It seems that it is not necessary that the Commission should have a preliminary investigation before filing suit for the enforcement of its own orders; on the contrary, it was said by the Supreme Court in Texas & Pacific case, supra:

"We do not, of course, mean to imply that the Commission. may not directly institute proceedings in a Circuit Court of the United States charging a common carrier with disregard of the provisions of the Act and that thus it may become the duty of the court to try the case in the first instance."

§ 288. Parties defendant.- All the parties to the rate complained of are proper parties, but they are not all necessary parties. See Texas & Pacific Ry. case, supra.

The successors of railroad companies who are made parties. to proceedings before the Commission, are not strangers to the order, but are bound by the judgment or decree in the suit, on the principle that they are purchasers of the litigation, pendente lite.

See Interstate Commerce Commission v. W., N. Y. & P. R. R., 82 Fed. Rep. 192. Commission v. So. Pa. Co. et al., 123 Fed.

597.

$289. Prima facie effect of the report.-The Supreme Court said in C., N. O. & T. P. Ry. v. Commission, 162 U. S. 184, 40 L. Ed. 935, that the testimony in the Circuit Court is not limited to that taken before the Commission; that is to say, either party may introduce other testimony. The Supreme Court in this case, expressed disapproval of such a method of procedure on the part of the railroad companies as would lead them to withhold the larger part of their evidence from the Commission and first adduce it in the circuit court, saying:

"The Commission is an administrative board and the courts are only to be resorted to when the Commission prefers to enforce the provisions of the statute by a direct proceding in the court, or when the orders of the Commission have been disregarded. The theory of the act evidently is, as shown by the provision, that the findings of the Commission should be regarded as prima facie evidence that the facts of the case are to be disclosed before the Commission. We do not mean, of course, that either party, in a trial in a court, is to be restricted to the evidence that was before the Commission, but that the purpose of the act called for a full inquiry by the Commission into all the circumstances and conditions pertinent to the questions involved."

It follows that in a suit to enforce the orders of the Commission, the burden rests upon the defendant company to show

them to be erroneous. Commission v. L. & N. Ry., 102 Fed. Rep. 709, 118 Fed. Rep. 613. See also Commission v. C. B. & Q. R. R. Co., 94 Fed. Rep. 272.

In Commission v. Southern Pacific Company et al, 123 Fed. Rep. 597, in a suit brought to enforce the order of the Commission, that the railroad company should desist from the practice of controlling through routing, the Court held that the finding of the Commission that this practice subjected shippers to an undue prejudice was one of fact, and the order based thereon requiring the company to desist was prima facie a lawful order such as the court was required to enforce in a suit brought under section 16, and the finding of the Commission that such a practice was made in violation of section 5 of the Act supported the lawfulness of the order requiring the companies to desist from enforcing such rule. The demurrer to the petition was therefore overruled. See final decree in this case in 132 Fed. Rep. 829.

$290. The revisory power of the Court.- The Circuit Court has no revisory power over the orders of the Commission; that is, the court can only enforce or refuse to enforce the orders of the Commission. Thus it was said in Commission v. D., L. & W. Ry., 64 Fed. Rep. 723, that the Court could not substitute for an order actually made, one which the Commission might or should have made, or which it intended, but failed to make. In the Alabama & Midland Ry. case, 168 U. S. 173, 42 L. Ed. 414, the Supreme Court said, that where the Circuit Court of Appeals was of opinion that the Commission in making its order has misconceived the extent of its powers, and the Circuit Court had erred in affirming the validity of an order made under such misconception, it was the duty of the Circuit Court of Appeals to reverse the decree, set aside the order, and remand the case to the Commission, in order that it might, if it saw fit, proceed therein according to law. The defendant was entitled to have its defense considered in the first instance at least, by the Commission, upon a full consideration of all all the circumstances and conditions upon which a legitimate order conld be found, and it did not comport with the true scheme of the statute that the Circuit Court of Appeals undertake of its own motion to find and pass upon the questions of facts. The Supreme Court in the several cases heretofore cited, wherein it held that the Commission had proceeded

upon a misconception of the law as to the controlling effect of competition, directed the dismissal of the proceedings without prejudice to the right of the Commission to re-investigate the facts.

§ 291. Injunction.-The section authorizes writ of injunction or process against the carriers in cases of disobedience. A writ of preliminary injunction however to restrain a carrier from disobeying an order of the Commission must be established according to due course of equity procedure. Where the facts set out in the petition of the Commission are denied by the answer of the defendant, such findings are not taken as established on an application for preliminary injunction. Commission v. Lehigh Valley Ry., 49 Fed. Rep. 177; Kentucky, etc. Bridge Co. v. L. & N. Ry. Co., 37 Fed. Rep. 567.

$292. Right of appeal.-The section provides for an appeal from the Circuit Court to the Supreme Court. After the act of 1891 establishing the Circuit Court of Appeals went into effect, appeals thereafter taken from decrees of the Circuit Court enforcing orders of the Interstate Commerce Commission were taken directly from the Circuit Court to the Circuit Court of Appeals. Commission v. A., T. & S. F. R. Co., 149 U. S. 264, 37 L. Ed. 727; Little Rock, etc. R. Co. v. E. Tenn. etc. R. Co., 159 U. S. 698, 40 L. Ed. 311. Appeal or error lies from such judgments of the Circuit Court of Appeals to the Supreme Court under the act of 1891, section 11. In controversies of this kind arising under the Interstate Commerce Act, where the jurisdiction of the Circuit Court is not dependent upon diverse citizenship, the judgment of the Court of Appeals is not final. L. & N. R. Co. v. Behlmer, 169 U. S. 644, 42 L. Ed. 889. But see Expedition Act of February 11, 1903, whereunder suits in equity under this act, and the Anti-Trust Act, wherein the United States is complainant, are appealable directly to the Supreme Court. See infra, § 349.

§ 293. Supersedeas on appeal. The section provides that such appeal "shall not operate to stay or supersede the order of a court, or the execution of any writ or process thereon." It was held in Commission v. L. & N. Ry., 101 Fed. Rep. 146, that this provision related only to the effect of an appeal, and did not deprive the Circuit Courts of their rights of control over their own decrees. A decree granting an injunction is not superseded by an appeal from the decree even though all the

requisites for a supersedeas be complied with. Hovey v. McDonald, 109 U. S. 161, 27 L. Ed. 891; Leonard v. Land Co., 115 U. S. 468, 29 L. Ed. 445; Knox Co. v. Harshman, 132 U. S. 14, 33 L. Ed. 249. The Circuit Court has power to order a continuance of the status quo, and to keep the injunction in force pending the appeal, and as long as the appeal remained unperfected it continued under the power of the Court during the term. As the defendants might be subject to irreparable injury and to multiplicity of suits, if the injunction should be enforced pending the appeal, it was ordered that the defendant keep an accurate account of their shipments, to make reports to the Court quarterly, and to give bond, and thereupon the Court ordered the injunction suspended pending the appeal.

§ 294. The provision as to supersedeas applies only to appeals from Circuit Courts.-It was held in Louisville & Nashville R. Co. v. Behlmer, 169 U. S. 644, 42 L. Ed. 889, that the provision in this section as to supersedeas relates only to appeals from the trial court. In this case the Circuit Court entered a decree dismissing the bill filed for the enforcement of the order of the Commission. 71 Fed. Rep. 835. Behlmer appealed to the Circuit Court of Appeals for the fourth circuit, and that court reversed the decree of the Circuit Court and directed that the order of the Interstate Commerce Commission be enforced. 28 C. C. A. 229, 83 Fed. Rep. 898. An appeal was then allowed and perfected to the Supreme Court. The Supreme Court held that this latter appeal operated as a supersedeas, and denied the motion of Behlmer to vacate the supersedeas resulting from the allowance of the appeal and the арproval of the bond tendered. The court said that the appeal treated of in section 16 was the appeal from the trial court, and did not apply to appeals from the Circuit Courts of Appeals, and the scope of the provision was not enlarged by the act of 1891 creating the Circuit Court of Appeals so as to make this provision apply to the appeals from the Circuit Court of Appeals. The court said that when the case was brought to the Supreme Court from the Circuit Court of Appeals, their mandate went to the court of the first instance, and was there carried into effect, although the Court of Appeals may have sent its own mandate down before the case was brought to the Supreme Court.

SECTION 17.

§ 295. Interstate Commerce Commission-Form of procedure.

§ 295. Interstate Commerce Commission-Form of procedure. SEC. 17. (As amended March 2, 1889.) That the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate 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 regulation 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 attorney. Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirmations and sign subpoenas.