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 HE 1843.H65 
 
 Procedure before the Interstate commerce 
 
 3 1924 013 692 912 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924013692912 
 
INTERSTATE COMMERCE 
 
 AND 
 
 RAILWAY TRAFFIC COURSE 
 
 Prepared under Editorial Supervision of 
 
 Samuel MacClintock, Ph.D. 
 
 The subjects listed bejbw^ constitute the basic material 
 of a course in Interstate Commerce and Railway Traffic. 
 This course is' especially designed to meet the constantly 
 growing demand for efficiently teained men in "railroad and' 
 industrial traffic work; to assist, students to pa6S the exam- 
 inations for government service under the ' Interstate Com-, 
 merce' Commission} and t'd' meet the demand for men com- 
 petent to direct the work of eqmmereial organizations and 
 traffic bureaus. With the exception of the Atlas of Railway 
 Traffic Maps,, , the subjects listed below are covered in an ' 
 average of approximately 200 pages each. ' 
 
 Atlas of Railway Traffic Maps ' 
 
 Traffic Glossary 
 
 Freight Classification; Some Ways of Reducing Freight 
 
 , -Charges. ■: '.,*..■„ ''.■-, 
 Freight Rates: Western Territory; Bases for Freight 
 
 Charges 
 Freight Rates: Official Classification Territory and 
 
 Eastern Canada; Industrial Traffic Department 
 Freight Rates: Southern Territory ,-"' 
 Publication and Filing of Tariffs 
 Freight Claims; Investigation of Freight Claims; 
 
 Routing Freight Shipments; The Bill pf Lading; 
 
 A Primary Lesson in Transit; Demurrage 
 Railway Organization; Statistics of Freight Traffic; 
 
 Railway Accounting 
 Express, and Parcel Post ' ,. 
 Ocean Traffic and Trade » 
 Railway Regulation 
 
 The Act to Regulate Commerce and Supplemental Acts 
 Conference Rulings; Procedure Before the, Interstate 
 
 Commerce Commission ; Grounds of Proof , in 
 
 Rate Cases 
 Application of Agency Tariffs 
 The Law of Carriers of Goods 
 Practical Traffic Problems 
 
 LASALLE EXTENSION UNIVERSITY. 
 
 7> 
 
PROCEDURE BEFORE THE 
 INTERSTATE COMMERCE COMMISSION 
 
 AND 
 
 GROUNDS OF PROOF IN RATE CASES 
 
 C. R. HILLYER, LL.B., LL.M. 
 
 Of Cassoday, Butler, Lamb & Foster 
 
 Former Attorney for the Interstate Commerce Commission 
 
 Former Attorney for the Bureau of Corporations 
 
 La Salle Extension University 
 - C hie a, go * 
 
 1917 8 - 137 
 
Copyright, 1916 
 LaSaixe Extension University 
 
PROCEDURE BEFORE 
 
 THE INTERSTATE COMMERCE 
 
 COMMISSION 
 
 1. Introduction 
 
 The Interstate Commerce Commission, under the act 
 creating it and endowing it with powers and under the 
 decisions of the Supreme Court, is a "tribunal" vested 
 with the power of hearing evidence and determining 
 what are reasonable practices and rates of transporta- 
 tion and what rates and practices are free from unjust 
 discrimination or undue preference. 
 
 This sentence describes in a word nine-tenths of the 
 Commission's functions, so far as the shipping public is 
 concerned. The Commission has many other duties and 
 powers which directly affect the carriers and which have 
 been heaped upon it from time to time as Congress 
 has seen fit, but the shippers in interstate commerce are 
 chiefly concerned with its fundamental remedial powers 
 above outlined. It is safe to say that nearly all the 
 time of the Commission as a body and of the Commis- 
 sioners as individual members is taken up with enforcing 
 the first four sections of the law that pertain to the 
 functions above specified. 1 
 
 1 Other features of the Commission's jurisdiction will be referred to in 
 succeeding pages. No adequate knowledge of the Commission and its .work 
 can be attained without a careful reading of the Act, in connection with 
 this treatise. 
 
 1 
 
2 PROCEDURE 
 
 How does a complaining shipper proceed to call th 
 attention of this tribunal to his particular grievance am 
 invoke the operation of this governmental force f Unde 
 our Anglo-Saxon institutions all procedure under fori 
 of law must be conducted upon a definite and orderl; 
 basis so that no arbitrary action shall be possible and s< 
 that all interests affected may receive due and prope 
 consideration. 
 
 The Commission is not a court, but operates as an arn 
 of Congress, and therefore belongs to the legislative 
 branch of government. It reports to Congress directb 
 and not through the President or other executive officer 
 and this further emphasizes its independent characte: 
 and its affiliation with the legislature as distinguishe< 
 from the executive and judicial departments of govern 
 ment. The Commission has. not inaptly been likenec 
 to a special permanent committee of Congress ; and thii 
 is but natural, since it is to Congress that the commerd 
 clause of the Constitution grants the power to regulat 
 commerce between the states. 
 
 When it is said that the Commission is an "adminis 
 trative body, " it is meant thereby to distinguish it f ron 
 a judicial body. The latter can only be started up ty 
 the appeal of parties to it for the redressing of pas 
 wrongs. An administrative tribunal can proceed judi 
 cially, but can also move on its own initiative. Whei 
 set in motion, a court can only give relief to the identica 
 parties before it on the pleadings. But an adminis 
 trative tribunal can fix general rules, practices, an< 
 rates for the future which will bind many parties no 
 named in the pleadings. 
 
 "With this very general statement of the legal statu 
 of the Commission and of its jurisdiction, we are some 
 
BEFORE THE COMMISSION 3 
 
 what prepared to comprehend the procedure when it is 
 called upon to enforce the provisions of the Act to 
 Eegulate Commerce. The Act itself sets forth very 
 simple rules of pleading and evidence. As to the former, 
 it states that any person, firm, corporation, etc., 2 may 
 file a petition briefly stating the facts complained of 
 against carriers subject to the Act. The Commission 
 is then commanded to forward a copy thereof to the 
 carrier or carriers, who shall satisfy or answer the same 
 in writing. 
 
 ' The Commission is then empowered to investigate the 
 matter, and the principal rule of evidence specified in the 
 Act is that all parties in interest shall be given a full 
 public hearing. When this simple procedure has been 
 pursued, the Commission is empowered to exercise its 
 discretion and, after consideration of all the facts of 
 record, to make its findings and enter an order fixing the 
 reasonable or non-discriminatory rate or practice. 3 
 
 So much for the requirements of the statute. Simple 
 though these requirements are, they must be method- 
 ically and carefully observed, because unless this is done 
 the order of the Commission, which the complainant may 
 finally obtain in his favor, can be successfully attacked 
 in the courts if the carrier can show that the Commission 
 has not followed the simple statutory provisions as to 
 pleadings and evidence. 
 
 The Commission has been in existence for thirty 
 years and has always held to the view that the practice 
 before it should be as simple and devoid of technicalities 
 
 * Sec. 13 of the Act; also Commission's Rules II and III, which give in- 
 structions in the preparation and filing of complaints and which will be 
 supplied by the Commission upon application. The Commission revised its 
 rules March 20, 1916. 
 
 8 Sec. 15 of the Act. 
 
4 PROCEDURE 
 
 as possible. It must, however, proceed in accordance 
 with the steps outlined in the statute, or its findings 
 will not be binding upon the carriers. 
 
 It is from this twofold point of view that the Commis- 
 sion has drafted its procedure. It has made it as 
 simple as possible, yet has safeguarded the procedure so 
 that no technicalities can be raised, should its orders be 
 finally assailed in the courts. The procedure involved 
 in the consideration of each case is symbolized in the 
 formal wording of the Commission's order, which gives 
 finality to each case before it, setting forth the fulfillment 
 of the terms of the Act as follows : ' ' This case being at 
 issue, upon complaint and answers on file, and having 
 been duly heard and submitted by the parties, and full 
 investigation of the matters and things involved having 
 been had, and the Commission having made a full report 
 containing its findings of fact and conclusions thereon, 
 it is ordered that" — then follow the requirements which 
 the Commission lays upon the carrier or carriers. 
 
 2. Infobmal Cases 
 
 (a) Informal Complaints Not Involving Recovery of 
 
 Damages 
 
 The simplest procedure before the Commission occurs 
 upon what is designated by the Commission (there being 
 no reference thereto in the statute) as the "informal 
 docket." This process is nothing more or less than a 
 correspondence bureau to which are referred letters from 
 the public in reference to any matter within the juris- 
 diction of the Commission. The Commission gives such 
 communications a file number and takes up the matter by 
 letter with the carriers, and through the medium of this 
 
BEFORE THE COMMISSION 5 
 
 correspondence an adjustment is reached if possible. 
 The annual report of the Commission to Congress shows 
 that during the past year 6,500 such informal matters 
 were listed. Nothing is required except a letter to the 
 Commission setting forth the facts definitely and suc- 
 cinctly, and upon its receipt the Commission proceeds in 
 the informal manner above outlined. 
 
 Many of these informal complaints brought to the at- 
 tention of the Commission can be adjusted to the satis- 
 faction of all concerned by a little co-operation between 
 the carrier and the consignor or the consignee. If the 
 matter in hand can be disposed of without resorting to 
 the Commission, it is much better to handle the question 
 in that manner. 
 
 In any event, as to informal complaints not involving 
 recovery of damages, the carrier should be given an op- 
 portunity to adjust matters before taking the matter up 
 with the Commission. 
 
 (b) Informal Complaints Involving Recovery of 
 Damages 
 
 Section 16 of the Act to Regulate Commerce provides 
 that "All complaints for the recovery of damages shall 
 be filed with the Commission within two years from the 
 time the cause of action accrues and not after." In 
 Blinn Lumber Co. v. Southern Pacific Co., 18 I. C. C. 
 430, the Commission decided that the period of two years 
 within which complaints may be filed is to be computed 
 from the date of the delivery of the shipment. 
 
 In all cases the complaint must be filed by or on behalf 
 of the party who has borne the transportation charges 
 as such. See International Agricultural Corporation v. 
 Louisville & Nashville Railroad Co., 29 I. C. C. 391, and 
 
5a PEOCEDUEE 
 
 Oden & Elliott v. Seaboard Air Line Eailway, 37 I. C. 
 C. 345. 
 
 With respect to the circumstances under which the 
 informal presentation of a complaint operates to stay 
 the statute of limitations, the Commission holds that the 
 informal complaint (a) must be filed with the Commis- 
 sion within two years from the time the cause of action 
 accrues; (b) must name the defendant carrier or car- 
 riers; (c) must allege a violation of the Act and ask 
 affirmative relief; and (d) must describe the shipment 
 by naming the point of origin and destination, the con- 
 signor and consignee, the date of the shipment, the ini- 
 tials and number of car in case of carload shipments, or 
 must give such available information as may be reason- 
 ably necessary to identify the shipment. A notification 
 to the Commission "of the possibility or intention of 
 future filing of complaint for the recovery of damages" 
 is not such a filing as is contemplated by the statute. 
 
 Complaints embodying such a statement of the ship- 
 ments, as indicated above, should be filed with sufficient 
 copies in order that a copy thereof may be sent to each 
 defendant carrier as notice to it of the complaint; there 
 must be one additional copy for the use of the Com- 
 mission. 
 
 When a complaint for reparation has been before the 
 Commission informally on the special docket or other- 
 wise, and the parties have been notified by the Com- 
 mission that the complaint is denied or that it cannot 
 be determined informally, or when the parties volun- 
 tarily withdraw the complaint from informal considera- 
 tion, it may not be reconsidered informally if it is not 
 again submitted within six months from the date of such 
 notification or withdrawal, nor may it be filed as a for- 
 mal complaint unless so filed within six months from the 
 date of such notification or withdrawal; Provided, how- 
 
BEFORE THE COMMISSION 5b 
 
 ever, that this ruling does not apply when the two-year 
 period from the date of delivery of the shipment has 
 not expired. See Rule III of the Rules of Practice. 
 See Page 35, Section 14, "Special Reparation Docket." 
 There have been a number of complaints dismissed 
 recently because they were not filed within the prescribed 
 time limit; so it is important to bear this requirement in 
 mind. 
 
 3. Formal Oases 
 
 It frequently happens, however, that after a matter 
 has been under correspondence for some time, the Com- 
 mission comes to the conclusion that it is useless to 
 pursue it further in an informal way and thereupon 
 advises the complainant that the only course left open 
 under the law is to file a formal complaint. In giving 
 this advice the Commission is putting the complainant 
 upon the only road which, if followed up, will lead to a 
 point where the statute will give the Commission power 
 to order the carrier to grant such relief under the law 
 as the Commission may finally conclude that the com- 
 plainant is entitled to. 
 
 A petition or complaint 4 may be filed as the result of 
 the failure of an adjustment upon the informal docket 
 as above described; or as is the case in the more impor- 
 tant complaints, the matter may be first called to the 
 attention of the Commission by the filing of a formal 
 complaint. When this course is decided upon, it becomes 
 highly important to observe the Commission's printed 
 rules of practice. These rules are revised from time 
 to time. They contain forms of complaints and answers, 
 
 4 In filing: petitions^briefs, petitions of intervention, or petitions for re- 
 hearing, it is better to file them in printed form, as they are far more 
 apt to receive a wider circulation and consequently greater considera- 
 tion in the Commission. 
 
6 PROCEDURE 
 
 etc., and other information which should be referred to 
 and literally followed. 
 
 (a) Form of Complaint 
 
 The form of complaint is set out in the rules of the 
 Commission in as simple a manner as possible, yet in 
 practical experience a considerable percentage of the 
 petitions received at the Commission have to be returned 
 and attention called to the plain requirements of the Act 
 and the rules. (See Eule III and form on p. 20 of 
 Eules.) In a recent decision of the Commission, Com- 
 missioner Prouty announces that the complaint must 
 state the facts so that the Commission may apprehend 
 the point at issue and the defendant may be advised as 
 to what it shall answer or defend. 5 
 
 The rates or practices complained of must be definitely 
 set out or described, and the particular portions of the 
 Act under which relief is sought should be referred to 
 by section of the Act, such as Section One or Section 
 Three. 
 
 When the complaint is accepted by the Commission it 
 receives a docket number in the formal docket, on which 
 964 cases were entered last year. There is also bound 
 with the petition, under the same docket number, all the 
 correspondence and exhibits and other papers that come 
 to the Commission bearing upon this particular subject- 
 matter of complaint. This, with all subsequent proceed- 
 ings in the case bound with it, becomes a public record 
 and no portion of it can leave the possession of the 
 Commission. The complainant should not undertake to 
 
 ' 26 I. C. C. Rep. 382. 
 
BEFORE THE COMMISSION 7 
 
 make up the record in the case, however, until the pro- 
 ceeding comes on for hearing. 
 
 (b) Answer 
 
 The case is at issue as soon as the twenty days 6 have 
 expired within which the carriers are to satisfy or 
 answer the complaint. (See Eule IV and p. 22 of Eules 
 for form.) 
 
 It infrequently happens that the record is completed to 
 the satisfaction of both parties and the Commission by 
 the filing of complaint and answer accompanied by a 
 statement of facts agreed to by both parties, and when 
 this is done the Commission will, in its discretion, pro- 
 ceed to determine the issues raised and nothing further 
 has to be done by the parties. 7 (See Eule IX.) 
 
 (c) Hearing 
 
 In a large majority of cases, however, the carriers 
 deny the allegations in the complaint, and when the 
 issues are so joined the Commission sets the case down 
 for formal hearing in a federal courtroom at the com- 
 plainant's home town or at some convenient point in that 
 general locality. (See Eule X.) 
 
 The case will be heard either by a Commissioner in 
 person or by an Examiner. In recent years, due to the 
 pressure of business before the Commission, compara- 
 tively few cases are heard by the Commissioners them- 
 selves, although in earlier days the testimony in all cases 
 
 ' Thirty days, when the carrier's office is west of El Paso, Salt Lake City, 
 or Spokane. 
 
 ' Commission's Eules IV and V. 
 
8 PROCEDURE 
 
 was heard by the Commissioners, and frequently in the 
 presence of the entire Commission. The complainant 
 will receive formal notice from the Commission that his 
 case is set for hearing at ten o'clock on a certain morn- 
 ing in the federal courtrooms before an Examiner, men- 
 tioning him by name. The writer has sat as Examiner 
 in hundreds of these proceedings in many sections of 
 the country. 
 
 There probably always will be a discussion as to just 
 what the powers of the sitting Examiner are. The law 
 says that the Examiner ' ' shall have power to administer 
 oaths, examine witnesses, and receive evidence." The 
 narrowest possible view to take of this wording is that he 
 has no control over the introduction of evidence and 
 that he sits merely to administer oaths and to receive 
 whatever the parties desire to make a part of the record. 
 This view is entirely too narrow and has never received 
 the sanction of the Commission. As a pure matter of 
 law it is doubtful whether a Commissioner himself act- 
 ing individually has any more power or control over the 
 record than does an Examiner, for the reason that the 
 rulings of each are only final under the law when they 
 have received the approval of, and then become rulings 
 of, the Commission. 
 
 "When the record made before an Examiner is com- 
 pleted, the duties of the Examiner in connection with 
 that particular case are just begun. In the heavy 
 volume of contested cases (containing 165,000 pages of 
 record last year), it can be readily seen that the consid- 
 eration of the records in the first instance must be left 
 to the able assistance of the examining corps. It is 
 therefore of the first importance that the questions of 
 the Examiner be fully answered and that he be treated 
 
BEFORE THE COMMISSION 9 
 
 with every consideration that would be accorded a judge 
 presiding at a trial. A word to the wise is sufficient. 
 
 The record in the case, including the pleadings and 
 such other papers as have reached the Commission, will 
 be present at the hearing, which is essentially an investi- 
 gation into the facts concerning the particular transaction 
 complained of. It is the duty of the Examiner rep- 
 resenting the Commission to guide the evidence towards 
 the disclosure of the necessary facts bearing upon the 
 issues in the complaint so as to enable the Commission to 
 apply the law thereto and administer and enforce the 
 statute as commanded by Congress. 
 
 The Commission requires that the complainant be 
 prepared to produce his proof as to the matters alleged 
 in his complaint. While the Commissioner or Examiner 
 will aid him (if necessary) in making the record in such 
 form as will conform to orderly arrangement, and will 
 attempt to see that no essential matters are left uncov- 
 ered, and will make such other inquiry and examination 
 as he may deem advisable under the circumstances, still 
 the complainant should bear in mind that it is his case, 
 and while the outcome of it may be and frequently is of 
 a public nature, the duty rests upon him to produce 
 competent witnesses personally cognizant of the facts 
 which are to be proved. 
 
 It is not sufficient for the complainant to mass together 
 disconnected allegations and then dump his troubles on 
 the Commission for it to unravel and make out a case 
 for him, should he be found to have one. A complain- 
 ant who attempted this some years ago was advised in 
 the Commission's report 73, that it would not consider a 
 
 *■ Dallas Freight Bureau v. Missouri, Kansas & Texas Ry. Co., 12 I. C. 
 C. 433. 
 
10 PROCEDURE 
 
 case "thrown at it" in this fashion. It has been neces- 
 sary for the Commission to repeat this warning from 
 time to time. 
 
 The theory of the law is that the issues before 
 the Commission partake of a public character, as the 
 carriers are exercising a public function; that inasmuch 
 as the government has adopted the policy of permitting 
 privately owned companies to own and operate the public 
 highways of interstate commerce, it is the duty of the 
 government to guarantee to the public adequate service 
 at the hands of these carriers at reasonable rates and 
 without unjust discrimination. Following out this the- 
 ory, the law attempts to make its operation as simple 
 and as free from expense as possible. The case is set 
 down for hearing at the home of the complainant so as 
 to avoid traveling expense to him, while the carrier's 
 representatives and the Commission's representative 
 journey there for his convenience. The expensive tran- 
 script of record is supplied him free of charge and at 
 the hearing the Commission or its representative is 
 under the law required to make a full investigation, the 
 result of which may inure to the benefit of the com- 
 plainant. Notwithstanding all this, however, the com- 
 plainant's case must of necessity largely depend upon 
 his own preparation in advance, and the greater his 
 skill therein the better his chances of winning. 
 
 The duties of the parties to a case and the practice 
 of the Commission is well expressed by Commissioner 
 Clements, in a proceeding before him, as follows: 
 
 Neither party to the case presented any witnesses at the 
 hearing and there is no evidence before the Commission other 
 than the small exhibit of compo-board and the expense bill 
 covering the shipment. Whatever may be the merits of this 
 
BEFORE THE COMMISSION 11 
 
 complaint, it is clearly evident that the Commission has not 
 before it the presentation of facts, circumstances, and condi- 
 tions bearing upon the question of the reasonableness of the 
 rate charged, which appears to have been in accordance with 
 the published tariff, necessary to an intelligent and proper 
 determinatidn of the matters in question. Without other show- 
 ing than that just indicated, we are asked to condemn the 
 existing rate and to establish a just and reasonable rate to be 
 applied in the future and to enter an order awarding repara- 
 tion, which order and findings may be received in court as 
 prima facie evidence of the facts therein stated. "We cannot 
 upon mere complaint and suggestion justly take such impor- 
 tant action. 
 
 "While it is the duty and practice of the Commission to exhaust 
 its activities in developing the pertinent facts necessary 
 to the full investigation and hearing of complaints before it, 
 it is but reasonable that a party complaining should also take 
 such action as may be within his power to aid the Commission 
 by presenting such evidence as will show the pertinent facts, 
 circumstances, and conditions bearing upon the questions in- 
 volved. Upon the showing made the complaint will be dis- 
 missed without prejudice. It will be so ordered. 8 
 
 It is apparent, therefore, that if interests of consider- 
 able importance are involved, the preparation and trial 
 of a case should be in the hands of one skilled in the 
 work before the Commission. The practice has of neces- 
 sity become highly specialized. In the course of many 
 years numerous principles as to reasonableness of rates 
 and discriminatory practices have been evolved. 9 Other 
 matters, such as the interpretation of the published 
 tariffs and the comprehension of the reports of carriers 
 filed with the Commission, have become important and 
 
 8 19 I. C. C. Rep. no. 
 
 •See Grounds of Proof m Rate Gases. 
 
12 PROCEDURE 
 
 unless the case is a very simple one, a knowledge of 
 and familiarity with these and other things is essential. 
 The carriers, as a rule, are ably represented at the 
 hearing by counsel and competent traffic men, who listen 
 carefully to all that the complainant and his witnesses 
 have to say, who take advantage of the opportunity open 
 to all parties to cross-examine witnesses, and who intro- 
 duce evidence on behalf of the carriers. Their skill 
 enables them to develop a record of the most favorable 
 kind for their contentions, and many an unsuspecting 
 complainant realizes by the time he brings his second 
 complaint that it pays to match skill with skill. 
 
 (d) Printed Briefs 
 
 When the hearing is closed and all parties have been 
 fully heard, the parties are at liberty to prepare printed 
 briefs and abstracts of the testimony and to file the 
 same with the Commission on the dates fixed at the 
 closing of the hearing by the Commissioner or the 
 Examiner. 10 The Commission will not extend these 
 dates except in rare cases and for good cause shown, 
 and a brief received after the date named at the hearing 
 will be returned by the Commission. 
 
 Too much emphasis cannot be placed upon the impor- 
 tance of doing this work well. During his service with 
 the Commission the writer read all briefs filed in cases 
 heard and handled by him. A majority of them were 
 poorly conceived and wholly undependable. It was 
 necessary to discard the briefs and go back to the record. 
 
 10 Instructions for preparing briefs are clearly set forth in Commission's 
 Rule XIV. 
 
BEFORE THE COMMISSION 13 
 
 In the great number of cases that must be disposed of, 
 a well-briefed case will get the consideration that a 
 poorly briefed one cannot. 
 
 Of course the making of the record is of the first 
 importance. Assuming that you have a fine record, your 
 one opportunity to convince the Commission of that fact 
 is in a skillfully prepared brief. Before attempting to 
 write a brief, consult some textbook on the subject. 
 It is in the brief that the commerce attorney or the 
 traffic officer meets his severest test. 
 
 The length of the brief is of importance. The case 
 should be stated in from one to three printed pages. 
 The abstract of testimony depends upon the length of 
 the record. Carefully frame from one to ten findings 
 of fact that you believe the Commission should make 
 and collect under each the portions of the record that 
 prove the fact. Make it to the point. 
 
 The argument should never exceed fifty printed pages 
 if you expect it to be read by many people. If the case 
 is of such a character that you can print but ten to 
 twenty-five pages of argument so much the better. 
 
 If you have a carefully prepared exhibit or two that 
 you believe are controlling, be sure, to print them in the 
 brief, but do not print too many. 
 
 All the care and pains taken in presenting the brief 
 will be highly valued at the Commission by those who 
 handle the case and write the decision. It is the one 
 contribution that you can make towards lightening the 
 labors of those who have a heavy responsibility to carry. 
 
 (e) Oral Argument 
 
 If the case is one of importance and application to the 
 Commission is made in the record or by letter, the parties 
 
14 PROCEDURE 
 
 will be given an opportunity to argue the case orally 
 before the whole Commission in Washington. There 
 can be no question of the importance of taking advantage 
 of this opportunity if the case is one that warrants the 
 time and expense. While the record as made receives 
 careful consideration by the Commission, an oral argu- 
 ment is the one opportunity the parties have to make 
 their plea, in person or by counsel, face to face with the 
 seven men upon whom the law reposes the responsibility 
 of deciding the issue. 
 
 It will be seen, therefore, that there are four points 
 in the proceeding at which a formal case may be finally 
 submitted to the Commission for decision: (1) upon 
 the filing of complaint and answers when the parties so 
 stipulate and when the Commission, from an examina- 
 tion of the pleadings or agreed statement of facts, con- 
 cludes that nothing further is necessary to aid it in 
 applying the law thereto; (2) at the conclusion of the 
 hearing after both, parties waive their right to file briefs 
 and have Oral argument; (3) at the date fixed for the 
 filing of the reply brief, should no argument be desired ; 
 (4) at the close of the oral argument. 
 
 (f) Adjournments and Extensions of Time 
 
 In but few cases and only for good cause shown does 
 the Commission continue a hearing or extend time, it 
 being the rule that the parties and interveners must 
 appear at the time set, prepared to submit everything 
 they desire to have go into the record before the conclu- 
 sion of the hearing. The Commission looks with dis- 
 favor upon continuances and adjourned hearings. 11 
 
 1 Manufacturers Ey. Case, 28 I. C. C. Rep. 95. 
 
BEFOKE THE COMMISSION 15 
 
 When dates have been set for filing briefs and for oral 
 argument, the Commission does not readily extend the 
 •time, as the pressure of new cases requires that the old 
 cases be pushed to completion. 
 
 (g) Depositions and the Record 
 
 Section 12 of the Act permits the testimony of wit- 
 nesses to be taken by deposition in the manner and form 
 there prescribed, but as a practical matter this method 
 will not be open to parties except upon very exceptional 
 showing to the Commission of conditions which make it 
 necessary. The experience of the Commission has been 
 that little is to be - gained from information derived in 
 this way. The proceeding under a formal complaint is 
 an investigation rather than a lawsuit, and as the word 
 indicates, the investigation is for the purpose of throw- 
 ing all possible light upon the subject for consideration. 
 In this respect it is different from the making of a record 
 according to the strict rules of evidence obtaining in 
 suits at law. 
 
 While from a reading of the Act one might naturally 
 suppose that many of the records before the Commission 
 were made by depositions, as a matter of fact it is the 
 rarest thing in the actual work before the Commission. 
 It is found essential in the administration of the law 
 to have present at the hearing either one of the Com- 
 missioners or an Examiner in order that the proceedings 
 shall bring out all the facts and the record be completed 
 under the control of one skilled in the law and in trans- 
 portation matters, and this Would be impossible if depo- 
 sitions before uninformed magistrates composed the 
 
16 PROCEDURE 
 
 record. In a certain case in which the record was made 
 by depositions and no opportunity afforded the Commis- 
 sion to satisfy itself of the facts as it could have do'ne> 
 at a hearing, the Commission commented unfavorably 
 upon the record and was compelled to dismiss the com- 
 plaint. 12 
 
 The finding of the Commission must, under a decision 
 of the Supreme Court, 13 conform to the record made in 
 the particular case, and the record is therefore of con- 
 trolling importance in interstate commerce cases. It is 
 necessary to have in the record all that is relied upon in 
 substantiation of the allegations contained in the 
 petition. 
 
 The proceedings at the hearing are all stenographic- 
 ally reported under the absolute control of the Commis- 
 sioner or Examiner presiding, and one copy of the record 
 is furnished free to the leading complainant and one 
 copy free to the leading respondent in the case. The 
 Commission retains the original. There are no free 
 copies of records in cases on the investigation and sus- 
 pension docket or in the general investigations. During 
 the year 1915 the Commission conducted 1,543 hearings 
 at which 200,438 pages of testimony were taken. 
 
 As a general rule it will not be more than six months 
 from the filing of the complaint before all the necessary 
 steps provided in the statute will have been taken and 
 the decision of the Commission published. The law 
 requires the Commission to serve a copy of its opinion' 
 and order upon the parties to the case. This concludes 
 the procedure in the average interstate commerce case. 
 
 12 16 I. C. C. Rep. 549. 
 
 13 Louisville & Nashville Case, 227 U. S. 88. 
 
BEFOEE THE COMMISSION 17 
 
 4. Petitions foe Reheabing oe Reopening of Case 
 
 In a recent case where the dissatisfied party attempted 
 to have a court review the Commission, he was told to go 
 back to the Commission with a petition for rehearing 
 before coming to a court. (See Rule XV.) 
 
 When the decision of the Commission is entered, one of 
 the parties may feel sufficiently aggrieved with the result 
 to desire to call the matter to the attention of the Commis- 
 sion again. A party may also desire to reopen a case 
 after final submission, but before decision is rendered. 
 The Act affords to such party the right to file with the 
 Commission a petition for a rehearing or reopening. It 
 lies within the discretion of the Commission whether it 
 will grant this petition or not. Upon its receipt it is 
 carefully examined to see whether it holds out promise 
 that a further hearing will develop any facts that would 
 materially affect the case, whether the Commission has 
 incorrectly understood the facts or made erroneous deduc- 
 tions from the record, or whether it has committed errors 
 of law. 
 
 It is not an infrequent occurrence for the Commission 
 to receive petitions for rehearing or reopening from 
 either one party or the other, and the Commission is 
 always ready and willing to reconsider a matter when 
 there is prima facie evidence showing that any injustice 
 may have been done. It has full power under the statute 
 to modify, amend, or annul its findings and orders at any 
 time, and while it will not reopen or prolong a case after 
 it has once been disposed of, except for good cause shown, 
 the Commission is, in the words of Commissioner Mc- 
 
18 PROCEDURE 
 
 Chord, open day and night for the purpose of correcting 
 mistakes that it may have made. 
 
 A petition to rehear a case already decided should 
 point out defmately just what errors of fact or erroneous 
 conclusions of law have been made. It is not proper to 
 base such a petition upon the plea that upon the facts 
 the Commission should have decided differently. A peti- 
 tion to reopen a case not yet decided should outline in 
 brief what additional showing it is desired to make, so 
 that the Commission can know when passing upon the 
 petition whether the new matter is of a character to be 
 helpful in deciding the case. 
 
 If the petition for rehearing or reopening is granted, 
 the case will be set down again for hearing argument or 
 briefs, one or all as the case may demand, and the course 
 already outlined will be pursued and a supplemental 
 report and order entered by the Commission. Should the 
 petition for rehearing or reopening be denied, the parties 
 will simply receive a formal notice to that effect, and the 
 litigation, so far as the Commission is concerned, is 
 closed. 
 
 5. Eesort to Cottrts 
 
 The Supreme Court decided that the Commerce Court, 
 which then reviewed the findings of the Commission, 
 had no jurisdiction to review a so-called "negative" 
 order of the Commission, that is, an order dismissing 
 complainants' petition. 14 The Commerce Court was 
 abolished January 1, 1914, and its business was trans- 
 ferred to special tribunals consisting of three United 
 States judges that may be assembled for the purpose of 
 
 14 Proctor and Gamble Case, 225 U. S. 282. 
 
BEFORE THE COMMISSION 19 
 
 reviewing the findings of the Commission at places where 
 jurisdiction of the parties may be obtained. It has 
 never been held that the proper United States court could 
 not review any order of the Commission, when the ques- 
 tion was whether the order or findings of the Commission 
 were " (1) Beyond the power which it (the Commission) 
 could constitutionally exercise; or (2) beyond its statu- 
 tory power; or (3) based upon a mistake of law." 15 
 
 The Supreme Court of the District of Columbia seems 
 to the writer to be the proper federal tribunal in which 
 a shipper can by writ of certiorari force the Commission 
 to determine a case upon the record before it and other- 
 wise proceed in accordance with the statute and the 
 Constitution. 
 
 The importance of the record in a rate case was 
 established by the Supreme Court in the L. & N. Case. 16 
 The Court there called attention to the fact that: 
 
 The statute gave the right to a full hearing, and that con- 
 ferred the privilege of introducing testimony, and at the same 
 time imposed the duty of deciding in accordance with the 
 facts proved. A finding without evidence is arbitrary and 
 baseless. And if the government's contention is correct, it 
 would mean that the Commission had a power possessed by 
 no other officer, administrative body, or tribunal in our govern- 
 ment. It would mean that where rights depended upon facts, 
 the Commission could disregard all rules of evidence and 
 capriciously make findings by administrative fiat. Such 
 authority, however, beneficially exercised in one case, could 
 be injuriously exerted in another ; is inconsistent with rational 
 justice, and comes under the Constitution's condemnation of 
 all arbitrary exercise of power. 
 
 15 Union Pacific Case, 222 U. S. 541. 
 "227 U. 8. 88. 
 
20 PROCEDURE 
 
 The importance of the facts in the record is further 
 emphasized by the Court in the B. & 0. Southwestern 
 Case. 17 There the Court said: 
 
 We remark that it is stated in the Commission's report that 
 they base their conclusion more largely upon their own investi- 
 gation than upon the testimony of the witnesses. It would be 
 a very strong proposition to say that the parties were bound 
 in the higher courts by a finding based on specific investiga- 
 tions made in the case without notice to them. 
 
 In several cases in the courts where the finding and 
 order of the Commission have been in question, the 
 Supreme Court has stated that there must be substan- 
 tial evidence in the record to sustain the order. 18 And 
 where the question presented to the court is as to the 
 existence of such substantial evidence, it has been said: 
 
 The consideration of such a question involves not an issue 
 of fact, but one of law which it is the duty of the courts to 
 examine and decide. 19 
 
 It will be seen, therefore, that while a finding of fact 
 made by the Commission concerning a matter within the 
 scope of the authority delegated to it is binding and 
 may not be re-examined in the courts, it is undoubted 
 that where the question is whether an order or finding 
 was rendered without any evidence, or without substan- 
 tial evidence to support it, or is contrary to the evidence, 
 the issue presented is one of law which can be examined 
 into and set aside by a court of competent jurisdiction. 
 
 In the Humboldt Steamship Case, 20 the Supreme Court 
 has decided that when the Commission refuses to exer- 
 
 17 226 u. s. 14. 
 
 18 Union Pacific Case, . . . U. S. . . . 
 
 18 Fla. East Coast Case, 234 U. S. 185. 
 20 224 U. S. 474. 
 
BEFOBE THE COMMISSION 21 
 
 cise its jurisdiction, in accordance with the provisions 
 of the Act, it can be compelled to do so by a writ of 
 mandamus issuing out of the Supreme Court of the 
 District of Columbia. This writ of mandamus cannot 
 control the manner in which the Commission shall 
 employ its discretion upon a given state of. facts. It 
 can only enforce the administrative action of the Com- 
 mission. It can compel the Commission to act under 
 the statute, but not how it shall act or decide. 
 
 We have now traversed the entire course that a cause 
 of action before the Commission can take from its possi- 
 ble inception in a letter from a complainant to the Com- 
 mission until it is passed upon by the Supreme Court 
 of the United States. As a practical proposition, the 
 vast majority of cases never get any further than an 
 order of the Commission. While the carriers resort to 
 the courts only in a small per cent of the total cases 
 decided, the few which have gone up from the Commis- 
 sion have as a rule involved interests or questions of 
 very great magnitude. 
 
 As we are confining ourselves to practice before the 
 Commission no attempt is made to cover cases before 
 the courts. What has been said as to the courts is only 
 by way of general information. 
 
 The preceding pages have dealt with the course that 
 is pursued by the ordinary case. There remain a num- 
 ber of other subjects to be discussed which frequently 
 come up in the work before the Commission. 
 
 6. Intebvbnees 
 
 The subject-matter of a complaint filed may prove 
 to be of vital interest to many shipping interests 
 
22 PROCEDURE 
 
 besides the complainant, and, moreover, although the 
 complainant may name a limited number of carriers 
 as parties defendant, the effect of the order upon car- 
 riers other than those named may be of the first 
 importance. 
 
 Take, for instance, a complaint attacking the rate on 
 coal from a group of mines. The rate of transportation 
 on an article like coal absolutely controls the price at 
 points of consumption, and therefore any change in the 
 rate will vitally affect all competitors of the mines 
 receiving a reduction. Such change in the rate will also 
 seriously affect the tonnage movement, and therefore the 
 carriers serving the competing mines are as much inter- 
 ested as the shippers themselves. It is not unusual in 
 the Commission's work that a very modest-appearing 
 complaint will gather weight in such proportions that by 
 the time the proceeding is well under way the original 
 parties to the case find themselves surrounded by many 
 warring factions. 
 
 Permission must be obtained from the Commission for 
 leave to intervene in a proceeding pending before it. A 
 formal petition is filed with the Commission setting 
 forth the petitioner's interest in the proceeding, and, if 
 leave is granted, the intervener is permitted to take 
 active part in the proceedings, to have notice of hearings, 
 to produce and cross-examine witnesses, to file briefs, 
 and to be heard in person or by counsel at the oral 
 argument. 21 
 
 Frequently the Examiner will permit intervention at 
 the hearing, but the parties will not be required to fur- 
 nish such an eleventh hour intervener with copies of 
 
 21 Sec. 2 of the Blkins Law ; Commission's Rule II. 
 
BEFORE THE COMMISSION 23 
 
 exhibits as they cannot be expected to prepare for any 
 interveners except those who have obtained previous 
 permission. It is therefore good practice to file a 
 formal petition of intervention well in advance of the 
 hearing as this insures receipt of all notices from the 
 Commission in connection with the case and otherwise 
 gives one a proper standing. 
 
 The Commission may consider together a group of 
 cases all involving much the same issues, principles, or 
 state of facts. This means that they will be heard, 
 briefed, argued, and decided at the same time. The only 
 effect such consolidation has upon the procedure is that 
 the various parties are required to confer together and 
 agree upon some plan for the proper presentation of the 
 evidence and handling of the case so that unnecessary 
 time will not be consumed in introducing cumulative 
 evidence or in unnecessary repetition in briefs and upon 
 the argument. 
 
 7. Witnesses and Subpoenas 
 
 It is very unusual in the practice before the Commis- 
 sion to experience difficulty in securing the attendance 
 of the necessary witnesses upon the hearing. The com- 
 plainant is, of course, anxious to offer his proof in sup- 
 port of the allegations contained in his petition and sees 
 to it that the necessary witnesses are present at the 
 time set for hearing. 
 
 The carriers, as a rule, are ready and willing to defend 
 their rates and practices and will appear at the hearing 
 by skilled counsel and experienced traffic men. There is 
 therefore an opportunity for the complainant or his 
 
24 PROCEDUEB 
 
 counsel, or the Commissioner or Examiner before whom 
 the case is heard, to obtain at first hand from the car- 
 riers ' representatives much valuable information bearing 
 directly upon the issues involved. 
 
 Should either party at the hearing, however, desire 
 the issuance of a subpoena to any particular witness, a 
 Commissioner under the law has authority to issue" it. 
 If the hearing is before an Examiner, it is customary 
 for him to have in his possession subpoenas signed by a 
 Commissioner which he will issue in his discretion. 
 
 Subpoenas for the production of books and papers 
 will be issued only upon application in writing to the 
 Commission, and this should be attended to well in 
 advance of the hearing. 22 
 
 8. Repakation 
 
 When a complainant seeks to have the Commis- 
 sion exercise its power under section 16 of the Act, 
 and enter a finding that the complainant has been 
 damaged, and award him a sum of money from the 
 carrier or carriers as reparation, there are important 
 details connected with the procedure in such a case. 
 Reparation may be awarded for damage suffered from 
 any violation of the Act. The record in a proceeding 
 wherein the complainant is seeking reparation is one 
 that must be made with great care, as the law com- 
 mands that in reparation cases the Commission shall 
 state its findings of fact; and if its order is to be worth 
 anything to the complainant in the recovery of the 
 
 22 Commission's Rule XII. 
 
BEFORE THE COMMISSION 25 
 
 sum named, the procedure must be in accordance with 
 the letter of the law. (See Rule III.) 
 
 "When the complainant intends to seek reparation 
 upon past shipments at a rate which it is alleged was 
 unreasonable or otherwise unlawful, he must include a 
 prayer for reparation in the complaint at the time he 
 attacks the reasonableness of the rate. There is noth- 
 ing in the law requiring this, but it is a rule of the 
 Commission and is founded upon reason. 23 
 
 The Act limits the right of recovery of damages to 
 shipments that moved within two years prior to the time 
 of filing the complaint. The Commission has held that 
 the two years begins to run from the time the shipment 
 was delivered to the consignee, 24 so that the complaint 
 can include only such shipments as were not delivered 
 more than two years prior to the day the complaint is 
 filed with the Commission. In fixing the date when a 
 complaint is filed, the Commission will adopt the date of 
 filing of an informal complaint if such complaint is 
 deemed to describe the shipments sufficiently and to 
 give other data necessary under the Act. 
 
 Where reparation is sought, the complaint should state 
 the name of each claimant. This means the shipper who 
 was damaged; the naming of a commercial body of 
 which he was a member is not sufiicient. If only a 
 simple movement of one commodity between two points 
 is involved, an accurate statement thereof is necessary. 
 Where the localities involved are numerous, it will be 
 enough to indicate definitely the territorial or rate group. 
 
 Where the case is broad in scope or where many 
 shipments are involved, the Commission will first deter- 
 
 3 12 I. C. O. Eep. 223. 
 
 ' This ruling has been sustained by the Commerce Court. 
 
26 PROCEDURE 
 
 mine whether the complainant has been damaged. In 
 case of an affirmative finding opportunity will be 
 afforded to make proof respecting the shipments. A 
 statement should then be filed giving for each shipment 
 the date of delivery, car initial and number, points of 
 origin and destination, route, commodity, weight, rate 
 applied, charges collected, rate found reasonable and 
 charges applicable thereunder, and amount of reparation 
 payable upon basis of findings. This statement should 
 be adjusted between the parties and certified by the 
 carriers that collected the charges as to accuracy. 25 
 
 When a claim for reparation on the informal docket 
 has to be transferred to the formal docket, or when it 
 has been withdrawn by the parties, formal complaint 
 thereon must be filed within six months from date of 
 withdrawal or notification by Commission that it cannot 
 be disposed of except on formal complaint. In other 
 words, where reparation is an issue, the element of time 
 assumes importance both in the bringing of the original 
 complaint and in the following-up of proceedings once 
 instituted. 
 
 If the Commission can be said to have a policy towards 
 the question of reparation, it is fair to say that it is 
 generally opposed to granting it. Where the illegality 
 proven is an unjust discrimination, it is a practicable 
 impossibility to prove damages under the strict require- 
 ments laid down by the Commission. It will be neces- 
 sary for Congress to define more definitely what shall 
 constitute damages under the Act, or for the courts to 
 prescribe a workable rule for the Commission. 
 
 In cases where the Commission enters an award of 
 
 25 See form 5, p. 24, Commission's Rules, and Rule V, also 21 I. C. C. 
 Rep. 45. 
 
BEFORE THE COMMISSION 27 
 
 reparation, it uniformly allows interest at 6 per cent per 
 annum from the date the freight money was paid to 
 the railroad company. 
 
 If the award of the Commission is not paid by the 
 carriers, the complainant sues in the courts, and the law 
 makes the findings and order of the Commission prima 
 facie evidence of the facts therein stated. The statute 
 gives a party the choice of seeking reparation, in the 
 first instance, before the Commission or suing directly 
 in the courts for damages, but he may not do both. 
 
 9. Suspension op Tabipps 
 
 The amendment to section 15 of the Act, passed in 
 1910, greatly increased the jurisdiction of the Commis- 
 sion by giving it the power to suspend the operation of 
 any tariff filed with the Commission stating new rates, 
 fares, or charges, if done prior to the effective date of 
 the tariff. This power ranks second only to the rate- 
 making power to fix rates upon complaint of shippers 
 bestowed upon the Commission in 1906, which, however, 
 relates only to rates already in effect. In recent years 
 the rate cases arising under suspension proceedings are 
 among the most important before the Commission. 
 
 The Commission may upon protest of shipper, or 
 upon its own motion, after reasonable notice to the 
 carriers, enter upon a hearing concerning the propriety 
 of any new rate, fare, or charge, pending which the 
 Commission may suspend the operation of the schedule 
 for 120 days, and for a further period of six months 
 when necessary in order to complete its investigation. 
 If the Commission has not disposed of the matter at 
 
28 PROCEDURE 
 
 the end of ten months, the new rates go into effect 
 automatically. 
 
 The statute commands the Commission to give to 
 suspension proceedings preference over all other ques- 
 tions pending before it and to decide them as speedily 
 as possible. It further requires that at the hearing, if 
 the rate involved is one that was increased after Jan- 
 uary 1, 1910, the burden of proof to show that the 
 increased rate is just and reasonable shall be upon the 
 carrier. 
 
 The burden of proving that a rate is reasonable per se 
 includes as well the duty of showing that it is relatively 
 reasonable, i. e., that it does not unjustly discriminate. 26 
 But the carriers do not concede the correctness of this 
 attitude of the Commission. The Commission has said 
 that where a rate has been lowered after January 1, 
 1910, and then advanced to a lower level than on Janu- 
 ary 1, 1910, this statutory burden of proof still rests 
 upon the carriers. 27 
 
 Under its power of suspension of rates the Commis- 
 sion has established a docket known as the "investiga- 
 tion and suspension docket," upon which it enters all 
 suspension matters and gives them prompt attention. 
 One hundred and ninety-nine such cases were instituted 
 during the past year. In the practical handling of these 
 matters it has a Board of Suspensions composed of 
 officers of the Commission, which passes upon all suspen- 
 sion matters in their preliminary stages. Tariffs filed 
 with the Commission are effective thirty days after 
 filing, and during this period, if shippers desire the sus- 
 pension of a tariff, they are frequently given a prelimi- 
 
 '32 I. C. C. Rep. 449; 35 I. C. C. Rep. 85. 
 '26 I. C. C. Rep. 669; 28 I. C. C. Rep. 269. 
 
BEFORE THE COMMISSION 29 
 
 nary hearing before the Board, but the aggrieved parties 
 should act promptly and file their protest at least ten 
 days before the effective date of the tariff. 
 
 There are a vast number of tariffs becoming effective 
 every day in the year, and if the suspension is worth 
 considerable to the shipper, it is highly advisable to go 
 to Washington and place the facts before the Board in 
 person. An appointment can be made by telegraph a 
 few days ahead, and the informal hearing will not last 
 longer than from one to two hours. In practically no 
 other way can a shipper further the suspension of a 
 tariff. There should be present someone who can set 
 forth fully the history and the basis of the rates 
 involved. It is facts of this character that the Board 
 will call for, and not what the shipper imagines is going 
 to happen to him if the new rates become effective. 
 
 A petition for suspension must indicate the schedule 
 affected by its so-called "I. C. C." number and give 
 specific reference to the parts thereof complained 
 against, together with a statement of the grounds of 
 such complaint. The protest should include repre- 
 sentative rates both present and proposed. It is not 
 necessary to obtain permission to intervene in cases 
 heard under this docket. Any interested party may 
 appear and participate in the proceeding. 
 
 Should the preliminary hearing or the application 
 without the preliminary hearing result in the temporary 
 suspension of the objectionable tariffs, the case then 
 comes on for formal hearing. At the hearing the com- 
 plainant is greatly assisted by the terms of the Act 
 placing the burden of justifying the increased rate upon 
 the carriers. This reverses the usual order of things 
 as the testimony of the carrier is taken first and as 
 
30 PROCEDURE 
 
 complaining interests have the complete disclosure of 
 the carrier's case before they proceed with their own. 
 The carrier also files the opening and the reply briefs 
 and opens and closes the oral argument, which is the 
 reverse of the case with ordinary complaints. Other- 
 wise, the proceeding follows the general course already 
 described for formal hearings. 
 
 At the conclusion of the proceeding, the Commission 
 enters an opinion and an order either withdrawing its 
 temporary suspension and permitting the tariffs to 
 become effective or requiring the carriers to continue 
 their former rates for a period of two years. 
 
 10. Proceedings upon the Commission's Own Motion 
 
 An important part of the Commission's duty to enforce 
 the provisions of the Act is performed by means of the 
 comprehensive, general, and sweeping investigations into 
 the rates and practices of the carriers, which are under- 
 taken by the Commission upon its own motion, and which 
 the Act specifically gives it authority to institute and to 
 enter binding orders as a result thereof. There is 
 always pending before the Commission one or more of 
 these investigations. Such an inquiry as this was the 
 investigation into the transit privileges accorded by the 
 carriers upon shipments of grain, lumber, and other 
 commodities. The Commission appoints an attorney to 
 take particular charge of each one of these investiga- 
 tions, and the control of the hearings, production and 
 examination of witnesses, etc., are largely left to him. 
 One can scarcely appreciate the vast interests frequently 
 affected by such an investigation. The transit investi- 
 gation, in which the writer was the Commission's 
 
BEFORE THE COMMISSION 31 
 
 attorney, involved practically all the carriers of the 
 country and hundreds of appearances were entered on 
 behalf of milling, grain, lumber, cotton, and other 
 industries. These hearings are usually of such 
 importance as to be before a Commissioner or the 
 Commission sitting as a body. The parties in interest 
 are permitted to enter appearances in person or by 
 counsel, may produce and cross-examine witnesses, file 
 briefs, and participate in the oral argument. 
 
 When one of these investigations is started, it is well 
 for all parties in any way interested to be represented, 
 for there is no telling when something may develop that 
 will seriously affect them. The Commission institutes 
 these investigations by entering a formal order, which 
 is served upon the carriers involved. So far as inter- 
 ests other than the carriers are concerned, it is given 
 wide publication in the press of the country, so that all 
 persons affected will have notice thereof. The hearings 
 are held in the important centers most affected by the 
 subject-matter, and their progress receives attention in 
 the press and trade papers, thus further advising the 
 public of its pendency. 
 
 At the present time (1916) there are pending inves- 
 tigations of the kind here considered into the private 
 car lines, lumber products, bills of lading, coal and 
 ore rates, rates on live stock and animal products, and 
 cement rates in Western Trunk Line Territory. 
 
 11. Fourth-Section Investigations 
 
 The fourth section of the Act makes it unlawful to 
 charge more for a shorter than for a longer distance 
 over the same line, or to charge more as a through rate 
 than the sum of the intermediate rates. 
 
32 PROCEDURE 
 
 The carriers are, however, permitted to apply to the 
 Commission for relief from these requirements, and the 
 Commission sets these applications down for formal 
 investigation. The general procedure is the same as 
 before described, except that the entire burden of proof 
 rests upon the carriers, and as a rule the shipping 
 interests do not appear, although the Commission wel- 
 comes their participation. The Fourth Section Board, 
 composed of three employees of the Commission, handles 
 all fourth-section matters in their preliminary stages. 
 
 At the conclusion of the proceeding the Commission 
 enters an order either denying the carrier's application 
 or granting it the permission it seeks. During the year 
 1915, 673 such applications were received by the Com- 
 mission. 
 
 The most significant rate adjustments in the country 
 which contravene the fourth-section principle are the 
 rates to the Eocky Mountain Country, which exceed the 
 rates to the Pacific coast, and the so-called base point 
 system in the Southeast. The Commission is constantly 
 adjusting the rates in these two fields, and in addition it 
 is confronted with many other violations of the prin- 
 ciple here and there throughout the country. 
 
 The Commission has assumed to take the same juris- 
 diction over through rates that exceed the combination of 
 intermediate rates as over rates that violate the long- 
 and-short-haul clause. The statute, however, condemns 
 as unlawful every through rate that exceeds the combina- 
 tion of intermediates, and gives the Commission no 
 power to grant relief to carriers in such an instance. 
 It follows, therefore, that the only lawful charge is the 
 lower combination of rates, and that is the rate that 
 should be paid in the first instance. 
 
BEFORE THE COMMISSION 33 
 
 12. Switch Connections 
 
 Under the first section of the Act a petition may be 
 filed with the Commission for the purpose of compelling 
 a common carrier to construct and maintain a switch 
 connection with a lateral branch line of road or private 
 side track, under certain conditions. While the trial of 
 a case of this kind has features that are wholly peculiar 
 to it, they pertain to matters of evidence intended to 
 show the demand for exercise of the power of the Com- 
 mission under the particular provision of the law 
 invoked, and the formal procedure is the same as has 
 already been described. The Supreme Court has recently 
 decided that the use of the term "lateral branch line" 
 limits the Act to a somewhat narrow class of lines 
 known as "feeders," and does not include independent 
 or parallel and competing lines of road. 
 
 It must not only be alleged and shown that there is a 
 real transportation demand for such a connection, but 
 that the connection is entirely practicable and feasible 
 from a physical or operating standpoint. It should be 
 understood that the Act refers merely to a switch 
 connection and does not include side tracks, which are 
 often known as "switches." The Commission cannot 
 compel the installation of private side tracks. 
 
 The Panama Canal Act has empowered the Commis- 
 sion to require physical connection between lines of 
 railroad and the docks of water carriers. 
 
 13. Through Boutes and Joint Hates 
 
 In addition "to the fundamental control which the 
 Commission exercises over the carriers under the pro- 
 visions of the statute dealing with the rates and practices 
 
34 PROCEDURE 
 
 of the carriers and requiring that they shall be reason- 
 able and non-discriminatory, the public has a right under 
 section 15 of the Act to file petitions seeking through 
 routes and joint rates. This power of the Commission 
 is quite frequently invoked, and when the cause comes 
 on for hearing, the peculiar nature of the case is reflected 
 in the character of the evidence produced to show 
 the demand for the exercise of this power of the 
 Commission, while the formal procedure remains about 
 the same as has already been described. In a case of 
 this kind it should be alleged and proved that the present 
 method of handling the traffic as through transportation 
 is an unreasonable practice, and also that the through 
 transaction should have a joint rate lower than a com- 
 bination of intermediate rates. It would, of course, be 
 unfair to demand the establishment of joint rates for a 
 single shipment. There must be a practical demand 
 or a convincing showing of necessity for such through 
 arrangements. 
 
 It has become the almost universal practice of inter- 
 state carriers to accept a shipment anywhere tendered 
 for transportation and to issue a through bill of lading 
 to any point in the country. This constitutes a through 
 route. Furthermore, the statute now gives a shipper 
 the right to designate the routing of the shipment. Car- 
 riers sometimes do not make their lowest rates apply 
 via a certain route, and it is in cases of this kind that 
 complaints are filed for the purpose of opening up the 
 route in question on the rate sought. In such a case 
 the Commission will consider the practical necessity for 
 another route. Moreover, the statute will not permit 
 a carrier to be "short-hauled" as the phrase is. That is, 
 a carrier receiving a shipment is entitled to haul it and 
 
BEFORE THE COMMISSION 35 
 
 to get the earnings for its service so long as it can 
 render the service needed in a satisfactory manner and 
 with reasonable directness. 
 
 The statute recognizes the separately established por- 
 tions of a through charge. It thus legalizes the combina- 
 tion of rates where there is no through joint rate. Each 
 part of the combination rate is primarily designed to 
 take care of a local movement, which may involve a 
 short haul and two terminal services. When two such 
 rates are applied upon a through long haul with two 
 terminal services instead of four, there is basis for 'a 
 complaint as to the unreasonableness of the combina- 
 tion rate and the establishment of a lower through joint 
 rate. The Commission may require the publication of 
 joint rates equal or lower in amount to two local rates, 
 or a local and a proportional, if by so doing the con- 
 venience of the public is served in ascertaining the cor- 
 rect rates. 28 
 
 The Panama Canal Act of 1912 empowered the Com- 
 mission to establish through routes and joint rates via 
 rail and water routes, and this provision has been 
 repeatedly enforced. 
 
 14. Special Reparation Docket 
 The Commission's attention is constantly being called 
 to instances where the carriers have collected money 
 from shippers in the course of business which it appears 
 they had no legal right to take. The collection may have 
 been due to misconstruction of a tariff, to error in 
 compiling and printing a tariff, or to some other such 
 error. In view of the stringency of the law against 
 rebates, however, the carrier is careful not to make 
 
 a8 19 I. C. C. 336. 
 
36 PROCEDURE 
 
 refunds to shippers until the Commission is satisfied 
 as to the reason for such refund. The payment of 
 money to a shipper would be disclosed to the Commis- 
 sion in its regular inspection of the carrier's accounts. 
 
 All matters of this character are listed upon the 
 Commission's "special reparation docket." The Com- 
 mission furnishes the carrier with a blank application 29 
 which it is required to execute and in which the carrier, 
 among other things, admits that the charges collected 
 were excessive and unreasonable and in violation of 
 section 1. Five thousand five hundred and fourteen 
 applications were received by the Commission during 
 the year 1912 and approximately $300,000 were refunded 
 upon drders of the Commission. This work of the 
 Commission is appropriately described in the following 
 quotation taken from Conference Ruling No. 200. 
 
 It might be well to state that while cases coming forward 
 on this docket are adjusted in an informal manner, this special 
 docket is not an informal docket except in respect to the form 
 of pleadings and the character of the hearing. The Commission 
 cannot on the special docket exceed the authority exercised 
 by it on the formal docket, nor may • it omit any require- 
 ment with respect to cases on the special docket that the law 
 imposes on it in the disposition of cases on the formal docket. 
 In all cases, whether on the formal or the special docket, 
 the law requires a complaint and answer and a full hearing, 
 and provides that where damages are awarded, the report of 
 the Commission shall include the findings of fact on which the 
 award is made. The Commission has endeavored to simplify 
 the procedure on the special docket by accepting the applica- 
 tion of the carrier as the equivalent of a complaint and answer, 
 and by accepting as a sufficient compliance with the require- 
 ments of section 15 for a full hearing its admission that the 
 
 29 Form No. 5. 
 
BEFORE THE COMMISSION 37 
 
 rate charged under the circumstances then existing was 
 unreasonable. 
 
 It will therefore be observed that the Commission's action 
 in special reparation cases springs from the same authority 
 which it exercises in formal cases. 
 
 It not infrequently happens that a case will go from 
 the special docket to the formal docket because the 
 parties fail to comply with the rules under the special 
 docket. Sometimes the parties appear at the formal 
 hearing of a case and ask to have it go to the special 
 docket. This will not be allowed because the efforts to 
 settle upon the informal and special dockets have usually 
 failed before the case is set down for formal hearing. 
 After the formal hearing the Commission will have 
 authority of law to decide the case; so when it is once 
 set for hearing, economy of time requires that the Com- 
 mission proceed at once to dispose of the case. The 
 carriers are generally favorable to settlements on the 
 special docket because the Commission ordinarily only 
 orders the future rate established for one year, whereas, 
 if the Commission conducts a formal investigation, it 
 requires, as a result thereof, the maintenance of the 
 rate for two years. The special reparation docket should 
 not be confused with the informal docket, or with repara- 
 tion claims on the formal docket, hereinbefore' described. 
 
 15. Division of Inquiry 
 
 The general duty of the Commission under the Act to 
 see that the provisions of the law are enforced, makes 
 it necessary for the Commission to give special attention 
 to all information coming to it as to violations or sup- 
 posed violations of the law and which entail criminal 
 
38 PROCEDURE 
 
 responsibility upon the perpetrators, particularly under 
 section 10 of the Act, and also under the Elkins law. 
 
 In order to keep itself advised as to whether the law is 
 being thus criminally violated, the Commission maintains 
 a Division of Inquiry manned by a corps of skilled inves- 
 tigators known as "special agents." The results of the 
 work of this division go to the Federal Department of 
 Justice or to a grand jury in the locality where the 
 violation of law occurred. Seventy-two indictments 
 were obtained during the year 1915 for violations of 
 the statutes. These include such offenses as collecting 
 charges in excess of the tariff rates wherein the 
 carriers and their employees are the ones indicted, 
 or mis-billing of shipments by shippers in order to obtain 
 rates which are really not applicable upon the shipments 
 moved. Offenses of this latter kind are of course com- 
 mitted by the shippers, and they alone are the ones 
 indicted. The general run of indictments, however, 
 involves devices resorted to by carriers and shippers 
 to defeat the published rates, and in such cases it is 
 the policy of the Commission to secure the indictment 
 of all parties connected with the transaction, including 
 the railroad company, its employees and agents, and the 
 shippers and consignees profiting by such schemes. 
 
 An interesting set of indictments obtained in 1915 
 were those obtained against the railroads serving a 
 town from which they advanced rates but failed to publish 
 the advances or post them in the local stations until 
 five or six days after the advances became effective when 
 the Act says they shall do this thirty days before. 
 The Commission has recently had many instances 
 brought to its attention where the railroads were advanc- 
 ing rates secretly without giving shippers a chance to 
 
BEFORE THE COMMISSION 39 
 
 protest. The indictments in question will have a whole- 
 some effect in stopping these illegal practices. 
 
 There is no form of procedure in connection with this 
 work unless the Commission finds it necessary to exam- 
 ine certain witnesses under oath, and proceedings of this 
 kind would come under the heading of "Proceedings 
 upon the Commission's Own Motion," already described. 
 
 16. Other Activities op the Commission 
 
 In addition to the work of the Commission involving 
 formal procedure, with which we are particularly con- 
 cerned, a very large part of the annual appropriation of 
 approximately two million and a half dollars, which the 
 Commission spends, and a large share of the personnel 
 of the Commission's force, have to do with administra- 
 tive matters such as the Division of Statistics, which 
 gathers and compiles the statistics relating to the inter- 
 state railroads in the country; the Division of Carriers' 
 Accounts, which keeps a large force in the field contin- 
 ually going through the files and records of the carriers 
 to see that their accounts are kept in accordance with 
 the requirements of section 20 of the Act, and for the 
 further purpose of investigating all items which appear 
 to conflict with the carriers' responsibilities under the 
 law. There are also the Accident Division, the Safety 
 Appliance Division, and service for the inspection of 
 locomotive boilers. 
 
 Congress has authorized and directed the Commission 
 to proceed with the valuation of the railroads of the 
 country, and this work is now well under way and will 
 cost several million dollars, employ hundreds of people, 
 and take several years to complete. The Act makes 
 
40 PEOCEDUEE 
 
 specific provision for determining in court any disputes 
 between Commission and carrier as to the proper 
 amounts to be credited in the value of a railroad. 
 
 One of the most important duties of the Commission 
 is that imposed upon it by the statute of making recom- 
 mendations to Congress for new legislation which experi- 
 ence has demonstrated as necessary for the proper 
 regulation of interstate commerce. Each year the annual 
 report to Congress contains the Commission's views 
 along this line. For instance the last annual report 
 recommends that a period of three years be provided 
 for the beginning of all actions relating to transporta- 
 tion charges subject to the Act and also that there be 
 some control over railway capitalization. 
 
 Under a provision in the fourth section of the Act, 
 as amended in 1912, if a rail carrier should reduce its 
 charges for the purpose of meeting water competition, 
 and, after successfully meeting such competition, and 
 driving the water carriers out of business, should then 
 attempt to advance its rates, it will not be permitted to 
 do so unless and until the Commission investigates the 
 matter and finds that the proposed advance is due to 
 something besides the elimination of water competition. 
 
 In addition to the regulation of rail carriers, and 
 water carriers when they are operated under joint 
 control, management, or arrangement with rail 
 carriers, the Commission is, by special legislation, 
 given regulatory powers over express companies, pipe 
 lines, sleeping car companies, and telephone, cable, and 
 telegraph companies, including wireless companies. 
 
 The Panama Canal Act (1912) contains a provision 
 which has developed into considerable importance. It 
 prohibits a rail carrier from owning or controlling a 
 
BEFORE THE COMMISSION 41 
 
 competing water carrier after July 1, 1914, and author- 
 izes the Commission to determine the fact as to competi- 
 tion and, under certain limitations, to modify the 
 application of the law in particular cases. This act also 
 extends the Commission's jurisdiction to transportation 
 by rail and water by authorizing it to require physical 
 connection between lines of railroad and docks of water 
 carriers and to establish through routes and joint rates 
 over rail-and-water lines. This acf grants to the Com- 
 mission other powers regulating rail-and-water lines. 
 
 17. Conclusion 
 
 The foregoing pages on practice before the Interstate 
 Commerce Commission are intended to give a simple 
 non- technical account of the Commission's work and 
 what is expected of one going before it for the purpose 
 of moving that body to action under the terms of the 
 Act. It has been difficult to cover even this ground 
 within the limits appropriate for the purpose in hand. 
 
 Before a person can call himself a commerce lawyer, 
 however, he has a long road to travel. He should not 
 only be well grounded in the law in its broadest aspect, 
 but he must keep up with the current work of the 
 Commission through its published opinions and annual 
 reports. He should undertake to look somewhat into the 
 history of transportation in general in this and other 
 countries, and as time permits he should go back over 
 the volumes containing the opinions of the Commission 
 and the annual reports of that body since it was instituted. 
 
 Nor is this all. Since the passage of the Act, in 1887, 
 there has been constant litigation under it in the federal 
 courts, and these decisions have a direct bearing upon 
 
42 PROCEDURE 
 
 the enforcement of the Act by the Commission and the 
 rights of the various parties under the law. There are 
 involved questions of constitutional, statutory, and 
 administrative law bearing upon the powers of the 
 Commission and the application of these laws to trans- 
 portation problems. 
 
 No attempt has been made to cover the procedure of 
 a case in the courts, as that subject is so involved with 
 the shifting of jurisdiction by statutes from one court 
 to another, as well as other inherent difficulties and 
 statutory requirements, that it can be grasped only by 
 the trained lawyer. As already stated, however, but a 
 small percentage of the many thousands of proceedings 
 before the Commission reach the courts, and the present 
 purpose is primarily to deal with that vast majority 
 which end in a decision of the Commission. 
 
 It seems hardly necessary to add that the real out- 
 come of a case depends not so much upon the formal 
 procedure in the trial of the case as upon the proof 
 offered at the hearing in substantiation of the com- 
 plainant's cause and the skill with which the record is 
 compiled by the parties. The evidence that should be 
 offered in particular cases depends upon the facts 
 peculiar to each case and constitutes the subject of a 
 separate lecture. 
 
TEST QUESTIONS 
 
 These questions are for the student to use in testing 
 his knowledge of the assignment. The answers are not to 
 be sent to the University. 
 
 1. How many kinds of proceedings before the Commission 
 can you name? 
 
 2. With what branch of the federal government is the 
 Commission most closely allied? 
 
 3. What are the duties of an Examiner presiding at the 
 hearing? Does this complete his duties? 
 
 4. What is expected of the complainant at the hearing? 
 
 5. How is the carrier usually represented at the hearing? 
 
 6. Upon what grounds can the courts review the findings 
 of the Commission? 
 
 7. What findings of the Commission are final? 
 
 8. How are the criminal provisions of the law enforced ? 
 
 9. How is leave for oral argument before the Commission 
 obtained ? 
 
 10. Where is oral argument before the Commission held? 
 
 11. Where is the hearing of the case conducted? 
 
 12. Before whom may hearings be held? 
 
 13. Before whom is the argument of the case always made? 
 
 14. Distinguish between the special docket and the informal 
 docket. 
 
 15. How can the Commission be compelled to take juris- 
 diction under the law? ' 
 
 16. When is the issue in a proceeding joined? 
 
 17. Upon what theory are the Commission's rules of pro- 
 cedure based? 
 
 18. Name the officers and boards in the Commission who 
 handle cases. 
 
 43 
 
44 PROCEDURE 
 
 19. In what two classes of cases is the burden of proof upon 
 the carriers! 
 
 20. What United States Supreme Court case points out the 
 importance of the record before the Commission in interstate 
 commerce cases? 
 
 21. How are the transcripts of record distributed by the 
 Commission ? 
 
 22. Who may intervene in a proceeding before the Com- 
 mission and how is permission obtained? 
 
 23. Distinguish between a petition for rehearing and a 
 petition for reopening. 
 
 24. Why does the Commission discourage the filing of 
 depositions ? 
 
 25. When does the Statute of Limitations begin to run? 
 
 26. Upon what docket are cases involving the suspension 
 of tariffs entered? 
 
 27. What are some of the new powers and duties given to 
 the Commission by the legislation of 1912? 
 
 28. Who may participate in proceedings under the "inves- 
 tigation and suspension docket"? 
 
 29. What is the relative importance of a printed brief in a 
 formal case? 
 
INTERSTATE COMMERCE COMMISSION 
 
 RULES OF PRACTICE 
 
 BEFORE THE 
 
 COMMISSION 
 
 IN PROCEEDINGS UNDER THE ACT 
 
 TO REGULATE COMMERCE, WITH 
 
 APPROVED FORMS 
 
 REVISED, AMENDED AND ADOPTED 
 MARCH 20, 1916 
 
 1916 
 
THE INTERSTATE COMMERCE COMMISSION. 
 
 Balthasar H. Meyee. 
 Judson C. Clements. 
 Edgar E. Clark. 
 James S. Harlan. 
 Charles C. McChord. 
 Henry C. Hall. 
 Winthrop M. Daniels. 
 
 George B. McGinty, Secretary. 
 
PROPOSED AMENDMENT OF THE RULES OF PRACTICE. 
 
 The Commission has become convinced that no adequate 
 analysis of rate compilations or tabulated statements offered 
 as exhibits can ordinarily be made at the hearing of a case 
 when such rate compilations or tabulated statements have not 
 been filed and served prior to that time. It is therefore pro- 
 posed to amend the Rules of Practice so as to require the filing 
 and service of rate compilations and tabulated statements in 
 advance of the hearing. Before adopting such an amendment 
 the Commission desires to test its practicability and requests 
 that such compilations or tabulated statements be filed as 
 though the amendments shown below were now in effect. The 
 Commission further requests that its attention be directed to 
 situations in which the proposed requirements are found 
 objectionable. 
 
 PROPOSED AMENDMENT TO RULE III. 
 
 To each complaint must be attached a descriptive list of such rate 
 compilations and tabulated statements as are filed therewith in ac- 
 cordance with rule XIII, as amended. 
 
 PROPOSED AMENDMENT TO RULE XIII. 
 
 All rate compilations and tabulated statements which the com- 
 plainant intends to offer in evidence must be filed with the Com- 
 mission at the time the complaint is filed, and any compilations and 
 statements which the defendant desires to submit in answer thereto 
 must be filed with the Commission within 30 days thereafter. Similar 
 data in rebuttal must be filed with the Commission 15 days after the 
 service of the tabulations filed by the defendants. 
 
 In investigation and suspension cases the respondents must file with 
 the Commission all rate compilations and tabulated statements which 
 they intend to offer in evidence within 15 days from the date of service 
 of the suspension order upon their agents in Washington. Protest- 
 ants must file any compilations or statements they desire to submit 
 in answer thereto within 30 days thereafter. Similar data in 
 
 3 
 
4 INTERSTATE COMMERCE COMMISSION. 
 
 rebuttal must be filed with the Commission 15 days after the service 
 of the tabulations filed by the protestants. These periods will not be 
 extended except upon application to the Commission and for good 
 cause shown. 
 
 Five copies of all compilations and statements referred to in the 
 two preceding paragraphs must be filed with the Commission, and the 
 Commission will supply three copies thereof to opposing counsel upon 
 request. In special cases the Commission may require additional copies 
 to be furnished. 
 
 Except where such compilations and statements are filed with the 
 complaint, a notice describing such compilations and statements must 
 be served upon all adverse parties. 
 
RULES OP PRACTICE BEFORE THE COMMISSION IN 
 
 PROCEEDINGS UNDER THE ACT TO REGULATE 
 
 COMMERCE. 
 
 I. 
 
 PUBLIC SESSIONS. 
 
 Sessions of the Commission for hearing evidence or oral 
 arguments will be held as ordered by the Commission. 
 
 The office of the Commission at Washington, D. C, is open 
 each business day from 9 a. m. to 4.30 p. m. 
 
 II. 
 
 PARTIES. 
 
 Any person, firm, corporation, company, or association, or 
 any mercantile, agricultural, or manufacturing society or other 
 organization, or any body politic or municipal organization, or 
 any common carrier, or the railroad commissioner or commis- 
 sion of any State or Territory, may complain to the Commis- 
 sion of anything done, or omitted to be done, in violation of 
 the provisions of the act to regulate commerce, as amended, 
 by any common carrier subject to the provisions of said act. 
 Any such party may appear and be heard in person or by 
 attorney. 
 
 Two or more complainants may join in one complaint against 
 two or more defendants, if the complaint involves substan- 
 tially the same principle, subject, or state of facts. 
 
 If a complaint relates to matters in which two or more 
 carriers, engaged in transportation by continuous carriage or 
 shipment, are interested, the several carriers participating in 
 such carriage or shipment are necessary parties defendant. 
 
 If a complaint relates to rates, regulations, or practices of 
 carriers operating different lines, and the object of the pro- 
 
 5 
 
6 INTERSTATE COMMERCE COMMISSION. 
 
 ceeding is to secure correction of such, rates, regulations, or 
 practices on each of said lines, all the carriers operating such 
 lines should be made defendants. 
 
 If a complaint relates to provisions of a classification it will 
 ordinarily be sufficient to name as defendants the carriers 
 forming one or more through routes between representative 
 points of origin and destination. 
 
 If the line of a carrier is operated by a receiver or trustee, 
 both the carrier and its receiver or trustee must be made 
 defendants in cases involving transportation over such line. 
 
 Any person may file an intervening petition in any proceed- 
 ing prior to or at the time the case is called for hearing, but 
 not after except for good cause shown. Such petition shall 
 set forth the grounds of the proposed intervention and the 
 petitioner's interest in the proceedings. Intervention will not 
 be permitted except upon allegations that are reasonably perti- 
 nent to the issues already presented. Leave granted on such 
 petition will entitle interveners to have notice of hearings, to 
 produce and cross-examine witnesses, and to be heard in 
 person or by attorney upon brief and at the oral argument. 
 The petition need not be verified, but must be signed in ink by 
 petitioner or his duly authorized attorney. The petitioner 
 must furnish as many complete copies thereof as there are 
 parties to the case, and three additional copies for the use of 
 the Commission. 
 
 III. 
 
 COMPLAINTS. 
 
 Complaints must be typewritten on one side of the paper 
 only, or be printed. In either case the complaint must con- 
 form to the specifications of rule XXI. The names of all 
 parties, complainant or defendant, must be stated in full, with- 
 out abbreviations, and the address of each complainant, with 
 the name and address of his attorney, if any, must appear upon 
 each copy. The complaint need not be verified, but must be 
 signed in ink by the complainant or his duly authorized attor- 
 ney. The complainant must furnish as many complete copies 
 
RULES OP PRACTICE. 7 
 
 of the complaint as there may be parties defendant to be 
 served, including receivers or trustees, and three additional 
 copies for the use of the Commission. 
 
 The Commission will serve the complaint upon each defend- 
 ant by leaving a copy with its designated agent in the District 
 of Columbia, or, if no such agent has been designated, by 
 posting a copy in the office of the secretary of the Commission. 
 
 Complaints should be so drawn as fully and completely to 
 advise the defendant and the Commission wherein the pro- 
 visions of the act have been violated and should set forth 
 briefly and in plain language the facts claimed to constitute 
 such violation. Two or more grounds of complaint involv- 
 ing the same principle, subject, or state of facts, may be 
 included in one complaint, but should be separately stated 
 and numbered. The several rates, regulations, and discrimi- 
 nations complained of should be set out by specific reference 
 to the tariffs in which they appear whenever that is practicable. 
 
 Where the rate attacked is one increased after January 1, 
 1910, the complaint should so state. 
 
 In case discrimination in violation of sections 3 or 4 of 
 the act is alleged the complaint should specify and describe 
 in detail the particular preference or advantage to any per- 
 son, company, firm, corporation, locality, or traffic, which is 
 relied upon as constituting such discrimination. Appropriate 
 allegation should also be made in such case to present for 
 decision the issue as to whether or not such rates, charges, or 
 other matters complained of are just and reasonable. In 
 case a violation of section 4 is alleged the complaint should 
 specify and describe in detail the particular violation of that 
 section, giving tariff references whenever practicable. 
 
 In case the discrimination alleged is between intrastate 
 and interstate or foreign traffic the complaint should so 
 state with sufficient definiteness fully to disclose the allega- 
 tion made in respect to any tariff provision prescribed, estab- 
 lished or compelled by state authority. The Commission de- 
 sires in such cases to notify the state authorities of the com- 
 plaint, and complainant must furnish sufficient copies for 
 that purpose. 
 
 Except under unusual circumstances, and for good cause 
 
8 INTERSTATE COMMERCE COMMISSION. 
 
 shown, reparation will not be awarded unless specifically 
 prayed for in the complaint or in an amendment thereto filed 
 before the submission of the case. 
 
 After a final order has been entered upon a complaint in 
 which reparation is not sought or, if prayed, has been denied, 
 the Commission will not ordinarily award reparation upon 
 a complaint subsequently filed and based upon any finding 
 upon the first complaint. 
 
 Where reparation is sought the complaint should state (a) 
 that complainant makes claim for reparation, (b) the name 
 of each individual claimant asking reparation, (c) the com- 
 modities transported, (d) the names of defendants against 
 which claim is made, (e) the period of time within which 
 or the specific date upon which the shipments were made, 
 and (f) the points of origin and destination, either specific- 
 ally, or, where they are numerous, by a definite indication 
 of a defined territorial or rate group of the points of origin 
 and destination. Under a general rate adjustment chal- 
 lenged in the complaint, or upon many shipments under a 
 particular rate, or where many points of origin or destina- 
 tion are involved, it is the practice of the Commission first 
 to find and determine in its report as to the reasonableness 
 of the rate or rates in issue, and whether the parties seek- 
 ing reparation have borne the transportation charges, as 
 such, have been damaged, and are entitled to reparation; 
 thereafter giving to such parties an opportunity to make 
 proof respecting the shipments upon which reparation is 
 claimed. In such cases freight bills and other exhibits bear- 
 ing on the amount of reparation should be reserved until 
 called for and should not be filed with the complaint. The 
 parties, however, should be prepared to produce at the hear- 
 ing the freight bills and other exhibits bearing on the 
 amount of reparation, for the reason that they may become 
 necessary in developing other facts in the case. 
 
 When complaints for the recovery of damages have been 
 before the Commission informally and the parties have been 
 notified by the Commission that the complaint is- of such a 
 
BULBS OP PRACTICE. 8a 
 
 nature that it cannot be determined informally, or when 
 the parties voluntarily withdraw the complaint from in- 
 formal consideration, formal complaint thereon must be filed 
 within six months from the date of such notification or with- 
 drawal. Otherwise the parties will be deemed to have aban- 
 doned their complaint and the same will not be entertained : 
 Provided, however, That this rule does not apply to formal 
 complaints for the recovery of damages filed within two 
 years from the date of the delivery of shipments. 
 
RULES OF PRACTICE. 9 
 
 IV. 
 
 ANSWERS. 
 
 Answers must be typewritten on one side of the paper only, 
 or be printed. In either case the answer must conform to the 
 specifications of rule XXI. 
 
 One copy of each answer must, unless the Commission orders 
 otherwise, be filed with the secretary of the Commission at his 
 office in Washington, D. C, within 30 days after the day of 
 service of the complaint, by defendants whose general offices 
 are at or west of El Paso, Tex., Salt Lake City, Utah, or Spo- 
 kane, Wash., and within 20 days by all other defendants, and 
 a copy of each such answer must be at the same time served 
 personally or by mail upon the complainant or his attorney. 
 The Commission will, when advisable, shorten or extend the 
 time for answer. 
 
 Answers should be so drawn as fully and completely to 
 advise the complainant and the Commission of the nature of the 
 defense, and should admit or deny specifically and in detail 
 each material allegation of the complaint. Whenever it is 
 apparent from the complaint, either by direct allegation or 
 otherwise, that a departure from the requirements of the 
 fourth section of the act is involved, the answer should set 
 forth by number the particular application or order which 
 protects such departure. An answer denying that a discrimi- 
 nation is undue or unjust should explain fully wherein such 
 discrimination is not undue or unjust. It is desired that every 
 effort be thus made to narrow the issues upon hearing. 
 
 If a defendant satisfies a complaint either before or after 
 answering, a signed acknowledgment thereof must be filed by 
 both parties, stating when and how the complaint has been 
 satisfied. 
 
 V. 
 
 FORMAL CLAIMS FOR REPARATION BASED UPON FINDINGS OF 
 THE COMMISSION. 
 
 When the Commission finds that reparation is due, but that 
 the amount can not be ascertained upon the record before it, 
 the complainant should immediately prepare a statement in 
 
10 INTERSTATE COMMERCE COMMISSION. 
 
 accordance with Form 5, showing as to each shipment upon 
 which reparation is claimed the date of delivery, car initials 
 and number, points of origin and destination, route, commod- 
 ity, weight, rate applied, charges collected, rate found reason- 
 able and charges applicable thereunder, and the amount of 
 reparation payable upon the basis of the findings. 
 
 Such statements should not include any shipments which 
 were transported upon rates other than those included in the 
 Commission 's findings nor any shipments which were delivered 
 at destination more than two years before the complaint was 
 informally or formally presented to the Commission. The 
 statement should then be forwarded to the carrier which col- 
 lected the charges for certification as to its accuracy. Such 
 certification should cover not only the movement of the ship- 
 ments and the amount of charges but also the amount of 
 reparation claimed under the Commission's findings. Dis- 
 crepancies, duplications, or other errors in such statements 
 should be adjusted by the parties and an agreed statement 
 submitted to the Commission in accordance with Form 5. 
 
 VI. 
 
 SERVICE OF PAPERS. 
 
 Notices and copies of papers, other than complaints, depo- 
 sitions, and intervening petitions, must be served upon all 
 parties personally or by mail. When any party has appeared 
 by attorney, service upon such attorney will be deemed proper 
 service upon the party. 
 
 VII. 
 
 AMENDMENTS. 
 
 Amendments to any complaint or answer in any proceeding 
 will be allowed or refused by the Commission at its discretion. 
 
 VIII. 
 
 CONTINUANCES AND EXTENSIONS OF TIME. 
 
 Continuances and extensions of time will be granted or 
 denied by the Commission at its discretion. 
 
RULES OF PRACTICE. 11 
 
 IX. 
 
 STIPULATIONS. 
 
 Parties to any proceeding may, by stipulation in writing 
 filed with the secretary, or presented at the hearing, agree 
 upon the facts, or any portion thereof, involved therein. It 
 is desired that the facts be thus agreed upon as far as and 
 whenever practicable. 
 
 X. 
 
 HEARINGS. 
 
 When issue is joined upon formal complaint by service of 
 answer, or by failure of defendant to answer, the Commission 
 will assign a time and place for hearing. Witnesses will be 
 examined orally before the Commission or one of its examiners, 
 unless their testimony be taken by deposition or the facts be 
 agreed upon as provided for in these rules. 
 
 At hearings on formal complaint the complainant shall open 
 and close. At hearings upon applications for relief from any 
 provision of the act the applicant shall open and close. At 
 hearings of investigation and suspension proceedings the re- 
 spondent shall open and close. At hearings of all other investi- 
 gations, on the motion of the Commission, the Commission shall 
 open and close, except that upon proper notice in advance of 
 the hearing the Commission may prescribe a different order. 
 In hearings of several proceedings upon a consolidated record 
 the presiding commissioner or examiner shall designate who 
 shall open and close. Interveners shall follow the party in 
 whose behalf the intervention is made, and in all cases where 
 the intervention is not in support of either original party the 
 presiding commissioner or examiner shall designate the order 
 of procedure for such interveners. 
 
 XI. 
 
 DEPOSITIONS. 
 
 The deposition of a witness for use in a proceeding pending 
 before the Commission may, after issue joined, be taken in 
 compliance with the following rules of procedure, prescribed 
 under section 17 of the act, but not otherwise. 
 
12 INTERSTATE COMMERCE COMMISSION. 
 
 Such depositions may be taken before a special agent or 
 examiner of the Commission, or any judge or commissioner of 
 any court of the United States, or any clerk of a district court, 
 or any chancellor, justice, or judge of a supreme or superior 
 court, mayor or chief magistrate of a city, judge of a county 
 court or court of common pleas of any of the United States, 
 or any notary public not being of counsel or attorney to either 
 of the parties nor interested in the event of the proceeding or 
 investigation, according to such designation as the Commission 
 may make in any order made by it in the premises, except that 
 where such deposition is taken in a foreign country it may be 
 taken before an officer or person designated by the Commission 
 or agreed upon by the parties by stipulation in writing to be 
 filed with the Commission. 
 
 Any party desiring to take the deposition of a witness in 
 such a proceeding shall notify the Commission to that effect, 
 and in such notice shall state the time when, the place where, 
 and the name and post-office address of the party before whom 
 it is desired that the deposition be taken, the name and post- 
 office address of the witness, and the subject matter or matters 
 concerning which the witness is expected to testify, whereupon 
 the Commission will make and serve upon the parties or their 
 attorneys an order wherein the Commission shall name the 
 witness whose deposition is to be taken and specify the time 
 when, the place where, and the party before whom the witness 
 is to testify, but such time and place, and the party before 
 whom the deposition is to be taken, so specified in the Com- 
 mission's order, may or may not be the same as those named 
 in said notice to the Commission. 
 
 Every person whose deposition is so taken shall be cautioned 
 and sworn (or affirm, if he so request) to testify the whole 
 truth and nothing but the truth concerning the matter about 
 which he shall testify, and shall be carefully examined. His 
 testimony shall be reduced to typewriting by the officer before 
 whom the deposition is taken, or under his direction, after 
 which the deposition shall be subscribed by the witness and 
 certified in usual form by the officer. After the deposition 
 has been so subscribed and certified it shall, together with 
 two copies thereof made by such officer or under his direction, 
 
RULES OF PRACTICE. 13 
 
 be forwarded by such officer under seal in an envelope ad- 
 dressed to the Commission at its office in Washington, D. C. 
 Upon receipt of the deposition and copies the Commission will 
 file in the record in said proceeding such deposition and for- 
 ward one copy to the complainant or his attorney and the other 
 copy to the defendant or its attorney, except that where there 
 are more than one complainant or defendant the copies will 
 be forwarded by the Commission to the parties designated by 
 such complainants or defendants as the case may be. 
 
 Such depositions must be typewritten and must conform to 
 the specifications of rule XXI. 
 
 No deposition shall be taken except after 6 days' notice 
 to the parties, and where the deposition is taken in a foreign 
 country such notice shall be at least 15 days. 
 
 No such deposition shall be taken either before the proceed- 
 ing is at issue or, unless under special circumstance and for 
 good cause shdwn, within 10 days prior to the date of the hear- 
 ing thereof assigned by the Commission, and where the depo- 
 sition is taken in a foreign country it shall not be taken after 
 30 days prior to such date of hearing. 
 
 "Witnesses whose depositions are taken pursuant to these 
 rules and the magistrate or the officer taking the same, unless 
 he be an examiner of the Commission, shall severally be 
 entitled to the same fees as are paid for like service in the 
 courts of the United States, which fees shall be paid by the 
 party or parties at whose instance the depositions are taken. 
 
 XII. 
 
 WITNESSES AND SUBPOENAS. 
 
 Subpoenas requiring the attendance of witnesses from any 
 place in the United States to any designated place of hearing 
 may be issued by any member of the Commission. 
 
 Subpoenas for the production of books, papers, or docu- 
 ments (unless directed by the Commission upon its own mo- 
 tion) will issue only upon application in writing. Applications 
 to compel witnesses who are not parties to the proceedings, or 
 agents of such parties, to produce documentary evidence must 
 
14 INTERSTATE COMMERCE COMMISSION. 
 
 be verified and must specify, as nearly as may be, the books, 
 papers, or documents desired and the facts to be proven by 
 them. Applications to compel a party to the proceeding to 
 produce books, papers, or documents need only set forth in a 
 general way the books, papers, or documents sought, with a 
 statement that the applicant believes they will be of service in 
 the determination of the proceeding. 
 
 Witnesses whose testimony is taken orally are entitled to 
 the same fees as are paid for like services in the courts of the 
 United States, such fees to be paid by the party at whose 
 instance the testimony is taken. 
 
 XIII. 
 
 DOCUMENTARY EVIDENCE. 
 
 Where relevant and material matter offered in evidence is 
 embraced in a document containing other matter not material 
 or relevant and not intended to be put in evidence, such 
 document will not be received, but the party offering the same 
 shall present to opposing counsel and to the Commission true 
 copies of such material and relevant matter, in proper form, 
 which may be received in evidence and become part of the 
 record. 
 
 In case any portion of a tariff, report, circular, or other 
 document on file with the Commission is offered in evidence, 
 the party offering the same must give specific reference to 
 the items or pages and lines thereof to be considered. The 
 Commission will take notice of items in tariffs and annual 
 or other periodical reports of carriers properly on file with 
 it or in annual, statistical, and other official reports of the 
 Commission. When it is desired to direct the Commission's 
 attention to such tariffs or reports upon hearing or in briefs 
 or argument it must be done with the precision specified in 
 the second preceding sentence. In case any testimony in other 
 proceedings than the one on hearing is introduced in evidence, 
 a copy of such testimony must be presented as an exhibit. 
 When exhibits of a documentary character are to be offered 
 in evidence, copies should be furnished opposing counsel for 
 use at the hearing. 
 
RULES OF PRACTICE. 15 
 
 All exhibits showing rates or distances must, by proper 
 I. C. C. number reference, indicate the tariff authority for 
 the rates, and must also show by lines and junction points 
 the route via which the distances are computed, as well as 
 the authority for the distance scale used. 
 
 Whenever evidence can be condensed in tables, that method 
 of presentation should be adopted. 
 
 Where agreed upon by the parties at or after the hearing, 
 the presiding commissioner or examiner, if he deems advisable, 
 may permit the filing of specified documentary evidence as a 
 part of the record within a time to be fixed by him, but which 
 shall expire not less than 10 days before the date fixed for 
 filing and serving the opening brief. Documentary evidence 
 will not be received after the close of testimony except as above 
 provided. 
 
 XIV. 
 
 BRIEFS. 
 
 Unless otherwise specifically ordered, briefs may be filed 
 upon application made at hearings or upon order of the Com- 
 mission. Briefs must be printed in conformity with the speci- 
 fications of rule XXI, and contain an abstract of the evidence, 
 assembled by subjects, with reference to the pages of the 
 record whereon the evidence appears. There should be in- 
 cluded requests for specific findings which the parties think 
 the Commission should make. 
 
 Documentary exhibits should not be reproduced in briefs, 
 but may, if it is desired, be reproduced in an appendix to the 
 brief. Analyses of such exhibits should be included in the 
 abstract of evidence under the subjects to which they pertain. 
 In cases involving a discrimination in rates against one com- 
 munity or locality and in favor of another community or 
 locality, or otherwise involving a relationship of rates, and in 
 investigation and suspension cases, the party who is required 
 to file the first brief shall insert therein, opposite the statement 
 of the case, a small map or chart of the territory showing the 
 rate structure involved. The abstract of evidence should fol- 
 low the statement of the case and precede the argument. 
 Every brief of more than 20 pages shall contain on its front 
 
16 INTERSTATE COMMERCE COMMISSION. 
 
 flyleaves a subject index with page references, the subject 
 index to be supplemented by a list of all cases referred to 
 alphabetically arranged, together with references to pages 
 where the cases are cited. 
 
 Briefs for the various parties shall be filed in the same 
 order as governs in the taking of their testimony at hearings. 
 At the close of the testimony in each case the presiding com- 
 missioner or examiner will fix the time for filing and service 
 of the respective briefs as follows, unless good cause for varia- 
 tion therefrom is shown : For the opening brief, 30 days from 
 close of testimony; for the brief of the opposing party, 15 
 days after the date fixed for the opening brief ; for reply brief, 
 10 days after the date fixed for the brief of the opposing party. 
 Briefs of interveners shall be filed and served within the time 
 fixed for the brief of the party in whose behalf the intervention 
 is made, or within such other time as may be fixed by the pre- 
 siding commissioner or examiner. Briefs not filed with the 
 Commission and served so as to reach opposing counsel on or 
 before the dates fixed therefor will not be received except by 
 special permission of the Commission. Parties who fail to file 
 opening brief, as required by this rule, will not be permitted to 
 file reply to brief of opposing party. All briefs must be filed 
 with the secretary and be accompanied by notice, showing 
 service upon all opposing counsel who appeared at the hearing 
 or on brief, and 15 copies of each brief shall be furnished 
 for the use of the Commission, unless otherwise ordered. Ap- 
 plications for extension of time in which to file briefs shall be 
 by petition, in writing, stating the facts on which the applica- 
 tion rests, which must be filed with the -Commission at least 
 five days before the time for filing such brief. 
 
 ORAL ARGUMENT. 
 
 Oral argument will be had only as ordered by the Commis- 
 sion. Applications therefor shall be made at the hearing or 
 in writing within 10 days after the close of testimony. 
 
 XV. 
 
 I1EHEARINGS. 
 
 Applications for reopening a proceeding after final submis- 
 sion, or for rehearing or reargument after decision, must be 
 
KULES OF PRACTICE. 17 
 
 by petition stating specifically the grounds relied upon, and 
 copies thereof must be served by- the party filing the same 
 upon all opposing counsel who appeared at the hearing or on 
 brief. Application for rehearing that part of any case relat- 
 ing to reparation or other damage for past injuries must be 
 filed with the Commission within 60 days after service of the 
 order therein. 
 
 If such application be to reopen the proceeding for further 
 evidence, the nature and purpose of such evidence must be 
 briefly stated, and the same must not be merely cumulative. 
 If the application be for a rehearing, the petition must specify 
 the matters claimed to be erroneously decided, with a brief 
 statement of the alleged errors. If any order of the Commis- 
 sion is sought to be reversed, changed, or modified on account 
 of facts and circumstances arising subsequent to the hearing, 
 or of consequences resulting from compliance therewith, the 
 matters relied upon by the applicant must be fully set forth. 
 At least 10 copies of all such applications must be filed with 
 the Commission and be accompanied by notice showing service 
 upon all opposing counsel. Such adverse parties may file a 
 reply to such petition for rehearing or reopening within 10 
 days from the date of service upon them. Such reply must 
 be served upon the attorney for petitioner and 10 copies must 
 be filed with the Commission. 
 
 XVI. 
 
 TRANSCRIPTS OP TESTIMONY. 
 
 One copy of the testimony will be furnished by the Com- 
 mission for the use of the complainant and one copy for the 
 use of the defendant, without charge. If two or more com- 
 plainants or defendants have appeared at the hearing, such 
 complainants or defendants must designate to whom the copy 
 for their use shall be delivered. 
 
 In proceedings instituted by the Commission on its own 
 motion, including proceedings involving the suspension of 
 tariffs, no copies of testimony will be furnished without charge. 
 
18 INTERSTATE COMMERCE COMMISSION. 
 
 XVII. 
 
 COMPLIANCE WITH ORDERS. 
 
 When an order has been issued, the defendant or defendants 
 named therein must promptly notify the secretary of the Com- 
 mission on or before the date upon which such order becomes 
 effective whether or not compliance has been made therewith. 
 If a change in rates is required, the notification to the secre- 
 tary must be given in addition to the filing of proper tariffs. 
 
 XVIII. 
 
 APPLICATIONS UNDER FOURTH SECTION. 
 
 Any common carrier subject to the act to regulate commerce, 
 as amended, may apply to the Commission, under the proviso 
 clause of the fourth section, for such authorization as it is 
 empowered to grant thereunder. Such application must be 
 verified and conform to rule XXI. The application should 
 specify the places and traffic involved, the rates, fares, or 
 charges on such traffic for the shorter and longer distances, 
 the carriers other than the applicant which may be interested 
 in the traffic, the special nature of the case, the character of 
 the hardship claimed to exist, and the extent of the relief 
 sought by the applicant. Upon the filing of such application 
 the Commission will take such action as the circumstances of 
 the case require. 
 
 XIX. 
 
 SUSPENSIONS. 
 
 Suspensions of tariff schedules under section 15 of the act 
 will not ordinarily be considered unless application therefor 
 is made in writing at least 10 days before the time fixed in the 
 tariff for such rates to take effect. Applications for suspen- 
 sions must indicate the schedule affected by its I. C. C. num- 
 ber and give specific reference to the items against which 
 protest is made, together with a statement of the grounds 
 thereof. When application for the suspension of tariff 
 schedules is made, seven copies of such application should be 
 furnished. 
 
RULES OP PRACTICE. 19 
 
 XX. 
 
 INFORMATION TO PARTIES. 
 
 The secretary of the Commission will, upon request, advise 
 any party as to the form of complaint, answer, or other paper 
 necessary to be filed in any proceeding. 
 
 XXI. 
 
 SPECIFICATIONS OF COMPLAINTS, ANSWERS, BRIEFS, 
 PETITIONS, APPLICATIONS, ETC. 
 
 All complaints, answers, petitions, applications, depositions, 
 or other papers to be filed, if typewritten, must be on paper 
 not more than 8J inches wide and not more than 12 inches 
 long, and weighing not less than 16 pounds to the ream, folio 
 base 17 by 22 inches, with left-hand margin not less than 
 1J inches wide. The impression must be on only one side of 
 the paper. 
 
 Whenever such papers are printed they, as well as briefs, 
 must be in 10 or 12 point type, on good unglazed paper, 5£ 
 inches wide by 9 inches long, with inside margin not less than 
 1 inch wide, and with double-leaded text and single-leaded 
 citations. 
 
 XXII. 
 
 ADDRESS OF THE COMMISSION. 
 
 All communications to the Commission must be addressed 
 to Washington, D. C, unless otherwise specifically directed. 
 
APPROVED FORMS. 
 
 These forms may he used in cases to which they are applicable, with 
 such alterations as the circumstances may render necessary. 
 
 No. 1. 
 COMPLAINT. 
 
 BEFORE THE INTERSTATE COMMERCE COMMISSION. 
 
 The 
 
 Railroad Company, 
 - Railway Company. 
 
 [Insert corporate title, with- 
 out abbreviation, of car- 
 rier, or carriers, necessary 
 defendants.] 
 
 The complaint of the above-named complainant , respect- 
 fully shows : 
 
 I. That [complainant should here state nature and place 
 of business, also whether a corporation, firm, or partnership, 
 and if a firm or partnership, the individual names of the 
 parties composing the same.] 
 
 II. That the defendant above named is a [are] common 
 carrier engaged in the transportation of passengers and 
 property, wholly by railroad [or, partly by railroad and partly 
 
 by water], between points in the state of and points 
 
 in the state of , and as such common carrier is 
 
 [are] subject to the provisions of the act to regulate com- 
 merce approved February 4, 1887, and acts amendatory 
 thereof or supplementary thereto. 
 
 III. That [state in this and subsequent paragraphs, to be 
 numbered TV, V, etc., the matter or matters intended to be 
 complained of, naming every rate, rule, regulation, or practice 
 the lawfulness of which is challenged, and also each point of 
 origin and point of destination between which the rates com- 
 plained of are applied. Whenever practicable tariff references 
 should be given.] 
 
 [Where discrimination is charged, the facts constituting 
 the basis of the charge should be clearly stated; that is, if 
 the discrimination be under section 2, the person or persons 
 20 
 
RULES OF PRACTICE. 21 
 
 claimed to be favored and the person or persons claimed to 
 be injured should be named, and the kind of service and hind 
 of traffic, together with the claimed similarity of circum- 
 stances and conditions of transportation, should be set forth. 
 If the discrimination be under section 3, the particular person, 
 company, firm, corporation, locality, or traffic claimed to be 
 accorded undue or unreasonable preference or advantage, or 
 subjected to undue or unreasonable prejudice or disadvantage, 
 should be stated. If the discrimination be under section 4, the 
 particular provision of the section claimed to be violated — 
 that is, whether the long-and-short-haul provision or the 
 aggregate of intermediate rates provision — as well as the facts 
 constituting such violation should be stated.] 
 
 X. That by reason of the facts stated in the foregoing 
 paragraphs complainant has [have] been subjected to the 
 payment of rates [fares or charges] for transportation which 
 were when exacted, and still are, (1) unjust and unreasonable 
 in violation of section 1 of the act to regulate commerce, and 
 [or] (2) unjustly discriminatory in violation of section 2, 
 and [or] (3) unduly preferential or prejudicial in violation 
 of section 3, and [or] (4) in violation of the long-and-short- 
 haul [or, aggregate of intermediate rates] provision of section 
 4 thereof. [Use one or more of the allegations numbered 1, 2, 
 3, 4, according to the facts as intended to be charged.] 
 
 Wherefore complainant pray that defendant may be 
 [severally] required to answer the charges herein ; that after 
 due hearing and investigation an order be made commanding 
 said defendant [and each of them] to cease and desist from 
 the aforesaid violations of said act to regulate commerce, and 
 establish and put in force and apply in future to the trans- 
 portation of between the origin and destination points 
 
 named in paragraph hereof, in lieu of the rates [rules, 
 
 regulations, or practices] named in said paragraph, such other 
 maximum rates [rules, regulations, or practices] as the Com- 
 mission may deem reasonable and just [and also pay to com- 
 plainant by way of reparation for the unlawful charges 
 
 hereinbefore alleged the sum of , or such other sum 
 
 as, in view of the evidence to be adduced herein, the Commis- 
 sion shall determine that complainant is [are] entitled to 
 
22 INTERSTATE COMMERCE COMMISSION. 
 
 as an award of damages under the provisions of said act for 
 violation thereof], and that such other and further order or 
 orders be made as the Commission may consider proper in the 
 premises. 
 
 Dated at , 19 — . 
 
 [Complainant's signature.] 
 
 , No. 2. 
 ANSWER. 
 
 BEFORE THE INTERSTATE COMMERCE COMMISSION. 
 
 v. [-Docket No. 
 
 The Railroad Company. 
 
 The above-named defendant , for answer to the com- 
 plaint in this proceeding, respectfully state : 
 
 I. [Here follow appropriate and responsive admissions, 
 denials, and averments, answering the complaint paragraph 
 by paragraph.] 
 
 Wherefore defendant pray that the complaint in this 
 proceeding be dismissed. 
 
 The Eailroad Company, 
 
 By ■ , 
 
 [Title of officer.] 
 
 No. 3. 
 
 INTERVENING PETITION. 
 
 BEFORE THE INTERSTATE COMMERCE COMMISSION. 
 
 V. 
 
 Docket No. 
 
 Comes now your petitioner, , and respect- 
 fully represents that he has an interest in the matters in 
 litigation in the above-entitled proceeding and moves that 
 
RULES OF PRACTICE. 23 
 
 he may be allowed to intervene in and become a party to 
 said proceeding, and for cause of intervention says : 
 
 I. That [intervener should here state nature and place of 
 business, and whether a corporation, firm, or partnership, 
 etc.]. 
 
 Hi [Intervener should here set out specifically its interest 
 in the above-entitled proceeding in accordance with the last 
 paragraph of rule II of the rules of practice.] 
 
 Wherefore said prays leave to intervene 
 
 and be treated as a party hereto with the right to have notice 
 of and appear at the taking of testimony, produce and cross- 
 examine witnesses, and be heard in person or by counsel upon 
 brief and at the oral argument, if oral argument is granted. 
 
 Dated at , 19 — . 
 
 [Intervener's signature.] 
 
 No. 4. 
 PETITION FOR REHEARING. 
 
 BEFORE THE INTERSTATE COMMERCE COMMISSION. 
 
 V. 
 
 Docket No. 
 
 Comes now the complainant [or defendant] in the above- 
 entitled proceeding and respectfully petitions the Commis- 
 sion to grant a rehearing therein, and in support of said 
 petition respectfully shows : 
 
 I. [Eere set out specifically the matters claimed to be 
 erroneously decided, with a brief statement of the alleged 
 errors, in conformity, with rule XV of the rules of practice.] 
 
 "Wherefore petitioner prays that a rehearing be granted 
 in the above-entitled case and that the Commission enter such 
 further order or orders in the premises as to it may seem 
 reasonable and just. 
 
 Dated at , 19—- 
 
 [Petitioner's signature.] 
 
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GROUNDS OF PROOF IN RATE CASES 
 
 This subject is closely allied to the one of practice 
 before the Commission, and to the Act to Regulate Com- 
 merce, but as both of these subjects are covered else- 
 where in this course, we have purposely refrained from 
 quoting the Act or discussing procedure. 
 
 1. A Rate Case 
 
 Rate cases before the Interstate Commerce Commis- 
 sion under the Act to Regulate Commerce are of two 
 kinds: (1) a case in which a rate for the transportation 
 of property in interstate commerce is challenged as 
 being unreasonable, and (2) a case in which a rate is 
 complained of as being unduly discriminatory or unjustly 
 prejudicial to one locality, person, or particular descrip- 
 tion of traffic, and unduly favorable to another locality, 
 shipper, or description of traffic. 
 
 A complaint may challenge a large number of rates 
 on a commodity from a point or group of points at which 
 the commodity is produced to the market or markets to 
 which it is transported for consumption. Again, a rate 
 case may be brought by a business community and may 
 assail the whole schedule of rates to or from such com- 
 munity under one or both of the above-mentioned heads. 
 
 When rates are unreasonable in the opinion of the 
 Interstate Commerce Commission, they are in violation 
 of section 1 of the Act, which says that all rates for 
 the transportation of persons or property in interstate 
 
 1 
 
2 GKOUNDS OP PROOF 
 
 commerce must be "just and reasonable." Section 15 
 vests in the Commission tbe power to say, after a full 
 hearing thereon to all parties interested, what is a just 
 and reasonable rate. As illustrating how conclusive 
 and final the finding of the Commission is as to the 
 reasonableness of a rate, attention is called to a case 
 where the carrier admitted the rate to be unreasonable, 
 yet the Commission did not so find. 1 In proceedings 
 under section 1, therefore, the complaint must allege jthat 
 the rate or rates attacked are unjust, unreasonable, and 
 in violation of section 1 of the Act. 
 
 The other kind of rate case raises the issue that rates 
 are unjustly discriminatory or unduly prejudicial. Sec- 
 tions 2 and 3 of the Act prohibit rates of this character. 
 When attacking rates on this ground, the complaint must 
 allege that the rates are unjustly discriminatory in 
 violation of section 2 of the Act, or unduly prejudicial 
 to one shipper, locality, or description of traffic, and 
 unduly preferential to another, in violation of section 3. 
 Here, again, Congress leaves to the Commission's dis- 
 cretion the determining power. There is a distinction 
 between sections 2 and 3 that will be pointed out later. 
 
 2. Our Present Scope 
 
 The post of Interstate Commerce Commissioner is an 
 exalted one in our federal government. Where can one 
 point to any group of men that exercises greater powers 
 under law than does this tribunal? It regulates the 
 transportation charges of the greatest commercial nation 
 in history — transportation charges which are the life- 
 blood of a score of billions of invested capital in the 
 
 1 26 I. C. C. Eep. 6. 
 
GROUNDS OF PROOF 3 
 
 railroads— transportation charges which mean pros- 
 perity or adversity to vast industries and whole com- 
 munities and which, therefore, affect quite directly and 
 personally every citizen of the republic. 
 • It is to the judgment of men possessing the ability 
 and experience to occupy a post of the kind just 
 described that one must bring his proof in his attack 
 or in his defense of railroad rates under the act of 
 Congress. Surely, therefore, there is present every 
 incentive to know just what is the best and most 
 approved method of winning the Commissioners ' favor- 
 able consideration of a case that is worth presenting to 
 the Commission. Experience in such matters is a most 
 valuable asset, but in the large number of formal cases 
 annually presented to the Commission (a thousand or 
 more) from all parts of a vast country, there must always 
 be a heavy percentage of new ' ' appearances ' ' at the bar 
 of this tribunal. Many of these men are hopelessly lost 
 before they are well started with their cases. 
 
 Counsel and advice before undertaking the trial of a 
 rate case would in recent years have saved a vast sum 
 of money and countless days of labor in working up and 
 presenting to the Commission evidence which it has felt 
 compelled to brush aside and shut off from view in 
 deciding the case, because some legal, financial, economic, 
 or traffic principle had been quite wholly overlooked in 
 the course of preparation for trial. 
 
 It is all too common an experience at the Commission 
 for those who are engaged in analyzing and marshaling 
 the facts in presented cases to be compelled to pass over 
 quantities of evidence placed in the record because it 
 rests upon a false and misleading theory; evidence, 
 which if followed, would lead the Commission so far 
 
4 GROUNDS OF PROOF 
 
 astray that its opinion would fail to win the approval 
 of sound-thinking men, and would compel a court to 
 upset any finding and order of the Commission based 
 thereon. 
 
 There is a vast opportunity for individual action 
 and ingenuity in planning a rate contest, as well as for a 
 difference of opinion as to what should or should not be 
 controlling in passing upon particular issues and rates. 
 Every traffic manager and every rate "expert" has his 
 own particular theories. But passing these all over, the 
 important point for us is to approach a rate case from the 
 standpoint of the Interstate Commerce Commission (one 
 might well say from the standpoint of the individual 
 Interstate Commerce Commissioners, as their particular 
 views and theories are known and understood) and so far 
 as possible to present only those facts, principles, and 
 arguments as one has good reason to believe will appeal 
 to the seven men in whose hands the decision of the case 
 finally rests. 
 
 The countless grounds upon which rate cases might 
 be fought out before the Commission are so broad and 
 far-reaching that it will be necessary at the outset to 
 place certain limits, beyond which we shall not venture. 
 
 Taking the general issues of unreasonableness and of 
 unjust discrimination in freight rates, we shall attempt 
 to point out the primary facts and arguments that when 
 presented to the Commission will have a tendency to 
 convince the minds of the Commissioners of the correct- 
 ness of the stand taken that the rates in question are or 
 are not in violation of the Act. 
 
 Among the many kinds of evidence that may be pre- 
 sented in a rate case it will not be denied that some of 
 them carry great weight with the Commission, while 
 
GROUNDS OF PROOF 5 
 
 others have but slight bearing upon the outcome of the 
 
 case. 
 
 3. What the Commission Considers 
 
 In order to determine what subjects should be dis- 
 cussed herein as controlling the action of the Commis- 
 sion, an analysis was made of the current printed 
 volume of the Commission's decisions to see, if possible, 
 what were the potent facts and arguments that were 
 being relied upon by the Commission in rendering its 
 decisions. The volume in question contained decisions 
 in eighty cases that may be denominated rate cases. We 
 divided these into (1) cases raising the issue of unrea- 
 sonableness under section 1 of the Act, (2) cases raising 
 the issue of unjust discrimination under sections 2 and 3 
 of the Act, (3) cases involving both unreasonableness 
 and unjust discrimination. 
 
 It appears from a study of these cases that the most 
 frequently used character of evidence that is being 
 considered by the Commission is the comparison of rates. 
 That is to say, the complainant before the Commission, 
 or the carrier defending its rates, points to other rates 
 that the carriers or the Commission have established and 
 which are presumed to be reasonable. From these it is 
 argued that the rates in question are or are not reason- 
 able. This form of proof was employed in sixty-eight 
 of the eighty rate cases. Moreover, the Commission 
 based its decision in whole or in part in these cases 
 upon that character of evidence. 
 
 The next most important subject found to be con- 
 trolling the action of the Commission was the character 
 of service demanded of the carrier by the particular 
 
6 GROUNDS OF PROOF 
 
 traffic, that is to say, the comparative expense to the 
 carrier in transporting the commodity involved. The 
 decisions in twenty-one of the eighty rate cases depended 
 in whole or in part npon evidence of this character. 
 
 Comparative distance the traffic was hauled was the 
 basis of decisions in twelve of the cases. Volume of the 
 tonnage moving and value of the commodity hauled are 
 mentioned by the Commission as the basis of its deci- 
 sion, at least in part, in several of the cases. 
 
 Only from the data obtained after this analytical 
 study of the current opinions of the Commission can 
 one venture to offer suggestions as to matter of proof 
 in rate cases that can with confidence be relied upon 
 as being material to the issues presented in the trial 
 of rate cases before the Interstate Commerce Commis- 
 sion at the present time. 
 
 4. Basis of Rate Regulation 
 
 Common carriers are engaged in what is known as a 
 public calling. Moreover, they possess certain powers 
 of government which have been conferred upon them, 
 such as the power of eminent domain to take the prop- 
 erty of private individuals upon compensation therefor. 
 Hence, they have always been subjected to public regula- 
 tion as to their charges, under the common law. Prior 
 to the advent of Commissions, a shipper could recover 
 an unreasonable charge through the cumbersome process 
 of a suit in court. He did not always have an action, 
 however, for a discriminatory rate. 
 
 While the fundamental basis of federal regulation is 
 the provision in the Constitution conferring upon 
 Congress the power to regulate commerce, the power 
 
GROUNDS OF PROOF 7 
 
 of the Interstate Commerce Commission to regulate the 
 rates of carriers is not as broad or as unlimited as this 
 common-law power or even as inclusive as the power of 
 Congress under the constitutional provision. 
 
 The Commission can exercise only such portion of the 
 commerce power as is expressly stated in the Act to 
 Eegulate Commerce. In making its decisions there- 
 under, it must put its finger upon the actual wording 
 of the statute as justification for whatever it does. As 
 might naturally be suspected, therefore, the Commission 
 has been taken into court many times on the plea that 
 in reaching its decision it exceeded its statutory author- 
 ity. The courts have had no hesitancy in annulling the 
 action of the Commission whenever it has gone beyond 
 the confines of the Act no matter how laudable the 
 purpose of the Commission may have appeared. The 
 Commission cannot base rates on wise policy. 2 
 
 There is an impression abroad that the Act to Eegu- 
 late Commerce was, for the most part, intended to 
 correct unjust discriminations in the transportation 
 charges and practices of railroads. It has been so 
 stated in the decisions of courts and in the reports of 
 the Commission, but that impression is hardly borne 
 out by the figures above given, which show that over 
 half the cases raised the issue of unreasonableness. 
 
 5. Cases Involving All the Bates op a Carrier 
 
 Cases involving ' the reasonableness of a whole or a 
 substantial portion of a schedule of rates of the carriers 
 should be clearly distinguished from the ordinary rate 
 case arising upon the complaint of a shipper or group 
 
 "219 u. S. 443. 
 
8 GROUNDS OP PROOF 
 
 of shippers. It is almost inconceivable that a single 
 complainant or even a body of shippers would undertake 
 to upset the entire schedule of a carrier or group of 
 carriers. No one has ever undertaken this herculean 
 task. The interstate law requires the complainant to 
 set out definitely the rates attacked, and then he must 
 prove his allegations. 
 
 The carriers several times have alleged that their net 
 revenues were too low, and have demanded that the 
 Commission enter a finding upon that issue when passing 
 upon wholesale advances proposed by the carriers. The 
 carriers have never yet pointed to any place in the 
 statute empowering the Commission to enter a finding 
 that the net revenues of the carriers are insufficient. 
 The law merely says that the Commission can fix a 
 just and reasonable rate. The courts have never yet 
 determined that the Commission possessed any power 
 under the statutes to pass upon such an issue and deter- 
 mine that the net revenues of the carriers were insuffi- 
 cient. The letter of the Act requires the Commission to 
 pass upon the lawful character of the rates themselves, 
 and the most that can be said of the effect of the evi- 
 dence dealing with the revenues of the carriers is that 
 it might have some bearing upon the reasonableness 
 per se of the individual rates. It is true that in the 
 1914 Five Per Cent Case 3 a majority of the Commission 
 found that the revenues of the eastern carriers were 
 deficient and for that reason permitted a general advance 
 in rates. It is quite significant, however, that when 
 the western carriers in 1915 in a similar proceeding 
 demanded of the Commission a finding that their 
 revenues were insufficient, a majority of the Commission 
 declined to enter any such finding and proceeded to 
 
GROUNDS OF PROOF 9 
 
 dispose of the proposed rates upon the separate com- 
 modities involved as though they were individual and 
 separate rate cases. The Commission permitted some 
 of the advances and denied others and wholly ignored 
 the issue raised by the carriers as to their need of 
 revenue. 381 The carriers filed a vigorous petition for 
 rehearing, demanding that the Commission enter a find- 
 ing as to whether or not the revenues of the carriers 
 are sufficient. This was summarily denied. 4 
 
 Certain states have prescribed schedules for a sub- 
 stantial portion of the tonnage moving in state com- 
 merce, and the courts in passing upon these rates have 
 held that the carrier is entitled to a reasonable return 
 upon the value of the property devoted to the public 
 use. While a proceeding of this character affects all 
 the rates, no question of the unreasonableness per se 
 of a particular rate or rates is raised. 
 
 In deciding the 1915 advance rate case the Commis- 
 sion based its findings upon the ordinary grounds- of 
 proof in rate cases, which we shall proceed to discuss. 
 
 6. "Just and Reasonable Rates" Undek Section 1 
 of the Act 
 
 Section 1 provides that all charges shall be just and 
 reasonable. This expression does' not mean that a rate 
 is unjust and unreasonable because it is discriminatory. 
 
 3 32 I. C. C. Eep. 325. 
 3a 35 I. C. C. Eep. 497. 
 
 4 In the 1915 case the writer argued against the right of the Commission 
 to do more than pass upon the lawfulness of the rates themselves. Judge 
 Clement's dissenting opinion in the Eastern 1914 Case (32 I. C. C. Rep. 
 336) is an able discussion of this law point. 
 
10 GEOUNDS OF PROOF 
 
 Section 1 does not lean on any other section. It is full 
 and complete within itself. It means that the rate must 
 be a fair price to the carrier for the transportation 
 service it performs and that it must likewise be a just 
 one to the shipper for the transportation service that 
 he receives. Forty-nine of the eighty rate cases in the 
 current volume of the Commission's reports raised only 
 the general issue of unreasonableness of the rates 
 inherently. 
 
 When a shipper complains to the Commission that 
 his rate is unjust and unreasonable and in violation 
 of section 1, and the carrier answers denying that that 
 is so, a direct issue as to the reasonableness of the 
 rate is joined, and Congress has named the Interstate 
 Commerce Commission as the deciding tribunal. 
 
 Assuming that the simple steps provided in the statute 
 have been followed 5 until the issue is joined and the 
 case set for a hearing, the burden is upon the complain- 
 ant (if the rate has not been advanced since January 1, 
 1910) to proceed with the presentation of the evidence 
 and the arguments that he relies upon to convince the 
 Commission of the correctness of his complaint. The 
 simplest case of this character would be one involving 
 a single rate upon a single commodity between two 
 points. A more complex issue would be one involving 
 rates on a large number of commodities between a 
 large number of points, or one involving the rate on the 
 same commodity but between numerous points, or still 
 again one involving rates on a number of commodities 
 between two or a limited number of points. 
 
 Be it understood that in the present quest we are 
 
 5 Fully explained in Procedure Before the Interstate Commerce Com- 
 mission. 
 
GROUNDS OF PROOF H 
 
 passing over entirely what the lawyer calls the obiter 
 dicta, or general discussions in the decisions, and are 
 attempting to go directly to what is called in legal 
 phraseology the ratio decidendi, the reason for the 
 decision. 
 
 In the passing of the years since 1887, when the Com- 
 mission was instituted, there have been mentioned many 
 theories and arguments upon which to base or justify 
 rates of transportation. We are interested only in those 
 that have survived to the present day and are now 
 recognized as possessing weight in the deliberations of 
 the Commission. The Commission has itself ceased to 
 give weight to certain theories that it once recognized, 
 and it now considers of much importance certain prin- 
 ciples that it once passed over quite entirely. The 
 courts have from time to time narrowed the scope of 
 the Commission's view by pointing to matters that it 
 had erroneously considered and which therefore ren- 
 dered its opinion a nullity. It might be added that 
 shippers still continue to base complaints upon these 
 discarded theories in apparent ignorance of just what 
 the Commission can or cannot lawfully consider. 
 
 It may be a matter of surprise to some to learn 
 that many years ago the Commission announced that 
 the relative cost of service to the carrier could not 
 enter into the making of a rate. It was thought by the 
 Commission at that time that the "value of the service 
 to the shipper" was a most important feature for con- 
 sideration. At the present day the relative importance 
 of these theories has become reversed, and in many 
 cases the relative expense of the service to the carrier 
 is a most important feature. The value of the service 
 to the shipper was said to mean that the commodity 
 
12 GROUNDS OF PROOF 
 
 reached the market at a profit to the shipper. It was 
 soon discovered that a public body could not employ any 
 such theory as this and do justice to all parties before it, 6 
 and it has been practically abandoned as hereinafter 
 pointed out. 
 
 (a) Rate Comparisons 
 
 An examination of the Commission's current opinions 
 indicates that comparison between rates is a common 
 and accepted method of making proof of the reason- 
 ableness or unreasonableness of rates. Such proof is 
 predicated upon the theory that the rates used for the 
 standard of comparison are just and reasonable rates, 
 and they should therefore be looked at from this point 
 of view before they are offered. The value of rate 
 comparisons also depends upon whether or not the con- 
 ditions surrounding the rates attacked are substantially 
 similar to those surrounding the rates used by way of 
 comparison. Great danger lurks in the superficial use 
 of comparitive rates as evidence in rate cases. A rate 
 comparison is a valuable tool when properly used, but a 
 hazardous one in the hands of a novice. Everyone 
 familiar with the trial of rate cases has witnessed the 
 crumbling of many rate proceedings because they were 
 based upon ill-advised rate comparisons. 
 
 Your comparison may be with rates upon the same 
 commodity applying elsewhere in the country. In intro- 
 ducing such evidence it is of advantage to show that 
 the comparative rates operate under similar conditions 
 to the rates attacked. In other words, the true status 
 of the relationship between the rates attacked and the 
 
 6 Abbott v. E. T. V. & G., 2 I. C. C. Rep. 436. 
 
GROUNDS OP PROOF 13 
 
 rates used for comparison should be brought out. Every 
 effort should be taken to guard against any surprise 
 in this direction. It should be known whether or not 
 the traffic is actually moving upon the rates used for 
 comparison, for if nothing is moving upon them they 
 are of little evidentiary value, and are appropriately 
 denominated "paper rates" by the Commission. 
 
 Furthermore, much risk is involved in the use of rates 
 for purposes of comparison until one knows as much 
 about the history of the rates so used as he does about 
 his own rates which he is attacking. Opposing counsel 
 will leave no stone unturned to show that the condi- 
 tions are different. In order to give your comparisons 
 weight, show: 
 
 1. That the comparative rates were not forced upon 
 the carrier by competition of any kind. 
 
 2. That they are not intrastate rates and therefore 
 forced by state authority. 
 
 3. That the conditions of transportation are similar. 
 
 4. That the cost of service is not greater in the 
 case of the rates attacked than is true of the rates 
 used for comparison. 
 
 5. That the volume of traffic under the two sets of 
 rates is comparable. 
 
 6. That the comparative rate does not apply upon 
 a lower grade or value of the commodity in question. 
 
 7. What difference, if any, in the minimum carload 
 weights or the rules governing the movement. 
 
 8. That they are not controlled by the long-and-short- 
 haul requirements. 
 
 These and other surrounding circumstances absolutely 
 control the strength or weaknesses of rate comparisons, 
 and it is readily seen that much depends upon the 
 
14 GROUNDS OP PROOF 
 
 wisdom and care with which comparative rates are 
 selected. 
 
 To avoid an embarrassing outcome to any shipper or 
 carrier who has to rely upon comparative rates, whether 
 such rates have been fixed by the Commission in other 
 cases or have been voluntarily published by the carriers, 
 the rates should be made the subject of patient study 
 until one knows their complete history and application; 
 what the basis of the rates was originally; how the 
 rates are published and how they are constructed; 
 whether they are joint or combination rates, local or 
 proportional, the Commission holding that rates should 
 be compared with like kind of rates. 7 
 
 As an illustration of the force and effect of compara- 
 tive rates, Table 1 is taken from a proceeding which 
 attacked, a rate of 7y 2 cents per 100 pounds for the 
 movement of cement in carloads to a large consuming 
 market from a group of mills averaging a distance of 
 110 miles from said market. 
 
 A table dealing with such widely scattered territories 
 as this one does must, of course, be very general in 
 character and, if necessary, the circumstances and con- 
 ditions surrounding each rate should be explained. It 
 is hardly likely, however, that any great number of the 
 rates offered for comparison would cover transportation 
 under more favorable conditions than the transporta- 
 tion under the rate attacked. As a matter of fact, in 
 the case in question the relative expense of the service 
 to the carrier under the rate attacked was far more 
 favorable than under any of the rates offered for com- 
 parison, and the table shown had compelling force in 
 the disposition of the case. 
 
 ' Conference Ruling 304. 
 
GROUNDS OF PROOF 15 
 
 TABLE 1 
 
 Rate in 
 
 t, i, , „ , , ~ „ Miles Cents 
 
 Portland, Colo., to Denver, Colo 146 5 
 
 Portland, Colo., to Trinidad, Colo 175 5 
 
 Mason City, Iowa, to Minneapolis, Minn 152 5 
 
 Utica, 111., to Milwaukee, Wis 185 5 
 
 Coldwater, Mich., to Chicago, 111 156 5 
 
 Hannibal, Mo., to St. Louis, Mo 120 4 
 
 Syracuse, Ind., to Chicago, 111 118 4% 
 
 Sugar Creek, Mo., to St. Joseph, Mo 107 4 
 
 Sugar Creek, Mo., to Kansas City, Mo 12 1% 
 
 Bonner Springs, Mo., to Kansas City, Mo 17 1% 
 
 The obvious deduction from this table is that a rate 
 of 71/2 cents for a distance of 110 miles is "out of line," 
 as the traffic man says, and "unreasonable per se," as 
 the commerce attorney would put it, both meaning that 
 the 7y 2 cent rate is in violation of section 1 of the Act. 
 
 Frequently the comparison consists of rates on other 
 commodities but which are in some way analagous to 
 the commodity in question. Whatever the comparative 
 commodity may be, its analogy or lack of analogy to the 
 commodity in question should be definitely pointed out 
 on the record. If it is such an article that it should 
 take the same rates as the commodity in question, that 
 should be demonstrated. If the rates upon the com- 
 modity concerning which the case is about might well 
 be somewhat lower than the rates upon the commodity 
 compared, that fact should be emphasized. If any 
 indorsement is needed for judging rates, by comparisons, 
 there is a recent one from the Supreme Court of the 
 United States in the Nashville Coal Case (238 U. S. 15), 
 upholding a decision of the Commission which used com- 
 parisons in fixing reasonable rates. 
 
 (b) Relative Expense to the Carrier of Hauling the 
 Commodity 
 
 The relative cost of the service to the carrier has now 
 
16 GROUNDS OF PROOF 
 
 become a matter of chief concern in many of the rate 
 cases before the Commission. This does not mean the 
 absolute cost, in dollars and cents, of rendering a par- 
 ticular service, but rather the relative cost compared 
 with the cost of transporting other commodities moving 
 in interstate commerce or with the average cost of 
 moving all commodities that move upon the rails of the 
 carrier involved. 
 
 This relative expense to the carriers in rendering 
 service in the transportation of a certain commodity 
 may be shown by an introspective analysis of the 
 transportation characteristics connected with the par- 
 ticular commodity. 
 
 1. If it is carload traffic, does the article load heavily 
 per car? The carload is said by the Commission to be 
 a fair unit of comparison. 
 
 2. Are there frequent damage claims filed by the ship- 
 pers of a particular commodity? Frequent or excessive 
 claims upon traffic make for higher rates. 
 
 3. What are the facts as to the empty movement of the 
 cars serving the traffic in question? Is the traffic in 
 the commodity in question moving with or against the 
 current of empty equipment? 
 
 4. Is there a loaded movement both ways? For 
 instance, is raw material moving into an industry in the 
 same class of vehicle that the product moves out, and can 
 a car be loaded at the same spot where unloaded? 
 
 5. Is the equipment of such character that it must be 
 empty when it moves back for new loads, as a tank car, 
 for example, or other special equipment? 
 
 6. Does the commodity in question leave refuse in the 
 car or damage, soil, or corrode the equipment in any 
 way? 
 
GROUNDS OF PROOF 17 
 
 7. Is it necessary to brace the commodity in the cars 
 with cleats or stanchions nailed to the permanent wood- 
 work of the cars? 
 
 8. Does the traffic in the commodity in question move 
 uniformly and steadily or does it move only at certain 
 seasons of the year? Uniform movement is less costly 
 than irregular movement. 
 
 9. Does the traffic in question require any special serv- 
 ice at the hands of the carriers or does it move in the 
 general run of box-car equipment on regular trains? 
 
 10. How many carriers are involved in the haul? 
 
 11. Is the commodity fragile or subject to damage 
 while in transportation, and if subject to damage would it 
 entail a total loss or would there be heavy salvage due 
 to the nature of the commodity? 
 
 12. Is it a commodity that is conveniently and ade- 
 quately packed for shipment? 
 
 13. What are the physical characteristics of the haul? 
 Are the grades and curvatures of the track excessive? 
 
 14. Is much required in the way of terminal or switch- 
 ing service, reconsignment en route, transit practices, or 
 reshipment? 
 
 15. Are the cars unduly detained in the service, and 
 does the shipper furnish his own cars? 
 
 16. What is the length of haul of the particular traffic? 
 These are the chief transportation characteristics 
 
 which must be thoroughly considered by both sides to 
 the controversy, for it may well be assumed that the 
 side in whose favor the facts may be, will not fail to 
 bring them out. The opposing side should be prepared 
 to modify or offset the effect of such testimony by 
 showing such of the transportation characteristics of 
 the commodity as may rebut the showing made. 
 
18 GROUNDS OF PROOF 
 
 In a few cases the attempt has been made to figure the 
 absolute cost of moving certain commodities of very- 
 heavy tonnage usually moving in trainloads. The Com- 
 mission has carefully considered such evidence, calling 
 attention to the fact that there are certain items of 
 cost that cannot be" actually allocated to any particular 
 traffic. However, a large per cent of the cost can be 
 so allocated and the doubtful items apportioned upon an 
 arbitrary basis that approaches more or less the actual 
 cost. In the future it is reasonable to expect that in a 
 few cases involving very heavy tonnage it will be well 
 worth while to go into this method of proof. In fact, 
 the Commission has stated as much. 8 Its use, however, 
 will be limited because of the small number of cases 
 involving sufficient tonnage and the expense of employ- 
 ing expert accountants. 
 
 It does not follow that even though the exact cost 
 of moving the traffic could be ascertained and a profit 
 added thereto, the Commission would feel called upon 
 to fix absolutely the rate upon the result that is reached. 
 The cost of the service is only one of many elements 
 entering into the making of a rate, and everyone familiar 
 with traffic matters knows that there must always be 
 a large number of commodities the charges upon which 
 bear little or no relation whatever to the actual cost of 
 the service. 
 
 The average cost of moving all traffic on a particular 
 railroad or on all the railroads in the United States may 
 be ascertained from the statistics published annually by 
 the Commission. The specific items desired will prob- 
 ably not be shown in the statistics, but sufficient informa- 
 
 8 1910 Advance Rate Case, 20 I. C. C. Rep. 357; 22 I. C. C. Rep. 604; 
 24 I. C. C. Rep. 285. 
 
GROUNDS OF PROOF 19 
 
 tion as to other items will there appear to enable one 
 to compute for himself much valuable data. These 
 figures, of course, relate to the average of all traffic 
 moving, and this includes long hauls and short hauls, 
 high-grade traffic and low-grade traffic, traffic moving 
 over trunk lines of heavy tonnage and over branch lines 
 of light traffic density and high cost of service, carload 
 and less-than-carload traffic. All these elements and 
 others which may arise in specific cases have a direct 
 bearing upon the use of such figures. One should not 
 use evidence of this character until fully satisfied as to 
 the bearing that such elements, information, and data 
 may have upon the particular traffic concerning which 
 the rates are in question. 
 
 An example of how the statistics of the Commission 
 may be used is as follows : The statistics will show the 
 individual carrier's total rail operating expenses plus 
 the taxes. They will also show the revenue car miles. 
 From these figures may be computed the cost of moving 
 a loaded car for one mile on a particular road, but as 
 this figure will include passenger service it may be 
 assumed that the freight cost would be actually lower 
 than the result obtained. Therefore, in using the figure 
 in connection with freight rates, it might be assumed 
 that the average cost of moving a loaded freight car 
 for one mile would be somewhat less than the figure 
 obtained. 
 
 The statistics will also show the average number of 
 tons per car, and therefore the cost of moving one ton 
 for one mile for that particular road on all traffic 
 can be obtained. From this result, using the average 
 load per car of the commodity in question and the 
 distances involved in the particular rate case, one can 
 
20 GROUNDS OF PROOF 
 
 obtain a figure representing the cost of moving a oar 
 of the commodity in question between two points and 
 compare such cost with the actual revenue that the 
 carriers collect for the service. This figure-will throw 
 some light on the profit there may be in the transaction 
 for the railroad company. The result, however, can only 
 approximate what the actual figure would be. If the 
 movement were over a branch line, the cost would be 
 in excess of the average on all traffic. If over a main 
 line, the service would cost less than the average 
 on all traffic. 
 
 From the official statistics many valuable comparisons 
 can be worked out, showing the facts as to the particular 
 traffic in question when compared with the average upon 
 all traffic moving over the different carriers' lines. 
 
 As an illustration of one way in which the Commis- 
 sion's statistics can be used, Table 2 is a reproduction of 
 an exhibit which was offered in a case attacking the 
 rates on paper from Kalamazoo, Michigan, to various 
 points. It will be observed that the average revenue 
 upon all traffic on the Michigan Central Railroad was 
 6.67 mills per ton per mile for an average haul of 158 
 miles. On paper, however, from Kalamazoo for about 
 the same distance its earnings were twice the average 
 on all traffic, being in some cases in excess of 12 mills. 
 It might be added that the testimony in this case 
 brought out forcibly the transportation characteristics 
 of paper as a commodity, and the record showed that 
 paper was about an average commodity. That is to say, 
 it was not as high a class of traffic as many articles 
 (furniture, for example), nor was it as low a grade of 
 traffic as many commodities that are moving (coal, for 
 example). A careful analysis of all the transportation 
 
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22 GROUNDS OF PROOF 
 
 characteristics of paper as a commodity (shown on page 
 16 ante) indicated that it was about the average of all. 
 Therefore, it might reasonably be expected that the 
 earnings upon the rates on paper would be about the 
 average earnings upon all traffic, and, with respect to 
 paper rates in the country generally, such was shown 
 to be the fact. 
 
 The commodity in question should be carefully con- 
 sidered from every point of view to ascertain whether 
 it is a high-class or a low-class traffic in the parlance 
 of railroad men, or whether it is an average commodity. 
 If it is an average commodity it might well be compared 
 with the average statistics on all traffic, such as above 
 indicated. If it is a high-class traffic, it should pay 
 rates which earn somewhat higher than the average on 
 all, and if a low-class traffic, it might well pay earnings 
 lower than the average on all traffic. In determining 
 just what character of traffic the commodity in question 
 may be, the transportation characteristics hereinabove 
 referred to should be considered, such as the weight of 
 a carload of the commodity, its value, the character of 
 service it requires, etc. 
 
 There can be no doubt that in passing upon the 
 reasonableness of a rate on a particular commodity a full 
 exposition of the facts above discussed is of great help 
 to the Co mm ission. It serves to put the commodity in 
 its proper relationship with all the other commodities 
 moving, and it discloses whether or not the commodity 
 is receiving fair or abnormal rates of transportation. 
 While evidence as to relative cost of service is exceed- 
 ingly important in many cases, one should not lose sight 
 of the fact that it is comparative in character and that 
 it is but a part of the many elements that may enter 
 
GROUNDS OF PROOF 23 
 
 into the reasonableness of a rate. In connection with 
 certain commodities its value may be very small indeed. 
 
 (c) Distance the Traffic is Hauled 
 
 The Commission is entitled to detailed figures giving 
 the distances and the rates attacked or those used for 
 comparison. This can best be placed in the record by 
 means of tabulations setting out the mileages and routes 
 via which the rates apply. The distances offered should 
 fairly reflect actual conditions. The Commission has 
 said that it would consider the distances via the short 
 feasible routes. This does not mean the shortest pos- 
 sible route that can be figured via the lines of half a 
 dozen or more carriers. A good traffic witness can tell 
 at a- glance what is a short, workable, natural route for 
 the movement of the traffic. He will save himself much 
 embarrassment on cross-examination if he applies the 
 rule of reason to his distances, and refrains from exer- 
 cising his ingenuity in working out the shortest possible 
 distance regardless of all other considerations. 
 
 It is a common error in rate cases to offer distances 
 that do not stand up under cross-examination. Under 
 the law a carrier is not compelled to short-haul itself. 
 That is, it is entitled to handle traffic coming on its line 
 for a considerable distance towards the point of des- 
 tination before turning it over to a connection, if its 
 line runs in that general direction, and provided no 
 injustice is done the traffic by compelling it to pay for 
 long, roundabout, expensive service when there is a 
 shorter feasible route. 
 
 When long lines desire to participate in certain com- 
 petitive traffic, they are at liberty to do so, provided they 
 
24 GROUNDS OF PEOOP 
 
 do not haul the same at less than cost, and therefore add 
 to the expense of other traffic. But when the reasonable- 
 ness of the rates is brought in question, the service over 
 such a line is manifestly more expensive than over a 
 shorter workable route. For that reason a reasonable 
 rate should be determined by the distance and earnings 
 over the shorter workable or feasible route. 9 
 
 In the matter of determining what mileage distances 
 shall be offered to the Commission, the traffic witness 
 must be a man of experience in the territory in question, 
 and must offer convincing testimony of the reasonable- 
 ness of the distances and routes which he places in evi- 
 dence. 
 
 Rates are not made absolutely on distance any more 
 than they are made absolutely on any one of a large 
 number of bases. Distance is usually one of the factors 
 that may enter into the particular rates at issue. It is 
 really an element in the cost of the service, as it will be 
 assumed that if all the other circumstances and condi- 
 tions are similar it will cost the carrier more to haul 
 the same traffic 500 miles than 100 miles. Just how 
 much more is a matter for the determination of the Com- 
 mission in its discretion under the law, if the case is one 
 in which distance is important. That distance is worthy 
 of much weight in nearly all rate cases may spring from 
 the fact that the fourth section of the Act recognizes dis- 
 tance when it prohibits a greater charge for the shorter 
 than for the longer haul. The Commission has said that 
 distance, in the absence of other influences, is a con- 
 trolling element. 10 
 
 Where a commodity is moving to market from a 
 
 "6I.C. C. Rep. 143; 16 I. 0. C. Rep. 563; 27 I. C. C. Rep. 175. 
 10 7 I. C. C. Rep. 180; 5 I. C. C. Rep. 264. 
 
GROUNDS OF PROOF 25 
 
 number of producing points, and it is important to deter- 
 mine the actual distance of the movement, the weighted 
 average mileage should be determined. This is done by- 
 multiplying the number of tons moving over each route 
 by the distance, adding all the ton miles thus obtained, 
 and dividing by the aggregate tons shipped. This will 
 give the weighted average distance, and shows exactly 
 the actual distance the carriers are hauling the traffic. 
 
 When measuring distances on a rate which applies 
 to widely divergent points of destination it is unfair to 
 use a distance to a nearby point or to the most distant 
 point. The distance offered should fairly reflect the 
 distance to the zone of destination as a whole. It 
 seems almost unnecessary to give the above warning, 
 but the fact is distances are discredited frequently 
 because of the infirmity pointed out. 
 
 The Commission has in many cases based its findings 
 largely upon distances, but it has done so only where it 
 has found all the other surrounding conditions to be 
 similar. It has fixed mileage rates for grain, for cotton- 
 seed, and for live-stock and packing-house products. 
 Many rate adjustments, however, on articles of heavy 
 tonnage, such as coal, are upon the group basis, and if 
 the group appears to have worked out with substantial 
 equity to all parties concerned, it will not be disturbed 
 merely because a point on one side of the group pays 
 the same rate as a point on the far side of the group. 
 
 In connection with the distance the commodity is 
 hauled upon the rates in question, there are important 
 principles to be kept in mind, and one of them is the 
 rule of decreasing returns, or, as it is more commonly 
 expressed, that as the distance increases the earnings 
 per ton per mile should decrease. This is an almost 
 
26 GROUNDS OF PROOF 
 
 universal principle of rate-making if distance cuts any 
 figure in the rates at issue. It is a principle that rests 
 upon the relative expense to the carrier of hauling a 
 commodity a further distance when once the transporta- 
 tion is started. 
 
 In an important case attacking the adjustment of rates 
 on coal from competing groups of mines in Illinois to 
 points in Iowa and the northwest, counsel for the mines 
 in southern Illinois introduced Table 3 to show that 
 the rule of decreasing returns to the carrier as the 
 length of haul increases was fairly well observed by 
 the present adjustment. The Commission found such 
 to be the case and refused to disturb the rates. 
 
 TABLE 3 
 
 Statement op Short-Line Average Distances and Earnings 
 Upon the* Present Rates to Livermore, Iowa 
 
 Earnings Per 
 Ton Mile 
 
 Present Under Present 
 
 From Miles Rate Rate (Mills) 
 
 Third Vein District 306 $1.85 6.05 
 
 Fulton County District 318 1.85 5.82 
 
 Wilmington District 372 1.85 4.97 
 
 Springfield District, North 390 2.25 5.77 
 
 Springfield District, South.... 458 2.25 4.91 
 
 Danville District 444 2.42 5.45 
 
 Centralia District 490 2.45 5.00 
 
 Du Quoin District 525 2.55 4.86 
 
 Belleville District 529 2.45 4.63 
 
 Southern Illinois District 553 2.55 4.61 
 
 Brazil-Clinton District 506 2.45 4.84 
 
 Sullivan-Linton District 528 2.55 4.83 
 
 Princeton District 660 2.62 3.97 
 
 The Commission found that per ton mile revenue 
 of 4.61 mills for a distance of 553 miles in the case 
 of Southern Illinois shown above was not out of line 
 with earnings of 6.05 mills for 306 miles in the case 
 of the Third Vein field. 
 
GROUNDS OF PROOF 27 
 
 The only exception to this rule is, where the trans- 
 portation passes over an unproductive territory or a 
 territory of expensive operation, such as mountains. 
 Decreasing earnings may then reasonably change to 
 increasing or constant earnings. 
 
 Another matter closely allied to the one just referred 
 to, is the length of the haul compared with the average 
 length of haul of all traffic. This figure, for each 
 railroad and for the country as a whole, can be found 
 in the Commission's annual report of statistics. In 
 other words, is the service involved a long haul or a 
 short haul? Short hauls are relatively more expensive 
 to the carriers because of the fact that the heavy 
 element in the cost of service is the terminal expense 
 and that is incurred no matter what the length of the 
 haul, 
 
 (d) Earnings 
 
 In rate cases the term "earnings" means the revenue 
 of the carrier upon certain rates for a definite amount 
 of service. Earnings per ton mile, per car mile, and 
 per train mile mean the earnings that the carrier 
 receives for hauling a ton, a car, or a train a distance 
 of one mile. A table of distances may well contain 
 other columns showing the rates and the earnings 
 thereon. Such information is almost necessary for the 
 Commission to have in passing upon the reasonableness 
 of rates. As illustrating what is meant, see Table 3. 
 
 The Commission is an expert rate tribunal, and can 
 tell almost at a glance from the earnings that are 
 disclosed how they compare with rates on other com- 
 modities or with rates on the same commodity between 
 
28 GROUNDS OF PROOF 
 
 other points, or how they fit in with the earnings of 
 the carriers (individually or collectively) on all traffic 
 as shown hy the statistics published by the Commission. 
 The Commission knows from long experience approxi- 
 mately how profitable rates are which yield, say, 25 cents 
 per car mile on a certain commodity for a distance 
 of 500 miles in a certain section of the country. The 
 Commission has doubtless fixed many such rates on the 
 same or similar commodities and under substantially 
 the same conditions, and is therefore aided greatly in 
 the exercise of its discretion by a glance at the showing 
 here suggested. 
 
 The earnings upon the rates in question can be 
 compared with the earnings upon other rates upon the 
 same commodity, with the earnings upon rates upon 
 other commodities, or with the average earnings of a 
 carrier or carriers upon all traffic. 
 
 Those familiar with freight rates know that the 
 average earnings per ton mile for the country as a 
 whole are approximately 7% mills; that the average 
 per car mile earnings are 15 cents; that the typical 
 average haul in the United States is about 143 miles; 
 that the average amount received from each ton of 
 freight is $1,079; that the average freight revenue per 
 train mile is $2.89; that the average number of tons 
 of. freight per train is about 383 ; that the number of 
 cars to a train is about 22. 
 
 The published statistics give the above information 
 for each carrier and more besides, and they*should be 
 examined for the particular carriers that are parties 
 to the case. These official statistics may be compared 
 with the figures for the traffic and rates involved in 
 the complaint. 
 
GROUNDS OP PROOF 29 
 
 The Commission has said that per car earnings with 
 distance considered, or per car mile earnings, are fre- 
 quently of much more value than ton mile earnings 
 because the latter reflect neither the car loading nor car 
 mileage. It is a fact that traffic yielding low ton mile 
 earnings may be very remunerative because of farther 
 carriage and heavy loading. 11 
 
 (e) Value of the Commodity 
 
 .The first annual report of the Commission announced 
 that "the most important element in the rate" is the 
 value of the commodity. At the present day, however, it 
 is somewhat dangerous to attempt to fix rates of trans- 
 portation upon any one particular basis, and for this 
 reason one should not too readily rest the determination 
 of a rate case upon one line of argument, such as the 
 value of the commodity. If, upon investigating the situ- 
 ation, it appears to be the fact that the rate in question 
 fits in quite well with all the numerous canons of rate- 
 making, except one only, it may be doubtful whether 
 the chances of success would be sufficient to justify a 
 carrier in raising such a rate or a shipper in seeking to 
 have it lowered. 
 
 In the original classification of all traffic for the 
 purpose of giving each kind its proper place in the 
 whole schedule of rates applicable upon the entire ton- 
 nage of the carriers, there can be no question but that 
 one of the first inquiries made is as to the value of the 
 commodity. If the commodity is extremely valuable 
 and otherwise of a high-grade character, it is placed 
 in the first class, or among the list of articles that 
 
 « 22 I. C. C. Rep. 620. 
 
30 GROUNDS OF PROOF 
 
 take the highest rates of all. Thus, expensive silk goods 
 worth many thousands of dollars per car would be 
 so classified, and the margin between the rate and the 
 price of the article would be so wide that the freight 
 rate would enter only a minute degree into the price 
 of the article to the consumer. 
 
 If the commodity possesses a very low value, such as 
 a carload of coal, which would not be worth much more 
 than $100, the commodity would scarcely be able to stand 
 more than a very low rate, lower than the lowest class. 
 The Commission has said that there are few articles 'in 
 the price of which the freight rate enters more largely 
 than in the case of coal. 
 
 Looking at freight rates from the broad scope just 
 outlined, the value of the commodity is an extremely 
 important item. In contesting a rate case, however, the 
 value of the commodity with respect to the particular 
 rate will doubtless have already influenced the rate 
 through classification and otherwise to such an extent 
 that it can cut but little figure in any further adjustment 
 of the same. For the reasons given one may or may 
 not derive much help in a rate case from evidence 
 relative to the value of the commodity. Nevertheless, 
 a careful traffic man or commerce lawyer will thoroughly 
 post himself upon the relative values of the commodities 
 that take similar ratings. He will also ascertain just 
 what treatment his commodity has received, and be 
 fully prepared to take advantage of or meet any situ- 
 ation that may arise in this regard. The theory that a 
 manufactured article ordinarily takes a higher rate 
 than the material from which it is made rests in part 
 upon the argument of the value of the commodity. 
 
 Of course, there is an item of cost of service in con- 
 
GROUNDS OF PROOF 31 
 
 nection with the value of an article in the insurance 
 which the common carrier is compelled to accord to 
 traffic in its possession. If the article is a valuable one 
 and is damaged while in the possession of the carrier, 
 the carrier is compelled to pay more in the way of loss 
 and damage claims than if the article is one of low 
 value. The actual cost of this insurance, however, is 
 very low indeed, and the total payments for loss and 
 damage upon most commodities bear such a slight 
 percentage to the total freight receipts upon the par- 
 ticular commodity that it actually figures down to almost 
 an insignificant amount, much less than 1 per cent, as 
 a rule, of the total freight revenue on the commodity. 
 
 In fixing freight rates in accordance with the value of 
 the commodity, the insurance feature, therefore, enters 
 into the situation to but a limited degree. It is frankly 
 admitted by everyone conversant with freight rates that 
 higher rates upon the valuable commodities are not 
 usually placed there because of the insurance charge, 
 but for the reason that the traffic can stand it, and the 
 service rendered the shippers of such commodities is 
 said to be more valuable to them. This, of course, is 
 a very indefinite statement and in the general run of 
 rate cases does not carry great weight for either one 
 side or the other. 
 
 A case representing the use of values as evidence 
 in a rate contest is one where a shipper of a commodity 
 used as a tree spray sought the same rate as was applied 
 on sheep dip. The record showed that one article was 
 worth but a few hundred dollars per car while the 
 other was valued at several thousand dollars, it was 
 decided that the difference in value precluded the same 
 rate for both. 
 
32 GROUNDS OF PROOF 
 
 In concluding this subject it may be added, that the 
 Commission has given this element in the rate greater 
 consideration when it has been adjusting the rates upon 
 competitive articles, like hogs and hog products, lumber 
 and products thereof. 
 
 (f) Rate History 
 
 In a rate case the Commission will inquire how long 
 the rate under consideration has been in effect, and it 
 should be shown how the rate has fluctuated, running 
 back as far as it is possible to go, and what have been 
 the influences that have affected the rate in the past, as 
 well as at the present time. It may be that the influences 
 that have shaped the rate have been of such character 
 that the Commission will be inclined to counteract them 
 in its decision. For instance, it is now an established 
 principle that the Commission may not lawfully predi- 
 cate rates upon the necessity of the shippers. Efforts to 
 equalize market competition may not be offered to justify 
 or require rates that are unreasonably low or that permit 
 unjust discrimination. 
 
 If the rate has long been in effect, that constitutes a 
 significant fact. 12 If the rate has been advanced from 
 time to time, that fact would produce an entirely differ- 
 ent effect upon the Commission than if it had been 
 reduced from time to time. 
 
 (g) Rate Basis 
 
 Let the Commission know precisely how the rates are 
 constructed from the standpoint of technical rate con- 
 struction. In connection with the history of the rates 
 
 '■ 15 I. C. C. Rep. 63. 
 
GROUNDS OF PROOF 33 
 
 show (1) just how the rates are made, that is, whether 
 they are joint rates, or made on the combination of local 
 rates, or local and proportional rates; (2) what the rela- 
 tionship of the class rates is to the commodity rate in 
 question, that is, if the article takes a commodity rate 
 as distinguished from its proper class basis. 
 
 The writer is reminded of an instance when, as Exam- 
 iner for the Commission, he was hearing cases in a west- 
 ern city. The traffic witness of a railroad was testifying 
 that a certain commodity rate on scrap iron under attack 
 was a reasonable rate because it was less than the class 
 rates usually applied on scrap iron. Later in the same 
 day the same witness was testifying in another case 
 about rates on potatoes which were higher than the class 
 rates usually applied to potatoes, but upon cross-exami- 
 nation was unwilling to employ the same principle for 
 his potato rates that he had invoked for his scrap-iron 
 rates. This incident illustrates the necessity of know- 
 ing the relative basis of the rate under consideration 
 so as to take advantage of every situation that may 
 favor your contentions. 
 
 Look into the question of the rate territory in which 
 the traffic is moving, and show the relation between rates 
 in that territory and rates in other territories. For 
 example, it is quite generally conceded that rates upon 
 the same commodity might be, as a rule, somewhat 
 higher in Western and Southern classification territories 
 than in Official Classification Territory by reason of the 
 heavier volume of tonnage in the latter territory. If 
 the rates base upon a certain basing point, this circum- 
 stance should be fully explained to the Commission. 
 
 Less-than-carload rates should bear a just relationship 
 to carload rates on the same commodity. 
 
34 GROUNDS OP PROOF 
 
 If the case involves a through rate made up of sepa- 
 rately established rates, it is not sufficient to prove the 
 unreasonableness of the various factors. The Commis- 
 sion has said that it and the public were interested in 
 the charge as a whole; that it must have before it 
 evidence as to the through combination charge; that 
 some regard must be had to the measure of the through 
 rates as an entity. 13 
 
 Facts relating to the history of the rate or the manner 
 in which the rate is based may be valuable as evidence 
 for one side or the other, but they are always helpful 
 to the Commission. The trials before the Commission 
 are investigations of all the facts with relation to the 
 specific rates at issue, and as the foundation of any rate 
 case the Commission is entitled to have the parties to 
 the controversy co-operate in presenting all the fore- 
 going facts freely and frankly. 
 
 (h) Volume and Regularity of the Tonnage 
 
 This is purely a cost of service argument. Carload 
 rates are lower than the less-than-carload rates because 
 the traffic can be handled more cheaply. When, however, 
 the carriers attempted to make the rates upon a train- 
 load basis lower than those upon a carload basis the 
 Commission called a halt. The carload is, therefore, 
 the accepted standard for making rates. The Wisconsin 
 Commission, which has gone further than any other 
 rate-regulating body in ascertaining the cost of service, 
 has chosen the carload as the basis of its calculations. 
 
 ' 30 I. C. C. Rep. 102. 
 
GROUNDS OP PROOF 35 
 
 The demand for equal rates upon a commodity that 
 moves to the extent of several hundred thousand car- 
 loads a year, with a commodity that moves irregularly 
 or only to the extent of a few carloads, will not appeal 
 to the Commission. There may be cases where traffic 
 is not moving for the very reason that the rate is too 
 high to permit the movement. It is not always safe 
 therefore to take the volume of the traffic into considera- 
 tion in determining' a reasonable rate. 
 
 There is no argument introduced into a rate case that 
 is more open to criticism, than the volume of the traffic. 
 It may well be questioned whether as a matter of public 
 policy it is proper to give the big shipper any con- 
 sideration on account of the volume of his shipments. 
 The fact remains, however, that the opinions of the 
 Commission frequently refer to the volume of tonnage 
 as justifying the reasonableness of rates. It is import- 
 ant, therefore, to be fully advised as to what is moving 
 on all the rates in issue and on any rates used in com- 
 parisons. 
 
 In taking a commodity out of the classification and 
 giving it a commodity rate, the traffic manager gives 
 great consideration to volume of tonnage. When, how- 
 ever, he has sought to advance a rate applying upon a 
 vast tonnage, he has found it difficult to justify his acts 
 because of the heavy tonnage involved and the low cost 
 of service where the movement is regular and heavy. 
 Relative tonnage volumes are usually well known, and 
 this class of evidence is easy of production. It is 
 important only where the relative difference is large, 
 and in cases where it is advisable to go into the subject 
 of volume, detailed figures are not required. 
 
36 * GROUNDS OP PROOF 
 
 7. Cases Involving Section 2 of the Act 
 
 Before discussing the production of evidence that 
 will prove violations of sections 2 and 3 of the Act 
 to Regulate Commerce, a clear understanding should 
 be reached as to the distinguishing characteristics of 
 these two sections, because they are frequently confused 
 in proceedings before the Commission. 
 
 These sections prohibit unjust discrimination in the 
 broad sense of the word, but the character of discrimi- 
 nations referred to in the two sections is so different 
 that evidence as to one may not cover a violation of the 
 other. One should, therefore, definitely plead violations 
 r>? one or both sections as desired, and specify in his 
 proof what section it is directed against. 
 
 "The discrimination defined in section 2 may arise as 
 between shippers of like kinds of traffic under sub- 
 stantially similar circumstances and conditions." 14 It 
 is, therefore, necessary to show that the traffic is like 
 in kind, and the Commission will undertake to determine 
 as a condition precedent to a violation of this section 
 whether the traffic between which discrimination is 
 alleged is like in kind. For instance, it was held in 
 the case above cited that corn starch was not a like 
 kind of traffic to other products of corn, such as meal, 
 grits, etc., because starch is a more expensive product 
 and requires a much more elaborate form of manu- 
 facture. For these reasons it was held that it was not a 
 violation of section 2 of the Act to charge materially 
 higher rates upon starch than upon the other products 
 of corn. 
 
 Section 2 of the Act also applies only when the trans- 
 
 14 31 I. C. C. Rep. 593. 
 
GROUNDS OF PROOF 37 
 
 portation takes place "under substantially similar 
 circumstances and conditions." The carriers have 
 attempted to read into this section the condition of 
 competition. They say the Act does not prohibit 
 different treatment of even like kinds of traffic when 
 the articles do not compete in the market. In other 
 words, in order to establish discrimination under section 
 2 of the Act it is necessary that there be an advantage 
 to one shipper and a corresponding disadvantage to 
 another. The courts have held that this is not a proper 
 construction to be placed upon the wording of the Act 
 because the phrase "under substantially similar circum- 
 stances and conditions" refers to matters of carriage 
 or transportation and does not include commercial 
 competition. This view has been affirmed by the 
 Supreme Court of the United States. 15 
 
 The law does not prohibit all discriminations. It 
 covers only unjust discrimination, and this somewhat 
 limits the scope to the discretion of the Commission. 
 The great difficulty in proving that the traffic is like in 
 kind with other traffic, that the discrimination is undue, 
 and finally that the transportation is performed under 
 substantially similar circumstances and conditions has 
 tended to render the instances where a violation of this 
 section can be proved rare indeed. 
 
 In a case involving a violation of section 2, the three 
 foregoing matters of proof are conditions precedent to 
 the establishing of a case under said section. In addi- 
 tion thereto, all that was pointed out when discussing 
 violations of section 1 of the Act, such as the rate 
 history, rate comparisons, relative cost of service, 
 distances, earnings, value of the commodity, volume 
 
 "225 U. S. 326. 
 
38 GEOUNDS OF PROOF 
 
 of the traffic, etc., should be fully developed in the record 
 for both sets of rates or practices between which the 
 discrimination is alleged. 
 
 It will be found that in the trial of rate cases there 
 is much in the way of rate exposition that must be made 
 to the Commission in every case if it is fully presented, 
 but when once presented will serve more than one 
 purpose. For instance, under the headings of "Dis- 
 tances" or "Earnings" or "Relative Cost of Service," 
 the evidence might show that the rates were excessive 
 and unreasonable and in violation of section 1, and the 
 same evidence might also show a relationship that 
 would prove a violation of sections 2 or 3. 
 
 8. Cases Involving Section 3 or the Act 
 
 This section prohibits what is generally called 
 "unjust discrimination," although those words are only 
 found in section 2. Literally stated,, section 3 prohibits 
 undue advantage to one shipper and undue prejudice 
 to another. This language has been held to mean that 
 there must be competition present to effect this prefer- 
 ence to one shipper and this prejudice to another, 
 although the Act does not so state. As a shipper usually 
 feels this discrimination in his business before the 
 thought , comes to him that he will complain against 
 it, the evidence to substantiate a case of this kind is 
 not so hard to produce. It should be placed in the 
 record in as definite a form as possible, and it must 
 not be merely a general expression of opinion that such 
 disadvantage exists. Witnesses should be prepared to 
 be very specific in showing definite, concrete examples 
 upon which their conclusions are based, such as figures 
 
GROUNDS OF PROOF 39 
 
 giving actual loss of business and a decreasing tonnage 
 from the complainant, together with an increasing ton- 
 nage from the territory or shipper alleged to be 
 favored by the freight rates. 
 
 Proof of loss of business is not an essential element 
 in a discrimination case, however, as the injured party 
 may have elected to absorb the unlawful rate out of 
 his profits and thus maintained his volume of sales 
 pending determination of the rate case. Again, com- 
 plainant may never have obtained any business due to 
 the unlawful discrimination in freight rates. 
 
 It may be appropriate to repeat in this connection 
 that the Commission will not in any case rely upon 
 the unsupported opinions of witnesses. 158. They must be 
 in a position to give the facts and information upon 
 which their opinions rest ; that is to say, they must offer 
 convincing, definite, specific testimony, facts, and figures. 
 
 The detailed data as to the rates which have been 
 discussed at length for cases involving section 1 of 
 the Act will be found in large measure to be applicable 
 here. For instance, in giving the distances and earn- 
 ings it would be appropriate to discuss what is known 
 as the natural advantage of location. Each shipper is 
 entitled to reap the full benefit of his foresight or 
 good fortune in finding himself favorably located with 
 respect to manufacture, or obtaining a supply of 
 material, or in distributing his product to the markets. 
 As a matter of law he cannot be deprived of this natural 
 advantage. It is unlawful for the carriers to offset, 
 by means of rates, his natural advantage by equalizing 
 with him some competitor not so favorably situated. 18 
 
 »»13 I. C. C. 105; 28 I. C. C. 497. 
 
 "23 I. C. C. Rep. 109; 22 I. C. C. Rep. 121; 23 I. C. C. Rep. 391; 21 
 I. C. C. Eep. 543; 222 U. S. 46, 541. 
 
40 GROUNDS OP PROOF 
 
 This can be brought out in connection with the showing 
 offered under section 1 by giving relative distances, cost 
 of service, etc., for both the complainant's point of ship- 
 ment and for that of his competitor, to the same 
 markets. 
 
 Table 4 is intended to show up unjust discrimination 
 in violation of section 3, as to the rates on a certain com- 
 modity produced in Wisconsin and Michigan and com- 
 peting for sale at the same markets. 
 
 TABLE 4 
 
 Rate Earnings 
 
 ( Cents Earnings Per Car 
 
 Distance Per 100 Per Car Mile 
 
 From To (Miles) Lbs.) (Dollars) (Cents) 
 
 Michigan Jefferson City, Mo. ... 550 29 116.00 21.09 
 
 Wisconsin Jefferson City, Mo. . . . 623 20 "80.00 12.84 
 
 Michigan New Orleans, La 1071 35 140.00 13.07 
 
 Wisconsin New Orleans, La 1141 31% 126.00 11.01 
 
 Michigan Oklahoma City, Okla. 963 77 308.00 32.00 
 
 Wisconsin Oklahoma City, Okla. 963 66 264.00 27.40 
 
 The value of the above table rests upon the fact 
 that the cost of service, carriers, competitive conditions, 
 and practically everything was shown to be the same 
 for both competitors if not more favorable for the 
 Michigan competitor, yet with distance in favor of 
 Michigan, Wisconsin was unduly favored in the rates. 
 The testimony further showed that on the foregoing 
 adjustment of rates, Wisconsin had driven Michigan 
 from the field. 
 
 Many important cases arise under section 3 from the 
 competition between raw material and finished product. 
 One set of manufacturers is located near the supply 
 of raw material and another is located at the markets 
 of consumption. One is shipping the material, the 
 other the product. The Commission has in such con- 
 
GROUNDS OF PROOF 41 
 
 tests called for a showing as to the relative cost of 
 transporting the competing commodities and has decided 
 the issue largely upon the result of such showing. We 
 have already sufficiently referred to the elements in 
 this kind of proof on page 16. 
 
 9. Burden of Proof 
 
 In suspended rate cases and in cases attacking rates 
 that have been advanced since January 1, 1910, the 
 so-called ' ' burden of proof ' ' is upon the carrier. In other 
 rate cases the burden is upon the person attacking 
 the established rate. The party to the proceeding not 
 having this burden should not depend upon making 
 out a case by the cross-examination of opposing wit- 
 nesses. Regardless of where the burden rests the 
 Commission expects a full hearing as to the merits of 
 each side of the controversy, and if the facts are not 
 forthcoming from one side, the other should be pre- 
 pared to give the information. The essential thing 
 is that the Commission be acquainted with all the facts 
 relative to the rates in question rather than that it shall 
 get this information from one side or the other. 
 
 Too much cannot be expected from cross-examination 
 in rate cases. The witnesses for the railroads are expert 
 traffic witnesses, who give all their time to explaining 
 rates in proceedings before the Commission, and it is not 
 infrequent that witnesses for the larger shippers are 
 men of the same experience. Much time will be saved, 
 therefore, in trying a case with your own witnesses 
 rather than to attempt to draw it out of a hostile witness 
 of professional character. 
 
 Under the decisions of the courts the findings of the 
 
42 GROUNDS OF PROOF 
 
 Commission must rest upon the record made after full 
 hearing. The paramount duty, therefore, is to see that 
 the record is made as strong for your contentions as 
 possible and that your case does not stand upon tech- 
 nicalities of pleadings or order of proof. 
 
 10. Reparation 
 
 In addition to fixing reasonable rates for the future 
 and wiping out unjust discriminations, if the Commis- 
 sion finds that a shipper has been damaged by reason of 
 unlawful rates or practices of the carriers it may under 
 the law award reparation from the carrier to the 
 shipper. While this kind of a proceeding usually forms 
 a part of the main case attacking rates themselves, it 
 has distinguishing legal charactertistics, which should 
 be clearly recognized. Orders of the Commission fixing 
 rates for the future must be obeyed by the carrier 
 unless set aside by a court of competent jurisdiction, 
 or the carrier pays a fine of $5,000 per day. It is 
 needless to say that the carriers obey these orders in 
 every instance. An order for the payment of money, 
 however, under the Constitution, can have no such 
 compelling force, and the carriers have frequently 
 refused to obey such orders. It is then necessary for the 
 shipper to go into court and sue the railroad for the 
 amount named in the Commission's order. 
 
 Many of these orders have been enforced in the courts, 
 but from recent decisions it is quite apparent that an 
 order of the Commission for the payment of reparation 
 must rest upon evidence (1) of a very particular nature 
 as to the shipments in question upon which reparation 
 is claimed, giving dates and weights of shipments, and 
 
GEOUNDS OF PROOF 43 
 
 points between which the shipments moved; (2) the 
 record must show that these shipments were delivered 
 to consignee within two years prior to the time of 
 filing the complaint; 17 and (3) the record before the 
 Commission should contain direct evidence of the 
 damage which has resulted to the shipper by reason 
 of the unlawful acts of the carrier. This is especially 
 true where the unlawful act is discrimination. It is 
 no longer sufficient to assume that because a shipper 
 paid a rate which the Commission finds to be unduly 
 discriminatory, it was discriminatory at the time it 
 was paid, or that he is entitled to an award of reparation 
 in the amount of the difference between the rate paid and 
 the non-discriminatory rate fixed for the future. The 
 shipper must specifically prove where and how and in 
 what definite amount he has been damaged. If he fails 
 to do all these things, the order of the Commission will 
 not be worth much to him in the courts. 18 
 
 The showing of damage can be made by evidence of 
 losses in the purchase of raw materials, as against 
 competitors who enjoyed preferential rates and could 
 therefore outbid the complainant in the purchase of 
 raw material. Or it might be shown by evidence as to 
 the difference between the prices at which the com- 
 modities of the various shippers were sold, and also 
 the connection between said prices and the freight 
 charges. Damage might be shown in most any way 
 that could be proved in a suit for damages in a court 
 of law. The development of this subject under the 
 decisions is so recent that it is difficult to state definitely 
 
 " See Procedure Before the Interstate Commerce Commission, page 23. 
 18 29 I. C. C. Rep. 32; International Coal Case, 230 U. S. 200; Meeker 
 Case, 236 U. S. 412. 
 
44 GROUNDS OF PROOF 
 
 just what the law as construed by the courts actually 
 means. Doubtless, more light will be thrown on this 
 subject by forthcoming decisions. 
 
 The same difficulties are not encountered in seeking 
 reparation for collection of an unreasonable rate under 
 section 1. If the Commission finds that an unreasonable 
 rate was paid, it is presumed that the shipper was 
 damaged in the amount of the difference between the 
 rate paid and the rate the Commission finds reason- 
 able. The Commission must find, however, that the 
 rate was unreasonable at the time it was paid. 
 
 Although the power of the Commission to award 
 reparation for damages suffered by reason of a violation 
 of the Act is plenary, it is fair to say that the Com- 
 mission is ultra-conservative about finding such damages. 
 
 11. False Grounds 
 
 The testimony of the shipper that he needs a lower 
 rate in order to be able to do business at a profit 
 satisfactory to himself, which is so often heard in rate 
 cases, can under the law be of no help whatsoever, but 
 is very likely to do his case material harm. By such 
 testimony he at once shows the Commission that his 
 case rests at least in part upon the false and misleading 
 theory that the carriers can be compelled to make rates 
 that will permit a particular shipper to engage in 
 business at a profit, irrespective of the reasonableness 
 of the rate per se to the carrier for its service. 
 
 Witnesses should be warned to base their claims for 
 a different rate upon some specific violation of law, 
 and on cross-examination not to roam around through 
 their commercial, financial, and business difficulties 
 
GROUNDS OF PROOF ' 45 
 
 which, however interesting as a hard-luck story, furnish 
 the Commission with no ground for changing existing 
 freight rates under the law. 
 
 Let it be borne in mind that the carrier is entitled 
 under the law to reasonable compensation for the service 
 which it renders any and all shippers. The fact that 
 the business of a complaining shipper cannot afford to 
 pay present rates to get to market at a profit, or at 
 what the shipper may deem a sufficient profit, has no 
 bearing on the case and no recognition in the Act to 
 Regulate Commerce. 
 
 The fact that the carrier quoted the shipper a lower 
 rate than the lawful rate and obtained the business on 
 such quotation possesses no virtue in proving that the 
 lawfully published rate is unreasonable. Yet commerce 
 attorneys and traffic witnesses persist in telling the 
 Commission such facts. 
 
 Neither is testimony to the effect that the railroads 
 led the shipper to establish himself on its lines by 
 promises of freight rates and concessions worthy of 
 much consideration on the issue of whether present 
 rates are unjust and unreasonable. The Supreme Court 
 criticised the Commission for basing a finding on such 
 a consideration. 19 The offering of contracts between 
 carrier and shipper for the maintenance of a rate as 
 any evidence in an issue of reasonableness or discrimi- 
 nation is wholly a waste of time. 20 
 
 On the other hand, the carrier charged with discrimi- 
 nation is wasting its time if it attempts a justification 
 on the ground that it is protecting industries on its own 
 lines against the competition of industries not so located, 
 
 » Willamette Valley Case, 219 U. S. 433. 
 ! ° 130 U. S. 396; 219 U. S. 467. 
 
46 GROUNDS OF PROOF 
 
 or that the preferential rate is maintained through some 
 contract with a shipper. The writer has heard many 1 
 traffic officers of the railroads assert positively that a 
 rate must be reasonable because traffic was moving on 
 it. It is fair to add, however, that with the coming into 
 power of a younger generation of traffic managers, many 
 of the old fallacies are no longer urged, and the records 
 made in rate cases now contain more in the nature of 
 sound, helpful facts upon which an opinion can be 
 legitimately based. , 
 
 When carriers explain a rate in their tariffs as being 
 due to a clerical error the Commission will not accept it 
 if the rate has been in effect two years. 21 The Commis- 
 sion has awarded reparation for damages due to such 
 error. 23 
 
 It would hardly seem necessary to mention the above 
 considerations, but evidence of the various kinds 
 referred to is constantly being offered in rate cases 
 before the Commission by parties who do not seem 
 to- be advised that they are thus practically compelling 
 the Commission on the record so made to decide the case 
 aarainst them. 
 
 i & c 
 
 12. Conclusion 
 
 In addition to the so-called "rate cases" the Commis- 
 sion can, upon showing of general public need, order 
 carriers to establish through routes and joint rates. 
 Thus, it can compel connecting carriers to unite their 
 lines into practically one system for the rendering of 
 service to the public. The exercise of this power is not 
 
 21 28 I. C. C. 459. 
 22 28 I. C. C. 422. 
 
GROUNDS OP PROOF 47 
 
 very frequent because the carriers have voluntarily- 
 established through routes and joint rates in nearly all 
 
 cases. 
 
 The Commission can now, under the amendment of 
 1912, order in through routes and joint rates between 
 a railroad and a connecting water carrier upon evidence 
 indicating a general public necessity for the service 
 demanded. Occasionally, the Commission is called upon 
 to exercise its power under the Act to compel switch 
 connections upon proper showing that the traffic of 
 shippers reasonably demands the connection. 
 
 A majority of the Commission has held during the 
 past year that the Commission has power to compel 
 the furnishing of transportation facilities, such as cars 
 of suitable character for traffic tendered. 23 
 
 But, as stated in the beginning, our discussion is 
 limited to rate cases, as it is principally cases of that 
 kind that occupy the attention of the Commission and 
 possess vital interest to the shippers generally. 
 
 One who studies the current opinions of the Commis- 
 sion and who has knowledge and experience concerning 
 the accepted and rejected bases of lawful rates and of 
 the limitations drawn around the Commission by the 
 courts, knows that a heavy percentage of rate cases are 
 either ill-conceived or are woefully mishandled during 
 trial. Every examiner of the Commission is continu- 
 ally trying cases where, despite all he can do to the 
 contrary, the records is so inefficiently made, sometimes 
 by shipper and sometimes by carrier, that the Commis- 
 sion cannot possibly gather from it essential facts upon 
 which to base a decision. 
 
 The trial of rate cases is a comparatively new 
 
 *33 I. C. C. 52; 34 I. C. C. 64; 34 I. C. C. 179. 
 
48 GROUNDS OP PROOF 
 
 business, and that may be one explanation of the vast 
 amount of ignorance, lack of skill, and one may almost 
 say absurdity, that too often confronts the Commission 
 in the trial of rate cases. 
 
 To lawyers unfamiliar with rate cases let it be gen- 
 erally observed that a rate case is essentially one of rate 
 facts and rate principles. That lack of experience in 
 such matters cannot be made up for by skill in other lines 
 of practice, and the assistance of a qualified traffic expert 
 will be essential to the conduct of any rate case. To the 
 traffic manager let it be stated that no matter how great 
 his skill in his line, he should realize that a rate case is 
 a proceeding under what has now become an involved 
 body of statute and case, law, and in important matters 
 he should seek the assistance of commerce counsel. The 
 railroads and larger industries have concluded that the 
 traffic manager and the commerce attorney form a team 
 that pulls together and that when either tries to "go it" 
 alone the progress is around in a circle. The best judges 
 of the truth of what is stated above must necessarily be 
 the members of the Interstate Commerce Commission 
 and its Examiners, who pass upon the presented cases. 
 
 In the foregoing pages it is not claimed that anything 
 more has been accomplished than to point out with 
 some degree of detail such leading grounds of proof in 
 rate cases as are known to possess potency in the determi- 
 nation of issues raised in such cases before the Inter- 
 state Commerce Commission under the Act to Regulate. 
 Commerce. Some effort has been made to indicate the 
 proper form in which such evidence may be presented 
 to the Commission, and a word of caution has been 
 added here and there against offering evidence that 
 
GROUNDS OP PEOOP 49 
 
 cannot possibly aid in the winning of a rate case, but 
 which will needlessly consume the time of the Commis- 
 sion and the other parties who must be present to defend 
 their rates or protect their interests. 
 
TEST QUESTIONS 
 
 These questions are for the student to use in testing 
 his knowledge of the assignment. The answers are not 
 to be sent to the University. 
 
 1. "What is generally meant by a rate case before the Inter- 
 state Commerce Commission? 
 
 2. "When rates are unreasonable, what section of the Act 
 to Regulate Commerce do they violate? 
 
 3. "When rates are unjustly discriminatory, what sections 
 do they violate? 
 
 4. Why does the Commission often have to disregard evi- 
 dence presented for its consideration? 
 
 5. "What character of evidence is most frequently used in 
 presenting rate cases to the Commission? 
 
 6. In what percentage of cases does the author state that 
 the relative cost of service plays an important part? 
 
 7. How does the Commission's power to regulate rates 
 compare with the common-law power over rates? 
 
 8. How do relative cost of service to the carrier and value 
 of service to the shipper compare in importance in rate cases 
 at the present time? 
 
 9. What factors should be considered in making compari- 
 sons of rates ? 
 
 10. Mention some of the factors affecting the expense of 
 service which are considered in adjusting rates. 
 
 11. How may official statistics be used to furnish informa- 
 tion of value in rate cases? 
 
 12. Under what circumstances has the Commission based 
 findings upon the distance principle? 
 
 13. How may earnings on the rates be used in adjusting 
 rates ? 
 
 14. What part may the history of a rate play in the adjust- 
 ment of that rate? 
 
 15. What has the Commission said as to the interest of the 
 public in the through rate, as against the factors in that rate? 
 
 16. Why might it be unjust to take the volume of traffic 
 into consideration in making a rate? 
 
 50 
 
TEST QUESTIONS 51 
 
 17. What evidence is necessary under the statute before a 
 violation of section 2 of the Act can be established? 
 
 18. Why may not too much be expected from the cross- 
 examination of witnesses? 
 
 19. If a carrier does not obey an order of the Commission 
 for the payment of money, what action must be taken? 
 
 20. What is it necessary for the shipper to prove in order 
 to secure reparation? 
 
 21. Give briefly some considerations which do not carry 
 weight in rate cases. 
 
 22. Distinguish the attempts of the carriers to increase 
 whole rate schedules from actions taken to secure the adjust- 
 ment of a single rate or a number of individual rates. 
 
 23. What interesting question of the Commission 's power is 
 raised in the Western Advance Rate Case, 1915 ?