If the foregoing language means that it is legal and proper to classify commodities so that those of unequal value may yield varying rates of return on the property investment, the court was correct. But it violates the constitutional rights of a carrier to require it to transport property at a rate which yields no substantial amount above the actual operating expense of the haul."

§ 312. For Mistake of Law.-While the law in force prior to the enactment of the Hepburn Amendment made the order of the Commission only prima facie lawful, even under that law force was given the findings of the Commission upon disputed questions of fact. The present law gives the courts no jurisdiction over questions involving the credibility of witnesses or the weight of evidence.

In the Yellow Pine case" the Supreme Court referred to former cases and in summing up the decisions therein discussed said: "In all these cases, therefore, there was a single, distinct and dominant proposition of law which the Commission had rejected and the exact influence of which on its decisions could not be estimated," and even under the the then statute it was held that the orders of the Commission would not be disturbed because the Commission did not adopt certain presumptions of mixed law and fact put forward as factors in determining the reasonableness of a rate, and the court there stated as a suggestive applicable principle to the conclusions of the Commission that "such conclusions of fact were to be arrived at looking at the matter

tained by the Commerce Court. For Commission cases, see Arlington Heights Fruit Exchange v. Southern Pac. Co., 19 I. C. C. 148, and same styled case 22 I. C. C. 149.

94. Northern Pac. Co. v. North Dakota, 236 U. S. 585, 59 L. Ed. 735, 35 Sup. Ct. 429; Norfolk & W. Ry. Co. v. Conley, 236 U. S. 605, 59 L. Ed. 745, 35 Sup. Ct. 437.

95. Illinois C. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L.

Ed. 1128, 27 Sup. Ct. 700; discus sing Texas & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666; Cincinnati, N. O. & T. P. Ry. Co. v. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Int. Com. Com. v. Alabama M. Ry. Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45; Louisville & N. R. Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 309, 20 Sup. Ct. 209; East Tenn., Va. & Ga. Ry.

broadly and applying common sence to the facts that are proved," and, said the court: "This court has ascribed to them (the findings and conclusions of the Commission) the strength due to judgments of a tribunal appointed by law and informed by experience."

96

The Commission's orders were set aside, because it held that under the law a carrier was not entitled to a profit for a service in stopping hay for purposes of treatment or reconsignment; because it struck down a reasonable terminal charge on the erroneous ground that, taken with a prior unreasonable charge, the total charge was too high," because it required a switch connection when no one authorized by the statute filed application therefor;" because, as was held by the court, it determined the lawfulness of a rate from an application of the law of estoppel;" because it held that a payment of an elevator allowance was illegal;" because an allowance for terminal facilities was held illegal;101 because there was no evidence.1

102

100

Other illustrations of mistakes of law by the Commission

Co. v. Int. Com. Com., 181 U. S. 127, 45 L. Ed. 719, 21 Sup. Ct. 516. See also Cincinnati, etc., R. Co. v. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648.

96. So. R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. Ed. 1004, 29 Sup. Ct. 678.

97. Int. Com. Com. v. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 Sup. Ct. 66.

98. Int. Com. Com. v. Delaware, L. & W. Ry. Co., 216 U. S. 531, 54 L. Ed. 605, 30 Sup. Ct. 415.

Fed. 56, Opinion Com. Ct. No. 61, p. 537.

100. Int. Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Td. 83, 32 Sup. Ct. 22. The Commission had put its finding on the fact that unjust discrimination existed, but evidence was undisputed and the conclusion from the admitted facts was one of law. Traffic Bureau Merchants Ex. of St. Louis v. Chicago, B. & Q. R. Co., 14 I. C. C. 317, 510, 551.

101. Sugar Literage Case, United States v. Baltimore & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, affirming Baltimore & O. R. Co. v. United States, 200 Fed. 779; Opinion Com. Ct. No. 38, p. 499.

102. Florida E. C. R. Co. v. U. S., 234 U. S. 167, 58 L. Ed. 1267, 34 Sup. Ct. 867.

are misconstruction of a tariff,10 applying a wrong rule of law to admitted facts,10 and misapplying the statute of limitations.105

Where the question involved in a suit to set aside the order of the Commission is one of fact, the principle stated by the Supreme Court is, "The outlook of the Commission. and its powers must be greater than the interest of the railroad, or of that which may affect those interests. It must be as comprehensive as the interest of the whole country. If the problems which are presented to it, therefore, are complex and difficult, the means of solving them are as great and adequate as can be provided."106

§ 313. Lack of Jurisdiction. The powers of the Interstate Commerce Commission find their limitation as well as their grant in the statute, and should the Commission attempt to exercise any power not contained in the grant, its action would be void. The old law gave power to the Commission to establish through routes and joint rates applicable thereto when no reasonable through route existed. The non-existence of a reasonable through route was a necessary prerequisite to the exercise of the power to prescribe through routes, and whether or not this jurisdictional prerequisite existed was a question which the courts could determine, and when that question was found against the jurisdiction, the order of the Commission was set aside.' Under the present law the power of the Commission is broader and discretion is given.

103. United States v. Penn. R. Co., 242 U. S. 208, 61 L. Ed. 267, 37 Sup. Ct. 95.

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

105. United States v. Int. Com. Com., 246 U. S. 638, 62 L. Ed. 914, 38 Sup. Ct. 408 and see ante section 309 and notes.

106. Int. Com. Com. v. Chicago, R. I. & P. R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 Sup. Ct. 651. For a full discussion of the right

107

of the Commission to exercise its judgment on questions of fact, see Illinois Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700.

107. Int. Com. Com. v. Northern Pac. Ry. Co., 216 U. S. 538, 54 L. Ed. 608, 30 Sup. Ct. 417; and so where no jurisdicuon existed over a street railroad, Omaha and C. B. Street Ry. Co. v. Int. Com. Com., 230 U. S. 324, 57 L. Ed. 1501, 33 Sup. Ct. 890.

to establish through routes "as the circumstances and conditions developed in each inquiry may seem to require. That the Commission has power to regulate transportation over the terminals at Galveston, when the transportation is within the Act to Regulate Commerce, has been determined.10 Orders held valid requiring the same rates on fuel coal as on commercial coal; regulating the distribution of cars;"" reducing rates;" regulating terminal charges; carload rating for bulked shipments; reports and accounting;" cooling charges.'

§ 314. The Substance and Not the Form of the Finding Determines.-Prescribing rates, rules and regulations for the future is a legislative act.11 Congress has prescribed the general rules of action under which the Commission shall proceed, leaving to the Commission the application of those rules to particular situations and circumstances.118

That the power delegated to the Commission may be exercised within the form delegated does not deprive the courts of jurisdiction to review its orders if such orders be in substance a violation of the delegated authority, for "the substance and not the shadow determines the validity of the exercise of the power.'

97 119

*

In the language of a Circuit Judge, "The power is vested in and the duty is imposed upon the circuit courts (now the district courts) to relieve from orders which, though in form within its (the Commission's) delegated power, evidence so unreasonable an exercise of it that they are in substance beyond it." 120

121

§315. Disregard of the Legal Effect of Undisputed Testimony. Where there are disputed questions of fact, as has been stated many times, the jurisdiction of the Commission to determine what is the truth is exclusive and its conclusions are not subject to review by the courts. Carriers, however, under the law at present have the primary right to make rates. If, after hearing, such rates are shown to be unreasonable or otherwise unlawful, the Commission may set them aside and require the substitution of just and lawful rates. If there is no evidence of the unlawfulness of an existing rate, the Commission has no power to prescribe another and different rate. When there is no disputed question of fact, the legal effect of evidence is a question of law over which the courts have jurisdiction, and a finding of the Commis

122

210, 56 L. Ed. 729, 735, 32 Sup. Ct. 436; Kansas City So. Ry. Co. v. United States, 231 U. S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125, 131; Louisville & N. R. Co. v. United States, 245 U. S. 463, 62 L. Ed. 400, 38 Sup. Ct. 141.

119. Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 153, citing Postal Cable-Tel. Co. v. Adams 155 U. S. 688, 698, 39 L. Ed. 311, 15 Sup. Ct. 360, See also Southern Pac. Co. v. Int. Com. Com., 219 U.

S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288.

120. Peavy v. Union Pac. R. Co., 176 Fed. 409, 418; on appeal modified on other points: Int. Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22.

121. Int. Com. Com. v. Delaware, L. & W. Ry. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392.

122. Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185.