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broadened the scope of the act by the inclusion of pipe lines, express companies and sleeping car companies and all the instrumentalities and facilities of shipment or carriage, with the prohibition of free passes and the so-called commodity clause, seeking to prohibit the carrier from transporting its own commodities, compelling such connections, restoring the punishment of imprisonment, authorizing the commission to establish through routes, imposing liability upon the initial carrier for damage on a through shipment and most important of all authorizing the commission in determining that any rate was unreasonable to also determine and prescribe the just and reasonable rate or rates to be thereafter charged as the maximum to be charged, and what regulation in respect to the transportation is just, fair and reasonable to be thereafter followed, the limit of two years being fixed for the time wherein any order should be in force.

Another important amendment in this act of 1906, was a very substantial enlargement of the powers of the commission in the requirement of annual reports from the carriers showing the details of their financial operations, authorizing the commission in its discretion to describe the forms of the accounts and records to be kept by the carrier, making it unlawful for them to keep any other accounts than those prescribed by the commission, and further authorizing the commission to employ special agents or commissioners for the inspection of any and all accounts carried.1

He also advised that reasonable rates determined by the legislative authority would not constitute a preference between the ports of different states within the prohibition of article I, section 9, paragraph 6, of the Constitution, even though they resulted in a varying charge per ton per mile to and from the ports of the different states.

1 For the action of the commission in the enforcement of this provision with the co-operation of the state commission, see infra, § 409. It was recommended by Pres

dents Roosevelt and Taft in their messages to congress and strongly urged in the discussions of the amendments of 1906 and 1910, that the prohibition of pooling in section 5 of the Interstate Commerce Act should be modified and railroads exempted from the restraints of the Anti-trust Act, so as to permit conferences and agreements of carriers as to rates under the reg-. ulating suprvision of the Interstate Commerce Commission. This was advocated on the ground that unregulated competition regarding rate wars was detrimental to the

The commission in its report in 1907 said of the amendment of 1906 "Substantive provisions of the original act prohibiting the exaction of unreasonable charges and prohibiting discrimination between persons and places were unchanged by the legislation of 1906. The main purpose of that legislation was to provide more adequate means for the enforcement of rights and duties declared to exist."

The act of June 18, 1910 (36 Stats. L. 539), commonly known as the Mann-Elkins Law, in the language of the commission (24th Annual Report, 1910) "enlarged the substantive provisions of the act to regulate commerce, corrected numerous defects, which experience had disclosed, conferred upon the public new rights and remedies and correspondingly increased the jurisdiction and authority of the commission."

The most important feature of the act of 1910 was the authorization of the commission to investigate any new schedule of rates or single rate proposed by a carrier and pending such investigation, to suspend the taking effect of such schedule or rate, for a period not exceeding one hundred twenty days.

§ 52. The enlarged powers and jurisdiction of the Interstate Commerce Commission.-While the substantive provisions of the act to regulate commerce, that is, the requirement that charges should be reasonable and the prohibition of unjust discriminations or undue preferences or disadvantages to persons or traffic similarly circumstanced have remained unchanged since their first enactment, very great changes have been made. by these successive amendments as to the scope of the act, the parties subject thereto and in what may be termed its "adjective" provisions, making effective these fundamental requirements and provisions of the act, and these successive amendments have added very materially to the powers and responsibility of the Interstate Commerce Commission.1

public as well as to the railroads and that the public good required not only resonableness but stabil: ity in railroad rates. This view has not as yet prevailed in legisla tion.

1 The membership of the com

mission has been increased from five members in the original act with terms of six years and salaries of $7,500 to seven commissioners with terms of seven years and salaries of $10,000. Infra, § 399.

Not only have the powers of the commission been directly enlarged in their inquisitorial authority in the requirement of reports from the railroads, in the employment of examiners in making investigations, and in compelling the attendance of witnesses in the production of testimony, as will be seen from the detailed construction of these statutory provisions, but there is also through the judicial construction of the statute, by the recent decisions of the supreme court, a very great increase of the jurisdiction and responsibility of the commission. Thus, the privilege to a party claiming to be damaged, given by section 9 of the act, either to make complaint to the commission or to bring suit for the recovery of the damages in a district or circuit court, has been construed so that this right of election does not exist in any case where the wrong involves violation of the act, which is subject to the jurisdiction of the commission, and any such case must therefore be redressed by the commission before any action can be brought in court.1

The same principle has been applied by the supreme court to the specific remedy of mandamus authorized by section 23 of the act for the enforcement of duties of the carrier; and the right to this remedy is construed with the other provisions of the act and practically with the enlarged powers of the commission under the amendment of 1906, so as to be very materially abridged.2

The comprehensive power of the commission to investigate and determine the reasonableness of rates, extends to cases

1 T. & P. R. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 449, 51 L. Ed. 562 (1907).

2 B. & O. R. R. Co. v. U. S. ex rel., 215 U. S. 481, 54 L. Ed. 292 (1910). It was said in this case that the decision in Southern R. R. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, (1907), did not qualify the ruling in the Abilene Oil case and did not support the right to resort to the courts in advance of action by the commission for relief against unreasonable rates or unjust discriminatory practices which from their nature primarily

require action by the commisson. In the Tift case the court, affirm. ing 138 Fed. 753, held that a circuit court which had suspended proceedings on a bill seeking relief from an advance in freight rates pending action by the commission could grant relief under section 16 of the Interstate Commerce Act after the commission had acted, where defendants had stipulated in open court that in case complainants prevailed decree of restitution might be made. See infra, Part II, sec. 9 and sec. 23 of Interstate Commerce Act.

where the existing rates are dependent upon certain basing points established by the railroads, and so-called zones of traffic are dependent thereon; and the commission may determine that the rates are unreasonable, although the reduction may involve a change in such basing points. Thus, a reduction in that part of the through rates on Atlantic seaboard shipments to Missouri river cities which applied to the haul between the Mississippi and Missouri rivers, was held not beyond the power of the commission where the commission by its order, intended only to correct through rates; which it had found upon complaint were unreasonable in themselves, by substituting therefor reasonable rates, and that the findings of the commission that certain through rates were unreasonable in themselves carried with them a presumption of correctness in so ruling.1 But while the court in determining whether an administrative order of the commission should be suspended or set aside will consider whether the order was within the commission's lawful jurisdiction, and not whether the administrative power has been wisely exercised, on the other hand, where the power of the

1 Interstate Commerce Commis ́sion v. Chicago, R. I. & P. R. Co., 218 U. S. 88, 54 L. Ed. 946 (1910), reversing 171 Fed. 680.

2 Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 54 L. Ed. 281 (1910), reversing 173 Fed. 930, where the court said: "Beyond controversy, in determining whether an order of the commission shall be suspended or set aside, we must consider (a) all relevant questions of constitutional power or right; (b) all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz., whether, even although the order

be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 698, 39 L. Ed. 311, 316, 5 Inter. Com. Rep. 1, 15 Sup. Ct. Rep. 268, 360. Plain as it is that the powers just stated are of the essence of judicial authority, and which, therefore, may not be curtailed, and whose discharge may not be by us in a proper case avoided, it is equally plain that such perennial powers lend no support whatever to the proposition that we may, under the guise of exerting

commission is expressly conditioned by the act as in establishing a through route and joint rates when no reasonable or satisfactory through route exists, the courts will review the determination of the commission; and it was held that the personal I references of many travelers for another through route to the Pacific, did not justify the Interstate Commerce Commission to establish a through route and joint rates to the Pacific where one through route existed available for the public.1

While the commission has authority to condemn unjust and unreasonable rates and fix reasonable rates, it has no right to make a change in the rates for the purpose of protecting certain interests or encouraging certain industries where the rates were reasonable in themselves. The court, therefore, will review the orders of the commission not only on the constitutional ground that changes may be confiscatory, but on the further ground that the commission is not acting within its lawful jurisdiction.2

With its power thus enlarged by statute as well as by judicial construction the Interstate Commerce Commission is a unique illustration of an administrative board invested with the different powers of government.3 As an administrative body

judicial power, usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised.

"Power to make the order, and not the mere expediency or wis dom of having made it, is the question."

1 Interstate Commerce Commission v. Northern Pacific R. R., 216 U. S. 538, 54 L. Ed. 608 (1910), affirming the circuit court in restraining the enforcement of the order of the Interstate Commerce Commission, 16 Inters. Com. Rep. For amendment of statute, following this decision, see Part II, section 15.

2 Southern P. Co. v. Interstate

Commerce Com., 219 U. S. 433, 55 L. Ed. (Feb. 20, 1911), reversing 177 Fed. 963.

8 From Opinion of Commission in the "Investigation of advances in Rates by Western Trunk Lines, 20 I. C. C. R. 9 (Feb. 22nd, 1911).

"By its decisions in the Abeline Cotton Oil case, the Illinois Central case, the supreme court has erected this commission into what has been termed "an economic court," or to give it a more com monplace definition, but one of perhaps of stricter legal analogy, a select jury to pass upon the reasonableness and justness of railroad rates, rules and practices. Within broad lines of discretion the courts regard the conclusions of the commission on question of

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