HP D /3 y -f}-^ CORNELL UNIVERSITY LIBRARY . FROM Cornell University Library KF2289.D13 Procedure In interstate commerce cases, w 3 1924 019 317 191 OlnrnpU Slatu ^rlynnl lOibtarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 931 71 91 Procedure IN Interstate Commerce Cases With Illustrative Precedents and Forms BY JOHN B. DAISH. A.B.. LL.M. Washington w. h. lowdermilk & company 1909 (-ni;ivM I i UKMV'f UM'i Y L I I \^ y 3 CopyTight, 1909, by John B. Daish. .i.l-iHHn:) PEEFACE The enactment, in 1887, of the original act to regulate conunerce marked an epoch in the history of the Federal control over interstate and foreign commerce. The Congress had not theretofore passed any general legislation under the commerce clause of the Constitution, al- though the statute books contained certain provisions^ dependent thereon. Since that time, however, a number of statutes having va- rious objects in view have been passed imder the commerce power of the Constitution. The year 1887 may be taken as the beginning by the Federal Government of the supervision and control over rates of carriers engaged in interstate commerce. The causes of complaint against the then existing railway manage- ment were many but they centered chiefly around what was called "discrimination," a term which has since had under judicial decisions a different meaning as used in the act to regulate commerce. The causes which led up to the passage of the act are referred to in Chapter I. That many of these causes of complaint have been corrected by the original and supplemental acts must be admitted; some of the in- equalities of that period and others, however, have continued. For the purpose of correcting these, other acts have been passed and the In- terstate Conunerce Commission has been made the governmental agency for the determination of questions relating to transportation, to supervise carriers, and for bringing about a correction of rates and practices, if in violation of the statute. The Interstate Commerce Commission has consisted of earnest and conscientious men of high ability; it has striven, to the extent the act to regulate commerce would permit, to bring about a correction of the violations of the law, a better understanding of the rights of parties and to secure, in accordance with the duty imposed on it by section 21 of the act, information and data valuable in the determina- tion of questions connected with the regulation of commerce and to recommend such additional legislation as it might deem proper. The Commission is, perhaps, constitutionally speaking, an anomalous body in our Federal organization, but the benefits wrought by it are ap- parent. In the exercise of its quasijudicial duties there has been ren- dered a series of decisions, from which may be drawn the proper prin- ' See note 1, p. 3. VI PREFACE ciples of transportation ; as a result of its administrative, supervisory, and regulatory powers great good has been accomplished ; and through the medium of general investigations many needed reforms have been brought about by the exercise of the Comimission's inquisitorial powers, probably much curtailed by the recent decision in Harriman V. U. S., No. 315, Supreme Court, October Term, 1908. While the act of February 4, 1887 (24 Stat. L., 379) was the first law of the Congress having for its purpose the amelioration of exist- ing transportation conditions by requiring reasonableness of charges for transportation and by prohibiting discriminations, the provisions thereof were not entirely original. The common law, the previous leg- islation of Great Britain and the decisions of the courts thereon, and the analogous laws of several of the States^ already existed. These enactments, having substantially the same purposes, served as models or guides for the Congress. It, therefore, had the benefit of this pre- vious experience. The act to regulate commerce is, in part, in derogation, and, in part, in affirmation of the common law. It attempts, and the purpose of the several amendments has been to perfect the attempt, to place those who are engaged as carriers of interstate commerce by rail Tinder the duties and obligations which are imposed upon common carriers by the common law ; namely, to serve aU, with adequate facilities, for a reason- able compensation and without discrimination. These obligations, mod- ified only to such extent as is made necessary by our economic develop- ment, have been the foundation of the legislative enactments. In addition to the original act to regulate commerce there have been a considerable number of amendments, and the statute itself has re- ceived interpretation and construction at the hands of the Commis- sion and the courts. To the layman, and at times to the practitioner, the act and the decisions taken together are bewildering. As the subject-matter of cases deals most intimately with the every-day busi- ness transactions and affects seriously the commercial fabric such confusion is lamentable. A number of well-written works dealing with the substantive law are available for the business man or the practitioner. Although twenty years have passed since the statute was enacted no one heretofore has attempted to delineate the proce- dure which is peculiarly applicable to cases involving interstate com- merce, either under the act to regulate commerce or arising under general law. The Interstate Commerce Commission, it is true, has provided rules of practice but they are necessarily brief. The Commission has so framed these rules as to make the way easy for the complaining user Tor list of States having railway regulation laws in 1886, see Chapter I. The provisions of several State laws were considered in I. C. C. v. C. N O & T. P. E. Co. (167 U. S., 479). PEEPACE Vn of transportation facilities, often at the risk of not ad\dsing the de- fendant carrier of the specific violation of which it is charged, and the same difficulty frequently confronts a complainant in ascertain- ing before the hearing the real and complete defense of the carrier. From time to time customs have grown up, rulings have been made, and matters have been settled. Some of these have been committed to writing while others are known only to those in active practice be- fore the Commission. The rules applicable to pleading, to evidence, and to practice have not reached such a stage of development that in each and every instance it can be safely stated what is the correct method. The practice before the Comatnission, in other words, has not yet made such progress that it has become definitely settled. One of the purposes of this work has been to assist in crystallizing the rules ap- plicable to procedure before the Commission and if it shall even in part serve this purpose the author will be duly rewarded. The pleadings, the evidence, and the practice are of the simplest form possible ; no technicalities are permitted. Yet such laxity, while it has its commendable features, often leads into errors more serious than one would suppose. For instance, failure to have proper par- ties may result in the loss of important relief; want of proof, legal in its nature, may prevent reparation. Thus, although the practi- tioner, and often the layman, may permit himself to plead or conduct a case in an informal way and perhaps carelessly, the result is gen- erally appropriate to such a course. It behooves one, therefore, to proceed as correctly as possible. It was long denied that it was intended by the act of 1887 to pro- vide that the Interstate Commerce Commission should have the power to name a rate for the future, if after hearing and investigation an existing rate was found unreasonable. From the passage of the act to 1896 the Commission substantially exercised this power, either with or without the aid of the courts. In 1896 the Supreme Court ' held that the language of the act contained no such authority, largely on the ground that such extensive power is not to be implied, but can only result from express delegation. The patrons of the carriers and the Commission were much wrought up by this decision but the au- thority of the court was final. The shippers sought additional legis- lation, chiefly legislation by which some tribunal, preferably the In- terstate Commerce Commission, would be empowered to substitute a reasonable for an unreasonable rate. This resulted first in the pas- sage of the Elkins' law (act of February 19, 1903, 32 Stat. L., 847) ; a decade of agitation was required to secure the relief afforded by the second important amendment, the act of June 29, 1906 (34 Stat. L., 584). Upon the constitutionality of the last-mentioned act grave »I. C. C. V. C. N. O. & T. P. E. Co. (167 U. S., 479). Vni PREFACE doubts have been expressed and only a decision of the court of last re- sort wiU settle the matter. That the several acts have been beneficial to the carriers, their patrons, and the country at large can not be gainsaid, and although specific instances may be cited to the contrary, on the whole this legislation has been advantageous to the country. The present work has been prepared primarily for the practitioner, but the' author has kept in view the fact that a large number of cases before the Commission are conducted by laymen, who, while pos- sessing an intimate knowledge of the facts involved, must necessarily lack the training to advantageously present them and to argue upon the application of the statute. It has also been kept in mind that the procedure is special, a distinct branch of transportation law, re- quiring in most instances technical knowledge of the facts and of the law; without at least the latter, the practitioner is at a disadvantage. As the laws creating State railroad commissions have been fre- quently modeled on or served as models for the Federal enactments, and as there is often great similarity in the powers of the Federal and State commissions, and as in many instances the procedure before those tribunals is not materially different, it is believed that the rules and principles herein stated may serve as an aid and authority in pro- ceedings before State commissions. The second part of the work attempts to point out only those pecu- liar characteristics applicable to interstate commerce eases before the courts. Should information be needed upon Federal procedure, gen- eral in its nature, reference may be had to the numerous standard works upon that subject. The author desires to express his appreciation of the assistance and suggestions given him by George F. Brownell, Esq., of New York, and C. R. Hillyer, Esq., special attorney of the Bureau of Corporations, Department of Commerce and Labor; and his thanks are due to the West Publishing Company of St. Paul, for permission to use the American Digest Classification Scheme, in conformity to which the work has been arranged as far as appropriate. John B. Daish. Washington, D. C, February, 1909. TABLE OF CONTENTS Part I — Procedure Before Interstate Commerce Commission CHAPTEE I — INTBODUCTION : Page Sec. 1. Genesis of the Interstate Commerce Commission, 3 2. Qualifications of the Commission, 7 3. Divisions in the Office of the Commission, 7 4. Operating Division, 7 5. Law Division, 8 5a. Claims Division, 8 6. Division of Prosecutions, 8 7. Safety Appliance Division, 8 8. Division of Statistics and Accounts, 9 9. Division of Tariffs and Transportation, 9 10. Statistical Groupings, 9 11. Decisions of the Commission, 10 12. Annual Eeports of the Commission, 11 13. Administrative EuUngs and Opinions, 11 14. Publications of the Commission, 12 15. Sessions of the Commission, 12 16. Seal of the Commission, 13 17. Secretary of the Commission, 13 18. Special Examiners, 13 19. Employees, 13 20. Docket of the Commission, 14 21. Time required for a Decision, 14 Chapter II — Jueisdiction of the Commission: Sec. 22. Jurisdiction of the Commission, 15 23. Legal Status of the Commission, 16 24. Nature of Jurisdiction of Commission, 16 25. Effect of Lack of Jurisdiction, 17 26. Jurisdiction as Affected by the Amoiint in Controversy, 18 27. Necessity that Jurisdiction Appear, 18 28. Jurisdiction by Consent, 18 29. Territorial Jurisdiction of the Commission, 19 30. Exclusive Jurisdiction of the Commission, 20 31. Concurrent Jurisdiction, 21 32. Jurisdiction to Determine Entire Controversy, 22 33. Authority to make Investigations on Initiative of Commission, 24 34. Jurisdiction to Grant Belief under Long and Short Haul Sec- tion, 25 35. Jurisdiction of Commission to make an Order upon Petition, . . 26 36. Miscellaneous Judicial Powers of the Commission, 28 37. Jurisdiction to Award Eeparation, 29 IX X TABLE OF CONTENTS Chapter II — Jtibisdiction of the Commission — Continued. Page Sec. 38. Carriers over wHcli Comniission has or has not jurisdiction, . . 32 39. Jurisdiction of Commission as Affected by Character of Com- merce, 36 40. Questions which the Commission will not Determine, 42 41. Comity between the Interstate Commerce Commission and State Commissions, 44 42. Comity between the Commission and the Courts, 45 Chapter III — Additional Powers and Duties op Commission Under Act to Eegtoate Commerce: Sec. 43. Additional Powers and Duties of the Commission, 47 44. Executive and Administrative Duties, 47 45. Supervisory and Eegulatory Powers, 49 46. Auxiliary Powers of the Comniission, 50 Chapter IV — Duties and Powers op Commission Under Acts Other Than Acts to Eegulate Commerce: Sec. 47. Authority and Duties of the Commission under Acts other than the Interstate Commerce Acts, 51 48. Authority and Duty of Commission under Act of August 7, 1888, 52 49. Authority of Commission under Safety- Appliance Acts, 54 50. Authority of Comniission to Investigate and Report on Block Signal Systems, 55 51. Authority of Commission to Approve Certain Interlocking or Automatic Signals at Crossings, 56 52. Authority of Commission Kespecting Accident Reports of Car- riers Engaged in Interstate Commerce, 56 53. Authority of Commission under Joint Resolution to Make Ex- aminations into Railroad Discrimiuations and Monopolies in Coal and Oil, 57 54. Authority of Commission under Act to Promote the Safety of Employees on Railroads (ash pan act), 58 55. Authority of Commission over Street Railways in the District of Columbia, 58 56. Authority of Commission under the Act to Promote the Safety of Employees and Travellers, 59 57. Authority of Commission under the Act to Promote the Safe Transportation in Interstate Commerce of Explosives and other Dangerous Articles, 59 58. Duty of Chairman of Commission under Arbitration Act, .... 60 59. Relation of Interstate Commerce Commission to Anti-trust Law, 60 60. Relation of the Commission to Customs and Immigration Laws, 63 Chapter V — Interpretation and Construction op the Act to Regulate Com- merce: Sec. 61. General Rule of Construction of Act to Eegulate Commerce, . . 65 62. Construction of the Act to Regulate Commerce by the Courts, 65 63. Rules of Construction Provided in Acts to Eegulate Commerce, 66 TABLE OF CONTENTS XI CHAPTEE V — INTEEPEETATION AND CONSTRUCTION OF THE ACT TO EEGULATE COMMBEOB — Continued. Page Sec. 64. Interpretation of Act to Eegulate Commerce by Commission, . . 67 65. Construction of Act to Eegulate Commerce by Commission, ... 68 66. Construction of Particular Sections by the Commission, 70 67. The Subjects Contained in the Administrative Eulings and Opinions, 85 Chapter VI — Pleading and Practice Before the Commission : Sec. 68. Election of Forum, 91 69. Limitation of Actions, 92 70. The Proceedings in a Case before the Commission, 97 71. Pleadings before the Commission, 98 72. Eules of Pleading, 98 73. Classes of Complaints, 98 74. Form and Requisites of the Complaint, 100 75. What the Petition should Contain, 102 76. Form of Allegations, 103 77. Anticipated Defenses, 104 78. Technical Terms and Abbreviations, 104 79. Pleading Written Instruments, 104 80. Prayers, 105 81. Verification, 106 82. Matters not Known to Party Pleading and Matters Peculiarly within Knowledge of Adverse Party, 106 83. BfEect of Omission to make Proper Allegations, 106 84. Conclusiveness of Allegations on Party Pleading; Waiver of Part of Allegations, 106 85. Amendments, 107 86. Formal Defects in Pleadings; Scandal and Impertinence; Mul- tifariousness; Departure and Variance, 108 87. Admissions, 109 88. Exhibits; Bill of Particulars, 109 89. Filing of Complaint; Copies of Complaint; Service of Com- plaint, 110 90. Time of Filing Pleadings, 110 91. Appearances, Ill 92. Dilatory Pleas, Ill 93. Parties, 112 94. Proper Description of Parties, 112 95. Parties Complainants, 112 96. One or More Parties on Behalf of AH Interested, 113 97. Those in Fiduciary Capacity as Parties, 114 98. Joinder of Complainants; Misjoinder; Striking Out Parties, . . 114 99. Parties Defendant, 115 100. Those Who Must Be Joined as Defendants, 120 101. Effect of Failure to Object to Proper Parties, 120 102. New Parties, 121 103. Intervention, 122 104. Time for Answer; Extension of Time for Answer, 123 105. The Answer, 123 106. Notice in the Nature of Demturer, 123 XII TABLE OP CONTENTS Chapter VI — Pleading and Peacticb Before the Commission — Continued. Page Sec. 107. Pleading Different Defenses, ■. 123 108. Effect of Answer of Part Only of Petition, 125 109. Service of Answer, 125 110. Disclaimer, 125 111. Issues; Replication; Joinders of Issue, 125 112. Exceptions to Answer, 126 113. Joint Answers, 126 114. Hearings, 127 115. Briefs, 127 116. Argument, 129 117. Copies of Testimony, 129 118. Motions, 129 119. Costs; Counsel Fees, 130 120. Practice in Eeparation Cases, 130 121. Practice in Applications for EeUef under the Long and Short Haul Section, 137 122. Dismissal of Cases at the Request of the Parties, 138 123. Refund of Overcharges through Error, 138 124. Orders of the Commission, 139 125. Duration of Orders, 140 Chapteb VII — Evidence Before Commission: Sec. 126. Application of the Rules of Evidence, 143 127. Judicial Notice, 144 128. Nature of Testimony before the Commission, 145 129. Qualification of Witnesses, 147 130. Subpoena Duces Tecum, 148 131. Evidence under the Pleadings, 149 132. Best and Secondary Evidence, 150 133. Order of Evidence, 150 134. Burden of Proof, 151 135. Presumptions, 151 136. Estoppel, 153 137. Hearsay, 155 138. Exceptions to Evidence, 156 139. Documentary Evidence, 156 140. Parol or Extrinsic Evidence Affecting Writings, 156 141. Custom and Usage, 157 142. Notice to Produce, 158 143. Depositions, 158 144. Ex parte Affidavit, 159 145. Tees of Witnesses, 160 146. Immunity of Witnesses, 160 147. Adverse Witnesses, 164 148. Examination of Witnesses, 164 149. Necessity for Proof, 165 150. The Evidence Required in Particular Cases, 167 Chapter VIII — Proceedings After Order: Sec. 151. Proceedings after Order, 18i 152. Eehearings, 18i TABLE OP CONTENTS XTTT Chaptbb VIII — Peocbedings After Ordek — Continued. Page Sec. 153. Modification of Orders, 184 154. Proceedings after Order Granting Relief, 185 155. Proceedings after Order Dismissing the Petition, 186 Part II — Procedure Before the Courts Chapter IX — Jurisdiction of Courts in Interstate Commerce: Sec. 156. Jurisdiction of Federal Courts, 191 157. Equitable Jurisdiction of Federal Courts to Protect Interstate Commerce, 191 158. Jurisdiction of Courts in Interstate Commerce Oases, 193 159. Essentials to Confer Jurisdiction on Federal Courts, 196 160. Powers Given to the Federal Courts by the Interstate Com- merce Acts, .' 197 161. Jurisdiction of Circuit Courts, 198 162. Jurisdiction of District Courts, 200 163. Jurisdiction of Federal Courts in Suits for Forfeiture, 202 164. Jurisdiction in Mandamus, 203 165. Jurisdiction of Federal Courts to Enjoin, Set Aside, Annul or Suspend Order of the Commission, 205 166. Jurisdiction to Enjoin Eates Effective in the Future, 207 167. Jurisdiction over Crimes and OfEenses, 210 168. Venue of Actions in the Federal Courts, 229 169. Jurisdiction Not Conferred Toj Consent, 233 170. Jurisdiction on Removal, 233 171. Nature of the Jurisdiction of the Federal Courts in Civil Cases Brought to Enforce an Order of the Commission, 234 172. Limitations of Actions before the Courts, 238 173. Expedition of Suits, 239 174. Contempt of Order to Appear before the Commission, 240 175. Jurisdiction and Power of Federal Courts to Grant Injunc- tions, 241 Chapter X — Pleading and Practice Before the Federal Courts in Interstate Commerce Cases: Sec. 176. Pleadings, 245 177. Parties in Proceedings before the Court, 246 178. Requisites of a Bill to Enforce an Order of the Commission, . . 248 179. Requisites of a Bill to Enjoin, Set Aside, or Annul an Order of the Commission, 248 180. Requisites of a Bill to Enjoin a Rate or Practice Effective in the Future, 250 181. Answers, 250 182. Practice, 251 183. Certificate of General Public Importance, 252 184. Assigning Claims, 253 185. Practice in Injunction, 253 186. Leave of Court not Necessary to Sue Receiver, 254 187. Removal of Causes from State Court to Federal Court, 255 188. Special Counsel, 255 189. Attorney's Fees, 255 ^^ TABLE OP CONTENTS Chaptee XI — EvmENCB Bepoee the CoTHtTS : Page Sec. 190. Eules of Evidence Prescribed by the Acti, 257 191. Competency of Witnesses, 258 192. Compelling Attendance of Witnesses before Commission, 258 193. Evidence in Civil and Criminal Cases, 259 194. Immunity of Witnesses, 261 195. Weight of Evidence of Opinion of Commission, 262 196. Introduction into Court of Testimony Given Before the Com- mission, 263 197. Certified Copies to be Admitted as Evidence, 263 198. Judicial Notice of Seal of Commission, 264 199. Accident Reports Not to be Used as Evidence, 264 200. Tees of Witnesses, 264 Chaptee XII — ^Appeal and Eeroe: Sec. 201. Appeal in Criminal Cases, 265 202. Appeals Direct to the Supreme Court, 265 203. Appeals to the Circuit Court of Appeals, 267 204. Costs on Appeal, 268 Appendix The Acts to Eegulate Commerce, 271 Digest of the Act to Eegulate Commerce, 272 The Act to Eegulate Commerce, 279 The Immunity Act, 300 Act Defining Eight of Immunity, 301 Digest of Elkins' Law, 302 The Elldns' Law, 303 Expediting Act, 307 Street Eailways in the District of Columbia, 308 Excerpts from Administrative Eulings and Opinions, 309 Forms for Use Before the Commission, 315 Forms for Use Before the Courts, 339 Eules of Practice Before the Commission, 374 Methods of Ascertaining Cost of Carriage, 382 Correct Titles of the Leading Eailroads, 391 Bibliography, 395 Table of Cases, 399 PART I Procedure Before the Interstate Commerce Commission CHAPTER I I N T R D TJ C T 1 N Sec. 1. Genesis of the Interstate Commerce Commission. — The Inter- state Conunerce Commission was created by "An act to regulate com- merce," approved February 4, 1887 (24 Stat. L., 379). By this act,' the Commission consisted of 5 Commissioners appointed by the Presi- dent by and with the advice and consent of the Senate. Prior to the amendment of March 2, 1889 (25 Stat. L., 855) the Commission re- ported annually to the Secretary of the Interior and it was considered and deemed a part of that Executive Department. By the act just mentioned, which is still in force and effect, the Commission is re- quired on or before the 1st day of December in each year to make a report direct to the Congress. This change segregated the Commis- sion from the Interior Department, and since 1889 it has been an in- dependent organization, not attached to or forming a part of any of the Executive Departments. It is, in theory, responsible only to the Congress, to which it is directed to report. The amending statute, approved June 29, 1906, increased the num- ber of Commissioners to 7, appointed for a term of seven years, one retiring each year, and each receiving an annual salary of $10,000. The present Commissioners ' are Martin A. Knapp, of New York, chairman; Judson C. Clements, of Georgia; Charles A. Prouty, of Vermont; Francis M. Cockrell, of Missouri; Franklin K. Lane, of California; Edgar E. Clark, of Iowa, and James S. Harlan, of Illi- nois. The name "Interstate Commerce Commission" may convey the im- ' The act was modeled upon the following English acts : The railway and canal traffic act, 1854, (17 and 18 Viet., c. 31), and The regulation of railways act, 1868, (31 and 32 Vict., c. 119), and The regulation of railways act, 1873, (36 and 37 Vict., c. 48). Previous legislation under the commerce clause of the Constitution was act of Mar. 3, 1873 (now sees. 4386-4390 E. S. U. S.), relating to the transportation of live stock; act of June 15, 1866 (now sec. 5258 E. S. U. S.), permitting carriers by rail to form continuous lines; act of May 29, 1884, prohibiting interstate transportation by railroads of livestock afflicted with contagious diseases. ' The first Commission consisted of Thomas M. Cooley, of Michigan, chairman ; William E. Morrison, of Illinois; Augustus Shoonmaker, of New York; Aldace F. Walker, of Vermont, and Walter L. Bragg, of Alabama. Others who have served on the Commission are Wheelock G. Veazey, of Vermont; James W. Me- DUl, of Iowa; James D. Yeomans, of Iowa; William J. Calhoun, of Illinois, and Joseph W. Fifer, of rUinois, 4 INTEOOTTCTION pression that all or a large part of the power prrant^-zl U, th^-- Coogreas by the Constitution ' is vested in that body. Hii<:h m not. thco^- As a matter of fact very general provisions for \h>: r*-«ii\fitt(fr, of. interstate commerce are confided by law to the Dej-artrnwit of Commerce and Labor* and are exercised by it through the Bureau of Corporataons, Bureau of Navigation, Light-House Board, Stfvur.boat Inspection Serv- ice, and like agencies of the Government. The commerce regulated by the act to regulate commerce anrl subjef^ to the control of the In- terstate Commerce Commission, is confined to that large body of interstate commerce dependent upon railroads for its movement, or, under the act of June 29, 1906,' upon certain carriers whose operation is closely allied to carriers by rail and upon pipe lines. The causes leading up to the passage of the original act to regulate commerce were judicially stated by the Supreme Court in L C. C. v. C. N. 0. & T. P. R. Co. (167 U. S., 479), as follows: Before the passage of the act [to regulate commerce] it was generaUy be- lieved that there were great abuses in railroad management and railroad trans- portation, and the grave question which Congress had to consider was how these abuses should be corrected and what control should be taken of the businesa of such corporations. The complaints against the then existing railway management were thus stated in the report of the Senate Select Committee on Inter- state Commerce (Cullom Committee), submitted to the Senate Janu- ary 18, 1886 (p. 180) : 1. That local rates are unreasonably high, compared with through rates. 2. That both local and through rates are unreasonably high at noneompeting points, either from the absence of competition or in consequence of pooling agreements that restrict its operation. 3. That rates are established without apparent regard to the actual cost of the service performed, and are based largely on "what the traf&o will bear." 4. That unjustifiable discriminations are constantly made between individuals in the rates charged for like service under similar circumstances. 5. That improper discriminations are made between articles of freight and branches of business of a like character, and between different quantities of the same class of freight. 6. That unreasonable discriminations are made between localities similarly situated. 7. That the effect of the prevailing policy of railroad management is, by an elaborate system of secret special rates, rebates, drawbacks and concessions, to foster monopoly, to enrich favored shippers, and to prevent free competition in many lines of trade in which the item of transportation is an important factor. 'Constitution (art. I, sec. 8, CI. 3): "The Congress shall have power • » • to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." •Established by act of Feb. 14, 1903 (32 Stat. L., 830). " ' ' Tho act to amend an act entitled ' An act to regulate commerce, ' approved Feb. 4, 1887, and all acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission." Approved June 29, 1906 (34 Stat. L., 504). INTBODUCTION 5 8. That Buch favoritism and secrecy introduce an element of uncertainty into legitimate business that greatly retards the development of our industries and commerce. 9. That the secret cutting of rates and the sudden fluctuations that constantly take place are demoralizing to all business except that of a purely speculative character, and frequently occasion great injustice and heavy losses. 10. That, in the absence of national and uniform legislation, the railroads are able by various devices to avoid their responsibility as carriers, especially on shipments over more than one road, or from one State to another, and that ship- pers find great difficulty in recovering damages for the loss of property or for in- jury thereto. 11. That railroads refuse to be bound by their own contracts, and arbi- trarily collect large sums in the shape of overcharges in addition to the rates agreed upon at the time of shipment. 12. That railroads often refuse to recognize or be responsible for the acts of dishonest agents acting under their authority. 13. That the common law fails to afford a remedy for such grievances, and that in cases of dispute the shipper is compelled to submit to the decision of the railroad manager or pool commissioner, or run the risk of incurring further losses by greater discriminations. 14. That the differences in the classifications in use in various parts of the country, and sometimes for shipments over the same roads in different direc- tions, are a fruitful source of misunderstandings and are often made a means of extortion. 15. That a privileged class is created by the granting of passes, and that the cost of the passenger service is largely increased by the extent of this abuse. 16. That the capitalization and bonded indebtedness of the roads largely ex- ceed the actual cost of their construction or their present value, and that un- reasonable rates are charged in the effort to pay dividends on watered stock and interest on bonds improperly issued. 17. That railroad corporations have improperly engaged in lines of business entirely distinct from that of transportation, and that undue advantages have been afforded to business enterprises in which raUroad officials were interested. 18. That the management of the railroad business is extravagant and waste- ful, and that a needless tax is imposed upon the shipping and traveling public by the unnecessary expenditure of large sums in the maintenance of a costly force of agents engaged in a reckless strife for competitive business. The idea of a commission in connection with the creation and affirmance of rights and as contradistinguished from a court, the commission to have power to investigate complaints of shippers and to secure information from which to recommend additional legislation, came from the then existing railway commissions in the various States and Territories. In 1886 there were 38 States and 8 Terri- tories, 46 in all. In 10 States and 6 Territories there was then in force no regulation of carriers, or practically none. These States and Territories were Arkansas, Delaware, Florida, Indiana, Louisiana, Maryland, Pennsylvania, New Jersey, Tennessee and West Virginia (States), and Arizona, Idaho, New Mexico, Washington and Utah (Territories). In the remaining 30 States and Territories, all of 6 INTRODUCTION which had some regulation of carriers, the commission system had been adopted by 25, but Nevada, North Carolina, Oregon, Texas, and Montana depended on legislative restrictions and no special means for their enforcement had been provided. The following States and Territories had railroad commissions in 1886, the date of their establishment being as indicated : New Hamp- shire, 1844; Connecticut, 1853; Vermont, 1855; Maine, 1858; Ohio, 1867; Massachusetts, 1869; Illinois, 1871; Rhode Island, 1872; Michi- gan, 1873; Wisconsin and Minnesota, 1874; Missouri, 1875; Cali- fornia and Virginia, 1876 ; Iowa and South Carolina, 1878 ; Georgia, 1879; Kentucky, 1880; Alabama, 1881; New York, 1882; Kansas, 1883; Mississippi, 1884; Nebraska, Colorado, and Dakota Territory, 1885. The difficulty experienced by the user of transportation facilities in enforcing his common-law rights and of the necessity for some addi- tional remedy, such as the commission system, was stated by the re- port of the Georgia Railway Commission in its report for 1881, as follows : Prior to the act of 1879 [the act creating the Georgia conunission] the com- mon-law right of the citizen to be protected against extortion and unjust dis- crimination existed in its full force, but the remedy for its violation was wholly- inadequate. Practically the citizen had no rights, though his theoretical right was ample and complete. The rights of the railroad companies were well defined enough, and their remedies also were adequate, being in their own hands. It was their capacity for abusing their powers which was not sufficiently held in cheek. * * * So unequally were the parties matched that in the whole history of the State there has been (so far as we remember) not one single case of a suit by a citi- zen to enforce this common-law right — and but one to enforce even a statutory right for an overcharge. In that case the charter of the railroad in express terms bmited the rates, yet the railroad fixed its rates beyond the chartered limit, printed them and collected them, and was checked by this suit. A remarkable commentary on the absolute worthlessness of rights without remedies. The character of the State railroad commissions, their varying powers and their effect upon railway management was thus stated by the special committee of the Senate (Cullom committee) in its re- port in 1886 (p. 64) : The State railroad commissions, which are to-day a recognized factor in rail- way administration, have come into existence and prominence within the last ten or fifteen years, although there were so-called commissions at an earlier period. New York had a short-lived one in 1855, and after the civU war several were created for a temporary purpose, distinct from regulation, such as that in Arkansas, which passed upon applications for State aid to railroads, and that in Tennessee, in 1870, which was authorized to sell or lease raUroads in default to the State for loans. There are marked differences in the plan upon which the existing State commissions are organized. Of the older ones, those of the New England States, with the exception of Massachusetts and New Hampshire. Introduction 7 form a distinct class by themselves, their duties being mainly limited to the in- spection of the railway equipment and service. Of an entirely different type were the commissions of the Western States, which owed their origin to the wide spread "granger" movement. Whatever may be said of the character of the legislation inspired by that agitation, it certainly served a timely and useful purpose in its day, and substantial and beneficial re- sults must be accredited to that popular uprising against the railroad corpora- tions. Matters had reached such a pass that nothing short of the sturdy, force- ful methods adopted in Illinois and in neighboring States could have allayed the gathering storm of public indignation which the then existing methods of man- agement had aroused. But when, in the notable "granger cases," the United States Supreme Court upheld those methods and left the railroads at the mercy of the State legislatures, the corporations assumed a radically different attitude toward the community and toward the law-making power. They have since been more ready to recognize their public obligations, greater respect for public opinion is manifested, and in consequence the recommendations of the State commissions, which were at first contemptuously ignored, have since, as a rule, been complied with. This radical change of policy, not adopted voluntarily, but prompted solely by motives of self-interest, has been taken advantage of by the State commis- sions with acknowledged favorable results, chief among which have been the cultivation of a better understanding and state of feeling between the railroads and the people, and a sufleient mitigation of the local abuses most prevalent to sensibly diminish the volume of complaint. Sec. 2. Qualifications of the Commission. — In order to be eligible Commissioners shall not be in the employ of, or hold any official re- lation to, any common carrier subject to the provisions of the act to regulate commerce, or own stock or bonds therein, or in any manner be pecuniarily interested in such common carriers. It is further pro- vided that the Commissioners shall not engage in any other business, vocation or employment. Not more than four of the Commissioners shall belong to one political party. Commissioners may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Sec. 3. Divisions in the Office of the Commission. — For the purpose of conducting the business of the Commission expeditiously several divisions have been provided for, including the operating division, division of prosecutions, safety appliance division, division of statis- tics and accounts, and division of tariffs and transportation. Sec. 4. Operating division. — The operating division has charge of the correspondence of the Commission with shippers and carriers. For the purpose of promptly answering inquiries coming from va- rious sections of the country, certain States have been assigned to the several Commissioners and correspondence relating to them is con- ducted by a particular Commissioner. The grouping of these States for the purpose of correspondence should not be confused with either the statistical grouping {see sec. 10, post), or the assigning of cases to the several Commissioners for decision. 8 INTRODUCTION When cases are at issue and ready for hearing they are assigned to the several Commissioners by lot. Correspondence preliminary to filing a case may therefore be with one Commissioner, while the case may be assigned for hearing and decision to another. Correspondence with the Commission ought to be addressed to the Commission at its office, American National Bank Building, 1317 F street northwest, Washington, D. C, xmless specific directions other- wise have been made." Correspondence by carriers or corporations having several officials ought to be conducted by them with as few of the officials as possible, in conformity with Administrative Kules and Opinions, No. 79 (issued Nov. 16, 1906).' Sec. 6. law division. — The law division has general supervision of the legal force and staff of the Commission for the usual business and also when the Commission is a party to proceedings in the Federal courts. The legal staff consists of a solicitor and a number of attor- neys regularly employed by the Commission and at times special coim- sel employed for particular cases. Sec. 5a. Claims division. — This division "is charged with the in- vestigation of claims involving reparation by the carrier to the ship- per on account of alleged overcharge due to the application of exces- sive and unreasonable rates, misrouting, etc., which may be settled on informal complaint and are adjustable under the rules promulgated by the Commission." Sec. 6. Division of prosecutions. — The division of prosecutions, some- times called the "rebate division," takes charge of investigations into alleged criminal violations of the act. Upon receipt of information indicating criminal infraction of the interstate commerce law, this division makes such investigations as may be thought needful to de- termine whether or not the matter is one proper to be brought to the attention of the Department of Justice. If this question be resolved in the affirmative, the division prepares the case for presentation through the Department of Justice to the United States attorney in the district having jurisdiction. Sec. 7. Safety appliance division. — The division of safety appliances has charge of the alleged violations of the safety appliance acts," and for the purpose of detecting violations employs inspectors. An attor- 'Bules of Practice, rule XXI. See Appendix. 'Tariff Circular No. 15-A, effective Apr. 15, 1908, p. 82. ■An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driv- ing-wheel brakes, and for other purposes, approved Mar. 2, 1893 (27 Stat. L. 531; 2 Supp. E. S., 102), as amended by an act approved Apr. 1, 1896 (29 Stat! L., 85; 2 Supp. E. 8., 455), and an act to amend an act entitled "An act to promote the safety of employees and travelers, and so forth," approved Mar. 2 1893, and amended Apr. 1, 1896, approved Mar. 2, 1903 (32 Stat. L., 943) and INTKODUOTION 9 ney, employed by the Commission, is especially assigned to prosecute such violations of these acts. Sec. 8. Division of statistics and accounts. — The division of statis- tics and accounts has charge of the annual reports of carriers filed in conformity with law and the rules of the Commission, and is in charge of the Statistician of the Commission. These statistics, when compiled, are published in "Statistics of Railways in the United States," one volume appearing annually. Sec. 9. Division of tariffs and transportation. — The division of tar- iffs and transportation has charge of the tariffs and schedules required by law to be filed with the Commission. The division is in charge of the Auditor, who prepares, at the direction of the Commission for use in court, certified copies of the contents of tariffs, and also furnishes, within reasonable boimds, the tariff rates applying between designated points. Sec. 10. Statistical groupings. — In the division of statistics and ac- counts, and for the purpose of yearly compiling the statistics of rail- ways, the United States is divided into 10 territorial groups. These groups do not correspond with the divisions of the country by which the correspondence is assigned to the several members of the Com- mission. The territorial groups for statistical purposes cover ia a measure the railway or association divisions of the country. The groups or territorial divisions for statistical purposes are : ' Group I. TMb group embraces the States of Maine, New Hampshire, Vermont, Massachusetts, Bhode Island, and Connecticut. Group II. This group embraces the States of New York, Pennsylvania, New Jersey, Delaware, and Maryland, exclusive of that portion of New York and Pennsylvania lying west of a line drawn from Buffalo to Pittsburg via Salamanca, and inclusive of that portion of West Virginia lying north of a line drawn from Parkersburg east to the boundary of Maryland. Group III. This group embraces the States of Ohio, Indiana, the southern peninsula of Michigan, and that portion of the States of New York and Penn- sylvania lying west of a line drawn from Buffalo to Pittsburg via Salamanca. Group IV. This group embraces the States of Virginia, North Carolina, South Carolina, and that portion of the State of West Virginia lying south of a line drawn east from Parkersburg to the boundary of Maryland. Group V. This group embraces the States of Kentucky, Tennessee, Mississippi, Alabama, Georgia, Florida, and that portion of Louisiana east of the Mississippi Eiver. Group VI. This group embraces the States of Illinois, Wisconsin, Iowa, Minne- sota, the northern peninsula of the State of Michigan, and that portion of the States of North Dakota, South Dakota, and Missouri lying east of the Missouri Biver. Group VII. This group embraces the States of Montana, Wyoming, Nebraska, that portion of North Dakota and South Dakota lying west of the Missouri an act authorizing the Commission to employ safety-appliance inspectors, ap- proved June 28, 1902 (32 Stat. L., 444). ' Tenth annual report, p. 97. 10 INTEODUCTl0^f Eiver, and that portion of the State of Colorado lying north of a Une drawn east and west through Denver. Group VIII. This group embraces the States of Kansas, Arkansas, that por- tion of the State of Missouri lying south of the Missouri Biver, that portion of the State of Colorado lying south of a line drawn east and west through Denver, that portion of the State of Texas lying west of Oklahoma, and the Territories of Oklahoma, Indian Territory, and the portion of New Mexico lying northeast of Santa Fe. Group IX. This group embraces the State of Louisiana, exclusive of the por- tion lying east of the Mississippi Biver, the State of Texas, exclusive of that portion lying west of Oklahoma, and the portion of New Mexico lying southeast of Santa Pe. Group X. This group embraces the States of California, Nevada, Oregon, Idaho, Utah, Washington, the Territory of Arizona and that portion of the Territory of New Mexico lying southwest of Santa Fe. Sec. 11. Decisions of the Commission. — The cases decided by the Commission now cover 13 volumes, the first 11 of which were privately published," but beginning with volume 12 the decisions were published by the Government, and may be obtained from the Super- intendent of Documents, Government Printing Office, Washington, D. C. The reported decisions of the Commission should not be con- fused with the Annual Keports " of the Commission. The latter are the reports of the Commission to the Congress, and while they include reference to the more important cases decided by the Commission in the preceding year, the decisions a;re not therein reported in full, as in the former. These reports of decisions are cited as "I. C. C," "Int. Com. Eep.," or "Inters-Com. Eep." The official reports of the decisions of the Commission are : Interstate Commerce Commission Reports, 5 volumes, 1887-1893, published by Strouse & Co., New York. Interstate Commerce Reports, 6 volumes, 1893-1906, published by The Lawyers' Co-operative Publishing Co., Rochester, N. Y. Interstate Commerce Commission Reports, 2 volumes. (Volumes XII and XIII) published by the Government Printing Office, Wash- ington, D. C, containing the decisions from 1906 to date and to con- tinue. While the early decisions of the Commission published by The Lawyers' Co-operative Publishing Company (volumes I-IV) contain- ing, in addition to the decisions of the Commission, some of the '° The Lawyers' Co-operative Publishing Co. (Eochester, N. Y.). The same com- . pany published in 1896 an additional volume, being volume V, Decisions on In- terstate Commerce Eendered by the Federal and State Courts. Five volumes of the decisions of the Commission were published by Strouse & Co. These cover tjie decisions from 1887 to 1893, under the title "Interstate Commerce Commis- sion Eeports" and are official. The volumes printed by the Government are entitled "Interstate Commerce Commission Beports. " "The first four annual reports are reprinted in the decisions of the Commis- sion, published by Strouse & Co. INTRODUCTION 11 pleadings and evidence in eases and as well the first four Annual Reports of the Commission, are not official within the meaning of section 14 of the act, so that they are competent evidence in all courts of the United States and of the several States without any further proof or authentication, they are in general use and frequently cited. The citations in this work are to the official editions : The Strouse edition, volumes I-V; Lawyers' Co-operative edition, volumes VI-XI; Government Printing Office edition, volumes XII-XIII, and Advance Sheets, volume XIV. Sec. 12. Annual Reports of the Commission. — The Annual Reports of the Commission contain, in conformity with law, much "in- formation and data collected by the Commission as may be considered of value in the determination of questions connected with the regu- lation of commerce, together with such recommendations as to addi- tional legislation relating thereto as the Commission may deem neces- sary." These reports are valuable in that they review"^ yearly the decisions of the courts wherein they affect the powers or the work of the Commission, or the commerce clause of the Constitution. They are also valuable in that in them is to be f oimd an official discussion of the various transportation problems of our economic development. Speaking generally these reports are the most valuable of the publi- cations of the Commission. Sec. 13. Administrative rulings and opinions. — The Commission has deemed it necessary from time to time beginning with the last amend- ment to the act, in 1906, to make certain rulings and opinions involving the construction and interpretation of the law. The necessity for these rulings and opinions arises largely from the fact that any vio- lation of the act is made a misdemeanor and punishable. Parties un- certain of the meaning and intent of the act have applied to the Com- mission for advice in numerous instances, and the Commission has made certain general rules concerning routing, joint rates, passes, etc. These rules are for the guidance of shippers and carriers, and in addition to indicating what the Commission consider a violation of the law, assist materially to an understanding of the intent of the law.° In the Twenty-first Annual Report, the Commission referred to its practice of making Administrative Rulings, as follows (p. 5) : " These reports contain syllabi of the decisions of the Commission in cases de- cided by them; the report for 1904 contains syllabi of all previously decided cases; subsequent reports contain the syllabi for cases decided during the pre- vious year only. "The Executive Departments mil not ordinarily make a ruling interpreting a law, but leave to one interested to place his own construction upon it. A notable instance of the custom is to be found in the record of the first conviction under the pure ' drugs act ; the manufacturer of a remedy asked whether or not the label on the package was, in the judgment of the department, a compliance with the law; no information was given him, but a prosecution was brought. (IT. S. V. Harper, in the Police Court for the District of Columbia, 1908). 12 INTRODUCTION A considerable part of the time has been occupied in giving administrative construction to various provisions of the law for the guidance of both shippers and carriers. To secure the best results of legislation with the least possible delay there was obvious need of a correct and uniform interpretation of the statute. Therefore, without reference to questions arising in particular eases, and to avoid unnecessary controversy, it has seemed our duty to construe the law in advance wherever it appeared obscure or ambiguous, so that the obligations of the raib-oads and the rights of the public might be promptly understood. This has resulted in numerous rulings explaining our view of the meaning and application of different sections and paragraphs of the statute. These rulings have in practically every instance been accepted by the carriers, even in cases where their legal advisers were not entirely in accord with the opinion of the Commission. The rulings and regulations already promulgated vrill be revised and printed in a separate document. The benefits of this course are beyond question. The Commission has en- deavored to adopt a workable construction of the law in all cases, and has as a rule announced its conclusions in matters of importance only after conference and discussion with representative shippers and traf&e officials. The list of the subjects concerning which administrative rulings and opinions have been made will be found in section 67, post, and those which deal with the jurisdiction of and procedure before the Com- mission are reproduced in the Appendix. Sec. 14. Publications of the Commission. — The more important pub- lications of the Commission are : Annual Eeports, 22 vols., 1888-1908. Statistics of EaUways in the United States, 20 vols., 1888-1908. Proceedings National Association of Eailway Commissioners, 20 vols., 1889- 1908. EaUways in the United States in 1902. (Parts II, IV, V.) " Part II. A forty-year review of changes in freight tariffs. Prepared by the Auditor of the Commission. Part rv. State regulation of railways. Prepared by the Statistician to the Commission. Part V. State taxation of railways and other transportation agencies. Pre- pared by the Statistician to the Commission. Interstate Commerce Law as changed by the act of June 29, 1906." Tariff Circular 15- A, containing regulations governing the construction and filing of freight tariffs and classifications and passenger fare schedules; also admin- istrative rulings and opinions. Bulletin No. 1. Conference rulings of the Commission. Tariff Circular 16-A, containing regulations governing the construction and filing of classifications and tariffs of express companies; also administrative rulings and opinions. Bulletin No. 2. Conference rulings of the Commission. Sec. 15. Sessions of the Commission. — The general sessions of the " Parts I and III have never been published. "Senate Doc. 266, 59th Cong., 2d sess., contains in parallel columns the act to regulate commerce and similar acts, showing the former acts and the same as amended by the act of June 29, 1906; the compilation, which is a valuable one for reference, is by C. E. Hillyer, esq., of the Department of Commerce and Labor. INTRODUCTION 13 Commission for hearing contested cases, including oral arguments, are held at its office in Washington at such times as the Commission may designate. Two weeks, begianing with the first Monday of each month, are set aside for the purpose of general sessions." Special sessions are held outside of "Washington at such time and place as the business of the Commission may warrant and as it may deem expedient. Sec. 16. Seal of the Commission. — The Commission is authorized by section 17 of the act to regulate commerce to have an official seal, and it is provided that this seal shall be judicially noticed. Sec. 17. Secretary of the Commission. — Under the act to regulate commerce, the Commission is authorized to have a Secretary, and that official acts as the chief executive officer of the body. Certifications are issued in his name and correspondence, other than that relating to prospective complaints, is conducted with him." Sec. 18. Special examiners. — Under the act of June 29, 1906, the Commission is authorized to "employ special agents or examiners, who shall have authority imder the order of the Commission to in- spect and examine any and all accounts, records, and memoranda" kept by the carriers subject to the act. The same act provides — And to carry out and give effect to the provisions of the » * * [interstate commerce acts] • * » the Commission is hereby authorized to employ spe- cial agents or examiners who shall have power to administer oaths, examine wit- nesses, and receive evidence. — (Sec. 20.) The Commission employs a number of special agents and examiners for the purposes just mentioned. The examiners" appointed in conformity with law to administer oaths, examine witnesses, and receive evidence, are 8 in number, one of whom is known as chief examiner ; 7 of them act as assistants, one to each Commissioner. The chief examiner has charge of receiving petitions and authorizing service thereon if they be in due form; he also assigns cases for hearing and attends to other matters in connec- tion with formal complaints. Sec. 19. Employees. — In addition to those above mentioned, the Commission has a considerable number of employees such as confiden- tial clerks, law clerks, and rate clerks — about 400, in aU. " Mondays are ' ' conference days " of the Commission, for the consideration of decisions and orders. The members can not usually be consulted on that day. " The present incumbent, Edward A. Moseley, has been the Secretary of the Commission since its organization. "The two classes of examiners should not be confused; one is to inspect ac- counts, the other to act as deputy commissioners and at the hearing of cases to administer oaths, examine witnesses and receive evidence. One deals with the accounts of railways inspecting its books, the other acts as a master or examiner in chancery, at the hearing of contested cases. 14 INTRODUCTION All of the employees are appointed by the Commission under the civil service rules. Sec. 20. Docket of the Commission. — The Commission keeps a docket of cases in which is entered the names of the parties complainant and defendant and the dates of filing the complaint, answer, hearings, arguments, briefs, and the report or opinion and order. Cases are entered serially." The docket, which remains at the office in Wash- ington, is much like a court docket, except there are no entries for costs. This docket also contains the "General investigations," under section 12 of the act; these cases are entitled "In re," or "In the matter of." When hearings are held outside of Washington, the entire record of the case is at hand; this contains, when complete, the complaint, an- swers, transcript of testimony, exhibits, briefs, stenographic notes of oral arguments, if any, correspondence in connection with the case, and report and opinion. The docket of informal complaints is much the same, each complaint taking a serial number. Sec, 21. The time required for a decision. — The time necessary in which to have a decision upon a formal complaint is, as in other sim- ilar matters, uncertain ; the reasons for delay which can be interposed are not as numerous, however, as in actions before the courts. Since the passage of the rate law of 1906, the number of complaints has been very large, and the Commission has been occupied not only with formal and informal complaints, but in prescribing forms of schedules and accounts and making administrative rulings. One can hardly ex- pect a decision, if the case be contested, in less than six months. This time may be necessarily lengthened by reason of numerous hearings, the delays incident to any proceeding, and the importance of the questions raised. The time usually required for an opinion after a case is submitted is from four to six weeks. " Fonnal complaints having numbers lower than 879 were filed prior to the date when the rate law of 1906 went into efEeet, Aug. 28, 1906; complaints numbered higher than 879 have been filed subsequent to that date. Informal complaints are numbered serially, the first number under the rate law of 1906 being 3727. CHAPTER II JURISDICTION OF THE COMMISSION Sec. 22. Jurisdiction of the Commission. — The term "jurisdiction" when used in connection with the Interstate Commerce Conunission in this work is used advisedly ; it is not used in the same sense as the term is applied to strictly judicial bodies. The Commission, exercis- ing as it does, some purely judicial functions, certainly quasi- judicial functions, it is perhaps not inappropriate to refer to its authority as "juriMiction" if one take and interpret broadly the definition in U. S. V. Arredondo (6 Pet., 709) : The power to hear and determine a cause is jurisdiction; it is coram judice, ■whenever a case is presented which brings this power into action. It is doubtful whether or not aU the proceedings before the Com- mission can be technically denominated "cases" and whether or not the subject-matter of all the proceedings and all the claims of the parties constitute a "cause" or a "controversy," and whether or not in all cases the Commission adjudicates or exercises judicial power over the parties to them. Some of the proceedings, and particularly, parts of them, are clearly judicial in their nature — i. e., the deter- mination of the reasonableness of an existing rate.^ Other features of the same proceeding have been said to be legislative in their na- ture — i. e., prescribing the rate for the future." Other proceedings lack the element of judicial power and are clearly administrative in their nature, such as the right to prescribe the form of accounts. In this chapter will be considered those powers of the Commission > In C. M. & St. p. R. Co. V. Minnesota (134 V. S., 418), the court said: "The question of the reasonableness of a rate of charge for transportation by a rail- road company, involving, as it does, the element of reasonableness both as re- gards the company and as regards the public, is eminently a question for judicial investigation, requiring the process of k,w for its determination." ' In I. C. C. V. C. N. O. & T. P. E. Co. (167 U. S., 479) the court held that "the power to prescribe a tarifE of rates for carriage by a common carrier is a legislative and not an administrative or judicial function." And in the same case, at p. 499, the court said: "It is one thing to inquire whether the rates which have been charged and collected are reasonable — that is, a judicial act ; but an entirely different thing to prescribe rates which shall be charged in the fu- ture — ^that is, a legislative act." Prior to the passage of the act of June 29, 1906, it had been held that the Interstate Commerce Commission had no power to prescribe rates for the future (C. N. O. & T. P. R. Co. v. I. C. C, 162 U. S., 184) ; that the Commission had no power to fix maximum rates (I. C. C. v. N. E. E. Co., 74 Fed., 70) ; that the Commission was not clothed with the power to fix rates (I. C. C. v. L. V. E. Co., 74 Fed., 784), 16 JUEISDICTION OF THE COMMISSION which may be exercised by courts and quasi- judicial tribunals; in the succeeding chapter will be considered those powers of the Commis- sion which are not ordinarily exercised by that class of bodies. Sec. 23. Legal status of the Commission. — The Interstate Commerce Commission occupies, as has been seen, a peculiar place in the Fed- eral Government, being disconnected from the Executive Depart- ments, not attached to the judiciary and reporting to, but not a part, of the legislature. The courts are not harmonious in stating its legal status. In T. & P. E. Co. v. I. C. C. (162 U. S., 197), after consideriag the language of the eleventh and sixteenth sections of the act, the court said: We think that the language of the statute, in creating the Commission and in providing that it shall be lawful for the Commission to apply by petition to the Circuit Court, sitting in equity, sufficiently implies the intention of the Congress to create a body corporate with legal capacity to be a party plaintiff or defen- dant in the Federal courts. In another case' the Commission is referred to as "an administra- tive board." That the power to "execute and enforce" is partly judicial, partly executive and administrative, but not legislative has been stated by the Supreme Court. ' It [the Commission] is neither a Federal court under the Constitution, nor does it exercise judicial powers, nor do its conclusions possess the eflScaoy of judicial proceedings." It has been said to exercise quasi- judicial powers.' Its functions have been said to be those of referees or special com- missioners.' Since the passage of the rate law ia 1906, the Commission has referred to itself as an administrative body," and has also said that "there is an analogy between the jurisdiction of the Commission and that of a court of equity."" See. 24. Nature of jurisdiction of Commission. — The jurisdiction of » C. N. O. & T. P. E. Co. V. I. C. C. (162 U. S., 184). See also I. C. C. v. C. N. O. & T. P. B. Co. (167 U. S., 479). •I. C. C. V. 0. N. O. & T. P. E. Co. (167 U. S., 479), •K. & I. B. Co. V. L. & N. E. Co. (37 Fed., 567). •I. C. C. V. C. N. O. & T. P. E. Co. (76 Fed., 183), I. C. C. v. C. N. O. & T. P. E. Co. (64 Fed., 981), T. & P. E. Co. v. I. C. C. (162 U. S., 197), I. C. C. v. C. N. 0. & T. P. E. Co. (167 U. S., 479), I. C. C. v. L. & N. E. Co. (73 Fed., 409). 'K. & I. B. Co. V. L. & N. E. Co. (37 Fed., 567). »M. and K. Shippers Assn. v. M. K. & T. E. Co. (12 I. C. C, 483). Under the former act the Commission in Toledo Produce Ex. v. L. S. & M. S. E. Co. (5 1. C. C, 166), referred to itself as a special tribunal whose duties, though largely administrative are sometimes semijudieial, but it is not a court empow- ered to render judgment and enter decrees. In a recent work it is said of the Commission: "It is no longer an inquisitorial and advisory body. It is an in- vestigating and prosecuting body, clothed with authority to inforce these orders." — Snyder Annotated Interstate Commerce Act, supplement, p. 87. »E. Com. V. H. V. E. Co. (12 I. C. C, 398). JURISDICTION OF THE COMMISSION 17 the Commission is purely statutory and its authority to act must be found either expressly or by necessary implication in the language of the statute ; the courts have not tolerated any implied powers even to accomplish what it was argued were necessary to reach the evils complained of and an essential part of the process of reasoning." While the act contains certain provisions by which obligations are imposed on common carriers, and the Commission is charged with executing and enforcing the act, yet oveir such matters the Commis- sion has no jurisdiction to order, but only to recommend." The jurisdiction of the Commission must be determined by the lan- guage of section 1 of the act ; " the regulations provided by the stat- ute are not coextensive with the power of the Congress imder the Constitution." It is manifest that the Commission does not have jurisdiction over all commerce among the States, nor over commerce with the Indian tribes, as such, nor all commerce with foreign nations. The Commission is limited to inquiring into violations of the act : Instance. — In N. Y. P. Ex. v. B. & O. E. Co. (7 I. C. C, 612), the Commission held that its jurisdiction is confined to inquiring, whether the situation respecting rates, through routes, and differentials which the carriers have created, is in vio- lation of the act to regulate commerce. Sec 25. Effect of lack of jurisdiction. — ^While in a particular in- stance the Commission may not have jurisdiction, it may, neverthe- less, if the matter involve interstate commerce and indicate viola- tions of the act, make an investigation ; for, by section 13, it is pro- vided — if * * * there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the mat- ters complained of in such manner and by such means as it shall deem proper. Want of jurisdiction of the Commission in any particular is neces- sarily fatal." "C. N. O. & T. P. E. Co. V. I. C. C. (167 U. S., 479) the court said: "The question debated is whether it [the act] vested in the Commission the power and duty to fis rates; and the fact that this is a debatable question, and has been most strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used and was so famiEar to the legislative mind and is capable of such definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication." "Ee Bills of Lading (14 I. C. C, 346). "In Ee Express Companies (1 I. C. C, 349) the Commission said: "The jurisdiction of the Commission is strictly statutory, and can not be extended by implication over other subjects than those which the act defines. In any case of doubtful jurisdiction it is far better that the legislative body should resolve the doubt." See also Cosmopolitan Shipping Co. v. Hamburg- American P. Co. (13 I. C. C, 266). "Mattingly v. P. Co. (3 I. C. C, 592). « Chandler C. O. Co, v. Ft. S. & W. E. Co. (13 I. C. C, 473), Manning v. C, 18 JURISDICTION OF THE COMMISSION Sec. 26. Jurisdiction as affected by the amount in controversy. — As the jurisdiction of the Commission is not ousted by the absence of damage to a complainant, so the amount in controversy does not affect the jurisdiction of the Commission. There may or may not be dam- ages claimed; the amount of traffic involved may be very small, the rate may be a "paper" rate; yet the jurisdiction of the Commission attaches, if only the essentials of a case — i. e., an alleged violation of the law." Sec. 27. Necessity that jurisdiction appear. — As the jurisdiction of the Commission is statutory " there is no presumption that the Com- mission has jurisdiction; but such must affirmatively appear from the allegations in the petition and from the record. The jurisdiction of the Commission is a limited one, dependent solely on the statute giving the powers. "What has been said " concerning the circuit and district courts of the United States is applicable to the Commission : Their powers can only be exercised when the facts which are alleged to set them in motion are such as Congress has declared they may take cognizance of * * * The plaintifE must allege the jurisdictional facts; when they are shown the pre- sumption is in favor of the regularity of the proceedings. The want of jurisdiction in a particular ease may be raised by answer, as in New York Hay Exchange v. P. E. Co. (14 I. C. C, 178), where the answer of one of the defendants reserved the point; or by demurrer, as in Cosmopolitan Shipping Co. v. Hamburg- Amer- ican Packet Co. (13 I. C. C, 266) ; or the Commission will take cog- nizance of the fact of its own motion, as in Chandler C. O. Co. v. Ft. S. & "W. R. Co. (13 I. C. C, 473). Sec. 28. Jurisdiction by consent.— Strictly speaking, the Commis- sion has no jurisdiction, even in the sense in which that term is used in this work, by the consent of the parties. Not infrequently, how- ever, the Commission undertakes an investigation at the request of commercial organizations, renders an opinion, but can, of course, make no order therein. The case involving the Differential Rates to and from Atlantic ports (11 I. C. C, 13) began by a general order of & A. E. Co. (13 I. C. C, 125), Capehart v. L. & N. E. Co. (4 I. C C 2651 The Commission can make no lawful order in any case of which it has no' iurisdiction under the act (Hussey v. C. E. I. & p. E Co Cn T r o ^rr\ »•*• -itj^T ix V. Batty (10 How., k), Ex parte McCardle 7 Wa£ ^514) Morris ^v cS (13 How., 429), Koenigsberger v. Richmond Silver Mine Co QSS if' ^ 4S^ U. S. V. Boisdore's Heirs (8 How., 121), Yeaton v. U S (5 Cranch 28lf So,?th CaroKna v. Gaillard (101 U. S., 437), Eailroad Co. v Grant (98 US lqs\' ^™o vTisTif, ^leff-' '''^' '"™"« ^°- ^- ^it'h^Ts ^auy-54i)!'^^^ofr:: fo;;"thi^ oZtzti\^i^t^'^^trr^^^:i\ ^;\rr '- volved and petty reparation asked. principle of law has been m- " Brown on Jurisdiction (sec. 22") : For thp rN. y. B. of T. V. P. E. Co. (4 I. C. C, 447). ™In the 17th Annual Eeport of the Interstate Commerce Commission (p. 54) it said: "It is often difficult to say what constitutes a reasonable rate, and more difficult to give in detail the reasons that lead to the conclusion reached; that although the Supreme Court of the United States had given certain rules by which to test the reasonableness of transportation charges, and although the Commission has endeavored to apply those rules, yet whenever it has interro- gated railway officials as to whether or not they are governed by them making rates of transportation they have invariably answered in the negative and said that to do so would be impracticable. The carriers do not apparently possess the necessary data for that purpose, and there is at present no other source from which the Commission can obtain such data." Addressing the Senate Committee on Interstate Commerce, S. H. Cowan of Forth Worth, Tex. (Eegulation of Eailway Bates, 1904-1905, Volume 1, p. 58) said: "Those who have not investigated the requirements to ascertain what is a reasonable rate have no idea of the size of the task before you. You find that you have to hear so much testimony. How would you start out to deter- mine whether a rate is reasonable? What are the elements of reasonableness? To arrive at an ultimate intelligent judgment you must reason from details. The Supreme Court says that any calculation as to reasonableness of rates must be based on the fair value of the property. How are you to determine the value of a railroad? By what its stocks and bonds sell for? If so, the very rate itself which make the earnings of the road, would increase the value, so that the higher rate, the higher the value, and the higher the value the greater is the basis of earnings. How are you to undertake to determine what sort of a return a rail- road is entitled to? Is it the rate of interest provided by the laws of the State? Is that a fair return to be expected by a reasonable man for his large invest- ment in the railroad? What is the percentage? The Supreme Court says that a railroad is not entitled to earn merely for the purpose of paying dividends, operating expenses, interest, and fixed charges, without regard to the rights of the public. It says all things which a reasonable man would take into con- sideration. ' ' 174 EVIDENCE BEFOEE COMMISSION The difficulty concerning the determination of the reasonableness of a rate is primarily that the question goes into the domain of possibil- ity; the question immediately resolves itself upon the remunerative- ness of the rate in the past or whether it wiU be remunerative in the future. The question is further complicated because of the disagree- ment between the courts concerning the rules which should govern the making of rates and the traffic officials, who state that the rules enunciated by the courts are not considered in the making of rates. The question is also further complicated because of the numerous theories of the political economists concerning the proper basis for the adjustment of rates. These theories are divisible into two broad lines, (a) that rates in general should be based upon the cost of trans- porting the traffic; (6) that rates should be based upon the value of the service (which includes the term "what the traffic wiU bear"). The courts lean strongly towards the former theory, while merchants and carriers lean toward the latter. Rates aUegud to be imreasonable may be such by reason of being (a) imreasonable per se, or (6) relatively unreasonable, and in either case it may be a single rate or a schedule of rates. No one has at- tempted to define a rate which is unreasonable per se and to mark out the rules by which proof may be had of the fact. It was said by the Commission in Mayor, etc. v. A. T. & S. F. R. Co. (9 I. C. C, 534), where the question of the reasonableness of a rate per se had been pressed upon the Commission by the complainant, that "the testimony bearing upon it (the question) is extremely unsatisfactory as it probably must be in any similar case." The extreme limit that a rate is imreasonable per se doubtless is that the commodity affected by the rate does not move between the points to which the rate applies and yet the circumstances and con- ditions are such that one would say that the commodity should move by reason of the geographical location of the points and the character of business thereat; in such case, sincere persons will disagree as to its reasonableness. If one should attempt to prove the rate unrea- sonable per se by a mathematical process, he will find himself in a maze of cost of transporting traffic, of the actual value of the carrier's property, of capitalization, of return upon the amount invested, of volume of traffic, of length of haul, and many other elements to be- wilder. If the rate is that upon a single commodity the maze is more mystifying, for should there be obtainable from statistics the cost of transportation the figure bears little or no relation to the rate under consideration. Rates are relatively unreasonable, either by reason of the classifica- tion or by reason of the relation between the commodity rate or the class rate or by reason of an alleged discrimination between localities. EVIDENCE BEPOEE COMMISSION 175 Evidence tending to show relative unreasonableness is more available, because immediately there arises the question of comparison, itself an element of reasonableness. The essence of reasonableness of a particular fact is a comparison of that fact with a reasonable fact. One therefore is permitted to compare the rate or classification of the commodity under consideration with other rates and classifications of commodities used for similar purposes, preferably moving in the same volume and upon the same line of railroad, or upon other lines of railroad." The nearer identical the elements the greater must be the weight of the evidence. The basis of calculation as to the reasonableness of railroad rates was laid down by the Supreme Court in 1898 and it has since fol- lowed the rule there prescribed; in Smyth v. Ames (169 U. S., 466) the court said: We hold, however, that the basis of all calculation as to the reasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction must be the fair value of the property being used by it for the conveni- ence of the public. And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stocks, the present as compared with the original cost of construction, the probable earning capacity of the property under particu- lar rates prescribed by statute, and the sum required to meet operating expenses, are aU matters for consideration and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. What the company is en- titled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services ren- dered by it are reasonably worth. Where a carrier is engaged in the transportation of both interstate and intrastate trafiic the reasonableness of a particular rate or sche- dule of rates cannot be predicated upon the entire trafSe. There must be a separation of the two kinds of traffic, for it is not proper that one should bear the burden of the other. In a recent case * involving the reasonableness of rates prescribed by legislature the court said : A State can not justify unreasonably low rates for domestic transportation considered alone upon the ground that the carrier is earning large profits upon interstate business, over which, so far as the rates are concerned, the State has no control, nor can the carrier justify unreasonably high rates on domestic busi- ness on the ground that it will be able, in that way, to meet the losses on its interstate business. Domestic and interstate commerce, and the value of the property so devoted, must be kept separate in determining reasonableness of rates for domestic commerce. " That carriers may be so far dissimilar that no comparison of rates on them can be made, see Am. Asphalt Assn. v. Uintah R. Co. (13 I. C. C, 196). "S. A. L. E. Co. V. E. Com. (155 Fed., 792). 176 EVIDENCE BEFORE COMMISSION Where an advance in rates is complained of the testimony takes a broad scope: Instance. — In Central Yellow Pine Assn. v. I. C. E. Co. (10 I. C. C, 505) the report of the Commission considered: (o) the association, its objects, and the occupation of its members; (6) the defendants and their location and business in the transportation of lumber; (c) the lumber-producing districts involvec? in the complaint; (d) the advance complained of and where effective; (e) the rates from several points to several points, the latter being markets; (/) the divisions allowed the originating roads and the revenue earned by them; (g) the history of the fluctuation in lumber rates; (h) the situation of mills for the manufacture of lumber; (i) the history of the lumber traffic from the particular producing section; (j) the volume of lumber anjiuaUy shipped from the pro- ducing section; (fc) the amount of the advance per car and its effect in currency on the business of the mills; (I) prices for various cars of limiber at several markets; (m) the cost of manufacturing lumber and the capital invested at several mills; (m) the depreciation of miU property; (o) the increase in price of material, equipment and wages of the defendants, and the wages of mill employees; (p) the operating expense of the carriers, including gross earnings, total operating expenses, percentage of operating expenses, earnings, net earnings, net earnings per mile of road and total mileage operated; (g) the profit to the carriers under prior rates; (r) the capitalization, funded debt, and cost of con- struction of the carriers including dividends paid by them for a series of years; (s) the equipment of the carriers (ears and terminals) for handling traffic; (t) the character of car required for the commodity; («) the average loading of cars and the capacity leading, and (v) the total lumber tonnage of the United States and a comparison with the tonnage with other commodities heavy in vol- ume. The evidence necessary in a ease involving the reasonableness of a rate on a single commodity between given places is indicated by the points considered in the opinion of the Commission in Am. Asphalt Assn. V. Uintah R. Co. (13 I. C. C, 196). The question involved the rate on gilsonite from Dragon, Utah, to Mack, Colorado. While the question turned almost exclusively upon the remunerativeness to the carrier of the property used for the convenience of the public the Commission considered: (a) the ownership of the defendant carrier; (6) the business occupation of the owners of the defendant; (c) the occupation of the complainant; (. C, Mo.), 219 IT. 8. V. C. & A. E. Co., et al. (D. C, 111.), 221 U. 8. V. C. & N. W. E. Co. (D. C. Colo., Nov. 25, 1907), 55 IT. S. V. C. &N. W. E. Co. (C. C, HI.), 243 U. 8. V. C. & O. E. Co. (C. C, Va.), 221, 243 U. 8. V. C. B. & Q. E. Co. (D. C, Mo.), 221 U. 8. V. C. B. & Q. E. Co. (D. C, 111.), 219 IT. S. V. C. C. C. & St. L. E. Co. (D. C, Ohio), 212 IT. 8. V. C. G. W. E. Co. (D. C, Iowa, May 6, 1908), 55 IT. S. V. C. H. & D. E. Co. (D. C, Ohio, June 24, 1908), 55 U. 8. V. C. I. & L. E. Co. (C. C, 111.), 244 U. 8. V. C. M. & St. P. E. Co. (149 Fed., 486), 54 IT. 8. V. C. M. & St. P. E. Co. (D. C, N. Y.), 226 V. 8. V. C. M. & St. P. E. Co. (D. C, Mo.), 219 U. 8. V. C. P. & St. L. E. Co. (143 Fed., 353), 54 IT. 8. V. C. E. I. & P. E. Co. (D. C, Mo., Feb. 21, 1908), 55 IT. S. V. C. E. I & P. E. Co. (D. C, N. Y.), 226 IT. 8. V. C. V. E. Co. (D. C, N. Y.), 226 434: TABLE 01" CASES Page U. S. V. C. St. P., M. & O. E Co. et al. (D. C, Minn.), 224 IT. S. V. C. C. & S. E. Co. (D. C, OHo), 212 U. S. V. D. & H. Co. (D. C, N. Y.), 220 IT. S. V. D. & E. G. Co. (C. C. A., 8th circuit, Aug. 22, 1908), 55 U. S. V. D. L. & W. E. Co. (40 Fed., 101), 204 U. S. V. D. L. & W. E. Co. (152 Fed., 269), 34 TJ. S. V. D. L. & W. E. Co. (C. C, N. T.), 222 U. S. V. D. E. Co. (I. C. C. Docket, 1699), 113 U. S. V. E. P. & S. W. E. Co. (D. C, Ariz., Jan. 3, 1907), 54 U. S. V. B. P. & S. "W. E. Co. (D. C. Tex., Apr. 8, 1907), 54 U. S. V. G. N. E. Co. (D. C, Pa.), 218 U. S. V. G. N. B. Co. (145 Fed., 438), 54 IT. S. V. G. N. E. Co. (150 Fed., 229, 54 V. S. V. G. N. E. Co. et al. (D. C, Minn.), 224, 225 IT. S. V. G. N. E. Co. (D. C, N. T.), 226 IT. S. V. Harper (P. Ct., D. C), 10 U. S. V. I. C. E. Co. (C. C, La.), 217 U. S. V. I. C. E. Co. (D. C, Tenn.), 215 U. S. V. I. C. E. Co. (D. C, Ky., Nov. 1, 1907), 55 IJ. S. V. I. H. E. Co. (D. C. ni., Nov. 20, 1906), 54 IT. S. V. I. T. E. Co. (D. C, lU.), 218 U. S. V. L. & N. E. Co. (D. C, Ky.), 215 V. S. V. L. V. E. Co. (D. C, Pa., Mar. 17, 1908), 55 IT. S. V. L. 8. & M. S. E. Co. (D. C, Ohio), 212 IT. S. V. M. & St. L. E. Co. & Kenny (D. C, Minn.), 225 U. S. V. M. C. E. Co. (D. C, HI.), 212 U. S. V. M. K. & T. E. Co. (D. C, Mo.), 221 V. S. V. M. P. E. Co. (C. C, Mo.), 205 tr. S. V. M. P. E. Co. (65 Fed., 909), 24, 48, 200, 262 IT. S. V. M. P. E. Co. (C. C, Mo.), 243 U. S. V. N. T. C. & H. E. E. Co. (D. C, N. Y.), 215, 220 IT. S. V. N. Y. C. & H. E. E. Co. (C. C, N. Y.), 222 IT. S. V. N. Y. C. & H. E. E., Guilford & Pomeroy (C. C, N. Y.), 222 U. S. V. N. Y. C. & H. E. E. Co. & Guilford (D. C, N. Y.), 220 U. S. V. N. Y. C. & H. E. E. Co. (D. C, N. Y.), 220 U. S. V. N. Y. C. & H. E. E. Co. (D. C, N. Y.), 227 V. 8. V. N. Y. C. & H. E.'E. Co. & P. E. Co. (D. C, N. Y.), 227 IT. 8. V. N. Y. C. & H. E. E. Co. (D. C, N. Y.), 227 IT. S. V. N. Y. C. & St. L. E. Co. (D. C, 111.), 216 IT. 8. V. N. Y. C. & St. L. E. Co., & L. V-. E. Co. (D. C, HI.), 216 IT. S. V. N. Y. L. E. & W. E. Co. (D. C, Ohio), 212 U. S. V. N. P. T. Co. (144 Fed., 861), 54 IT. S. V. N. Y. O. & W. E. Co. (D. C, N. Y.), 226 V. S. V. O. S. L. E. Co. (D. C, Idaho, June 4, 1908), 55 U. 8. V. P. C. (D. C, Cal.), 216 IT. S. V. P. C. C. & St. L. E. Co. (143 Fed., 360), 54 IT. S. V. P. C. E. Co. (D. C, Cal., June 13, 1908), 55 V. S. V. P. R Co. (D. C, Pa., Mar. 18, 1908), 55 IT. 8. V. P. & E. E. Co. (D. C, Pa., Mar. 17, 1908), 55 U. S. V. N. P. E. Co. (120 Fed., 546), 53 IT. S. V. P. E. Co. (D. C, N. Y.), 223, 227 P". S. V. S. & C, R, Co, (D, C, Va.), 219 TABLE OF CASES 435 Page IT. S. V. S. P. Co. (D. C, Ore., Apr. 1, 1907), 54 U. S. V. S. P. Co. (D. C, Cal.), 216, 217, 218, 228 U. S. V. S. E. Co. (135 Fed., 122), 54 TJ 8. V. St. L. I. M. & S. E. Co. (D. C, Tenn., June 11, 1907), 55 IT. 8. V. St. L., I. M. & 8. E. Co. et al. (D. C, Ark.), 221 V. 8. V. St. L. & 8. P. E. Co. (D. C, Mo.), 217 TJ. S. V. W. & A. E. Co. (D. C, Ga.), 215 IT. 8. V. "W. & L. E. E. Co. (D. C, Ohio, June 16, 1908), 55 U. 8. V. W. C. E. Co. et al. (D. C, Minn.), 225 U. S. V. W. E. Co. (D. C, 111., Nov. 19, 1907), 55 IT. 8. V. Agel and Levin (D. C, Vt.), 217 U. 8. V. American Sugar Eefining Co. et al. (C. C, N. Y.), 222, 223 U. S. V. American Sugar Eefining Co. (D. C, N. T.), 220, 222 IT. 8. V. American Sugar Eefining Co., et al. (D. C, N. Y.), 220 IT. S. V. Ames-Brooks Co. (D. C, Minn.), 225 U. 8. V. Armour & Co. (142 Fed., 808), 161, 163 IT. S. V. Armour P. Co. (D. C, Mo.), 219 IT. S. V. Arredondo (6 Pet., 709), 15 IT. 8. V. Ault (D. C, Tex.), 215 IT. 8. V. B. & O. E. Co. (D. C, W. Va.), 228 IT. S. V. Babcock (3 Dillon (C. C), 566), 148 IT. 8. V. Belknap (D. C, Tex.), 215 U. S. V. Bennett (D. C, Ohio), 226 V. 8. V. Belt E. Co. (161 Fed., — ), 55 IT. 8. V. Boisdore 's Heirs (8 How., 121), 18 IT. S. V. A. Booth & Co. (D. C, 111.), 216 IT. 8. V. Bosley (D. C, Va.), 220 IT. 8. V. Boyer (85 Fed., 425), 41 IT. 8. V. Brine (D. C, Ohio), 261 U. S. V. Brooklyn C. Co. (C. C, N. Y.), 222 U. 8. V. Buerger (D. C, Wis.), 214 tr. 8. V. Bunch (D. C, Ark.), 221 tr. 8. V. Calder (D. C, Wash.), 213 IT. S. V. Cal. Pine B. & L. Co. (D. C, Cal.), 228 IT. 8. V. Camden Iron Works (150 Fed., 216), 33, 228 U. 8. V. Campbell (D. C, Pa.), 218 U. S. V. CapdevieUe (118 Fed., 809), 203 IT. 8. V. Capps (D. C, Ga.), 215 U. 8. V. Chapman & Dewey L. Co. (D.' C, Mo.), 217 U. S. V. Clark (D. C, 8. C), 221 U. 8. V. Colo. F. & I. Co. (D. C, N. Mex.), 220 IT. S. V. Crane (D. C, Mo.), 213 IT. 8. V. Crosby (D, C, Mo.), 219 U. S. V. Cudahy P. Co; (D. C, Mo.), 219 IT. 8. V. De Coursey (D. C, N. Y.), 214 IT. 8. V. Devereaux Co. (D. C, Minn.), 224 IT. S. V. Dick and Blair (D. C, Pa.), 214 IT. S. V. Diver (D. C, Pa.), 218 U. 8. V. Dorr (D. C, Tenn.), 213 IT. S. V. Duluth-Superior M. Co. (D. C, Minn.), 225 U. S. V. Edmundson (D. C, Mo.), 212 IT. S. V. Egan (D. C, 111), 213 436 TABLE OP CASES Page IT. S. V. Egan (D. C, Minn.), 212 U. S. V. Farrell (D. C, Nebr.), 213 U. S. V. FeU (D. C, 111.), 213 IT. S. V. Ferreira (13 How., 40), 234 U. 8. V. Field (D. C, Mo.), 213 IT. S. V. Firmenich (D. C, lU.), 213 U. S. V. Fowkes (D. C, Mo.), 213 U. S. V. Fraser and Wight (D. C, Pa.), 213, 214 V. 8. V. Gay Mfg. Co. (D. C, Va.), 219 IT. S. V. Geddes (D. C, Ohio, Aug. 13, 1903), 54 IT. S. V. Geddes (131 Fed., 452), 54 U. S. V. Gilbert (C. C, Va.), 221 IT. S. V. Gore and Eabinovitz (D. C, W. Va.), 217 IT. S. V. Guilford et al. (D. C, N. Y.), 229 IT. S. V. Grand Canyon L. and C. Co. (D. C, Cal.), 226 IT. S. V. Hanley & Eeinhart (D. C, 111.), 214 U. S. V. Hanley (71 Fed., 672), 65, 172, 210 IT. S. V. Harrahan (D. C, Tenn.), 215 U. S. V. Hartley (D. C, Mo.), 225 IT. S. V. Howell (56 Fed., 21), 210 U. S. V. HoweU (D. C, Mo.), 213 U. S. V. Hudson (7 Cranch, 32), 194 U. S. V. Huntington (D. C, Cal.), 214 IT. S. V. 111. Glass Company and I. T. E. Co. (D. C, lU.), 221 U. 8. V. James (60 Fed., 257), 162 IT. S. V. Jenkins (D. C, lU.), 214 U. 8. V. Johnson (D. C, 111.), 212 U. S. V. Johnston (C. C, Va.), 221 U. 8. V. Joint Traffic Assn. (171 U. S., 505), 196 V. 8. V. Judd and Watkins (D. C, Mo.), 214 U. 8. V. Kehlor (D. C, HI.), 213 U. 8. V. Keyser (D. C, Tenn.), 213 IT. S. V. Knight (D. C, HI.), 213 U. 8. V. Knight (D. C, Mo.), 213 IT. S. V. Knight (156 U. S., 13), 41 U. 8. V. Kresky (D. C, Mo.), 229 IT. 8. V. Kresky and McGowan (D. C, Mo.), 229 IT. 8. V. Lake (D. C, Pa.), 218 U. 8. V. McCauU-Dinsmore Co. (D. C. Minn.), 224 IT. S. V. McCormiok (D. C. Md.), 212 U. 8. V. Means (D. C, Pa.), 213, 214 V. 8. V. MeUen (D. C, Kans.), 228 U. 8. V. Miller (D. C, 111.), 212 U. S. V. Mills (8 App. D. C, 500), 187 U. S. V. Mil. Ref. T. Co. (C. C. Wis.), 243 IT. 8. V. Morris (D. C;, 111.), 214 IT. 8. V. Morris (14 Pet., 464), 119 U. 8. V. Morsman (42 Fed., 488), 33, 210 IT. 8. V. MoTsman (D. C, Mo.), 212 IT. 8. V. Mutual T. Co. (D. C, Pa.), 218, 228 U. S. V. Neiburg (D. C, Vt.), 217 U. S. V. Nelson Morris & Co. (D. C, Mo.), 219 TABLE OF CASES 437 Page U. S. V. Nistas (D. C, Mo.), 221 TJ. S. V. Nitas, et al. (D. C, Mo.), 229 U. S. V. Northern S. S. Co. (C. C, N. T.), 223 U. S. V. Pacific Mail S. S. Co. (D. C, Cal.), 216 U. S. V. Papy and Menzies (D. C, Ma.), 214 U. S. V. Patriarche and Stearns S. & L. Co. (D. C, Mich.), 220 TT. S. V. Pa. Fruit Co. (D. C, Cal.), 228 TJ. 8. V. Pennington & Pleasants (D. C, Fla.), 214 V. 8. V. Price (D. C, Ky.), 214,215,228 U. S. V. Price & WeUs (D. C, Ky.), 229 U. 8. V. Eeid (D. C, Kans.), 214 U. 8. V. Eobertson (D. C, Tenn.), 213 U. 8. V. Eogers (D. C, Tenn.), 213 U. 8. V. Sayward (160 U. 8., 493), 21 IT. 8. V. Schirm (D. C, Cal.), 226 U. 8. V. Schurz (102 U. 8., 394), 203 TJ. 8. V. 8cott (D. C, Ky.), 60 TJ. 8. V. 8harp (D. C, Neb.), 213 TJ. 8. V. Shotter (D. C, Ga.), 215 U. 8. V. Spriggs (D. C, lU.), : 213 U. 8. V. Standard Oil Co. (D. C, Tenn.), 217 U. 8. V. Standard Oil Co. of New York (D. C, N. Y.), 223, 227 TJ. 8. V. Standard Oil Co. (B. C, 111.), 223, 224 TJ. 8. V. Standard Oil Co. of N. Y. & Vacuum Oil Co. (D. C, N. Y.), ... 227 TJ. S. V. Stearns 8. & L. Co. (D. C, Mich.), 227 TJ. S. V. Stimson (D. C, Ind.), 212 TJ. 8. V. Stubbs (D. C, La.), 214 TJ. 8. V. Swift & Co. (D. C, Mo.), 218 TJ. 8. V. Swift (D. C, HI.), 213 TJ. 8. V. Thomas & Taggart (D. C, Mo.), 229 TJ. 8. V. Thompson (D. C, lU.), 214 TJ. 8. V. Thome & Sargent (D. C, La.), 214 TJ. 8. V. Toledo Ice & Coal Co. (D. C, Ohio), 225 U. S. V. Tozer (37 Fed.,- 635), 210 TJ. 8. V. Tozer (D. C, Mo.), 212 U. 8. V. T. E. Assn. of St. L. (D. C, Mo., June 3, 1908), 55 U. 8. V. Trans.-Mo. Assn. (166 U. 8., 290), 60 TJ. S. V. Union Stock Yards of Omaha (D. C, Nebr., Feb. 21, 1908), 55 TJ. 8. V. U. P. Coal Co., et al. (D. C, Utah), 215 U. 8. V. U. P. E. Co. (91 U. S., 72), 66 U. S. V. U. S. Exp. Co. (C. C, lU.), 243 U. 8. V. Vacuum OU Co. (D. C, N. Y.), 223, 226, 227 U. 8. V. Moore et al. (C. C, Va.), 218 U. 8. V. Waters-Peirce Oil Co. (D. C, Mo.), 225 U. 8. V. Weil (D. C, HI.), 228 U. 8. V. Western Transit Co. (D. C, N. Y.), 226 U. 8. V. Western Transit Co. (C. C, N. Y.), 222 U. 8. V. Whitcomb (D. C, Minn.), 215 U. 8. V. WUliams (D. C, Ala.), 221 U. S. V. Wood (145 Fed., 504), 33 U. 8. V. E. D. Wood & Co. (D. C, Pa.), 218 U. 8. V. Wykofl (D. C, Mo.), 213 438 TABLE OP CASES Page IT. S. V. T. & M. V. E. Co. (C. C, La,), 217 U. S. V. Zorn (D. C, Ky.), 218 U. P. Co. et al. U. S. v. (D. C, Utah), 215 U. P. E. Co., Evans v. (6 I. C. C, 520), 55, 114, 118, 255 V. P. E. Co., Leonard v. (1 I. C. C, 185), 140 U. P. E. Co., Lincoln Creamery v. (5 L C. C, 156), 72,77 U. P. E. Co., Matthews v. (5 I. C. C, 299), 72, 77, 80 U. P. E. Co., U. S. V. (91 U. S., 72), 66 U. P. E. Co. V. Eeed (80 Fed., 239), 257 TT. P. E. Co. V. T. & P. E. Co. (31 Fed., 862), 171 U. P. E. Co. V. Yates (79 Fed., 589), 257 U. S. Com. of Pish & Fisheries, re (1 L C. C, 21), 48 TT. S. Exp. Co., Society of Am. Florists v. (12 I. C. C, 121), 139 U. S. Exp. Co., U. S. v. (C. C, lU.), 243 Van Patten v. C. M. & St. P. E. Co. (74 Fed., 981), 22,194,202,233 Van Patten v. C. M. & St. P. E. Co. (81 Fed., 547), 65 V. E. Co., Loup Creek Co. v. (12 L C. C, 471), 168 V. E. Co., Eomona Oolithie Stone Co. v. (13 I. C. C, 115), 83 V. S. & P. E. Co., Central Y. P. Assn. v. (10 I. C. C, 193), 76, 78, 113 V. S. & P. E. Co., Connor v. (36 Fed., 273), 194 V. S. & P. E. Co., Monroe Progressive League v. (I. C. C. Docket, 1388), 122 Vacuum Oil Co., TJ. S. v. (D. C, N. Y.), 223, 226, 227 Van Camp B. Vault Co. v. C. L & L. E. Co. (12 I. C. C, 80), 139 Vance v. Vandercook (170 U. S., 438), 41 Van Elten, Standard Oil Co. v. (107 U. S'., 325), 171 Vermont State Grange v. B. & L. E. Co. (1 I. C. C, 158), 79 Vincent v. C. & A. E. Co. (49 111., 33), 195 Voelker, C. M. & St. P. E. Co. v. (129 Fed., 522), 54 Voelker v. C. M. & St. P. E. Co. (116 Fed., 867), 54 W. & A. E. Co., Council v. (1 I. C. C, 339), 32, 43, 74, 76, 82, 83, 130 W. & A. E. Co., L C. C. V. (C. C, Ga.), 236 W. & A. E. Co., E. Com. v. (5 I. C. C, 324), 72, 74, 75, 78, 80, 83 W. & A. E. Co., U. S. V. (D. C, Ga.), 215 W. & L. E. E. Co., IT. S. V. (D. C, Ohio, June 16, 1908), 55 W. C. E. Co., Johnson and Huey, TJ. S. v. (D. C, Minn.), 225 W. N. Y. & P. E. Co., Indpt. Eef. Assn. v. (5 I. C. C, 415), 72, 75, 78, 81 W. N. Y. & P. E. Co., Indpt. Eef. Assn. v. (6 I. C. C, 378), 35, 72, 83, 114, 118, 132, 136 W. N". Y. & P. E. Co., L C. C. V. (C. C, Pa.), 237 W. N. Y. & P. E. Co., Eeynolds v. (1 I. C. C, 347), 108, 121 W. N. Y. & P. E. Co., Eeynolds v. (1 L C. C, 393), 76 W. N. Y. & P. E. Co., Eice, E. & W. v. (2 I. C. C, 389), 71, 74 W. isr. Y. & P. E. Co., Eice, E. & W. v. (3 I. C. C, 87), 183, 184 W. N. Y. & P. E. Co. Eice, E. & W. v. (4 I. C. C, 131), 74, 75, 77 W. N. Y. & P. E. Co., Eice, E. & W. v. (6 I. C. C, 455), 135 "W. E. Co., Johnston-Larimer D. G. Co. v. (12 I. C. C, 51), . .22, 112, 120, 139, 186 W. E. Co., Murphy, Wasey & Co. v. (5 I. C. C, 122), 72 W. E. Co., Sheldon v. (105 Fed., 785), 234 W. E. Co., TJ. S. V. (D. C, 111., Nov. 19, 1907), 55 W. M. & P. E. Co. V. Jacobson (179 U. S., 287), 22 TABLE OP CASES 439 Page "W. v. N. E. Co. V. U. S. ex rel. (134 Fed., 198), 204 W. & W. B. Co., Hilton L. Co. v. (9 I. C. C, 17), 23,73,76,78,81 W. Va. N. E. Co., IT. S., ex rel. Kingwood v. (125 Fed., 252), 58 Wagner Typewriter Co., Wycoff v. (99 Fed., 158), 161 Walker, Brown v. (161 U. S., 591), 162 Warner v. N. Y. C. & H. E. E. Co. (4 I. C. C, 32), 71, 77 Warren-Ehret v. C. E. Co. (8 I. C. C, 598), 119 Warren Mfg. Co. v. S. E. Co. (12 I. C. C, 381), 62 Washington Gas-Light Co., D. C. v. (3 Maekey, 343), 187 Washington Market Co. v. Summy (3 MacA., 59), 187 Waters-Peirce Oil Co., U. S. v. (D. C, Mo.), 225 WeU, U. 8. V. (D. C, lU.), 228 Weleetka L. & W. Co. v. Ft. S. & W. E. Co. (12 I. C. C, 503), 28, 168 Wells, Fargo & Co., Cal. Com. Assn. v. (14 I. C. C, 422), 68 Welton V. Mo. (91 U. S., 275), 41 Western Classification Committee, McMillan v. (4 I. C. C, 276), 83,84,118 Western Oregon L. Mfrs. Assn. v. 8. P. Co. (14 I. C. C, 61), 122, 207 Western Transit Co., U. S. v. (C. C, N. Y.), 222, 226 Wheaton v. Peters (8 Pet., 591), 194 Whitcomb, U. 8. v. (D. C, Mian.), 215 White V. M. C. E. Co. (3 I. C. C, 281), 22, 73, 83, 103 Wholesale F. & P. Assn. v. A. T. & 8. F. E. Co. (14 I. C. C, 410), 69 Wiborg V. U. 8. (163 U. 8., 632), 119 Wichita V. M. P. E. Co. (10 I. C. C, 35), 73, 78 Wight V. I. C. C. (167 U. 8., 512), 173 Williamson v. Carnan (1 G. & J., 184), 187 Williams, IT. 8. v. (D. C, Ala.), 221 Williams v. 8atterlee (20 App. D. C, 393), 187 Wilmington Tariff Assn. v. C. P. & Va. E. Co. (9 I. C. C, 118), 78 Wilson V. E. E. Co. (7 I. C. C, 83), 35, 40 Winkler, P. & E. E. Co. v. (4 PennewiU (Del.), 387), 54 Winkler v. P. & E. Co. (53 Atl., 90), 55 Wood & Co., TJ. 8. V. (D. C, Pa.), 218 Wood, U. 8. V. (145 Fed., 504), , 33 Wood V. D. C. (6 Maekey, 142), 187 Woodrufe V. N. Y. 8. N. E. E. Co. (59 Conn., 63), 22 Worcester Excursion Car Co. v. P. E. Co. (3 I. C. C, 577), 75, 77, 79 Wrigley v. C. C. C. & St. L. E. Co. (10 I. C. C, 412), 73, 76, 81 WyeofE v. Wagner Typewriter Co. (99 Fed., 158), 161 Wykoflf, U. 8. V. (D. C, Mo.), 213 Wylie V. N. P. E. Co. (11 I. C. C, 145), 82 W. XT. Tel. Co. V. Call Pub. Co. (181 U. 8., 92), 194 W. U. Tel. Co., Fishbaek v. (161 U. 8., 96), 21 Yates, V. P. E. Co. v. (79 Fed., 589), 257 Yeaton v. U. 8. (5 Craneh, 281), 18 Y. & M. V. E. Co., TJ. 8. V. (C. C, La.), 217 Zaeharie, Boyle v. (6 Pet., 648), 242 Zom, U. 8. V. (D. C, Ky.), ' 218 INDEX [References are to pages] [Provisions of acts are in CAPITALS and small capitals] Abatement as affecting election of forum : 91. Abbreviations and technical terms, pleading of : 104. Abstract questions will not be determined by Commission : 42. Access to carriers' accounts (act), sec. 20: 294. Accident reports, carriers to make: 51; 56. purpose of: 56. must contain nature and cause of a,ccidents : 56. not to be used as evidence : 264. Accidents included iu annual reports (act), sec. 20: 294. Accounts of carriers, Commission may inspect: 49. may be examined by special agents or examiners : 13. Accounts of caeriers (act). See also Annual report. failure to keep, penalty, sec. 20 : 294. false entry, penalty, sec. 20 : 294. uniform forms may be prescribed, sec. 20: 294. Accrued claims (act), sec. 16: 290. Act of February 14, 1903, creating Department of Commerce and Labor, reference to: 4. Act of June 30, 1906 (defining right of immunity), text of: 301. Act of February 19, 1903 (EMns' law), text of: 303; 306. digest of: 302. Act of February 11, 1903 (Expediting act), text of: 307. Act of February 11, 1903 (Immunity act), text of: 300. Act supplementary to act of July 1, 1862, etc. : 51 ; 53. Act of May 23, 1908 (Eailways in District of Columbia), text of: 308. duties of Commission under : 52 ; 58. Act to promote safety of employees (ash pan act) : 52; 58. 441 442 INDEX [Eeferences are to pages] Act to promote safety of employees and travellers: 52; 59. Act to promote safety of employees and travellers : 51 ; 54. Act to promote safe transportation of explosives : 52 ; 59. Acts other than commerce act, duties of Commission raider : 51 ; 60. Act to regulate commerce, text of : 279 ; 299. digest of: 272; 278. passage of ; 1887 : 3. modeled on English acts: 3 (Note), causes leading to passage of: 4. power of Commission is limited to enforcing : 17 (Instance) . prior to, traffic was regulated by common law: 194 (Note), kinds of commerce subject to: 20 (Note), intrastate carriers may become subject to: 35 (Instance), applies to intrastate carrier handling interstate commerce : 37. may apply to electric railway lines : 25 (Instance) . not applicable to carriers wholly by water : 36. water carriers may become subject to: 35 (Instance), construction of, generally : 65. rules of construction provided in : 66. to be broadly construed: 65 (Instance), to be construed as a whole : 65. to be read in light of purposes thereof: 68 (Instance), construction of, by the courts: 65. interpretation of, by the courts, comment of Commission on : 68. interpretation of, by Commission: 67. interpretation of. Commission wiU consider reports of congres- sional committee : 68. can not be construed to co-operate with tariff laws : 64 (Instance) . construction of, as affecting election of forum : 91. construction of particular sections — Section 1 — Reasonable rates : 71. Instrumentalities of shipment or carriage: 73. Carriers and traffic subject to act : 73. Exchange of transportation : 73. Section 2 — ^Unjust discrimination : 74. Section 3 — Preference or advantage : 76. Facilities for interchange of traffic: 79. Section 4: 79. Section 5: 81. Section 6 : 81. nsTBEX 443 [References are to pages] Act to regulate commerce — continued. construction of particular sections — continued. Section 7 : 82. Section 8 : 82. Section 9 : 83. Sections 12, 13, 14 and 15 : 83. Section 15 (new) : 83. Section 16 : 84. Section 17: 84. Section 20 : 84. Section 22 : 84. complaint insufficiently charging a violation of, will be dismissed : 103 (Instance), classes of violations of : 99. liability of carriers created by section 8 : 91. remedy for violation of, provided in section 9 : 91. means for enforcing: 48. offenses under, list of : 210. indictments under, list of : 212 ; 215. Act to regulate commerce and Elkins ' law, indictments under : 218. Actions, limitations of. See Limitations of actions. Acts to regulate commerce, list of : 271. Address, part of formal complaint : 101. Adjacent foreign countries, commerce with, subject to control of Com- mission: 19. Cuba is not : 20. Mexico and Canada are : 19. Adjournments and extensions of time, rule of practice respecting : 376. Adjudication, previous, binding on Commission: 155 (Instance). Administrative duties of Commission: 47. Administrative rulings and opinions, necessity for : 11. excerpts from: 309; 314. not customary with Executive Departments : 11. for guidance of shippers and carriers : 11. have served to interpret act to regulate commerce : 42. relating to express companies: 86. subjects considered in: 85. weight of: 89. Admissions may be made on record to waive allegations : 107. parties are bound by : 109. do not bind co-party: 109. in one case do not bind same party in another : 109. 444 INDEX [Eef erenees are to pages] Admissions — continued. presumptions may be in the nature of: 109. presumptions in nature of, may arise from long-continued rate or practice: 109 (Instance). Advance in rates may be considered unjust unless explained : 152 (In- stance). Adverse party, matters peculiarly within knowledge of, pleaded : 106. Adverse witnesses, practice in caUing before Commission : 164. AfB.davit not a "pleading" within meaning of sec. 860, R. S. : 161. ex parte, may be used before Commission : 159. Agent (act), act of, deemed act of carrier, sec. 1, EITdns' law: 303. special. See Examiner, special. Agents, special, of Commission : 13. Agreements (act), copies filed, public records, prima facie evidence, sec. 16: 293. Aid of court to compel obedience to subpoena of Commission : 50. Allegations in formal petitions : 100. form of : 103. not usually necessary to support particular testimony : 107. pleader not estopped by : 107. conclusiveness of, on party pleading : 106. effect of omission of proper, in pleading: 106. waiver of: 107. waiver of part of: 106. want of, may be raised by notice in nature of demurrer : 123. Allowance for service rendered by shipper (act), sec. 15: 289. Amendment, rule of practice respecting : 376. liberality in, before Commission : 107. not permitted if effect of, is to make new case or create new is- sues: 107 (Instance). not necessary, to bring in matters already pleaded : 107 (Note) . to bring in new parties : 121. as to parties may be permitted after initial hearing : 121. may not be allowed after hearing where there is a defect of parties: 112 (Note). permitted to change title of official of carrier : 108. permitted to bring in receivers: 121 (Instance). may be used to cure omission of proper allegations not apparent on face of pleading : 106. Amount in controversy necessary to give courts jurisdiction : 20 ; 21. does not affect jurisdiction of Commission : 18. Analogy of the Commission and courts of equity : 16. INDEX 445 [Eeferences are to pages] Annual report of carriers : 9. Annual report of carrier (act), sec. 20: 294. Commission to require, manner, see. 20: 294. specific answers, sec. 20: 294. contents, sec. 20: 294. failure to file, forfeiture, see. 20 : 294. oatli to, sec. 20: 294. public records, sec. 16 : 293. time of filing, sec. 20 : 294. Annual Report of Commission, provisions respecting : 11. contain syllabi of decisions: 11. value of: 11. Annual Report of Commission to Congress (act), sec. 21: 297. published, sec. 14: 288. Answer (Commission), part of the record of a proceeding: 14. may raise jurisdictional question : 18. should be precise and show defenses: 104 (Instance). may be by way of disclaimer, or traverse, or confession and avoidance: 123. may deny, or admit, or set up new facts : 124. generally concedes right of complainant to file petition : 124. usually admits subjection to act and to lawful orders of Com- mission: 124. does not ask affirmative relief : 123. usually denies violation of antitrust law : 124. time for fiMng: 110; 123. extension of time for : 123. service of: 125. receipt of, should be acknowledged : 125. forms of: 327; 328. failure to, effect of: 124. failure to file, does not prevent fixing hearing : 127. effect of, to part only of petition : 125. exceptions to, not customary: 126. verification no longer required : 106. joint, permitted : 126. Answer (Courts) of carrier to bill to enforce an order: 250. of Commission to bill to enjoin its order : 250. Antitrust law (act of July 2, 1890), one of the "commerce laws": 60. prohibits contracts in restraint of trade : 61. applies to common carriers : 60. relation of Commission to: 60. 446 INDEX [Ref ereBces are to pages] Antitrust law — continued. Commission has no authority to administer: 62 (Instance). Commission will not pass on alleged violations of: 62 (Instance). Commission not charged with the enforcement of : 61. evidence tending to show a violation of, generally received by Commission: 61. frequent allegation that rate or regulation is in violation of : 101. mere agreement to maintain rates or practices may be in viola- tion of: 61 (Note). association in violation of, may be a party complainant: 61 (In- stance). answer usually denies any violation of: 124. Appeal and error, generally : Chapter XII, 265-268. appeals direct to Supreme Court: 265. appeals to circuit courts of appeal: 267. under expediting act: 265. under act to regulate commerce: 266. under EUrins' law: 266. Supreme Court will not disturb findings of fact concurred in below: 267 (Instance). Supreme Court will remand case if proper circumstances have not been considered: 267 (Instance). costs on appeal: 268. Appeals to Supreme Coxirt (act), sec. 16: 290; Expediting act: 307. Appearances, not required except in special instances : 111. of counsel noted on record at hearing : 111. Applications for relief under fourth section (long and short haul sec- tion), generally: 137. rule of practice respecting: 381. few m number: 25. petition should contain : 137. must be verified : 137. investigation of, is required : 137. relief can be granted only in "special cases": 137. order usually temporary : 137. may be granted if an order results in hardship : 26 (Instance). Application of act (act), sec. 1: 279. Arbitration act, duty of Chairman of Commission under : 60. duty of Commissioner of Labor under: 60. provides for a common law arbitration: 60 (Note). Argument, generally: 129. time allotted to each side : 129. INDEX 447 [Eef erences are to pages] Argument — continued. title in addressing Commissioners in : 129. part of record of a case : 14. interveners may be heard at : 122. Arrangements (act), copies of, prima facie evidence : sec. 16 : 290. Ash-pan act, duties of Commission under: 52; 58. Assignee, custom in transferring reparation claims to : 135. no special reparation to : 337. Assigning claims not allowable in special reparation cases : 337. Associations without capital may be complainants: 113 (Instance). with no direct interest may maintain a complaint : 113 (Note) . in violation of antitrust law may make complaint : 113 (Note) . members of, entitled to reparation: 30; 132 (Instance) ; 134. members of, are not entitled to reparation where demand is in- definite: 132 (Instance). Atlantic-trans and Pacific-trans commerce not subject to control of Commission: 19. Attorney-General may be requested by Commission to bring suits in mandamus: 48. Attornet-Geneeal (act) , assist Commission, sec. 12 : 286. certificate in expediting cases, sec. 16: 286. collect forfeiture by civil action, sec. 1, Elkias' law: 303. direction of, forfeiture suits^ sec. 16 : 290. injunction suits, sec. 1, Elkins' law: 303. prosecutions, sec. 12: 286. mandamus proceedings, sec. 20: 294. special counsel, sec. 16 : 290. Attorneys' fees may be assessed by the courts : 255. Attorneys' pees (act), sec. 8: 284; sec. 12: 286; sec. 16: 290. Auxiliary powers of Commission : 50. Averment necessary to give Commission jurisdiction : 100. Averment of defense, binds carrier: 109 (Instance). Award of damages by Commission (act). See Money damages; also Reparation. Baggage (act), amount of free, sec. 22: 297. Balance sheet of carrier in annual report (act), sec. 20: 294. Basing point, carriers handling traffic to, not necessary parties in pro- ceeding attacking rates beyond: 117 (Instance). Bibliography, legal : 395 ; technical : 398. Bill, forms of, to enforce order of Commission : 339. to enjoin order of Commission: 343; 347; 348; 362. 448 INDEX [References are to pages] Bill of lading, evidence required in cases to compel issuance of : 169. Bill of particulars, practice respecting : 109. should be definite and precise: 110 (Instance). should be full: 109. what should contain in reparation cases: 109. no amendment to evade limitations permitted : 110. supplemental, may be used: 110 (Note). difficult in unjust discrimination cases : 133. Billing (act), false, sec. 10: 285. Block-signal systems. Commission to investigate: 51; 55. Branch lines (act), sec. 1: 279. Beidgbs and feebies (act), see. 1: 279. "Bridges" included in railroads : 33. Briefs generally : 127. rule of practice respecting : 379. part of record of a case : 14. kinds of: 128. contents of: 127. courtesy in: 128 (Note). printing of : 127 and Note. fihngof: 127. to be filed five days before argument: 128. service of: 127; 128. cases may be submitted on : 127. in reparation cases ought to contain findings of fact : 128. Burden of proof: 151. Canada, an adjacent foreign country: 19. Caption part of formal complaint : 101. Carriers free to manage business subject to prohibitions of act to regulate commerce: 66 (Instance). reports from, Commission may require: 49. to make reports of accidents : 51 ; 56. accounts may be examined by special agents or examiners of Commission: 13. having right to be heard, no order against will be made : 119. documents promulgated by, should be definite and precise : 157. handling export and import commerce subject to act to regulate commerce: 34 (Instance). intrastate, not subject to act to regulate commerce : 36 (Instance) . intrastate, may become subject to act to regulate commerce : 35. liability of, created by section 8 of act to regulate commerce : 91. INDEX 449 [Eef erenees are to pages] Carriers — continued. liability of, for reparation as handlers of traffic on through route: 132 (Instance). relations of, Commission considers substance, not form: 70. management of, may be inquired into by Commission: 50. practices of, wiU not be condemned if in general use in case where few carriers are parties : 105. how described in pleadings: 112. correct corporate names of important: 112 (Note). common, may be party complainant before Commission: 112. as complainants not entitled to reparation: 30. all, forming connecting line should be made parties : 117. all operating, should be made parties: 119. handling trafSc to basing point not necessary parties in proceed- ing attacking rates beyond: 117 (Instance). not necessary to make all, having same rate or practice defend- ants: 117 (Instance). intermediate, are proper but not necessary parties : 119. subsidiary, are proper but not necessary parties: 120. wholly by water, not subject to act to regulate commerce : 36. by water may become subject to act to regulate commerce : 35. by water when proper defendants: 118 (Instance). officials to be designated to correspond with Commission : 8. Cabeier covered by act (act), sec. 1: 279. includes express companies, sec. 1: 279. liability. See Liability. means common carrier, sec. 6 : 282. "Cars" included in term "transportation:" 34. Cars and vehicles (act), furnishing of, sec. 1: 279. compelled, sec. 23 : 298. Cases, assigning of, by lot for hearing: 7. consolidation of, permitted: 108 (Note). may be held open for proof of reparation : 109. before Commission, may be retained to complete proof : 23. may be held open to permit carriers to adjust rates : 24. may be held open for proof of reparation: 23 (Instance). if dismissed at request of parties Commission may impose condi- tions: 138. will not be reopened to present stale demands: 135 (Instance). statement of, in briefs should be concise : 128. "Cease and desist" (act), order to, sec. 15: 289. Certified copies of tariffs, etc., admitted as evidence in courts : 263. 450 INDEX [Eef erences are to pages] Certificate of general public importance, generally : 252. filed in cases brought to enjoin order of Commission : 249. Certifications issued in name of Secretary of Commission : 13. Certiorari a possible remedy for defeated complainant before Commis- sion : 187. Chairman of Commission, duty of under arbitration act: 60. Change in kate (act), notice of, sec. 6: 282. Charge, evidence required in cases to determine, to be paid by carrier to shipper : 171. Charging part of formal complaint : 101. Circuit courts, jurisdiction of, over crimes and offenses : 210. jurisdiction of, under Eevised Statutes: 198. jurisdiction of, under the interstate commerce acts : 199. Circulars, tariff. See Tariff circulars. Civil service rules apply to employees of Commission : 14. Claim, accrued (act), sec. 16: 290. See also Complaint. Claims, assignee of, may present: 135 (Instance) ; 253. for reparation must originate in a bona fide cause : 133. for reparation not always allowed, although meritorious : 133. for "loss and damage," Commission wiU not entertain com- plaints: 99. Claims, division of Commission: 8. Classification committee of carriers is not properly made a party : 118. Classification, evidence required in cases involving: 177. in proceedings to change, all carriers over which commodity passes should be made parties: 118 (Instance). Classification (act), freight, false, sec. 10: 285. schedule to contain, sec. 6 : 282. Coal cars, distribution of, recommendation respecting: 57. distribution of, cases involving : 58. Comity between Commission and State railway commissions : 44. between Commission and courts: 45; 155 (Note). between courts and Commission, fm-nishing coal cars: 204. Commerce and Labor, Department of, exercises regulatory powers over interstate commerce: 4. Commerce clause of Constitution, legislation under : 3 ; 4. all powers under, not given to Commission : 4. Commerce, field of, purpose of Congress regarding: 38 (Instance). kinds of, under Constitution: 20 (Note). kinds of, subject to interstate commerce act: 20 (Note) ; 33. kinds of, as determining jurisdiction of Commission : 36 ; 37. INDEX 451 [Eeferenees are to pages] Commerce — continued. between a State and the District of ColumMa: 40 (Instance), intraterritorial formerly not, but now, subject to act to regulate commerce: 40. interterritorial subject to act to regulate commerce : 40. intrastate. Commission has no jurisdiction over : 20 ; 35 ; 40. export and import, jurisdiction of Commission over : 38. export and import, carriers handling are subject to act to regu- late commerce: 34 (Instance), export and import, how far under control of Commission : 19. trans-Atlantic and trans-Pacific not subject to control of Com- mission: 19. originating and ending in same State but passing through an- other subject to act to regulate commerce: 34 (Instance), intrastate transportation of interstate: 39 (Instance), when interstate character attaches: 41. ceases to be interstate when incorporated with other property of State: 41. Commerce power of Constitution granted to Congress broader than au- thority of Commission : 17. Commercial conditions, meaning of: 152 (Note). Commission. See Interstate Commerce Commission. Commission (act). See Interstate Commerce Commission. Commissioner of Labor, duties of, under arbitration act : 60. Commodities intended for interstate transportation not subject to act to regulate commerce: 40 (Instance). Commodity (act), carrier not to transport, in which interested, sec. 1: 282. Common carrier, definition of: 32 (Note). defined manner in which, must be engaged to be subject to act to regulate commerce: 33. Common carrier (act). See Carrier. Common control, management or arrangement, water carriers having, with rail carriers are proper defendants: 118 (Instance), indicia of : 33 (Note) . Common law, actions to enforce rights at, but not reiterated or denied by act to regulate commerce, may be brought in State or Federal courts : 194. Common-law remedies remain (act), sec. 20: 294; sec. 22: 297. Commutation tickets (act), sec. 22: 297. Complainant may have no real grievance: 113 (Instance). joinder of, before Commission: 114. defeated before Commission may perhaps have certiorari : 187. 452 INDEX [References are to p?iges] Complaint, classes of: 98. forms of: 316; 320; 321; 325. part of record of case : 14. serially numbered: 14. should be typewritten or printed: 110. copies of, required: 110. verification no longer required: 106. filing of: 110. and answer make up issues : 125. must state reasonable ground for investigation : 102. containing no reasonable ground for investigation will not be filed: 106 (Note). insufficiently charging a violation of act will be dismissed : 103. of unreasonable rate should state what rate is reasonable : 103. an omnibus, will not be entertained: 114 (Note). for retaliation does not commend itself: 102 (Instance). must be sufficient to advise defendant of nature of cause of com- plaint: 103 (Instance). should not be too broad: 102 (Instance). one may file subsequent, in another capacity: 153 (Instance). general investigations may result from facts alleged in, but not proven: 22 (Instance). informal, kinds of: 98. for "loss and damage" will not be entertained: 99. See Formal complaint; Informal complaint. Complaints to Commission (act), absence of direct damage not fatal, sec. 13 : 288. carrier notified, sec. 13 : 288. election of, sec. 9: 284. investigated, sec. 13: 288. limitation, sec. 16: 290. State railroad commission, sec. 13 : 288. Compulsory testimony (act), sec. 9: 284; sec. 12: 286; sec. 9: 298; sec. 3, Elkins' law: 305; Immunity act: 300; Act defining immunity: 301. Concurrences to tariffs may be stated in pleadings: 104 (Note). CoNCUERENCE in joiut tariff (act), sec. 6: 282. Conclusion part of formal complaint : 101. Conditions may be imposed in permitting dismissal of cases: 138. Conference days of Commission: 11 (Note). Conference rulings of Commission : 12. subjects considered in : 86. INDEX 453 [Eef erences are to pages] CoNiiiicTiNG ACTS repealed (act), sec. 24: 298; see. 4, Elkins' law: 306 ; sec. 10 : 299. Congress, purpose of, as to field of commeree to be covered by act to regulate commerce: 38 (Instance). Connecting lines not to discriminate (act), sec. 3: 281. Consent, jurisdiction of courts not conferred by : 233. Consolidation of cases permitted: 108 (Note). used to avoid multifariousness : 108. Constitution, commeree clause of: 4 (Note). legislation under: 3. kinds of commerce specified iu: 20 (Note). Constitutional provisions of a State, Commission will not enforce : 20. Constitutionality, Commission will not determine, of the act to regu- late commeree: 42. Construction of act to regulate commerce: 65. rules of provided in: 66. by the courts : 65. can not be made to cooperate with tariff laws: 64 (Instance). Contempt, none before Commission: 50 (Note). one charged with, not entitled to jury trial : 241. nature of proceedings in: 240. of court to appear before Comanission: 240. Contempt op court (act), sec. 12: 286. Continuous carriage, evidence in cases to secure : 168. Continuous carriage of freights (act), sec. 7: 284. Contracts, how pleaded if required by act to regulate commeree to be filed with Commission : 104. Contracts (act), copies to be filed, sec. 6: 282. public records, sec. 16 : 290. Controversy, amount in, does not affect jurisdiction of Commission : 17. jurisdiction of Commission to determine entire: 22. Corporations, how alleged in pleadings : 112. Corporation carrier made liable (act), sec. 1, Elkins' law: 303. Correspondence with Commission, how conducted : 8. assignments of States for, not to be confused with groupings for statistical purposes : 7. Costs and expenses (act), court, sec. 12: 286. depositions, sec. 12 : 286. forfeiture suits, sec. 16: 290. money damage cases, sec. 16 : 290. Costs, none before Commission : 130. as affecting election of forum: 91. on appeal in courts : 268. 454 INDEX [Eeferences are to pages] Cost of carriage, methods of ascertaining: 382. Counsel, appearance of, noted at hearing : 111. special, may be employed by Commission : 8 ; 50. fees, Commission can not award : 130. may be taxed by court : 198. may be considered in electing forum: 91. Counsel (act), fee allowed, sec. 8: 284; sec. 12: 286; sec. 16: 290. special, employed by Commission, sec. 16: 290. Courts, general chancery jurisdiction of Federal : 242 and Instance, not mere executioners of order of Commission: 234 (Instance), aid of, to compel obedience to subpoena of Commission: 50. power of, to compel answer to question before Commission is not unconstitutional: 241 (Instance), contempt of, to obey order to appear before Commission : 240. amount necessary to give jurisdiction: 20 (Instance), power of, to enjoin rates: 21. Federal, have jurisdiction to protect interstate commerce : 191. power of, to compel obedience to provisions of act to regulate commerce: 21. may prevent violations of act to regulate commerce under Blkins' law: 48. can they prevent a threatened violation of law under section 3 of Elkins' law: 49 (Note), may direct discontinuance of discriminations: 48. may assess attorneys' fees : 130 ; 255. may compel observance of published tariffs: 48. limitation of actions before : 238. follow State statutes respecting limitation of actions : 92. proceeding to enforce order of Commission is independent and original: 234 (Instance), comity between, and Commission: 45. extraordinary writs which may be issued under act to regulate commerce: 198. leave of, not necessary to complain of receivers: 118 (Instance), venue: 229. rules of common law furnish true guide for : 191. judicial notice of seal of Commission : 264. Procedure before, generally : Part II, 191-268. See Pleading and Practice (Courts) ; Jurisdiction (Courts) ; Evi- dence (Courts) ; Appeal and Error. Courts of equity, analogy of Commission to : 16. Courts, Federal, powers given to, by act to regulate commerce : 197. INDEX 455 [Eeferences are to pages] Courts, State, have no jurisdiction over interstate commerce : 22. may have apparent concurrent jurisdiction in certain cases : 22. Court (act), appeal to Supreme, sec. 16: 290; Expediting act, 307. attorney fees, see. 8: 284; sec. 12: 286; sec. 16: 290. compulsory testimony. See Compulsory testimony, contempt of, sec. 12: 286. contracts, etc., filed with Commission prima facie evidence, sec. 16: 290. costs and expenses. See Costs and expenses. EUrins' law, procedure, sec. 1: 303. enforce disobeyed order, see. 16 : 290. findings of fact of Commission awarding damages prima facie evidence, see. 16 : 290. injunction and interlocutory order. See Injunction, joinder of parties, sec. 16: 290; sec. 2, Elkins' law: 304. jurisdiction ia cases other than for payment of money, sec. 16: 290. false billing and rebate cases, sec. 10 : 285 ; sec. 1, Elkins' law : 303. free-pass cases, sec. 1 : 279. limitations of actions, sec. 16 : 290. mandamus, as to cars and facilities, sec. 23 : 298. to enforce act, sec. 20: 294. money damages. See Money damages, power over order of Commission, sec. 15 : 289. proceedings to enjoin departure from published rate, sec. 3, EUdns' law: 305. self -crimination, sec. 9: 284; sec. 12: 286; Immunity act: 300; Defining right of immunity act : 301. service of process, sec. 16 : 290. suit for recovery of damages, sec. 9: 284; sec. 16: 290; sec. 1, ElMns'law: 303. for recovery of forfeitures, sec. 16 : 290 ; see. 20 : 294 ; sec. 1, Elkins' law: 303. for switch connections, sec. 1 : 279. to enforce act, sec. 12 : 286. venue of suits against Commission, sec. 16: 290. Crimes and offenses, jurisdiction of courts in : 210. Criminal provisions (act), antipass, sec. 1: 279. EUdns' law, rebates, etc., sec. 1 : 303. false entry iu accounts, divulging, etc., sec. 20: 294. general, sec. 10: 285. jurisdiction of, sec. 1, Elkins ' law: 303. 456 INDEX [Eeferenees are to pages] Criminal violations of interstate commerce act, cases of prepared by Division of prosecutions: 8. Cuba, commerce with, not subject to control of Commission : 19 ; 20. Custom and usage, testimony concerning, is received with reluctance: 157 (Instance). Customs duties, changes in, as affecting volume of trafBe may be con- sidered by CoEomission: 63 (Instance). Customs laws, relation of Commission to : 63. Damages, not awarded where carrier entitled to jury trial: 32. if susceptible of computation reparation may be awarded : 134. measure of, for unreasonable rates: 32 (Instance). reparation will not be awarded for speculative : 133 (Note) ; 134. not necessary that shipper ultimately sustain, in order to secure reparation: 132 (Instance). whether order for by Commission will be paid, as affecting elec- tion of forum: 92. See Eeparation and Money damages. Damage (act), absence of direct, not fatal to complaint, sec. 13: 288. Damages (act). See Money damages. Decisions of Commission, not to be confused with annual reports : 10. how cited : 10. syllabi of, in Annual Eeports : 11 (Note) . Decisions of courts, weight given to, by Commission : 46. Decisions of English courts may be cited : 128. weight of, by various tribunals : 128. time required for : 14. Decree (act). See Order. Defects in proceedings before Commission, if not jurisdictional, may be cured: 22. if jurisdictional causes dismissal of complaint: 22. Defense, complete, should be presented to Commission: 166 (Instance). different or apparently inconsistent, may be pleaded : 124. anticipated, may be pleaded: 104. allegation in petition setting up, form of : 334. Delivery of property, services in connection with, included in "trans- portation:" 34. Demand for reparation, indefinite will not entitle to : 132 (Instance). Demurrer, formal may be used : 111. may be used to raise jurisdictional questions : 18. notice in nature of : 111 ; 123. Department of Justice prosecutes cases of criminal violation of inter- state commerce act prepared by Division of prosecutions : 8. INDEX 457 [Eef erences are to pages] Departure, none in pleading before Commission: 108. Depabture from published rates (act) . See Rebates. Depositions, rule of practice respecting : 158 ; 377. are opened by the Secretary of Commission : 159. notice of taking, forms for: 330. Depositions (act), compulsory, sec. 12: 286. fees of officers and witnesses, sec. 12 : 286. filed with Commission, sec. 12 : 286. foreign countries, sec. 12 : 286. Depots (act), yards and grounds, sec. 1: 279. "Determine," a judicial word: 26 (Note). Disclaimer used where a carrier improperly made defendant : 125. effect of, if true: 125. Discovery, petition may ask for information as in bill for : 106. Discriminations between persons, evidence required in cases alleging unjust: 172. due to State rate does not oust jurisdiction of Commission : 40. statute does not apply to, in adjacent foreign country: 19 (Note). courts may prevent : 48. Discrimination between connecting lines forbidden (act), sec. 7: 286. unjust, sec. 6 : 284. See also Rebates. Dismissed, no complaint will be, because of absence of damage to com- plainant: 113. complaint insufficiently charging violation of act will be: 403. proceeding will be, as to carrier improperly made party : 120. petition, orders respecting: 139. District attorneys may be asked by Commission to institute proceedings to enforce and prevent violation of act : 48. District attorney (act), duty, as to forfeiture, sec. 16: 290. in enjoining rebates, sec. 3, Elkins' law: 305. in prosecutions, sec. 12 : 286. District of Columbia, street railways in : 52 ; 59 ; text of act : 308. commerce between State and: 40 (Instance). District of Columbia, street railways in (act) : 308. District courts, jurisdiction of, under Revised Statutes : 200. jurisdiction of, under interstate commerce acts : 201. Divisions of joint rate (act), sec. 15 : 289. Docket of Commission : 14. Documents promulgated by a carrier should be definite and precise: 157 (Instance). Effect (act), act goes into, Joint Resolution: 299. 458 DTOBX [References are to pages] Election of forum generally : 91. choice of either court or Commission is final: 91. See Forum. Election op remedies (act), sec. 9: 284. Electric railway lines may be subject to act to regulate commerce: 35 (Instance). Elements to be considered in determining reasonable rates : 146. Elevation, included in "transportation:" 34. Elevation services (act), sec. 1: 279. Elkins' law, digest of : 302. text of: 303; 306. prohibiting violations of : 48. indictments under, list of : 221. informations under: 228. jurisdiction of courts under, to enjoin discriminations probably confined to existing, not threatened, violations of act to reg- ulate commerce: 192; 491 (Note). Elkins' law (as amended) : 303-306. Employees, Commission may hire : 50. , Employees of Commission (act), sec. 18: 294. names and compensation of, in annual report, sec. 21 : 297. Of carriers, free passage, sec. 1 : 279. to testify, sec. 9 : 284. liable for false biUing, etc., sec. 10 : 285. liable for rebate, sec. 1, Elkins' law: 303. salary and number in annual report, sec. 20 : 294. English acts may furnish authority for construction of act to regulate commerce: 66 (Note). Enjoin (act). See Injunction. Enumeration of powers, not exclusive (act), sec. 15: 289. Estoppel, strict rules of, do not apply : 153. neither party subject to rules of, in introduction of evidence ger- mane to the inquiry : 125. does not prevent filing subsequent petition : 153 (Instance) . pleader not estopped by allegations in pleading : 107. Commission adheres to previous decision unless there has been a misconception or new facts arise: 154 (Instance). Evidence (Commission) generally : Chapter VII, 143-180. none of the technical rules of, apply : 143. common-law rules of, should govern Commission: 143; 144 (In- stance). necessity for liberality of rules of : 143. INDEX 459 [References are to pages] Evidence (Commission) — continued. nature of testimony before Commission: 145. purpose of, before Commission is to get facts, irrespective of tech- nical rules respecting : 143. may be received by Commission under powers of general investi- gation in cases upon formal complaint : 108. aU material facts should be presented : 150. additional, may be introduced after amendment as to parties: 121 (Instance). broad scope of, in complaint against advanced rates: 176 (In- stance). character of, under the pleadings : 149. testimony not confined usually to allegations in pleadings : 149. complete defense should be presented: 166 (Instance). defendant is under a duty to introduce, under a defense pleaded : 109 (Instance). difference of, in reasonableness of single and entire schedule of rates: 146 (Instance). documentary. Commission is lenient respecting introduction : 156. documentary, rule of practice respecting: 378. ex parte affidavits may be used before Conunission : 159. exceptions to, not availing before Commission : 143. expert and opinion, frequent before Commission : 145. custom and usage received with reluctance: 157 (Instance). inferences, facts not inferred from facts proven, as rebates do not show published rate unlawful: 150. estoppel, strict rules of, do not apply before Commission : 153. estoppel. Commission adheres to previous decision unless rendered under a misconception, or new facts arise: 154 (Instance). hearsay, rules respecting, not enforced before Commission : 155. secondary, admissability of: 150. burden of proof is on party alleging : 150. judicial notice, matters of which Commission take: 144. want of, may prevent determination of question : 42 ; 43. may be insufficient to sustain allegations: 151 (Instance). must be sufficient to sustain allegations : 166 (Instance) . may be received, although no allegations to support it : 107. tending to show a violation of antitrust law generally received by Commission: 61. may be received by examiners : 13 ; 28. matters of, should not be pleaded : 102. necessity for proof in issues of fact : 165. 460 INDEX [Beferenoes are to pages] Evidence (Commission) — continued. prima facie defined: 262. order of, generally: 150. parol or extrinsic, affecting writings : 156. parol or extrinsic, technical terms may be explained by : 157. of rebates not competent to show unreasonableness of published tariff: 150. of voluntary reduction of rates not evidence that former rate imreasonable : 150. continuance of rate not evidence of its reasonableness : 150. of erroneous application of tariff not evidence of unreasonable- ness of correct rate : 150. rules respecting taking, by depositions : 158. statistical tables may be introduced in, although compiler be not sworn: 155. notice to produce, usual rules respecting are followed : 158. accident reports not to be used as : 56. further, may be admitted upon particular points if circumstances warrant: 23 (Instance). how tariffs and schedules introduced in : 144. cumulative, not cause for rehearing: 182. in one case may be used in another: 144 (Instance). introduced for one purpose not admissible for another : 49. respecting rates unreasonable per se, usually received under al- legation of relatively imreasonable rates: 125. is required in certain cases: 151 (Instance). may be given, if material, although not pleaded in answer : 124. modes of securing and avoiding subpoena duces tecum : 149. in general investigations: 180. in informal complaints: 180. in special iavestigations : 180. Eequired in particular cases : 167-180. involving unreasonable and unjust practices : 171. alleging failure to make switch connections: 168. to compel publication and filing of tariffs: 169. to compel issuance of bill of lading : 169. to secure continuous carriage : 168. seeking through routes and joint rates : 168. to compel furnishing facilities for interchange of trafSc : 169. alleging violation of long and short haul section : 170. to determine compensation to be paid shipper for carriers : 171. involving unjust discriminations between persons : 172, INDEX 461 [References are to pages] Evidence (Commission) — continued. Eequired in particular cases — continued, iavolving reasonableness of rates: 173. involving classification of freight: 177 (Instance), involving undue prejudice and disadvantage of localities : 178. involving undue prejudice or disadvantage to commodities: 178. in reparation cases: 179. in applications for relief under long and short haul section : 170. See "Witnesses; Presumptions; Estoppel; Compulsory testimony; Depositions. Evidence (Courts), generally: Chapter XI, 257-264. rules of, prescribed by the acts : 257. in equity cases : 260. in criminal cases : 259. in civil cases: 259. right of Congress to prescribe rules of: 257 (Note) ; 258 (Note), weight of opinion of Commission: 262. before Commission is not part of court record: 263 (Instance), before Commission may be introduced in: 263. accident reports are not to be used as: 264. Evidence, prima facie (act), sec. 16: 290. Examinees and agents (act), special, sec. 20: 294. access to accounts of carrier, sec. 20 : 294. oath administered by, sec. 20 : 294. penalty for divulging, sec. 20: 294. testimony before, sec. 20: 294. Examiners may be employed by Commission : 13 ; 50. are authorized to administer oaths, examine witnesses and receive testimony: 13; 28. See also Special agents and examiners. Exceptions to answer not customary : 126. Exceptions to evidence not used before Commission : 156. Excursion tickets (act), sec. 1: 279. Execute and enforce, an administration duty: 47. power to, is party judicial, partly executive, and partly adminis- trative: 16. will not by implication give power to make rates: 47 (Note). Exhibits, practice respecting: 109. contracts not required to be filed with Commission may be an- nexed to pleadings as : 104. 462 INDEX [Eef erences are to pages] Expediting act, text of: 307. generally: 239. certificate under: 239. applicable to suits to enjoin order of Commission : 206. Expediting act, text of : 307. applies to Commission cases, 307. applies to siiits against Commission, sec. 16 : 290. Expenses of Commission (act), how paid, sec. 19: 294. Expert and opinion evidence frequent before Commission : 145. Expert knowledge of Commission as affecting election of forum : 91. Explosives, act to promote safe transportation of: 52. Export and import commerce; carriers handling, subject to act to reg- ulate commerce: 34 (Instance). jurisdiction of Commission: 38 (Instance). Express companies subject to act to regulate commerce : 32. may be parties defendant: 116. Express companies (act), employees carried free, sec. 1: 279. included in act, sec. 1 : 279. Facilities for interchange of traflic, evidence required in cases al- leging failure to : 169. Facilities for interchange of traffic (act), sec. 3: 281. Facts only should be pleaded: 102. answer may deny, or admit, or allege new: 124. full knowledge of, is essential to a decision of Commission : 42. False billing (act) , sec. 10 : 285. entry in accounts, etc., sec. 20 : 294. Fabes (act). See Tariff. Federal charter, does not preclude jurisdiction of Commission : 35. Federal conrts. See Courts. Fees (act), before Commission, sec. 19: 294. before courts, sec. 12 : 286 ; see. 16 : 290. deposition, sec. 12 : 286. Fees of witnesses: 160; 264. Ferries and bridges, included in "railroad:" 33. Feeeies and beidges (act), sec. 1: 279. File (act), contracts, arranugements, etc., sec. 6: 282. tariff. See Tariff. Findings op pact in money damages (act), sec. 14: 288. prima facie evidence, see. 16: 290. Foreign countries, commerce with adjacent, subject to control of Com- mission: 19. Foreign countrt (act), posting of tariff through, sec. 6: 282. INDEX 463 [Beferences are to pages] Foreign rail carriers are subject to general investigations: 25 (In- stance). Forfeiture, meaning of: 202 (Note). list of, provided for in act to regulate commerce : 202. jurisdiction of courts in suits for : 202. venue of suits for: 202. POKFEiTURE (act), Consideration illegally received, sec. 1, Elkins' law: 303. costs and expenses of suit for, sec. 16 : 290. disobedience to orders of Commission, sec. 16: 290. duty of district attorney, sec. 16 : 290. failure to file annual report, recovery, sec. 20: 290. failure to keep accounts, sec. 20: 290. recoverable by civil suit, sec. 16 : 290. Form of procedure before Commission (act), sec. 17: 293. Formal allegations, notice in nature of demurrer may be used to stow want of: 123. Formal complaint, form and requisites of : 100. similarity to bill in equity : 100. parts of: 101. may be filed against carriers and others : 99. allegations in: 100. See also Complaints. Forms (Commission) — complaint against a single carrier : 316. complaint. State railroad commission and shippers: 316. complaint against two or more carriers : 320. petition by voluntary association against two carriers : 321. alleging violation of sec. 4 of the act : 325. seeking obedience to sec. 6: 325. prayer for compliance with sec. 6: 326. by a common carrier seeking the establishment of a through route and joint rates with another : 326. prayer for through route and joint rates : 326. answers: 327-328. notice by carrier under Rule V (notice in nature of demurrer) : 329. subpoena: 329. notice of taking depositions imder Rule XII : 330. motion for time to file petition of intervention : 330. motion for leave to intervene : 331. intervening petition : 331. 464 INDEX [Eef erences are to pages] Forms (Commission) — continued. prayers: 332. allegation in petition setting up defense of carrier : 334. form prescribed for special reparation cases : 334. Forms (Courts) — bill by Commission to enforce its order: 339. bill to enjoin, set aside, and annul order of Commission involving a practice : 343. bill to enjoin, set aside and annul order of Commission involving reasonableness of rate: 347, 348, 362. order of court why injunction should not issue : 371. notice of application for an order: 372. notice of passage of order: 373. notice of order why injunction should not issue : 373. Fornm, election of, is final: 91. selection of as between courts where jurisdiction is concurrent important: 193. Fourth section, applications under, rule respecting: 381. in application for relief under, all carriers forming through line should be made parties: 118 (Instance). See Applications for relief under long and short haul section. Free transportation op persons (act), sec. 1: 279. excepted cases, sec. 1 : 279. interchange permitted, sec. 1 : 279. penalty and jurisdiction of courts, sec. 1 : 279. prohibited, sec. 1: 279. property in certain cases, sec. 22 : 297. Freight depots, included in "railroads": 33. Furnishing cars (act), sec. 1: 279. mandamus to compel, sec. 23 : 298. Gas, carriers of, not subject to act to regulate commerce : 32. General averments in pleadings will not sustain claims for reparation : 103 (Instance). General investigations, nature of: 24. not precluded by want of jurisdiction : 25 (Instance) . have covered practices of carriers, proposed advances in rates, filing of tariffs, and relation of rates: 24. foreign rail carriers are subject to: 25 (Instance), may be predicated on facts in formal petition: 22 (Instance). Commission may make, under act to aid in construction of rail- road and telegraph line to Pacific Ocean : 52. INDEX 465 [Eeferences are to pages] General investigations — continued. notice and opportunity to be heard in, is compliance with statute : 25 (Instance). orders may be issued in : 24. evidence in: 180. General order is used for general investigations : 18. Ground for investigation, complaint must state : 102. Grounds used or necessary in transportation of interstate freight in- cluded in "raih-oad": 33. Groups of railways for statistical purposes : 9. Handling of property, services in connection with, included in "trans- portation": 54. Haxjl, long and short (act), sec. 4: 282. Hearings, generally: 127. rule of practice respecting : 376. part of record of case : 14. appearances of counsel noted at : 111. may be set after time for, if no answer filed : 127. may for cogent reasons be delayed : 127. notice of, may be published to permit public to be heard : 121. Hours of service act : 52 ; 59. Icing. See Refrigeration or icing. Icing service (act), sec. 1: 279. Immigration laws, relation of Commission to : 63. Immigration regulations. Commission can not interfere with : 64. Immunity, defined (act), immunity acts: 300-301. to testifying witnesses, sec. 9 : 284 ; sec. 12 : 286. See also Immunity acts, 300-301. Immunity of witnesses, generally : 160. statutes relating to : 161 and Note. text of immunity act : 300. text of act defining right of : 301. provisions in act to regulate commerce respecting: 67. constitutional provision concerning: 160. decisions respecting: 162 (Note) ; 163 (Note). Import and export commerce within control of Commission : 19. Imprisonment for discrimination (act), sec. 1, EUrins' law: 303. Impkovbments of carrier, in aimual report (act), sec. 20: 294. Inconsistent defenses may be pleaded : 124. Indictment may be had in district other than that in which crime was begun : 231. under act to regulate commerce, as amended, list of : 215. 466 INDEX [Eef erences are to pages] Indictment — eontinued. under act to regulate commerce, list of prior to Bllrins' law: 212. under interstate commerce and Elkins' law, list of: 218. under Elkins' law: 221. under section 5440, Revised Statutes : 228. "Industrial eauiKOAds", etc. (act), sec. 15: 289. Informal complaints, kinds of : 98. special reparation : 99. filing of, prevents running of limitations provision: 99. evidence in : 180. Information and belief, matters may be alleged on : 106. Information to parties, rule of practice respecting: 381. Initial caerber has recourse upon carrier responsible for damage (act), sec. 20:294. Injunctions, power of courts to issue : 241. practice in : 253. against enforcement of the orders of Commission, to be heard be- fore three judges: 243. preliminary, usually granted on terms : 253. to enjoin departures from published tariffs, list of cases : 243. Injunction compelling obedience to order (act), sec. 16: 290. notice to Commission, sec. 16 : 290. suit for damages not interfered with by, sec. 3, Elkins' law: 305. to restrain rebates, sec. 3, Elkins ' law: 305. Inspectors of safety appliances: 8. Instrumentalities and facilities of shipment or carriage included in "transportation": 34. Interchange of traffic (act) , sec. 3 : 281. Interchangeable tickets (act), see. 22: 297. Interior Department, Commission formerly part of: 3. Interlocutory order, notice of appeal from (act) , sec. 16 : 290. See also Injunction. Interlocutory orders, kinds of: 139. Interpretation and construction of act to regulate commerce, purpose of act to be considered : 68. by courts, comment of Commission on : 67. See Construction of act to regulate commerce. Interstate character of shipment preserved (act), sec. 7: 284. Interstate commerce, in matter of, the United States are but one coun- try: 19 (Note). INDEX 467 [References are to pages] Interstate commerce — continued. certain regulatory powers over, are exercised by Department of Commerce and Labor : 4. property wben it has begun to move as such is : 41. handled by intrastate carrier makes carrier subject to act to regu- late commerce: 37 (Instance). Interstate Commerce Commission, authority of, under hours of labor act : 59. over street railways in District of Columbia : 58. to inquire into management of carriers: 50. must be in creating statute : 17. under ash pan act: 58. to approve certain interlocking switches: 56. under safety-appliance acts: 54. to investigate block signal systems : 55. to modify notice in change of rates : 48. under act to promote safe transportation of explosives : 59. respecting accident reports : 56. under joint resolution respecting discriminations in coal and oil: 57. under act to aid construction of railroad and telegraph to Pa- cific Ocean : 52. duties under acts other than act to regulate commerce : 51. non- judicial powers of: Chapter III, 47-50. executive duties of: 47. administrative duties of: 47. supervisory and regulatory powers: 49. auxiliary powers of: 50. briefs, rule of practice respecting : 379. costs, none before: 130. general investigations on its own motion: 24. opinion of, must have findings of fact in reparation cases : 128. divisions in office of : 7-9. decisions of: 10. administrative rulings and opinions : 11. annual reports of: 11. conference rulings of: 11. publications of: 12. independent of Executive Departments: 3. part of Interior Department prior to 1889 : 3. reports direct to Congress : 3. will not enforce constitutional provisions of State : 20. 468 INDEX [Eeferences are to pages] Interstate Commerce Commission — continued. sole judges of reasonable rates : 20. proceedings of, in part judicial, in part legislative, in part admin- istrative: 15. legal status of: 16. analogy of, to courts of equity : 16. not a court: 16 (Note). no longer an inquisitorial body: 16 (Note). weight given by, to decisions of courts: 46. examiners of, may administer oaths, examine witnesses, and re- ceive testimony : 13. sessions of: 12. docket of : 14. not bound by obiter opinions of courts: 45 (Instance). can not award counsel fees : 130. Eules of Practice before: 374; 381. may investigate and recommend, although not having authority to make an order: 17. may ask Attorney-General to bring suits for mandamus under section 20: 48. may inspect accounts of carriers subject to act to regulate com- merce : 49. may require reports from carriers subject to act to regulate commerce: 49. may determine form of schedules: 49. may consider whether advanced rates result from concert of ac- tion of carriers: 61 (Instance). may impose conditions where cases are dismissed at request of parties: 138. may employ special counsel: 50. may ask aid of court to compel obedience to its subpoena : 50. may determine as to switch connections: 50. courts unfavorable to implied powers for : 17. iaterpretation and construction of act by : 67 ; 68. power to award reparation construed: 30; 31 (Instance). orders for reparation must be based on findings of fact: 30. orders for reparation do not have validity of judgments : 30. exercises discretion as to time reparation shall begin : 130. questions which it will not determine : 42. comity between, and the courts: 45. comity between, and State railway commissions : 44. relation to Sherman antitrust law: 60. INDEX 469 [Eeferences are to pages] Interstate Commerce Commission — continued. is not charged with enforcing customs and immigration laws : 63. looks to substance, not form, of relations of carriers : 70. no contempt before: 50. proceedings in a case before : 97. questions decided by court of appeals binding on : 155 (Instance). does not consider itself bound by doctrine of stare decisis : 154. See Evidence (Commission) ; Jurisdiction (Commission) ; Plead- ing (Commission); Orders; Rehearings; Complaint; An- swers; Parties. Interstate Commerce Commission (act), decisions and reports to be published, sec. 14: 288. employees, sec. 18: 294. enforce act, sec. 12 : 286. enlargement of, sec. 24: 298. established, sec. 11: 286; sec. 24: 298. expenses, how paid, sec. 18 : 294. fees of witnesses, sec. 18 : 294. findings of fact, sec. 14: 288; sec. 16: 290. form of procedure, sec. 17 : 293. institution of inquiries, sec. 13 : 288. investigations by, sec. 12 : 286 ; sec. 13 : 288 ; sec. 18 : 294. just regulations and practices prescribed by, see. 15 : 289. may waive fourth section, sec. 4 : 282. money damages awarded by, sec. 16 : 290. oath administered by, sec. 17 : 293. offices and supplies, sec. 19 : 294. order. See Order of Commission. qualifications, sec. 11 : 286 ; sec. 24 : 298. rehearings, sec. 16a: 293. report, annual, to Congress, sec. 21 : 297. report of investigations, sec. 14 : 288. salaries, sec. 11: 286; sec. 24. 298. seal, sec. 17 : 293. Secretary, sec. 17: 293. service of orders, sec. 16 : 290. service of reports, sec. 14: 288. sessions of, sec. 19: 294. special agents and examiners of. See Examiners. special counsel, see. 16: 290. suits against. See Suit. terms of office, sec. 11: 286; sec. 24: 298. 470 INDEX [References are to pages] Interstate Commerce Commission (act) — continued. testimony before, sec. 12: 286; sec. 17: 293; sec. 3, Elkins' law, 305 ; Immunity acts, 300-301. vacancies in, sec. 11: 286; sec. 24: 298. venue of suits against, sec. 16 : 290. Interterritorial commerce subject to act to regulate commerce: 40. Interveners may assert rights independent or with either complainant or defendant : 121. may examine witnesses, adduce testimony, and be heard in argu- ment: 122. Intervention by parties interested in result permitted : 122. orders permitting, usually granted as matters of course : 121. parties defendant may be made by compulsory: 122 (Instance). to bring in new parties : 121. forms for: 330; 331. Intrastate carrier not subject to the act to regulate commerce : 36. may become subject to act to regulate commerce: 36 (Note). handling interstate commerce subject to act: 37 (Instance). Intrastate commerce, not within the power of Congress to regulate : 19. Intrastate traffic excluded (act), sec. 1: 279. Intrastate transportation of interstate commerce: 39 (Instance). Intraterritorial commerce formerly not subject to act to regulate com- merce: 40. Introduction part of formal complaint : 101. Investigations of Commission (act), sec. 12: 286; sec. 14: 288; sec. 20: 294. Investigation required in applications for relief under long and short haul section : 137. Issues are made by complaint and answer: 125. Joinder of complainants permitted : 114. Joinder of issue, none before Commission: 125. Joinder op parties (act), see. 16 : 290; sec. 2, EUrins' law: 304. Joint answers permitted: 126. may set up separate defenses for several defendants : 127. Joint liability (act) , shipper and carrier, sec. 10 : 285. Joint rates, all branch roads are not entitled to: 27 (Instance). See Through route and joint rates. Joint rate (act), prescribed and apportioned, see. 15 : 289. to be established by carrier, sec. 1 : 279. Joint TARIFF (act). See Tariff. Judicial notice, matters of which Commission will take : 145. matters of, should not be pleaded : 102. INDEX 471 [Beferenees are to pages] Judicial power, whether Commission exercises : 15. Judiciary acts enumerated: 191 (Note). "Jurisdiction," sense in which used as applied to Commission : 15. Jurisdiction of Commission, nature of : 16. not clearly defined : 37. should be pleaded : 18. limited: 18. not precluded by receivership: 35 (Instance). not precluded by Federal charter of carrier: 35 (Instance). none over commerce -vyhoUy within one State : 35. as affected by character of commerce: 36. want of may prevent determination of questions: 43 (Instance). territorial : 19. geographical limits of: 19. has none over intrastate commerce : 20. to grant relief from long and short haul section : 25. exclusive, in applications under long and short haul section : 21. to establish through route and joint rates : 26. to determine entire controversy: 22. exclusive, to correct regulations and practices of carriers: 21. may be apparently concurrent with State courts or commissions respecting switch connections: 22. not affected by amoimt in controversy : 18. probably exclusive, where amount in controversy is less than stat- utory sum: 20. not as broad as commercial power of Congress: 19. over carriers handling export and import commerce: 34. none over commodities intended for transportation to another State: 40 (Instance). want of may be raised by Commission of its own motion : 18. to make an order on petition : 26. to determine entire controversy: 22. to make orders for allowances to owners of property : 21 ; 27. to apportion divisions of joint rates: 27. to award reparation : 27. miscellaneous judicial powers: 28. to entertain complaint against rate effective in future : 21. effect of want of: 17. want of does not preclude general investigation: 25 (Instance). if doubtful will not act: 17 (Note). over carriers essential to reparation: 31 (Instance). statutory: 17 (Note). 472 INDEX [Eef erences are to pages] Jurisdiction of Commission — continued. exclusive to compel through route and joint rates : 21. to make orders under sec. 1 : 27. to make orders under see. 16 : 27. to change or modify an order : 29. to award reparation : 29. orders for reparation must be based on findings of fact : 20. Jurisdiction of courts defined: 194 (Note). Jurisdiction (act). See Court; Criminal provisions; Suit. Jurisdiction of Federal courts, authority of, derived from Constitution and acts of Congress: 191. test of equitable: 245 (Note), to restrain rates effective in future : 21. to award damages under interstate commerce act : 20. essentials, to confer: 196. essential that proper service be had: 196 (Instance), nature of, in enforcing order of Commission : 234. difference as to issuance of legal and equitable writs : 203 (Note) . concurrent with Commission, when : 21. at law conferred by act to regulate commerce : 197. to fix rates for transportation : 195 and Note, in mandamus : 203. no jurisdiction to issue mandamus to compel filing of annual re- ports of carriers prior to June 29, 1906 : 48 (Note) . in suits for forfeitures: 202. to grant injunctions : 241. under Elkins' law, to enjoin discriminations probably confined to existing and not threatened : 192. have jurisdiction to protect interstate commerce at suit of United States: 192 (Instance), to entertain proceedings to restrain rates effective in future : 21. to enjoin rates effective in future : 207. to enjoin order of Commission : 205. at suit of carriers to protect commerce : 192 (Instance) . to restrain taking effect of unjust rates and practices : 208. none to restrain unjust rates after they have taken effect : 209. to enjoin violation of pooling section : 196. exclusive in Federal, in criminal violations of act to regulate commerce: 193. Federal, is exclusive to enforce rights granted by act to regulate commerce: 193; 195. State and Federal, concurrent if to enforce rights existing but not granted by act to regulate commerce : 193 ; 195. INDEX 473 [Beferences are to pages] Jurisdiction of Federal courts— contiaued. no jurisdiction prior to Elkins' law to enjoin discriminations: 192 (Instance); 200 (Instance). no jurisdiction on removal if none in State court : 233. not conferred by consent : 233. none to change or modify order of Commission: 234 (Instance). Jurisdiction of State courts may be apparently concurrent in certain cases with Commission: 22. none over interstate conunerce : 22. Jurisdictional facts ought to be pleaded : 18. Jurisdictional questions may be raised by notice in nature of demurrer : 123 and Note. may be raised after answer on merits : 124. Justice, Department of, prosecutes cases of criminal violation of act to regulate commerce : 8. Justification of rate or practice on one ground does not preclude evi- dence of other grounds : 125. Legal bibliography: 395. Legal rate is one filed (act), sec. 1, Elkins' law: 303. Legal status of Commission : 16. Legislation under commerce clause of Constitution: 3. LiABiLiTT, joint, for damages (act), sec. 10: 285. discrimination. See Rebates. goods received, sec. 20 : 294. corporation, sec. 1, Elkins' law: 303. shipper, sec. 10: 285; sec. 1, Elkias' law: 303. Limitations of actions (Commission), general principles of apply to present statute: 95 (Instance). former rule respecting: 93 (Instance). no provision for, prior to act of June 29, 1906 : 92. filing of petition is beginning of suit: 95 (Instance). can not be defeated by amendment of bill of particulars : 110. present in reparation cases: 93. may be considered in electing forum: 91. prevented from running by intervening petitions and particulars of shipments : 134. supplemental bills of particulars to prevent running of : 130. filing of informal complaint prevents running of : 99. Limitations of actions (courts), generally: 238. courts follow State statutes of : 92. Limitations of actions for money damages (act), sec. 16: 290. 474 INDEX [Eeferences are to pages] long and short haul section, jurisdiction to grant relief from : 25. applications from relief imder: 25; 137. definite meaning of uncertain : 25 (Note) . applicable only to special cases: 25 (Instance). evidence required in applications for relief under : 170. if order of Commission is burdensome carrier should apply for relief under: 138 (Instance). Long and short haul (act), sec. 4: 282. Loss OR DAMAGE (act), liability for freight received, see. 20: 294. Mandamus, jurisdiction of courts in: 203. jurisdiction to issue writs of, given by act : 203. must be ancillary to preacquired jurisdiction : 203. cases in which used: 204. may issue, to compel furnishing of coal cars: 204 (Instance). to secure writ discrimination must be made out: 204 (Instance). suits in, may be brought by Attorney-General at request of Com- mission: 48. to compel filing annual reports, cases brought : 204. jurisdiction to issue, to compel filing of annual reports not con- ferred by act prior to June 29, 1906: 48 (Note). Mandamus (act) to compel compliance with act, sec. 20: 294. to compel compliance with order of Commission, sec. 16 : 290. to compel furnishing ears and movement of traf5c, sec. 23 : 298. Manner in which carriers must be engaged to be subject to act to regu- late commerce: 33. Matters may be alleged on information and belief: 106. Maximum rate (act). See Eates. Measure of damages for unreasonable rates: 32 (Instance). Merits, answering on, does not preclude raising jurisdictional ques- tions : 124. Mexico an adjacent foreign country: 19. Mileage (act), tickets, see. 1: 279. to witness, sec. 18: 294. Military traffic, preference to (act) , sec. 6 : 282. Misdemeanor (act). See Criminal provisions. Misjoinder of parties cause delay : 112 ; 114. Money damages. See Eeparation. Money damages (act), accrued claims, see. 16: 290. attorney's fees, see. 8: 284; see. 16: 290. award of, by Commission, see. 16 : 290. complainant need not claim, sec. 13 : 288. INDEX 475 [Beferences are to pages] Monet damages (act) — contimied. costs not taxed on petitioner in circuit court, sec. 16 : 290. findings of fact, sec. 14 : 288 ; see. 16 : 290. joinder of parties, see. 16: 290; sec. 2, Elkins' law: 304. joint liability of shipper with carrier, sec. 10 : 285. jurisdiction of courts. See Courts; Suit. limitations of actions, sec. 16: 290. service of Commission's order, sec. 16: 290. service of process, sec. 16: 290. under sec. 1, Elkins' law: 303. Monthly and special, eeports of carriers (act), sec. 20: 294. Motions, various kinds of: 129. ordinarily granted as of course but not where rights wiU be af- fected: 130. to strike out may be used for objectionable matter : 108. for leave to file intervening petition may be used: 122 (Note). for time to intervene, form of: 330. for leave to intervene, form of : 331. Multifariousness, not objectionable : 108. practice in avoiding: 108. National Association of Eailway Commissioners, proceedings of : 12. "New section" (act), see. 23: 298. Nonjoinder of parties cause delay : 112. Notice and opportunity to be heard in general investigations is com- pliance with statute : 24 (Instance) . Notice in nature of demurrer, generally : 111. functions of: 123. on hearing of, facts alleged deemed to be true : 123. results of determination of: 124. form of: 329. Notice of application for court order, form of : 372. Notice (act) for injunction or interlocutory order, sec. 16: 290. of change in rates, sec. 6 : 282. Notice of change in rates. Commission has authority to modify : 48. Notice of order why injunction should not issue, form of : 373. Notice of passage of order, form of : 373. Notice of taking depositions, form of : 330. Notice to produce, usual rules respecting are followed : 158. voluminous records will not be ordered: 158 (Instance). Oaths may be administered by Commission or examiners : 13 ; 28. Oath (act), administered by Commissioner, sec. 17: 293. administered by examiner, sec. 20 : 294. of carrier to annual report, sec. 20 : 294. 476 INDEX [Eeferences are to pages] Offenses under act to regulate commerce, list of : 211. Office and supplies of Commission (act), sec. 19: 294. Oil, carriers engaged in transportation of, subject to act : 32. Oklahoma and Indian territories, Commission to approve certain in- terlocking switches in : 51 ; 56. Opinions, obiter, of courts do not bind Commission: 45 (Instance). Orders of Commission, purposes of: 139. kinds of: 140. may be interlocutory or final: 139. final, what are: 139. prepared in office of Commission : 140. will not be granted (a) where carrier has conceded relief; (&) upon issues without proof; (c) where answer satisfies com- plainant; (d) where causes of complaint removed; or (e) where inequality of rates has been corrected : 140. may issue where part only of relief asked has been granted : 140. duration of : 140. duration of, discretion of Commission in : 141. duration of, limited by statute : 141. under former statute might operate indefinitely: 141 (Note). taking effect of, discretion of Commission as to time of: 141. for the payment of money not subject to time limit : 141. may fix time during which relief conceded shall prevail : 141. frequently accompanied by permission waiving provisions re- specting filing rates : 141. may be composite as to defendants : 140. awarding reparation : 139. for reparation must be based on findings of fact : 30. changing classification: 139. changing rates or practices : 139. establishing through route and joint rates : 139. respecting rates and practices of carriers : 25 ; 26. respecting allowances to owners of property : 27. taking effect of, may be suspended to permit carriers to adjust rates: 24 (Instance). not prevented by pendency of suit in court: 46 (Instance). none wiU be made where carriers have right to be heard and are not made parties: 119 (Instance). power of Commission not exhausted by having once passed on subject: 184 (Instance). regularly made and duly served, constitutionality of provision respecting enforcing doubtful: 197 (Note). INDEX 477 [Beferenees are to pages] Orders of Commission — continued. permitting intervention usually granted as matter of course : 121. compliance with rule of practice respecting : 380. modification of : 184. courts have no power to change or modify: 234 (Instance) ; 235. formerly not self -executing : 235. list of cases brought to enforce: 235. suits to enjoin, expediting act applicable to: 206. list of suits brought to enjoin : 206. courts not mere executioners of: 234 (Instance). proceedings to enforce, are independent and original suits : 234. dismissiag petition : 139. dismissing petition without prejudice: 139. proceedings after, generally : Chapter VIII, 181-188. proceedings after, application for rehearing : 181. want of mutuality in statute respecting: 181. Order op Commission (act), binds all parties, sec. 2, Elkins' law: 304. carrier to comply with, sec. 16 : 290. Commission may modify or suspend, sec. 16 : 290. court 's power over, sec. 15 : 289. division of joint rate, sec. 15 : 289. for payment of money, suit on, sec. 15 : 290. how served (by mail), sec. 16: 290. other than for payment of money, suit on, sec. 16 : 290. punishment for noncompliance with, sec. 16 : 290. reasonable rates and practices, sec. 15 : 289. venue of suits to set aside, sec. 16 : 290. court binds aU parties, sec. 2, EErins' law : 304. Order of court, notice of, why injimction should not issue : 339. notice of passage of, form of : 373. notice of application for, form of: 372. why injunction should not issue, form of: 371. Order of evidence before Commission : 150. Organization of company (act), in annual report, sec. 20: 294. Owner of property, reasonable charge to be paid to, Coromission may determine: 21. Ownership does not affect applicability of act to regulate commerce as to instrumentalities and facilities of shipment : 34. Own motion (act) , Commission to investigate on, sec. 13 : 288. Papers, copies of, filed with Commission, rule respecting : 380. Parol evidence, rule enforced by Commission : 156. 478 INDEX [Eeferenees are to pages] Particulars, bill of. See BiU of particulars. Parties, rule of practice respecting : 374. choice of important: 112. how described: 112. corporations, how alleged : 112. partnership, how stated: 112. mis and non joinder of, results of: 112; 118 (Instance). effect of failure to object to : 120. want of proper, prevents relief: 117 (Instance). consent of, may permit award of reparation: 133 (Instance). cases may be dismissed at request of: 138. are bound by admissions ia pleadings : 109. those in fiduciary capacity as: 114. new, may be brought in by intervention, amendment, or substi- tution: 121. amendment as to, may be permitted after initial hearing : 121. one improperly made such may be relieved: 114. Complainant, who may be : 112. on behalf of others: 113. may not have personal interest: 112 (Note). need have no real grievance: 113 (Instance). associations may be, although having no direct interest: 113. association in violation of antitrust law may be: 113 (Note). Defendants, who may be : 115. who must be: 120. are generally common carriers: 115. operating carriers are : 114. handlers of transportation may be : 116. express companies may be: 116. sleeping-car companies may be : 116. all carriers forming connecting line should be made : 117. carriers handling traffic to basing points not necessary, in pro- ceeding attacking rates beyond: 117 (Instance). receivers of carriers are proper : 118 (Instance) . classification committee not a proper: 118 (Instance). in proceedings to change classification: 118 (Instance). one interested in rate or regulation may be : 99 ; 115 (Note) . how pleaded, when numerous: 113. unless proper, be before Commission no order will be made : 131. carriers may be made by compulsory intervention : 122. subsidiary carrier is proper but not necessary: 120. those who can not be made : 119. INDEX 479 [Eeferences are to pages] Parties — continued. when water carriers are proper: 118 (Instance). in applications tinder fourth section all carriers operating through route should be made: 118 (Instance), unnecessary to make all, having same rate or practice : 117. all carriers participating in through traffic are proper but not necessary parties: 247. although beyond geographical jurisdiction of court : 247. defendant may be original complainants : 247. in cases brought to enforce order of Commission : 246. in cases involving interstate commerce generally : 246. in suits to set aside, annul, or enjoia order of Commission, carrier may be complainant : 247. under interstate commerce act: 246. under sec. 3, BIkins' law, process enforceable against aU interest- ed in traffic : 247. Parties may be joined (act), sec. 16: 290; sec. 2, Elkins' law: 304. Partnership, how alleged in pleadings : 112. Passenger (act). See Tariff; Free transportation. Passengers or property, specified character of commerce in act to reg- ulate commerce: 33. Pecuniabt interest of Commissioner in investigation (act), sec. 17: 392. Penalty (act), compulsory testimony cases, sec. 12: 286; Immunity acts : 300-301. divulging by examiner, sec. 20 : 294. failure to file annual report, sec. 20: 294. failure to keep, file, and exhibit accounts, sec. 20 : 294. failure to publish rates, sec. 1, Elkins' law: 303. false entry, etc., accounts, sec. 20: 294. for noncompliance with Commission's order, sec. 16: 290. free passes, sec. 1 : 279. interchangeable tickets, sec. 22 : 297. rebates, sec. 10: 285; sec. 1, Elkins' law: 303. violations of act, sec. 10: 285. Pending cases not affected by amendment (act), sec. 10, Act June 29, 1906: 299; sec. 4, Elkins' law: 306. Petition, intervening, form of: 331. See Complaint. Pipe lines, subject to control of Commission : 4. if transporting certain commodities subject to act to regulate com- merce: 32. 480 INDEX [Bef erenees are to pages] Pipe lines (act), sec. 1: 279; sec. 6: 282. Pleading (Commission), to be in simplest form consistent with cer- tainty: 98. consist of complaint and answer : 98. time of filing : 110. no technical rules of, apply before Commission : 108. dilatory pleas not favored: 111. averment necessary to give jurisdiction : 101. formal defects in: 108. schedules, tariffs and contracts, how pleaded : 104. technical terms and abbreviations in : 104. no departure: 108. multifariousness not objectionable : 108. disclaimer may be used by one improperly made defendant : 125. effect of omission to make proper allegations: 106. matters not known to pleader : 106. matters peculiarly within knowledge of adverse party: 106. character of evidence admissable under: 149. Complaint, rule of practice respecting : 375. parts of : 101. allegations of: 102. verification no longer required : 106. anticipated defences : 104. complaint should advise defendant of nature of complaint : 103. should not be too broad: 102 (Instance). must state reasonable ground for investigation : 102. of unreasonable rate should state what would be reasonable : 103. insufficiently charging violation of act will be dismissed : 103. in reparation cases allegations must be specific: 130. general averments will not sustain claim for reparation : 103. in reparation cases bill of particulars should accompany : 130. Prayers for relief should be in harmony with relief to which com- plainant entitled : 105. leniency respecting relief under general prayer : 105. may be too broad to admit granting : 105. should not ask relief which Commission can not grant : 106. Answers, rule of practice respecting : 375. should be precise and show defense: 104 (Instance). may be by way of disclaimer, traverse or confession and avoid- ance: 123. pleading different defenses : 123. time for: 123. INDEX 481 [Bef erenees are to pages] Pleading (Commission) — continued. Answers — continued. service of : 125. effect of, to part only of petition : 125. failure to, effect of : 124. generally concedes right of complainant to file petition : 124. usual admissions in: 124. usually denies any violation of antitrust law : 124. on merits does not preclude raising jurisdictional question : 124. failure to file wiU not prevent fixing hearing : 127. joint, permitted: 126. joint, may set up separate defenses for several defendants : 127. exceptions to, not customary : 126. Replication, none permitted : 125. leave asked to file, was denied : 126 (Instance) . Notice in nature of demurrer, rule of practice respecting : 375. See Notice in nature of demurrer. Parties. See Parties. Amendment, rule of practice respecting: 376. liberality of Commission respecting: 107. as to parties, may be permitted after initial hearing: 121. permitted to change title of official of carrier : 108. not necessary to bring in matters already pleaded : 107 (Note) . permitted to bring in receivers: 121 (Instance). not permitted to create new issues: 107 (Instance). Pleading (Courts), equity: 245. law: 245. requisites of bill to enforce order of Commission : 248. requisites of bill to enjoin order of Commission: 248. requisites of bill to enjoin rate or practice effective in future : 250. answer of carrier to bill to enforce order of Commission: 251. answer of Commission to bill to enjoin order : 250. Pleading and practice (Commission), generally: Chapter VI, 85-142. Pleading and practice (Courts), generally: Chapter X, 245-256. Police power of a State, does compelling switch connection fall ex- clusively within : 22 (Note) . Pooling prohibited (act), sec. 5: 282. Posting tariff (act), sec. 6: 282. Power op Commission to make inquiry (act), sec. 12: 286. Power to "execute and enforce" is partly judicial, partly executive, and partly administrative : 16. Powers, enumeration of, not exclusive (act), sec. 15: 289. 482 nsTDBX [References are to pages] Powers, specific, given to courts by act to regulate commerce : 197. Practice, Rules of, before Commission : 374-381. service of papers, rule of practice concerning: 376. appearances of counsel not usually required : 111. Practice (Courts), general rules apply except as modified: 251. in injunctions: 253. preliminary injunctions usually granted on terms : 253. but not if answer denies facts: 253 (Instance). Practices of carriers have been subject of general investigations : 24. if in general use wiU not be condemned when few carriers are parties: 105. evidence required in cases involving: 171. to receive broad interpretation: 69 (Instance). when used with "regulations" is broad enough to include distri- bution of coal cars: 169 (Note). if in force by several carriers all have right to be heard : 120. See Eegulations and practices. Practices, just (act), sec. 15: 289. Prayers of a complaint : 101 ; 105. ought not to be for relief which Commission can not grant : 106. should be in harmony with relief grantable by Commission : 105. may be too broad to admit granting relief : 105. forms of: 326; 332. Pebfbrencb and expedition of military trafSc (act), sec. 6: 282. Prejudice or disadvantage, undue and unreasonable, evidence required in cases of, against commodities or localities: 178. "Prescribe" a legislative term : 26 (Note) . Presumptions, no line between conclusive and rebuttable, before Com- mission: 152. in nature of admission may arise from long continued rate or practice: 109 (Instance). as to regularity of various matters : 152. none as to legality of rates in filed tariff: 152 (Instance). none as to legality of long-continued practice : 153 (Instance) . none as to reasonableness of former rates : 153 (Instance) . none as to legality of filed rates: 152 (Instance). no line between conclusive and rebuttable : 152. not as weighty before Commission as before courts : 151. of legality of official acts : 152. Prima facie bvidencb (act), sec. 16: 290. PRrNTiNG, posting, and filing schedules (act) . See Tariff. Peioeitt of Commission cases in Supreme Court (act), sec. 16: 290. INDEX 483 [Eeferences are to pages] Peivate-cab service (act), sec. 1: 279; sec. 15: 289. Procedure (Commission), generally: Part I, 1-187. analagous to that of courts of equity : 97. to be speedy and not dilatory: 97 (Instance). Procedure (Courts), generally: Part II, 191-268. general rules apply except as modified : 251. injunctions: 253. preUminary injunctions will not be granted if answer denies facts: 253 (Instance). Peoceduee of investigation (act), sec. 12: 286. of suit. See Suit, to conduce to justice, sec. 17 : 293. Proceedings after order other than reparation : 185. granting relief in reparation cases : 185. dismissing petition: 186. dismissing petition, defeated complainant perhaps may have cer- tiorari: 187. Proceedings in a case before Commission : 97. Proceedings of Commission, nature of: 15. Proof, necessity for, in issues of fact: 165. may be taken by Commission although no answer filed : 124. Property, Commission may make order respecting allowance to owners of, for services: 27. reasonable charge to be paid to owner of, Commission to deter- mine: 21. when it has begun to move to another State becomes interstate commerce: 41. ceases to be interstate commerce when incorporated in and is mixed with other property of State : 41. Protest not necessary to entitle to reparation: 133 (Instance). Public has right to be heard, and notice of hearing may be published for: 121 (Instance), may be heard in any proceeding, particularly in general investi- gations: 122. Public records, etc., filed with Commission (act), sec. 16: 290. Publication of decisions of Commission (act), sec. 14: 288. Publications of Commission : 12. Published rates (act). See Tariff. Purposes of act to regulate commerce to be considered, its interpreta- tion and construction: 68 (Instance). ftualifications of members of Commission : 7. 484 INDEX [Eef erences are to pages] Questions decided by court of appeals binding on Commission : 155. Questions of jurisdiction may be reserved for final hearing : 111. Questions which Commission will not determine : 42. Railroad, meaning of term: 33. included under act to regulate commerce: 33. correct titles of leading : 391 ; 394. "Raileoad" defined (act), sec. 1: 279. Eailroad discriminations in coal and oil : 52 ; 57. Railway association territory may be used to describe locality in which carriers operate : 112. Railway commissions, State, character of, in 1886 : 6. Railway commission, State, may be party complainant : 113. Railways in United States in 1902 : 12. State taxation of: 12. State regulation of: 12. Statistics of, in United States : 12. Railway management, complaints against in 1886 : 4. Rates and practices of carriers, orders respecting may be made, after petition by Commission: 26. orders changing: 139. unjust or unreasonable, effective in future may be restrained by Federal courts: 208 (Instance). in effect, though unjust or unreasonable, courts can not restrain the taking effect: 209 (Instance). Rates prescribing for future a legislative function : 15. effective in future, practice respecting : 21. notice of change in. Commission has authority to modify : 48. effective in future, jurisdiction of courts to restrain : 21 ; 207. agreement to maintain, may be in violation of antitrust law : 61. no presumption of legality of, because filed: 152 (Instance). changes in, require explanation: 153 (Instance). former, no presumption as to reasonableness of: 153 (Instance). voluntary reduction of, does not show former unreasonable : 150. continuance of, not evidence of reasonableness : 150. alleged to be relatively unreasonable, evidence tending to show unreasonable per se usually received : 125. if between points served by competing carriers all operating car- riers should be parties defendant : 120. relation and advances of, subject of general investigations: 24. may be considered tmjust unless explained: 152 (Instance). a^ result of concert of action is not necessarily unreasonable : 6?, INDEX 485 [Eef erences are to pages] Rates— eontimied. Unreasonable, must be based on evidence and finding that it was such when paid to secure reparation: 130 (Note), elements to be considered ia: 146. not proven by changes in, continuance of, or rebating : 150. complaint alleging, should state what would be reasonable : 103. evidence of single and entire schedule: 146 (Instance). Reasonableness of, evidence ia cases involving : 172. existing, a question for judicial iuvestigation : 15. Commission sole judges of what is : 20. Commission will not undertake to determine of State, when part of a through rate : 44. Rates charged, reasonable (act), sec. 1: 279; sec. 15: 289. Commission to determine, sec. 15 : 289. filed, deemed legal rate, sec. 1, Elbins' law: 303. regulations of, by carrier, shown in its annual report, sec. 20: 294. service of order of Commission, sec. 16 : 290. See also Tariff. Reargtiment by application for reheariag: 182. Beasonable charge to be paid to owner of property. Commission to de- termine: 21. Beasonableness of existing rate a judicial question : 15. difficult to determine: 173 (Note). usually predicated on cost of transportation: 195 (Note). Bebates not evidence of unreasonableness of published tariff : 150. Rebates (act), sec. 1, EUdns' law: 303. parties liable, sec. 2: 281; sec. 6: 282; sec. 1, Elkins' law: 303. forbidden, sec. 3, EMns' law: 305. offering, soliciting or granting, a crime, sec. 10: 285; sec. 1, ElMns'law: 303. penalty for, sec. 10: 285; see. 1, ElMns' law: 303. Beceipt of property, services in connection with included in "trans- portation": 34. Beceivers, as parties: 114. are proper parties: 118 (Instance). leave of court not necessary to complain of : 118 ; 254 ; 255. may be made parties by amendment: 121 (Instance), reparation order against must be presented to courts : 32. Receivees and trustees subject to act, sec. 20 : 294. BeceiversMp of carrier does not preclude jurisdiction of Commission : 32 (Instance). 486 INDEX [Eef erenees are to pages] Receiving careiees liable for loss or damage to goods (act), sec. 20: 294. See also Liability. Becord of case before Commission : 14. Reduced rates and passes (act), sec. 1: 279; see. 22: 297. Referees or special commissioners, functions of, akin to functions of Commission : 16. Refeigbbatoe service (act), sec. 1: 279. Refrigeration or icing services in connection with included in "trans- portation": 34. Refund of overcharges through errors: 138. Regnlations and practices of carriers, exclusive jurisdiction of Com- mission to correct : 21. orders may be made respecting, by Commission: 26. Regulation of rates to be in carrier's report (act), sec. 20: 294. Regulations and Practices to be just (act), sec. 15: 289. Rehearing, jurisdiction of Commission to grant : 28. rule of practice respecting: 379. Commission granted, under former act: 28 (Instance). kinds of : 182. application for, does not operate as a stay : 28 : 181. reasons for granting comparable to granting new trials at com- mon law: 181 (Note). application for, after order proper : 181. in applications for, no oral argument provided : 182. will not be granted where evidence is cumulative or reargument would not change result: 182 (Instance). petition for, to introduce additional evidence, verified: 183. of general investigation may be granted : 184. will not be prevented by pendency of suit: 146 (Instance). Reheaeings (act), sec. 16a: 293. Relief from long and short haul section, jurisdiction of Commission exclusive: 21. Relief, may not accord with moving papers : 108. answer does not ask for affirmative : 123. Remedy for violation of act to regulate commerce, sec. 9 : 91. Remedies under existing law not barred (act), sec. 20: 294; sec. 22: 297 ; sec. 23 : 297. Removal, no jurisdiction on, if none in State courts : 233. from State to Federal court : 255. Reparation, jurisdiction of Commission to award: 27; 29. jurisdiction over carriers essential to: 31 (Instance). power to award construed: 30; 31 (Instance). INDEX 487 [Beferences are to pages] Reparation — continued. inadequate remedy: 31 (Instance). not awarded where trial by jury required: 32 (Instance). grounds for, must exist: 31 (Instance). for what usually asked : 130. biU of particulars should accompany petition for : 109 ; 130. carriers complainant not entitled to : 30. to whom may be awarded : 39. awarded to real parties in interest: 130 (Instance). proof of damages essential to an award of: 30. may be awarded to members of associations: 30; 132 (Instance). members of complaining association are not entitled to, where demand is indefinite: 132 (Instance). cases may be held open for proof of: 22; 23 (Instance). general averments wiU not sustain claims for: 103 (Instance). limitation of actions in : 93. should not be asked on stale demands: 135 (Instance). cases seeking, Commission may impose conditions before dis- missal: 138. time when shaU begin, is in discretion of Commission : 130. claims for, may be presented by assignee: 135 (Instance). by members of association through common assignee : 135. may be denied for want of proof: 134 (Note). must be asked for in complaint: 134 (Instance). complaints for, for associations should be distinct: 134. will not be awarded for speculative or remote damages: 133 (Note); 134 (Instance). difficult to determine in unjust discrimination cases : 133. protest not necessary to entitle one to: 133 (Instance). Conunission exercises discretion as to amount of: 133 (Instance). may be awarded by consent of parties: 133 (Instance). will not be awarded in aU meritorious cases: 133 (Instance). claim for, must originate in a bona fide cause: 133 (Instance). may be awarded against carriers not parties to proceeding under certain circumstances: 132 (Instance). liability of carriers for, is restricted to those composing through route: 132 (Instance). not necessary that shipper be ultimately damaged to secure : 132. for unreasonable rate, must be based on evidence and finding that it was such when paid: 130 (Note). measure of, for unreasonable rate: 32 (Instance). awarded against receiver, must be presented to court : 32. special. See Special reparation. 488 INDKX [Eef erenees are to pages] Beparation — continued. Orders awarding: 139. orders for, duty of carriers to obey : 30. for, must be based on findings of fact : 30. Eepabatiok (act). See Money damages. Beparation cases, practice in, generally : 130. allegations of complaint must be specific : 130. evidence required in : 179. Repeal of conflicting laws (act), sec. 10, act of June 29, 1906: 299; sec. 4, Blldns' law: 306. Eeplication, none before Commission : 108 ; 125. leave asked to file was denied: 126 (Instance). Beport or opinion of the Interstate Commerce Commission part of record of case : 14. Beports of congressional committees as aids to interpretation and con- struction of act to regulate commerce: 68. Beports of the Interstate Commerce Commission official : 10. Beports of the Interstate Commerce Commission, annual: 11. Ebport and decision of Commission recorded (act), sec. 14: 288. See also Annual report, published and distributed, sec. 14: 288. served, sec. 14: 288. Bes adjudicata decision of court of appeals binding on Commission: 155 (Instance). Betaliation, complaint for purpose of, does not commend itself to Com- mission: 102 (Instance). Bights existing at common law and not reiterated or denied by act to regulate commerce may be enforced in State or Federal courts: 194. under act to regulate commerce and enforceable in Federal courts ' only: 194. Bulings and opinions. See Administrative rulings and opinions. Bules of pleading and evidence as affecting election of forum : 91. Bules of Practice before Commission : 374 ; 381. jurisdiction of Commission to make : 29. Safety-appliance acts: 54. decisions under : 54. benefits of : 55 (Note) . Salaeies (act) , Commission, sec. 11 : 286 ; sec. 24 : 298. employees of Commission, sec. 18 : 294. employees of carrier in annual report, sec. 20 : 294. INDEX 489 [Befeiences are to pages] Scandal and impertinence, no rule respecting : 108. Schedules and tariffs, Commission may determine form of: 49. how pleaded : 104. Schedule, tariff (act). See Tariff. Seal of Commission, authorized : 13. to be judicially noticed : 264. Seal op Commission (act), sec. 17: 293. Secretary op Commission (act), sec. 17: 293. Section 5440, R, S., indictments under, in connection with act to regu- late commerce : 228. Self-crimination (act), sec. 12: 286; sec. 9, Act of June 29, 1906: 298 ; Immunity laws : 300-301. Service on controlling company is valid in complaint against subsidiary company: 110 (Note). of complaint on ofScial of carrier is valid although he be subse- quently succeeded by another : 108. proper, is essential to jurisdiction of court: 196 (Instance). Service (act) of decisions of Commission, sec. 14:288. order of Commission, sec. 16 : 290. process in money damage cases, sec. 16 : 290. Services, what included in "transportation": 34. Sessions of Commission, rule of practice respecting : 12 ; 374. Sessions op Commission (act), sec. 19: 294. Shipper (act), claim for money damages; sec. 10: 285; sec. 16: 290. joint liability with carrier for damages, sec. 10: 285. penalty for obtaining rebates by device, sec. 10: 285; see. 1, BlMns' law: 303. rendering service compensated, sec. 15: 289. Short haul, long haul (act) , sec. 4 : 282. Sleeping-car companies, subject to act to regulate commerce : 32. may be parties defendant: 116. SLEEPiNe-CAB COMPANIES, covercd by act, sec. 1 : 279. employees carried free, sec. 1 : 279. Soliciting (act). See Eebates. Special agents or examiners may be employed by Commission: 50. duties of: 29. Special agents (act). See Examiners and agents, special. Special counsel, Commission may employ: 50; 255. Special counsel (act), sec. 16: 290. Special investigations, evidence in: 180. Special reparation, instructions respecting: 337. if granted, similar action in other cases: 337. 490 INDEX [References are to pages] Special reparation — continued. stipulation in, between consignor and consignee : 337. payment authorized only to consignor or consignee : 337. claims for, barred after two years : 337. authority for, within six months : 837. form for: 334. "Spurs" included in "raib-oad": 33. Stale demands would not be granted under act to regulate commerce prior to June 29, 1906: 93 (Instance), reparation should not be asked on: 135 (Instance), cases will not be reopened to present: 135 (Instance). Stare decisis may apply unless decision rendered under misconception : 154 (Instance). Commission does not consider itself bound by doctrine of : 154. State courts have no jurisdiction to enforce rights under act to regu- late commerce: 233 (Note). State eaileoad commissions (act), sec. 13: 288. State railway commissions, comity between, and Commission : 44. decisions of, are entitled to respect of Commission but are not conclusive : 44 (Instance), may have apparent concurrent jurisdiction with Commission in certain cases: 22. often exercise jurisdiction in intrastate commerce : 194. State statute repealing authority of complainant before Commission does not preclude Commission from general investigation: 25. Stating part of formal complaint: 101. Statistical groupings of railways : 9. of States, not to be confused with assignments for correspond- ence: 7. Statistics, Commission gives little weight to: 145 (Note). Statute, rules for pleading under, applicable to pleadings before Com- mission: 98. Stipulation, form of, in special reparation case : 337. "Storage" services included in "transportation": 34. Storage services (act) , sec. 1 : 279. Street Eailways in District of Columbia, jurisdiction of Commission over: 52; 58. Street railways in District of Columbia (act) : 308. Subjects covered by Administrative Rulings and Opinions : 85. Subpoena duces tecum, rules concerning issuance of: 148. applications for, not frequent : 149. INDEX 491 [Eef erences are to pages] Subpoena duces tecum — continued. applications for, to parties need not be as strong as against strangers: 148. application for, must be in writing, specific and verified : 148. may not avail against third parties where their rights must be respected: 148. modes of avoiding : 149. Subpoenas, rule of practice respecting: 378. may be issued by Commission : 28. form of: 329. Subpoena signed by Commissioner (act), sec. 17: 293. Subsidiary carrier proper but not necessary party : 120. Substitution to bring in new parties : 121. Suit in court will not prevent an order of Commission: 146 (Instance). Suits, expedition of : 239. Suit (act), damage, election of, sec. 9: 284. on order for payment of money, see. 16 : 290. on order other than for payment of money, sec. 16 : 290. Suit against Commission (act), appeal to Supreme Court, sec. 16: 290; expediting act: 307. expediting act applies, sec. 16: 290; sec. 3. Elkins' law: 305. no injunction except after notice, sec. 16 : 290. priority in Supreme Court, sec. 16 : 290. venue, sec. 16 : 290. Supervisory and regulatory powers of Commission : 49. Supreme Couet, appeals to (act), sec. 16, 290; expediting act: 307. in injunction eases, sec. 16 : 290. priority of Commission cases, sec. 16 : 290. Switch connection Commission may order : 22. conditions necessary to give Commission jurisdiction : 27. jurisdiction of Commission to order: 27. Commission may determine safety and practicability of: 50. is power to compel exclusively within police power of States : 22. apparent concurrent jurisdiction of Commission and State courts or commission respecting: 22. location of. Commission may permit parties to determine : 28. evidence required in eases alleging failure to make : 168. Switch connections (act), maintained and operated, sec. 1: 279. subject to Commission 's order, sec. 1 : 279. "Switches" included in "railroad": 33. Switches, spurs, sidetracks (act), sec. 1: 279. 492 INDEX [Eeferences are to pages] Tariffs and schedules of carriers in charge of division of tariffs and transportation: 9. have been subject of general investigations : 24. for export and import conunerce, publication of: 19 (Note). certified copies of, prepared by division of tariffs and transporta- tion: 9. evidence required to compel publication and filing of : 169. judicial notice of, by Commission : 144. how pleaded: 104. not usual to file as exhibits to complaints : 109. how introduced in evidence: 144. ought not be annexed as exhibits to pleadings : 105. certified copies of, to be admitted as evidence in courts : 263. courts may direct enforcement of published : 48. Tariff circulars, 15-A; 16-A: 12. excerpts from: 309-314. Tariff laws, interstate commerce law can not be construed to cooper- ate with: 64 (Instance). Taeifp schedule (act), concurrence of carriers shown, sec. 6: 282. deviation from, prohibited, see. 6: 282; sec. 1, Elkins' law: 303; sec. 3, Elkins' law: 305. import duty collected, if not filed, sec. 6 : 282. filed, the legal rate, sec. 1, Elkins' law: 303. filed, public record, sec. 16 : 290. form prescribed by Commission, sec. 6 : 282. notice of thirty days before change, see. 6 : 282. participants' names shown, sec. 6: 282. printing, posting and filing, sec. 6: 282; sec. 1, Elkins' law: 303. transportation prohibited until filed, sec. 6 : 282. Technical terms and abbreviations, pleading : 104. may be explained by experts: 157 (Instance). "Terminal facilities" included in "railroad": 33. Terminal facilities (act), sec. 1: 279. Territorial groups of railways : 9. Territorial jurisdiction of Commission : 19. Testimony, nature of, before Commission : 145. not usually confined to allegations in pleadings : 149. character of, in unreasonable rates case: 146. difference in testing reasonableness of single and entire schedule of rates : 146 (Instance) . rule of practice respecting : 380. interveners may adduce : 121. TNDEX 493 [Eef erences are to pages] Testimony (act), agents' or examiners, sec. 20: 294. See also Com- pulsory testimony. deposition, sec. 12: 286. Through routes, carriers forming, may have reparation awarded against, although not all parties to proceeding : 132. Through routes and joint rates, Commission may establish : 26. exclusive jurisdiction of Commission to prescribe : 21. evidence required in cases seeking : 168. Through routes akd joint bates (act), sec. 1: 279. Commission may prescribe, sec. 15 : 289. Timber and its products excepted from "commodity" clause (act), sec. 1 : 279. Time required to get a decision : 14. as affecting election of forum : 92. of filing pleadings : 110. for answer : 123. Time act effective. Joint resolution of Jime 30, 1906 : 299. Titles of leading railroads: 391; 394. "Tracks" included in "raih-oad": 33. Transfer in transit "services" in connection with, included in "trans- portation": 34. "Transportation," definition of, in act to regulate commerce : 34. meaning of: 34 (Note). handlers of, may be parties defendant : 116. "Transportation" defined (act), see. 1: 279. prohibited until rates published, sec. 6: 282. Trustees as parties: 114. Trustees and receivers subject to act, sec. 20 : 294. Undue prepeeence or advantage forbidden (act), sec. 3: 281. Tlnjust discriminations between persons, evidence required in cases in- volving: 172. Unjust discrimination defined and forbidden (act), sec. 2: 281. Unreasonable rates, measure of damages for: 32. "Vehicles" included in "transportation": 34. Ventilation services included in "transportation": 34. Venue of actions: 229. of suits to restrain taking effect of imreasonable rates : 210. of suits for forfeitures: 202. Venue of suits against Commission (act), sec. 16: 290. Verification of pleadings no longer required : 101 (Note) ; 106. required in petitions for relief under fourth section : 106. petition for rehearing should be verified if new evidence is to be introduced; 183, 494 INDEX [References are to pages] Violations of act to regulate commerce, classes of : 99. power of Commission is limited to: 17 (Instance). complaint insufficiently charging, will be dismissed : 103. notice in nature of demurrer may be used to determine if facts pleaded constitute: 123. investigations into, by division of prosecutions: 8. Violation of act. See Criminal provisions. Want of evidence may prevent determination of questions : 42. Want of jurisdiction of Commission necessarily fatal: 17. Wak (act), preference to military trafBc in time of, sec. 6: 282. Water carriers, operating independently not subject to act to regu- late commerce: 32; 36. rail and, subject to act to regulate commerce : 32. Weighing, false (act), sec. 10: 285. Witnesses, rule of practice respecting: 378. rule of practice (Lawson) as to competency of: 146. competency of (courts) : 238. compelling attendance of, before Commission : 258. witness may testify as to results of examination of numerous doc- uments: 150. maker of freight classification not competent to interpret the meaning of: 148 (Instance). compelling attendance of, before Commission, statute providing for, is constitutional: 259. immunity of : 67; 160; 261. intervener may examine: 122. qualifications of: 147. maker of freight classification not competent to interpret : 148. may testify results of examination of numerous documents : 150. fees of: 160; 264. fees, tender of: 160. adverse, practice in calling : 164. method of examination of: 164. examination of,, by Commissioners or examiners : 12 ; 28 ; 165. Witnesses (act), fees before Commission, sec. 18: 294. fees for depositions, sec. 12 : 286. fees in courts, sec. 12 : 286 ; sec. 16 : 290. immunity of, sec. 9 : 284 ; sec. 12 : 286 ; immunity laws: 300-301. See also Compulsory testimony. Writs issuable under act to regulate commerce : 198. Written instruments, how pleaded : 104. "Yards," included in "railroads": 33. [Total numbeb of pages, 514]