informed of the valuation made, is guilty of an offense under the statute, because he sues for injuries to the horse and seeks to recover the true value of the horse regardless of the rating, is self-refutatory. Nor under such fact can a contention be sustained that re

Vol. III, p. 837, sec. 11.

Term of commissioners. A member of the Interstate Commerce Commission whose term of office, as fixed by law, has expired, cannot

Vol. III, p. 838, sec. 12.

Com

Powers and duties of commission mission not a court. To the same effect as the original note, see Louisville, etc., R. Co. v. Scott, (1909) 133 Ky. 724, 118 S. W. 990. No power to fix rates. Interstate Commerce Commission r. Lake Shore, etc., R. Co., (1905) 134 Fed. 942, affirmed (1906) 202 U. S. 613, 26 S. Ct. 766, 50 U. S. (L. ed.) 1171.

Extent of inquiry. - The Interstate Commerce Commission, in making an investigation of a complaint as to the freight rate promulgated in a classification adopted to govern in official classification territory, had the power, in the public interest, unembarrassed by any supposed admissions contained in the complaint, to consider the whole subject, and the operation of the classification in the entire territory, and also how far its going into effect would be just and reasonable, would create preferences, or would engender discrimination. Cincinnati, etc.. R. Co. ľ. Interstate Commerce Commission, (1907) 206 U. S. 142, 27 S. Ct. 648, 51 U. S. (L. ed.) 995.

Power to forbid classification. - The Interstate Commerce Commission is acting within its powers, under the Act to regulate commerce, in ordering carriers to desist from further enforcing a classification by percentage on common soap in less than carload lots, operating throughout official classification territory, which it finds has brought about a general disturbance in relations previously existing in that territory, and has created discriminations and preferences among manufacturers and shippers of the commodity, and between localities in such territory. Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1907) 206 U. S. 142, 27 S. Ct. 648, 51 U. S. (L. ed.) 995.

Regulation of distribution of coal cars. Authority to regulate the distribution of a railway company's fuel cars in times of car shortage to the bituminous coal mines was delegated to the Interstate Commerce Com mission as a means of prohibiting the unjust preferences or undue discriminations forbidden by section 3 of this Act. Interstate Commerce Commission v. Illinois Cent. R. Co., (1910) 215 U. S. 452, 30 S. Ct. 155, 54 U. S. (L. ed.) 280, reversing (1908) 173 Fed. 930. Restricting allowance for elevator charges. -Confining the allowance by a carrier to the owner of an elevator for elevating grain in transit, in which he has an interest, to such

Compulsory production of documentary evidence. In Interstate Commerce Commission r. Baird, (1904) 194 U. S. 25, 24 S. Ct. 563, 48 U. S. (L. ed.) 860, it was held that the production of contracts under which railroad companies engaged in interstate carriage of anthracite coal, who had acquired certain collieries whose proprietors were about to build a competing line, guaranteed the stock and bonds issued on payment therefor by a corporation whose charter they had purchased for that purpose, might be com pelled in a proceeding before the Interstate Commerce Commission on a complaint charg ing such railroad companies with violations of this Act by the pooling of freights and the charging of unreasonable rates in carrying anthracite coal.

Attendance and testimony of witnesses. Witnesses cannot be required to testify before the Interstate Commerce Commission except in connection with complaints for violation of the Interstate Commerce Act or with the investigation by the commission of subjects that might have been made the object of com. plaint, these being the only matters contem. plated by the provision of section 12, giving the commissioner power to require testimony "for the purposes of this Act," which power cannot be exercised by the commission in per forming its duty under that section to keep itself informed as to the manner and method in which the business of common carriers is conducted, nor in connection with the enforcement of the requirement of section 20 respecting reports by carriers, nor to aid the commission in recommending, pursuant to section 21, additional legislation to Congress,

Harriman . Interstate Commerce Commission, (1908) 211 U. S. 407, 29 S. Ct. 115, 53 U. S. (L. ed.) 253, affirming 157 Fed. 432. Jurisdiction to compel reports. — Jurisdiction, in a federal Circuit Court, of an orig. inal proceeding by mandamus to compel an interstate carrier to make the report which the Interstate Commerce Commission is authorized by the Act to require, cannot be in

Vol. III, p. 842, sec. 13.

ferred from the grant of authority to the commission to enforce that Act, or from the direction to district attorneys of the United States or the attorney-general to institute all necessary proceedings for the enforcement of its provisions. Knapp v. Lake Shore, etc., R. Co., (1905) 197 U. S. 536, 25 S. Ct. 538, 49 U. S. ((L. ed.) 870.

jury, it was not error for the court to receive the commission's report in evidence without excluding matters of opinion stated therein, as distinguished from the commission's findings of fact. Southern R. Co. v. St. Louis Hay, etc., Co., (C. C. A. 1907) 153 Fed. 729.

Vol. III, p. 844, sec. 16.

Amendment. This section was amended by Act of June 29, 1906, ch. 3591, sec. 5, 34 Stat. L. 590, 1909 Supp. Fed. Stat. Annot. 268.

Jurisdiction of federal courts. The courts have the power to investigate any rate or rates fixed by legislative authority and to determine whether they are such as would be confiscatory of the property of the carrier, and if they are judicially found to be confiscatory in their effects, to restrain their enforcement. Any law which attempts to de. prive the courts of this power is unconstitu tional. (1905) 25 Op. Atty.-Gen. 422.

Courts cannot make rates. The rate-making power is not a judicial function and cannot be conferred constitutionally upon the courts of the United States, either by way of original or appellate jurisdiction. (1905) 25 Op. Atty. Gen. 422.

The lawfulness of an order of reparation issued by the Interstate Commerce Commission does not necessarily depend on a sufficiency of evidence adduced before the commission, but on the existence of facts, whether disclosed or not before that body, warranting the reparation ordered; and in an action to enforce such reparation it is sufficient that such facts be established by proper evidence. Western New York, etc., R. Co. v. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23. affirmed (1908) 208 U. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

Enforcement of order. No lawful orders of the Interstate Commerce Commission are self-executing. Western New York, etc., R. Co. v. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23, affirmed (1908) 208 UT. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

The enforcement of an order of the Interstate Commerce Commission directing the common carriers to desist from maintaining or enforcing a rule adopted by them may be decreed by a federal Circuit Court if it finds such rule is, for any reason, in violation of this Act, although such reason may not have been the one relied upon by the commission itself to invalidate the rule. Southern Pac. Co. v. Interstate Commerce Commission, (1906) 200 U. S. 551, 26 S. Ct. 330, 50 U. S. (L. ed.) 585. See also under this title, vol. 3, p. 816, sec. 3.

Any supposed admissions in a complaint filed with the Interstate Commerce Commission as to the freight rate promulgated in a classification adopted to govern in official classification territory are ineffectual to deprive a federal Circuit Court, in a proceeding to enforce an order of the commission, of the power to test the validity of such order by the scope of this Act. Cincinnati, etc., R. Co. 12. Interstate Commerce Commission, (1907) 206 U. S. 142, 27 S. Ct. 648, 51 U. S. (L. ed.) 995.

Jury trial. In an action to enforce an interstate commerce reparation order based on a discriminating freight rate, whether such rate was just and reasonable or unreasonable and excessive is a question for the jury. Western New York, etc., R. Co. v. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23, affirmed (1908) 208 U. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

Necessity for action by commission. - The rule that an action at law to recover excessive interstate freight charges cannot be maintained in advance of action by the Interstate Commerce Commission will not prevent

a federal Circuit Court which has suspended proceedings on a bill seeking relief from an advance in freight rates, pending action by the commission, from granting relief in the exercise of its powers under section 16, as a court of equity, on a petition filed after the commission has acted, stating the substance of the findings of the commission, and containing a copy of its report and opinion, where defendants have stipulated in open court that, in case complainants prevailed, decree of restitution might be made. Southern R. Co. v. Tift, (1907) 206 U. S. 428, 27 S. Ct. 709, 51 U. S. (L. ed.) 1124.

Stipulation. Parties, after action by the Interstate Commerce Commission declaring an increased freight rate to be unreasonable, may make a valid stipulation, in the subsequent proceedings had in the federal court under this section, that such court may adjudge the amount of the reparation. Southern R. Co. v. Tift, (1907) 206 U. S. 428, 27 S. Ct. 709, 51 U. S. (L. ed.) 1124.

Reference for ascertainment of damages. The final decree of a federal Circuit Court in the proceedings prosecuted under this section, after action by the Interstate Commerce Commission declaring an increased freight rate to be unreasonable, may direct an order of reference to the standing master of the pleadings and evidence in the cause, with instructions to ascertain the sum of the increase in rates paid since the rate went into effect, where defendants stipulated in open court that, in case complainants prevailed, a decree of restitution might be made. Southern R. Co. v. Tift, (1907) 206 U. S. 428, 27 S. Ct. 709, 51 U. S. (L. ed.) 1124.

--

Evidence Findings of fact. The provision of this section that the findings of fact of the Interstate Commerce Commission shall be prima facie evidence of the facts found in a subsequent proceeding to enforce the commission's order, contemplated that the findings of fact should be so prepared and arranged in the commission's report that they could be offered in evidence unaccompanied by extraneous or incompetent legal arguments, opinions, or other conclusions. Western New York, etc., R. Co. v. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23, affirmed (1908) 208 U. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

A finding by the Interstate Commerce Commission that a just and reasonable charge for the privilege of reconsigning hay at East St. Louis was one cent per hundred weight was held to be prima facie evidence of its own truth. Southern R. Co. v. St. Louis Hay, etc., Co., (C. C. A. 1907) 153 Fed. 728.

Opinions of commission. — The mere opinions of the Interstate Commerce Commission are inadmissible in an action brought for the enforcement of an order of pecuniary repara

Vol. III, p. 849, sec. 18.

Telegrams sent by commission. - Substantial compliance with the requirements of the Comptroller of the Treasury that the original telegrams relating to the business of the Interstate Commerce Commission, or copies

tion. Western New York, etc., R. Co. t. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23, affirmed (1908) 208 U. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

No power to modify order or substitute new one. - In a proceeding in a Circuit Court under this section of the Interstate Commerce Act, to enforce an order of the Interstate Commerce Commission, the court has no power to amend or modify such order, or to sever from the remainder a part which is illegal, but must enforce the same, if at all, in its entirety as made by the commission. Interstate Commerce Commission v. Lake Shore, etc., R. Co., (1905) 134 Fed. 942, affirmed (1906) 202 U. S. 613, 26 S. Ct. 766, 50 U. S. (L. ed.) 1171.

Hearing and determination de novo. Though an action to recover pecuniary reparation ordered by the Interstate Commerce Commission is triable de novo, the cause of action must have been included in the order of reparation, and have constituted the whole or part of the basis of such order, whether the proceeding to enforce the same is in equity or at law. Western New York, etc., R. Co. v. Penn Refining Co., (1905) 137 Fed. 343, 70 C. C. A. 23, affirmed (1908) 208 U. S. 208, 28 S. Ct. 268, 52 U. S. (L. ed.) 456.

Review of facts. - Findings of fact found by the Interstate Commerce Commission, when concurred in by a federal Circuit Court, will not be disturbed unless the record estab lishes that clear and unmistakable error has been committed. Cincinnati, etc., R. Co. t. Interstate Commerce Commission, (1906) 206 U. S. 142, 27 S. Ct. 648, 51 U. S. (L. ed.) 995; Illinois Cent. R. Co. v. Interstate Commerce Commission, (1907) 206 U. S. 441, 27 S. Ct. 700, 51 U. S. (L. ed.) 1128; Interstate Commerce Commission v. Delaware, etc., R. Co., (1911) 220 U. S. 235, 31 S. Ct. 392, 55 U. S. (L. ed.) 448.

Supersedeas. To the same effect as the second paragraph of the original note, and following the case there cited, Interstate Commerce Commission v. Southern Pac. Co., (1904) 137 Fed. 606.

A Circuit Court will not supersede a decree enjoining railroad companies from violating an order of the Interstate Commerce Commission affecting rates, entered in a suit brought by the commission pursuant to this section, pending an appeal from such decree, where it does not appear that the damage to defendants from the enforcement of the decree will be greater than that which would result to shippers from its suspension. Interstate Commerce Commission . Southern Pac. Co., (1904) 137 Fed. 606.

New section added. See Act of June 29. 1906, ch. 3591, sec. 6, 34 Stat. L. 592, 1909 Supp. Fed. Stat. Annot. 271.

thereof, or certificates that such telegrams are of a confidential nature, shall accompany telegraph vouchers for which credit is asked. is made by an order of the commission, filed by the secretary with his accounts, which directs

Vol. III, p. 851, sec. 22.

Jurisdiction. The common-law right of a shipper to recover in excess of charges paid to a carrier for an interstate shipment is not within the exclusive jurisdiction of the federal courts, but may be enforced in a state court. H. L. Halliday Milling Co. v. Louisiana, etc., R. Co., (1906) 80 Ark. 536, 98 S. W. 374; Chicago, etc., R. Co. v. Lena Lumber Co., (Ark. 1911) 137 S. W. 562; Missouri, etc., R. Co. v. New Era Milling Co., (1909) 79 Kan. 435, 100 Pac. 273; Illinois Cent. R. Co. v. Henderson Elevator Co., (1910) 138 Ky. 220, 127 S. W. 779; N. H. Blitch Co. v. Atlantic Coast Line R. Co., (1910) 87 S. C. 107, 69 S. E. 16; Chas. H. Lilly Co. v. Northern Pac. R. Co., (Wash. 1911) 117 Pac. 401. See also under this title, vol. 3, p. 833, sec. 9. Effect of reservation of existing remedies. The clause in this section reserving existing common-law or statutory remedies cannot be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of this Act. In other words, the Act cannot be held to destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the Act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the Act should be regarded as cumulative, when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the Act. Texas, etc., R. Co. v. Abilene Cotton Oil Co., (1907) 204 U. S. 426, 27 S. Ct. 350, 51 U. S. (L. ed.) 553.

Equity jurisdiction. The provision of section 1 of the federal judiciary acts of 1887 and 1888 (Act March 3, 1887, ch. 373, 24 Stat. L. 552, and Act Aug. 13. 1888, ch. 866. 25 Stat. L. 433), relating to the Cricuit and District Courts, that 66 no suit shall be brought in either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant," does not apply to suits of which such courts are given exclusive jurisdiction; and a suit to enjoin railroad companies from establishing and enforcing unreasonable rates in violation of the Interstate Commerce Act is of such character and may be maintained in any district in which the defendants can be found. Northern Pac. R. Co. v. Pacific Coast Lumber Manufacturers' Assoc., (C. C. A. 1908) 165 Fed. 1; Union Pac.

that the requirement for their production is unreasonable and against public interest. U. S. v. Moseley, (1902) 187 U. S. 322, 23 S. Ct. 90, 47 U. S. (L. ed.) 198.

Attendance and testimony of witnesses. See under this title, vol. 3, p. 838, sec. 12. For a case under this section, see People v. Chicago, etc., R. Co., (1906) 223 Ill. 581, 79 N. E. 144.

R. Co. v. Oregon, etc., Lumber Manufacturers' Assoc., (C. C. A. 1908) 165 Fed. 13.

Under this section a Circuit Court of the United States has jurisdiction of a suit to enjoin railroad companies from filing or enforcing a proposed new schedule of rates alleged to be unjust and unreasonable by the Interstate Commerce Commission, where it is shown that their enforcement would result in irreparable injury to the complainants. Northern Pac. R. Co. v. Pacific Coast Lumber Manufacturers' Assoc., (1908) 165 Fed. 1, 91 C. C. A. 39; Union Pac. R. Co. v. Oregon, etc., Lumber Manufacturers' Assoc., (1908) 165 Fed. 13, 91 C. C. A. 51.

As to the right to enjoin an established rate as unreasonable, see infra, this title, p. 1204, 1909 Supp., p. 265, sec. 4, Effect upon power of courts to pass upon reasonableness of rates. A complaint for the recovery of an excess over reasonable charges paid to a carrier for an interstate shipment, which is good as stating a common-law cause of action, is not rendered bad by the Interstate Commerce Act, dealing with the subject of reasonable and just rates, in view of the provision in this section that nothing therein contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of the Act are in addition to such remedies. H. L. Halliday Milling Co. v. Louisiana, etc., R. Co., (1906) 80 Ark. 536, 98 S. W. 374.

Compelling carrier to receive and transport goods. A suit to compel an interstate carrier to receive and transport property tendered for shipment is one to enforce performance of a duty imposed by general law, and within the jurisdiction of the courts, and the complainant is not required to resort in the first instance to the Interstate Commerce Commission. Louisville, etc., R. Co. v. F. W. Cook Brewing Co., (C. C. A. 1909) 172 Fed. 117.

Express franks. The issuing of franks by an express company to officers, agents, attorneys, or employees of itself or other express companies or railroad companies, or to the families of such persons, upon which property is transported from one state to another free of charge, relates to interstate commerce, which it is within the constitutional power of Congress to regulate, and is within the prohibitions of the Interstate Commerce Act and its amendments against discrimination, undue preference, and departure from the pub

lished schedule of rates, and is unlawful. Such gratuitous carriage is not within the exceptions made in section 22, which by their terms are restricted to certain classes of passengers carried by railroads and property carried for certain classes of shippers and for stated purposes. U. S. t. Wells-Fargo Express Co., (1908) 161 Fed. 607, affirmed (1909) 212 U. S. 522, 29 S. Ct. 315, 53 U. S. (L. ed.) 635.

Reduction of freight on machinery used in making irrigation ditches. This Act is not violated by a reduction in freight rates, authorized by section 22, on material and machinery used by the United States, or by parties contracting with them, for work upon

Vol. III, p. 852, sec. 24.

irrigation systems under construction in the arid regions of the West, provided the gov ernment receives the whole benefit of the reduced rate or concession; but it is violated if the contractor receives any portion of such benefit. (1905) 25 Op. Atty. Gen. 408.

Reclamation service employees. There is no provision in the Act to regulate commerce or in its various amendments, which justifies the granting of reduced rates by railroads to employees of the Reclamation Service and dependent members of their families and servants accompanying them, and laborers des. tined for work in that service. (1906) 26 Op. Atty.-Gen. 47.

Vol. III, p. 852, sec. 10.

Necessity for previous determination by commission. The courts cannot, under the guise of exerting judicial power, usurp merely administrative functions by setting aside an order of the Interstate Commerce Commission within the scope of the power delegated to such commission, upon the ground that such power was unwisely or inexpediently exercised. Interstate Commerce Commission v. Illinois Cent. R. Co., (1910) 215 U. S. 452, 30 S. Ct. 155, 54 U. S. (L. ed.) 280.

Cumulative remedies. An action in a federal court for a mandamus, under this section, does not preclude the relator or others from proceedings in respect to the same matter by petition to the Interstate Commerce Commission under section 13 of the original Act, and the court in the mandamus suit is without power on an ancillary bill to enjoin such proceeding. Merchants' Coal Co. v.

Fairmont Coal Co., (C. C. A. 1908) 160 Fed. 769.

Effect of judgment as bar to subsequent proceedings. The judgment of a federal court in a mandamus suit brought by a coal company operating mines on the lines of a railroad against the railroad company to compel a fair distribution of cars, upon an allegation of discrimination in violation of the interstate commerce law, does not inure to the benefit of any other operator not a party to the suit nor bar an independent suit or proceeding by such operator on its own behalf in court or before the Interstate Commerce Commission to secure similar relief; nor is it estopped to maintain such independent suit or proceeding by the fact that it aided the relator in the prior suit or contributed to the expense thereof. Merchants' Coal Co. v. Fairmont Coal Co., (C. C. A. 1908) 160 Fed. 769.

Object of statute. This Act removed all limitations upon the powers of the states to regulate or prohibit all sales, contracts, and other acts and transactions relating to intoxicating liquors, occurring wholly within their territorial jurisdictions. State 1. Spence, (1910) 127 La. 336, 53 So. 596; State v. Miller, (1909) 66 W. Va. 436, 66 S. E. 522.

Prohibition of advertising of intoxicating liquors. Since the passage of this Act a state may lawfully prohibit the advertising within the state of intoxicating liquors sold or kept for sale without the state. State r. J. P. Bass Pub. Co., (1908) 104 Me 288, 71 Atl. 895; State r. State Capital Co., (1909) 24 Okla. 252, 103 Pac. 1021.

No new powers conferred on states. This Act does not authorize the enactment by a state of a law restricting the right of an interstate carrier to deliver the imported pack

age to its consignee. Crescent Liquor Co. v. Platt, (1906) 148 Fed. S94.

Municipal license law. A city ordinance imposing a license tax on dealers in beer was held to be one enacted in the exercise of the police power conferred on the city by its charter, and by virtue of this Act was not invalid as in violation of the interstate commerce clause of the Federal Constitution as applied to the sale of beer in the bottles in which it was brought from other states. Meyer r. Mobile, (1906) 147 Fed. 843.

Importer can sell only on terms prescribed by local statute.- - New Iberia v. Erath, (1907) 118 La. 305, 42 So. 945.

State laws. Under the provisions of this Act a statute which, in aid of a police regulation prohibiting the sale of intoxicating liquors within a state, or any portion thereof. prohibits the solicitation of orders, is not, for the reason that such statute conflicts with