general jurisdiction, where the amount involved is sufficient, to sue to set aside an order dismissing a complaint wherein any of the reasons shown in Section 371, post, exist for setting the order aside. In such suits the Interstate Commerce Commission would seem to be a necessary party defendant and the carriers party to the complaint before the Commission proper parties.374

§ 371. Grounds Upon Which Orders of the Commission May Be Set Aside.-Orders of the Interstate Commerce Commission other than awards of damage made within the jurisdiction conferred on that tribunal are binding upon the carriers and companies subject thereto, and since the Amendment of 1906, a failure to obey such, subjects those corporations and persons included within the provisions of the Interstate Commerce Act to penalties.

Under the old law the Commission had no power to fix rates or prescribe practices for the future guidance of carriers subject to its jurisdiction. What orders it could make under that law had to be enforced by suits in the Circuit and District Courts, and on the hearings of such suits all reports of the Commission upon which such suits were brought were made “prima facie evidence of the matters therein stated." Under that law the Commission's report was not a "rule of action," but a finding of facts. The Hepburn Amendment gave the Commission power to make rates, to legislate for the future; it did not take away its administrative power to make findings of fact in certain cases.

If the order is deemed to be unlawful, suit to determine that question must be filed in the proper District Court of the United States. The grounds upon which the courts may set aside such orders as determined by the courts may be grouped into these: (1) That the order violates some provision of the Constitution of the United States; (2) That in making the order the Commission has relied on some mistake of law; (3) That the order is not included within the powers conferred by the statute upon the Commission; (4) That the

374 Illinois C. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700; Southern Ry. Co. v.

Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709.

order is, although in form correct, in substance so unreasonable as to violate the law; (5) That the legal effect of undisputed testimony has been disregarded by the Commission; (6) That a full hearing was not had before the order was entered.

These different reasons overlap and to some extent are statements of the same ground of illegality expressed in somewhat different phraseology, but the classification is deducible from the decisions and its use tends to make clear the principles which have been applied by the courts.375 The

Supreme Court has gradually developed the doctrine, which, of course, is controlling over the lower federal courts, that any decision of the Interstate Commerce Commission that is supported by the evidence and does not exceed the Commission's statutory authority will be approved.376

The construction of a tariff or classification,377 and the legal principles applicable to admitted facts, are not administrative, but are legal, propositions, which courts may decide, and questions which can "not be conclusively answered by the Commission.''378

Notice given by the Commission that a case has been assigned for hearing is not such an order as a court may enjoin.379 Shippers may sue to set aside orders of the Commission with rights similar to those carriers have.380

When a court has decided that the Commission had jurisdiction over the matter in controversy, the rule is to "do so without prejudice to the Commission's" right to rehear the case and make further orders.381

§ 372. Same Subject-Violations of the ConstitutionFourth Amendment.-The Fourth Amendment of the Constitution of the United States guarantees the security of persons, houses, paper and effects against "unreasonable searches and seizures." Should an order of the Commission violate this provision, such order would be void.

Louisville & N. R. Co., 227 U. S. 88, 91, 57 L. Ed. 431, 433, 33 Sup. Ct. Rep. 185.''

376 U. S. v. Berwind-White Coal Min. Co., 274 U. S. 564, 71 L. Ed. 1204, 47 Sup. Ct. 727; L. & N. R. R. Co. v. U. S., 245 U. S. 463, 62 L. Ed. 400, 38 Sup. Ct. 141. The general language used in the cases, many of which are cited in U. S. C. A., Title 28, Sec. 46, p. 662, is to the effect that the findings of the Commission are conclusive unless there was lack of substantial evidence, some material irregularity in the proceedings or

some error in the application of the law.

377 United States v. Penn. R. Co., 242 U. S. 208, 61 L. Ed. 251, 37 Sup. Ct. 95.

378 Lehigh V. R. Co. V. United States, 243 U. S. 412, 414, 61 L. Ed. 819, 820, 37 Sup. Ct. 434.

379 United States v. Ill. C. R. Co., 244 U. S. 82, 61 L. Ed. 1007, 37 Sup. Ct. 584.

380 McLean Lumber Co. v. United States, 237 Fed. 460.

The provision has been urged in suits to annul orders of the Commission.382 An order of the Commission requiring an officer of a carrier to make report under oath showing what employees had rendered service in excess of the hours prescribed in the hours of service law, was held not to violate this provision.383 When, however, an order requires an unreasonable search and seizure it is void.384

*

§ 373. Violation of the Fifth Amendment.-The Fifth Amendment provides that "no person shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation."

The decisions of the Supreme Court relating to rates fixed by state authority, the exercise of which authority was alleged to violate the Fourteenth Amendment by fixing a confiscatory rate, are valuable in determining the same question arising under the Fifth Amendment which limits the power of the federal government as the Fourteenth limits the power of the state governments.385 In an opinion of the Supreme Court, Mr. Chief Justice White said: "Beyond controversy in determining whether an order of the Commission shall be suspended or set aside we must consider all relevant questions of constitutional power.

382 Goodrich Transit Co. v. Int. Com. Com., 190 Fed. 943, Opinions Com. Ct. Nos. 21 to 24, p. 95. While the Commerce Court did not place its decision on the ground of the Fourth Amendment, it set aside the order of the Commission on other grounds, and was reversed by the Supreme Court, Int. Com. Com. v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729, 30 Sup. Ct. 436. Holding that the Commission had no jurisdiction to require answer to the questions asked, see United States v. L. & N. R. Co., 236 U. S. 318, 59 L. Ed. 598, 35 Sup. Ct. 363; Ellis v. Int. Com. Com., 237 U. S. 434, 59 L. Ed. 1036, 35 Sup. Ct. 645. 383 Baltimore & O. R. Co. v. Int.

1386

Com. Com., 221 U. S. 612, 55 L. Ed. 878, 31 Sup. Ct. 621.

384 Harriman v. Int. Com. Com., 211 U. S. 407, 419, 420, 53 L. Ed. 253, 29 Sup. Ct. 115. See also Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 Sup. Ct. 341; Int. Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125; Int. Com. Com. v. Baird, 194 U. S. 25, 48 L. Ed. 860, 867, 24 Sup. Ct. 563; United States v. Skinner, 218 Fed. 870; and see also case cited in Note 349, ante. 385 See, ante, Secs. 47, 48, 49, and notes thereto.

386 Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155. Constitutional ques

A corporation is not entitled to the constitutional exemption from producing records nor can an officer thereof refuse to produce the corporate record: "An officer of a corporation is protected by the self-incrimination provision of the Fifth Amendment against the compulsory production of his private books and papers, but this privilege does not extend to books of the corporation in his possession.''387

The Commerce Court said: "The carrier cannot complain of a violation of its constitutional rights, if not to favor some person or class, but for the general welfare, it is compelled to make a rate for some particular service which, though in excess of the out of pocket expense, would nevertheless not be confiscatory if it were applied to all its freight, that is, the carrier has no constitutional right to a rate for each distinct kind of service which will equal its proportionate share of the entire operating expenses. 11388

If the foregoing language means that it is legal and proper to classify commodities so that those of unequal value may yield varying rates of return on the property investment, the court was correct. But it violates the constitutional rights of a carrier to require it to transport property at a rate which yields no substantial amount above the actual operating expense of the haul.389

tion argued but Commission sustained as no violation shown, Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 108.

387 Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 Sup. Ct. 1538; cited and applied in Baltimore & O. R. Co. v. Int. Com. Com., 221 U. S. 612, 55 L. Ed. 878, 31 Sup. Ct. 621. 388 Lemon Rates Case, Atchison, T. & S. Ry. Co. v. United States, 203 Fed. 56, Opinion Com. Ct. No. 61, p. 537, citing, Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. Ed. 1151, 22 Sup. Ct. 900; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. Ed. 567, 15 Sup. Ct. 184; Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1, 51 L. Ed. 933,

27 Sup. Ct. 585, 11 Ann. Cas. 398. In the final Lemon Rate Case, Atchison, T. & S. F. Ry. Co. v. Int. Com. Com., 190 Fed. 591, Opinion Com. Ct. No. 7, p. 83, the order of the Commission was set aside because as stated by the Court the Commission gave force to the tariff law. The Commission, on a supplementary proceeding, disclaimed such an intention and entered an order fixing rates as in the original order, and this second order was sustained by the Commerce Court. For Commission cases, see Arlington Heights Fruit Exchange v. Southern Pac. Co., 19 I. C. C. 148, and samestyled case 22 I. C. C. 149.

389 Northern Pac. Ry. Co. v. North Dakota, 236 U. S. 585, 59 L. Ed. 735,