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cases, section 308 A, ante, the United States, on the relation of the interested parties, sued the Interstate Commerce Commission.

The Judicial Code, section 208 and 211, provides that the United States shall be sued in the limited number of cases in which jurisdiction was conferred on the Commerce Court. In these cases, as has been shown in the next preceding section, it has been held that the complainant before the Interstate Commerce Commission can not sue to set aside or annul a negative order. If the views expressed in that section. are correct there is a general jurisdiction, where the amount involved is sufficient, to sue to set aside an order dismissing a complaint wherein any of the reasons shown in section 309, post, exist for setting the order aside. In such suits the Interstate Commerce Commission would seem to be a necessary party defendant and the carriers party to the complaint before the Commission proper parties.""

§ 309. Ground upon Which Orders of the Commission May Be Set Aside.-Orders of the Interstate Commerce Commission other than awards of damage made within the jurisdiction conferred on that tribunal are binding upon the carriers and companies subject thereto and, since the Amendment of 1906 a failure to obey such, subjects those corporations and persons included within the provisions of the Acts to Regulate Commerce to penalties.

Under the old law the Commission had no power to fix rates or prescribe practices for the future guidance of carriers. subject to its jurisdiction. What orders it could make under that law had to be enforced by suits in the circuit and district courts, and on the hearings of such suits all reports of the Commission upon which such suits were brough were made "prima facie evidence of the matters therein stated." Under that law the Commission's report was not a "rule of action" but a finding of facts. The Hepburn Amendment

425, 38 Sup. Ct. 170. For parties where awards of reparation have been made see section 318, post.

80. Illinois C. R. Co. v. Int. Com.

Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. Southern Ry. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709,

gave the Commission power to make rates, to legislate for the future; it did not take away its administrative power to make findings of fact in certain cases.

If the order is deemed to be unlawful, suit to determine that question must be filed in the proper district court of the United States. The grounds upon which the courts may set aside such orders as determined by the courts may be grouped into these: (1) That the order violates some provision of the Constitution of the United States; (2) That in making the order the Commission has relied on some mistake of law; (3) That the order is not included within the powers conferred by the statute upon the Commission; (4) That the order is, although in form correct, in substance so unreasonable as to violate the law: (5) That the legal effect of undisputed testimony has been disregarded by the Commission; (6) That a full hearing was not had before the order was entered.

These different reasons overlap and to some extent are statements of the same ground of illegality expressed in somewhat different phraseology, but the classification is deducible from the decisions and its use tends to make clear the principles which have been applied by the court."1

81. Int. Com. Com. v. Illinois Cent. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; reversing the Circuit Court in Chicago & A. R. Co. v. Int. Com. Com, and Illinois Cent. R. Co. v. Int. Com. Com., 173 Fed. 930; and sustaining the order of the Commission in Traer v. Chicago & A. R. Co., 13 I. C. C. R. 451. Mr. Justice Lamar stated these grounds somewhat differently, but in substance the same, in Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 108. Florida East Coast R. Co. v. U. S., 234 U. S. 167, 58 L. Ed. 1267, 34 Sup. Ct. Rep. 867; Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88,

57 L. Ed. 431, 33 Sup. Ct. Rep. 185; Louisville & N. R. Co. v. U. S., 238 U. S. 1, 59 L. Ed. 1177, 35 Sup. Ct. 696. Penn. R. Co. v. International Coal Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893; Ann. Cas. 1915 A 315; Int Com. Com. v. Delaware, etc. R. Co., 220 U. S. 235, 251, 55 L. Ed. 448, 31 Sup. Ct. 292; Florida E. C. Ry. Co. v. United States, 234 U. S. 167, 58 L. Ed. 1267, 34 Sup. Ct. 867; Chestnut Ridge Railway Co. v. United States, 248 Fed. 791. Manufacturer's R. Co. v. United States, 246 U. S. 457, 481, 482, 62 L. Ed. 831, 844, 38 Sup. Ct. 383 the Supreme Court stating the principle somewhat less specifically than in the text said:


The construction of a tariff or classification, and the legal principles applicable to admitted facts, are not administrative but are legal propositions, which courts may decide, and questions which can "not be conclusively answered by the Commission.



Notice given by the Commission that a case has been assigned for hearing is not such an order as a court may enjoin. Shippers may sue to set aside orders of the Commission with rights similar to those carriers have."5

When a court has decided that the Commission had jurisdiction over the matter in controversy, the rule is to "do so without prejudice to the Commission's" right to rehear the case and make further orders.8

§ 310. Same Subject. Violations of the Constitution-Fourth Amendment.-The Fourth Amendment of the Constitution

"Whether a preference or advantage or discrimination is undue or unreasonable or unjust is one of those questions of fact that have been confided by Congress to the judgment and discretion of the Commission (Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 170, 42 L. Ed. 414, 424, 18 Sup. Ct. Rep. 45), and upon which its decision, made the basis of administrative orders operating in futuro, are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or, for some other reason, amount to an abuse of power. This results from the provisions of sections 15 and 16 of the Commerce Act as amended in 1906 and 1910 (34 Stat. at L. 589-591, chap. 3591; 36 Stat. at L. 551-554, chap. 309, Com. Stat. 1916, sections 8583, 8584), expounded in familiar decisions. Interstate Commerce Commission v.

Illinois C. R. Co., 215 U. S. 452, 469, 470, 54 L. Ed. 280, 287, 288, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Union P. R. Co., 222 U. S. 541, 547, 56 L. Ed. 308, 311, 32 Sup .Ct. Rep. 108; Procter & Gamble Co. v. United States, 225 U. S. 282, 297, 298, 56 L. Ed. 1091, 1096, 1097, 32 Sup. Ct. Rep. 761; Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 91, 57 L. Ed. 431, 433, 33 Sup. Ct. Rep. 185." 82. United States v. Penn. R. Co., 242 U. S. 208, 61 L. Ed. 251, 37 Sup. Ct. 95.

83. Lehigh V. R. Co. v. United States, 243 U. S. 412, 414, 61 L. Ed. 819, 820, 37 Sup. Ct. 434.

84. United States v. Ill. C. R. Co., 244 U. S. 82, 61 L. Ed. 1007, 37 Sup. Ct. 584.

85. McLean Lumber Co. v. United States, 237 Fed. 460.

86. Louisville & N. R. Co. v. United States, 242 U. S. 60, 74, 61 L. Ed. 152, 156, 37 Sup. Ct. 61.

of the United States guarantees the security of persons, houses, paper and effects against "unreasonable searches and seizures." Should an order of the Commission violate this provision, such order would be void.

The provision has been urged in suits to annul orders of the Commission. An order of the Commission requiring an officer of a carrier to make report under oath showing what employees had rendered service in excess of the hours prescribed in the hours of service law, was held not to violate this provision. When, however, and order requires an unreasonable search and seizure it is void.""



§ 311. For a Violation of the Fifth Amendment. The Fifth Amendment provides that " no person shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.'

The decisions of the Supreme Court relating to rates fixed by state authority, the exercise of which authority was alleged to violate the Fourteenth Amendment by fixing a confiscatory rate, are valuable in determining the same question arising under the Fifth Amendment which limits the powers of the Federal government as the fourteenth limits

87. Goodrich Transit Co. v. Int. Com. Com., 190 Fed. 943, Opinions Com. Ct. Nos. 21 to 24, p. 95. While the Commerce Court did not place its decision on the ground of the Fourth Amendment, it set aside the order of the Commission on other grounds, and was reversed by the Supreme Court, Int. Com. Com. v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729, 30 Sup. Ct. 436. Holding that the Commission had no jurisdiction to require answer to the questions asked, see United States v. L. & N. R. Co., 236 U. S. 318, 59 L. Ed. 598, 35 Sup. Ct. 363; Ellis v. Int. Com.

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Com., 237 U. S. 434, 59 L. Ed. 1036, 35 Sup. Ct. 645.

88. Baltimore & O. R. Co. v. Int. Com. Com., 221 U. S. 612, 55 L. Ed. 878, 31 Sup. Ct. 621.

89. Harriman v. Int. Com. Com., 211 U. S. 407, 419, 420, 53 L. Ed. 253, 29 Sup. Ct. 115. See also Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 Sup. Ct. 341; Int. Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125; Int. Com. Com. v. Baird, 194 U. S. 25, 48 L. Ed. 860, 867, 24 Sup. Ct. 563; United States v. Skinner, 218 Fed. 870; and see also cases cited note 55, supra.

the power of the state governments." In an opinion of the Supreme Court, Mr. Chief Justice White said: "Beyond controversy is determining whether an order of the Commission shall be suspended or set aside we must consider all relevant questions of constitutional power.


A corporation is not entitled to the constitutional exemption from producing records nor can an officer thereof refuse to produce the corporate record "An officer of a corporation is protected by the self incrimination provision of the Fifth Amendment against the compulsory production of his private books and papers, but this privilege does not extend to books of the corporation in his possession.'"**

The Commerce Court said: "The carrier can not complain of a violation of its constitutional rights, if not to favor some person or class, but for the general welfare, it is compelled to make a rate for some particular service which, though in excess of the out of pocket expense, would nevertheless not be confiscatory if it were applied to all its freight, that is, the carrier has no constitutional right to a rate for each distinct kind of service which will equal its proportionate share of the entire operating expenses."


90. See ante, Secs. 47, 48, 49, and notes thereto.

91. Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; Constitutional question argued but Commission sustained as no violation shown. Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 108.

92. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 Sup. Ct. 1538; cited and applied in Baltimore & O. R. Co. v. Int. Com. Com., 221 U. S. 612, 55 L. Ed. 878, 31 Sup. Ct. 621.

93. Lemon Rates Case, Atchison, T. & S. Ry. Co. v. United States, 203 Fed. 56, Opinion Com. Ct. No. 61, p. 537, citing, Minneap olis & St. L. R. Co. v. Minne


sota, 186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. 900; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. 184, Atlantic C. L. R. Co. V. North Carolina Corp. Com., 206 U. S. 1, 51 L. Ed. 933, 27 Sup. Ct. 585, 11 Ann. Cas. 398. In the final Lemon Rate Case, Atchison, T. & S. F. Ry. Co. v. Int. Com. Com., 190 Fed. 591, Opinion Com. Ct. No. 7, p. 83, the order of the Commission was set aside because as stated by the Court the Commission gave force to the tariff law. The Commission, on a supplementary proceeding, disclaimed such an intention and entered an order fixing rates as in the original order, and this second order was


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