amplification of •.•• V •••.•;■" V Interstate Commerce Commission may prosecute Inquiries by one or more of its members in any part of the United States.... . 429 Principal office of Interstate Commerce Commission at Washmg- ton D. C. 4^8 Sessions of tlie interstate Commerce Commission 428 Statutory provisions of • w^^"^™vu,;c SECTION 19a (see VALUATION OP RAILROAD PROPERTIES). Amendment of March 1. 1913 ]5? Amplification of 1^^ Statutory provisions of ^v;;," • ivw,;^'; ;;t"t"o ' 'i>'i^n>' SECTION 20 (see ACCOUNTS; EXAMINERS; MANDAMUS; REC- ORDS; REPORTS). , . .,- Accounting systems prescribed by Commission *oo Amendment of February 25, 1909, relating to records 44J Amendment of January 20, 1914 • • • *J» Amendments to **^' \\l Amplification of .• • • •.• • "A." " I" ■ v • " 'in " " i Annual reports to be filed with Commission by September 30 of each year 11.. Carmack Amendment 526 AMERICAN COMMERCE ASSOCIATION Page Carriers liability, under Cummins Amendment for full actual loss 443 Carriers liability under Cummins Amendment not exempted by any contract 443 Certain provisions of Cummins Amendment to apply only to ordinary live stock 444 Carrier to keep no other accounts than those prescribed by Corn- mission 441 Commission may employ special examiners to inspect accounts and records 441 Commission may employ special examiners to receive evidence... 443 Commission may grant additional time for filing- of annual reports by carrier 44O Commission may permit destruction of records 442 Commission may prescribe forms of accounts, records, and mem- oranda, and have access thereto 441 Commission may prescribe uniform system of accounts 440 Commission may require annual reports and prescribed method of making same 439 Cummins Amendment as amended 443 Definition of term "ordinary live stock" 445 Initial carrier liable to holder of bill of lading for any loss 443 Initial carrier may have recourse upon carrier responsible for loss or damage 445 Limitations of liability void 444 Monthly or periodical reports of carriers 440 Nothing in Section 20 of the Act to Regulate Commerce which deprives any holder of a bill of lading of any remedy or right of action which he has under existing law 445 Notice not required as condition precedent to recovery, if loss, damage or injury is due to delay, or damaged while being loaded or unloaded, or damaged in transit by carelessness or negligence of carrier 445 Oath to annual reports ; how taken 441 Penalty for violation of Section 440 Power in Commission to prescribe accounts and methods oif ac- counting and require reports from carriers has been upheld by the Supreme Court of the United States 455 Punishment of carrier by forfeiture for failure to keep accounts or records as prescribed by Commission or to allow inspection thereof 441 Punishment of person for false entry in account, or records, or mutilation of accounts or records, or for keeping other ac- counts than those prescribed, fine or imprisonment, or both.. 442 Punishment of special examiner who divulges information without authority; fine or imprisonment or both 442 Rates dependent upon value 444 Receiving carrier to issue bill of lading 443 Recovery of forfeitures 441 Removal of causes, removal of actions brought in state courts to courts of the United States 445 Reports by carriers subject to the Act 448 Statutory provisions of 439 Subjective analysis of 447, 448 Time for filing claims under Cummins Amendment 445 United States courts may issue mandamus to compel compliance with provisions of Act 442 "What reports of carriers shall contain 439 SECTION 21. Amplification of 479 Statutory provisions of 479 SECTION 22 (see FREE TRANSPORTATION). Amplification of 481 As amended, is illustrative, rather than exclusive and must be read in its relation to Section 1 of the Act to Regulate Com- merce 481 Is illustrative of Section 2 140 Provision of Section 22 of Act to Regulate Commerce that common law and statutory rights of shipper are expressly preserved to him, not sufficient to continue a common law right or statu- tory remedy inconsistent with provisions of Act to Regulate Commerce 233 Relation to Section 2 140 INTERSTATE COMMERCE LAW 537 Page Statutory provisions of 479 The Party Rate Case 482 SECTION 2Z. Ampliflcation of 483 Remedy given by writ of mandamus in Section 23 of Act to Regu- late Commerce is cumulative 483 Statutory provisions of 482 United States Court to command movement of interstate traffic or the furnishing of cars or other transportation facilities 482 SECTION 24. Amplification of , 361, 483 Statutory provisions of 362, 483 SERVICE (see COMPLAINTS; DISCRIMINATION — BETWEEN LO- CALITIES). Carriers must designate agents in Washington for purposes of service 487 Of copies of Interstate Commerce Commission reports 377 Of order of Interstate Commerce Commission 410 Of protest 410 SHERMAN ACT. Prohibits all forms of combinations or trusts or otherwise in re- straint of trade 169 Relation of, to Section 5 of Act to Regulate Commerce 169, 170 Violators of, not to use Panama Canal 163 SHIPS (see WATER TRANSPORTATION). SHORT-HAUL (see DISCRIMINATION— LONG-AND-SHORT-HAUL). SHORT LINE COMPETITION (see COMPETITION; DISCRIMINA- TION — COMPETITION). 6HREVEPORT CASE 22-38 SOUTH DAKOTA EXPRESS RATE CASE 22 SOUTHERN PACIFIC COMPANY. In re operation of steamship company 177 SPOKANE. . , ^ Is large distributing center and bids fair to become a still larger one 88 SPOKANE CASE 87, 103 STAR GRAIN AND LUMBER COMPANY CASE 74 STATE (see DISCRIMINATION— REGULATION; STATUTE OF LIM- ITATION). STATE RATES. In conflict with interstate rates 22 STATUTORY RIGHT (see COMMON LAW; SECTION 22). STATUTE OP LIMITATION. Actions brought in court under Section 8 of Act to Regulate Com- merce governed by statute of limitations of state in which suit is instituted 226 Action brought under provisions of Section 9 before the Com- mission subject to limitation of 2 years 226 Act to Regulate Commerce contains no limitation of time for bringing suits to recover damages under Section 8 226 Begins to run from time when a complete cause of action accrues 288 Commission has held, does not run to defeat claims for reparation if mere letter is filed with Commission setting forth nature of claim, and opportunity is afforded defendants to settle claim before formal proceedings are begun 406 Complaints for recovery of damages must be filed with Interstate Commerce Commission within 2 years from the time the cause of action accrues r 410 Effect of state 226 Effect, on application for reparation ^78 Limitation of criminal prosecutions under Section 10 353 Notice not required as condition precedent to recovery, if loss, damage, or injury is due to delay, or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence of carrier • • ■ 445 Orders of Interstate Commerce Commission effective as prescribed but in not less than 30 days 381 Orders of Interstate Commerce Commission in force not exceeding 2 years unless suspended or set aside by Commission or court 382 528 AMERICAN COMMERCE ASSOCIATION Page Petition for enforcement of order of Commission for payment of money must be filed in circuit or state court within 1 year from tlie date of the order , 410 Provided in Section 15 of Act to Regulate Commerce 406 Taking- effect and duration of Interstate Commerce Commission's orders 405 Time for filing claims under provisions of Cummins Amendment 445 STEAMSHIPS (see WATER TRANSPORTATION). ST. LOUIS BUSINESS MEN'S CASE 22, 118 STOPPAGE. Carriage of freights must be treated as continuous unless stop- page is in good faith 211 STUBBS, VICE-PRESIDENT SOUTHERN PACIFIC SYSTEM. Testimony of, in St. Louis Case 118 SUBPOENAS. Service of, by Interstate Commerce Commission 366, 367 "SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS." Omitted from new 4th Section 3 SUSPENSION OP TARIFFS (see TARIFFS). SWITCH CONNECTION. Commission may determine terms and conditions of construction and operation of physical connection between rail lines and dock of water carrier 190 Physical connection between rail lines and dock of water carriers 190 TANK CARS 20 Shipment of oil in barrels and tank cars 2 TARIFFS (see DAMAGES). Absence of published rate 204 "Carrier" means "common carrier" 188 Carriers presumed to know its own rates 198 Contents of 201 Copies of contracts, agreements or arrangements relating to traflSc must be filed with Commission 187 Effect of publication is to fix with certainty the legal and only rates 198 Evidence of concurrence 187 Freight subject to customs duty in case of failure to publish through rates 186 Interstate Commerce Commission empowered to investigate new schedules 382 Interstate Commerce Commission may extend suspension of 383 Interstate Commerce Commission may modify requirements of Section 6 of Act to Regulate Commerce 187 Interstate Commerce Commission may not be lawfully transacted by common carriers and shippers unless such carriers first file their schedules, rules and regulations with the Com- mission 198 Interstate Commerce Commission may reject certain schedules... 188 Interstate Commerce Commission may suspend new schedule 383 Joint interchangeable mileage tickets, rates to be published, filed and observed 480 Joint tariffs must specify names of carriers participating 187 Name of carrier's agent to be posted 189 No carrier shall engage in transportation unless it files and pub- lishes rates, fares and charges thereon 187 Orders of Interstate Commerce Commission under authority of Section 6 of Act to Regulate Commerce, enforcement of 191 Penalty for failure to comply with regulation 188 Posting of 202 Power vested in Interstate Commerce Commission to suspend pro- posed increased rates , 398 Printing and posting of schedules of rates, fares and charges, including rules and regulations affecting same, icing, storage and terminal charges, and freight classifications 185 Printing and posting of schedules of rates on freight carried through a foreign country 186 Publication of through rates 205, 207 Published rates to be strictly observed 187, 195 Purpose of publication 198 Rates of certain water carriers to be filed with Interstate Com- merce Commission under authority of Panama Canal Act.... 162 INTERSTATE COMMERCE LAW 520 Page Rates should be published in such manner as to apprise shippers of their existence and the law presumes the shipper there- after to know such rates 198 Requirements of, may be modified by Interstate Commerce Com- mission •. 205 Schedules, contracts and annual reports filed with Interstate Commerce Commission are public records, receivable as prima facie evidence; certified copies or extracts therefrom also prima facie evidence 412 Section 10 of Act to Regulate Commerce places sanre obligation upon shipper as upon the carrier to observe lawful tariff pro- visions 354 Thirty days public notice of change in rates must be given 186 Under Section 15 Commission is authorized when new rates are filed to determine on its own initiative the propriety thereof. . 400 Water carriers, whose service was extended by Commission beyond July 1, 1914, were required to file 120 When Interstate Commerce Commission suspends operation of tariffs, rates sought to be increased or otherwise changed are to be continued in effect pending the investigation 400 TELEGRAPH MESSAGES (see CLASSIFICATION). TELEPHONE MESSAGES (see CLASSIFICATION). TERMINAL FACILITIES (see FACILITIES). TESTIMONY (see EVIDENCE; WITNESSES). TEXAS. Through rates to points in 107 TEXAS COMMON POINT TERRITORY 19 Attitude of Interstate Commerce Commission toward 19 THE CINCINNATI CASE 168 THE PARTY RATE CASE 482 THE TIFT CASE 168 THROUGH RATES FROM BUFFALO-PITTSBURGH TERRITORY.. 107 THROUGH RATES TO POINTS IN LOUISIANA AND TEXAS 107 THROUGH ROUTES AND JOINT RATES (see DISCRIMINATION — THROUGH ROUTES AND JOINT RATES; SECTION 1). Between rail and water carriers 190 Between rail and water carriers, from a port in the United States to a foreign country via Panama Canal 190 Between rail and water lines ■ . . • 194 Commission cannot compel carrier, without its consent, to include in through route substantially less than its entire line of r9.ilr03.(i ,,,,,,,..•.,.«*••••••••••■•••■•••••••••• *J»'" Commission may reqiaire, when one of the carriers is a water line 4()5 Interstate Commerce Commission may establish, and classifications 3S3 Power of Commission to establish 404 Power of Interstate Commerce Commission to require 395 Power of Interstate Commerce Commission to require, prior to 1910 395 Power of Interstate Commerce Commission to require throiigh routes is not unlimited 383, 384, 395, 405 Right of shipper to select through route 6\)V Section 1 requires carriers by railroad to establish, and to inter- change cars with connecting carriers 82 Through routes and joint rates, carrier has no right, by refusing to dictate what market or which .shippers on its line must purchase or industries to sell or in any other way to restrict fair competition • ■ •■■■■■ •••-:jj^ • •.xtV^ THROUGH TRAFFIC (see DISCRIMINATION— THROUGH AND LOCAL TRAFFIC). . , Carrier may not be compelled by law to contract to carry beyond its own line, but if willing to transport beyond Its own line is at liberty to do so • *^° TTT7"TOTC rf^AQTT "" TRAFFIC (see bfsCR TMTN A TION— COMPETITIVE COMMODITIES — DISCRIMINATION: DISCRIMINATION — T R A F ^ T O^ "LIKE KINDS OF": DOMESTIC TRAFFIC: FOREIGN TRAFFIC: LOCAL TRAFFIC: QUANTITY OP TRAFFIC; THROUGH TRAFFIC). TRAFFIC AGREEMENTS. ^ ,„♦,„» ♦« Copies of contracts, agreements or arrangements relating to trafllc must be filed with Commission l»' 18 — 35 530 AMERICAN COMMERCE ASSOCIATION Paga TRANSCONTINENTAL. COMMODITY RATES CASE 49, 96 TRANSCONTINENTAL RAIL RATES. Historical review of water competition influences on transcon- tinental rate structures 108 Relationship by zone, matter of greatest interest and importance coming under the fourth section of the Act to Regulate Com- merce has been the question of the proper adjustment of transcontinental rates 88, 101 TRANSCONTINENTAL SCHEDULES A, B and C COMMODITIES.... 101 TRANSCONTINENTAL SCHEDULE C, COMMODITIES 102-104 TRANS-MISSOURI FREIGHT ASSOCIATION. Suit against 160, 170 TRANSIT. Ciiarges and privileges, basis of charges 20 TRANSPORTATION (see RAIL AND WATER TRANSPORTA- TION). Carriage of freights must be treated as continuous unless stop- page is in good faith 211 No carrier shall engage in transportation unless it flies and pub- lishes rates, fares and cliarges thereon 187 United States courts to command movement of interstate traffic or the furnish of cars or other transportation facilities 482 "TRANSPORTATION" DAMAGES (see DAMAGES). VALUATION OF RAILROAD PROPERTY. Access of agents to property 431 Action of Interstate Commerce Commission 434 Amendment of March 1, 1913, to Section 19 of Act to Regulate Commerce 429 Applicable to receivers 434 Changes 433 Classification and inventory of property 429 Concessions made by carrier 431 Corporate organization of carrier 430 Costs of property used for common carrier purposes 429 Documents to aid investigation 431 Earnings and expenditures of carriers 430 Effect of evidence 433 Effect of final valuation and classification 433 Effect of rules 432 Finality of valuation, if no protest filed 433 Grants from United States to carriers 430 Hearings of protests 433 Information required of carriers 432 Interstate Commerce Commission authorized to employ experts.. 429 Investigation by Interstate Commerce Commission 429 Judgment on original order 434 Jurisdiction of district courts to compel compliance 434 Method of procedure 431 Modification of an order of Interstate Commerce Commission 434 Notice of completion of tentative valuation 432 Other property 429 Penalty for violation of provisions of Section 19a of the Act to Regulate Commerce 434 Property held for other than common carrier purposes 430 Prosecution and report of investigation 431 Public inspection of records 432 Reports to Congress 432 Stocks and bonds of carriers 430 Supplemental act of August 1, 1914 434 Transmission of evidence to Commission 433 Valuations of extensions and improvements 432 Value of land grants 431 Value of real property 430 VESSELS (see WATER TRANSPORTATION). WATER CARRIERS (see THROUGH ROUTES AND JOINT RATES). Amendment of Section 5 of the Act to Regulate Commerce affecting railroad ownership of competing water carriers 173 Annual report of Interstate Commerce Commission, re continuance of railroad ownership control or operation of water lines in annual report for 1916 177 Commission may determine terms and conditions of construction and operation of physical connection between rail lines and dock of 190 INTERSTATE COMMERCE LAW 531 Page Enlarged Jurisdiction of Interstate Commerce Commission over. . . 207 Interstate Commerce Commission's authority to allow ownership of certain vessel lines by railroads 162 Physical connection between rail lines and dock of 190 Railroads not to own competing 161 Rates of certain, to be filed with Interstate Commerce Commission under authority of Panama Canal Act 162 Through routes and joint rates between rail and water carriers from a port in the United States to a foreign country via Panama Canal 190 Whose service was extended by Commission beyond July 1, 1914, were required to file tariffs 120 WATER COMPETITION (see COMPETITION; DISCRIMINATION — WATER COMPETITION; SECTION 4). Historical review of Influences of, on transcontinental rate structures 108 WATER ROUTES. As vested in Interstate Commerce Commission extension of author- ity over the water routes plying via the canal 119 WATER TRANSPORTATION (see INTERSTATE COMMERCE COM- MISSION: PANAMA CANAL; PANAMA CANAL ACT; RAIL AND WATER TRANSPORTATION; WATER ROUTES.) Interstate Commerce Commission is empowered to inquire into operation of vessel by railroad or other carrier 119 WEIGHT. The universal unit of quantity of carriers for rate making pur- poses is 100 pounds 145 WHARF FACILITIES. At ports, brought within jurisdiction of Interstate Commerce Com- mission by Panama Canal Act 194 WHARFAGE RIGHTS AND FACILITIES 20 WHITE, CHIEF JUSTICE. Opinion in Intermountain Rate Cases 91 WHOLESALE PRINCIPLE (see DISCRIMINATION— QUANTITY OF TRAFFIC). Is applied in commercial affairs in fixing prices for large quan- tities 144 WITNESSES (see INTERSTATE COMMERCE COMMISSION; WIT- NESS FEES). Claim that testimony or evidence will tend to criminate will not excuse witness 366 Courts to compel, to attend and testify 366 Depositions 366 Existing laws as to attendance of witnesses and production of evidence applicable in provisions under Act to Regulate Com- merce 487 Interstate Commerce Commission may order testimony to be taken by depositions 366 Officers of defendant carrier may be compelled to testify, but shall receive immunity 231 When witness is in a foreign country 367 WITNESS FEES. And magistrates 367 In proceedings before Interstate Commerce Commission 428 ZONES (see RATE ZONES). ■ft i